Cassandra Voices

Tag: Regulatory Capture

  • Welcome to the Jungle

    Not since Byron awoke one morning to find himself famous has there been such an example of world-wide celebrity won in a day by a book as has come to Upton Sinclair.
    The New York Evening World    , 1906.

    Perhaps others, better acquainted with the genre, may argue to the contrary, but Upton Sinclair’s 1906 novel The Jungle is surely a contender as the Great American Novel. Though far from an ideological bedfellow, Winston Churchill nonetheless wrote admiringly that Sinclair had marshalled his forces like the general of an army on the attack.[i]

    That the work is not better known today is probably on account of the butcher’s blade it takes to the American Dream, and the presentation of an alternative vision for humanity. Thus, Socialism is described as ‘the new religion of humanity – or you might say it was the fulfilment of the old religion, since it implied but the literal application of all the teachings of Christ (p.346)’.

    The Jungle is generally credited with the swift passage of the Pure Food and Drug Act in June 1906 – eventually leading to the creation of the FDA – after laying bare to the American public the unsanitary practices of the Beef Trust in Chicago’s Packingtown.

    Notably, however, action was only taken when the health of the US population at large seemed at stake. Sinclair claimed the “embalmed beef” scandal ‘killed several times as many soldiers as all the bullets of the Spaniards(p.105)’ in the war of 1898.

    The Act did not, however, address the frightful working conditions of mainly immigrant workers in the meat packing industry; let alone the millions of animals subjected to industrial slaughter. Moreover, in certain respects, the industrial food system is now more disturbing than ever, while the FDA has long been subject to Regulatory Capture.

    At least we have The Jungle to remind us of ongoing fraudulent misrepresentations:

    The storekeepers plastered up their windows with all sorts of lies to entice you; the very fences of the wayside, the lamp-posts and telegraph-poles, were pasted with lies. The great corporation which employed you lied to you, and lied to the whole country – from top to bottom it was nothing but one gigantic lie(p.82).

    A Time of Hope

    The opening chapter introduces an unlikely hero, Jurgis Rudkus – ‘he with the mighty shoulders and the giant hands (p.4)’ who is ‘the sort of man the bosses like to get hold of(p.23)’ – a recent Lithuanian immigrant to ‘Packingtown’, Chicago, along with an extended family group, who are being ground down by unrelenting work and squalid conditions.

    In spite of abject poverty the family nonetheless insists on a proper occasion for Jurgis’s wedding to his beloved Ona: ‘these poor people have given up everything else; but to this they cling with all the power of their souls – they cannot give up the veselija(p.15).’

    At that point, still imbued with optimism, Jurgis’s response to any of the multiple challenges he confronts is to shrug his broad shoulders and say he will just have to work harder. It makes him an early model for Boxer in George Orwell’s Animal Farm. His love for Ona – recalling in certain respects Odysseus’s journey towards Penelope – means he resists the lure of the saloons, which most workers frequent.

    But in a pedagogic aside – after the family are confronted with a higher than expected bill for the wedding – Sinclair intimates that the brutal nature of the work in Packingtown erodes moral as well as physical beings: ‘for men who have to crack the heads of an animal all day seem to get into the habit, and to practice it on their friends, and even on their families.(p.20)’

    At the time about ten thousand head of cattle and as many hogs and half as many sheep were disposed of every day, amounting to eight to ten million live creatures turned into food every year.

    It was ‘the greatest aggregation of labor and capital ever gathered in one place’, employing thirty thousand men, supporting directly two hundred and fifty thousand people in it neighbourhood, and indirectly half million, and ‘furnished the food for no less than thirty million people(p.45)’ – or at least whatever could be passed off as such.

    Speeding up the Gang

    In what is a distressing account, the reader is introduced to a succession of despicable practices that drain away human life by degrees, while imperilling consumer health. One such is “speeding up the gang”, where a foremen alternates picked men to set up a hectic pace ‘and if any man could not keep up with the pace, there were hundreds outside begging to try(p.63)’.

    As he works, Jurgis finds numerous examples of shoddy corruption. Thus, a good many so-called “slunk” calves turned up every day:

    Any man who knows anything about butchering knows that the flesh of a cow that is about to calve, or has just calved, is not fit for food … if they had chosen, it would have been an easy matter for the packers to keep them till they were fit for food.

    This inconvenience would lead to a loss of revenue however, thus:

    whoever noticed it would tell the boss, and the boss would start up a conversation with the government inspector, and the two would stroll away. So in a trice the carcass of the cow would be cleaned out(p.68).

    There were also “Downers”: cattle that are injured or die on the long journey to slaughter. These too are surreptitiously placed alongside healthier specimens.

    Shockingly, the meat of tubercular cattle is also permitted to enter the food chain, in return for ‘two thousand dollars a week hush money.(p.104)’ It is hardly surprising, therefore, that the book triggered a political scandal.

    Property Swindle

    On arrival in Chicago the family find a dilapidated boarding house to reside, but strive to purchase a property in fulfilment of their American Dream – assuming this will be a saving in the long run for a working family.

    Jurgis chances on an advertisement featuring a brilliantly painted house, under which there is a picture of a husband and wife in warm embrace. Underneath is written – helpfully in Lithuanian – “Why pay rent?” “Why not out own your own home.(p.51)”

    When they view the house, however, it is not ‘as it was shown in the pictures(p.52)’ –albeit it has been freshly painted. Despite the agent’s exhortations that the sale must be closed without delay, or they risk losing the opportunity, they follow their gut instinct and hold off from purchasing. They are eventually duped into signing on the dotted line by a dodgy lawyer who assures them it is a perfectly regular deed.

    So, they part with their savings, leaving them on the hook for a monthly repayment that stretches them to the limits of endurance.

    As if this isn’t hard enough – especially in return for what they soon discover is a house that is barely fit for human habitation – a few months later they are presented with an annual insurance bill that threatens to starve them into submission.

    Predictably, after Jurgis gets into trouble with the law and cannot work, the family loses the home – and their hard-earned savings – and are forced to return to the boarding house from whence they came, where further trials await.

    Ironically, a century later millions of Americans, and others, had a similar experience of losing their homes, and savings, in the Financial Crash, in large part due to banks offering easy credit.

    Cartoon from Puck, August 9, 1899 by J. S. Pughe. Angry Uncle Sam sees hyphenated voters and demands, “Why should I let these freaks cast whole ballots when they are only half Americans?”

    Shenanigans

    The novel explores the ethnic composition of Packingtown’s workers. Waves of cheap foreign labour have fed an industry which, Sinclair argues, is ‘every bit as brutal and unscrupulous as the old-time slave-drivers(p.117).’ Based on this account, it would be hard to disagree.

    First came the Germans, and afterwards the Irish, who Sinclair generally casts as profiteers and political fixers. After that came Bohemians, followed by Poles, then Lithuanians, who were then giving way to Slovaks.

    Having ascended a grease-laden pole, many of the Irish in the novel seem determined to keep others from scaling the heights. Sinclair’s is perhaps demonstrating that success in Packingtown depends on a willingness to embrace corruption and exploitation; at the behest of the Beef Trust itself, ‘a gigantic combination of capital, which had crushed all opposition, and overthrown the laws of the land(p.346).’

    Some are damaged souls, however, such as Tommy Finnegan, ‘a little Irishman with big staring eyes and a wild aspect’, who expounds on ‘The method of operation of the higher intelligence’. Finnegan informs Jurgis that ‘shperrits … may be operatin’ upon ye(p.97-98)’

    Far more sinister is the ruler of the district, Mike Scully who, ‘held and important party office in the state, and bossed even the mayor of the city, it was said; it was his boast that he carried the stockyards in his pocket.’ As a result, ‘He was an enormously rich man(p.101)’.

    Eventually we learn:

    It was Scully who was to blame for the unpaved street in which Jurgis’s child had been drowned; it was Scully who had put into office the magistrate who had first sent Jurgis to jail; it was Scully who was principal stockholder in the company which had sold him his ramshackle tenement, and then robbed him of it(p.287).

    Yet when we do finally encounter Scully he is ‘a little dried up Irishman, whose hands shook’; who is ‘but a tool and puppet of the packers(p.288).

