Public Sector Standards Bill (IE0047)

To minimise the opportunities for corruption, investigate potential corruption and respond to corrupt behaviours. Objective: To strengthen the legislative framework to prevent, investigate and respond to corruption in the public and private sectors. Status quo: A) The Public Sector Standards Bill 2015 was published in December 2015, and completed Second Stage in the Dáil in January 2016. The Bill aims to significantly enhance the existing framework for identifying, disclosing and managing conflicts of interest and minimising corruption risks, to achieve a shift towards a more dynamic and risk-based system of compliance and to ensure that the institutional framework for oversight, investigation and enforcement is robust and effective. This Bill consolidates the current legislative framework governing the ethical obligations of public officials and gives effect to the recommendations of the Mahon Tribunal. Among the key reforms of the Public Sector Standards Bill 2015 were: the introduction of a Public Sector Standards Commissioner, with additional powers and resources, to replace the Standards in Public Office Commission and to oversee a reformed complaints and investigations process; the establishment in legislation of a set of integrity principles for all public officials; the strengthening of the legal obligation for public officials to disclose, as a matter of routine, actual and potential conflicts of interest, reinforced by a significant extension of the personal and material scope of disclosures for public officials and graduated disclosure requirements; the establishment of a more effective (IT-based) process for the submission of periodic statements of interests; the imposition of statutory prohibitions on the use of insider information, on the seeking by public officials of benefits to further their private interests, and on local elected representatives from dealing professionally with land in certain circumstances; and the establishment of a statutory board to address potential conflicts of interest as public officials take up roles in the private sector. B) The Prevention of Corruption Acts 1889 to 2010 would benefit from consolidation and renewal, as has been recommended by the Council of Europe’s Group of States against Corruption (GRECO) and other evaluation bodies. 39 They have recently been reviewed with a view to being replaced by a new Criminal Justice (Corruption Offences) Bill. C) The mechanisms for appointing and overseeing the judiciary are somewhat dated and could be improved to prevent the opportunity for potential corruption. Ambition: A) Finalise and enact the Public Sector Standards Bill to put in place a framework which modernises, simplifies and streamlines the current legislative framework for ethics with a robust and effective institutional framework for oversight, investigation and enforcement. B) A new Criminal Justice (Corruption Offences) Bill will be published and enacted to replace the outdated and overlapping Prevention of Corruption Acts which date back to 1889. The new Bill will replace existing offences and supplement them with new offences including those which will incriminate trading in influence, intimidation, misuse of confidential information by a public official, and facilitating corruption. The Bill will clarify the liability of corporate bodies for offences. It will also extend the range of penalties available to a court when a person is convicted to include forfeiture of public office. C) The prevention of corruption in the judicial sector will be enhanced by reforms in governance and accountability by establishing a judicial council. The Judicial Council legislation will provide for the establishment of a Judicial Conduct Committee, the function of which will be to promote and maintain high standards of judicial conduct. In addition to investigating complaints into the conduct of individual judges, the Judicial Conduct Committee will also be given responsibility for preparing and submitting draft guidelines concerning judicial conduct and ethics to the Board of the Council, for adoption by the Council. It is also envisaged that the Judicial Conduct Committee would have a role in providing advice on judicial conduct and ethics, both in general terms and to individual judges. Lead implementing organisations: (A) Department of Public Expenditure and Reform, (B, C) Department of Justice and Equality Timeline: January 2017 to June 2018.
Commitment 14: Strengthen Anti-Corruption measures. OGP values: Civic participation, Public accountability. New or ongoing commitment: Ongoing and New. Lead implementation organisations: Department of Public Expenditure and Reform Department of Justice. Other actors involved – government. Verifiable and measurable milestones to fulfil the commitment, new or ongoing, start date end date. A) Progress the Public Sector Standards Bill through the Oireachtas to enactment Ongoing June 2017 B) A new Criminal Justice (Corruption Offences) Bill will be published and enacted Ongoing December 2017 C) Judicial Council legislation will be published and enacted New January 2017 December 2017.

14. Strengthen Anti-Corruption Measures

[Ed Note: Commitment 14 absorbed 15 and 16 in Year 1 report. See https://www.opengovpartnership.org/15-criminal-justice-corruption-offences-bill and https://www.opengovpartnership.org/16-judicial-council-legislation.]

Commitment Text:

Objective: To strengthen the legislative framework to prevent, investigate and respond to corruption in the public and private sectors.

