Draft General Scheme of a Public Sector Standards Bill
Observations of the Standards in Public Office Commission
1
Introduction
1.1
The Standards in Public Office Commission (Standards Commission) welcomes the
publication of the draft General Scheme of a Public Sector Standards Bill. The proposals
represent a significant step on the road to realisation of a major recommendation first made
by the Commission in its annual report for 2009 for a single comprehensive Act based on
best practice for dealing with conflicts of interests, which would consolidate the provisions
of the Ethics Acts with other statutory and administrative ethics frameworks.
1.2
The Standards Commission has noted and taken account of the contents of the draft
General Scheme and of the supporting documentation.
1.3
The Standards Commission wishes to make the following observations based on its
experience in implementing the Ethics in Public Office Acts 1995 and 2001 (the Ethics
Acts) since 2001, along with the experience of the Public Offices Commission (POC)
between 1995 and 2001.
2
Previous recommendations by the Standards Commission and by GRECO
2.1
The Standards Commission strongly welcomes the fact that many of the recommendations
it has previously made have been addressed in the draft General Scheme, as have others
made by GRECO. These include:

enactment of a comprehensive Act consolidating the Ethics Acts and all other
legislation providing for disclosure of interests and related provisions for public
officials (Annual Report 2009);

adoption of a high level statement of ethical principles (Annual Report 2009). (Head 6
– Standards of Integrity);

amendment of the definition of a connected person (Annual Report 2009). (Head 2(2) –
Interpretation);
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
disclosure of liabilities (Annual Report 2009). (Head 5 – Declarable Interests);

amendments to the time limits within which statutory declarations, tax clearance
certificates and application statements are to be made or issued and furnished to the
Standards Commission by elected members and by appointees to senior positions and
directorships in the public service (Annual Report 2003). (Head 11 – Evidence of
Compliance with Tax Acts by Public Officials);

code of conduct for public servants and members of state boards in the wider public
service (Annual Report 2003). (Head 19 – Codes of Conduct);

the Commission(er)1 (and not the Minister) to lay its annual report before each House
of the Oireachtas (Annual Report 2010). (Head 20 – Annual and Special Reports by the
Commissioner);

power to appoint an Inquiry Officer to conduct a preliminary inquiry without a
complaint (Annual Report 2004) (Head 26 – Investigations).
2.2
The Commission recommended that it be given the power to appoint an Inquiry Officer to
conduct a preliminary inquiry into a matter in the absence of a complaint under the Ethics
Acts (Chapter 1, ‘Own initiative inquiries’, Annual Report 2004); Head 26 provides that
the Commissioner shall refer a matter to the Deputy Commissioner for investigation where
he or she is of the opinion that there may be a breach of the Act, but no valid complaint has
been made. It would seem more appropriate (as well as in accordance with the
Commission’s recommendation) that the matter be referred to an authorised officer for
preliminary inquiry under Head 24.
2.3
GRECO carried out a 4th Round Evaluation in 2014 on Corruption Prevention in respect of
Members of Parliament, Judges and Prosecutors in Ireland. In its evaluation report adopted
at a plenary meeting of GRECO on 10 October 2014, it made a number of
recommendations regarding parliamentarians, including the following:
i.
that the existing ethics framework be replaced with a uniform and consolidated
values-based normative framework encompassing the ethical conduct of members
of parliament - including their staff as appropriate - covering various situations of
conflicts of interest (gifts and other advantages, third party contacts including
lobbyists, accessory activities and post-employment situations etc.) with the aim of
providing clear rules concerning their expected conduct;
ii.
that the existing regime on asset declarations by members of parliament be
enhanced by a) extending the obligations to disclose their interests to include
quantitative data on their significant financial and economic involvements as well
as in respect of significant liabilities; and b) that consideration be given to widening
the scope of members’ declarations to also include close or connected persons, in
1
This term is used in the context of functions being carried out either by a single Commissioner or by a
Commission, as currently provided for. See section 10 below.
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line with the existing rules for office holders;
iii.
that the establishment of a consolidated independent monitoring mechanism be
considered in respect of members of parliament, that it be provided with necessary
means to investigate complaints as well as to sanction findings of misconduct and
that all its decisions, including on the dismissal of cases, are given an appropriate
level of publicity and
iv.
that the parliamentary authorities provide dedicated regular training for members of
parliament on issues such as ethics, conduct in situations of conflicts of interests
and corruption prevention;
2.4
The enactment of the Public Sector Standards Bill would meet the first recommendation.
