LEGAL OPINION:Corruption, and particularly political corruption, is never far from the headlines, either domestically or internationally. It is fundamentally incompatible with democracy, which depends on public officials to use their powers in the public interest rather than to further their own private interests or those of other individuals.
Measures which promote transparency and accountability are of at least equal importance to the criminal offences of bribery, corruption in office, money laundering and asset-recovery mechanisms. They include the effective regulation of conflicts of interest and political finance as well as the recognition and facilitation of a broad-based right of access to information.
Over the past months, the Government has enacted and/or proposed new legislation in several of the above areas. Minister for Public Expenditure Brendan Howlin has also promised a fundamental review of the legislative framework for ethics. However, to date, he has not released details of this review nor indicated when it is likely to conclude.
The ethics legislation regulates “conflicts of interest”, namely conflicts between a public official’s public duties and his or her private interests, where he or she may be tempted to act against the public interest for private gain.
A second problem relates to so-called “apparent conflicts of interest”. This type of conflict arises where a public official appears to have a private interest likely to be affected by his or her exercise of public powers, but this is not in fact the case. These give rise to a perception of corruption, which, like actual corruption, may destroy the public’s confidence in government and discourage individuals from actively participating in public life.
The Mahon Tribunal, in its recommendations, described conflicts of interest as a “root cause of corruption”.
Conflicts of interest cannot be eliminated: a public official will inevitably have private interests which may be affected by his or her public power. The challenge therefore lies in controlling such conflicts. This usually involves requiring the disclosure of interests likely to give rise or to appear to give rise to a conflict, although in some instances further measures may also be necessary.
The real challenge when regulating conflicts of interest is twofold. First, it is necessary to identify the type of private interests which could be reasonably perceived to affect a public official’s exercise of his or her public powers. Secondly, and as importantly, it is necessary to identify those persons whose interests are capable of having such an effect.
The problem with the existing ethics legislation is that it takes an unduly narrow approach to both these challenges. Specifically, public officials covered by that legislation must only disclose certain pecuniary interests. For example, they are not obliged to declare their assets, liabilities, the amount earned through secondary activities or many gifts.
Non-pecuniary interests are also largely excluded from the Act, including those stemming from friendships or other professional or private relationships. Nor do the disclosure requirements take sufficient account of interests held by corporate entities linked to public officials.
As a result of this narrow approach, certain private interests which present clear corruption risks fall outside the scope of the disclosure requirements. This is clearly problematic from the perspective of corruption prevention.
Moreover, in instances where such interests come to light, they frequently generate scandal which could have been avoided through adequate disclosure requirements. This may distract attention from substantive policy issues. Moreover, officials who comply with the ethics legislation should not be later criticised for failing to make disclosures not envisaged under that legislation.
Inadequate disclosure mechanisms also prevent the ethics legislation from serving one of its secondary functions, namely indicating whether or not a public officials living standard is commensurate with his or her known sources of income. Such information may be of considerable use to those investigating corruption, including the Garda and the Criminal Assets Bureau.
Reforming conflicts of interest is clearly challenging. However, given the problems with the existing legislation, it is also particularly pressing. Hopefully, Minister Howlin’s reform process will proceed quickly and result in ethics legislation which effectively illuminates all private interests which are likely impact on public decision-making.
Imelda Higgins, a barrister and adjunct lecturer in Trinity College Dublin, is author of Corruption Law