Public Sector Standards
– a new and reformed legal framework
Government Reform Unit, Department of Public Expenditure and Reform
June 2015
Public Sector Standards
– a new and reformed legal framework
Contents
1.
Background ........................................................................................................................... 2
2.
Purpose of Paper................................................................................................................... 2
3.
Context .................................................................................................................................. 3
4.
Objectives of the Reform Proposals ..................................................................................... 3
5.
Key Reforms .......................................................................................................................... 4
6.
Overview of the current ethics legislation ............................................................................ 5
7.
Review of International Best Practice ................................................................................... 6
8.
Mahon Tribunal..................................................................................................................... 7
9.
Proposals for Reform ............................................................................................................ 7
10.
Proposed Electoral Commission ......................................................................................... 13
11.
Conclusion ........................................................................................................................... 14
1
1.
Background
1.1
The Programme for Government contained an extensive programme of legislative reforms to
strengthen public governance and enhance openness transparency and accountability. The
programme of commitments include: the introduction of whistleblower protection legislation;
 Restoration of Freedom of Information;
 Regulation of Lobbying;
 Establishing a system of Oireachtas inquiries;
 Strengthening civil service accountability; and
 Continuing the comprehensive programme of Statute Law Revision.
1.2
These measures were subsequently supplemented with important reform initiatives such as: Ireland’s Participation in the Open Government Partnership;
 the development of Open Data; and
 reform of the system of appointments to State Boards.
1.3
The Statement of Government Priorities 2014-2016 contained a commitment
“…to publish legislation to consolidate local and national ethics requirements and give
effect to the recommendations of the tribunals.”
2.
Purpose of Paper
2.1
The Department of Public Expenditure and Reform has published the General Scheme of a Public
Sector Standards Bill which will introduce a new statutory framework governing disclosure of
interests and related matters.
2.2
This paper provides an overview of the main elements of the proposed framework1 and sets out
the following:



the context and objectives of the proposed reform of ethics legislation;
the specific proposals for legislative reform;
the rationale for and the expected benefits of the proposed approach.
1
Replacing that set out in the Ethics in Public Office Act 1995, the Standards in Public Office Act 2001 and the Local
Government Act 2001 (Part XV) which currently govern the identification and appropriate management of
conflicts of interest for public officials comprising elected representatives and administrators at both national and
local level.
2
3.
Context
3.1
The effectiveness of the ethical framework in managing conflicts of interest2 arising for public
officials3 is integral to the quality and efficacy of public governance and in addressing corruption
risks. Minimising corruption risks, and ensuring that conflicts between the public interest and
private interests of public officials in the performance of their duties are regulated, is central to
maximising the value generated and contribution made by the public sector.
3.2
There is a significant body of research highlighting internationally the important linkage between
the quality of public institutions and long-term economic and social sustainability. Moreover,
there are a number of significant examples in Ireland’s history – most recently the banking and
financial crisis where institutional weaknesses and governance failures have given rise to very
substantial economic and social costs.
4.
Objectives of the Reform Proposals
4.1
In addition to meeting the Government’s commitment contained in the Statement of
Government Priorities, the key objectives of the reform proposals set out in this paper are to:

Significantly enhance the existing framework for identifying, disclosing and managing
conflicts of interest as well as minimising corruption risks;

Strengthen public trust in public administration by reinforcing the standards required from
public officials in performance of their functions;

Achieve a shift towards a more dynamic and risk-based system of compliance;

Ensure that the institutional framework for oversight, investigation and enforcement is
robust and effective;

Put in place a consistent, coherent and proportionate ethics framework for all public officials
at both local and national level which is calibrated to conflict of interest and corruption risks;
and

Ensure Ireland’s disclosure and conflict of interest framework corresponds to international
best practice and is appropriately balanced to other important public policy objectives
including safeguarding privacy and encouraging participation in public life.
2
According to the OECD a conflict of interest involves a conflict between the public duty and private interests of a
public official, in which the public official has private-capacity interests which could improperly influence the
performance of their official duties and responsibilities.
3
In this paper the term ‘public official’ has a broad definition and includes in addition to all public service
employees, public representatives at both local and national level as well as chairpersons and members of boards
of public bodies.
3
5.
Key Reforms
5.1
The proposals in the General Scheme of the Public Sector Standards Bill are for a comprehensive
and far-reaching reform, consolidation and modernisation of the current framework. Key
elements of the reforms include:- a broader role in the provision of advice and guidance as well
as

