Wednesday, 10 December 2003
Dáil Eireann Debate
(c) within a category of persons prescribed by regulations made by the Minister describing himself or herself as, or holding himself or herself out to be, a turf accountant, a legal cost accountant, or within the category of persons so prescribed.
We discussed the amendment on Committee Stage. The object is to ensure the public is properly protected by making sure all persons acting as accountants fall with the scope of the legislation and the purview of the supervisory authority that will be established upon enactment of the legislation. That was the intention of the review group on auditing whose report is the genesis of the legislation. Only members of recognised or prescribed professional bodies will be subject to the supervisory authority under the Bill. I am anxious that those who hold themselves to be accountants and do accountancy work should also be subject to the controls that will be put in place, otherwise a difference will be created between various categories of people who do similar work, while those who have a professional qualification or who are members of a professional body will be disadvantaged.
Mr. Murphy: The purpose of my amendment is to ensure the public is properly protected by making sure all persons acting as accountants fall within the scope of the supervisory authority, as intended by the review group on auditing. For this reason, it is considered necessary to afford statutory protection to the term “accountant”.
Minister of State at the Department of Enterprise, Trade and Employment (Mr. M. Ahern): Once again, I must declare my interest as a member of one of those prescribed bodies. Deputies Howlin, Hogan and Murphy have put down amendments Nos. 1 and 2 with regard to providing legal protection for the term “accountant”. As I stated previously on Second and Committee Stages, this issue would benefit from further consideration and research. It is a matter in which I have had a considerable interest for many years.
Mr. M. Ahern: It is my intention to request the supervisory authority, when statutorily established, to examine the issue in detail and report back to me when it has completed its deliberations. I will ask the authority to ensure that this study will not extend over an unduly long period. In this context, I take the opportunity, once again, to exhort members of recognised bodies to emphasise their membership of these bodies on all appropriate occasions, as well as the protection which that affords to their clients. Recognised bodies could usefully promote themselves in a similar way. In these circumstances, I am sure Deputies will understand that I cannot accept the amendment at this time.
Mr. Howlin: I am disappointed the Minister of State is taking that approach. I believe he sees and accepts the logic of the case we made coherently and well on Committee Stage. Many of the contributions on Second Stage also dealt with this matter. There is a requirement in the basic statute for a definition of “accountant” so that the supervisory authority we are now establishing will have application across all who hold themselves as accountants. The problem with asking the new authority to look at the definition subsequent to the enactment of this legislation is that it cannot enact or amend this legislation.
This is an issue to which we will have to return. It is disappointing that, in the considerable intervening time during which the Bill went through its various Stages in the Seanad and this House, the Minister of State has not had some discussions, even on a preliminary basis, on a proposed amendment. That would enable us to deal with the matter now, so that it could be enshrined in the basic statute.
The authority is very heavily weighted in favour of the public sector and non-business members. With the exception of two IBEC nominations, there is no provision for company directors, despite the fact that sections 26, 40 and 43 will have a very important impact on companies and their directors.
Mr. Howlin: On a procedural matter, I would prefer if the amendments could be dealt with separately because, although related, they are different. One deals with the role of a chief executive officer.
Mr. Howlin: Each of the issues is separate. For example, amendment No. 5 relates to whether a chief executive officer should be a member of the board, whereas amendment No. 6 refers to the number of members of the board. Those are separate issues and it would be more helpful and effective to deal with them separately.
Mr. Howlin: Yes. I will speak on each of them separately. My amendment No. 5 relates to an issue I dealt with on Committee Stage. As a matter of general principle, I thought I had convinced the Minister of State – indeed, he indicated he would give serious consideration to this matter on the basis that the chief executive officer should not be on the board of a company as that blurs the necessary division of responsibilities. I have tabled similar amendments to a number of Bills to the effect that a chief executive should not be a voting member of the board. The board should make policy and the chief executive, although attending board meetings, is separate from the policy-making role. It is a matter of good governance. I would hope that, on mature reflection, so to speak, the Minister of State might accept that view.
Amendment No. 6 seeks to delete the figure “3” and insert the figure “5”. The purpose is to increase the number of accountants on the board as it is inadequate to provide for only three out of the 14 members. While it would be important to ensure that it is not a matter of self regulation, we need to consider the appropriate number of accountants to give the board the necessary professional accounting overview. The number proposed in the Bill is too few. The overall number will depend on whether the amendment with reference to the chief executive is accepted and whether the chief executive happens to be an accountant. For that reason, I would have preferred to deal separately with those issues.
