Thursday, 12 January 2017
Ethics law needs to set the tone for standards in public office
Nuala Haughey: Issues of ethics in public office are enjoying a rare moment in the spotlight with the ongoing discussion over US President-elect Donald Trump’s handling of his private business affairs as he prepares to take up his new post.
There has been intense scrutiny in relation to how he will manage conflicts of interests and the application of Constitutional provisions prohibiting gifts and payments from foreign governments.
Back in Ireland, it’s now more than a year since an RTÉ exposé on standards in public life was aired to much hang wringing about shortcomings in our own ethics rules and codes and how they are enforced.
The show, RTÉ Investigates: Standards in Public Office, made for perturbing viewing, not least when we recall the Mahon Tribunal’s damning verdict on our political culture – that public corruption was “so entrenched that it was transformed into an acknowledged way of doing business”.
The Mahon Tribunal took 14 years to complete its work, publishing its final report in March 2012. It made a total of 64 recommendations in a range of areas including planning, lobbying, whistleblowing, political financing, bribery, corruption in office, money laundering and conflicts of interest.
While a good deal of the tribunal’s recommendations have already been implemented, long-overdue reforms to our ethics regime are still before the Houses of the Oireachtas – the Public Sector Standards Bill 2015 actually began its life under the previous administration. The Bill underwent pre-legislative scrutiny by an Oireachtas committee in 2015 and is now awaiting committee stage.
Streamlined complaints and investigations
The Bill incorporates many, but not all, of Mahon’s recommendations, as well as those of various other international and domestic bodies including the European Council’s Group of States Against Corruption, GRECO.
One of its key strengths is that it puts in place a single unified regime for managing conflicts of interest at national and local level, replacing the current hodgepodge of provisions and standards.
The Bill also contains a streamlined and improved complaints and investigations procedure, and replaces the enfeebled hydra that is the Standards in Public Office Commission with a single Public Sector Standards Commissioner.
It also for the first time places much-needed emphasis on training, education, guidelines and research - important measures when it comes to setting an appropriate tone for standards in public life and signalling strongly that our ethics rules and codes are not just about detecting non-compliance, but are also about promoting the highest ethical standards in terms of individual behaviour and organisational culture.
Bill's integrity principles lacking in aspiration and detail
And yet, it is in this very area of tone-setting that the draft law currently fails to live up to its potential. The law was supposed to enshrine a set of overarching ‘integrity principles’ as a framework upon which to build more detailed codes of standards and behaviour.
Such codes are enshrined in ethics laws in Australia, while in the UK, the well-known Seven Principles of Public Life, commonly referred to as the Nolan Principles, set out on in aspirational terms the standards expected of all of those supplying services to the public
The principles that the current Bill enumerates are so scantily sketched (think Twitter length) that their inherent value as the fountainhead for rules and codes is effectively annulled.
Permissive approach to gifts unjustified
There are other issues with this Bill, including its permissive approach to the regulation of gifts and benefits which are at odds with good practice.
Currently, the Bill allows every public servant in the country (some 300,000 people) to legitimately accept gifts up to the value of €600, publicly declaring only those above €200 where they are connected with their functions. There is also no limit on the value of gifts that all public officials may accept, provided these are not connected with their functions.
While gifts may be seen by many as a routine part of social and business interaction, even modest gifts pose particular problems when it comes to the appearance of corruption and conflicts of interest. For the value of a gift that does not need to be declared, €200 is not an insignificant sum of money. It would buy a very nice bottle of whiskey, a luxury massage or a round of golf. Up to €600 would be a weekend break in a decent hotel.
As Mr Justice Mahon noted in his final report, whether or not it is their purpose, "all gifts tend to engender a feeling of reciprocity on the part of the recipient which may also undermine the disinterested performance of his or her public office. Furthermore, even entirely legitimate gifts may easily give rise to an appearance of corruption.”
It is difficult to see any public policy justification for such high gift thresholds to be enshrined in statute, particularly as they even conflict with existing codes of conduct for public officials, which typically sanction customary hospitality and gifts of incidental or nominal value only.
While the issue of gifts may seem peripheral or minor in the grand scheme of things, how they are regulated in law is emblematic of wider official attitudes to standards in public life, which have repeatedly been found to be wanting.
Nuala Haughey works at TASC.
TASC's submission on the Public Sector Standards Bill 2015.