    Jurgis’s beloved Ona is also raped and beaten by Connor ‘a big, red-faced Irishman, coarse featured, and smelling of liquor(p.167).’ In revenge, Jurgis violently assaults him, landing him a spell behind bars.

    This brings him before another Irish-American, ‘the notorious Justice Callahan’:

    “Pat” Callahan – “Growler” Pat, as he had been known before he ascended to the bench – had begun life as a butcher-boy and a bruiser of local reputation; he had gone into politics almost as soon as he had learned to talk, and he held two offices at once before he was enough to vote.

    Unfortunately for Jurgis, Callahan had developed a ‘strong conservatism’ and ‘contempt for foreigners(p.173).’

    Yet another Irishman called “Buck” Halloran, ‘was a political worker and on the inside of things(p.281)’. He employs Jurgis to enlist fictional voters for forthcoming elections in a sham democracy.

    At last, we meet one Irishman, working in an enterprise owned and managed by a socialist who pays a decent wage and sets reasonable hours. He explains to Jurgis ‘the geography of America, and its history, its constitution and its laws; also he gave him an idea of the business system of the country.’ Sinclair seems to be showing that in circumstances where labour is not alienated, even an Irishman is capable of decency and culture.

    How were immigrants persuaded to work in such appalling conditions? Sinclair tells us that ‘old man Durham’ (the proprietor of the Beef Trust):

    was responsible for these immigrations; he had sown that would fix the people of Packingtown so that they would never again call a strike on him and so he had sent his agents into every city and village in Europe to spread the tale of the chances of of work and high wages at the stockyards(p.72).

    The grotesque lie places naïve workers such as Jurgis at the mercy of a system that degrades its victims by degrees. Sadly, it was not just adults who are engaged. Thus, even the young children in Jurgis’s family group are obliged to work – and die – joining the million and three-quarter of children who were at the time similarly compelled.

    Sing Sing prison (New York). Date unknown.

    Off the Rails

    While incarcerated Jurgis encounters men for whom, ‘love was a beastliness, joy was a snare, and God was an imprecation.’ He shares a cell, and befriends Jack Duane, a likeable, though ultimately callous, rogue, who reveals the possibilities of a life in crime. Jurgis avoids this temptation for he still has a wife and child to keep him on the straight and narrow.

    After being released from his first stretch, Jurgis is black-listed and thus unable to work. He then loses his beloved Ona to childbirth. From that point on – like so many others of his class – he numbs his pain with alcohol. He remains with the extended family group, nonetheless, on account of his baby son Ananas. But the tragedy is complete when the infant dies too – drowning in a puddle in an unpaved street.

    At that point, Jurgis is a lost soul, with his dreams of a new life in shreds: ‘So he went on, tearing up all the flowers from the garden of his soul, and setting his heel upon them(p.235).’

    He leaves Chicago in the spring as a hobo, working for farmers and foraging wild berries along the trail, which restores his health, but he cannot escape reminders of the old life:

    Ah, what agony was that, what despair, when the tomb of memory was rent open and the ghosts of his old life came forth to scourge him!(p.244)

    Thus, he returns to Chicago in the fall – like a moth to flame – where further obstacles and humiliations await. There he reconnects with Jack Duane, who introduces him to a life of crime. On their first outing they mug a man who, they learn afterwards, has suffered a concussion on the brain. This troubles the conscientious Jurgis, ‘but the other laughed cooly – it was the way of the game, and there was no helping it.’

    Duane assures Jurgis, “He was doing it to somebody as bad as he could, you can be sure of that(p.279).” Duane seems to assume that ‘behind every great fortune lies a great crime.’

    Jurgis’s moral descent is complete when he takes on a job as a foreman and then a scab worker during a general strike.

    Brothel “The Paris”, 2101 Armor Street, Chicago.

    The Only Way to Get Ahead

    Jurgis’s career as a thief and strike-breaker brings a measure of financial success, implying the only way to get ahead in Chicago is to debase oneself. By then, however, having lost all family connection – and lacking a belief system – he cannot develop a stable existence. Instead, he frequents the saloons and sprawling flesh pots.

    Earlier we learn of Chicago: ‘there was no place in it where a prostitute could not get along better than a decent girl(p.116)’:

    Thousands of them came to Chicago answering advertisements for “servants” and “factory hands,” and found themselves trapped by fake employment agencies, and locked up in a bawdy-house(p.282).

    One of the saddest episodes, among many, is Jurgis’s reconnection with Marija Berczynskas, Ona’s stepsister. At the beginning of the novel, like Jurgis, Marija displays all the characteristics of a model worker, but by the end she has been forced into prostitution in order to feed the family, and is addicted to morphine.

    Prior to this Marija conducted a touching love affair with the fiddler Tomaszios, who previously spell bound the wedding party with his music. But Packingtown is no place for an artist – or romance. Marija tells Jurgis that Tomaszios has left her, having ‘got blood-poisoning and lost one finger(p.320)’ in a work place accident, meaning he cannot play the violin any longer.

    Marija has interesting insights into her fellow prostitutes:

    Most of the women here are pretty decent – you’d be surprised. I used to think they did it because they liked to; but fancy a woman selling herself to every kind of man that comes … and doing it because she likes it(p.327).

    Cartoon by Udo Keppler, first punlished in New York by ‘Puck’, 15 October 1913.

    Commercial Competition

    Towards the end of the novel, after a quasi-religious conversion to socialism, and securing a steady job with a socialist proprietor, Jurgis meets a number of talking head intellectuals in a kind of underworld sequence.

    Here he learns that the Beef Trust are just one part of the capitalist system:

    There are other trusts in the country just as illegal and extortionate as the Beef Trust: there is the Coal Trust, that freezes the poor in winter – there is the Steel Trust, that doubles the price of every nail in your shoes – there is the Oil Trust, that keep you from reading at night.

    This character asks rhetorically, ‘why do you suppose it is that the all the fury of the press and the government is directed against the Beef Trust?’

    He informs Jurgis: ‘the papers clamor for action, and the government goes on the war path’, then ‘poor common people watch and applaud the job’, but this is ‘really the grand climax of the century-long battle of commercial competition.(p.355)’

    The hysterical reaction of so many in the media to Elon Musk’s purchase of Twitter suggests that this age-old “battle of commercial competition” continues – as the billionaire class squabble over the spoils.

    Campaign poster from his 1912 presidential campaign featuring Eugene Debs.

    Much Abides

    The Socialist Party of American became a powerful political force around the turn of the last century – at least until it was beaten into submission. But already by mid-century, in response to the excesses of the Soviet Union, the socialist ideal had become to many in the English-speaking world ‘The God that Failed’. A hybrid social-market ‘New Deal’ emerged under FDR in the 1930s, but neoliberalism has reigned ascendent since at least the Reagan Presidency. In today’s muddled era of identity politics, activists often lack commitment to countering the structures that produce an ever-widening gap between rich and poor.

    Today, US workers are afforded far greater protection compared to Sinclair’s day, and child labour has largely been eliminated. However, in ‘the most health-obsessed society, all is not well.’[ii] Sixty percent of adults suffer from a chronic condition, and over forty per cent have two or more of such conditions.[iii]

    Most Americans still live on the edge of financial ruin. A recent poll found 63% are living from paycheck to paycheck — including, remarkably, nearly half of six-figure earners, as the cost of living continues to rise.

    The stress caused by this precarious existence seems to lie behind ongoing substance abuse, including an Opioid Crisis that has killed hundreds of thousands, while enriching Big Pharma that preys on the country’s pathologies. Other self-destructive behaviours – such as over-eating – are normalised in a rigid two-party political system that leaves little room for dissent.

    Alarmingly, there is little sign of political change in the US, while many other countries appear to be embracing neoliberal norms. Since the 1970s inequality has spiralled, and most political radicalism seems more inclined towards self-reliance than cooperation, but as Gabor Maté points out, in what could be a commentary on The Jungle:

    If I see the world as a hostile place where only winners thrive, I may well become aggressive, selfish and grandiose to survive in such a milieu … beliefs are not only self-fulfilling; they are world-building[iv].

    The Jungle characterises US society as being one where willingness to participate in a “gigantic lie” underpins success. This deceit goes on, as people continue to be persuaded to buy things they don’t need, while a successful boss still extracts as much as possible from workers. It means that even some of the best, like Jurgis Rudkus and Marija Berczynskas, are still being ground down – unless they too are prepared to display the required “aggressive, selfish and grandiose” qualities that success depends on.