Amendment No. 7 proposes to delete sections 3 and 4. Those provisions prohibit more than four members of the board from being members of accountancy bodies. That is wrong in principle and can only guarantee that the supervisory authority would lack the necessary relevant knowledge of the subject matter of their responsibilities, which could be very complicated in processing some complaints. It is a matter of teasing out the question as to the right number to give the proper balance to the supervisory authority. I would have thought the numbers I am suggesting would improve the Bill. I would like to hear the considered opinion of the Minister of State.
Mr. M. Ahern: Amendment No. 3 provides for inclusion of the Institute of Directors as a designated body. As I said on Committee Stage, in the context of my re-examination of the composition of the board of the supervisory authority, I looked very closely at the list of designated bodies at section 6, because each of those bodies has the right to nominate a person as a director to the board. I added the Law Society of Ireland to the list on Committee Stage in the Seanad. I am happy with the list of designated bodies provided for at section 6. Their nominees to the authority should bring a balanced and appropriate range of expertise to that body.
Turning to amendments Nos. 5, 6 and 7, as I already said on Committee Stage, I deliberated at some length and with considerable care as to the appropriate composition of the board before altering the permissible level of representation by accountants. The purpose of the formula I designed is to achieve what I believe is a fair, realistic and equitable balance in terms of overall representation on the board. I am still of that view. The number of directors can be altered by means of ministerial regulation under section 46 (1), as a consequence of changes made with regard to prescribed or designated bodies.
Specifically on amendment No. 5, I have reflected on the question raised by Deputy Howlin, which would have the effect of debarring the chief executive officer from being a director of the supervisory authority. From a general corporate governance aspect, it is normal in companies to have executives who are also members of the board of directors. This is especially the case where chief executive officers are concerned.
The main area of concern is where all the power in a company is vested in the chairperson who is also the chief executive, which is not considered conducive to good corporate governance practice. That is not the position in the case of the new statutory authority. Accordingly, I am satisfied with this section as it is worded.
With regard to Deputy Howlin's comments on expertise, sub-committees can be set up to deal with specific issues and the executive can hire or put in place persons with expertise if necessary. Though the board may not fully comprise experts, it will have access to people with expertise. From the foregoing, the Deputies will understand that I am not prepared to take the amendments on board.
Mr. M. Ahern: The maximum will be five accountants. Three would be from the accountancy bodies, one from the designated bodies and the chief executive, who in many cases would be an accountant, could be the fifth member.
Mr. Howlin: That means that there will four, with the potential of five if the chief executive is an accountant. I will not quibble with that as it is better than the original proposal. However, the chief executive should not necessarily be an accountant. Five accountants would be the correct proportion. However, I am not going to win the argument.
The purpose of this amendment is to ensure that when a member of the supervisory authority is removed, as is authorised under the section, the Minister must formally notify the Dáil and the Seanad of the reasons for the removal. In an era of transparency and accountability, nothing less would be expected. I do not see any difficulty in accepting that amendment.
Mr. M. Ahern: The nominees of designated bodies, not of the Minister, are appointed by the Minister to be the directors of the supervisory authority. It is possible that the reasons a person is removed from a directorship could be personal and private. Accordingly, I am reluctant to impose an obligation on the Minister in all instances to have to disclose reasons to both Houses of the Oireachtas. If there is a particular concern about the removal of a director at a point in time, a Deputy can submit a parliamentary question on the matter. The relevant Oireachtas committee can also ask the chief executive and the chairperson to account for the reasons for the removal.
Mr. Howlin: I hope the Minister of State is indicating that he will accept another amendment that will allow the chief executive to comment on Government policy. There is no other basis on which the chief executive could give the information that the Minister of State has stated to an Oireachtas committee. We will wait with anticipation to see whether his goodwill extends to that.
There is no logical reason a simple explanation cannot be given to the House for the removal of a member of the supervisory authority. If there were personal reasons, a statement to that effect would suffice. It should be a matter of principle and openness that business is done in an open way. There should not be State secrets and exceptions. It also should not be incumbent on a Member to table a parliamentary question to ascertain such information. The more we make this House relevant to the functioning of all agencies we establish under legislation, the better it will be.
