Public anger at the abstraction of vast sums of money out of the jurisdiction is understandable. The arrogant and obstructive attitude of those involved and the complicity of their professional advisers excites outrage among those who have complied with the law for many decades.
It is easy for the opposition parties to call for the disclosure of the names referred to in the investigation to date of the Ansbacher accounts. The opposition leaders do not have the responsibility of office and they can ignore constitutional fundamentals.
Anyone who cares to consult the relevant statutory provisions regulating the investigation of the Ansbacher accounts will see that there has been no reluctance on the part of the Government to accept and confront the rotten nature of what has been exposed.
Last Wednesday week, the Tanaiste and Minister for Enterprise, Trade and Employment applied to the High Court for the appointment of three inspectors under Section 8 of the Companies Act. The inspectors appointed were the Honourable Mr Justice Declan Costello; Ms Noreen Mackey, barrister-at-law, and Mr Paul F. Rowan, chartered accountant. Their function under the High Court order is to investigate and report on certain aspects of the affairs of Ansbacher (Cayman) Ltd. The expertise of the inspectors appointed by the court is unquestionable.
The High Court application was based on information given to the Tanaiste by Mr Gerard Ryan, an authorised officer who had been appointed by her on January 13th, 1998. Mr Ryan was appointed by the Tanaiste under Section 19 of the Companies Act 1990 to examine the books and documents of Ansbacher (Cayman) Ltd relating to its Irish operations.
In contrast to the various inquiries before tribunals and the Public Accounts Committee, the High Court inspectors are given wide statutory powers of investigation. Failure to assist the investigation may be reported to the High Court, which can take such action as is deemed necessary. It is important to be aware of the considerable powers the Oireachtas has given to inspectors to ensure that they get to the bottom of the issues they are required to investigate. It must be stressed that the High Court, on receipt of the report, can remedy any breaches of law reported to it.
Section 21 of the Companies Act 1990 prohibits the disclosure or publication of information or documents obtained in the type of investigation conducted by Mr Ryan. Under existing law it would be a serious criminal offence to publish names obtained by the authorised officer on a name-and-shame basis.
In addition to the statutory prohibition and criminalisation of name-and-shame-type disclosure, the High Court has expressly prohibited such disclosure. Accordingly, were the Government to ignore the provisions of Section 21, it would amount to a deliberate and flagrant contempt of the High Court.
In these circumstances, the Government cannot and will not breach Section 21 or the High Court order. To do so deliberately might destroy the basis of the High Court inspection. It might undermine other investigations by authorised officers under Section 19 at present in train.
However, Section 21 provides that the name of any person can be published in the context of criminal proceedings, which may be commenced for revenue and company law offences. In addition, the Revenue Commissioners have statutory power to name persons who have seriously defaulted in relation to tax.
Suggestions have been made that the law might be changed to permit disclosure and publication on a name-and-shame basis. In particular it has been suggested that publication of the names should take place before a committee of the Oireachtas.
I presume the intention of this proposal is to cloak any disclosure with the protection of Oireachtas privilege.
In my view there are serious constitutional doubts about this proposal:
The report of the authorised officer, insofar as it contains findings of fact and conclusions, was not prepared with a view to publication, which would require compliance with well-established constitutional safeguards.
Persons named in the report did not have the prior right to see its contents in relation to them or to challenge them. In this regard, the report has the same status as a Garda file in respect of a pending criminal prosecution.
Bearing in mind that some persons mentioned in the report are quite likely to be charged with serious criminal offences, a deliberate preliminary policy of name and shame would be wholly inconsistent with due process, and might result in immunity from prosecution.
Reports of inspectors under the Companies Acts are given special effect under Section 22 of the Companies Act 1990. Such status is not conferred on the reports of the authorised officers, such as Mr Ryan. Even inspectors' reports can be published only with the consent of the High Court, which has a special role in ensuring that they are not published in a way that infringed unfairly of unconstitutionally the rights of the citizen.
There would be grave questions about the propriety of having High Court inspectors appointed, and conducting criminal and revenue investigations, if an Oireachtas committee were free at the same time to investigate and to name and shame persons suspected of criminal tax evasion.
The entire scheme of the 1990 Act is that authorised officers are given extensive powers with a view to confidentially uncovering information which can subsequently be used for criminal investigations, revenue investigations or company law investigations in which allegations of wrongful conduct can in time be made public, in conformity with constitutional procedures.
The Government is committed to dealing with the matters raised in the case of Ansbacher (Cayman) Ltd in accordance with the rule of law and the Constitution. Lynch mob tactics or public statements of the let-us-make-this-hanging-legal variety are no substitute for the rule of law. Responsible politicians and commentators should not attempt to discredit established legal processes.
Brian Lenihan TD, chairman of the all-party Oireachtas Committee on the Constitution, is a senior counsel.