    [i] Hugh J. Dawson, “Winston Churchill and Upton Sinclair: An Early Review of The Jungle,” ALR, 1991.

    [ii] Gabor Maté with Daniel Maté, the Myth of Normal: Trauma Illness & Healing in a Toxic Culture, Random House, London, 2022, p.1.

    [iii] Christine Buttorff et al, Multiple Chronic Conditions in the United States, Santa Monica, CA RAND Corporation, 2017.

    [iv] Gabor Maté with Daniel Maté, 2022, p.31.

  • The Fog of Law

    You enter here a taut quintet
    Where theorists can shift or shape
    How we make sense of market flow;
    How men and how it’s mostly men,
    Explain the ways our commerce works.
    No Flash of insight, more a slow
    Encroachment that in turn creates
    Our understanding how by stealth
    New certainties of common sense
    Construe the weave of life and wealth.
    Micheal O’Siadhail, The Five Quintets, Dealing, Canto 1, Mechanisms, p.67.

    ‘Is what is written on a piece of paper worth the paper it’s written on?’ was the simple question posed by the Master of the High Court, Edmund Honohan, at the beginning of a recent Decision, delivered on the 9th of February, 2022 in the case AIB PLC vs Gary Lennon.

    Curiously, unlike other Decisions, this is still unavailable on the court’s website, and certainly didn’t make many headlines; although an article in the Irish Times provides a simplified account.

    Could this be because of its seemingly complex legal arguments; or perhaps because it reveals too much about how banks and Vulture funds are taking advantage of Ireland’s permissive legal environment?

    The Decision relates to a case in which AIB were claiming payment of an outstanding debt, from Mr Lennon. However, Mr Lennon counterclaimed that AIB had not furnished the necessary evidence to the Court entitling them to substantiate or prove the claim.

    The first thing that a bank or vulture fund needs to do when claiming payment of an outstanding debt or repossess a house, is to prove, with supporting hard (’probatory’) evidence, that it owns the rights to that property or debt.

    Unsurprisingly, this often proves a difficult exercise after the individual debts are bundled up (securitised) and sold on the international market via ever more and more complex financial structures; Section 110 companies, SPVs, Subsidiaries of subsidiaries. These structures allow our banking system to handle non-performing loans, but also to facilitate a lot more capital outflow, often in the form of un-taxed profits.

    AIB PLC vs Gary Lennon

    In this Decision (which to be clear is not a judgment) by the Master of the High Court we find, apart from the case in question, some serious warnings in relation to the use in courts of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, which now allows business documents, previously considered mere hearsay – out of court statements that are generally inadmissible in proceedings – as evidence in financial cases.

    Simply put, when it now comes to such cases, it has become acceptable for a bank to adduce hearsay evidence, laying claim to a property or debt, and for this to be accepted in good faith.

    Thus, according to Honohan’s Decision, creating a situation where:

    In banking cases, the plaintiff has deep pockets and a reputable firm of lawyers to present the case. Is there any risk of an overarching judicial prejudice in the plaintiff’s favour?  The lay litigant thinks there might be.

    We cannot overlook, either, the alarming phenomenon of banks telling the courts to not even think of requiring their witnesses to come to court and submit to cross examination. A belief that summary judgment is there for the asking?

    Confusion around what actually constitutes acceptable evidence and the institution of legal procedures that overwhelmingly favour big financial institutions over ordinary citizens, could be yet another channel for regulatory capture.

    There is currently €16 billion worth of loans on this roulette table in Ireland, all of which are in some way securitised and being traded as we speak.

    With politicians and the media are now furiously engaging with more accessible aspects of the housing crisis, like simplistic explanations of supply and demand, and the necessity for foreign investment, it is also important to look into how the law has been altered to give more leeway to banks and Vulture funds.

    Citizens, as much as the financial institutions, should demand a justice system that satisfies basic criteria of fairness and impartiality. This should make it realistic for any citizen to challenge a bank or Vulture fund.

    This ought to be regardless of how deep, shallow, or broken, your pockets are.

    “Wolf of Golfgate” Country

    Readers may be familiar with a movie about the 2008 subprime market collapse called ‘The Big Short.‘ It is constellated with explainers like Margot Robby in a bubble bath illustrating subprime mortgage backed securities, and chef Anthony Bourdain making a fish soup with left over mortgages with low values to explain securitisation.

    The financial collapse, as described in the movie, actually happened, after some twenty years of head spinning financial innovations. In that period, investment banking went from being a relatively boring and stale career into what may be referred to as the “Wolf of Wall Street” life.

    Fast forward about a decade, banks get bailed out, while austerity cripples the most vulnerable. 2013 is the year that Reits and Cuckoo Funds came to Ireland and begin to dictate the kind of supply of housing the Irish should have. This has led to the artificial inflation of prices in the housing market.

    In the Land of the Wolf of Golfgate there are thousands upon thousands of loans being bundled together, as we speak, and traded around the world like you would soya beans or any other asset. The reality on the ground is that these are mostly homes that many of us are living in, or should be.

    Securitisation and other complex financial structures to recover outstanding debts, are not always a bad practice and are actually an essential tool to limit banks’ exposure to risk; thereby ensuring a country’s financial stability.

    But if financial predators go unchecked, especially when it comes to housing, and the courts are not up to speed with the financial innovations involved in the cases that it encounters, the country offers fertile ground for those financial entities, and their money, to become overwhelmingly more powerful than the ordinary citizen.

    As Edmund Honohan warns in his recent Decision:

    Courts are not yet up to speed with the byzantine multiple-player transactions in the capital markets. Even the Financial Times, in a full page ad in the edition of 27/28 November 2021 warned “Fakery is now everywhere, Regulation has failed.” Our courts are still exploring the mechanics of securitisation. Wait till we start getting “synthetic” securitisation! And as for encryption and blockchain software, who will interpret the “hash”? (77)

    Moreover, in this often unbalanced relationship between the judiciary and high finance, the use value of a house is deemed to be superseded by its exchange value.

    Another explanation is that unequal access to quality legal representation creates a great disparity between individual citizens and these institutions when it comes to access to housing stock and credit.

    This is an issue for which a petition has recently been launched to address a problem that could affect over 200,000 people. It is called ‘Legal Support for possession proceedings on homes.‘

    Extra Virgin Political Oil

    For the above to happen as smoothly and quietly as possible, you need lubricant in the machinery, which normally comes in the form of extra virgin political oil. This speed up things and make sure the machinery of claims and repossessions works like clockwork, and without any unnecessary impediments.

    As we previously mentioned, one of the widespread practices for banks, Vulture funds and Cuckoo funds, to lubricate the passage of cases, is to present hearsay evidence, something somebody says out of court, and for it be accepted in good faith: This practice now seems even easier despite ad hoc clarifications in the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020.

    The Act was passed shortly after the case, Promontoria (Aran) vs Burns, wherein Promontoria, a notorious investment fund, often referred to as a Vulture, (I didn’t say it, it’s hearsay) was barred from presenting business records in evidence, and therefore lost the case.

    At that point most people in the country were absorbed with dealing with a pandemic, and shortly afterwards there was the Golfgate Scandal, which included Brian Hayes, CEO, Banking & Payments Federation of Ireland; a prime examples of Ireland’s revolving door between politics and the private banking sector.

    With an urgency rarely seen for other problems, such as the homeless and healthcare crises, the Act was fast-tracked through the Oireachtas.

    Here is how Minister of Justice and Equality, Deputy Helen McEntee introduced the Act in the Dáil debate on the July 30 2020:

    The commission’s report recommends that records compiled in the course of business, because they are generally reliable, should be admissible in civil proceedings as an inclusionary exception to the hearsay rule, subject to the safeguards that have been set out in the Bill. Separately, the Court of Appeal was called in a recent case, Promontoria (Aran) Ltd. v. Burns, to interpret and apply the law as it currently stands regarding the admissibility of business records in civil cases. Both judgments delivered by the court last April were clearly of the view that the law in this area needs to be updated by legislative reform. More recently, the Judiciary has specifically identified legislative reform of the civil law rules on business records to my Department as among the most urgent priorities for it to be able to advance cases fairly and without unnecessary delays and costs to all parties concerned.