2.5
The draft General Scheme provides for the disclosure of amounts of income received as a
private declarable interest. However, no provision is proposed for disclosure of
quantitative data on other interests, including assets, liabilities, gifts, etc. The draft
provides for the disclosure of the declarable interests of relatives as private declarable
interests.
2.6
The proposal that a Commission(er) would examine complaints about Oireachtas members
and recommend sanctions in respect of contraventions is in line with the third
recommendation.
2.7
Head 19 of the draft General Scheme provides, inter alia, that the Commission(er) would
“promote the highest standards of conduct and integrity and the prevention of conflicts of
interests through training, education and research.”
3
Ethical Framework
3.1
The Commission considers that an ethical framework such as proposed in the draft General
Scheme should be aspirational in nature. The structure underpinning the Statute should
have a strong promotional role, and not just be engaged in detecting non-compliance. The
statutory framework should codify public service values and principles; use these as the
basis of a statutory Code of Conduct and provide clear guidance and training. These
provisions should form the centre of the framework.
3.2
In its annual report for 2009, the Commission recommended the adoption of a high level
statement of ethical principles to be followed by public servants and public representatives.
It argued for a combination of a principles-based and rules-based approach, stating that
“Any rules that are laid down should be derived from general principles of ethical
behaviour”. The framework should allow for such a combination with the provision of
standards of integrity (Head 6), a model code of conduct supported by subordinate codes
and statutory provisions.
3.3
The current draft General Scheme gives centre stage to conflicts of interest, which formed
the basis of the Ethics in Public Office Act 1995. However, other aspects of behaviour such
as the requirements on public officials to have respect for equality of opportunity; to
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perform their functions openly and transparently to the greatest extent possible and to avoid
the misuse of public resources also need to feature, in the context of the fundamental
obligation of public officials to act ethically in the public interest, which must be
emphasised as of the highest priority.
3.4
The Commission therefore considers that the General Scheme should be reordered to
emphasise the high standards of conduct and integrity which are expected of public
officials, along with the provisions re codes of conduct and that other provisions setting out
specific obligations (e.g. disclosure of interests, tax clearance, use of confidential
information, dealing with land) and the complaints and investigations procedures should
follow.
4
Codes of Conduct
4.1
Head 19 of the draft General Scheme provides, inter alia, that the Commission(er) shall
draw up a model code of conduct and that each public body may issue codes of conduct
based on the model code. The draft also provides that the Commission(er) may review a
code of conduct and suggest that it be amended and the public body shall consider such a
suggestion.
4.2
The Commission considers that there are a number of difficulties with this proposal. In the
first instance, it is of the view that the model code should be drafted by the Minister and
that following consultation with the Commission(er) and public consultation, the model
code should be placed on a statutory basis by way of regulations made by the Minister.
4.3
In addition, the proposal to allow each public body discretion to issue codes of conduct
raises certain difficulties. The Standards Commission considers that each public official
should be guided by a code of conduct applicable to that person. Accordingly, the
requirement to publish a code of conduct should not be discretionary and that a time limit
after commencement of the legislation by which a code should be introduced should apply.
4.4
Under the Standards in Public Office Act 2001, a code of conduct applicable to all public
servants (the Civil Service Code of Standards and Behaviour) was published in 2004 and
updated in 2008. On enactment of the proposed legislation, that Code would lapse. As the
standards of conduct and behaviour applicable to each civil servant are the same, it would
not seem appropriate for each Department/Office to introduce its own code which may not
necessarily accord with those in other offices. Similar considerations apply in local
authorities in regard to the Codes of Conduct for Employees and for Councillors. Other
sectors would also benefit from the adoption of a common code applicable in all public
bodies in that sector, e.g. the health sector, education and training boards, etc.
4.5
The Standards Commission therefore recommends that provision be made for the
publication of sectoral codes. The Commission accepts that there would be a benefit in a
public body publishing a code of conduct which would elaborate on the applicable sectoral
code in order to cater for specific circumstances which apply in that body alone. The
provisions of the Civil Service Code of Standards and Behaviour allowed for such
elaborations in Departments/Offices. However, such an elaboration must be subordinate to
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any applicable provisions in the sectoral code.
