Friday, January 9, 2015

Legal and regulatory reform



Ireland suffers from a justice system with the following legal components;

  1. Common law;
  2. Consequences from a written constitution, which initially at least was partially a sectarian catholic document. Much of what passes for "legal reform" as of 2015 consists of attempts, often hamfisted like the 2013 abortion legislation, to reverse this ethos; ;
  3. Unconstrained use of resources by the state in civil proceedings, leading to enormous law firms and an elision of individual legal rights that is in violation of the 2005 ECHR Morris and Steee ruling

It also suffers from a smorgasboard of regulatory agencies, some private, some public. A list is appended. The civil service increases 15.5% in size from 2001 to 2008. Many of these staff not dealing with the public have no discernible function, and will be hard to dismiss even if negligent, with enormous pensions calculated historically from the moment of their retirement

Finally, despite all this, the country collapsed between 2008 and 2010 largely to a LACK of enforcement of regulations. The Financial_Regulator Neary famously handed out 7 billion euro to Anglo Irish bank, who knew that it was merely going to buy some time ahead of their inevitable collapse. Legal proceedings in the USA indicate that the CEO used this time to pocket several million for himself. Neary, who still has a very generous pension, was judged in court in Ireland to have directed officials of Anglo Irish bank to behave in a criminal manner.

The Office of the Director of Corporate Enforcement has taken no successful proceedings since its formation in 2001, with the High court rescinding what initially looked like a success. The DPP has failed to prosecute in the Anglo Irish and music copyright cases, with American litigation proving necessary, leading to questions about the necessity for the Irish state itself


It is not controversial to suggest, in the year following the “penalty points” revelations, that regulation has historically been abused politically to favour the friends of those in power.So what can be done? The answer lies in this writer's opinion in the fact that the game theory notion of “perfect information” is being approximated as smart phones colonize the citizenry; few indeed are those without some access to the internet, if only at the local library.

THE SOLUTION

Many Irish citizens have hard copies of documents they submitted to the relevant regulatory body, documents that were treated dismissively. A first step is to scan these and post them in a central site on the internet. Clearly, if the correspondence was done electronically, this posting is easier.

The second step is to allow entrepreneurial lawyers take cases - if necessary against the state and/or private regulators – based on these documents This will involve waiving the statute of limitations as has been proposed in Massachusetts for child sex abuse.

A third step is to dismiss civil servants who have been proved negligent and/or corrupt with a guilty verdict at trial seen as tantamount to a verdict in a disciplinary procedure. Such civil “servants” would lose their pensions if retired. Funds used for this initiative will be recoupable from this process.


At the end of a five-year period, it should become clear which of the agencies below are necessary It should also be clear whether private regulators like the law society can be trusted to continue and whether the state should intervene.

One example of how this might work out in practise may suffice The peculiar phrase “autonomous statutory responsibilities “ keeps coming up in reply to questions about the Irish universities both in the Dail (including questions from Joe Higgins) and as we've seen from civil servants. So they are responsibilities, but autonomous, so effectively not responsibilities; moreover this paradoxical state has been enshrined in statute.

The phrase does not occur at all in the 1997 act, and “independent” itself is NEVER used in this context but usually correctly refers to concerns about academic freedom. The section 25 referred to time and again by the “mandarins” bears no relation to autonomy, Far from being statutory, it is clear that a civil servant (originally Padraic Mellett of the HEA) invented this phrase to allow universities' management do whatever they wanted to staff, students and the taxpayer.

Ironically, the HEA is the body tasked with preventing precisely the grotesquely expensive legal processes on the 200's that cost the state 10's of millions. Clearly, either Mr Mellett should lose his job, pension and pay compensation if he was wrong. If he was right, he should lose his job as the HEA now has no role.

Sean O Nuallain PhD

Here is a list of regulatory bodies;

