THE DECISION by the Office of the Director of Corporate Enforcement (ODCE) to take no further action in regard to insider trading at DCC is perplexing and deeply disturbing. A situation now arises where the Supreme Court has found that a very serious offence has taken place, but the various agencies of the State, ranging from the Garda through the Director of Public Prosecutions, the Financial Regulator and now to the ODCE can’t or won’t seek any sanction against the company or the individuals involved.
The ODCE was the end of the line and the sanction it could have sought is at the very bottom of the scale, amounting to little more than public opprobrium in the form of being disqualified from being directors of a company. But even that slap on the wrist will not now be administered or even sought.
A fuller explanation is still required from the ODCE as to why they will not proceed to seeking the relatively minor sanction that is within their powers. While the report of the DCC inspector, Bill Shipsey SC, is at pains to characterise the actions of Jim Flavin and DCC as inadvertent breaches of the law, the fact remain that the law was broken. And the massive damages paid by DCC as a result – some €41 million – undermine any attempts to minimise the importance of what occurred.
Particular weight appears to have been given by the ODCE to the Inspector’s finding that Mr Flavin and DCC had advice to the effect that their actions were within the law. To proceed against such a background would have the characteristics of a witch-hunt against Mr Flavin. But the stakes are so high that it would have been preferable to have this issue concerning legal advice further tested before the courts, as it is fast becoming the Achilles heel of Irish corporate governance. If – as now appears the case – the paid-for advice of a lawyer replaces the onus on an individual to act in a moral fashion, then corporate law will continue to be broken as long as there is a lawyer prepared to venture an opinion.
The outcome of the DCC affair does damage to the reputation of Ireland at a time when our ability to manage our own affairs is being questioned as never before. The assertions made by Mr Shipsey – which are frankly astounding – about the quality of Irish corporate governance will count for little in New York , London or Frankfurt. They will look at yesterday’s outcome, add it together with what they know of Anglo Irish Bank and various other Irish scandals before concluding – if they have not already – that regulation in Ireland is fundamentally weak and the standards we set ourselves pitifully low. And they would be correct.
There is a palpable sense from the testimony given to Mr Shipsey that corporate Ireland’s top echelons have closed ranks to protect themselves. It is understandable; Mr Flavin was, they say, the epitome of Irish corporate probity. His peers cannot damn him without, in effect, damning themselves. But they need look no further than the wreckage of the Irish banking system to realise the extent to which low standards in high places have damned us all.