Of Course The LuxLeaks Leaker Should Be Prosecuted
There’s an interesting letter in The Guardian arguing that the LuxLeaks leaker should not be prosecuted for what they did is of such public interest that, well, they shouldn’t be prosecuted. The letter is, of course, from the usual suspects and manages, quite heroically, to miss the basic point about having a justice system and courts at all. Which is that sure, there are times when an action which could be, even is, regarded as illegal can be justified by some greater good. And the place to argue that case is in that justice system and those courtrooms. Not insist that the case doesn’t have to be so argued just because you happen to like what was done.
As background LuxLeaks is the handy portmanteau for the series of papers detailing the various tax opinions that were handed out in Luxembourg to various corporates over the years. The leaks are a great deal less than they’re being made out to be by those with a political axe to grind of course. They’re being marketed as evidence that Luxembourg was asked for and then granted illegal tax breaks to those who asked nicely. When in fact they’re much more along the lines of comfort letters. As in, here’s our understanding of how Luxembourg tax law would treat these transactions, can you confirm that we’re right here? The difference between bribing your teacher for a day off for the funeral of a grandmother that isn’t happening and asking your teacher for the day off for the funeral of your grandmother.
But here’s the letter itself:
We deplore the decision by Luxembourg to bring criminal charges against someone they believe to be the whistleblower responsible for passing to the media confidential rulings awarded by the Luxembourg tax authorities (Report, 20 December). We believe these disclosures were manifestly in the public interest, helping to expose the industrial scale on which Luxembourg has sanctioned aggressive tax-avoidance schemes, draining huge sums from public coffers beyond its borders.
The so-called LuxLeaks papers have already forced senior Luxembourg politicians, past and present, to admit there is an urgent need to reform the way multinationals are taxed. The revelations have also transformed the international tax debate, prompting the finance ministers of France, Germany and Italy to write to the European commission calling for urgent action. In their words: “It is obvious that a turning point has been reached in the discussion on unfair tax competition … Since certain tax practices of countries and taxpayers have become public recently, the limits of permissible tax competition between member states have shifted. This development is irreversible.”
We believe this development is in large part thanks to the brave, public-spirited actions of an individual who ensured the contents of confidential tax rulings granted in Luxembourg became public.
They go on for several more paragraphs and the signature list does contain all of the usual suspects. Their point being, essentially, that we approve of the effects of this breach of the law so don’t prosecute.
But that isn’t how the law does work or should work. It’s most certainly not what public policy about the law should be. Leave aside the economic points about Luxembourg and taxation here. Someone has broken the law: we all agree upon that. The argument being proffered after that is that there’s a public interest defence to that breach of the law.
OK, fine, maybe there is and maybe there isn’t. We can disagree about that. But where is the place to have the argument about whether there is a reason either in equity or as a result of that public interest defence that the law breaker should not be punished? Well, given the system we have, the place to have that argument is in a courtroom and in the course of a trial. Because that’s the system we’ve set up to weigh and balance evidence.
It might well be that that public interest defence is strong enough that the whistleblower/leaker (however you wish to define them) should not be punished. But the place to decide that is the court, not the letters pages of a newspaper.