Replacing the Standards in Public Office Commission with a Public Sector Standards
Commissioner who will have increased powers and, through the establishment of a Deputy
Commissioner (who will be independent in terms of the investigations functions), will
implement more streamlined and improved complaints and investigations procedures. The
Commissioner will have stronger powers of sanction and enforcement in relation to a range
of contraventions as well as a broader role in the provision of advice and guidance;

Establishing in legislation a set of over-arching integrity principles that will apply to all public
officials and utilising these to provide a framework for the revision, updating and
improvement of codes of standard and behaviour for different categories of public officials;

Strengthening the legal obligation for public officials to disclose as a matter of routine actual
and potential conflicts of interest that arise in the context of the performance of their duties;

Establishing a more effective, streamlined and efficient process for the submission of periodic
statements of interests. These will have to be reviewed every 4 months but no declaration
(or nil statement) will be required unless there has been a significant change;

Significantly extending the personal and material scope of disclosures for public officials, with
common definitions applying at national and local level. Declarable interests will include
political donations and there will be greater consistency and certainty on the rules governing
limits on the receipt of gifts and travel benefits by public officials.

Application of graduated approach, with the declarations of interests of politicians and senior
officials being made to the Commissioner and published; private declarable interests (such as
liabilities over certain thresholds) will also be disclosed confidentially by public
representatives and the most senior officials, and will not be published.

The imposition of statutory prohibitions on the use of insider information, on the seeking or
acceptance by public officials of benefits (including gifts and favours etc.) to further their
private interests, and on local elected representatives from dealing professionally with land
in certain circumstances; and