    It introduced the possibility, or rather encourages the use of business documents as evidence, even if they are mere hearsay, although it does allow the other party to challenge the validity of such evidence.

    But best of luck if you are a lay litigant, without legal aid and in a precarious financial situation, attempting to challenge a skilled team of lawyers pitted against you, by the bank or Vulture fund in question, full of good faith.

    The inherent risk to private citizens posed by the the misinterpretation of this new law in front of the disarming power of the law firms which the banks rely on, was articulated in an earlier decision by Ed Honohan, AIB PLC vs McGrane, on the 9th June 2021, under the heading EU Charter of Fundamental Rights:

    Given that at least some of these issues – contract terms, debt restructure etc. – are now the subject of EU Directives, the courts will have to satisfy themselves, under Article 47 of the Charter, that the defendants are given “effective access to justice” and, for cases of complexity of the sort above described, that “Legal Aid shall be made available to those who lack sufficient resources insofar as such aid is necessary.

    Most litigants in person just show up in court on the day the case is listed and it may then be too late to make up for lost ground. The chances of framing and corroborating a second bite at the cherry, on Appeal, may be vanishingly small, even if they manage not to miss the ten-day deadline for an Appeal (which many do).

    Writing in Prospect Magazine in 2018, David Neuberger, former President of the UK Supreme Court, said: “Without the rule of law society becomes unjust, violent and poor. It is of fundamental importance that courts are open and accessible.

    “Accessibility means that people with grievances and those being sued must get access to legal advice and to courts. It is an affront to justice if people cannot understand or enforce their rights.

    It’s always a difficult task to communicate to a wider audience how the intricacies of the law, full of carefully crafted language, are at play in underpinning how our society, and economy operates.

    Especially when true complexity arises, actual trials are needed and the public needs to know it can trust their judicial public servants “the adults in the room”, in the making of these key decisions.

    The thicker the blanket of legal fog, the more political “good intentions” and “good faith” are but a faded image of what people’s actual needs are.

    This leads to a society dominated by cynicism, unable to envisage any change, and politically impotent.

    Feature Image by Gareth Curtis

  • The “Strawman” Conspiracy Theorist

    In two hundred years doctors will rule the world. Science reigns already. It reigns in the shade maybe – but it reigns. And all science must culminate in the science of healing – not the weak, but the strong. Mankind wants to live… to live.
    Joseph Conrad, The Secret Agent (1907), p.263

    This article charts the origins and development of what often appears to be a strawman conspiracy theorist over the course of the COVID-19 pandemic, especially through “fact checker” initiatives operating at the behest philanthrocapitalism. This appears to have insulated regulatory agencies long prone to capture from adequate journalistic scrutiny, leading to a groupthink amidst an effective censorship of alternative, and scientifically valid, assessments of the danger posed by COVID-19, and the optimal humanitarian response.

    Losing Our Grip?

    In May, 2020, veteran Guardian journalist John Naughton explored the origins of Plandemic a “documentary” video ‘featuring Dr Judy Mikovits, a former research scientist and inveterate conspiracy theorist who blames the coronavirus outbreak on big pharma, Bill Gates and the World Health Organization.’ Naughton relates how the video migrated from mainstream social media into the dark recesses of the Internet.

    As he put it: ‘The cognitive pathogen had escaped into the wild and was spreading virally.’ Ultimately, the New York Times ‘traced it back to a Facebook page dedicated to QAnon, a rightwing conspiracy theory, which has 25,000 members.’ All this Naughton said: ‘confirms something we’ve known since at least 2016, namely that conspiracy theory sites are the most powerful engines of disinformation around. And when they have a medical conspiracy theory to work with, then they are really in business.’

    In May, 2020 The Atlantic’s Jeff Goldburg announced that conspiracy theorists were winning, and that America was ‘losing its grip on Enlightenment values and reality itself.’ Thus a 2014 study estimated that half the American public ‘consistently endorses at least one conspiracy theory,’ a proportion that had risen to 61% by 2019, suggesting the Internet was accelerating the trend. Another survey indicated that 60% of Britons were wedded to a ‘false’ narrative.

    Adjudicating on the falseness, or otherwise, of a narrative is not always, however, a straightforward exercise. Indeed, it will be argued that justifiable concerns around recent impugning of expertise have been weaponised to create another layer of disinformation over the course of the COVID-19 pandemic.

    The “wild-eyed” conspiracy theorist – often referred to as “members of the tin foil hat brigade” – has become a widely derided figure. This appears to be a belated response to so-called “post-truth” accounts, associated with supporters of Donald Trump in the U.S. and proponents of Brexit in the U.K., dismissive of expertise. This challenged a board consensus around such issues as the importance of mitigating climate change. But in confronting genuine disinformation it appears that many on the left, in particular, failed to interrogate vested interests during the pandemic.

    “Totalizing Discourse”

    Charles Eisenstein defines conspiracy myths as ‘a totalizing discourse that casts every event into its terms.’ He traces these overarching explanations – relying on observed phenomena only insofar as these fit with a preordained pattern – to the first century Gnostics, who believed that ‘an evil demiurge created the material world out of a pre-existingdivine essence.’

    The “totalizing” nature of such an approach has previously been dismissed by Karl Popper since ‘nothing ever comes off exactly as intended.’[i] Oliver and Wood (2014) identify three facets to an approach that has traditionally pointed to Freemasonry –an “illuminati” – Jews and Jesuits, and, in more recent times, intelligence agencies such as the CIA, KGB, MI5 or Mossad:

    First, they locate the source of unusual social and political phenomena in unseen, intentional, and malevolent forces. Second, they typically interpret political events in terms of a Manichean struggle between good and evil … Finally, most conspiracy theories suggest that mainstream accounts of political events are a ruse or an attempt to distract the public from a hidden source of power (Fenster 2008)

    In her seminal 1951 text The Origins of Totalitarianism, Hannah Arendt identifies such a tendency as a precursor to mob rule, describing how a conspiracy theorist ‘is inclined to seek the real forces of political life in those movements and influences which are hidden from view and work behind the scenes.’[ii]

    Yet certain conspiracy theories in our time, such as suggestions the U.S. invaded Iraq in 2003 in order to plunder oil resources rather than decommission weapons of mass destruction, or that the fossil fuel industry deliberately sowed confusion over climate change, remain plausible, even if we lack clear documentary proof.

    A problem lies in how individuals with minimal academic attainment treat conspiracies as objective truths rather than conjectures based on circumstantial evidence. The likelihood of a conspiracy is often portrayed as “beyond reasonable doubt”, as opposed to “on the balance of probabilities.” A formally educated observer may be repelled by an insistent approach that does not allow for reasonable doubt.

    The intuition relied on by confirmed conspiracy theorists thus generally fails to acknowledge uncertainty, and lacks scientific or historical rigour. Yet these accounts may still occasionally yield insights when empirical methods fall short. After all, suspicions raised by conspiracy theories are often vindicated. Rather than dismissing out of hand such ‘magical thinking’, it is useful to consider these as unproven hypotheses, and not necessarily untrue, simply because an individual is overstating a case.

    For example, over the course of the COVID-19 pandemic increasingly persuasive evidence has emerged of a laboratory leak – perhaps from so-called ‘gain of function’ research – giving rise to the pandemic. But in February, 2020 The Lancet published a letter from a number of prominent scientists who ‘strongly condemn conspiracy theories suggesting that COVID-19 does not have a natural origin.’ This had a chilling effect on the scientific debate during the early stages of the pandemic.

    Notably also, the ‘father of economics’ Adam Smith opined that ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’[iii] Smith’s portrayal of commercial calumnies is reflected in a question posed at a medical conference in 2018 by a Goldman Sachs executive: ‘Is curing patients a sustainable business model?’

    Previously, a succession of pharmaceutical scandals led Ben Goldacre MBE to take a sympathetic view of so-called “anti-vaxxers”, who are now consistently conflated with “conspiracy theorists”: ‘I think it’s fair to say that anti-vaccine conspiracy theories are a kind of poetic response to regulatory failure in medicine and in the pharmaceutical industry. People know that there is something a little bit wrong here.’

