Ireland still great place for shysters and scam merchants

Tue, Nov 27, 2012, 00:00

The late Larry Hagman gave us the greatest single moment in Irish television history, and it wasn’t in Dallas. In a surreal passage in Charles Haughey’s self-regarding film My Ireland, Hagman, in a JR Ewing-style ten-gallon hat, chats with the great leader at a racecourse. Suddenly, he reaches into his pocket, takes out a dud thousand-dollar bill with JR’s face on it and gives it, with a knowing leer, to Haughey. We knew then that JR was truly one of us. And he’d still be at home here, for this remains a great place for shysters and scam merchants.

Last week, the Labour TD Robert Dowds got figures on conviction rates for white-collar crimes. In the three years after a crash caused in large part by abysmal business ethics, convictions fell dramatically. In 2004, there were 467 convictions for white-collar crimes; in 2010, there were just 178. Is this because the shysters took their fingers out of the till? No – the number of recorded white-collar offences rose by 33 per cent in the same period.

Nine out of 10 known white-collar crimes fail to result in a conviction. In part, this is because there has been no serious effort to create a fraud squad with the expertise to investigate complex cases. The fraud squad has not a single full-time lawyer attached to it and just two qualified accountants.

But there’s an even bigger issue here – the state of the law itself. One of the big questions citizens have been asking since the crash is – how come, to adapt a famous statement by Michael McDowell, none of these people ever get to hang their Armani jackets on the back of a cell door in Mountjoy? Any seriously reforming government would have set up a task force to transform Irish corporate law into a powerful protector of the public interest.

Instead, what we have is the continuation of a beast called the Corporate Law Review Group. This is a statutory body, made up of fine and worthy people with considerable expertise and undoubted integrity, most of them from the legal and corporate worlds. And it is a long-running disaster.

The CLRG is headed by Thomas Courtney, a corporate lawyer with the ubiquitous Arthur Cox legal firm. He is a highly distinguished and capable man. But he operates within a mentality that makes it almost impossible for the CLRG to react to the scale and toxicity of white-collar crime in Ireland.

Firstly, the brief of the CLRG is and continues to be a classic expression of the boomtime creed of “light-touch” regulation. Its mission statement is to “promote enterprise, facilitate commerce, simplify the operation of the Companies Acts, enhance corporate governance and encourage commercial probity”. Note the order of priorities – the CLRG is to serve “commerce” and “enterprise” first, probity second.

The products of this mentality have been quite staggering. Two brief examples will suffice. The first goes back to the Dirt scandal that exposed the appalling failure of ethics in our banking system – a warning that, if heeded, would have prevented the crash.

In response to that scandal, it was recommended by the Review Group on Auditing in 2000 that the directors of a company should have to report annually on the way it was complying with tax and company law. A watered-down version of this was then put into legislation in 2003. But parts of the corporate world lobbied against the implementation of this law.

The matter was referred to the CLRG. The Director of Corporate Enforcement argued strongly that the law should be implemented. Astonishingly, the CLRG recommended that it should be scrapped entirely but that, if it had to remain, it should be watered down even further.

The second example concerns proposals to give protection in law to “good-faith” corporate whistleblowers. In a comic masterpiece, the CLRG came out against this on the basis that “One cannot say that there is any evidence of endemic failure in relation to corporate governance or its enforcement in Ireland that negatively affects the investment climate and which requires enhanced ‘whistleblowing’ provisions.”

If such laws were enacted, “Ireland’s reputation as a lightly regulated economy could suffer.” Surely the geniuses who believed that there was no evidence of endemic failure of corporate governance in Ireland and that it was bad form to ask directors to declare that they were obeying the law were shown the door after the crash? Surely the remit of the group was changed so that instead of prioritising “commerce” it would look at why white-collar crimes continue to be committed with impunity? Not a bit of it: the remit is entirely unchanged and 16 of the 25 members of the group, including the chairman, are exactly as they were when the crash came in 2008.

Here, again, we see the extraordinary persistence of almost all the factors that led to the collapse of the economy and of Irish independence. At the centre of the Establishment, the people and the mindsets are largely the same. And if we had the chance to do it all again, the outcome would be the same too.

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