Establishing a new statutory board to address potential conflicts of interest as public officials
take-up roles in the private sector by merging the Outside Appointments Board (OAB) for the
Civil Service and Local Authority system.
4
6.
Overview of the current ethics legislation
6.1
The statutory provisions that underpin the current system have developed in a piecemeal fashion
and are fragmented across a number of statutes, with separate regimes for disclosure of interests,
sanctions, disclosure of donations and other ethics requirements at national level and local level.
6.2
Conflicts of interest are currently regulated at national level by the Ethics in Public Office Act 1995
and the Standards in Public Office Act 2001 (‘the Ethics Acts’) and at local level by the Local
Government Act 2001 (Part XV). Political expenditure and donations are regulated by the Local
Elections (Disclosure of Donations and Expenditure) Act 1999 and the Electoral Act 1997. This
has created a lack of clarity and level of uncertainty regarding what rules apply in any specific
case as well as impacting adversely on the credibility of the ethics regime owing to the anomalies
created by the different obligations that apply.
6.3
The final report of the Mahon Tribunal published in 2012 contained anti-corruption principles and
a series of recommendations including in relation to conflict of interests. The recommendations
drawing from international best practice and in light of the matters investigated by the Tribunal
pointed to the need for a far-reaching overhaul of Ireland’s ethics regime.4
6.4
The operation of the current ethics regime is excessively bureaucratic, requiring the preparation
of paper-based returns by a large number of public officials, the majority of which are submitted
to Heads of public bodies, notwithstanding that those Heads have no formal requirement to
review or examine the returns. The effectiveness of the current system in identifying and
addressing potential conflicts of interest has been questioned.
6.5
Responsibilities for the provision of advice, the development of guidelines and the putting in place
of Codes of Conduct is distributed among a range of different bodies (i.e. SIPO Commission, the
Committees on Members’ Interests of both Houses, the Minister for Public Expenditure and
Reform and the individual public sector bodies) and there are no statutory principles guiding the
conduct of public officials.
6.6
While there is no specific evidence-base, anecdotal information would indicate that the level of
knowledge and understanding among public officials as a whole regarding specific ethical
requirements needs to be increased. While there are a number of detailed sectoral codes in place,
it is not evident that their contents meet their intended purpose of serving to inform on ethical
requirements and guide conduct and behaviour on a day-to-day basis.
6.7
The SIPO Commission has, in its role of supervising the operation of the relevant legislation,
played a crucial role in fostering and seeking to develop and strengthen the ethics regime through
the recommendations made in its Annual Reports. However, given the increasing demands of
4
Some of the recommendations included in the Mahon report echoed recommendations that had been made by
the Standards in Public Office Commission in its Annual Reports aimed at improving the effectiveness of the ethics
system.
5
successfully overseeing the regulatory system and in light of the significant expansion in the scope
of the regime under the proposed legislation as well as the increased powers envisaged under it,
the current part-time, ex-officio model is unlikely to be fully aligned with future requirements.
7.
Review of International Best Practice5
7.1
The development of the proposals outlined in this paper and detailed in the General Scheme has
been significantly influenced by OECD and World Bank guidance on international best practice as
well as recommendations from the recent Council of Europe evaluation of corruption prevention
in Ireland as it pertains to parliamentarians.6
7.2
The OECD recommends that a modern conflict of interest policy should seek to achieve a balanced
approach to controlling the exercise of private interests. The OECD points out that conflict of
interest control requires information about interests that have the potential to influence the
discharge of official duties, rather than a necessarily all-encompassing picture of all income,
assets, outside business and other activities.
7.3
The OECD also stresses that it is debatable whether a single declaration system should apply to
all branches of power and to all levels of officials and that there is no convincing evidence that
covering the broadest possible circle necessarily leads to more effective prevention of corruption.
7.4
The World Bank notes that there is no single optimal approach to Income and Asset Disclosure
(IAD) system design and implementation. It concludes that excessively ambitious scope and
coverage can compromise the effectiveness and credibility of an IAD regime. It considers that
credible scrutiny of the content of declarations is essential. The OECD notes in this regard that
there should be a balance between systematic verification according to strict criteria and an ad
hoc approach such as acting on specific warnings or other signals.
7.5
The Council of Europe evaluation recommended: replacing the existing ethical framework with a consolidated values-based framework
 enhancement and expansion of the personal and material scope of the existing disclosure
regime; and
 the establishment of an independent monitoring mechanism for such disclosures.
7.6
A summary of the main conclusions of the review of international best practice can be found at
the following link - http://www.per.gov.ie/public-sector-standards-bill/
5
Key documents are: http://www.oecd.org/corruption/ethics/managingconflictofinterestinthepublicservice.htm ;
OECD (2011), Asset Declarations for Public Officials: A Tool to Prevent Corruption,
