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Dublin: 15 °C Wednesday 1 October, 2014

How to prevent corruption in the future: Mahon’s recommendations

The payments and planning inquiry has learned some valuable lessons in 15 years, it says – here are its recommendations for fighting corruption.

A protestor outside the gates of the Mahon Tribunal in 2008.
A protestor outside the gates of the Mahon Tribunal in 2008.
Image: Leon Farrell/Photocall Ireland

THIS MORNING, THE fifth and final report from the Mahon Tribunal – which started life as the Flood Tribunal – has been published in full.

Ironically, on this exact day last year, the final report of the Moriarty Tribunal of Inquiry into Payments to Politicians was published.

The Mahon Tribunal was an inquiry into planning and payments to various parties.

We are running a liveblog today on TheJournal.ie which you can see here, as well as detailed analysis into the findings of the Judge Alan Mahon on matters including those relating to alleged payments to former Taoiseach Bertie Ahern.

THE RECOMMENDATIONS OF THE MAHON TRIBUNAL

In its conclusion, the Mahon Tribunal final report has strong words on the damage corruption – particularly political corruption – does to society, democracy and public trust:

In a bid to combat corruption in public life, the Mahon Tribunal’s final recommendations include:

  • Anti-corruption measures must be kept under constant review – “Although the Tribunal recognises that corruption is most obviously a failing of individual morality, it believes that it is also a problem of systemic failure”.
  • The Tribunal makes specific recommendations in these areas – planning; conflicts of interest; political finance; lobbying; bribery; corruption in office; money laundering; asset confiscation.

PLANNING:

  • Local authority members used to enjoy “significant powers” in the rezoning of land because the Development Plan used to be the “primary instrument” for regulating such decisions. Mahon finds that this has changed and that the Development Plan is now “part of a hierarchy of plans”. However, the National Development Plan (NDP) and the National Spatial Strategy (NSS), which are strategic policies the regional Development Plan must adhere to, do not have a statutory basis.
The Mahon Tribunal recommends that both of those instruments be placed on a statutory footing.
  • Regional authorities are responsible for making sure Regional Policy Guidelines (RPG) are stuck to. The Mahon Tribunal is concerned that the regional authorities are insufficiently accountable and that their role is insufficiently transparent.
It is consequently recommending that those authorities be directly elected.
  • The National Transport Authority has an impact on planning and members of the NTA are appointed by the Minister of Environment.
The Tribunal is recommending that, in future, those Members should be appointed by an appointed by an Independent Appointments Board.
  • To help improve transparency on how the public consultation process on a planning application is going…
…both submissions received in the course of that process and the Manager’s Report dealing with those submissions be available on the internet.
  • To help improve transparency where planning permission is granted…
…the power of the elected members to direct the Manager to grant planning permission in a specific case should be subject to increased restrictions.

This would include those members of local authorities who direct the Manager to grant planning permission against the advice of the professional planners, should have to explain their reasons for doing so.

  • Interventions by members on specific planning applications should be NOTED ON THE FILE and applicants for planning permission have to DISCLOSE IF THEY MADE A POLITICAL DONATION to a member of the applicable regional authority within a specified time when applying for planning – AND name who they gave the donation to.

CONFLICTS OF INTEREST/DISCLOSURE:

  • There’s no fudging the issue here from Mahon:
Conflicts of interest are a root cause of corruption. A conflict of interest arises where an elected or appointed public official has a private interest which is likely to be affected by the exercise of his or her public powers.

Mahon is unequivocal – conflicts of interest have been at the heart of several of the cases Mahon has had to probe and they need to be stamped out.

Conflicts of interest are monitored at the moment by the Standards in Public Office Commission (SIPO), the Oireachtas Select Committess on Members Interests (at national level) and by local authorities (at regional level). The Tribunal is “concerned that the existing conflicts of interests measures DO NOT SUFFICIENTLY IDENTIFY OR OTHERWISE REGULATE certain types of conflicts of interests”. (our caps)

As a result, Mahon has a number of recommendations for ensuring full disclosure of all interests that might give rise to a conflict of interests:

  • Increase the role of SIPO
  • Further tighten regulation on certain interests which “pose particular risks of corruption”
  • Extend the scope of what interests must be disclosed – right now, under periodic disclosure (an annual disclosure to the register of interests), a public official does not necessarily have to disclose interests held by family members or dependents – and even then, only to a “limited extent”. Ad hoc disclosures also have limitations to what they reveal.
  • The extension of that scope of disclosure should include new obligations to disclose electoral donations, among other obligations. The timing of periodic disclosure also needs to change – public officials should make this disclosure withing 30 days of entering public office.
  • There may be requirements on officials to declare gifts or income that pre-date or post-date their time in office:

CONFLICTS OF INTEREST/REGULATION:

  • With reference to those “certain type of interests” which pose particular risk of corruption – gifts, access to inside information, ancillary and post-office employment – the Mahon Tribunal wants to not just have these reported…

The Tribunal is recommending that public officials be prohibited from accepting any gift in excess of a stipulated amount where that gift could be connected with their public office.

