The Irish Law on Protecting Sources: Can it apply to the Anglo Tapes?

THE LAW

Bunreacht na hEireann

Article 40.6.1.

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of State.

Cases mentioned

Cornec v. Morrice (and ors.) [2012] IEHC 376

Walsh v. News Group Newspapers [2012] IEHC 353

JOURNALISTIC PRIVELEGE: AN OVERVIEW

When I speak of journalistic privilege, it ought to be clear that I refer to the protection of the work undertaken by journalists in the dissemination and publication of that information which is pertinent to public awareness. There is no automatic ‘immunity’ from prosecution for individual journalists.

The fact that journalistic privilege exists is indisputed, and I refer you back to Article 40.6.1. of the Constitution without much need for elaboration.

The reason for journalistic privilege in the Constitution is more interesting.

The essential reason was eloquently described by Hogan J in Cornec, where he identified the importance of the informative role of the media in enabling public debate.

If journalism and the media did not enjoy at least a general protectuion in respect of their sources, robust political debate – a sine qua non in any democratic society – would be still born. Only the naïve would suggest otherwise.

Judge Hogan went on to clarify that journalistic privilege also applies to media sources, and in fact also applies to cover what it was those sources actually said. This establishes quite a broad protection for journalistic activity under the Irish Constitition.

Of course, journalistic privilege may also be inferred from Article 10 of the European Convention on Human Rights.

To that effect, the crucial role of the free press was recently affirmed in Sanoma Uitevers BV v. Netherlands [2011], and most emphatically affirmed in Goodwin v. UK [1996], although it is fair to say that the Convention is not quite so explicit in its protection of the press as Article 40.6.1. of our Constitution.

JOURNALISTIC PRIVILEGE: THE EXCEPTIONS

If Hogan J’s ruling in Cornec is a broad and expansive interpretation of journalistic privileges, the Walsh v. News Group [2012] is more limited. Here, counsel for Louis Walsh sought discovery of documents in connection with Louis Walsh’s defamation action against Leonard Watters, after the latter falsely claimed to have been sexually assaulted by Walsh in a well known Dublin night club.

Here, O’Neill J remarked:

“Whilst journalistic privilege is there to protect the proper functioning of journalism, the allegations made by the plaintiff … could well merit the description of improper journalism”

He went on to hold that the disclosure of confidential information by a member of the Gardaí would be likely to be in contravention of s.62 of the Garda Act, 2005, and therefore,

“…as the activity impugned here is undoubtedly a criminal offence, journalistic privilege could not be availed of to shelter such activity.

Article 10(2) of the European Convention on Human Rights expressly recites the “prevention of disorder or crime” as a basis upon which a measure, necessary in a democratic society, which interfered with the normal freedom of the media, would be justified. 

The overwhelming public interest in the detection and prosecution of crime would,  in these circumstances, outweigh the public interest in the proper functioning of journalism, and hence, journalistic privilege could not apply in these circumstances.“

The qualification provided in Article 10(2) ECHR is mirrored by the qualification set down in Article 40.6.1. of Bunreacht na hEireann, where it is provided that however important a free media may be, the media may not be used to undermine public order, and this infers that the interests of criminal justice take precedence over journalistic privilege.

CONCLUSION

To summarise, media case law has revealed two important exceptions to journalistic privilege

1. Where the activity impugned is a criminal offence

2. Where there are over-riding concerns relating to public order, or the prevention of crime.

Given these qualifications, there is no doubt in my mind that there is no possibility of journalistic privilege if it emerges that the person who leaked the Anglo Tapes is a member of An Garda Síochána. This person would have undoubtedly breached s.62 of the Garda Act 2005, and therefore have committed a criminal offence.

The argument may further be made that this individual has endangered the public interest in the detection and prosecution of crime, and therefore cannot be protected (even if Ireland had enacted legislation to protect whistleblowers) because of the Constitutional provision on public order.

Despite my long epistle, these are not extraordinarily complex matters; the legal situation has been recently and clearly elucidated by these two High Court judgements.

Therefore, we cannot assume naivety on behalf of the individual in question, nor the journalists with whom he co-operated. In my opinion, they must have been aware of the lack of journalistic privilege, and if Anglo Tapes came from a Garda, that Garda has embarked on a particularly brave undertaking.

Slack employee contracts catching up with NAMA?