http://dx.doi.org/10.1787/9789264095281-en. Using Asset Disclosure for Identifying Politically Exposed Persons –
www.worldbank.org/amlcft; and Public Office, Private Interests – Accountability through Income and Asset
Disclosure (2012) –http://star.worldbank.org/star/.
6
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/Eval%20IV/GrecoEval4(2014)3_Ireland_EN.pdf
6
8.
Mahon Tribunal7
8.1
The detailed and extensive recommendations contained in the final report of the Mahon Tribunal
relating to managing conflicts of interest have comprised a significant element of the review.
8.2
The approach adopted in the General Scheme as set out in the following section of this paper has
been – as a priority - to seek to secure the relevant objectives of the Tribunal to significantly
strengthen the regulatory framework for the effective management of conflicts of interest and
for minimising corruption risks.
8.3
The proposals have been strongly guided by the analysis and findings contained in the Tribunal’s
final report. Many of the Tribunal’s recommendations have been directly implemented in the
proposed scheme. In this context major reforms included in the legislative proposals include a
significant broadening of the material and personal scope of declarations of interest, increased
frequency of declarations where changes have taken place and broadening the remit and
significantly enhancing the powers of the regulator for the ethics system.
8.4
The approach adopted goes beyond that proposed by the Tribunal by proposing the repeal of the
current legislation and the establishment of single, integrated and coherent statutory framework
in contrast to the proposed amendment of the existing disparate legislation envisaged by the
Tribunal.
8.5
A further priority has been to ensure that the Tribunal’s recommendations are implemented in a
manner which is legally feasible and operationally practical in light of the international guidance
advising a targeted risk-based approach to addressing corruption risks. Other important
considerations that have guided that approach relate to the need to support other important
public policy objectives including for example safeguarding privacy and supporting participation
in public life. Striking the right balance between public access to the content of declarations and
the right to privacy is a challenge for most ethics systems internationally.
8.6
A detailed assessment setting out the Mahon Tribunal proposals and the current position in
relation to each, as well as the approach proposed in the draft Scheme can be found at
http://www.per.gov.ie/public-sector-standards-bill/
9.
Proposals for Reform
9.1
The main elements of the proposed new ethics regime as detailed in the General Scheme of the
Public Sector Standards Bill are set out below. A detailed summary of the provisions can be found
at http://www.per.gov.ie/public-sector-standards-bill/
7
The Moriarty Tribunal also had one recommendation in relation to the audit of the financial affairs of Office
Holders under the Ethics Acts by an inspector appointed by SIPO.
7
Expanded Scope of Disclosures
9.2
The Scheme broadens the material and personal scope of declarable interests in line with the
Mahon Tribunal’s recommendations. The periodic disclosure regime requires the declaration of
the following in any 3 consecutive 4-month periods:  the source of income in excess of €2,600 from any remunerated trade, profession,
employment or other occupation;
 the source of any income which relates to dealing with or developing land by the public
official, or on behalf of the public official by a company or another body of which the official
or a nominee is a member;
 the source of any income from remunerated position as a lobbyist, consultant or adviser
during the appropriate period;
 any contract that the public official was a party to or is interested in for the supply of goods
or services to a public body if the value of the goods or services exceeds €5,000 or €5,000 in
aggregate;
 any interest the public official has in land (other than a family home) in excess of €10,000;
 any beneficial or legal interest or holding of shares and other like investments, in a particular
company at any time during the appropriate period if the interest exceeds €13,000 with
certain exclusions;8
 A directorship, shadow directorship or other office or management position of any company
held by the official during the appropriate period; and
 Details of political donations received during the declaration period in excess of €600 or €600
in aggregate and details of the donor, whether the donation was requested and by whom,
and if a receipt was issued.
Private Declarable Interests
9.3
The concept of a private declarable interest is introduced, whereby certain interests such as
liabilities over a certain threshold and gifts given by relatives in a private capacity) are also
disclosed periodically, but by senior officials and politicians only, on a confidential basis, and are
not published. This approach seeks to achieve an appropriate balance between the constitutional
right to privacy with the public interest in disclosure of interests. Private Declarable interests
include:
 the amount of income from each source;
 own liabilities and assets over €50,000 other than pensions or a charge on the family home;
 Gifts: If the value of a gift is over €200 and is given by non-relatives for reasons not connected
with the official’s functions it must be declared;
 Travel: Travel, accommodation and related facilities over €600 given by a person who is not
a relative and which are not connected with the performance of his or her functions
Ad hoc Disclosures
9.4
The Scheme stresses the importance of ad hoc disclosures which are made if and when a conflict
of interest arises. In contrast to existing arrangements, this obligation will apply to all public
8
Exclusions are: Money in a current, deposit or other similar account with a financial institution, or an interest or
holding in a company limited by guarantee that is a not-for-profit company or has charitable status and receives a
