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Seanad Éireann
Ethics in Public Office (Amendment) Bill 2007
Second Stage
3 July 2007
Speech by Mr. Brian Cowen T.D., Minister for Finance
1. Introduction
I move that the Bill be read a second time.
As Senators will be aware, there is already a substantial body of legislation in place to regulate the ethical standards of people in public office. This includes the Ethics in Public Office Act 1995 and the Standards in Public Office Act 2001, as well as the Electoral Act 1997. There is also a statutory Code of Conduct for Office-holders, and this House and the other House have adopted codes of conduct, drawn up by the Select Committee on Members’ Interests of each House, for their non-office holding members.
Last year, the Taoiseach and the then Tánaiste decided that the Ethics legislation should be strengthened to deal with the circumstance where friends offer support for personal reasons and accepting such support would not be likely to influence an office holder or Oireachtas member in the discharge of his or her functions or duties.
It does not take much imagination or experience of life to realise that there can be circumstances - very human circumstances - in which it would be entirely legitimate for an office-holder or a member of this House or the other House to accept such support. At the same time, it is legitimate to expect, because of the position they hold, that such an office-holder or member would not be the only person to make that judgement, but rather that the matter would be subjected to judgement by an independent body before the support is accepted.
Accordingly, the Government decided that the Ethics legislation would be amended to require an office-holder or a member of the Dáil or Seanad, who proposes to accept a significant benefit from a friend for personal reasons only, to seek the confidential opinion of an independent body - the Standards in Public Office Commission - that acceptance of the benefit would not be likely to influence the recipient in the discharge of his or her functions or duties.
This Bill before the House today does this and so gives us an opportunity to reinforce the integrity of public life in
2. Provisions of the Bill.
The Bill operates as follows. Senators will be aware that the Ethics in Public Office Act 1995 provides that gifts given to office holders - that is to say, the Taoiseach, the Tánaiste, Government Ministers, Ministers of State, the Attorney General, and the Chair and Deputy Chair of the Dáil and of the Seanad - by virtue of their office are deemed to be gifts given to the State, unless the gift is:
(a) a political donation (in which case it is subject to the Electoral Acts);
(b) given by virtue of some other office (for example, as chairperson of a local sports club); or
(c) given by a friend or relative for personal reasons only.
This Bill relates to the last exception. It requires office holders, and non-office holding members of the Oireachtas, not to accept benefits worth in aggregate more than €2,000 from a friend for personal reasons only, in a period covered by an Ethics statement, unless they have obtained the Standards in Public Office Commission’s opinion that acceptance would not be likely to influence the recipient in the performance of his or her functions or duties as an office-holder or member.
There can be times where a benefit is offered on an occasion when it is not practical to refuse it, for example if it is offered without prior notification at a public function. The Bill provides that in such circumstances the office-holder or member must seek the opinion of the Standards Commission on the benefit afterwards.
The Bill defines a benefit as including a gift or loan of money or property or the supply of services. The €2,000 threshold will apply to benefits from the same friend in a period covered by an interests statement under the Ethics in Public Office Act 1995 – typically a calendar year. For a gift or loan of money, the amount of the gift or loan will be what counts; for services or a loan of property, the value will be the commercial value less any amount paid by the recipient. If more than one benefit is involved before the threshold is exceeded, it is the one that brings the total over the threshold that the Standards Commission must be consulted about.
I should say a word here about the choice of €2,000 as the threshold at which the opinion of the Standards Commission must be obtained. As usual, there is a balance to be struck. On the one hand, the figure needs to be small enough to be meaningful as an Ethics requirement. On the other hand, it needs to be big enough that office-holders and members do not have to spend their time valuing and counting every ordinary gift they receive from their friends; it also needs to be big enough to avoid the Standards Commission having to deal with applications about relatively minor gifts. €2,000 is a fair compromise between these two sorts of consideration.
The Standards Commission will have power to ask the office-holder or member applying for its opinion to provide any further information it considers necessary in order for it to decide on the application. Such information might include, for example, details of the office-holder’s or member’s official duties; the purpose of the benefit; the name and occupation of the donor; how long the donor has been a friend; and whether he or she has given similar benefits in the past.
When it has formed its opinion, the Standards Commission will notify the office-holder or Oireachtas member in writing.
If the office-holder or member does not receive a favourable opinion from the Standards Commission, he or she must not accept the benefit or, if already accepted, must return the benefit to the donor. If the donor refuses to take it back, the benefit must be surrendered to the Secretary General to the Government for disposal under the 1995 Act.
If the benefit is non-returnable, the office-holder or member must pay back its value, or, if this is refused, must pay the value to the Secretary General to the Government. In such cases, its value will be its commercial price as determined by the Standards Commission less any amount paid in respect of it by the office-holder or member.
Where a benefit or its value is surrendered to the Secretary General to the Government it is regarded as a gift to the State and disposed of accordingly.