    Similarly, Tom Jefferson – editor of the Cochrane Collaboration’s acute respiratory infections – in an interview with Der Spiegel in 2009 in the wake of the Swine Flu pandemic-that-never-was pointed to shadowy pharmaceutical forces: ‘Sometimes you get the feeling that there is a whole industry almost waiting for a pandemic to occur.’

    UNESCO’s World Trends Report 2018.

    Journalism Under Threat

    An assumption of malevolent or self-serving – cui bono? – motivations (particularly concerning a Big Pharma industry with a shameful record of distortion and manipulation) is almost a prerequisite for being an investigative reporter. Stories don’t drop out of the air. Unless a journalist assumes wrongdoing – in essence a conspiracy theory – there would be no reason to begin digging.

    The key distinction between genuine journalism and conspiracy theorising is that proponents of the latter tend to blurt out their “findings” without marshalling supporting evidence, with the Internet providing anonymity as required. This, however, makes such accounts easy to ridicule to the detriment of journalism with an evidential basis.

    Journalists have long been deflected from investigating large corporations. In a recent memoir the great American journalist Seymour Hersh fumes at how in the late 1970s The New York Times shut down his attempt to investigate corporate America ’when confronted by a gaggle of corporate conmen.’[iv]

    This challenge has increased significantly in the wake of the Internet. After the “Original Sin” of free online publication, the number of American journalists fell from 60,000 in 1992 to 40,000 in 2009, a pattern seen across the world. As revenues diminished, workloads increased. Cardiff University researchers recently conducted an analysis of 2,000 U.K. news stories, discovering the average Fleet Street journalist was filing three times as much as in 1985. To put it another way, journalists now have only one-third of the time to do the same job.[v]”

    “Fact Checkers”

    Over the course of the pandemic a strawman conspiracy theorist appears to have been consciously developed to deter valid journalistic interrogation, in particular, through so-called “fact checking” initiatives. It has reached a point where, as Charles Eisenstein observes: ‘“Conspiracy theory” has become ‘a term of political invective, used to disparage any view that diverges from mainstream beliefs. Basically, any critique of dominant institutions can be smeared as conspiracy theory’

    In the absence of adequate journalistic scrutiny during the pandemic corruption has been rife. The executive director of The British Medical Journal Kamran Abbasi described ‘state corruption on a grand scale’ that is ‘harmful to public health’ Abbasi observes how the pandemic ‘has revealed how the medical-political complex can be manipulated in an emergency—a time when it is even more important to safeguard science.’

    This also occurred in the context of unregulated social media, where companies set their own rules. In March, 2020, having previously styled itself ‘the free speech-wing of the free-speech party’, Twitter moved to address concerns around conspiracy theories. In future it would be: ‘Broadening our definition of harm to address content that goes directly against guidance from authoritative sources of global and local public health information.’

    Nonetheless, free reign was given to “click-bait” alarmists such as Eric Feigle-Ding on Twitter, who saw his following mushroom from just two thousand to almost a quarter of a million. Angela Rasmussen, a Columbia University virologist, identified a pattern: ‘He tweets something sensational and out of context, buries any caveats further down-thread, and watches the clicks and [retweets] roll in.’

    Twitter did not act alone in upholding an apparent orthodoxy that often lapsed into an extremism that deterred legitimate questioning. Google took unprecedented steps to erase material violating ‘Community Guidelines’: ‘including content that explicitly disputes the efficacy of global or local health authority recommended guidance on social distancing that may lead others to act against that guidance.’

    Initially at least, Facebook adopted a more laissez faire approach, although users who had read, watched or shared ‘false’ coronavirus content received a pop-up alert urging them to go the World Health Organisation’s website. In November, 2021, however, the editors of the British Medical Journal sent an open letter to Facebook in response to “fact checkers” undermining their investigative report into ‘a host of poor clinical trial research practices’ at Pfizer’s original vaccine trial.

    Thus, the approach of the social media giants was bolstered by an unprecedented journalistic effort to “factually” repudiate conspiracy theories during the pandemic; notwithstanding how ‘uncontested facts—things that are ascertainable, reproducible, transferable and predictable—tend to be elusive.’

    Preparations for the “fact-checking” initiative began in January, 2020 when a global #CoronaVirusFacts Alliance, comprising more than one hundred “factcheckers” around the world, described as ‘the largest collaborative factchecking project ever,’ was launched by the Poynter Institute, ‘when the spread of the virus was restricted to China but already causing rampant misinformation globally.’ It said that the WHO had classified the issue as ‘an infodemic — and the Alliance is on the front lines in the fight against it.’

    From March 2020, with the support of these “fact checkers”, outlets such as Reuters responded to an anticipated wave of conspiracy theories, taking particular care to address allegations against Bill Gates. He has been described as ‘the world’s most powerful doctor’ despite not having earned a medical degree due to the Gates Foundations being the second largest funder of the WHO, after China. This included allegations that he had apparently planned the pandemic, and wanted to commit genocide through vaccines.

    For example, on May 30, 2020 a BBC article purported to defuse claims the pandemic was ‘a cover for a plan to implant trackable microchips and that the Microsoft co-founder Bill Gates is behind it’; although it acknowledged Gates had said that ‘eventually “we will have some digital certificates” which would be used to show who’d recovered, been tested and ultimately who received a vaccine,’ and also referenced ‘a study, funded by the Gates Foundation, into a technology that could store someone’s vaccine records in a special ink administered at the same time as an injection.’

    Front building of the Bill and Melinda Gates Foundation in Seattle.

    Gates Foundation

    When it came to outlandish conspiracy theories around COVID-19 all roads led to Bill Gates and his $47 billion philanthropic Bill and Melinda Gates Foundation – besides a personal fortune of $115 billion, and growing, as of October 2020.

    For many of world’s population under stay-at-home orders the pandemic was viewed through a digital prism – often at a remove from morbidity or mortality itself. At that stage, Gates’s 2014 Ted Talk ‘The Next Outbreak. We’re not ready’ seemed almost prophetic.

    He opined: ‘If anything kills over ten million people in the next few decades it is most likely to be a highly infectious virus rather than a war.’ The failure of Western governments to prepare for such an eventuality seemed to have been laid bare – in particular the Presidential administration of Donald Trump, who according to a Cornell University study ‘was likely th\\e largest driver of the COVID-19 misinformation “infodemic.”’

    Gates’s Ted Talk, however, failed to discuss the false alarm of the Swine Flu Pandemic, when the WHO estimated that between 2.0 and 7.4 million could die, assuming the outbreak was relatively mild. This proved a wild exaggeration as less than 300,000 were estimated to have died globally, with Western governments stockpiling millions of dollars’ worth of GlaxoSmithKlein’s Pandemrix vaccine, which  brought an elevated risk of narcolepsy.

    Gates’s main reference point appears to have been the Spanish Influenza (H1N1) outbreak of 1918 – the Ur-pandemic of modern times  – that led to up to fifty million deaths, many of them young men in their prime, at a point when the global population was approximately two billion. In contrast, the infectivity and severity of SARS-CoV-2 ‘are well within the range described by respiratory viral pandemics of the last few centuries (where the 1918–20 influenza is the clear outlier).’

    Neil Ferguson

    “Scientific Groupthink”

    In March, 2020, Imperial College’s Neil Ferguson told the New York Times the ‘best case outcome’ for the U.S. was a death toll of 1.1 million, rising to 2.2 million in a worst case scenario, a projection that has proved wildly inaccurate. Yet, alternative, and scientifically valid, assessments of the danger posed by COVID-19, and the optimal humanitarian response to the challenge were virtually ignored in legacy media at the time. Thus, an Oxford University paper, which included Sunetra Gupta as an author, countered what the New York Times described as the ‘gold standard’ Imperial modelling underestimated immunity from prior coronavirus infections and posited a far lower infection fatality rate.

    But in March, 2020, the Financial Times warned that Gupta’s group’s modelling was ‘controversial and its assumptions have been contested by other scientists.’ Implicitly, the Financial Times was accepting the “gold standard” Imperial paper.

    Moreover, in November, 2020 an article in the Scientific American describes how Stefan Baral, an epidemiologist and associate professor at Johns Hopkins Center for Global Health, wrote a letter about the potential harms of lockdowns which was rejected from more than ten scientific journals (and six newspapers) in April, 2020. Baral recalls, ‘it was the first time in my career that I could not get a piece placed anywhere.’