“(5) A disclosure pursuant to subsection (2) or section 19(1) or a decision pursuant to subsection (4) shall be notified to the Standards in Public Offices Commission and shall be made available publicly by the Standards in Public Offices Commission.”.
The purpose of this amendment is to ensure that declarations of interest are available to the members of the public. I am sure, a Cheann Comhairle, you are familiar with the workings of the Ethics in Public Office Act 1995 and the Standards in Public Office Commission. It is now normal under these structures to ensure that declarations of interest are made public and that conflicts of interests are publicly discernible.
This is a matter of the openness flowing through public administration since the enactment of the Standards in Public Office Act 2001 and other legislation, including the Freedom of Information Act 1997. I hope the Minister of State will accept the amendment in the spirit it was tabled to allow for openness. I do not believe it would harm any potential member of the supervisory authority if their declarations of interest were made public.
Mr. M. Ahern: The Deputy's amendment stipulates that material interests arising in sections 18 and 19 be notified to the Standards in Public Office Commission and be made available publicly by that body. On Committee Stage, my response to this amendment was that it is not appropriate that these items of information be included in this legislation.
Mr. M. Ahern: If this disclosure was genuinely necessary, it would be a matter for the commission to require it. This amendment also attempts to commit the commission to making this information available which is inappropriate for this Bill. For these reasons, I am not in a position to accept the amendment.
Mr. Howlin: That is an extraordinary response from the Minister of State. He has basically told the House that it is a matter for the Standards in Public Office Commission, of which the Ceann Comhairle is a member, to determine the law and what should and should not be disclosed to members of the public. I am sure if you were free to say so, a Cheann Comhairle, you would agree with me. It is not for the Standards in Public Office Commission but for the Houses of the Oireachtas to determine what is declared and the manner in which it should be disclosed to members of the public. It is a peculiar suggestion of the Minister of State that it is not a matter for the Houses of the Oireachtas to make such decisions but rather the Standards in Public Office Commission.
Does the Minister of State accept that the Standards in Public Office Commission should be determining how ethics legislation should be rolled out, who in the public service it should encompass and the manner in which declarations are made? If that is what he is suggesting, it is an amazing assertion. I reject the notion that it is a matter for the Standards in Public Office Act 2001. The spirit of it should now be a matter of routine analysis in legislation as gender proofing is a matter of routine. We once said we needed special legislation to prevent discrimination against women. It is a matter of routine that there is such gender proofing in all legislation. We would not expect overarching legislation to give these rights to women. In a similar vein, if we are serious about ethics and standards, this concept should pervade all legislation enacted by these Houses.
Mr. M. Ahern: I believe it should be contained in an amendment to the Standards in Public Office Act and should not be included in this legislation, as I have stated tonight and on Committee Stage.
This amendment was also discussed on Committee Stage. Its purpose is to remove the gag that is proposed in this legislation on the chief executive and chairperson of the supervisory authority. Under the Bill, neither of these two individuals can comment on Government policy if called to do so before a committee of the House. I regard this as inappropriate.
The Select Committee on Enterprise and Small Business today dealt with the Personal Injuries Assessment Board Bill. I tabled a similar amendment concerning the supervisory authority being established under that Bill. During that debate, the Tánaiste accepted that similar amendment. She said it was her Department's policy not to have such a gag. I assume the Tánaiste sets policy in her Department and therefore the Minister of State should accept this almost identical amendment to this Bill.
Mr. M. Ahern: It pointed to the fact that a similar provision is included in comparable legislation. As I understand it, this is also the policy of my Department. I was not aware of what had happened on Committee Stage of the Personal Injuries Assessment Board Bill.
Mr. Howlin: There is much talk about joined-up Government. The Tánaiste explicitly stated today that it would be her policy and that of her Department not to have provisions of this nature. For this reason she agreed with my amendment to remove the provision from the Personal Injuries Assessment Board Bill. Either it is the policy of the Department of Enterprise, Trade and Employment or it is not. Is the Minister of State in a position to overrule the Tánaiste on this matter? I would be happy to adjourn the House for five minutes to allow the Minister of State to take advice from the Tánaiste.
