By Séamus Maye.
Just when it seemed that the Ansbacher scandal had receded into the distant past, up pops Gerard Ryan, a respected civil servant with an explosive dossier. Ryan’s revelations and indeed frustrations, go to the very core of what has passed for Irish politics and institutional regulation for several decades now.
The suppression of the Ryan dossier further exposes a reprehensible culture of tolerance of white-collar crime and the clubby and corrosive relationship between big business and politics. This rampant culture underpinned Ireland’s socio-economic collapse and inspires the current unprecedented level of dissatisfaction with establishment parties.
Ansbacher facilitated the wealthiest in evading tax. In the early years, the Central Bank rumbled Ansbacher and concluded in a 2002 report that the accounts were created to facilitate tax evasion, though subsequently senior Central Bank lackeys changed the wording in its report from tax evasion to tax avoidance. Despite the Central Bank holding talks with Des Traynor in regard to the cessation of the illegal scheme, it was allowed to operate for another two bold decades.
In September 1999, the then Tánaiste, Mary Harney, gave the following excuse for not publishing the Ansbacher names. “If the Government were to break the law and publish the names, everybody on the list would walk free and prosecutions would not be brought”.
So, who were the great and privileged?
For starters, Ansbacher was run from the offices of Ireland’s largest company, CRH Plc. The CRH Chairman Des Traynor dominated Ansbacher in tandem with acting as Charles J Haughey’s financial advisor.
Eight of fifteen CRH Plc directors held Ansbacher accounts. One director, Jim Culliton, was chairman of the RTé Authority and also a director of Allied Irish Bank. Another CRH director, Michael Dargan, was CEO of Aer Lingus. Yet another director, Tony Barry, held a longstanding directorship of Bank of Ireland and was Deputy Governor from 1997-2000. The connection with CRH has never really been expurgated.
The Ansbacher inspectors had this to say about CRH’s involvement with Ansbacher: “The Inspectors are struck by the range of activities carried out on CRH premises and making use of the CRH facilities. Mr Traynor’s activities bore all the hallmarks of banking and he carried out these activities in CRH for almost six years. The range and duration of the activities is suggestive, but no more than that, of the idea that CRH was actually aware of Mr Traynor’s conduct”.
It proceeded: “The Inspectors are satisfied that CRH did in fact assist Ansbacher in the carrying out of its business in the manner described above. The question arises however as to whether or not CRH may be said to have done so knowingly or unknowingly. The Inspectors have already concluded that there is evidence tending to show that Ansbacher was guilty of the criminal offence of carrying on unlicensed banking business within the State contrary to the Central Bank Act, 1971 and the Central Bank Act, 1989.
If the Inspectors conclude that CRH knowingly assisted Ansbacher in the carrying out of its business in Ireland then there would be evidence tending to show that CRH was also guilty of the criminal offence of carrying on an unlicensed banking business within the State by virtue of having aided and abetted Ansbacher to do so. One who aids and abets, by virtue of Section 8 of the Accessories and Abettors Act, 1861 and Section 7(1) of the Criminal Law Act, 1997 is to be treated as a principal offender.
The Inspectors will consider therefore the evidence suggestive of knowing assistance and the evidence suggestive of unwitting assistance”.
In the event, the inspectors found that CRH did not knowingly assist Ansbacher. On any objective perusal, this was an astonishing finding, given all of the circumstances, the effect of which was to let CRH off the hook in relation to criminal charges, which would have had serious implications for its stock exchange status and indeed for its directors and shareholders.
CRH has also been the beneficiary of an extraordinary catalogue of failures to act, by a range of State institutions including the ODCE, Moriarty Tribunal, Garda Síochána, Competition Authority and Revenue Commissioners. Over the years this failure to act has turned into outright protection.