The process of obtaining the Standards Commission’s opinion will be a confidential one. The Standards Commission will be precluded from disclosing information about an application for its opinion without the consent of the person concerned or the Minister for Finance. This is appropriate, given that the application will be about benefits offered or given by a friend for personal reasons only. As the Bill is drafted, the prohibition will not apply to an investigation by the Standards Commission or to a report by the Standards Commission to the Oireachtas, but as I will be mentioning later, I will be proposing an amendment to provide that Standards Commission’s investigations of possible infringements of the new requirement are to be held in private unless the Commission considers that there are compelling reasons otherwise.
The Bill will oblige office-holders and Oireachtas members to make a statement that they are in compliance with the new requirement to the Standards Commission at the same time as their annual statement of registrable interests or ‘nil’ statement. It will not be necessary to say whether or not the opinion of the Standards Commission was sought or to provide details of any benefit – all that will be necessary will be a simple statement in writing that the person has complied with the law.
Overall, these new provisions represent a balanced way of dealing with a very human situation. On the one hand, there are occasions where support from a friend, for personal reasons only, is reasonable and would not be likely to influence an office-holder or Oireachtas member in the performance of his or her duties or functions. On the other hand, there is an obligation on office-holders and Oireachtas members to observe the highest standards of behaviour. This Bill proposes a way of balancing these considerations by ensuring that while support from a friend is permissible, nevertheless, where such support is significant the opinion of an independent public body - in this area, the Standards in Public Office Commission - must be obtained before it is accepted or retained.
The Bill also updates the thresholds for registrable interests in the Ethics in Public Office Act 1995, and the threshold at which a gift given to an office-holder by virtue of his or her office is deemed to be a gift to the State. These monetary thresholds have not been increased since the passage of the Act in 1995, apart from being changed into convenient amounts in euro at the time of the euro changeover in 2002. In other words, they have effectively stayed the same for 12 years, and I see no reason for the House to be defensive about increasing them now, to levels that are more realistic in today’s world.
There has been criticism of the Government’s decision to propose increasing to €2,000 the figure of €650, which applies to gifts, to property supplied or lent or a service supplied at less than the commercial price, to travel facilities, living accommodation, etc and to gifts received by an office-holder by virtue of office. I do not accept this criticism. The Ethics in Public Office Act 1995 was the first attempt to set thresholds in this area, and it is by no means unreasonable that that first attempt should be reviewed now in the light of experience. 12 years is a lot of experience. In addition, the world we live in, and particularly the
I would like to go on to deal with a misconception that seems to have grown up. Some people seem to think that the €2,000 figure relates to election expenditure or political donations. Quire simply, it does not: political donations are covered by the Electoral Acts.
I am confident that the members of this House, and of Dáil Éireann, will agree with me that these two purposes of the Bill - requiring an independent opinion before office-holders and Oireachtas members accept significant benefits from a friend for personal purposes, and updating the Ethics thresholds to reflect today’s world - are desirable things to do.
I base that confidence on the fact that the Select Committees on Members’ Interests of both Houses of the Oireachtas were consulted about the key provisions of this Bill, including the increased thresholds, and both are in agreement with the proposed changes. The Dáil Select Committee, in particular, welcomed the proposals and considered that they would further strengthen the accountability of Members of the Oireachtas to the Oireachtas and to the general public in the performance of their official duties and responsibilities.
I am glad to mention in this context the welcome given by the Select Committee of this House for the technical amendment now contained in the Bill to state clearly in law that “nil statements” - where an office-holder or Oireachtas member has no registrable interests to declare - are, like statements of interests, to be sent to the Standards Commission, rather than to the Clerk of the relevant House.
3. Proposed Committee Stage Amendments
Finally, while I am on the subjects of amendments I wish to draw the attention of the House to some amendments I intend to introduce at Committee Stage. Some are technical, for example, that a statement of compliance with the new requirement is a stand-alone statement and not part of an annual declaration of registrable interests; to deal with the obligations vis-a-vis the new requirement of an Attorney General who is not an Oireachtas member; and to set the test for benefits as those not likely ‘to materially influence’ the recipient (as this is the terminology already used in the Ethics legislation for gifts as registrable interests). The amendments also state clearly in law that the Standards Commission has power to investigate infringements of the new requirement and, as mentioned earlier, that such investigations are to be held in private unless the Standards Commission considers there are compelling reasons otherwise.
I am happy to add in this House that, last but not least, one of my amendments addresses a longstanding concern of the Select Committee on Member’s Interests of this House that it be clearly stated in statute that non-office holding members of the Oireachtas are treated the same as anyone else to whom the Ethics legislation applies in relation to investigations of complaints on ‘specified acts’. This is separate to the subject of the Bill but the Bill provides an appropriate opportunity to address the matter and I am pleased to be able to do so.
4. Conclusion
Let me summarise. This Bill will provide assurance to the general public that where an office-holder or Oireachtas member is offered a benefit or benefits - be it a gift, a loan or the use of a service - worth in aggregate more than €2,000, typically in a year, by a friend, for personal reasons only, then the opinion of the Standards in Public Office Commission must be obtained that acceptance would not be likely to materially influence the office-holder or member in the performance of his or her functions or duties.
I commend the Bill to the House, and I look forward to hearing the views of Senators on all sides of the House on it.
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