An Ceann Comhairle: Amendments Nos. 11, 12, 15, 20, 22, 24, 25, 27, 28, 31 to 34, inclusive, 38, 39, 46 to 48, inclusive, and 56 are related. Amendment No. 13 is an alternative to amendment No. 12, amendment No. 16 is an alternative to amendment No. 15, amendment No. 21 is an alternative to amendment No. 20, amendment No. 23 is an alternative to amendment No. 22 and amendment No. 26 is an alternative to amendment No. 25. It is proposed to discuss amendments Nos. 11 to 13, inclusive, 15, 16, 20 to 28, inclusive, 31 to 34, inclusive, 38, 39, 46 to 48, inclusive, and 56 together by agreement.
Mr. Howlin: I will try to address the key issue involved. Unfortunately I will be unable to deal with each of the amendments, as I cannot track them all. I have a view on this, which I discussed with the Tánaiste before the Bill was introduced. The model for addressing complaints proposed in the legislation is that a complaint be initially processed through one of the three professional accountancy bodies. These bodies are to make arrangements to process a complaint according to their own standing orders, subject to regulations to be determined by the new supervisory authority we are establishing.
We do not know how long this will take. The most recent case took a very long time and involved a very expensive process. The Bill suggests that the new supervisory authority, if it is minded so to do, can set that aside and start again. While I disagree with this model, it is the one we have and there is no point, therefore, in my trying to dismantle it by tabling amendments because I lost the argument and do not have the votes on this side of the House to convince the Minister of State that it is a cumbersome model. However he must be faithful to this model in enacting legislation.
Amendment No. 11 would establish that the appropriate place for a preliminary examination is within the body and there should be a facility laid out in statute outlining how a complaint should be processed. While a formal inquiry under section 23 might be necessary, there should be some sifting in advance of that. This seems a reasonable approach. We debated this principle at length on Committee Stage. The section should specifically refer to due process. There can be no objection to enshrining a procedure that is in accordance with due process and natural justice. We should lay out the procedure in the basic statute.
This is basically what is at issue in this series of amendments which seeks to lay out the model the Government has accepted from the advisory group it established to deal with complaints. It should be explicit, fair, transparent and laid out. Otherwise, as Deputy Hogan forcibly argued on Committee Stage, the supervisory authority might be the first port of call and might be overwhelmed by representations bypassing the preliminary sifting we seek. This is at the core of the proposals of the Minister of State. If he is faithful to his model, he must lay out the procedures that are fair and appropriate under this. Otherwise he must abandon his model because the recipe within the proposal before the House will ensure the supervisory authority will collapse under the weight of its own complaints.
I appeal to the Minister to revisit this matter. I hope he has had a chance to reflect on the arguments made on Committee Stage and thought of an answer to the very clear case being made on this side of the House.
Mr. Murphy: I am slightly confused by the way in which the amendments are grouped. A great many issues arise in respect of the amendments under discussion which relate to principles of natural justice. For this reason, Fine Gael has insisted that the amendments should be made to the Bill. It has been brought to our attention that amendment No. 20 raises the issue of permission to copy documents rather than merely to inspect them. It is felt that this could lead to problems.
Generally, the Fine Gael amendments seek to ensure that people have the right to be represented, to defend themselves and to know what accusations are being made against them. All rights regarded as proper to natural justice and the right of people to defend themselves have been incorporated in the amendments. For that reason, we are anxious to see them made.
Mr. M. Ahern: Deputies Hogan and Howlin have tabled a significant number of amendments which repeat amendments tabled and discussed on Committee Stage. They propose the introduction of significant procedures and practices in respect of the manner in which the supervisory authority conducts investigations, inquiries or reviews under sections 23, 24 and 25.
Having reflected on the concerns voiced by the Deputies on Committee Stage, I considered it appropriate to bring forward a number of amendments in my own name. These are being discussed as part of this grouping. The most significant amendment is amendment No. 47 which proposes the insertion of a new section 28. Subsection (4) of the new section will require the supervisory authority to make regulations in respect of the procedures to be followed in the conduct of inquiries under section 23, investigations under section 24 and reviews under section 25. Thus, there will be a statutory obligation to prepare a modus operandi for conducting inquiries, investigations and reviews under the relevant sections.
Subsection (2) of the new section will provide that a witness before the authority shall be entitled to the same immunities and privileges as a witness before the High Court. Subsection (3) of the new section seeks to protect persons against having to disclose any information they would be entitled to refuse to produce on the grounds of legal professional privilege. The subsection also prevents the authority inspecting or copying any document containing such information.
