State secrecy: A powerful and extremely destructive weapon

On 31st January last I rang the Office of the Director of Corporate Enforcement (ODCE) to inquire whether the Bailey brothers case was still ongoing.

Over the years I have made many such calls to the ODCE to check on the progress of various cases.

My questions were always basic – Was the case still active, how was it progressing, if it was complete what was the outcome and so on. Invariably, my questions were answered and I was happy enough.

On this occasion the shutters were pulled down.

The ODCE refused to answer even the most basic of questions and when I persisted I had secrecy legislation quoted to me as justification for refusing to answer questions.

I submitted my questions in writing to the ODCE and received, by post, a letter from an Assistant Principal Officer informing me that not only would my questions not be answered but that the ODCE did not have tell me, or anyone else, whether a specific company or individual was even under investigation.

It was obvious from the content of this letter and the tone of phone converstations with ODCE staff that the submission of a Freedom of Information request would be a waste of time so, instead, I made a formal complaint to the Ombudsman.

To my surprise the Ombudsman said that she could not examine complaints concerning the ODCE as it was outside the remit of her office.

I was advised to contact the Department of Jobs, Enterprise and Innovation for assistance.

My request to this state agency was also met with a brick wall. I was informed that the Department did not have the authority to instruct the ODCE to disclose information.

So, in summary:

The ODCE refuses to provide even the most basic information regarding its activities, citing secrecy legislation.

The Ombudsman has no power to compel him to release any information.

The government department/minister under which the ODCE operates is also powerless to act.

This, in effect, makes the ODCE an untouchable State agency. No authority in the land possess the power to question its decisions.

Not even a High Court judge can question its activities.

This was highlighted recently when Mr. Justice Peter Kelly was firmly and publicly rebuked by the DPP for having the temerity to challenge the ODCE’s handling of the ‘investigation’ into Anglo Irish Bank.

This granting of absolute and unquestioning power to a State agency poses serious dangers not just to Ireland and its people but also to the officials working within that agency.

If an official was suffering from some sort of personal crisis, say, for example, an addition to gambling, he would be extremely vulnerable to exploitation from any number of sources intent on perverting the course of justice.

If an official, observing that he is subject to little or no oversight and that his actions/decisions are protected by an impenetrable wall of secrecy laws, could easily exploit the situation to his own advantage.

If an official was beholden to a political party for his position he could find himself coming under pressure not to pursue a case against a friend of that party.

I want to stress that I am not for a moment suggesting that anyone within the ODCE is involved in any such activity.

I am making the point that such activities are a reality in every country in the world and Ireland is no exception.

All humans are vulnerable to such dangers and it is because of such vulnerability that functional democracies ensure that a system of checks and balances are in place which are designed to protect the office holder, the state and its citizens.

Checks and balances such as a proper Freedom of Information Act and a strong, independent oversight authority with the power to demand answers from government agencies that are clearly unable or unwilling to do their jobs properly.

Ireland does not and never has had such checks and balances in place.

If such checks and balances were in place in Ireland no State authority would be allowed to refuse to say if an individual or company was under investigation or not.

Such basic and completely harmless information is immediately and unquestionably available in all functional democracies.

If such checks and balances were in place in Ireland no State authority would be allowed to endlessly prolong investigations into the activities of powerful and influential people.

The key sentence in the letter I received from the ODCE is:

I regret that it is not possible to make public details of any of our cases, nor even to discuss whether a specific company or individual is actually under investigation by the Office (my emphasis). This is because of the statutory duty of confidentiality imposed on the Director of Corporate Enforcement and his officers under Section 17 of the Company Law Enforcement Act 2001.

I do not accept that the State/ODCE has the right to take upon itself the power of such absolute secrecy and, at the same time, claim Ireland is a functional democracy.

The denial of such basic information by a state agency moves the scandal from one of routine investigation into alleged corruption to that of a serious abuse of power by a State agency.

The assumption by the ODCE of such draconian power, whether legitimate or misguided, places Ireland within that category of undemocratic states where the interests of the state and its friends are deemed to be more important than the interests of ordinary citizens.

The methods used may differ but the results are exactly the same – the complete denial to citizens of any information whatsoever.

Citizens living in such undemocratic state are denied the right to know what their government/state agencies are doing, or perhaps more importantly, not doing in their name.

Such absolute denial of information, has the effect, whether intentional or not, of protecting the corrupt and the interests of those who benefit from protecting the corrupt.

And we can see, by even the most cursory examination of the hundreds of scandals over the past few decades, that in practically every case it is the corrupt who win out and Ireland’s reputation and ordinary citizens who pay the price.

Unwarranted and unexplained delay, in addition to absolute secrecy, is also a feature of the dysfunctionality of Ireland’s administrative system.

Again, whether intentional or not, secrecy and delay have the undeniable effect of protecting the corrupt and, as a consequence, damaging the best interests of Ireland and its people.

Despite claims by politicians and officials, the Bailey brothers case is not particularly complicated. The facts of the case have already been well established.

Briefly; the Bailey brothers:

Made a corrupt payment to a politician and to a civil servant.

Obstructed and hindered an Oireachtas tribunal on several occasions.