Senator Lorraine Higgins (LAB) made quite an interesting statement to Seanad Eireann today, which appears to indicate some blatant lack of foresight at the National Asset Management Agency in respect of any restrictions NAMA places on its employees' private sector activities.

Here is the Seanad transcript of Senator Higgins's contribution (these things can take a while to appear on Oireachtas.ie). I suggest you read the transcript below in full to get a complete understanding of the Senator's concern. Unfortunately I didn't manage to capture Minister Noonan's response, which was not particularly illuminating anyway.

Although there is no legal barrier to repeating [H]'s name, I have decided to clip it out of the transcript. However, the property company that [H] has moved to, as well as the name of another individual who has been the subject of a court action are both left intact.

_____________________

Leas Cathaoirleach: I now call on Senator Lorraine Higgins to move your motion

Senator Higgins: Thank you a Leas Cathaoirleach. Minister I would like to thank you for taking this matter on the adjournment here this evening, relating to the need for you to outline the protocols, or contract stipulations, if any, that are in place to stop NAMA employees, or NAMA former employees, from moving into the private sector immediately following their employment with the agency.

This matter has come to national attention in recent times as a result of news emerging that a senior official at NAMA, who was responsible for managing some of its biggest and most indebted borrowers had taken a new job with a London based property investment firm just weeks after leaving his position with the agency. I feel to have a senior NAMA official ending up in a private property company raises serious questions about the judgement of the NAMA Board's policy in allowing this to happen in the first place. And I suppose it shows a potential disregard as well to the Irish taxpayers, for whom NAMA was set up in order to acquire the best returns on those assets transferred from Ireland's bad banks. These are the same bad banks that the Irish taxpayer bailed out.

The complex that is emerging here between the individual and the well-being of the Irish taxpayer and the state is that [H], as a Partner of Prime London Partners, brings a huge benefit to this firm. In his prior incarnation in NAMA, he would have had vast knowledge of those properties on the NAMA loan book, the valuation of those properties, and outstanding loans on them also.  He would also know the 'best buy' so to speak. But he also brings with him a network of people within NAMA, with whom he has worked.

Many of my fears were confirmed by the Irish Times article of Friday May 3rd, 2013, where it was stated that a Senior Asset Recovery Manager, [H], who has just left NAMA to join a UK fund that wants to expand its Irish interest, and yet we as a State have no price on this - no contract stipulation, I understand - and no provision at all in any contractual arrangement between an employee and the employer, being NAMA. Minister, this latest scandal to envelop NAMA comes on the back of another employee, Enda Farrell, who forwarded 29 e-mails to his wife's email accound, and 15 e-mails to a property investment company, which were understood to contain details of every property owned by NAMA. Co-incidentally this property company then employed Mr. Farrell.

There's something wrong happening within this agency, and I think something has to be done now. These actions are having the potential to significantly undermine NAMA's ability to recover the optimum amount for their assets, and in turn, for the Irish tax-payer. More disturbingly, Minister, there has been an attempt by [H] to silence me on this issue, and to bully me into submission, in that on Monday --

Leas Cathaoirleach: Senator, you shouldn't name people in the house who are not here --

Senator Higgins: I won't name [H] again --

Leas Cathaoirleach: That's a bit cynical --

Senator Higgins:  -- but he did try to bully me into submission. On Monday morning I discovered a message from him on my voicemail, where he called my office asking me to remove what he described as a highly offensive statement on my website, regarding my earlier submission on this issue to Seanad Eireann. He indicated that he would take legal action against me, given the insinuations I was making. I want to make it very clear. I am making absolutely no insinuation. I am merely trying to protect the Irish taxpayer from possible improper actions by former employees of NAMA.

Minister, I want to make it very clear that I accept people have a right to earn a livelihood, to move on, and to take up new employment elsewhere as they deem fit and as job opportunities arise. But, to allowed do this immediately with the kind of commercially sensitive information we speak of, or to use this information as a means of securing a position is quite simply beyond reproach. In all the cirumstances of this particular matter - and these are only two of which I know - I am now calling on you to ensure that there is an immediate review of all existing contracts for senior officials undertaken to ensure that employees are prohibited from taking up positions of employment in any property based company for a minimum of a year following their employment in NAMA, and that all employees of the agency sign confidentiality agreements.