4.6
The Commission also recommends that provision be made for codes applicable to office
holders and to members of the Oireachtas who are not office holders.
4.7
In this regard, the Commission notes that the definition of an ‘office holder’ retains, inter
alia, the existing requirement that a resolution be passed by the appropriate House or
Houses to determine that the chairman of a committee of either House or of chairman of a
joint committee of both Houses is an ‘office holder’ for the purposes of the legislation. The
Commission recommends that the chairpersons of select and joint committees be defined
as ‘office holders’ without the need for resolutions to be passed.
4.8
Finally, the legislation should clearly provide that a contravention of the model code and/or
of an applicable code of conduct (whether a sectoral code or a local elaboration of such a
code) should be capable of being the subject of a complaint and/or an investigation by the
Commission(er). The proposal that a matter may be referred by the Commission(er) to the
relevant public body is of particular importance in this regard.
5
Disclosure of interests provisions
5.1
The Standards Commission supports the proposals for expansion and streamlining of the
disclosure of interests requirements. It notes the proposal to adopt provisions similar to
those in Part 15 of the Local Government Act 2001 to cater for ad hoc disclosure of
conflicts of interests which may arise for a public official in the course of performing
his/her functions. The distinction in subheads (4) and (5) of Head 8 in this regard (stated to
be based on section 177 of the Local Government Act 2001) between interests which are
material to a performance of a function and where it could reasonably be perceived that an
interest may be material requires further clarification.
5.2
The Commission has previously adjudicated on matters arising from section 177 in an
investigation, which was the subject of a judicial review. In particular, it determined the
correct interpretation of the provisions of section 176(3) of the Local Government Act
2001 concerning “an interest which is so remote or insignificant that it cannot be
reasonably regarded as likely to influence a person in considering or discussing, or in
voting on, any question with respect to the matter or in performing any function in relation
to that matter...” However, it may be considered that the disagreement which gave rise to
the judicial review demonstrates the requirement for such provisions to be sufficiently
clear and comprehensible, whether in the legislation or in any guidelines on those
provisions.
5.3
The Standards Commission therefore considers that the terms of these provisions must be
set out as clearly and unambiguously as possible in the legislation or, failing that, in any
guidelines published by the Commission(er).
5.4
The Standards Commission also recommends the development of an online system to be
used in making declarations of interests by Category A public officials to the
Commission(er). Such a system should be developed in such a way as to allow it to also be
used by public bodies to facilitate the making of declarations of interests by Category B
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public officials. The system should also allow for the making of an ad hoc declaration by
any public official.
5.5
The Commission also recommends that the definition of ‘conflict of interest’ set out in
Head 2 could be broadened to refer not only to a conflict between the public duty and such
private interests of a public official which could improperly influence the performance of
official duties and responsibilities, but also to a conflict which could reasonably be
perceived to improperly influence such performance.
6
Tax Clearance provisions
6.1
The Standards Commission welcomes the proposals for annual compliance with the tax
clearance provisions and for criminal offences in the case of serious contraventions. It
wishes to recommend a number of further amendments to strengthen the provisions.
6.2
The provisions regarding the submission of an application statement certifying that a
person has applied for a tax clearance certificate, but that no final decision has been made
either to grant or refuse the application, which provision is carried over from the existing
legislation, can allow a person to comply indefinitely on a temporary or provisional basis.
If the Collector General has not decided whether to issue a tax clearance certificate, or the
Appeal Commissioners have yet to determine any appeal made against a refusal by the
Collector General, a TD for example may not have a tax clearance certificate for an entire
Dáil term (or longer) and yet be deemed to be in compliance with their obligations under
the legislation.
6.3
The Standards Commission therefore recommends that time limits be enacted within which
an application must be granted or refused by the Collector General and within which an
appeal by the Appeal Commissioners must be determined. In the event that this proposal is
not adopted, the Commission recommends that where a person furnishes an application
statement in compliance with the legislation on two successive occasions (whether on
election/appointment or annually by 31 March), it shall publish a report in writing in
relation to the matter.