    The article also recalled that, ‘highly anticipated results of the only randomized controlled trial of mask wearing and COVID-19 infection went unpublished for months.’ The authors concluded that the ‘net effect of academic bullying and ad hominem attacks has been the creation and maintenance of “groupthink”—a problem that carries its own deadly consequences.’

    In the absence of access to authoritative, diverging scientific accounts, opposition to lockdowns could easily be dismissed as being the preserve of conspiracy theorist cranks associated with “anti-vaxxers” and even a “far-right” fringe.

    “Screen New Deal”

    Apart from offering pharmaceutical companies the huge financial incentive – grasped within open arms – of developing a vaccine for universal application, lockdowns and social distancing measures also brought soaring profits for major technology corporations. Moreover, restrictions provided a testing ground for the Gates Foundation’s long advocacy of technological approaches in education.

    In May, 2020 Naomi Klein identified collusion between state and Big Tech interests in what she described as ‘A Screen New Deal.’ She referred to New York Governor Mario Cuomo’s courting of Google and the Gates Foundation: ‘Calling Gates a “visionary,” Cuomo said the pandemic has created “a moment in history when we can actually incorporate and advance [Gates’s] ideas … all these buildings, all these physical classrooms — why with all the technology you have?” he asked, apparently rhetorically.’

    Remote learning technology permitted extended school closures around the world, despite the chance of death from COVID-19 being ‘incredibly rare’ among children. Research now suggests many students made little or no progress while learning from home, and that learning loss was most pronounced among disadvantaged students. As a consequence, up to 20,000 children in the U.K. went missing from school rolls during the pandemic. Nor is it apparent that teachers faced any greater risk compared to the wider population in fulfilling classroom teaching.

    Media Funding

    Popular consent on a global scale for lockdowns, particularly from those identifying on the left, seems to have been manufactured through vast ‘philanthropic’ funding of journalism, in particular of publications associated with progressive outlooks.

    By June 2020, the Gates Foundation contributed $250 million to journalism, which according to Tim Schwab in The Columbia Journalism Review, ‘appears to have helped foster an increasingly friendly media environment for the world’s most visible charity.’

    A theme of ‘we are in this together’ inhibited criticism and enquiry. This quiescence has been criticized by the Greek socialist Panagiotis Sotiris who wrote: ‘What is missing here is something that used to be one of the main traits of the radical left, namely, an insistence that science and technology are not neutral.’

    Tim Schwab calculates that $250 million had been devoted to journalism by the Gates Foundation for the six months up to June, 2020,. Recipients included BBC, NBC, Al-Jazeera, ProPublica, National Journal, The Guardian, Univision, Medium, The Financial Times, The Atlantic, The Texas Tribune, Gannett, Washington Monthly, Le Monde, and the Center for Investigative Reporting, as well as the BBC’s Media Action and The New York Times’ Neediest Cases Fund.

    Schwab adds: ‘In some cases, recipients say they distributed part of the funding as subgrants to other journalistic organizations—which makes it difficult to see the full picture of Gates’s funding into the fourth estate.’

    As a result, he says:

    During the pandemic, news outlets have widely looked to Bill Gates as a public health expert on covid—even though Gates has no medical training and is not a public official. PolitiFact and USA Today (run by the Poynter Institute and Gannett, respectively—both of which have received funds from the Gates Foundation) have even used their fact-checking platforms to defend Gates from “false conspiracy theories” and “misinformation,” like the idea that the foundation has financial investments in companies developing covid vaccines and therapies. In fact, the foundation’s website and most recent tax forms clearly show investments in such companies, including Gilead and CureVac.

    ‘Undermining Scientific Creativity’

    The Gates Foundation’s pivotal role in funding global health has long raised concerns. In 2008, Dr. Arata Kochi, the former head of WHO’s malaria programme argued the Gates Foundation was undermining scientific creativity in a way that ‘could have implicitly dangerous consequences on the policymaking process in world health.’ He worried that Gates-funded institutions – including Imperial College London (MRC Centre for Global Infectious Disease Analysis) – were adopting ‘a uniform framework approved by the Foundation,’ leading to homogeneity of thinking: ‘Gates has created a ‘cartel,’ with research leaders linked so closely that each has a vested interest to safeguard the work of others. The result is that obtaining an independent review of scientific evidence (…) is becoming increasingly difficult.’

    GAVI, the Vaccine Alliance, is the most obvious example of the Gates Foundation’s engagement. GAVI has successfully immunized large numbers of children, but been criticized by other NGOs for inadequate funding of health system strengthening.

    One of GAVI’s senior representatives reported that Bill Gates often told him in private conversations ‘that he is vehemently ‘against’ health systems (…) he basically said it is a complete waste of money, that there is no evidence that it works, so I will not see a dollar or cent of my money go to the strengthening of health systems.’

    As of 2017 only 10.6 percent (US$862.5 million) of GAVI’s total commitments between 2000 and 2013 had been dedicated to health system strengthening, whereas more than 78.6 percent (US$6,405.4 million) have been used for vaccine support. Doctors Without Borders (MSF) states that, while GAVI has helped to lower prices of new and underused vaccines for eligible countries, the cost to fully immunize a child was 68-times more expensive in 2014 than it was in 2001.

    According to long-time Gates critic James Love, Gates ‘uses his philanthropy to advance a pro-patent agenda on pharmaceutical drugs, even in countries that are really poor.’

    Safe Treatment?

    This article makes no bold claims regarding the efficacy of any treatments, but the overwhelmingly negative reaction of legacy media to research pointing to the efficacy of the off-patent drug Ivermectin suggests that vested pharmaceutical interests wished to undermine public confidence in any scientific arguments regarding its efficacy.

    In June, 2020, a laboratory study demonstrated it was ‘an inhibitor of the causative virus’ (Caly, 2020). Later, a Systematic Review, Meta-analysis that included twenty-four randomized controlled trials said: ‘Moderate-certainty evidence finds that large reductions in COVID-19 deaths are possible using ivermectin.’

    In a predictable example of “fact-checking” where an outlandish claim is used to discredit a compelling hypothesis, the Poynter Institute quoted a social media post ‘rating’ the claim that Ivermectin basically ‘basically obliterates’ as ‘false.’

    The Guardian’s dedication to discrediting the meta-analysis also suggested vested interests were at work, and contrasts with a failure to report on the British Medical Journal’s account of a whistle blower alleging serious data integrity issues during Pfizer’s vaccine trial.

    It should hardly be controversial – let alone dismissed as a conspiracy theory – to argue that the weight of evidence points to a ‘Gates-Approach’ lying behind ongoing adoption by most Western governments of unprecedented suppression measures in support of universal vaccination – notwithstanding potential treatment alternatives – leading to the introduction of vaccine passports, as Gates “predicted” in April, 2020. This also occurred alongside a familiar ‘rhetoric supportive of ‘holistic’ health systems.’

    It is now clear that consent for lockdowns, especially in the Anglophone world, was manufactured through wildly inaccurate epidemiological assessments of an infection fatality rate of 0.9% in the notorious Imperial College paper. This estimate has since been adjusted to 0.2% (available on the WHO website), a figure which Joffe argues is likely ‘a large over-estimate.’

    It is also clear that globally mortality statistics for COVID-19 have been systematically exaggerated. This manipulation can be traced to a WHO document from April, 2020 entitled ‘International Guidelines for Certification and Classification (Coding) of COVID-19 as Cause of Death’. It set out strict rules for the registration of COVID-19 deaths, which differ fundamentally from registration for other causes. The guidelines define a COVID-19 mortality as ‘a death resulting from a clinically compatible illness, in a probable or confirmed COVID-19 case, unless there is a clear alternative cause of death that cannot be related to COVID disease (e.g. trauma).’

