There are plenty of good ideas lying around to control corruption.

This blog has referred (July 2007) to one of them.

That post referred to the fact that the UK (and Ireland, consequently) formerly had that very remedy and allowed it to fall into disuse.

It is now proposed to revive it in the UK.

Another good idea that would have stopped Charles J. Haughey, deceased leader of Fianna Fail, from getting inexplicably rich, is to be found in the laws of many former UK dominions.

Hong Kong’s version is found in the Prevention of Bribery Ordinance. It provides;

“10. (1) Any person who, being or having been a prescribed
officer –

(a) maintains a standard of living above that which is
commensurate with his present or past official
emoluments; or

(b) is in control of pecuniary resources or property
disproportionate to his present or past official
emoluments,

shall, unless he gives a satisfactory explanation to the court as to
how he was able to maintain such a standard of living or how such
pecuniary resources or property came under his control, be guilty of
an offence.”

(The definition of “prescribed officer” is critical; we are not after the dog-catcher).

A False Claim Act is, however, the superior remedy; it applies to private corruption and to public corruption; it promotes the disclosure of wrongdoing by witnesses; it acts as a disincentive to crime (by making it dangerous to undertake).

There is a perception in the public that our corruption index is high. Only full and open investigation and punishment of offenses will reduce this perception.

It is not helped by the fact that the law relating to corruption in Ireland is controversial. It is strewn over several pieces of legislation and has been criticized on a regular basis by the OECD expressly for that reason.

Two weapons in the State’s armoury were brought in by Britain (still in force in the UK), (The Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1916) and are old. They are also inadequate. (The 1916 Act does not apply to employers: who, but employers, will fund the bribery?).

Ireland ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions but, like many others, has dragged its heels in actually acting on its obligations.

In 2008 the OECD reported:

“In particular, the Working Group is disappointed that Ireland did not seize the opportunity of the Prevention of Corruption (Amendment) Bill 2008 to act upon the Phase 2 recommendations to consolidate and harmonise the two separate foreign bribery offences in the Prevention of Corruption (Amendment) Act 2001 and the Criminal Justice (Theft and Fraud Offences) Act 2001. The Group therefore recommends, as it did in 2007, that Ireland act on this issue as a matter of priority. It urges Ireland to pursue its declared intent to make changes to the 2008 Bill in order to achieve greater consistency between the two statutes, and consolidate at the first possible opportunity the corruption offences into a single piece of legislation. In addition, the Group continues to recommend that Ireland adopt on a high priority basis appropriate legislation to achieve effective corporate liability for foreign bribery.”

The Minister for Justice etc. welcomed this report, congratulating some civil servants, in effect, for meeting regularly to keep under review Ireland’s continuing default.

This is not academic stuff. See HERE.

And what of the, inadequate and insufficient, Prevention of Corruption (Amendment) Bill 2008?

It’s not even in sight.

Minister Dermot Ahern, Minister for Justice etc., please vigourously, without fear or favour, (asked or given), defend the interests of the following Persons (while,it must be said, doing your potential 2011 Presidential candidacy chances no harm);

Isis; Marduk; Aphrodite; Quetzallcoatl; Selene; Kibuka; Zeus; Hermes; Tekkeitserto; Mader-Akka; Ops; Nanook; Yhi; Ghidjja; Odin; Jupiter; Acuecucyoticihuati;

When you are finished, you may, at your discretion, help Michael O’Leary how to plan the operation of his pay toilets on Ryanair flights, assuming he is still engaged in that project when you are finished yours, if ever.

We have the Ryan report to consider; there is a lot to consider.

What are we to make of the judges of that era? (Strictly the era has not ended; the Ryan Commission had a time period to consider, that period only has ended).

A handy, if not good, place to begin on this, is with Jeremy Bentham.

Bentham said, of “the right to silence”;

If all the criminals of every class, had assembled and framed a system after their own wishes, is not this rule the very first which they would have established for their security? Innocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.”

As a matter of fact he was wrong in saying that “innocence never takes advantage of it”, otherwise the practice and procedure of criminal trials in his day would have demonstrated case after case of defendants proving themselves to be innocent, something that did not happen.