6.4
The Standards Commission recommends that an online system be developed to facilitate
compliance with the tax clearance provisions. At present, compliance is by way of
furnishing of hard copies of the relevant documents to the Standards Commission (a
statutory declaration made by the person and a tax clearance certificate issued to the person
by the Collector General). An online system should allow a Category A public official to
make his/her declaration to the Commission(er) online using an electronic signature. In
addition, such a system could allow for the tax clearance certificate or application
statement to be provided by the Collector General directly to the Commission(er) rather
than having to be sent to the applicant who is then required to furnish it to the
Commission(er), which appears to the Commission to be an unnecessary administrative
procedure.
6.5
Head 11(5) repeats the provisions of section 21(2) of the Standards in Public Office Act
2001, which sets out when a person is elected as an Oireachtas member. It provides, inter
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alia, that a person is elected as a member when the appropriate returning officer so
declares. This date is used to determine the statutory deadlines by which a member must
comply with the tax clearance provisions. In a general election, this can lead to a
multiplicity of deadlines for different members, which is administratively cumbersome.
6.6
The Standards Commission therefore recommends that a uniform date be provided as the
date used to determine the statutory deadlines for compliance by members following an
election and that this date be the date on which the relevant House first convenes following
the holding of a general election. For example, if (after a general election) Dáil Éireann was
to first sit on 7 October 2015, all TDs would be required to make their declarations between
8 July 2015 and 6 January 2016 and furnish them, along with either a tax clearance
certificate to the Commission(er) not later than 6 April 2016.
6.7
In the event that this proposal is not adopted, the Commission recommends that returning
officers be required by statute to furnish a statement to the Commission(er) within seven
days of the declaration as to the date on which he/she declared the result of the election.
7
Investigation procedures
7.1
The Commission considers that the structure and procedure proposed for investigation of
contraventions is over elaborate and unnecessary. It is possible to carry out the
investigative function within a single organisation. There are many examples of
multifunctional organisations carrying out the information/good practice role, investigative
role and enforcement role. These include the Ombudsman/Complaints Commissioner in
Northern Ireland, the Ombudsman in Wales, the Information Commissioner in the UK, the
Pensions Authority, Data Protection Commissioner and NERA (now part of the Workplace
Relations Commission) in Ireland.
7.2
The proposed structure will be unduly expensive and the number of complaints requiring
investigation and adjudication is unlikely to warrant the cost. In Northern Ireland, the
overall cost estimate was increased by approximately £500,000 when the proposal which
originally included an external investigative structure was costed.
7.3
The draft General Scheme (Head 26) proposes that the Deputy Commissioner would
appoint Investigation Officers who would conduct investigations of possible
contraventions of the legislation. The proposal is for such Investigation Officers to hold
office under the Act and that they would be independent and impartial in the carrying out of
their functions, while required to adhere to procedures to be followed in the conduct of
investigations as prescribed by the Deputy Commissioner.
7.4
The Commission considers that the proposed structure and use of external investigators is
more likely to lead to legal challenges, as it will be very difficult to ensure consistency,
fairness and transparency in the conduct of investigations. Use of existing staff is not only
more cost efficient but will also generate more effective and robust outcomes.
7.5
Any concerns about the separation of powers and adherence to the rules of natural justice
can be dealt with by way of structure and procedure. This is how other organisations ensure
that the right to fair procedures is upheld. There can be physical separation and system
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separation within the office. The Commission considers that there should be a dedicated
individual, along the lines of the Deputy Ombudsman in Northern Ireland (who is the
equivalent to the Director General in the Office of the Ombudsman in this jurisdiction),
who will receive complaints, assess and investigate them as appropriate and prepare a
report for the Commission(er) who will adjudicate on them, with a hearing if necessary.
This individual will design and oversee the implementation of the investigation procedure
and there can be a protocol put in place for how this person and their team interact with the
Commission(er). The Commission considers that this post should be titled Head of
Investigations rather than Deputy Commissioner.