13
Database of Regulatory Bodies – List of Bodies
1. Department of Agriculture and Food
1.1 Department of Agriculture and Food
1.2
National Milk Agency
1.3
Veterinary Council
2. Department of Arts, Sport and Tourism
2.1 Department of Arts, Sport and Tourism
2.2
Fáilte Ireland
2.3
Horse Racing Ireland
2.4
Irish Greyhound Board/Bord na gCon
Private Bodies
2.5
The Turf Club - Office of the Governing Bodies
3. Department of Communications, Marine and Natura
l
Resources
3.1 Department of Communications, Marine and Natura
l Resources
3.2 Broadcasting Commission of Ireland
3.3 Commission for Communications Regulation
3.4 Commission for Energy Regulation
3.5 Sea-Fisheries Protection Authority
3.6
Fisheries Boards and Commissioners
3.6.1 Central Fisheries Board
3.6.2 Eastern Regional Fisheries Board
3.6.3 Northern Regional Fisheries Board
3.6.4 North-Western Regional Fisheries Board
3.6.5 River Moy Commissioners
3.6.6 Shannon Regional Fisheries Board
3.6.7 Southern Regional Fisheries Board
3.6.8 South-Western Regional Fisheries Board
3.6.9 Western Regional Fisheries Board
4. Department of Community, Rural and Gaeltacht Af
fairs
4.1 Department of Community, Rural and Gaeltacht Af
fairs
4.2
An Coimisinéir Teanga
4.3
The Commissioners of Charitable Donations and Beque
sts for Ireland
4.4
Waterways Ireland
5. Department of Defence
5.1 Department of Defence
6. Department of Education and Science
6.1
Department of Education and Science
6.2
FETAC: Further Education and Training Awards Counci
l
6.3
HEA – Higher Education Authority
6.4
HETAC: Higher Education and Training Awards Council
6.5
National Educational Welfare Board
6.6
National Qualifications Authority of Ireland
6.7
State Examinations Commission
6.8
The Teaching Council
14
7. Department of Enterprise, Trade and Employment
7.1 Department of Enterprise, Trade and Employment
7.2
Companies Registration Office
7.3
Competition Authority
7.4
Health and Safety Authority
7.5
Irish Auditing and Accounting Supervisory Authority
7.6
Irish National Accreditation Board
7.7
Irish Takeover Panel
7.8
Labour Court
7.9
National Consumer Agency
7.10
Office of the Director of Consumer Affairs
7.11
National Standards Authority of Ireland
7.12
Office of the Director of Corporate Enforcement
7.13
Office of the Registrar of Friendly Societies
7.14
Patents Office
8. Department of the Environment, Heritage and Loc
al
Government
8.1
Department of the Environment, Heritage and Local G
overnment
8.2
An Bord Pleanála
8.3
EPA – Environmental Protection Agency
8.4
Private Residential Tenancies Board
8.5
Radiological Protection Institute of Ireland
(
Local Government Authorities are listed separately
)
9. Department of Finance
9.1 Department of Finance
9.2
Central Bank and Financial Services Authority of Ir
eland
9.3
Commission for Public Service Appointments
9.4
Institute of Incorporated Public Accountants
9.5
Irish Stock Exchange
9.6
Irish Taxation Institute
9.7
Office of the Appeals Commissioners
9.8
Office of the Revenue Commissioners
9.9
Standards in Public Office Commission
9.10
The Financial Regulator
10 Department of Foreign Affairs
10.1 Department of Foreign Affairs
11. Department of Health and Children
11.1 Department of Health and Children
11.2 Adoption Authority of Ireland
11.3 Food Safety Authority of Ireland
11.4 Health Insurance Authority
11.5 Irish Medicines Board
11.6 Mental Health Commission
11.7 Pre-Hospital Emergency Care Council
rivate Bodies
11.8 An Bord Altranais/Irish Nursing Board
11.9 Dental Council
11.10 Medical Council
11.11 Opticians Board
11.12 Pharmaceutical Society of Ireland
15
12. Department of Justice, Equality and Law Reform
12.1
Department of Justice, Equality and Law Reform
12.2
Censorship of Publications Board
12.3
Dublin Carriage Office
12.4
Film Censor’s Office
12.5
Office of the Data Protection Commissioner
12.6
Office of the Refugee Applications Commissioner
12.7
Private Security Authority
Private Bodies
12.8
Bar Council
12.9
Law Society of Ireland
13. Department of Social and Family Affairs
13.1 Department of Social and Family Affairs
13.2 Pensions Board
14. Department of the Taoiseach
14.1 Department of the Taoiseach / Central Statisti
cs Office
15. Department of Transport
15.1
Department of Transport
15.2
Commission for Aviation Regulation
15.3
Commission for Taxi Regulation
15.4
Commissioners of Irish Lights
15.5
Córas Iompair Éireann
15.6
Irish Aviation Authority
15.7
National Roads Authority
15.8
Railway Procurement Agency
15.9
Railway Safety Commission
15.10
Road Safety Authority
16. Local Government Authorities


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