Irish financial regulatory enforcement: reforming the criminal law and administrative sanction interplay strategy

The empirical genesis for this novel inter-disciplinary dissertation was the devastating global financial crisis. A separate and simultaneous Irish crisis was located in the banking sector. The financial market domain, based in its own unique set of norms, and replete with shifting risk concerns and a criminogenic nature, exceeded the authorisations and boundaries of the regulatory control domain with disastrous results. These crises revealed market actor conduct control issues including: questionable risk management practices; fraudulent behaviour; breaches of trust; business culture concerns; governance, control system and regulatory failure; business disclosure and transparency inadequacies; ethical concerns including conflicts of interest; and, ineffectual sanctioning. They presented as both opportunity and motivational driver for the public financial regulatory reform agenda, a socially significant issue. The chosen research lens was the financial regulatory police pairing of criminal and administrative sanctioning, where the prime research issue was coordinated interplay strategy reform, targeted to improve market actor compliance. Three shifting paradigms, those of the financial markets and their two financial regulatory coercive control components, the criminal law and regulation, are the backdrop to the research interrogation. Each paradigm reflects a discrete normative system, and post-crisis each has not settled and is still shifting. Historically, they simultaneously developed and cross-fed. Hobbes and his contemporary Locke theorised contractarianism; the rule of law; and, political autonomy which the state took up from the market and re-branded as laissez faire. For modern democracy, Habermas has recognised that autonomy is the normative key with restriction secondary. Polanyi has argued that restriction was a societal countermovement which established control autonomies, which themselves required constraint. Within public regulation, restriction is regulation, a synonym for coercive control, policing, enforcement and ultimately sanction. Because sanction lies across both the criminal law and regulation their interplay is a vital concern. Within this public regulation, connections were sought between the two coercive policing components, the criminal law and regulation, so as to interrogate their interplay. Because it was ideally suited to a reform or change context the Kuhnian paradigm was engaged to accomplish this. This analysis entailed an instrumental approach based around the norms or assumptions underpinning the coercive control paradigms within the market paradigm context. Thus, a modern normative theoretical framework was developed to test the connections which were found. The framework drew upon both regulatory norms and rule of law values. It was based in Dicey’s rule of law values conceptualisation, drew upon Packer’s control and due process values complex continuum, and employed both Macrory’s accountability and transparency regulatory norms, and Braithwaite’s values-driven regulatory enforcement pyramid. Within the over-arching autonomy and restriction tension, the three exemplar connective tissues identified for specific interrogation between Teubner’s two black boxes of control, the criminal law and regulation were: (harm) risk management, the values complex, and the offence/sanction dependent axis. Washing the normative theoretical framework through these connections identified the viability of a new enforcement system contained within an expert to expert regulatory contract, which re-balanced the autonomy and restriction dyad. It encompassed improved sanction capability, and promised improved compliance consistent with regulatory norms and rule of law values. A fused reform sanction interplay strategy consisting of various integrated parts was found to be viable. Irish financial regulation which pre-crisis failed to maximise the enforcement interplay, presented as an ideal case study for these reform proposals. Post-crisis, it was concluded that many international best practice standards which emerged from the analysis, were not operationalised in Ireland, while, the new regulatory contract model, and the sit-under fused interplay strategy, were equally not mobilised.