Amendment No. 46 is consequential on the introduction of the new section 28. Amendment No. 56 is designed to provide the same protection against having to disclose information or produce documents in circumstances where legal professional privilege arises. Amendment No. 48 will insert a new subsection (3) into the existing section 28. The subsection will make provisions in respect of the manner in which the court can deal with an application from the supervisory authority under section 23 for permission to conduct an investigation under section 24. The subsection specifically provides that the court may set aside any pre-existing decision of a prescribed accountancy body relating to the matter.
Amendments Nos. 13 and 16 are consequential amendments which are being discussed as part of this group for the simple reason that Opposition amendments are proposed to the subsections to which they are being made. Naturally, I will move my amendments while opposing the relevant Opposition amendments. Amendments Nos. 23 and 26 are consequential amendments which arise from changes I am proposing today or issues of clarity.
I am satisfied that my amendments constitute an appropriate response to the concerns and views expressed by Deputies Hogan and Howlin. In the circumstances, I am unwilling to accept any of the amendments in this grouping which they have tabled.
Mr. Howlin: I welcome the fact that the Minister of State is beginning to address the issues. However, his is a lazy man's way of doing so. He is providing an enabling provision for regulations which we have not seen. I would like to see the regulations. The House should know what procedures will be involved to ensure they are fair and comply with the principles on which our amendments are based.
A complicated series of amendments have been grouped, some of which we have just received. We are considering them to discover the extent to which they address the concerns behind the Opposition amendments.
The purpose of amendment No. 21 is to ensure that all disciplinary decisions of the supervisory authority are published. Can the Minister of State guarantee that this will be the case? Since such a provision is made in respect of solicitors, why should one not also be made in respect of accountants? Amendment No. 31 seeks to provide a new subsection (3) to allow the supervisory authority to refer any question as to a possible breach of the prescribed accountancy body's standards by a member to the prescribed accountancy body concerned for investigation by it. Will a provision of this sort be encompassed in the regulations?
Mr. Howlin: That is the whole point. We are buying a pig in a poke. The Opposition has set out a procedure which we suggest would be fair and appropriate. The Minister of State has listened to our arguments and agreed that such a procedure should be introduced. However, he says it should be determined by the supervisory authority and implemented by way of regulation. We have no idea what the authority's procedure will be. In essence, the Minister of State is asking us to buy a pig in a poke. Can the Minister of State answer my questions?
Mr. Howlin: I am sure the Minister of State does not. This is the net issue. Although there are other issues I would like to discuss, this is the core issue for me. The procedures should be clear. This is a fundamental issue of natural justice. There should be a clear procedure and people should know how it will be followed. There should be an initial clearing house for complaints. It could act as a procedure to deal with vexatious complaints. We should be certain that complaints will be dealt with in the first instance by professional bodies. This is the Minister of State's model, not mine.
Mr. Howlin: May I ask a final question? I appreciate that I will not get anywhere with it. The amendments tabled by Deputy Hogan and I set out a procedure which is intended to be part of the primary legislation. The procedure is fair and meets the test of natural justice. If the amendments are accepted, it will be compulsory for people to follow the procedure. The findings will be published and that will be that. The Minister of State has said he is addressing Deputy Hogan's concerns and mine by allowing regulations to be introduced. What sort of regulations are planned, in terms of the authority of the House? Will the regulations be laid before it? Will they be statutory regulations? Will they capable of being struck down by the House?
Mr. Howlin: The fact that the Minister of State is being disorderly shows how farcical this is. He said that this matter will be subject to a judicial review, but that will do nothing other than to determine whether the regulations are in accordance with law. Policy and law are determined by the House. If we do not like the regulations, the Minister of State says that they will not come back to us. If we do not like the procedures adopted by the Minister of State, we will not have any say in them. I wish to confirm to the Minister of State that the vagueness of this will put at risk the functioning of the supervisory authority. It will attract people towards making the authority the first port of complaint. There is every danger that the supervisory authority will collapse under the weight of the complaints with which it will have to deal.
Mr. Howlin: The cost of processing a single complaint is up to €3 million. The Minister is providing little more than one third of that amount to allow the supervisory authority to function. He is providing for the demise of the authority as part of the Bill. He is asking us to buy a pig in a poke.Tá
Durkan, Bernard J.
