Aodhán Ó Ríordáin (Dublin Bay North, Labour) | Oireachtas source

Nobody should be in any doubt that the reason we are debating this legislation is the catastrophic failure of the Irish financial system due to reckless property speculation and the appalling mismanagement of some of our financial institutions.

It is the business of Deputies in Dáil Éireann, as legislators, to create the law, it is the business of the Executive to govern and it is the business of the Judiciary to interpret the law. It is not our job as Deputies to interpret the law or administer justice and it is extremely important that we preserve the independence of the Judiciary. To that end, it is not normal that we discuss an individual judgment or trial as part of the normal business of this House. The fact is, however, that it is impossible to properly explain this Bill without referencing that its primary purpose is to address criticisms by a member of the Judiciary of some of the failures of the Office of Corporate Enforcement following one of the most high-profile failed prosecutions on record, one which was undertaken following the collapse of a financial institution which had been recklessly and foolhardily guaranteed by the State.

There is a perception among ordinary people that, collectively, the Legislature, Executive and Judiciary have failed in their duty to ensure that so-called white-collar crime is legislated for, investigated and prosecuted and sentenced passed in a way that is appropriate for the seriousness of the damage caused. To be honest, it is difficult to disagree when we see the many repeated failures of our system to detect, investigate, prosecute and convict those who abuse our financial, corporate and business laws with complete disregard for their victims. Let us be clear who those victims are. When financial crime results in the collapse of a bank or an insurance company, workers are thrown out of their jobs, customers are left high and dry and the State ends up picking up the pieces, we are all the victims. When financial misdeeds force the State to step in and bail out whole industries on the brink of collapse, we are all victims. When people cook the books, cheat taxes and siphon off profits, we are all victims.

During the implosion of the property bubble, ordinary workers saw themselves again and again thrown under the bus by the actions of a small few directors and CEOs who saw themselves as above the law.

Let us be under no illusions. Corporate crime at the highest level is often difficult to detect, complicated to understand and expensive to properly investigate. Too often, the perpetrators convince themselves that they are bending rather than breaking the rules and their crimes are mere minor misdemeanours - the kind of trifling technicality that still allows one to sit in the Dáil, despite a clear criminal conviction on financial matters, and have a direct phone line to Ministers.

We, the people, need a proper agency to tackle this crime and protect us from the social and financial damage to our people. We also need a system which will lead to outcomes and consequences, sentences and punishments which show the people of this Republic that we are serious about tackling corporate crime.

The Office of the Director of Corporate Enforcement was established following the Ansbacher scandal of the 1990s and the repeated findings of corruption, bribery and wrongdoing by tribunals which previously led to seemingly minimal consequences for those implicated. While the ODCE had some successes, it has become abundantly clear that it is only scratching the surface of what is required and was unable to deploy and exercise powers and resources to protect our society from the highest levels of business and financial fraud and crime.

In 2016, the Office of the Director of Corporate Enforcement returned more than half of its budget unspent. Under this Government, the ODCE had to wait almost a year for the allocation of six detectives it had asked the Garda Commissioner and the Government for in order to do its job.

It is no exaggeration to say the collapse of the Celtic tiger case at the heart of the Bill has been held up to almost every Deputy as an example of how the rich and powerful always get away with it. We should not seek to scapegoat individuals or single organisations. As legislators, we need to take responsibility and ensure we do what we can to tackle corporate fraud and do so in a way whereby people are dealt with fairly but the ordinary person in the street has confidence that white-collar criminals who steal, cheat or manipulate people or entities to the tune of millions of euro are subject to consequences appropriate to the scale of their crimes.

The main component of the Bill amends the Companies Act to establish a corporate enforcement agency to replace the Office of the Director of Corporate Enforcement, ODCE. The Labour Party supports the establishment of this new agency and making it a commission independent of the Department of Enterprise, Trade and Employment. However, we cannot stop there. My fear is that we will set up this under the misapprehension that our work is done only for the next scandal to result in more shaking of heads, an inevitable review and another fruitless exercise in shutting the stable door after the horse has bolted. The problem of corporate crime is not just a problem that can be solved by setting up a new agency and walking away. What we need is a complete change in cultural, political and social attitudes. Corporate crime is born of the right-wing attitude that greed is good. Corporate crime is born of the attitude that regulations apply to only ordinary people, that profit for the shareholders is all that matters and that rules are there to be bent. Corporate crime is born of the attitude that company law is there to be exploited rather than obeyed and that paying tax is an imposition to be avoided rather than a valuable contribution to running a better society. I remind Deputies that tax exiles are not heroes. We need a society where business ethics are taken seriously and not just paid lip service.

I urge the House to remember that the corporate enforcement agency can be only as effective as the laws we give it to enforce. Unfortunately, the constant refrain of "too much red tape" or "too many regulations" led by some in the private sector and backed by industry lobbyists and some of our politicians is all too pervasive in Irish life and undermines the robust framework of legislation needed to prosecute and punish so-called white-collar crime. Too often we see campaigns to have regulations watered down, undermined or abolished. Unfortunately, there is a culture, particularly on the right, of paying lip service to corporate social responsibility while trying to undermine the proper regulation necessary to protect workers, consumers and honest business people. We see the failure of adequate legislation to deal with the failures relating to mica, pyrite and fire safety in construction and many of the business entities responsible for such scandals disappearing and re-emerging, the principals hiding behind the shelter of corporate laws.

As we debate this Bill, we must look at the provisions and ask ourselves whether we are doing enough and whether there is any way we can strengthen the agency and its powers to make sure it has what it needs. As the Bill proceeds through Committee Stage and beyond, we must examine every clause and ask ourselves whether it will help deliver justice. For example, I note that the proposed section 944AF provides that the authority may not impose on a director a monetary sanction that would make him or her bankrupt. It provides that only one monetary sanction may be imposed where more than two breaches of the same conduct have occurred and it re-enacts section 957G of the Companies Act 2014. We might reasonably ask whether in the eyes of the ordinary person such provisions are consistent with how ordinary people are treated. If someone breaks any one of our country's by-laws on parking, road tolls and so on, he or she must pay a fine for each instance. People do not get to say they want to pay only one fine for all the times they break parking rules. I am also concerned that the threat of bankruptcy should not be abused as a mechanism for refusing financial penalties for serious breaches of corporate law, particularly in view of the reform of the bankruptcy laws and procedures.

As well as the main section establishing the authority, the Bill provides for the implementation of several recommendations of the Company Law Review Group, CLRG, relating to corporate governance, shares and share capital, which hopefully we will be able to welcome as strengthening the protections for citizens.

The Bill brings back memories of some of the most painful and appalling travesties in Irish political and financial history. It is ironic that we are here to discuss a Bill of a Fine Gael Minister for Enterprise, Employment and Trade under a Fianna Fáil Taoiseach. I remind the Minister of State that what we are speaking of now is fundamental to the future of our Republic. I taught for a time in the north inner city of Dublin. There used to be media reports of the community in which I served. It was just beside the IFSC. In the 1990s, media reports used to say it should have been the aspiration of young people in the north inner city to get employment in the IFSC. They used to pretend that crime was all in the north inner city, that the paragons of virtue were those wearing suits in the IFSC and that, if those young people could turn away from the parallel economy and the temptation of cheap money and criminal activity and turn their eyes to the IFSC, they might have a better future. All the while, the criminality that almost brought down the Republic was taking place in the IFSC. That is the crux of the matter when speaking to a young person about the choices he or she has - are we equal or are there different laws for people who wear different suits?

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