He was wrong also to imply that invocation of the “privilege of silence” was a sign of guilt. Determination of guilt was and is the precise purpose of a trial. His opinion implied that the burden of proof should rest on the accused, something civilised nations currently do not admit as reasonable.

In reality, Bentham was on the comfortable side of a power relationship.

He was not the first and will not be the last such person.

Crimes are prosecuted because it suits the person in power to launch the prosecution. Whether that is a proper action depends on the circumstances of the prosecutor as much as the circumstances of the accused.

What, for instance, of Ireland’s political and administrative leaders during the years of the Bush administration in the USA?

(Actually, let us confine the inquiry to the period after the passing of the International Criminal Court Act 2006).

Under Section 8 of the Act of 2006:

Any person who does any act specified in paragraph 3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”)”

Under Article 25 (3) (c) it is an offence for a person who;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

“War crimes” are defined in Article 8 and include;

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;”

That is exactly what George W. Bush and Donald Rumsfeld did to the prisoners of Guantanamo, as was generally known.

Furthermore, they used Shannon airport to facilitate the transport of some of those prisoners to Guantanamo;

When will we have an investigation of the complicity (or ignorance, if such be the case) of our politicians, particularly our Ministers for Justice etc. during those years, in relation to those matters?

The Courts Service has issued information on what it means to go to court as a witness.

Good luck to them.

It’s a pity they don’t seem to have done the same for parties to litigation.

Given that they are close to the persons who make up the Rules Committee of the Superior Courts, they will be unlikely, currently or in the future, to direct any criticism or complaint at the work of the Committee.

The Rules determine what the experience of going to court will be like.

The Committee, in effect, makes the Rules of the Superior Courts; the Minister for Justice, Equality and Law Reform has a nominal role but he, I venture, is busy elsewhere when the Rules get changed. (I could be wrong; perhaps it is a State secret, and the Committee does the bidding of the Minister).

In any event, the Courts Service will not be looking askance at any practice or procedure under the Rules.

The Committee is one example of bodies that, in effect, make and promulgate law. The Rules are published in the form of Statutory Instruments. Statutory Instruments are generally seen as “secondary legislation”. “Primary legislation” is to be found in the Acts of the Oireachtas. The Acts often make provision for detailed regulations to be made, “fleshing out” the bones of the particular Act. To be lawful the “regulations” must not go beyond the terms of the Act; they must express the “policies and purposes” of the Act.

The reason for this lies in the Constitution. Only the Oireachtas has the power to make law. Nevertheless, there are on occasion instances where “secondary legislation” is in fact “primary legislation”. Regulations made under the European Communities Act 1972 (as amended) have this status.

Most “secondary legislation” takes the form of a statutory instrument.

The European Communities Act 1972 aside, “ordinary” statutory instruments become law after, notionally, having been laid before the Houses of the Oireachtas.

This is an antiquated procedure to give the validity or endorsement of the Oireachtas to the instrument. Given the fact that the Executive dominates the Oireachtas with regard to primary legislation, the idea that the Oireachtas might even notice the statutory instrument being “laid” is a delusion.

Consequently, a vast body of law is promulgated every year and is open to challenge, in effect, only by Judicial Review proceedings in court.

FLAC has just issued a condemnation of the fact that, in Ireland, access to justice is denied many due to lack of resources. Free legal aid is available only to a limited number of people and for a limited number of issues.

Challenging the State in Judicial Review (particularly the Rules Committee of the Superior Courts) is definitely, practically, off that list of issues.

“Continuous Professional Development” (CPD) is an idea with a banal element. It behooves everybody to stay on top of their job, and to express that in jargon is to suggest that the work of some people is beyond accountability; otherwise, why the need to nudge them to competence?

Of course we know the work of some people is beyond accountability, but that is for another day and another subject.

The Government’s new Bill on “Surveillance” is certainly a necessary topic for a CPD seminar, not least in that the Minister for Justice Equality and Law Reform, in announcing it to the media, laconically, but defiantly, remarked that it would cause upset in “human rights quarters” (or words to the same effect).