It is common practice in most jobs and of this status and description that a non-compete and confidentiality clause would be inserted into a contract  which would prohinit an employee for a period of time from taking up a similar post in a rival firm, or speaking of the information garnered in their prior position. All I am saying is that we do need, as a state, to protect the family silver of Ireland. We cannot have practices like this being facilitated by the State. And we need to put an end to it now. Thank you.

___________________

It's worth noting that the Minister for Finance did respond by pointing out that NAMA employees are subject to a number of statutes in respect of maintaining confidentiality, namely  s.14 of the National Treasury Management Agency Act (1990) which prohibits an employee from disclosing any information obtained while carrying out their duty as employees of NAMA.
The Minister added that NAMA employees are similarly bound by ss.99 and 202 of the NAMA Act (2009), as well as the Official Secrets Act, which binds the civil service to confidentiality more generally.

Nevertheless, that neither NAMA nor the NTMA considered it necessary to insert a non-compete clause (CNC) into well-paid senior management contracts is quite incredible.

It is true that these CNCs are often difficult to enforce in Ireland, but only when they are absolute in their restrictions [Net Affinity v. Conaghan [2011] IEHC].

A company, or an agency of Government, has a perfectly legitimate interest in protecting its commercially sensitive information - especially when that agency manages one of the largest property portfolios in the world, acquired at enormous cost and hardship to the Irish public.

This matter is probably the most serious dereliction of responsibility that has come to light in respect of NAMA.

I'm sure there is more to come.

That Is No Country For Small Children

...The young
In one another's arms, birds in the trees
 - Those dying generations - at their song

Last February I wrote about a Eurostat report which shows that Irish children suffer some of the highest risk of poverty in the European Union.

More stark figures from the European Commission in its most recent assessment report on Ireland.

Highlighted for emphasis. What more is there to say?

Margaret Thatcher was right about the Euro, but for all the wrong reasons.

One of more quaint claims of both Thatcher's flattering and critical obituaries is that "Thatcher was right about Europe".

It is true that Margaret Thatcher had an unremittingly negative attitude toward any European integration that went beyond free trade and competitive markets.

Today, many historians look to Thatcher's infamous 'Bruges speech' as laying down the basis of her opposition to  European integration and monetary confederation. In it, Thatcher said:

My first guiding principle is this: willing and active cooperation between independent sovereign states is the best way to build a successful European Community.
To try to suppress nationhood and concentrate power at the centre of a European conglomerate would be highly damaging and would jeopardise the objectives we seek to achieve.

...it is ironic that just when those countries such as the Soviet Union, which have tried to run everything from the centre, are learning that success depends on dispersing power and decisions away from the centre, there are some in the Community who seem to want to move in the opposite direction.
We have not successfully rolled back the frontiers of the state in Britain, only to see them re-imposed at a European level with a European super-state exercising a new dominance from Brussels.
Certainly we want to see Europe more united and with a greater sense of common purpose.
But it must be in a way which preserves the different traditions, parliamentary powers and sense of national pride in one's own country; for these have been the source of Europe's vitality through the centuries. 

As you can observe from this speech, Thatcher's opposition to European integration and currency union was one based on nationalism above European unionism. Admittedly, as an Irishman, I make that obsercation with some mischievous delight, but it is an important feature of Thatcher's vision for the EEC, and her opposition to EMU.

Nobody has suggested that Thatcher's opposition to EMU was based on the economic factors which have toppled various Eurozone economies and at times seemed to threaten the future of the currency itself.

That is to say, it was Thatchr's sentimental attachment to the Pound Sterling (as opposed to any insightful economic worries about switching off the devaluation mechanism) which informed Thatcher's opinions on Britain and EMU.

Her diatribes on Germany struck a xenophobic chord, frequently invoking the two world wars and her criticisms of the German character. But nowhere did she express any economic concerns in relation to the convergence of sovereign interest rate spreads and the lack of any robust mechanism to challenge irresponsible Government borrowing within the bloc.

If anything, Thatcher's sentiments as expressed at Bruges and elsewhere would have wholeheartedly been in favour of preserving national responsibility for banking, economic and fiscal policy. 

Nobody would have been as opposed to the idea of Eurozone bailouts and risk sharing tools like Eurobonds as Thatcher herself. 

It is this mindset of sovereign individualism, championed by Thatcher at Bruges, that has been at the heart of the Eurozone's ongoing sovereign and banking crisis. 

Indeed, today, it is Thatcher's beloved policies of supply side reforms, austerity, and controlling inflation which inform institutional responses to the Eurozone crisis.