Ambition:

A) Finalise and enact the Public Sector Standards Bill to put in place a framework which modernises, simplifies and streamlines the current legislative framework for ethics with a robust and effective institutional framework for oversight, investigation and enforcement.

B) A new Criminal Justice (Corruption Offences) Bill will be published and enacted to replace the outdated and overlapping Prevention of Corruption Acts which date back to 1889. The new Bill will replace existing offences and supplement them with new offences including those which will incriminate trading in influence, intimidation, misuse of confidential information by a public official, and facilitating corruption.

The Bill will clarify the liability of corporate bodies for offences. It will also extend the range of penalties available to a court when a person is convicted to include forfeiture of public office.

C) The prevention of corruption in the judicial sector will be enhanced by reforms in governance and accountability by establishing a judicial council. The Judicial Council legislation will provide for the establishment of a Judicial Conduct Committee, the function of which will be to promote and maintain high standards of judicial conduct.

In addition to investigating complaints into the conduct of individual judges, the Judicial Conduct Committee will also be given responsibility for preparing and submitting draft guidelines concerning judicial conduct and ethics to the Board of the Council, for adoption by the Council. It is also envisaged that the Judicial Conduct Committee would have a role in providing advice on judicial conduct and ethics, both in general terms and to individual judges.

Milestones:

14.1. Progress the Public Sector Standards Bill through the Oireachtas to enactment

14.2. A new Criminal Justice (Corruption Offences) Bill will be published and enacted

14.3. Judicial Council legislation will be published and enacted

Responsible institutions: Department of Public Expenditure and Reform, Department of Justice

Supporting institution(s): N/A

Start date: January 2017

End date: June 2018

Context and Objectives

The financial and economic crisis in late 2000s that nearly destabilised the Irish banking and financial system can be explained in part by corrupt practices, including close relationships between special interest groups such as banks and developers and political actors working in the state. Conflicts of interest for public officials decreased public trust in government, and is particularly salient given the corruption that led to Ireland’s recent financial and economic crisis.[Note: See R. Chari and P. Bernhagen, ‘Financial and Economic Crisis: Explaining the Sunset Over the Celtic Tiger,’ Irish Political Studies, December 2011.] Ireland’s Prevention of Corruption Acts date back to the 1889, and some aspects have become outdated. International institutions, such as the Council of Europe and its Group of States against Corruption (GRECO),[Note: More on GRECO can be seen at: https://www.coe.int/en/web/greco/home.] as well as the OECD, have recently outlined international best standards on how to fight corruption and promote ethics amongst public officials.[Note: The OECD notes that a ‘conflict of interest arises when a public official (including elected officials, members of boards of public bodies, and civil servants) has private-capacity interests which could improperly influence the performance of their official duties and responsibilities.’ See http://www.oecd.org/gov/ethics/49107986.pdf , Pg. 7.]

This commitment seeks to update and strengthen Ireland’s anticorruption laws by aligning them with international best practices. To achieve this objective, the commitment includes three key solutions:

1) Legislative approval of the Public Sector Standards Bill, an initiative that provides for a new ethics regime to effectively identify, disclose, and manage actual or potential conflicts of interest in the public sector. This initiative has been carried from the previous action plan (where it was Commitment 3.1).

2) Developing and enacting a new Criminal Justice (Corruption Offences) Bill, which will consolidate extant piecemeal legislation in the area (seen in the Prevention of Corruption Acts 1889 to 2010). The initiative will also modernise legislation by criminalising new offences, such as the misuse of confidential information by a public official.

3) Develop and enact Judicial Council legislation to prevent corruption in the judicial sector. This legislation will call for the establishment of a Judicial Council and a Board of Judicial Council to promote ‘excellence and high standards of conduct by judges’. In addition, it will provide for the establishment of a Judicial Conduct Committee, the membership of which will include lay persons, to facilitate investigation of judicial misconduct allegations.[Note: As stated by the government here: http://www.justice.ie/en/JELR/Pages/JudicialCouncilBill. ]