Higgins, Michael D.
Ó Caoláin, Caoimhghín.
Ó Cuív, Éamon.
Ó Fearghaíl, Seán.
An Ceann Comhairle: Amendment No. 14 in the name of the Minister arises out of committee proceedings. Amendments Nos. 17 to 19, inclusive, 29 and 30 are related. Amendment No. 29 is an alternative to Amendment No. 30. It is proposed to take Amendments Nos. 14, 17 to 19, inclusive, 29 and 30 together by agreement.
“(4) If, at any time before completing an enquiry under this section into a matter relating to a member of a prescribed accountancy body, the Supervisory Authority forms the opinion that it is appropriate or in the public interest that the matter be investigated under section 24, the Authority may apply to the High Court for permission to investigate the matter under that section.”.
I am proposing several related amendments, and I would like to explain what they are intended to do. The first and most significant of those is amendment No. 14, which inserts a new subsection (4) into section 23. Deputies will recall that, by virtue of amendments which I tabled on Committee Stage, the supervisory authority would have been prevented from undertaking an investigation under section 23 where the same matter had already been the subject of an investigation under section 24 and vice versa. On reflection, I am of the view that an absolute prohibition as just described is not warranted. For instance, it could result in the authority undertaking investigations under section 24 which could and should be undertaken under the powers contained in section 23, just so that they would not be denied the right to proceed under section 24.
The insertion of the new subsection will allow the supervisory authority to apply to the court to change to an investigation under section 24, and I am satisfied that that will give greater flexibility to the authority while, at the same time, ensuring that the interests of the other parties can be protected by the court. Amendment No. 29 substitutes a new subsection (2) in section 24. That is a section that I had already amended on Committee Stage. The additional element now included is the reference to the ability of the supervisory authority to conduct an investigation under section 24 into a matter that has been examined under section 23, where the High Court grants such permission on the application of the authority.
Amendment No. 19 provides that any suspension of an existing decision only operates from the time the court delivers its judgment. Amendments Nos. 17 and 18 are consequential on the earlier amendment inserting a new subsection (4). I have retained the flexibility for the supervisory authority to undertake an investigation under section 24, where the authority considers it appropriate or where it is in the public interest and, accordingly, I am not prepared to accept Deputy Howlin's amendment No. 30.
Amendment No. 30 in my name, which we debated on Committee Stage, underlines that I am unclear about the meaning of section 24(2)(a) which, as it stands, states that: “in the Authority's opinion, it is appropriate or in the public interest to undertake the investigation”. My amendment seeks to delete “appropriate or” because I cannot see how it could be appropriate if it is not in the public interest, which was my argument on Committee Stage. I am sure the Minister of State has had a chance to reflect on that and can explain the options. How could it ever be appropriate if it was not in the public interest to have such an investigation?
Mr. M. Ahern: We have already discussed the issue of “appropriate or in the public interest”. If something is in the public interest, some person might challenge whether it is actually in the public interest, whereas the authority could decide on something it considers as being appropriate. Therefore, it is different from not necessarily being in the public interest and we feel both should be included in the section.
Mr. Howlin: I do not see how “in the public interest” is subject to challenge, as the Minister of State suggests, and the word “appropriate” is not. Either phrase is subject to challenge but that is not the point. How could it ever be appropriate if it was not in the public interest? Why do we have the word “or” in this context?
In page 21, lines 45 and 46, to delete “decides to direct a prescribed accountancy body under subsection (4)(b)” and substitute “applies under this section to the High Court for permission to investigate under section 24 any matter relating to a member of a prescribed accountancy body or decides to direct a prescribed accountancy body”.
“(a) in the case of an application to the High Court for permission to investigate a matter, any decision of that body relating to the matter is suspended if and as soon as the body is notified by the Supervisory Authority that permission has been granted under section 28(3);”.
“(2) If, in the Supervisory Authority's opinion, it is appropriate or in the public interest to undertake an investigation into a possible breach of a prescribed accountancy body's standards by a member, the Authority may do so–
but no investigation may be undertaken into a matter that is or has been the subject of an enquiry under section 23 relating to that member except with the permission of the High Court granted on application under section 23(4).”.
“(3) The Supervisory Authority may refer any question as to a possible breach of a prescribed accountancy body's standards by a member to the prescribed accountancy body concerned for investigation by it.”.
