Deputy Bruton covered quite a lot of territory in those questions. I am conscious he is a former Minister in the Department and probably knows more about some of these matters than I do. I will start towards the back of his questions.
Administrative sanctions, as I am sure the Deputy is aware, are in the nature of fines and so on. In our assessment, they are more suitable and akin to regulatory or supervisory-type bodies, and that is not what the ODCE is or does. We are not a supervisor or a regulator in the same way as, for example, the Central Bank is vis-à-vis financial institutions. Rather, we are an enforcement body. We do not have any particular burning desire to be conferred with administrative sanctions, to be short on that. I do not think they would necessarily make our lives easier or help us to be any more effective or efficient in what we do.
In terms of surge capacity, I can tell of the practical experience of having been served judicial review proceedings at very short notice. The surge capacity is that everybody rolls up their sleeves and gets stuck in, and we deal with it over the space of 48 or 72 hours in terms of trying to put together a response and a defence to it. As I touched on in response to Deputy O'Reilly's earlier questions, it is part of the job, is part of what we do and is part of the risks associated with what we do that we are always susceptible to judicial review.
Deputy Bruton touched on the question of whether there is the wherewithal to bring in additional people. Whereas there is, on occasion, the reality is that when dealing with something that is highly specialised, they are not necessarily going to be of enormous use to us, and we need people who are fully conversant with the granularity of the issues involved. We engage external counsel on an ongoing basis and we have a very competent team of internal counsel as well. That is primarily how we do it but, on occasion, we need to hire in additional resources and we do that as is required on a short-term basis, primarily in the form of professional third parties.
On the question of small companies versus large companies, as the Deputy will be aware, there are already fairly significant concessions to small companies. For example, they have a different reporting regime and they have the latitude, on occasion, to have audit exemptions and so on. That represents a fairly significant easing of the burden on small business and I know successive Governments in recent years have been very keen to try to reduce the administrative burden on smaller companies. Against that, at the upper end of the spectrum, there are listed companies that have to comply with the full range of Stock Exchange regulations, the combined code and so on. Is there scope for reducing smaller companies’ obligations? To be candid, it is not something we spend a lot of time thinking about and we do not have a strong policy view on it. We just get on with enforcing what comes across our desks. Given there are already very significant concessions in place for smaller companies, we would certainly not be aware, from our engagement with stakeholders, that there is any very strong, burning justification for a further reduction in that sphere.
The Deputy talked about having more powers. Again, what I would like to say is that we have very significant and substantial statutory powers and, for the most part, they serve us well on a day-to-day basis. I think it is important that the committee not be left with a perception that we are looking for significant additional powers. There are additional things we think would be useful and could render the corporate enforcement authority, CEA, more effective. I will give an example of that, which is that we made reference to the custody regulations.
The Office of the Director of Corporate Enforcement, ODCE, is comprised of both civilians and seconded gardaí and those gardaí are with us pursuant to a Government decision that was put in place at the same time as the Company Law Enforcement Act was enacted back in 2001. They carry with them all their powers as sworn members of An Garda Síochána, which gives us the wherewithal to arrest people and so on.
The issue that arises from our perspective is that when we arrest somebody for the purpose of questioning pursuant to the custody regulations, which are the responsibility of the member in charge who is detaining the individual in the relevant Garda station, under our legislative code, it is only members of An Garda Síochána who are permitted to interview the individual concerned. As to the type of work, we are looking at complex financial transactions and voluminous quantities of corporate documentation and, for example, digital forensics where we are dealing with devices and so on. It is, to put it mildly, suboptimal for staff to be sitting outside the room having to try to deal with the answers that have been given to the interviewing gardaí and then trying to formulate supplementary questions arising from those answers, and doing all that in real time. We are up against the clock from the time the individual is detained because there are constraints on the length of time an individual can be detained. They are entitled to rest periods and so on and all of that eats into one's time. If we want to put a significant number of charges to an arrested person, we have to question that person in respect of each charge separately so we very quickly run through the time.
What we are proposing is akin to what the Criminal Assets Bureau and also the Competition and Consumer Protection Commission, CCPC, have in respect of certain matters, namely, that non-gardaí - in this instance, officers of the ODCE, civilian officers, be they accountants, digital forensic specialists or whatever - would be allowed, under the custody regulations, to participate in those interviews and bring the additional expertise to bear. That is not for a moment to suggest that our Garda colleagues do not do that but obviously there are limits to anyone's special expertise. We believe that would confer, as it has done elsewhere, significant additional efficiency and effectiveness benefits and dividends on us in terms of the value we can get from a suspect interview.
Deputy Bruton referred to the financial crisis and so on. He will have been closer to this than I was, but one of the unpalatable issues that arose from that was that certain of the activities that gave rise to where we ended up, for example, mismanagement of the financial institution, taking unnecessary risks or not understanding the risks being taken, do not necessarily constitute criminal behaviour. While they give rise to competency issues, that is a different matter. The ODCE, with a mandate for company law, was only able to investigate certain issues that on their face would appear to have constituted breaches of company law, and it did that. As a former Minister, the Deputy knows that the ODCE, having submitted files to the Director of Public Prosecutions, DPP, subsequently secured a number of criminal convictions on indictment in respect of certain of those matters. To answer his question as to whether the Companies Act 2014 has addressed that issue, the Companies Act 2014 was not really the problem in the first place in that to any extent that other activity that might have been perceived to be, or could have constituted, criminal activity resided in other statutes, be that Central Bank legislation or various other codes of legislation. I am not an expert and I am not in a position to speak to the amendments that have been made to those various codes of statute in the interim. However, I am conscious that the Law Reform Commission, in its report a couple of years ago, recommended the creation of a new offence of egregiously reckless risk-taking which, if memory serves, was consequent upon a recommendation made by a former Governor of the Central Bank. I am aware that a recommendation was made that this would not fall within company law but, rather, would fall to be legislated elsewhere. I am not the best person to speak about where that is at or the potential impact it might have on other regulatory bodies. I think that answers all the questions the Deputy posed.