  • It also recommends that a public official can’t enter into a contract to provide goods or services to a public body either while in public office or for a full year after they leave office.
  • An elected official should not be allowed to have any dealings in buying, selling, developing land which was rezoned or had its planning status changed during the official’s time in office – or for two years afterwards.

CONFLICTS OF INTEREST/ENFORCEMENT:

The Tribunal believes that enforcing conflict of interests measures is too self-regulatory – this is where the aforementioned increased role of SIPO will come in.

The punishment for those who have been found to have breached conflict of interest regulation? In some cases, concludes the Tribunal, it should be a CRIMINAL OFFENCE:

POLITICAL DONATIONS/EXPENDITURE:

“Bribes may be made in the guise of political donations” reads the Tribunal’s final report. To halt corruption in this way, the Tribunal recommends:

  • Indirect donations should be prohibited
  • Anonymous and cash donations above €55 (to an individual electoral candidate) and €175 (to a political party) should be prohibited. Currently, anonymous donations in excess of €127 are permitted and cash donations are not limited at all.
  • An overall limit should be imposed on anonymous donations – €2,000 for an individual/ €5,000 for a political or third party
  • The Tribunal notes that at the moment an individual donor can give a donation to each member of a political party and also to the party itself.
Consequently, the Tribunal is recommending that an overall limit be placed on the amount which an individual may give to a political party, electoral candidates.

On political expenditure, the Tribunal recommends:

  • That expenditure rules don’t just cover the electoral period, as they do now.
  • That the limit of expenditure be lowered to make it an “effective ceiling on expenses”
  • That the rules be extended to cover third parties and Seanad candidates

To facilitate better transparency in political monies, it is recommended that:

  • All political parties and elected representatives should disclose annual audited accounts

As well as the current threat of criminal conviction for a breach of certain political finance measures, the Tribunal said that there should be a sliding scale made available which allows for fines and other sanctions for more minor offences. To those who try to ‘get round’ the measures, it had this to say:

The Tribunal is also concerned that political actors may be able to find loopholes in the political finance acts which enable them to act within the letter of the law while undermining its spirit. It is consequently recommending the introduction of a new provision sanctioning those who deliberately circumvent the requirements set down in the political finance acts.

LOBBYING:

  • As a result of this, the Tribunal wants A REGISTER OF LOBBYISTS which would state who they are lobbying on behalf of; who they are lobbying to; and on what issues.

BRIBERY:

While the Tribunal recognises that bribery laws are “relatively robust”, the role of intermediaries needs to be looked at further.

  • To this end, it recommends there be two new offences introduced:
The first of these criminalises the making of payments to a third party in instances where the payer (‘P’) knows or is reckless as to whether that party uses that payment as a bribe to further P’s interests.

The second criminalises a lack of supervision or control on the part of a commercial entity which faciltiates the commission of bribery to the benefit of that entity by one of its employees or other business associates.

  • The Tribunal also wants certain presumptions of corruption to be extended – in the case where an individual or political party fails to disclose a donation, either a prohibited one or one which it is required to disclose under the Electoral Act.
  • Even if an office holder does not actually do anything to confer an advantage on someone who has given them a gift, if their very INACTION causes an advantage, well, that too can be seen as a presumption of corruption.
  • When an Oireachtas member is found to have been bribed by a company, that company should not be allowed to tender for public contracts for seven years.
  • An individual found to have paid a bribe should be prohibited from applying for planning permission on anything except his or her own home for seven years.
  • Whistleblower protection should be “as robust as possible” to encourage exposure of corruption.

CORRUPTION IN OFFICE:

“Not all corruption is in the form of bribery,” says the Mahon Tribunal’s final report.

It wants anti-corruption legislation to cover the misuse of confidential information by a public official for their own benefit or for the benefit of another. It also wants it to cover the following:

Specifically, it is doubtful whether it covers instances where a public official fails or omits to perform his or her public functions in order to further private interests.

MONEY LAUNDERING:

  • The Tribunal is “concerned” that a public official is no longer deemed a politically exposed person in terms of money laundering legislation just one year after leaving office. It wants that changed to ten years after leaving office.
  • There is also a recommendation that financial institutions must be helped out on a “cost benefit analysis” to help them report possible transfers of corrupt funds.

ASSET CONFISCATION:

The Tribunal lauds the work of the Criminal Assets Bureau in recovering assets which are found to have come from corrupt transactions.

However, the Tribunal is also of the view that there would be some merit in having a single conviction based asset recovery regime, rather than three separate regimes (for drug trafficking, terrorist financing, and for other indictable offences) as is currently the case.

OTHER RECOMMENDATIONS:

  • More public education and awareness campaigns to help spot corruption
  • Law Commission should study how corporate vehicles can be used for corrupt purposes, especially to hide the source of corrupt funds.
  • Any future Tribunals of Inquiry should be given three additional powers: to require a person to attend the Tribunal for private interview, to order the discovery of documents without prior notice and to seize documents.

Liveblog: Mahon Tribunal rejects Ahern evidence>

Everything you need to know about the Mahon Tribunal>

The who’s who of the Mahon Tribunal>

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