Mr. Howlin: I suggest we do. The Minister of State may recall he gave me a legal view on Committee Stage on this matter and undertook to check it again in the light of information I had. The purpose of these amendments is to give the supervisory authority an express power to administer affirmations. The Minister of State said on Committee Stage that it was unnecessary.
While it is true that the Interpretation Act 1937 states that an oath includes a reference to an affirmation, where a person is entitled by law to give an affirmation, I am advised there must be a pre-existing entitlement. The only relevant entitlement is the Oaths Act 1888 which applies only to the legal definition of proceedings. I am further advised that it is unclear whether proceedings under the 1888 Act could encompass administrative proceedings of the kind contemplated by the supervisory authority in this legislation. Therefore, I am advised that this amendment is necessary.
Mr. M. Ahern: I am advised that paragraph 20 of the Schedule to the Interpretation Act 1937 adequately covers the Deputy's concerns. This Bill forms part of the corpus of company law and as such there is a need to ensure a uniformity of terms with those employed in that existing body of legislation. The usage we have adopted here achieves this objective. If, however, I was to make the amendment proposed by Deputy Howlin, it would have the result that in some places in the corpus of company law oaths and affirmations would appear whereas in others only the existing reference to an oath would appear. This would give rise to the kinds of doubts about which the Deputy expressed concern. I am not prepared to accept the amendment.
Mr. Howlin: I raised this point on Committee Stage and I would have expected that the Minister of State would have responded to the legal position I outlined. Did the Minister of State seek legal advice subsequent to Committee Stage? Will he read into the record the written advice of the Attorney General in respect of the encompassing of proceedings under the Oaths Act 1888 and the position vis-à-vis the type of proceedings envisaged under the supervisory authority, which would be different from those before a court which would be encompassed by other company law? Is the amendment unnecessary? Will the Minister of State read into the record the advice he received following Committee Stage from the Attorney General?
Mr. M. Ahern: We were advised to proceed in the manner in which we have already. The company law review group is preparing the new company legislation. We will ask it to review this issue and we will keep the Deputy advised of how matters proceed.
Mr. Howlin: The only justification the Minister of State has put forward for rejecting the amendment is consistency in the Companies Acts. Those Acts are very different from the legislation before us and many of the proceedings under them would be taken in the courts. We are discussing administrative proceedings before a supervisory authority.
Mr. Howlin: I would like to hear that advice. The only justification the Minister of State provided for not accepting the amendment is for reasons of consistency. Will he answer the question I posed? Does the Interpretation Act 1937, which states that an oath includes reference to an affirmation, encompass the proceedings that are envisaged under the supervisory authority? It is a simple question.
Mr. M. Ahern: We received advice from the Parliamentary Counsel and the advisory section of the Attorney General's office which indicated that there is a need to ensure a uniformity of terms. That is what we have done in this instance.
Mr. Morgan: How can the Parliamentary Counsel review the legal position outlined by Deputy Howlin? The Minister of State's offer to keep Deputy Howlin informed of the counsel's deliberations will not have much effect because I presume the Bill will already have been enacted. How can such advice be of any value in that instance?
Mr. Howlin: On Committee Stage, I moved the amendment merely to hear the Minister of State's argument. That argument was the same as that which he has just placed on record. He has not addressed the issue of whether this provision is infirm. He merely stated that the advice he received is that it must be consistent with the Companies Acts. However, that is not the question. If the Minister of State has received advice since Committee Stage that the amendment is unnecessary, will he read it into the record and indicate how the Interpretation Act 1937 will apply to proceedings envisaged under the Bill? I have no doubt that he has checked the position.
I am optimistic that these amendments will be accepted. As indicated from the advice I received, this section is of dubious constitutionality. It is not appropriate for the supervisory authority to simply give a certificate to the High Court on foot of which the court might punish a person who is not co-operating with it. Subsection (6)(c) is particularly wide and might be thought to include a power to send a person to prison until he or she co-operates. This would clearly be unconstitutional because it runs contrary to the right in the Constitution to a trial by jury. Accordingly, I am advised that only an ancillary or consequential order under that paragraph could be constitutional. The amendment is required to save the Bill from a constitutional challenge.
28.–(1) The Supervisory Authority may for the purposes of exercising its functions under section 23 or24 conduct an oral hearing in accordance with regulations made under subsection (4) of this section.