7.6
The Standards Commission has on a number of occasions appointed Inquiry Officers under
section 6 of the Standards in Public Office Act 2001 (2001 Act) to conduct preliminary
inquiries into complaints made to the Commission. The 2001 Act does not specify whether
an Inquiry Officer is to be appointed from within the Commission(er)’s staff or from
outside. In almost all past cases, a member of the Commission Secretariat has been
appointed; while in one case a member of the staff of the Office of the Ombudsman
fulfilled the duties. Flexibility exists in the present arrangement such as to allow the
appointment of an external person if the Commission(er) considered it appropriate in the
circumstances of any particular complaint. However, the Commission’s experience to date
is that the competencies of the Commission’s staff in considering complaints and in
gathering relevant evidence has proved to be more than adequate. In all cases, the Inquiry
Officer is accountable to the Commission and does not hold office.
7.7
In light of its experience, the Commission is strongly of the view that Investigation
Officers should be members of the Commission(er)’s staff while performing such duties
and answerable to the Commission(er) and allowing for temporary appointments in the
event that the Commission(er) considered that external expertise was required.
7.8
The Commission agrees with the proposal for a right of appeal from a decision of the
Commission(er) to the High Court where the contravention does not constitute an offence.
This is an important protection for individuals and their right to due process. The
requirement for the Commission(er) to apply to the High Court for confirmation of the
decision in the event that there is no appeal is unnecessary and in fact it creates uncertainty
and potentially huge delay in achieving finality. Given the nature of the sanctions that may
be imposed where no offence is involved (the most severe being a recommendation to
disqualify) and the right of a sanctioned person to appeal, the requirement to obtain
confirmation from the High Court is disproportionate and the Commission recommends
that this proposal be deleted.
8
Provisions for ‘guidance’
8.1
The draft General Scheme provides at Head 18 for advice to be provided by the
Commissioner on request by an individual. It also provides that where the Commissioner
considers appropriate, he or she may issue confidential advice and guidance to any person
or category of persons to whom this Act applies in relation to his or her obligations under
this Act, including confidential advice and guidance on the steps necessary to secure
compliance by the person with the requirements of this Act.
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8.2
However, these provisions substantially weaken the existing powers of the Commission in
the Ethics Acts for the publication of guidelines and the provision to individuals of advice.
Section 25 of the Ethics in Public Office Act 1995 provides both for the provision on
request of advice to an individual and for the publication of guidelines on the provisions of
the Ethics Acts. Section 25(4) provides: “A person shall act in accordance with guidelines
or advice published or given to the person under this section unless, by so doing, the act
concerned would constitute a contravention of another provision of this Act.”
8.3
The Commission’s experience is that the binding nature of both its published guidelines
and of any advice it is called upon to give provides a certainty to the application in any
particular circumstance of the provisions of the Ethics Acts. This has proved to be of
particular assistance to public bodies who may consider that a person may be about to
contravene a provision of the Ethics Acts, but who does not consider this to be the case. A
request for advice in such circumstances has resolved the issue without the necessity of a
complaint to the Commission.
8.4
In making its findings and determinations at the conclusion of an investigation, the
Standards Commission is required to state whether in the case of any contravention a
person has acted in good faith and in the belief that his or her action was in accordance with
guidelines published or advice given in writing by the Commission.
8.5
The Standards Commission is strongly of the view that the existing provisions concerning
guidelines and advice should be repeated in the proposed Bill.
9
Duty of Accounting Officers or equivalent
9.1
The Standards Commission notes that the obligations set out in the proposed legislation are
primarily imposed on individuals. However, it is also strongly of the view that public
bodies have a clear role in ensuring that individuals comply with their ethical obligations,
as there is a clear reputational risk to the body where this is not the case. Public bodies have
a duty to ensure that all public officials in the body are fully aware of their obligations
under the legislation and any relevant code of conduct and to provide adequate ethical
training. Public officials should be obliged to certify that they are aware of their statutory
duties and undertake to abide by them in the performance of their official functions.
9.2
Public bodies should also ensure that any breaches are properly reported by way of
complaint where necessary. In the case of declarations by Category B public officials and
of ad hoc declarations by Category B and Category C public officials, the person to whom
a declaration is furnished should be required to report a possible contravention to the
Commission and in support of that duty should be provided with the right to seek
information from a person in connection with the person’s obligation to make a statement.
A similar right is provided at present in section 11(a) of the Standards in Public Office Act
2001. Such provisions will ensure that the obligations are policed by public bodies
themselves in the first instance, rather than relying on the Commission(er) who, in the
absence of direct information and of significant resources, will not be in a position to
consider possible contraventions across the public service.