    It is revealingly that in a country such as Ireland since the pandemic began the mean age of death from COVID-19 has been eighty years of age (eight-two being the median age), just two years younger than the average age of death, and that level of mortality through the years 2018-2020 (2018: 31,116; 2019: 31,134; 2020: 31,765) show little difference.[vi]

    For most people COVID-19 is a virus that poses little danger. Prior to the arrival of a vaccine, a U.K. study from October, 2020 found 76.5% of a random sample who tested positive reported no symptoms, and 86.1% reported none specific to COVID-19. Moreover, an article from Peter Doshi in the British Medical Journal in September, 2020, stated: ‘At least six studies have reported T cell reactivity against SARS-CoV-2 in 20% to 50% of people with no known exposure to the virus’; apparently vindicating Sunetra Gupta’s “controversial” paper, over which the Financial Times cast doubt.

    It should not be controversial to argue that morbidity and mortality from COVID-19 ought to have been weighed against the global impact of lockdowns. On that score, a new paper jointly by authored by researchers from Johns Hopkins University in the US, Lund University, in Sweden and the Centre for Political Studies, in Denmark concluded that lockdowns in Europe and the US decreased COVID-19 mortality by a measly 0.2% on average.

    Conclusions

    A “totalizing” discourse of a COVID-19 conspiracy theory identifies a preordained plan being set in motion by malicious actors, wherein the pandemic culminates in a dangerous vaccine being foisted on a brainwashed population. This might lead to an assumption that such vaccines invariably give rise to severe adverse reactions that are systematically covered up. Such an account does not demand evidence as events are simply unfolding “as planned.”

    In reality, however, events rarely follow a preordained pattern, and even in circumstances of regulatory capture state agencies are never entirely bereft of integrity. Moreover, such accounts divert attention from probing interrogation of the efficacy of vaccines and the desirability of universal uptake of a medication that does not block transmission, especially one rushed to the market, and which may cause unforeseen adverse reactions.

    It is also apparent that public perception of the efficacy of vaccines has been distorted by the media’s reporting of relative risk reduction, as opposed to absolute risk reduction, which is just 0·84% for the Pfizer–BioNTech vaccines.

    Moreover, importantly, in January, 2021, Peter Doshi and Donald Light in the Scientific American objected to the undermining of ‘the scientific integrity of the double-blinded clinical trial the company—and other companies—have been conducting, before statistically valid information can be gathered on how effectively the vaccines prevent hospitalizations, intensive care admissions or deaths.’

    This came after Pfizer pleaded an “ethical responsibility” to unblind its trial and offer the vaccine to those who received a placebo. The authors argue that ‘there was another way to make an unapproved vaccine available to those who need it without undermining a trial. It’s called “expanded access.” Expanded access enables any clinician to apply on behalf of their patient to the FDA for a drug or vaccine not yet approved. The FDA almost always approves it quickly.’

    In terms of any actual conspiracy or contrivance to raise prices along the lines of tendencies that Adam Smith pointed to among gentlemen of commerce, the role played by Bill Gates has been, doubtless, more complex than many conspiracy theorists allow for. However, in circumstances where a billionaire with a history of monopolistic aspirations promotes an agenda aligning with his financial interests it should come as no surprise that colourful theories abound; especially with many journalists seemingly inhibited from enquiring into his Foundation’s activities.

    Indeed, ironically, the aforementioned Guardian journalist John Naughton recently described Gates while Microsoft CEO as having acted like ‘a mogul who is incredulous that the government would dare to obstruct his route to world domination.’ Does such a leopard ever change his spots?

    Sadly, the amplification of the outlandish claims of conspiracy theorists by so-called “fact checkers” could be causing reputational damage to genuine expertise, and allow demagogues reliant on angry mobs to say: “I told you so.” The propagandist role of “fact checkers” has undermined genuine investigative reporting, much of which already occurs on the margins.

    In the early stages of the pandemic especially, difficulties in reporting were compounded by deficits in scientific understanding among overworked journalists in precarious employment, who were encouraged to justify unprecedented lockdowns as a form of social solidarity. The assumption that by “following the science” a journalist is adequately performing his or her role is a dangerous fallacy, which does not take account of how diverging scientific arguments may be concealed.

    In the absence of sufficient independent journalism, and amidst censorship of alternative scientific opinion, troubling questions remain unanswered as the pandemic draws to a close. Perhaps we will never know the full story. Nonetheless, it is vital that adequate cost-benefit analyses (including with access to full trial data) are conducted on all pharmaceutical and non-pharmaceutical interventions in future.

    Feature Image (c) Daniele Idini: The Burning of “the Witch of Winter” in Cardano al Campo, Lombardy, Italy.

    We are an independent media platform dependent on readers’ support. You can make a one-off contribution via Buy Me a Coffee or better still on an ongoing basis through Patreon. Any amount you can afford is really appreciated.

    [i][i] Karl Popper (1972). Conjectures and Refutations, 4th ed. London: Routledge Kegan Paul. pp. 123–125.

    [ii] Hannah Arendt (1951) The Origins of Totalitarianism, 1951, p.140

    [iii] Adam Smith, The Wealth of Nations, book 1, chapter 10, par. 2).

    [iv] Seymour Hersh, Reporter, 2018, p.247.

    [v] Rusbridger, Alan, The Remaking of Journalism and Why it Matters, 2018, p.163-181

    [vi] Worldometre attributes 1,736 deaths to COVID-19 by December 31st, 2020.

  • The Brick Wall: Access to Justice

    I’m living in cloud cuckoo land
    And this just feels like
    Spinning plates
    Radiohead, Like Spinning Plates, Amnesiac 2001.

    Ten years on from the Irish Banking Crisis and the subsequent taxpayer funded bailouts, how are we faring in term of regulating the financial sector?

    In view of the possibility of another property bubble, it is surely vital to ensure appropriate access to justice, especially for those with limited resources.

    Prior to the Crash, banks through their own internal regulatory mechanisms – including risk management and third party auditing firms – were, essentially, allowed to regulate their own affairs, which unfortunately permitted a lax regime.

    On a rare occasion that a risk manager signalled grave breaches of conduct to the Central Bank of Ireland – as in the case of whistle-blower Jonathan Sugarman – he was largely ignored. And, even though thanks to his revelations we know a great deal more than we would otherwise about widespread banking mis-conducts, Sugarman subsequently had his professional and personal life destroyed. That message is surely not lost on colleagues intending to pursue a similar course.

    Back then, inadequate regulatory frameworks allowed underestimation of risk and outright profiteering in the banking sector. Yet there are reasons to believe that, despite the successes boasted of by the regulators, thousands of people are still being failed by the State.

    Despite concerns being raised in February, 2021 by Sinn Fein deputy Pearse Doherty that “2,865 complaints to the Financial Ombudsman remain unsolved for over 12 months” very little attention has been paid in the media to enduring dysfunctions in consumer protection frameworks, potentially affecting hundreds of thousands of consumers of financial services.

    Regulatory Capture

    Regulators come in two types: smart and dumb. The latter are more likely to make mistakes, and the market will learn about mistakes when firms squawk.
    Ernesto Dal Bó in the Oxford review of economic policy, Vol.22, NO.2

    Could this be a subtle example of so-called ‘regulatory capture’, which is said to occur when a particular industry holds an excessive level of influence over a statutory agency designed  to monitor and regulate it?

    Ernesto Dal Bó offers two interpretation of the phrase:

    According to the broad interpretation, regulatory capture is the process through which special interests affect state intervention in any of its forms, which can include areas as diverse as the setting of taxes, the choice of foreign or monetary policy, or the legislation affecting R&D.

    According to the narrow interpretation, regulatory capture is specifically the process through which regulated monopolies end up manipulating the state agencies that are supposed to control them.

    Either of these descriptions could easily be used to describe successive Irish government’s cosy relationship with foreign multinationals. Witness how in 2016 then Taoiseach Enda Kenny unashamedly set out Ireland’s stall as ‘the best small country to do business in’. Attracting financial service companies to a friendly, relatively unregulated, environment appears to remain high on the government’s agenda.

    But insofar as this is a legitimate goal, the way it is achieved, for example, by perpetuating dysfunctions in regulatory mechanisms, have grave consequences for the public at large, especially in terms of access to justice.

    Ombudsman

    One mechanism to provide access to justice is embodied in the role of the Ombudsman.

    This word come from Sweden where its first use is recorded in the 19th century. Meaning “Commission Man”, it involved oversight over the abuse of power by public administration. The position evolved with changing times and industries, to become globally adopted, assuming the part of an impartial mediator between individual complainants and large, well-resourced organizations.

