Proposal a Key Measure to help Re-build Trust in Political and State Institutions

Minister Simon Coveney today (Monday 22^nd May) published a draft Bill and Explanatory Memorandum for the establishment of a new Anti-Corruption and Transparency Commission (the ACT Commission).   The establishment of such a Commission, with the powers of a High Court Judge, is central to Coveney’s policy agenda and a key measure to rebuild the broken trust in politics.

The head of the new Commission, the Chief Commissioner,  will be  conferred with the  full powers of a High Court judge, to enhance and strengthen the ability  to identify , bring to account,  and prosecute serious public sector corruption and wrong-doing and to encourage and empower  people to come forward and report suspected wrongdoing.

Commenting on the proposed new Commission, Minister Coveney said;

“The rise of populism in politics generally suggests an increased distance between large numbers of citizens and the institutions of government. While the same populist surge in Ireland hasn’t occurred as in other countries, it is clear that trust in institutions of the State has also declined sharply, aided by a perception that wrongdoing in such bodies is not treated seriously.

Given the findings of different Tribunals we need to make sure that Ireland has effective legal and institutional capacities for preventing, detecting, exposing and remedying (including by prosecution) official corruption and corruption risks at all levels of the public sector  and government.

The new ACT Commission will be conferred with powers in all cases, as it sees fit, to;

• receive complaints and notifications of public sector corruption
• collect evidence, procure documents and other items
• hold hearings and examinations as part of an inquisitorial and non-adversarial process  (including power to hear evidence in public if considered appropriate)
• compel the attendance of witnesses
• investigate and expose corruption
• inform the public sector and community about the risks and impacts of corruption and police misconduct, and ways it can be prevented
• publish reports and release detailed findings and recommendations.It will also have power to conduct prosecutions where the evidence so warrants in certain cases   and otherwise operate in coordination with the Director of Public Prosecutions – either bringing criminal proceedings or refer matters to the Office of the Director of Public Prosecutions

  If we want to restore confidence in our political and governance institutions we have to show the public that depend on those institutions that wrongdoing at whatever level will be rooted out and punished. The ACT Commission will be a significant step in persuading all people that corruption can and will be tackled with absolute determination and conviction.”

  Ends

  Anti-Corruption and Transparency Commission

  Explanatory Memorandum

  In light of the findings of  various Tribunals, and their detailed  recommendations, we need to  ensure  that Ireland  has effective legal and institutional capacities for preventing, detecting, exposing and remedying (including by prosecution) official corruption and corruption risks at all levels of   the public sector  and government.
  This can best be achieved by establishing an anti-corruption agency equipped with sufficient powers to authoritatively operate as a vital part of Ireland’s national integrity system.  A Commission charged with the task to prevent and expose public sector corruption.
  It can be relied on by community and government to lead the exposure of official corruption, head-off emergent corruption risks, and ensure action to build confidence in our corruption resilience.

  A Bill will be drafted to establish an Anti-Corruption and Transparency Commission (ACT Commission) on a permanent footing. The Chief Commissioner  will be  conferred with the  full powers of a High Court judge, to enhance and strengthen the ability  to identify , bring to account,  and prosecute   serious public sector corruption and wrong-doing  and to encourage and empower  people to come forward and report suspected wrongdoing .

Protected Disclosures Act 2014

 

Whistleblowing is now considered to be among the most effective means to expose and remedy corruption, fraud and other types of wrongdoing in the public, private and non-profit sectors.

Whistleblowers, often face severe personal and professional repercussions which can include dismissal. Consequently, protection for whistleblowers is vital, not just to protect those who come forward but also to encourage others to speak out when wrongdoing is discovered.

To address this issue the Protected Disclosures Act 2014 was introduced by the last government and came into force on the 15^th day of July 2014.

The 2014 Act introduced a single overarching framework for the protection of workers who “blow the whistle” in all sectors—public, private and non-profit—providing for greater protections. In essence, employers may not dismiss or otherwise penalise or cause detriment to a worker for having made a “protected disclosure”. For the purposes of the Act, a “protected disclosure” is a disclosure of “relevant information” made in a specified manner.

To enhance the operation of the  whistle-blowers’ legislation  and to centralise and facilitate the cohesive  and effective handling of protected disclosures pursuant to the Protected Disclosures Act, 2014, the Bill will require all government departments to submit protected disclosures received by them to the ACT Commission for independent assessment, evaluation and processing.

