Monday 16 September 2019

Hey, who left those loopholes lying there?

Yet again, the law is impotent in the face of certain activities. The Yanks know how to deal with this

Illustration by Tom Halliday
Illustration by Tom Halliday
Gene Kerrigan

Gene Kerrigan

Last week, at the Oireachtas Finance Committee, there was some rage about "unscrupulous" behaviour by bankers. Turns out thousands of people on tracker mortgages were "ripped off".

Ho hum.

We've become used to the emergence of allegations of this kind. And we've grown accustomed to being told, as the committee was told, that the law is helpless.

The committee heard that "information is being withheld" from bank customers, and "records of meetings go missing".

The chair of the committee, John McGuinness, suggested that the behaviour of a range of banks stinks of an illegal "cartel". He spoke of how "each bank made the same decision at the same time".

The chair of the Competition and Consumer Protection Commission, Isolde Goggin, agreed that "it's undoubtedly the case that they all started to withdraw tracker mortgages at the same time".

Sounds like there's a case to answer, yes?

"We have not been provided," said Ms Goggin, "with sufficient evidence to ground a criminal investigation into the presence of a cartel."

It's not easy to prove some crimes, under current laws. If I give a politician a wad of money and he makes a decision that helps my business, that's not corruption. It just means I'm making a legitimate donation; and he makes a decision he might have made anyway.

Unless there's a note saying, "here's the money I promised for doing me a political favour", the cops can't prove corruption.

Same thing with the banks. Perhaps there was no cartel, perhaps they all did the same thing at the same time because they just felt like it.

The committee heard that if the authorities go looking for evidence the bankers will haul them into court, where the judges will protect their rights.

Whether it's the Garda penalty points scandal or the reporting of almost two million imaginary breath tests, or anything else from the litany of wrongdoing we've experienced, there's always an excuse to explain why no one faces consequences.

Those with deep pockets can employ teams of lawyers to scour the books for technicalities to blunt the investigation.

When prosecutions are taken they're screwed up.

It's as though the law is incapable of action against a certain class of people.

And we're afraid of tribunals of inquiry, as they might last years and cost a fortune. Not our fault, say the politicians. Not our fault, say the police, the prosecutors, the expensive regulatory bodies who can't do anything about suspicious activities. Not our fault - it's the law.

Well, the law doesn't just grow, like moss. It's written. If there are loopholes, it's because someone put them there. If there are insurmountable difficulties in making a case, it's because someone wanted it to be that way.

There are no such loopholes and difficulties in dealing with shoplifters and smash and grab merchants - nor should there be.

And then there are no political consequences from the blatant way the authorities simply shrug at the persistent inability of the law to deal with certain types of activity.

In recent years, austerity has severely damaged a lot of people, while the elites saw their fortunes grow. At the same time that the apparent wrongdoing of some seems untouchable, the smug brigade lecture the rest of us on morality and patriotism.

As a result, a massive political disaffection is now evident. Some of this is rational - a growing understanding that the political parties treat us as mugs to be manipulated with slogans and promises, while ministers run up obscene pensions protecting the interests of those they admire.

Politicians, consultants and other private interests came up with a strategy to charge for water. State resources would set up a commercial entity that could later be privatised.

Thousands of the disaffected, seeing the old crowd preparing to prosper again at the expense of the many, spontaneously rose and said no. The anti-water charge movement stopped the questionable project and shook the political system.

Some of the political disaffection displays paranoia, with people insisting there's a conspiracy that stretches from RTE to the Law Library, from the boardrooms to the police stations.

It's not conspiracy - it's seeing the right-wing view of these things as rational; which it is, if you benefit from it, which many do.

Some of the disaffection emerges in a fulminating rage on social media.

Politicians quite properly take offence when they're abused - but, that anger has roots in a deeply unequal system. The inequality isn't just economic, educational or political, it includes the application of the law.

It doesn't just happen that way.

And it's not enough for politicians to tut-tut.

Imagine we were unable to tackle - for instance - burglars. Since we can't allow waves of unchallenged burglary to prosper we'd have to come up with new ways of doing things.

Fine Gael and Fianna Fail have for decades dominated parliament. Their decisions ensured the laws in such matters are ineffective.

Somehow, the law and order parties failed to write effective laws against the kind of crimes that their friends - and some leading members - might be prone to committing.

Let us suggest a way forward. Borrow a tactic from the Yanks.

There are two linked measures that would help: obstruction of justice and "flipping".

When there appears to be an offence, cops and lawyers are sent in - sometimes it's the FBI, as in the current Mueller inquiry into Trump campaign crimes.

It's a crime to hide evidence or refuse to turn over documents. Most important, you commit obstruction of justice if you lie to an investigator. And you go to jail for years.

The questions can't be fishing expeditions ("Have you broken the law?"). They must be genuine attempts to build a picture of what happened. "Did you receive a phone call that Tuesday?" "Who called?" "Did you discuss the project in which you were engaged?"

There are protections for the individual, but the emphasis is on establishing truth.

All of the statements are examined, to build up an account of what happened. If anyone is caught lying they face a substantial jail term for that alone - apart from any corruption in which they've engaged.

Which is where the second measure comes in - flipping. Those facing prison terms for obstruction of justice can reduce their sentence by telling the truth, by implicating others, as investigators play one suspect off against another.

With such investigative tools, inquiries are shortened.

In the US, Bernie Madoff was arrested for an enormous fraud in December 2008. By March 2009 he was in court. By June he'd been sentenced to 150 years.

In Ireland, Bernie would still be on bail in 2017, making his 15th appearance in preliminary litigation in the High Court, with a view to the case falling apart in court in 2024.

The political disaffection that has grown out of the complacency of the right-wing parties has seen the arrival of an amount of genuine independent left-wing TDs.

A bill directing the wide use of sworn affidavits in investigations, with stiff penalties for lying, would be a start.

It would be fun to watch the Garda bodies and the lawyers and FG/FF explaining that - no, they're not in favour of corruption, but this bill would be "problematic".

Not half as problematic as the way the law is currently being trashed.

Sunday Independent

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