Public Business. - International Health Bodies (Corporate Status) Bill, 1970: Committee Stage.

Wednesday, 8 July 1970

Seanad Eireann Debate
Vol. 68 No. 11

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Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I move amendment No. 1:

To add at the end of the section “and `international body' means a body which is not restricted as to its membership or its functional area by difference to nationality”.

It was mentioned on the Second Reading that one of the apparent omissions in the Bill was that there was no definition of an international body. The purpose of my amendment is to supply in however general terms some definition of the type of body that would be regarded as an international body. I am not particularly wedded to the wording of this amendment and if the Minister feels that the amendment in this particular form is for any reason unacceptable I should be quite happy for him to suggest an amendment provided some kind of definition is inserted.

I deliberately worded my amendment to make the definition of a fairly general character which will not militate against the principles of the Bill or against the ideas which the Minister may have as to what type of bodies it would be appropriate to deal with under this Bill. I suggest we define an international body, as a body which is not restricted as to its membership or its functional area by reference to nationality. Some kind of guideline should be laid down in the Bill because if we leave it as it is I can see considerable difficulties might arise later in the interpretation of the Bill when it becomes an Act. For example, it would be possible to have established either in this country or elsewhere a body calling itself “international” but which is primarily concerned either with operating in a particular national field, or operating so to speak on the international scene which might be restricted so far as its membership is concerned to one particular nationality. I do not think bodies of that sort are bodies to which the Minister intends this Bill should apply. If there is no definition it seems to me that this Bill would apply to them. I would suggest [719] the Minister should accept this amendment or if he prefers to re-word it he may introduce an amendment himself defining the words, “international body”. The definition I have suggested ensures that it does not militate against the principles of the Bill in any way.

Minister for Health (Mr. Childers): Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am advised that the words, “international body” do not require definition. It is well known what they mean. The fact is that the Minister for Health initially will make the decision as to whether any body should be incorporated under this Bill. He then has to bring the order before both Houses of the Oireachtas, it would be impossible for any Minister for Health to bring before the Oireachtas a body which was in some way not international in the true sense, in other words which purported to be international but was in fact not international.

Other complications might arise. There might be some rather unusual kind of international religious organisation membership of which was restricted to certain countries. It might be a very worthy and respectable body. No one knows how lawyers might interpret Senator O'Higgins' amendment. There may be other international organisations which for one reason or another may be restricted to a particular part of the world. I am advised by the experts that “international body” is well understood. It would be impossible for me to bring before the Oireachtas plans for incorporating such an international body, with its constitution, having regard to the restriction of its activities or membership which the Minister would be bound to introduce in order to satisfy the democratic rules as we understand them. It is inconceivable that the body could not be really international in the sense that Senator O'Higgins wishes to insist upon. In other words, even if it were confined to certain countries in Europe, Asia, or anywhere else it could be confined to organisations of a kind which do not operate all over the world. Nevertheless the Senator wishes it to be a body which obviously goes beyond one or two [720] countries, which has a real international flavour. I am certain that the Dáil and the Seanad will be able to look after that, quite apart from the Minister for Health. It goes beyond the intention of the words “international body” by bringing in a body whose international character is so limited as to make it undesirable for it to come in under this legislation.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  The Minister's remarks emphasise the difficulty of leaving the position without a definition. The Minister on different occasions in the course of his speech referred to “international in the right sense”. The Minister assumes we all know what he means by “international in the right sense”. What does the Minister mean by that phrase? The Minister refers to a body which is “really international”. I am asking what does the Minister mean by “really international”? The Minister refers to bodies which have international characteristics. What does the Minister mean by a body which has “international characteristics”? The difficulties will be immeasurable unless there is some definition. I do not want to press the Minister unduly to accept the particular definition which I am proposing. If the Minister is prepared to consider this matter between now and the Report Stage and to come back with a definition of his own, I will be happy. I do not want to be obstinate about this. It seems there should be some kind of definition.