The ACT Commission

The ACT Commission will be conferred with powers in all cases, as it sees fit, to;

• receive complaints and notifications of public sector corruption
• collect evidence, procure documents and other items
• hold hearings and examinations as part of an inquisitorial and non-adversarial process  (including power to hear evidence in public if considered appropriate)
• compel the attendance of witnesses
• investigate and expose corruption
• inform the public sector and community about the risks and impacts of corruption and police misconduct, and ways it can be prevented
• publish reports and release detailed findings and recommendations.It will also have power to conduct prosecutions where the evidence so warrants in certain cases   and otherwise operate in coordination with the Director of Public Prosecutions – either bringing criminal proceedings or refer matters to the Office of the Director of Public Prosecutions

  Separately the Commission will have responsibility, by education and training, to strengthen conduct and processes in the public sector and institutions which are funded with public money, around conflicts of interest, gifts, compliance policies and   financial controls  to   promote an  integrity  culture and ensure accountability and independence .

  What constitutes corruption?

  Corruption is the misuse of public power or position.

  What can the ACT Commission receive complaints about?

  ACT Commission can take complaints about elected representatives, public sector officers workers or bodies allegedly:

• taking or offering bribes
• dishonestly using influence
• committing fraud, theft or embezzlement
• misusing information or material acquired at work
• conspiring or attempting to engage in the above corrupt activity.Corruption can occur through:
• improper or unlawful actions by public sector staff or agencies
• inactions of public sector staff or agencies
• actions of private individuals who try to improperly influence public sector functions or decisions.What is misconduct in public office?

  Misconduct in public office will be broadly defined. Generally, misconduct in public office does not require financial or personal gain on the part of the public officer concerned. It can be any conduct by a public sector employee which is unlawful or fails to meet the ethical or professional standards required in the performance of duties or the exercise of powers entrusted to them.

  Examples of misconduct in public office might include:

• misuse of power to harm, oppress or disadvantage a person
• failure to disclose a conflict of interest • unauthorized accessing of  databases
• disclosure of confidential information.Preventing corruption

  The Integrity Commission will be charged with the    design, delivery and evaluation of a comprehensive range of prevention initiatives to:

• empower individuals to identify and report corruption
• support organisations to build effective corruption and misconduct controls
• strengthen societal norms to create a strong and lasting anti-corruption culture.

 

Independence

The ACT Commission will be independent of the government of the day, while accountable to the people  through the Joint Oireachtas Committee  on Justice & Equality.

The Commission will be part of the wider integrity system – 

The ACT Commission will be one of the key, core, independent agencies in a national integrity system.  It will co-operate and engage as appropriate with the Garda Síochána Ombudsman Commission (GSOC), which operates under the Garda Síochána Act, 2005, as amended, to deal with complaints and investigations under Part 4 of that Act concerning the conduct of members of the Garda Síochána and the Ombudsman which investigates conduct of public bodies  under the Ombudsman Act 1980, as amended. It is anticipated that the ACT Commission will, as mutually beneficial and  appropriate, engage with and   coordinate its operations with other entities including the  Comptroller & Auditor General, Defence Forces Ombudsman, the Garda Bureau of Fraud Investigation, Criminal Assets Bureau, the Director of Corporate Enforcement, Standards in Public Office ( SIPO)  and the Legal Services Regulatory Authority.

Legal protections when making a complaint – 

In addition to evaluating and investigating protected disclosures received from Departments the ACT Commission may decide a complaint received by it directly  is constituted  a protected disclosure (whistleblower complaint).

If a complaint is deemed a protected disclosure, the matter is subject to greater protections and restrictions under the 2014 Protected Disclosures Act including:

• the whistleblower’s name or other personal details  are not disclosed to anyone
• the whistleblower cannot be fired, disciplined or bullied for making a complaint
• The whistleblower is protected from legal actions such as defamation and civil liability

Who can be investigated?

The legislation will enable the ACT Commission to investigate and examine complaints about misconduct or corruption involving the following public bodies and officers:

Public Servants

• Employees, contractors, volunteers and secondees at:

• All government departments and agencies
• public hospitals and healthcare services
• state primary and secondary schools

• • universities and publicly funded third level educational institutions

• statutory authorities
• Local Authorities (including Councillors)
• Council employees

Oireachtas 

• Members of  Houses of the Oireachtas
• All staff   including employees, contractors, volunteers and secondees  at the Houses of the Oireachtas
• Electorate officers
• Ministerial advisors

Judiciary  (Only after the Judicial Council has concluded its investigations under the Judicial Council Act, 2017)

Judges, and members of other judicial bodies, including (but not limited to):

• Supreme Court
• Court of Appeal
• High Court
• Circuit Court
• District Court
• Small Claims Court
• Coroners CourtMatters which cannot be investigated:
• issues arising in other states
• the private sector, unless public officials and/or public authorities are involved or affected. In some circumstances, private contractors and consultants can be considered to be public officers if they are performing public functions.