The commission is unable to act unless it receives a complaint, writes Liam Reid, Political Reporter
It is a curiosity to say the least that faced with the biggest controversy in recent years over the ethical conduct of a Government member, the State's ethical watchdog has remained firmly on the sidelines.
As the controversy raged over the past 20 days, with claims and counter-claims about whether ethical guidelines or rules were broken, the Standards in Public Office Commission (SIPO) has effectively been precluded from carrying out even the most preliminary of inquiries.
Because of this, it has been unable to even establish whether the payments or loans to Mr Ahern fall within its remit.
The demands by the Progressive Democrats leader Michael McDowell for changes to the ethics legislation has again brought the weaknesses of the current ethics rules into focus.
The regime's fundamental problem is the fact that SIPO is effectively unable to decide on who, what or how it can investigate potential ethics breaches.
In reality SIPO must receive a complaint before it can act when questions arise about the ethical behaviour of an office holder.
Under the current legislation, once SIPO receives a complaint, which can be made by any member of the public, it can appoint an inquiry officer to examine the complaint and to put together a file for the commission, a six-person body headed by retired High Court judge Matthew P Smith.
The officer can gather evidence from the complainant, and the person against whom the complaint is made, along with any other relevant information.
The commission can then decide on what action to take, and whether a full-scale formal inquiry is warranted.
In all cases since 2001 the commission decided that a full inquiry was not warranted, but it did issue advice and reprimands in some instances. This included the use of civil service resources by ministers to draw up briefing packs for Fianna Fáil candidates in the 2004 local elections.
The key problem for SIPO occurs when no complaint is received, such as that relating to the controversy involving the Taoiseach.
In those instances it cannot appoint an inquiry officer.
The commission could, however, decide to hold a full-scale inquiry, but to make such a decision would require a considerable amount of information, which is likely to be unavailable unless it is already in the public domain and of a very serious nature.
The PDs may also be seeking amendments to tighten up ethical issues surrounding payments and loans from friends, but the fact is that these currently fall within the remit of the ethics legislation.
The current guidelines do state that payments, gifts or the donation of services from friends are precluded from disclosure requirements, but a close reading of the guidelines makes it clear that this is not in every case.
The issue of whether a person is a friend or an acquaintance was raised six years ago by the ethics watchdog, which recommended to government that a legal definition of "friend" be introduced into the ethics legislation to remove any doubt. This was ignored by government in its 2001 overhaul of the legislation.
However, even if the donor is a friend, the guidelines state that a minister must make a declaration if the gift is worth more than €650 and if the donor could benefit from a decision by the minister or office-holder in question.
It means that had the legislation, which came into force in 1995, been applied to the Manchester payments, they would have required disclosure.