All of us, if we thought for a few minutes, could think of different kinds of bodies which, by virtue of some of their activities, could claim to be international or which in their very title laid claim to the use of the word “international” but which at the same time would not be bodies to which it would be envisaged this Bill should apply. The Minister indicates that there is realistic protection against that, in that he is required by this Bill to lay the draft of any Order which he makes before each House of the Oireachtas. That is so. I can see that point. There is certainly a great deal of validity in it as a protective measure. I pointed out both in this House and in the Dáil several times that when we are legislating we are not legislating for any particular [721] Minister or any particular Parliament. The intention is that the legislation we are passing here today, if there is not a time limit imposed on it by us, should outlive the present Minister and the present Houses of the Oireachtas. If we are not careful in the work which we are doing who is to say that some other Minister or some other Seanad or Dáil assembly may not take a completely different view and that the grounds on which this House or the Dáil acts, on the advice of the present Minister, may be completely stultified later on unless we write in these sections carefully? It seems to me that a definition of this phrase is needed.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  I think this is a dangerous amendment. It would be quite possible to have a body which would comply with this amendment but which would in no sense of the word be an international body. That is the first stage one may have by trying to define it in this restricted way. One might have an application from a body which might be defined by using the word “international” or by reference to nationality but, in fact, which might be confined to a very small area. The position could be that the Minister would be faced with the proposition that he could not argue about whether it was international or not because it compiled with this particular clause. It is safer in a case like this to let the ordinary definition of “international” apply and to let the Minister decide in the ordinary way whether taking normal standards and the normal definition the body can reasonably by regarded as an international body. Certainly his hands [722] would be very much tied by this amendment. The Minister might feel himself obliged to accept an application from a body which was in no sense of the word an international body.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Senator Ryan emphasises the difficulty. While the Minister talks about “international in the right sense”, “what is really international”, and what characterises an international assembly, Senator Ryan talks about the “ordinary definition of international” and the “normal definition of international” but neither of them has yet stated to the House what he regards as “international in the right sense” and what he regards as “really international” and what he regards as the “ordinary definition of international” and what he regards as the “ordinary definition of international” or what he regards as the “normal definition of international”. If the Minister or Senator Ryan will tell me what they regard as “international in the right sense”, “really international”, “the ordinary definition of international” and “the normal definition of international”, I will be quite happy to accept their definition. All I want them to do is to put it into the Bill.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  It could vary with the circumstances.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  In other words, we do not know what the definition is likely to be.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  It might include every country in the world or might include only 10 or 11 countries.

Amendment put.

Belton, Richard.
Boland, John.
FitzGerald, Alexis.
Lyons, Michael D.
McDonald, Charles B.
Mannion, John M.
O'Brien, Andy.
O'Brien, William.
O'Higgins, Michael J.
Reynolds, Patrick J.
Russell, G. E.

Ahern, Liam.
Bourke, Mary T. W.
Brennan, John J.
Brugha, Ruairí. [723]Farrell, Joseph.
Farrell, Peggy.
Fitzsimons, Patrick.
Flanagan, Thomas P.
Gallanagh, Michael.
Garrett, Jack.
Hanafin, Desmond.
Honan, Dermot P.
Keegan, Seán.
Keery, Neville.
Cranitch, Mícheál C.
Crinion, Brendan.
Doyle, John.
Eachthéirn, Cáit Uí. [724]Killilea, Mark.
McElgunn, Farrell.
Nash, John J.
O'Callaghan, Cornelius K.
Ó Maoláin, Tomás.
O'Sullivan, Terry.
Ryan, Eoin.
Ryan, William.
Sheldon, W.A.W.
Walsh, Seán.

Amendment declared lost.

Section 1 agreed to.

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  Amendments Nos. 2, 3 and 4 may be discussed together.

Government amendment No. 2:

Before section 2 to insert the following new section:

This Act applies to any international body the functions of which consist wholly or mainly of all or any of the following, namely, deliberation of the health of persons, of health insurance, of the care and treatment of the sick or infirm, of administration of health services, or of medical (including dental) research, or the conduct of such research.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  On the Second Stage of the Bill I made it quite clear to the House that I was simply not prepared to accept that bodies being incorporated under this Bill were rather tied and would require the discipline of the Companies Act; and that, in fact, they could be compared to a great number of corporate bodies in this country such as hospitals and a great number of other semi-State bodies which have been created where there have never been to my knowledge any serious difficulties in interpreting the legal powers of the body concerned or in which there have been the kind of scandals that it is suggested could arise in relation to this.

I suppose Senator Alexis FitzGerald, Senator O'Higgins and others must have some knowledge of international organisations. If one has been Minister for 16 years in various Departments one becomes closely acquainted with an enormous volume of international organisations, deliberative organisations, executive organisations, organisations for controlling the inter-relationships of railways, post offices, telecommunications and a huge number of international health organisations and colleges for international study of almost every conceivable type of speciality. The vast majority of those bodies continue from year to year. I asked the Secretary of my Department whether he could recall any scandal within his memory in regard to the misbehaviour of any of those bodies.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Which amendment is the Minister discussing?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am talking about the Bill generally but what I am about to say covers the rest of the Bill and all the amendments put down by Senator Alexis FitzGerald.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Is this in order?

