The musings by the Director of Public Prosecutions as reported HERE warrant a book written on them. He has pointed to the need for, and social value of whistleblowers.
This being a blog, a posting will have to suffice.
His musings were followed by a proposal from the Minister for Justice, the terms of which are currently obscure.
Assuming that there is no co-ordination between the Minister for Justice and the DPP, and assuming them to be decent, well-meaning office holders, why do these pronouncements appear as if the speaker was the first to address the problem?
The Labour Party tabled a Whistleblower’s Bill and it went nowhere. It was within the power of the Minister’s party to drive it, or to kill it. It was killed.
Transparency International has compiled a review of the lack of protection for whistleblowers in Ireland. See it HERE.
Transparency International recommend one single piece of legislation to protect (and promote) whistleblowing. As they point out, the UK did exactly that in 1998 with the Public Interest Disclosure Act. See it HERE
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Of particular interest to this blog (we are personal injury lawyers, albeit multi-tasking) are the provisions of Section 27 of the Safety Health and Welfare at Work Act 2005. See it HERE.
Now read the obligations imposed on employees HERE by Section 13 (h) of the Safety Health and Safety at Work Act 2005.
The DPP thinks that recourse to the Employment Appeals Tribunal is cold comfort for a dismissed employee whistleblower.
Surely the Government knew this in 2005, if the DPP can know it now?
Generally, we expect High court judges to intend to do justice on a persistent basis. (Despite the title of the Department of Justice, Equality and Law Reform, we expect less from the Department, it being a bureaucracy).
Nonetheless it appeared necessary to the Oireachatas to enjoin judges to do justice. We see this in Section 28 of the Civil Liability and Courts Act 2004.
(Of course the foregoing is a fiction. Our Executive has ensured that the Oireachatas does not function correctly; somebody other than the Oireachats decided the terms of the Act).
Section 28 reads:-
“28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997 , or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.”
This provision bristles with difficulties for a judge. Whatever the judge decides, an appeal court could and probably would take a different view. The Section implies that some people will get the compensation and some people will not. Why? We do not know, and not to know is wrong. The fact that a Defendant is insured must be a deciding factor, otherwise the decision to withhold compensation would result in tax foregone by fraud (or error?) being credited to an insurance company.
Is it possible that one or more insurance companies procured the insertion of this Section into the Act?
Yes it is. We see from the Irish Times that a committee of bankers’ representatives was designing legislation (for banks) as late as 2008.
Now we know how Government works.
Michael O’Leary, presumably, finally sought or was given proper legal advice. We can presume this from his craven back-pedaling we saw in the last few days.
He firstly refused to comply with Ryanair’s obligations, to compensate his customers for cancelled flights, under Council Regulation 261/2004, stating his obligations in terms of contract obligations only.
The next day he, cack-handedly said Ryanair would meet its obligations. He was cack-handed because the manner in which he made the concession was misleading; it suggested he had not changed his position and that customers were not entitled to any of the benefits he should have given to them.
If it were not for the fact that he referred to the Regulation obligations as “absurd” one would think he did not know of the Regulation, but he clearly did. What, then, changed his mind? What did he not know?
Despite the shameful failure of the Irish Government to introduce the possibility of conducting “class actions” in Ireland, O’Leary may have finally realized that he was going to be plunged into class actions in the UK.
Without exception, Ryanair travelers are “consumers” under EU law. Consequently, they are entitled to litigate disputes with Ryanair in the consumer’s place of residence.
Many of Ryanair’s customers were UK residents; they were going to issue proceedings in the UK. There, they could, and surely would, band together and litigate their claims as a class action. By this means they would off-set the advantage of size that Ryanair has over any single consumer, a circumstance perpetuated in Ireland by the sullen laziness of successive Irish Governments. (All that is required is to amend the Rules of the Superior Courts; something the Minister for Justice etc. could do in a flash).
As a measure of the power and benefit consumers would get from a class action, O’Leary folded just at the possibility of being at the receiving end of one, not waiting to find out what the experience would be like, an experience Brian Cowen will deny to Irish consumers even as he is driven from office.
Digital Rights Update
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
UPDATE (25/3/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
2. McGarr Solicitors act for Digital Rights Ireland Ltd.
3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.
4. Judge McKechnie reserved judgment on those issues before the Court.
5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.
6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
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.
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