tax exemption from the Revenue Commissioners as either, or that is a residential management company.
8
officials. This approach is a major innovation in ensuring the disclosure process focuses attention
on actual and perceived conflicts of interest as they arise for public officials and extend the
personal scope of such disclosures to include the interests of connected parties9. It seeks to
ensure that the ethics regime discourages unethical conduct on a preventative basis, and is
complemented by the measures being proposed to enhance the possibilities for detecting and
sanctioning conflict of interest behaviours should they occur.
Statements of Interest
9.5
The Scheme intends to put in place a more streamlined, effective and efficient administrative
ethics regime. This is being achieved by providing for a central ethics declaration procedure and
by moving to a situation where public officials and public bodies are automatically brought within
the scope of the legislation rather than having to be scheduled on a case-by-case basis by
Secondary legislation. The Commissioner will be enabled to put in place an efficient IT-based
disclosure system to underpin the effective operation of the provisions of the new regime, in
place of the current largely paper-based approach.
Frequency of Disclosure
9.6
The existing annual disclosure system is being amended so that once the first declaration is made,
on assignment or election, no further declarations will be required unless there is a significant
change in interests. While interests will need to be reviewed three times per year - continuing
until 12 months subsequent to the person ceasing to be a public official - to see if there has been
a significant change in interests in the previous 4-month period, and will need to be updated if
there has been, there will be no requirement to make a “nil” return.
Graduated Framework for Disclosures
9.7
The Scheme, therefore, adopts a graduated approach to declarations of interests and establishes
three categories of public officials. This approach is adopted in light of the Mahon Tribunal which
highlighted that the more senior the public official the more significant the existence of a conflict
from a corruption perspective as well as best international practice. The more extensive
disclosures of parliamentarians and top level public officials are to be submitted to the Public
Sector Standards Commissioner. This provides the opportunity for the adoption of a targeted and
risk based approach to the scrutiny of examination of declarations made. Different requirements
also apply in terms of the publication of information. The detailed arrangements applicable to
various categories of public officials are set out at http://www.per.gov.ie/public-sectorstandards-bill/
Public Sector Standards Commissioner
9.8
The Scheme proposes the creation of a Public Sector Standards Commissioner replacing the
Standards in Public Office Commission with a broader remit and substantially increased powers
of sanction. The Scheme also proposes the establishment of a Deputy Commissioner who will be
independent of the Commissioner for the purposes of the investigations functions. Following the
carrying out of investigations by investigation officers appointed by the Deputy Commissioner, a
report will be given to the Commissioner to adjudicate on, thus providing a separation of powers.
This is regarded as a key element in the reforms to ensure that a robust and effective regulatory
9
Connected persons includes relatives as well as business partners and companies and other such legal
arrangements that the person has a beneficial interest in or is a director of.
9
system is in place to ensure effective implementation and operation of the reformed ethics
system.
Complaints and Investigations
9.9
The legislative proposals contain a number of important innovations in relation to the pursuit of
complaints and the carrying out of investigations as well as in the area of contraventions and
sanctions. For example: The Commissioner may refer to the Deputy Commissioner to have an investigation conducted
where a complaint has been made or in cases where he or she considers that there may have
been a breach or contravention of the Act but no valid complaint has been made, or to ensure
compliance with the Act;
 A complaint may be dismissed if it is considered frivolous or vexatious, if it relates to a period
where the person the subject of the complaint was not a public official or subject to the Act,
if it relates to a private matter unrelated to the functions of the office, if made anonymously,
or if it is more appropriately dealt with in the context of a Minister's
parliamentary accountability to the Oireachtas;
 The Commissioner may provide advice and guidance where he or she considers it
appropriate, or refer the complaint to the relevant public body, or to the office holder in the
case of a special adviser or refer the matter to a Public Standards Commission official to carry
out a preliminary inquiry.
 Following a preliminary inquiry, the Commissioner may dismiss the matter, provide advice or
guidance, refer the matter to the relevant body, proceed to a prosecution, or refer the matter
to the Deputy Commissioner for further investigation. The Deputy Commissioner will be
independent and impartial in the conduct of investigations and may appoint investigators
who will have powers to interview, to hold hearings if necessary, including outside the State,
compel the production of documents, summon witnesses and receive evidence both orally
and by affidavit, take sworn statements and apply to the Courts to have his or her directions
complied with.
 Subject to a District Court warrant, investigators will also have powers of search and seizure,
if required in exceptional circumstances, except in respect of private papers of members or
confidential papers of the Oireachtas.
Contraventions and Sanctions
9.10
The General Scheme contains a number of provisions in this area which are designed to ensure