In February 2000, Mary Harney gave an undertaking that the authorities would carry out a comprehensive investigation into anti-competitive practices at CRH, but this has never happened. Patrick Massey, then head of the Competition Authority, resigned his position that very same month stating: “it is no longer possible for me to continue as director of competition enforcement due to the failure to provide adequate resources to enable me to do the job properly. My experience has convinced me that price-fixing cartels represent a serious widespread problem in this country…the resources available are wholly inadequate for carrying out the sort of complex and highly intensive investigations that are required to obtain evidence”. Massey went on to say, “certain complaints made to me in recent months involve matters that would occupy four or five staff full-time for the best part of a year. I simply do not have such staff resources and given the very real concerns expressed to me by the complainants as to the consequences for them if the matter is not pursued properly, I have concluded that it is simply not possible to pursue the matter”.
Court challenges have proved gruelling. The ‘Framus’ proceedings began in 1996 and there is still no end in sight. Goode Concrete initiated proceedings in 2010. That’s twenty-two years of aggregated litigation with hardly a blow landed.
Both sets of proceedings allege a web of competition law breaches, most of which run parallel to findings made by the EU Commission and subsequently upheld by the EU Court of First Instance and the European Court of Justice.
The proceedings continue to founder on a sea of relentless procedural delay and legal costs. At present, both plaintiff parties are locked in procedural combat over allegations of objective bias on the part of retired Judge John Cooke who it is alleged in one case made a misleading disclosure and in the other case failed to make any disclosure whatsoever concerning a €135k shareholding in CRH.
Elsewhere, CRH was fined by the European Commission for its lead role in the European cement cartel in 1994. It was more recently fined €530k in Poland (2007) for obstructing a cartel investigation which eventually saw a €26m fine imposed.
At the time, CRH stated that it viewed the fine as a matter of serious concern but had been advised that it had valid grounds of appeal. The fine was subsequently upheld in its entirety. In May of this year, CRH was informed that it was to be fined €95m for its role in a bathroom fixtures and fittings cartel in Switzerland. It awaits a final decision.
To put some perspective on the enormity of the Ansbacher fraud and the implications of the now alleged whitewash, in 1999 civil servant Paul Appleby stated in his High Court affidavit:- “The Ansbacher fraud would not have been possible without the active collusion of a wider group of bankers, solicitors and accountants”. At the time, Fintan O’Toole wrote in the Irish Times: “from the early eighties onwards, a large swathe of Ireland’s ruling elite silently withdrew its allegiance from the State” and that “organised crime in Ireland, which we used to imagine as the preserve of shifty working-class men with names like the General, the Penguin and the Monk, is also carried on by respectable, beautifully tailored members of the upper middle class”.
Fast forward fifteen years. There hasn’t been one prosecution over the Ansbacher affair. It appears from newspaper reports that Mary Harney got cold feet and attempted to close down the investigation. Micheál Martin hides behind the fact that the files were given to “relevant authorities”. Richard Bruton sat on the dossier until Ryan’s patience snapped, and the Minister only finally forwarded it to Gardaí on 11 November, after the Government blamed “a delay in the system” for not sending it sooner.
It may be that there is evidence of criminality in Ryan’s dossier. Section 19 of the Criminal Justice Act 2011 states: “A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in b) securing the apprehension, prosecution or conviction of any other person for a relevant offence and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána”.
The cabal of independent “relevant authorities” (Gardaí, Revenue Commissioners, ODCE, Moriarty Tribunal (and perhaps the Mahon Tribunal) and the Competition Authority give the appearance that Ireland has an efficient and effective regulatory and enforcement regime. However, when it comes to white-collar wrongdoing, there have been few meaningful investigations, no charges and no custodial sentences. In the case of Ansbacher, a number of Ministers and indeed the legal profession have done little to expedite the investigation which would have died without the zeal of Gerard Ryan. The problem is a culture of deference and a police force that depends for preference on political decisions.
Much has been written about “sinister elements” hijacking protest agendas. There has been little discussion about the sinister elements that have ensured that “relevant authorities” are neutralised and democracy replaced with olligocratic kleptophilia. Some, though by no means all, of the protagonists in investigating Ansbacher seem instead of focusing on bringing criminality to book to have constructed a vipers’ nest of obfuscation and obtuseness.
An investigation led by an outsider should be instigated not just into Ansbacher but into the apparent whitewash by the agencies of state, across the range. •