Now, to whom was he referring? We can only say with confidence that he was not referring to the Government: (the Bill is a collective product of Government, not the work of the Minister).

Implicitly he was referring to the judiciary. Each judge in Ireland is sworn (and has sworn) to defend, protect and vindicate human rights. The Minister has given clear warning that the Government’s Bill is calculated to injure, in some way, human rights in Ireland.

Keeping that in mind, it would be naïve to think that breaches of human rights under this Bill will be confined to some areas of County Limerick. No, we may expect the breaches, of which the Minister warns, to occur across the country.

So, the CPD seminar or seminars will have to cater to professionals in every county in the country. Bring it on.

Hopefully, the Government’s vandalism will run up against systemic opposition; senior Gardai are currently attending countrywide seminars on the application of human rights in policing. Perhaps the things they learn (but there will always be dunces) will permit them to do their jobs correctly and not as the latest political lifebelt dictates.

It is likely I was unfair to the Parliamentary Draftsman HERE.

Who can now say what was intended by the legislation? In Ireland, the answer to that question is “the Courts�?.

Unlike some other jurisdictions we do not seek the meaning of words used in legislation by, for instance, interviewing the people involved in the introduction of the legislation. In the case of Section 20 of the Proceeds of Crime (Amendment) Act 2005, if we were to follow that course we would have to interview the then Minister for Justice. But even that would not be sufficient. He did not “pass�? the legislation; he introduced it to the Oireachtas. It was the Oireachtas that passed it.

It is not feasible to interview the members of the Oireachats to find out what they intended. Even if it were feasible to do so, it would be wrong. It would be an admission that nobody knew the meaning and purpose of the legislation until the views of those members was ascertained. Even the idea of something being “ascertained�? is a problem.

Who will formulate the question to be put to the members?

Who will interpret the confused, inarticulate replies? (Some, at least, will be such).

No, indeed. We need the principles of Statutory Interpretation.

A golden age of Statutory Interpretation has just opened in Ireland.

The future is bright for its practitioners.

Continuous Professional Development (“CPD�?) is jargon for an obvious fact; we need to know what is going on around us, professionally speaking.

Until recently, for the members of the Law Library, CPD consisted of drinking coffee in the barristers’ dining room in the Four Courts. Members of the public and/or solicitors were not, and are not permitted access to it.

There are now too many barristers for that “system�? to work correctly and so the Bar, like solicitors, must take more formal steps to keep everybody, at least notionally, abreast of developments.

Barristers and solicitors must show, to their respective regulators, that they have attended a minimum number of hours at lectures and/or seminars during the year.

In the real world, the best form of CPD is to do. Do the work and you know more than any lecture can ever convey.

Formal CPD suffers another drawback; it is not politically correct to present a lecture entitled “What’s wrong with Irish Judicial Review?�? and yet there is great need for such a presentation.

CPD suffers from the same dilemma that confronts the Minister for Law Reform. Before you can reform the law, you need to know what is wrong with it. Officially, there is never anything wrong with the law. Therefore, the Minister for Law Reform has no work to do; something so true, the non-existent work has been given to the Law Reform Commission.

CPD, in short, should be cutting edge. But it never is.

We could benefit from a seminar on the legal status of the EU Charter of Fundamental Rights. But we won’t get one, because Mr. Sarkozy would not agree, if he were asked, that there is any legal status to the Charter. We know this because Ireland was recently informed that the Charter would be conferred with legal significance if the Lisbon Treaty was adopted. It was not; therefore it does not.

QED.

I unintentionally caused a post to be private. I have now made it public. It retains its date order in the website but can be seen HERE.

THE HIGH COURT
2006 No. 3785P

Between

DIGITAL RIGHTS IRELAND LIMITED

Plaintiff

And

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Defendants

The Department of Justice has published the draft Statutory Instrument whereby Ireland proposes to transpose Directive 2006/24/EC into Irish law. See HERE.

The Irish Times is critical of the contents of the draft and doubtful as to its legality.

See HERE.