availability of a range of measures in response to contraventions and sanctions which are
proportionate to the gravity of the breach that has taken place.
9.11
It establishes offences for breaches of the Act, including for intentionally or recklessly
 retaining prohibited gifts or
 seeking or accepting rewards for anything done or not done by virtue of office;
 makes a declaration that is false or misleading or fails to make a declaration of interests as
required ;
 fails to comply with tax clearance obligations
 fails to comply with investigations or obstructs the Commissioner.
10
9.12
At the conclusion of an investigation, a report will be furnished by the Deputy Commissioner to
the Commissioner to adjudicate on. Where the Commissioner considers that there has been a
contravention of the Act that does not constitute an offence, or is a minor breach, he or she may
give advice and guidance or refer the matter to the relevant public body. Alternatively, the
Commissioner may impose an administrative sanction such as issuing a censure or a warning,
giving a direction to the person to undertake actions to secure compliance with the Scheme, or
issuing a recommendation to suspend or disqualify the public official involved. Such sanctions
may be appealed to the High Court. If the official does not appeal the sanction, the Commissioner
may apply to the High Court to confirm the decision and the Court in either case may affirm, set
aside or remit the decision for reconsideration by the Commissioner.
9.13
Where the breach is an offence, the Commissioner may prosecute summarily10 or alternatively
may refer the matter to the Director of Public Prosecutions (DPP) for prosecution on indictment.
9.14
On conviction, a court may:
(i)
for a summary offence, impose a class B fine or an imprisonment term of up to 12 months
or both
(ii)
for an indictable offence, impose a fine of up to €100,000 or an imprisonment term of up
to 5 years or both;
(iii) suspend a non-elected public official from their position for 12 months where a person is
convicted of a summary offence, or for a period the court may specify if convicted on
indictment;
(iv) disqualify a non-elected person from holding office as a particular category of official for
12 months where they are convicted of a summary offence, or for a period the court may
specify if convicted on indictment.
9.15
To preserve the separation of powers between the Oireachtas and the Courts, the Scheme
provides that following conviction on a summary offence, or on foot of a confirmation by the High
Court of a recommendation by the Commissioner, either House of the Oireachtas may suspend
(but not disqualify) a member for a period up to 12 months. Longer periods of suspension may
be applied by the Houses to members in respect of conviction on indictment. A person may stand
for election if otherwise eligible.
9.16
The Commissioner may also order that the costs of person appearing before him or her, or the
costs of the Commissioner, should be paid by another person. The Commissioner may order that
the costs incurred by those the subject matter of a complaint should be paid by the complainant
if the complaint is dismissed (if frivolous, repetitious etc.).
9.17
At the conclusion of an investigation, the Commissioner will produce a report setting out his or
her findings and recommended sanctions and send it to the person who is the subject of the
investigation as well as any others considered appropriate. Such reports will be published, and
will be laid before the Houses of the Oireachtas where they relate to members.
10
The Commissioner may also issue a fixed penalty notice of €200 in respect of a summary offence,
11
Standards of integrity and Codes of Conduct
9.18
The draft Scheme includes general principles on standards of integrity and concern for the public
interest, such as impartiality, objectivity, honesty, respect, accountability, openness and
transparency which will apply to all public officials. In outlining the principles, regard was given
to the anti-corruption principles highlighted by the Mahon Tribunal Report and the positive
impact that the “Nolan Principles”, developed by the United Kingdom Committee on Standards
in Public Life.
9.19
Under the Scheme, the Public Sector Standards Commissioner may issue a model code of conduct
based on the general principles on standards of integrity set out above, which all public officials
must comply with in the performance of their duties. Public bodies may issue their own guidance
codes based on the model guide.
9.20
The Scheme provides an important role to the Commissioner in relation to the provision of advice,
and guidance in relation to implementation, application of and compliance with the new regime
as well as training, education and research.
Prohibition on Favours and Rewards
9.21
The scheme provides a prohibition and makes it an offence for a public official to seek or accept
benefits (including gifts and favours etc.) to further their private interests or to retain a gift or
other advantage not lawfully due. The position in relation to travel, accommodation and gifts is
summarised in the graphic below. The approach sets a lower limit of €200 on gifts, below which
no declarations are made. It sets an intermediate limit of €200-600 where gifts must be declared
and an upper limit of €600, above which gifts must be refused or remitted. In the case of Category
A officials, gifts over €200 are declared confidentially even if not connected with their function.
9.22
Travel, accommodation and ancillary facilities over €600 received in connection with a person’s
function must in general be declared. Such travel etc. must also be declared confidentially by
Category A where they are not connected with the official’s functions.
Gifts and Travel
From a relative
Not from a relative
Not from a relative
Declarable
Type/value
Connected with
function
Connected with
function
Not connected with
function
Travel
Declared by all
Declared except if
from employer, EU
foreign state etc.
Category A only,
declares
confidentially
Declared by all
Declared by all