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9.3
The Standards Commission considers that each Accounting Officer or equivalent should be
required to certify in the relevant annual report that the legislation is being implemented in
his/her organisation and that appropriate ethical training is being provided on a regular
basis to all persons. Such a certification would be subject to both internal and external
audit.
10
Replacement of the Standards Commission by a single Commissioner
10.1
The Standards Commission notes the proposal for its replacement by a single office holder,
the Public Sector Standards Commissioner. It considers that there is some merit in the
proposal. However, it also considers that there has been merit in the existing approach.
10.2
The Commission considers that the overlapping terms of its membership has ensured that
there is a continuity of experience. In addition, the wide range of experience brought to it
by its current and former members (former High Court judges, the Comptroller and
Auditor General, the Ombudsman, the Clerks of Dáil and Seanad Éireann and former
Oireachtas members and Ministers) has been of great benefit to it in performing its
functions under the Ethics Acts.
10.3
In finding in its favour in a High Court judicial review taken against it concerning an
investigation under the Ethics Acts, Hedigan J stated: “In determining what might or might
not be reasonably regarded as an interest too remote or insignificant, it is hard to imagine
a body more qualified than the Commission. It is an ideal composition of experience, both
legal, popular and political. It is likely to be a very rare case where this court in judicial
review would find its conclusions irrational or unreasonable.”
10.4
The Commission structure, while labouring under certain constraints, has been effective.
The Commission is constrained in scheduling investigations under the Ethics Acts due to
the requirement that all members must be present at all stages during an investigation.
Arising from this, the Commission wrote to the Minister for Finance on 14 November 2008
requesting him to consider the introduction of an amendment to the Ethics Acts which
would provide for a quorum of not less than three members of the Commission (including
in all cases, the Chairman) for an investigation hearing. The number of Commissioners
would be determined by the Commission in light of the particular circumstances of the
investigation to be heard.
10.5
The Standards Commission notes that the Mahon Tribunal did not recommend the
replacement of the Commission by a single Commissioner. In its final report, the Mahon
Tribunal recommended that the Standards Commission be allowed to sit with a quorum of
three members.2
10.6
The Commission notes the considerable extension of remit involved in the draft General
Scheme compared to the present arrangements, both in terms of the categories of public
officials within the intended scope of the legislation and the additional functions in regard
to the promotion of the highest standards of conduct and integrity and the prevention of
conflicts of interests through training, education and research. The Commission also notes
2
The Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments, p 2569.
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that, while the model of a single Commissioner is used in some other jurisdictions, a
variety of structures have been adopted internationally.
10.7
In light of these considerations, the Standards Commission is of the opinion that careful
consideration be given to the question as to whether a Commission structure should be
maintained or replaced by a single Commissioner.
11
Independence of the Commission(er)
11.1
The Commission has a concern about the proposals in relation to the framework for the
establishment of the office of Commissioner (as outlined in Head 17) and their implications
for the independent exercise of the functions.
11.2
The Commission agrees that the Commissioner must be independent in the performance of
his/her functions (subhead 17 (2)). (The same principle must apply in the event that it is
decided to continue with a Commission structure.)
11.3
However, we are concerned that other proposed provisions in Head 17 may in practice limit
the Commissioner's (perceived) independence. These include:





appointment for a term of six years, renewable on two or more occasions,
dependent on each occasion on qualified (two thirds) majority support in each
House of the Oireachtas - a longer (ten years?), single term of appointment may be
preferable;
Ministerial determination of the level of facilities and services to be made
available to the Commissioner;
Ministerial setting of conditions attaching to expenditure of the Commissioner;
a requirement for the approval of two Ministers for the remuneration of the
Commissioner;
a requirement for the approval of two Ministers for the Commissioner to acquire,
hold or dispose of land or other property for operational purposes.
11.4
The remit of the Commission(er) will be significantly expanded compared to the existing
role of the Standards Commission, given the proposal for a unified framework, including
all Oireachtas members and local authority members and staff and the functions regarding
guidance, education and training and research.