(3) Nothing in section 23, 24 or 25 compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person's possession.
“(3) On application under section 23(4)for an order granting permission for an investigation under section 24 into a possible breach of a prescribed accountancy body's rules by a member, the Court may–
The purpose of this amendment is to enable the supervisory authority to disclose information to the Oireachtas. It would be an absurdity if it could disclose information to the bodies listed in section 30 and not specifically state “a committee of the Houses of the Oireachtas.” No doubt the Minister of State will tell us, as he did on Committee Stage, that this is already encompassed. As we are listing all the bodies to which information can be disclosed it is appropriate that we give the proper status and authority to committees of this House. That would not damage the Bill.
Mr. Howlin: No damage would be done to the Bill if committees of the Houses were specifically mentioned. It would be good for the status of such committees if they were mentioned. The notion that the chief executive officer or chairman of the supervisory authority could be subpoenaed before the House—
Mr. Howlin: The Minister of State would do well to read the amendment. It seeks to insert that a committee, not a particular committee, of either or both Houses of the Oireachtas be included in the list. The name of the committee is encompassed in the wording used and would not require any statutory change. Will the Minister of State accept the amendment?
This amendment seeks to insert a new subsection which provides that reference to section 30 is deemed to be inserted in the Third Schedule to the Freedom of Information Act 1997. There was resistance on the part of the Minister of State to establish rights under the Ethics in Public Office Act without reference to it. I have no doubt he will accept that the proper way to deal with this would be to amend the Third Schedule of the Freedom of Information Act to include the new authority.
The amendment seeks to facilitate the application of FOI to the supervisory authority. If we are speaking about an open and transparent system and as, incrementally, more bodies are being encompassed by FOI, I would like to hear a coherent reason the Minister of State cannot accept the amendment.
Mr. M. Ahern: Amendment No. 50 would, if accepted, constitute a new subsection (5) to section 30. The effect of the amendment would be to insert this section in the Third Schedule to the Freedom of Information Act 1997. As I explained on Committee Stage, legal advice obtained during the drafting of the Bill was to the effect that the question of the application of the Freedom of Information Act was one which procedurally fell to be addressed once the Bill is enacted.
Accordingly, I am minded to adhere to the legal advice in this instance. It also appears acceptance of the amendment would result in implications for the confidentiality of the information referred to in this section. In the circumstances, I cannot accept it.
Mr. Howlin: I have heard it all now. The advice is that we should insert this when the Bill is enacted. That is new. How will it be done? How will we include it in the terms of the Freedom of Information Act once the Bill is passed? Will it require new legislation? The Minister of State's reply beggars belief. We are either in favour of the Freedom of Information Act applying to the supervisory authority or we are not. If we are, we should make the change now and not wait for future legislation. It is a little like St. Augustine, we will be good but not yet.
The Minister of State said it would not be appropriate to release certain information. That happens all the time in terms of applications. They are detailed in the FOI. The exceptions and exemptions made by the Freedom of Information Officer are subject to appeal to the Freedom of Information Commissioner. The procedures are set out in the 1997 Act to meet the difficulties to which the Minister of State has alluded. If he is serious about applying the FOI to the supervisory authority – and he has given no reason for not doing so – then he should do so now.
Under the section, no damages may be obtainable against the supervisory authority or anyone acting on its behalf for any illegal activity except where the illegal activity is carried on in bad faith. It is reasonable to exempt individuals who make mistakes. They should not be held personally liable but why should not the authority and its corporate entity be liable to pay damages to a person injured by it through inadvertence or ineptitude? There is no reason the authority should be exempted from damages in this extraordinary manner.
Mr. M. Ahern: The amendment seeks the deletion of the words “Neither the Supervisory Authority nor any” at section 32(1). The effect would be to remove the supervisory authority as a corporate entity from exemption from liability for damages for anything purported to be done or admitted to be done by the authority or a person on its behalf. I attach great importance to exemption from liability in the case of the supervisory authority as a corporate entity. This is the basis on which the legislation has been prepared. There are a significant number of precedents in comparable cases.
An Leas-Cheann Comhairle: As it is now 10.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: “That amendment No. 55 and the amendments set down by the Tánaiste and Minister for Enterprise, Trade and Employment and not disposed of are hereby made to the Bill; that Fourth Stage is hereby completed and the Bill is hereby passed.”
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