Lets not kid ourselves on Thatcher's European legacy. She may have kept Britain out of the Eurozone, but she did so for some half baked, shoddy reasons that had nothing to do with sound economic policy.

Moody's were right to keep Irish 'junk' rating.

Nobody should be surprised by Moody's decision to maintain Ireland's Ba1 Junk Rating, which was largely taken on foot of the very vulnerable Irish banking sector.

In a press statement, Moody's said:

The first driver underlying Moody's decision to maintain a negative outlook on Ireland's Ba1 sovereign rating is the country's susceptibility to euro-area-related event risk because of its very high debt levels and ongoing asset quality issues affecting its banking system. Such risks were most recently evidenced by the EU's unprecedented decision to fund Cyprus's financial rescue by imposing a levy on bank deposits above a certain size. The move has significantly heightened fears surrounding the safety of bank deposits in other European systems. 

Although it now appears that the danger of a Cypriot bank-run and further destabilisation of the European banking system appears to have been over-stated, a very real fragility remains in the Eurosystem.

Indeed, nowhere else in the Eurozone is this more apparent than Ireland, whose banking system more closely resembles the Cypriot system than any other member of the bloc.

That is to say, the size of the banking sector in Ireland is 800% of GDP. The current public debt is at about 120% of GDP, so there is no fiscal leeway in the event of a further recapitalisation being required. And no, it is not beyond the realms of possibility that another recapitalisation will be required - Pether Matthews puts this figure at €30 billion.

If that were to be the case, it could pose serious problems for the Irish financial system, since the Government only has about €10 billion remaining in the EU-IMF kitty for use in the banking system. The shortfall would have to come from somewhere, and it would be extremely difficult, if not electorally fatal, to attempt to return to the taxpayer for it.

Although Jeroen Dijsselbloem's comments about Cyprus being a 'template' for future bank recapitalisations went without a great deal of engaged comment in Irish media, it could have stark relevance to deposit holders in Irish retail banks in the event of Matthew's €30 billion figure being accurate.

Critics of my arguably pessimistic attitude will point out that the Irish banking sector has over €80 billion in debt securities, which would rank higher than deposits in the event of a recapitalisation.

In actual fact, Irish law does not give depositors precedence over other senior unsecured liabilities. There would be a far more serious scope for legal challenge than there was in Cyprus's case, where only 1% of liabilities in Cypriot banks consisted of marketable debt.

Furthermore, because the Cypriot banks contained only 1% marketable debt, hitting their debt securities was a pithy gesture with no meaningful resonance. As such, it does not prove that the EU Commission and the Eurogroup have deviated from their heretofore position of unwillingness in burning senior bondholders.

It remains to be seen whether they would not rather to 'spread the pain' by sharing the burden between deposiors and senior bondholders in Ireland who are not covered under the Deposit Guarantee Scheme.

After all, what's another levy?

No evidence of money laundering in Cypriot banks

There is widespread media acceptance that large Russian deposits in Cypriot banks indicate that Cyprus is a haven for Russian money laundering activities.

But how much do the facts support this theory?

Cyprus has been a member of the European Union since 2004 and a member of the Eurozone since 2008. It was admitted to the Eurozone after three successive, detailed evaluations of money laundering were carried out by none other than the Moneyval Committee of the Council of Europe.

The fourth report, in 2011, made findings which are totally at odds with recent media reporting.

This report found that money laundering is indeed criminalised in line with the most widely accepted international standards (FATF). As well as its own anti-money laundering legislation, Cyprus has transposed all relevant EU legislation in this regard.

While it made recommendations for increased diligence in the non-banking sector, the EU report was glowing in its praise for the Cypriot banking system.

According to the Moneyval Committee, there are no secrecy laws governing financial institutions which inhibit the implementations of the international standards against money laundering, unlike, say in Austria or Switzerland.

Furthermore, banks in Cyprus show a high degree of awareness of their responsibilities to combat money laundering, with banks going over and above the record keeping standards set out in law. Banks are prohibited from maintaining anonymous or numbered bank accounts like, again, in Austria or Switzerland.

Indeed, Beneficial ownership of capital is determined by stricter rules than set out in EU legislation.

Overall, the report said, the banking system is adequately monitored and the supervisory authorities are fully resourced to supervise compliance and carry out inspections.

Moreover, the Cypriot anti-money laundering agency, is "adequately performing its role as a key player in the [anti money laundering] system.