11.5
It is therefore clear that significant additional resources will be required, particularly in
terms of staffing. The Commission considers that the independence of the Commission(er)
would not be sufficiently demonstrated were he/it to have to seek resources from the
Minister for Public Expenditure and Reform. It therefore proposes that a Committee of the
Houses(s) be responsible for approving expenditure by the Commission(er).
11.6
The Standards Commission notes the proposal that, while the Commissioner would furnish
an annual report and any special report to the Minister, he/she would directly lay that report
before both Houses, as opposed to the present provisions whereby the Minister must lay the
reports. The Commission considers that, while the proposal is an improvement, it does not
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sufficiently recognise the independence of the office. It is proposed that the
Commission(er) should provide his/her/its report to the appropriate Oireachtas Committee
for consideration.
12
Proposal for an independent Committee
12.1
The Commission considers that, if the proposal for a single Commissioner is to be adopted
and in view of the wide-ranging nature of the functions to be conferred on the
Commissioner, an independent Committee should be established to carry out certain
functions, such as the proposed research function. Such a Committee would not be
necessary in the event that a Commission structure is retained.
12.2
The Commission considers that the role envisaged in respect of research would best be
performed by an independent Committee, on similar lines to the Committee on Standards
in Public Life in the United Kingdom. Such a committee could review not only the
operation of the proposed legislation, but also wider issues of ethical standards and
procedures in public administration and public attitudes to the standards required in public
life. The Committee could perform similar research in regard to electoral matters, which
would assist the proposed Electoral Commission when established. The Committee could
make recommendations for consideration by the appropriate Oireachtas Committee.
13
Transitional Arrangements
13.1
In the event that the Standards Commission is to be replaced by a single Commissioner, the
transitional arrangements for the Commission and its staff are unclear. The Commission
requests that greater clarity is provided on how it is proposed that the new structures would
be introduced.
13.2
The Commission is also concerned that while the draft General Scheme provides for
complaints on hands at the time of the dissolution of the Commission to be completed by
the proposed Commissioner, the existing complaints provisions would be repealed and no
further complaints about matters which may have been done prior to the enactment of the
proposed legislation could be pursued. Such a situation could be perceived as an amnesty
for persons who could otherwise have been found to have contravened the Ethics Acts or
Part 15 of the Local Government Act 2001. It should be borne in mind in particular, that
contravention of certain provisions of Part 15 can be criminal offences.
The Commission recommends that provision be made to allow complaints to be made
about contraventions of the Ethics Acts and of Part 15 of the Local Government Act 2001
for a period of not more than five years after the commencement of the new legislation
notwithstanding the repeal of those Acts.
14
Electoral Commission
14.1
In January 2015, the Minister for the Environment, Community and Local Government
published a consultation paper to commence the pre-legislative process leading to the
establishment of an Electoral Commission. He referred the consultation paper to the Joint
Oireachtas Committee on the Environment, Culture and the Gaeltacht, which has
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commenced a consultation process on it with a view to reporting back to the Minister with
its views on the planned legislation.
14.2
One of the policy options set out in the consultation paper is whether the functions
currently performed by the Standards Commission under the Electoral Acts 1997, as
amended, should be transferred to an Electoral Commission when established, or retained
by the Standards Commission.
14.3
The Standards Commission made a submission in June 2015 to the Joint Oireachtas
Committee on the Environment, Culture and the Gaeltacht, in which it stated its view that
the electoral functions of the Standards Commission would be transferred in toto to the new
Electoral Commission.
14.4
In light of the potential disruption to the carrying out by the Commission of its functions by
the establishment of an Electoral Commission (and possibly of a Public Sector Standards
Commissioner), the Standards Commission is strongly of the view that the legislation
establishing an Electoral Commission and the Public Sector Standards Bill should proceed
through the Houses of the Oireachtas in tandem so that both become operational at the
same time.
14.5
In the event that a decision is taken in favour of the establishment of a Public Sector
Standards Commissioner and that that office is established prior to the enactment of
legislation establishing an Electoral Commission, the Standards Commission is of the view
that it should remain in existence and retain its functions under the Electoral Act until the
Electoral Commission is set up.
15
Consultation
15.1
The Standards Commission welcomes the opportunity for engagement with the Minister
and his Department and with the Oireachtas Committee on Finance, Public Expenditure
and Reform in relation to the draft General Scheme. It looks forwards to contributing to the
further development of these proposals.
October 2015
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