The report suggests that all mem- bers of the Oireachtas be obliged to produce a certificate that their tax affairs are up to date. The following are the recommendations in full:
The combined effect of the Ethics in Public Office Act 1995, and the Electoral Act 1997, amounts to a commendable attempt to ensure that the unacceptable elements of the financial transactions of which Mr Michael Lowry and Mr Charles Haughey were part will not be repeated. However, as many of the payments to Mr Michael Lowry and Mr Charles Haughey were made off-shore and in a manner veiled in secrecy in an attempt to ensure that they would remain undiscovered, it may be that the measures in the recent legislation do not go far enough. If a member of either House of the Oireachtas is going to become involved in such operations, then that member will almost certainly not comply with his or her obligations to register the payments. A person who goes to such lengths to receive the revenue authorities and the public will almost certainly go to equal lengths to deceive the Oireachtas. It is, of course, impossible to ensure that gifts will not be made secretly to members of the Oireachtas, and the tribunal can only recommend that there should be greater sanctions for any breach of the obligations imposed by the Ethics in Public Office Act. Having said that, the tribunal welcomes the recent legislation, and considers in particular that it should be highly effective in monitoring ordinary political donations.
The tribunal has considered with interest the proposals put forward by the Fianna Fail party in its submissions. On balance, the tribunal does not consider it practical, or indeed that it would be particularly effective, to oblige bankers, accountants or other professional advisers to disclose any unusual or large financial transactions involving politicians or public servants. The reality is that if there was such an obligation, it could only be imposed on advisers within the State, and such provisions could be easily avoided by the politician or public servant concerned simply acting through advisers and banks outside the State.
The question of an independent third party appointed by the Oireachtas to monitor and investigate possible breaches of the Ethics in Public Office Act is an interesting one. While the tribunal does not consider that there would be sufficient justification for setting up a totally new office, it does feel that consideration should be given to extending the jurisdiction of the Ombudsman to include these functions. This might involve extending his powers to enable him to carry out investigations by the making of certain forms of orders, such as orders for discovery of documents, and possibly by allowing him to have recourse to the courts to seek letters of requests to courts in other jurisdictions to enable witnesses to be examined or documents to be produced in such jurisdictions. This tribunal has found those powers to be extremely beneficial in its investigations.
The tribunal does consider that it should be mandatory for any candidate for either House of the Oireachtas to produce to the Clerk of the Dail or the Seanad, as the case may be, a certificate from such person's tax inspector that his or her tax affairs are in order, and this should be accompanied by a statutory declaration from the person concerned to that effect.
The tribunal believes that sanctions for failure to make disclosures should be strengthened in two ways. Firstly, the making of a false declaration of interest should be a criminal offence, and not merely dealt with internally by the House of the Oireachtas concerned. Secondly, consideration should be given to some form of legislation which would provide that any person found guilty of an offence under the Ethics in Public Office Act would be ineligible to become a member of either House in the future, either for a limited period or permanently.
Finally, although it may be somewhat outside the terms of reference, the tribunal has given some consideration to the general position of the funding of politicians and political parties. The tribunal does not consider it practical to prohibit all political contributions and rely solely on public funding of political parties. Indeed, to do so might give rise to serious constitutional difficulties. Even the system of disclosure set up under the Ethics in Public Office Act 1995 is open to abuse, but if the stronger sanctions suggested above are put in place, it is probably neither necessary nor desirable to restrict further the system of political donations, at least until the provisions of that Act have been given a reasonable period to prove themselves.
The Honourable Mr Justice Brian McCracken