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Ireland: Regulatory powers of investigation

The Central Bank of Ireland (CBI) regulates the banking and finance industries in Ireland. It has a broad range of investigative powers to allow it to perform its supervisory and regulatory functions. These include the power to enter into and search premises, take copies of documents and obtain information in other ways. The legislation protects the right to legal professional privilege (LPP) enjoyed by a person who is the subject of the exercise of those powers. However, the legislation is otherwise generally silent on issues such as the right to privacy of personal information. The interaction of regulatory powers with the right to privacy in our digital age has been the subject of much discussion recently in Ireland.

Two decisions on regulatory investigative powers (each in a non-banking/financial services context) highlight a fundamental dilemma in Irish law. The first, in 2017, CRH v The Consumer Protection and Competition Commission, is a Supreme Court decision which held that competition law inspectors had no power to engage in a trawl of digital information which included private information not relevant to the investigation. It was held that the seizure of an entire email account was disproportionate and unlawful. The second, from 2016, D2 v Workplace Relations Commission, concerned an investigation into the alleged offence of failing to enter into pre-redundancy worker consultation by an insolvent employer. The applicant in that case challenged the ability of inspectors to seize information from a company which was not the relevant employer. The High Court judge held that all of these matters were to be left to the judge in charge of any criminal proceedings which might ensue arising from the redundancies.

The decisions are hard to reconcile. In the CRH case, the court was prepared to engage in a detailed analysis of the lawfulness of the investigation. In the D2 case, the court flatly refused to do so beyond a high level rationality analysis. While one expects more weight to be given to the decision of the Supreme Court, both cases highlight that aside from dealing with LPP, existing Irish legislation typically provides no mechanism for a continuing independent adjudication of relevance and proportionality – practical steps which the Supreme Court and the Court of Justice of the EU have both recommended.

John Breslin

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