If fully implemented, this commitment would shed light on the actions of key state actors working in the political system (namely, civil servants, elected officials, and judges), ascribe consequences and penalties for their actions, and increase public trust in government. Therefore, it is relevant to the OGP value of public accountability. The milestones are all tied to clear, concrete, legislative initiatives to be passed by parliament and enacted in law, thus making the commitment’s specificity high. Dr. Laura Cahillane from the School of Law at the University of Limerick notes that the introduction of the Judicial Council Bill is a positive development in Ireland, stating that ‘the judiciary was one of the few institutions left in Ireland for which there was effectively no accountability.’[Note: Gartland, Fiona, ‘Judges not named if censured under proposed Judicial Council Bill,’ The Irish Times, 26 August 2017, https://www.irishtimes.com/news/crime-and-law/judges-not-named-if-censured-under-proposed-judicial-council-bill-1.3198571. ] More robust anticorruption measures that promote ethical standards and practices of public officials across a range of institutions—namely, the bureaucracies, the executive, the legislature, and the courts— could have a transformative potential impact because of the history of corruption in Ireland, particularly during the previous Fianna Fáil administrations.[Note: For a detailed discussion of the corruption, see Shane Ross, 2009. The Bankers: How the Banks Brought Ireland to Its Knees (Dublin: Penguin).]

Completion

Overall, there is limited completion of this commitment and it is behind schedule. This assessment is made based on developments in Milestone 14.1 in particular. According to the government’s progress report on the commitment and desk research, the following activities were completed for each milestone during the first year of action plan:

Milestone 14.1: The IRM End of Term Report for Ireland’s previous action plan stated that the Public Sector Standards Bill had completed the second stage of reading in parliament in January 2016 and was expected to enter the committee stage of parliament in late 2016, with a view to finalising adoption in 2017.[Note: See the IRM End-of-Term Report 2014-2016 for Ireland, https://www.opengovpartnership.org/documents/ireland-end-of-term-report-2014-2016, pg. 46. ] The IRM researcher verified that in the first year of the current action plan, the bill was still only at the committee stage (in April 2017).[Note: The list of amendments at committee stage can be found on: https://www.oireachtas.ie/documents/amendments/2017/b13215d-dsc1.pdf.] This indicates that it is delayed, considering that it was introduced in parliament in December 2015, thus making its implementation progress limited and behind schedule. The law will seek to do the following: expand the scope of public disclosures that officials must make; outline principles of integrity and codes of conduct for public officials; and enforce independent regulation of disclosures.

Milestone 14.2: Substantial progress on the new Criminal Justice (Corruption Offences) Bill was made during the first year of the plan. An interviewed public official told the IRM researcher that the bill was tabled in parliament after the reporting period in November 2017.[Note: Interview with Department of Justice and Equality Official in November 2017; for the link to the desk research verification, see: https://beta.oireachtas.ie/en/bills/bill/2017/122/. ] With an anticipated enactment in the second year of the plan, it is on schedule. The new bill will replace existing offences and supplement them with new ones, such as those that will incriminate trading influence or the misuse of confidential information by a public official.

Milestone 14.3: Substantial progress was made on the Judicial Council Bill, and it was introduced to parliament in June 2017 during the first year of the action plan.[Note: On the introduction of the Bill in Parliament, see: http://www.justice.ie/en/JELR/Pages/PR17000186. ] It is expected to pass through parliament during the second year, making it on schedule.[Note: Note that in its assessment of this milestone, the government also noted that the Judicial Appointments Commission Bill was tabled at the same time as the Judicial Council’s Bill. This Appointments Bill is not explicitly mentioned in the action plan and is therefore not assessed. On this issue, the status quo in Ireland is that the Minister makes judicial appointments, and this bill seeks to have a ‘lay majority’ decide who will be judges, which means that more than seven out of 13 people which are publically appointed sit on a committee and decide which judges are to be appointed. ] The bill establishes a Judicial Conduct Committee to promote and maintain high standards of judicial conduct.

Interviewed civil society representatives who have written generally on the issue of corruption have not been consulted during the implementation of the commitment, particularly on the Public Sector Standards Bill.[Note: TI has also criticised the that ethics reform was not an issue brought up during the 2016 general election: https://transparency.ie/news_events/election_2016.] In August 2017, the Irish Times reported that, while the Criminal Justice (Corruption) Bill is welcomed, there is concern that it will not be fully completed, given that it has been on the government’s agenda since 2012.[Note: ‘Corruption: tackling white collar crime’, The Irish Times, 2 August 2017, https://www.irishtimes.com/opinion/editorial/corruption-tackling-white-collar-crime-1.3173509.]

Next Steps

Given the potentially transformative impact of the three pieces of legislation, they should be carried forward into the next action plan if they are not completed in the second year of the current plan.

For commitment details, see https://www.opengovpartnership.org/wp-content/uploads/2001/01/Ireland_End-Term_...