    To give a simple example with a bit more context: what if you have a complaint against the misbehaviour of a credit institution with which you have a resulting outstanding debt?

    In Ireland, anyone in such a predicament can avail first of internal complaint procedures within the credit/insurance/pension providers. If this proves futile, as often seems to be the case, you can either go to the Financial Services and Pension Ombudsman (FSPO), or for the better-resourced, proceed directly to the courts.

    The FSPO was established in order to provide “an impartial, accessible, and responsive complaint resolution service that delivers fair, transparent and timely outcomes for all our customers, and enhances the financial services and pension environment.”

    It’s role is crucial in ensuring basic standards of consumer protection especially in a sector such as financial services, which bears significant responsibility for a dysfunctional property market

    This article is not disputing that the Office has fullfilled aspects of it’s responsabilities to date, and recognises the challanges of the past two years of the COVID-19 pandemic. The Office’s results are well presented in their annual digests of decisions, and were compellingly illustrated by the current Head of the FSPO, Ger Deering, in his Opening Statement to the Oireachtas Petitions Committee the 25th May 2021.

    What we are interrogating is why a large number of complaints, seem to have been closed in preliminary scrutiny on a narrow, legal interpretation of the Act. It is also unclear whether the FSPO is sufficiently staffed and organized to make use of the necessary banking knowledge in order to fulfil all its statutory duties.

    Boasting Figures

    Ben Hoey, an experienced ex-banker who founded Quartech services, a mortgage mis-selling advisory firm, has been assisting individuals with the filings of such complaints and has made us aware of some of the challenges encountered.

    Having submitted over fifty complaints over the last two year to the FSPO, as well as two FOI requests in June 2021 and most recently a judicial review, he also raises serious concerns over the ability of FSPO to carry out its duties.

    In an Opening Statement to the Oireachtas Petitions Committee, Mr Deering boasted: “In 2020, I am happy to report that, despite the challenges of the pandemic and remote working, we closed 6,193 complaints, an increase of 35% on 2019.”

    But thanks to Hoey’s FOI requests, we now know that 2,110 of these cases never entered the dispute resolution or investigation processes.

    Those numbers also slightly differ from the ones found in the annual report of 2020, and are presented in a way suggesting that 1,401 cases were actually sorted within a very short time frame.

    There are, undoubtedly, cases that were legitimately rejected as indicated in the Act. But in order to gain more detailed explanations for preliminary decisions, made in the first registration and assessment phase, the FOI requested documentation and records in relation to reasons for closure. Unfortunately, in this case the answer was ‘no records exist.’

    This is just the first stage of the complaint; the staff needs to interpret the Act and establish if the newly arrived complaint falls within the FSPO jurisdiction.

    It relies on training and guidance materials, which have also been released, and from this we see that when issues of jurisdiction arise, there is an over-reliance on the legal profession and a marked absence of the necessary banking expertise.

    In general, we know that if a complainant does not accept the preliminary rejection, and responds in writing, he or she receives a letter issued by the legal department. But in order to interpret and respond to this one would likely require legal advice.

    This doesn’t come cheap as the FSPO is well aware, since it spent €1.8m (46% of staff costs) on “Legal Fees” according to their 2020 accounts. By comparison the equivalent UK body filed no such expenses. Recall that the role of an Ombudsman is to be an impartial mediator between individual complainant and large, well-resourced organizations.

    Some of Ben Hoey’s clients received letters up to twenty-two pages long, containing dense legal terminology, supporting FSPO arguments not to investigate; rather than a professional financial analysis of the issue in question.

    Others have seen their complaints dragged out for years, stuck in the earliest phase of the “statutory complaints procedure”; which was established in order ‘to afford complainants an informal, expeditious and independent mechanism for the resolution of complaints.’

    From the point of view of some complainants, it feels as if the process of adjudication has been designed to keep their case out of the FSPO jurisdiction, thus keeping the number of cases that the Office investigates to a minimum.

    When the Financial and Pension Ombudsman positions were merged into their current form in 2018, the new organisation should have been structured, and staffed, to handle a increasing number of annual complaints. It appear from the latest annual report that this has been achieved, but when we get into the granular detail, we see that up to a third of these may have been inadequately handled.

    Given that a significant percentage of such disputes are in relation to mortgages and to a dysfunctional housing market, we can surely appreciate the importance of such an institution.

    The stigma attached to debt is a deep scar that afflicts many in an apparently prosperous country. Given that a level of responsibility lies with the lending industry, we should expect the Department of Finance to ensure that the relevant agencies such as the CBI and the FSPO that protect such individuals are adequately resourced.

    Yet the total count of full time employees of the FSPO is just 85 as of the end of 2021. That amounts to roughly twenty staff per million inhabitants in Ireland. By comparison, its counterpart in the UK employs double that with 3,000 staff, or approximately forty-four per million.

    A Stairway to Heaven

    Since Ger Deering was recently nominated by the Minister for Public Expenditure and Reform, Michael McGrath, to become Ombudsman and Information Commissioner, we expect that the position of Head of the FSPO will soon become vacant.

    We now have access to another FOI request providing insights into the recruitment of Ger Deering to the office in 2015/16, at a point when the Financial Services Ombudsman FSO and Pension Ombudsman were still separate bodies.

    A series of interviews were carried out with eight candidates on February 17-18, 2015 for the first round, and on February, 27, 2015 there were final interviews with the remaining three candidates, the “Board Members Guidelines” resembling a basic template for corporate hiring.

    All of the interviewers had impressive CV’s and expertise, including Mr John Hogan, then Head of Banking Policy for the Department of Finance and recently appointed as Secretary General.

    Revealingly, Hogan contributed to the “The Keane” Report on Residential Mortgage Arrears, which was criticised by Deputy Luke “Ming“ Flanaghan in 2011. The Report rules out the introduction of any scheme involving blanket debt forgiveness.

    Notably, the majority of complaints received by the FSPO pertained to financial and banking issues.  One would expect that any individual considered for that role – with powers to make legally binding decisions – would have extensive experience within the banking sector.

    By analogy, if one looks at the skills required of managers and other positions with supervisory roles, employed in the banking and insurance sectors that are imposed by the EU Single Supervisory Mechanism, we find clear guidelines in regard to required banking knowledge or one can even look up the job description for an FSPO Case Manager in PTSB.

    Yet in the advertised job description for The Financial and Pension Ombudsman we see theoretical banking or financial knowledge being “desirable” instead of “essential”, nor is there an examination process, beyond a standard interview.

    This is not to question Ger Deering’s managerial skills, nor his ability to adapt and learn, but when the job requires him to lead an oversight body over the banking, insurance and pension industries, his work experience is not what one would expect for the appointment.

    We know that the Office contains some banking expertise thanks to the qualifications of less senior staff, who have to deal with an enormous workload. But an appointment process for the top job focused on legal and managerial skills may perpetuate the current imbalance between the private and public sectors.

    In the forthcoming recruitment process for a position such as the FSPO, it is surely in the interest of the Department of Finance to appoint a person with more than generic managerial skills, and for some form of competitive examination to occur. Otherwise, it will be difficult to convince an increasingly sceptical Irish public that the government is genuinely intent on levelling the playing field between ordinary citizens and “too big to fail” corporations.

    Shared Responsibility

    One might say that appointing an ex-banker to the position creates a dangerous revolving door between banks and regulators, and is itself a recipe for regulatory capture. That argument is right to a point, but does not take into account that the necessary banking expertise might be found outside the banking industry itself, such as in auditing and accountancy firms; or by casting the net internationally to guarantee a greater degree of separation between the regulator and the regulated, especially in a small country such as Ireland.

    And, insofar as it is important to have sound legal advice, it is important that this is not set out in such a way as to intimidate complainants, and that the Office receives the same level of financial consultancy as the banks themselves.

    When we talk about consumer protection in the financial industry, we are really talking about the level field that the government promises, in relation to an industry administering one of the most powerful means of control, which is the complex socio-psychological phenomenon of debt.

    While some are celebrating that ‘The Boom is Back’, a significant proportion of the population is still struggling to overcome the effects that the previous boom and subsequent financial collapse actually brought; and, as in the period of austerity, the burden of bad choices is still carried almost exclusively by the most vulnerable and least resourced.