Category A only,
declares
confidentially
Refuse/remit, and
notify
Commissioner
Refuse/remit, and
notify
Commissioner
Category A only,
declares
confidentially
>€600
Gifts
€200-600
Gifts
>€600
12
Political donations
9.23
There are currently parallel but separate regimes of oversight and control to address the issues
that arise where funding is given to politicians, whether as a gift (which is captured under ethics
legislation) or as a political donation (which is addressed under electoral legislation).
9.24
To streamline the approach taken, the scheme provides that the definition of declarable interest
includes political donations made to a public official. A public official who declares political
donations in their statement of interest will not be obliged to submit a separate donation
statement under the Electoral Acts in respect of the period covered by the declaration.
9.25
The obligations on any person who is not covered by the Ethics Acts to submit donation
statements, and the current monitoring and reporting arrangements relating to the financing by
the State of political parties and bodies, including in relation to the Party Leaders Allowance, will
remain unchanged. As set out in section 10 below, these arrangements may be modified in light
of decision-making and progress made in the establishment of the proposed Electoral
Commission.
Use of insider information and post-term employment restrictions
9.26
The scheme imposes a prohibition on the use of insider information to improperly further or seek
to further the private interests of the official or a connected person. The prohibition will be the
subject of a Code of Conduct to be prepared by the Commissioner.
9.27
The legislative proposals are intended to strengthen the effective regulation of employment
outside of the public service following a term of employment as a senior public official in
circumstances that a serious conflict of interest could potentially arise with the previous public
service employment. The scheme will establish the Outside Appointments Board (OAB), the body
responsible for examining such cases, on a statutory basis and merge it with the Outside
Appointments Board for Local Government.
9.28
It is envisaged that the primary role of the new Board will be the establishment of conditions to
resolve potential conflicts of interest rather than to seek to prohibit the taking up of outside
appointments or consultancy engagements which gives rise to significant constitutional issues on
the basis that it interferes with a person’s constitutional right to earn a livelihood.
Prohibition on dealing with land
9.29
The Scheme provides that a local elected representative will be prohibited from dealing
professionally with land (both during his or her term of office and for a period of two years
thereafter) where their local authority has changed the planning or zoning status of that land
while they were in office, where they voted on the decision and where they are engaged in an
outside activity primarily involving the sale or development of land.
10.
Proposed Electoral Commission
13
10.1
Political expenditure and donations are regulated by the Electoral Acts. These require the
Standards in Public Office Commission (SIPO) to monitor and report on the acceptance and
disclosure of donations made to fund the political system. As set out in a recent consultation
paper published by the Department of the Environment, Community and Local Government, it is
suggested that the role of SIPO under the Electoral Acts should be assigned to the proposed new
Electoral Commission. Against the backdrop of the proposed reform of the ethics framework and
the role of SIPO in this context, consideration is required on the appropriate transitional
arrangements in advance of the establishment of the Electoral Commission.
10.2
The two main options are for the Public Sector Standards Commissioner to take on the roles
currently exercised by SIPO under the Electoral Acts pending the establishment of the Electoral
Commission (which is provided for in the draft Scheme pro-tem) or for SIPO to remain in place
following the creation of the Public Sector Standards Commissioner solely to exercise its current
functions under the Electoral Act pending the establishment of the Electoral Commission.
Further consideration will be given to these options in the context of the drafting of the Public
Sector Standards Bill and in light of progress in establishing the Electoral Commission.
11.
Conclusion
11.1
The proposed General Scheme will significantly strengthen the current ethics regime to address
corruption risks and perceived corruption risks.
11.2
No framework can eliminate all potential conflicts of interest and the challenge is therefore to
ensure that conflicts are appropriately identified and controlled. For control and identification to
be successful it will be crucial that public officials can make skilled judgements as to what in their
particular role and personal circumstances could give rise to a conflict. The role of Commissioner
in education and research together with strengthened codes of conduct and statutory principles
will ensure that the consideration of standards will be a significant factor for those performing
public office.
11.3
The reforms proposed complement the further measures introduced in the areas of
whistleblower protection, the Ombudsman, Parliamentary inquiries, the appointment system to
State Boards, civil service accountability and Freedom of Information in building a system of
public governance that underpins openness, transparency, accountability and integrity of public
administration government.
11.4
The General Scheme of the Bill is being submitted for consideration by the Joint Oireachtas
Committee on Finance, Public Expenditure and Reform for pre-legislative scrutiny. This process
will provide the opportunity for citizens, civil society interests and advocacy groups as well as
public representatives to provide their views and perspectives on the proposed reforms.
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