Gave false evidence under oath.

Engaged in massive tax evasion.

There is not the slightest doubt that if such activities were engaged in in a functional democracy the case would have been dealt with immediately by the police and courts and would almost certainly have resutled in long jail sentences.

In Ireland the ODCE has been ‘investigating’ for over six years with the absolutely minimal aim of banning the Bailey brothers from acting as company directors for a limited period of time.

Yet here we are, more than six years into the case, and not even a hint of accountability.

In functional democracies similarly long delays would attract strong and persistent questioning from media, opposition politicians, Government ministers and ordinary people.

The enforcement authority in charge of the case would, at the very least, be forced to provide a comprehensive explanation for any serious delay.

It is an undeniable fact that the legal maxim; justice delayed is justice denied, which is accepted in all functional democracies, does not operate in Ireland when it comes to investigating the activities of powerful and influential people.

Of the very many serious cases of corruption over the previous few decades involving powerful people I can think of none that were dealt with in a quick and efficient manner.

In practically all these cases those involved were never brought to justice. The indications are that the current investigations into the activities of certain bankers will result in the same predictable outcome.

But the core point I want to make here is that, unlike all functional democracies, Ireland bestows absolute power on senior individuals within its enforcement agencies.

In Ireland there is no oversight of such individuals, no state authority has the power to effectively question their decisions, motives or agendas.

No politician, even if they had the courage or will, can, it seems, challenge the activities of such individuals.

Just last week we witnessed the latest episode in the Bailey brothers scandal when NAMA, another state agency bestowed with draconian secrecy powers, refused to answer questions regarding the granting of €13 million in funding to a company controlled by the brothers.

Fianna Fail TD and chairman of the Public Acccounts Committee, John McGuinness, said that the taxpayer was entitled to precise and accurate information regarding deals done by NAMA.

This is incorrect.

NAMA, the ODCE, the Financial Regulator and indeed most government agencies operate under an oppressive cloak of draconian secrecy laws which are specifically designed to avoid releasing precise and accurate information.

Whether intentional or not these secrecy laws provide watertight and ongoing protection to the corrupt individuals and organisations that have brought Ireland to the edge of ruin.

State secrecy is a powerful and extremely destructive weapon that causes serious damage to the best interests of Ireland and its people.

Copy to:
ODCE
Ombudsman
Department of Jobs, Enterprise and Innovation

I have included below the replies to my queries from the ODCE, the Department of Jobs, Enterprise and Innovation and the Ombudsman.

Dear Mr. Sheridan,

Your request for information has been passed to me for attention. Your request was in three parts:

• Is the ODCE currently engaged in proceedings or any other action against Michael and Thomas Bailey, directors of Bovale Developments?
• If such proceedings are in place what stage are they currently at?
• If they are complete what was the outcome?
I regret that it is not possible to make public details of any of our cases, nor even to discuss whether a specific company or individual is actually under investigation by the Office. This is because of the statutory duty of confidentiality imposed on the Director of Corporate Enforcement and his officers under Section 17 of the Company Law Enforcement Act 2001:

17.-(1) Information obtained by virtue of the performance by the Director of any of his or her functions which has not otherwise come to the notice of the public, (ODCE emphasis) shall not be disclosed, except in accordance with law, by any person…
As certain information is in the public domain, you already have access to that information, as it is available on our website. To facilitate you, I have replicated below the information already published.
• Press Statement dated 31 August 2006 at PART I
• High Court Judgement dated 1 November 2007
• Supreme Court Judgements 14 July 2011
• High Court Judgement of 1 November 2007
This is the sum total of information that can be released, for the reasons outlined above. I hope this is of asistance to you.
Yours sincerely
Assistant Principal Officer

Dear Mr Sheridan,

I refer to your email below the content of which has been noted.
In response to your first question I can confirm that under Section 17 of the Company Law Enforcement Act 2001 the Department does not have the authority to instruct the Director of Corporate Enforcement to disclose information. Section 17 of the 2001 Act relates to the disclosure of information and sets out the independence of the Director.
In relation to question two, the Director is a statutory independent officer and as previously stated under Section 17 of the Company Law Enforcement Act 2001 the Director is not in a position to make available information relating to any case or indeed to discuss whether a case is under investigation.
I hope that you find this information helpful.
Kind regards

Dear Mr Sheridan,

I refer to your recent correspondence in connection with ODCE.
The Ombudsman may investigate complaints against Government Departments and Offices, Local Authorities, the Health Service Executive, An Post and bodies within the remit of the Disability Act, 2005. The Ombudsman cannot examine complaints concerning the ODCE as it is outside the remit of this Office. The Department of Jobs, Enterprise and Innovation may be able to assist you with this matter. I regret therefore that we cannot be of assistance to you in this matter.
Yours sincerely

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  1. Sean D'Olier’s avatar

    Well, at least you got a reply in writing. I have been contacted by phone in relation to investigative matters by representatives of the Ombudsman. When requested to send on written confirmation of their positions they have failed to do so.

  2. Haymoon’s avatar

    You should copy this to each TD and Senator; also submit it in letter form to the national papers.