But there's more.

Not only are financial institutions in Cyprus compliant working to combat money laundering activities, Moneyval actually judges them to be more compliant than, say, Germany. (click to enlarge)

click to enlarge

The Ministry of Finance in Cyprus puts the difficulty of placing 'dirty money' into the Cypriot economy down to a number of factors. For example, unlike many of its mediterranean neighbours, there are no bureaux de changes or casinos on the island.

As elsewhere, but especially in a Mediterranean resort like Cyprus, the property industry can seem to represent an attractive money laundering proposition. This may be a cause for concern, but it doesn't involve the banking sector, and furthermore Cyprus in quite unique in restricting foreign ownership of property except to EU citizens.

Well that challenges the money laundering allegations, but why is the Cypriot financial services sector so large?

Well, that can be explained by a number of reasons, but its wide network of arrangements with other countries for the avoidance of double-taxation is significant, as is low corporation tax, in fact the lowest in the European Union.
The abolition of offshore status for brass plate companies and its geographic location on the edge of the EU are also attractive.

The financial services industry is important to Cyprus's economy and so their Government's desire to protect it is convincing.

However, whatever the eventual outcome of crisis negotiations with the Troika, one vital piece of reading for EU leaders should be their very own report into money laundering in Cyprus.

Link to report in English

Bank closures represent Cypriot capital controls: but are they legal?

1: LEGAL BACKGROUND

In 1958, the Treaty of Rome established four European freedoms which have remained fundamental principles of the European Single Market. They were freedom of movement for people, freedom of movement for services, freedom of movement for goods, and the freedom of movement of capital.

The freedom of movement of capital within the European Community was fully liberalised in 1990, and together with the provisions of the Treaty of Rome, has evolved into Article 63 of the TFEU.

It states:

1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.

Sound like an unusually broad and sweeping freedom? Yes, of course; there is more.

Article 65.1(b) of the Treaties qualifies this freedom by limiting the free of movement of capital "on grounds of public policy or public security".

So what exactly constitutes a public policy need or public security need? That is difficult to answer, although the article does say that the limit must not be discriminatory to any one individual or group, and it must not merely be disguised as being in the interests of public policy.

We do know from a ruling of the CJEU (European Commission v Italy) that the freedom of movement of capital may simply be restricted by 'over-riding public interest grounds'.

The CJEU expanded on this in European Commission v The Netherlands by noting a condition that the public interest cannot be met by other Community harmonising measures.
While adding that the Member State in question must act with proportionality in mind, the CJEU further stated

...it is in principle for the Member States to decide on the degree of protection which they wish to afford to such legitimate interests and on the way in which that protection is to be achieved. (paragraph 33)

and, significantly,

...the Court acknowledges that the guarantee of a service of general interest, such as universal postal service, may constitute an overriding reason in the general interest capable of justifying an obstacle to the free movement of capital  

2: THE APPLICATION OF EUROPEAN LAW TO CAPITAL CONTROLS IN CYPRUS  

The purpose of the existing capital controls in Cyprus were, initially, to execute a levy on all deposits in the Cypriot financial system, under the terms of a programme agreement between the European authorities, the IMF, and the Cypriot authorities. Under this agreement, Cyprus was required to meet a multi billion euro revenue shortfall via its financial system.

The capital controls first came into place on the 16th of March 2013. After this levy was rejected by the Cypriot Parliament, the capital controls remained in place. As of today, they are anticipated to remain in place until at least the 26th of March 2013. 

In order to determine the present legality of these capital controls under European Law, it is necessary to determine to present justification. 

According to media reports and indications made by Cypriot politicians, the controls exist to prevent a deleterious depletion (or, a 'run') on the reserves of the Cypriot financial institutions until a solution is found to a sovereign funding crisis.

Therefore, in keeping with Article 65.1(b), there is a prima facie urgent public policy need for capital controls. 

Moreover, since this control relates not only to sovereign funding, but the provision of an essential public service in the long term (i.e. an operational banking sector), then the capital controls also appear to satisfy the requirement of protecting a service in the general interest. 

In conclusion, although the capital controls are seriously unpalatable in the short term, it appears unlikely that the limits to the freedom of movement of capital have been met in this instance. 

The only problematic issue for the Cypriot Government may be any further delay of reinstating capital movements leading to a further detrimental impact on the welfare of the Cypriot people, whereby the issue of proportionality will begin to arise.