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I thought the Minister was discussing his amendment.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am getting to this now. That is what I wanted to say first of all. We are not talking about commercial organisations or some huge international company who undertake health insurance of an international basis. We are talking about deliberative bodies. In order to satisfy those Senators who felt that those bodies should be defined in a little more detail I propose this amendment, which says:

[725] This Act applies to any international body the functions of which consist wholly or mainly of all or any of the following, namely, deliberation of the health of persons, of health insurance, of the care and treatment of the sick or infirm, of administration of health services, or of medical (including dental) research, or the conduct of such research.

It will save a whole lot of argument and I hope a long sitting of the House if I simply say that I do not regard any of those bodies as requiring the kind of control suggested in this Bill but that I have spelled out in greater detail what kind of bodies would be incorporated after the examination by the Minister for Health and after a debate taking place in the Dáil and in the Seanad. My amendment goes very far towards relieving the minds of those Senators who felt that in some way or other some rather shifty or undesirable organisation would come in and might perhaps under the guise of charity be engaged in some nefarious activity and that therefore in so far as its accounts and its organisation are concerned it would require to come under the umbrella of the Companies Act.

I have gone as far as I can. This is really, so far as I am concerned, the most important amendment to the Bill. I think Senator Alexis FitzGerald's amendment's No. 3, is covered by what I have said and, equally, that Senator O'Higgin's amendment No. 4 is covered by what I have suggested to the Seanad. I might add, incidentally, that those bodies could not of their very nature be profit-making bodies in the sense that they would be deriving profit from their activities. Therefore, I hope the House will accept my amendment which surely should clear the air in regard to the possibly dubious character of organisations applying for incorporation which might somehow get past the eye of the Minister or the officers of his Department or of the Dáil and the Seanad.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  As far as I am concerned the Minister's amendment very largely meets my amendment No. 4, but I should like to say this to the [726] Minister: I am probably speaking for other Senators when I say that I am prepared to address myself to the amendments and to the arguments on the amendments as they appear but I am certainly not prepared to accept a kind of ex cathedra statement from the Minister who in explaining his amendment has given a global condemnation of all the other amendments which appear before us today.

The fact that doubts may have been expressed on the Second Reading of the Bill is entirely due in my view to the particular wording which the Minister chose when he introduced section 2. It was quite clear to me and I think to Senator Mary Bourke who also adverted to it in the Second Reading discussion, and to others, that section 2 as introduced by the Minister was wide open to allow concerns of one sort or another that might engage in trading or other operative activities of that sort to come in under the umbrella of the Act. I accepted during the Second Reading discussion, and I still do, that it was never the intention of the Minister that that should be so, but it is entirely due to the wording selected by the Minister in introducing the section to the House that any suspicion of that nature could have arisen, and when the Minister introduces his amendment here he is merely repairing the damage which was caused by the particular wording that was used in section 2 as it stood.

The Minister did make it clear in answer to a question from me at the conclusion of my Second Reading speech that he intended the Bill only to apply to deliberative bodies, but that was not there under the section as it stood. The amendment which I have tabled in relation to this is possibly a bit more generous than the Minister's own amendment, but I do accept that the Minister's amendment by and large covers anything I had in mind in my amendment. I wanted to ensure that the Bill would apply to bodies which were dealing with matters concerning health either as regards research, consultative or deliberate activities. I was prepared to go further and to have the Bill applied to other international organisations of a charitable or philanthropic [727] sort which generally were not concerned with profit making and were prepared to deal one way or another with health matters in a non-profit-making way.

For example the kind of thing I would have in mind—and here I think that my amendment would probably be somewhat better than the Minister's —would be an organisation such as our own Gorta organisation which could be in some sense probably very materially concerned with the health of the people; it is certainly concerned with dealing with people in the broad sense of a charitable organisation. If there was a similiar organisation of an international sort which wanted to get an order made under this Bill, so far as I am concerned I would be prepared that an order should be made to enable them to establish their headquarters or their secetariat in this country. I think that the amendment I have tabled would enable that to be done. I do not think that the Minister's amendment would enable such an organisation to acquire corporate status under this Bill when it becomes an Act here, but I am not going to press that viewpoint. I am satisfied that the Minister's amendment does carry out the intention the Minister expressed on the Second Stage as to the application of this Bill.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  First of all I should like to say that I think that on the Second Reading the Minister was excessively modest in suggesting that he was inadequately presenting the purposes of the Bill, so that I feel that the strong wail I had intended to utter should be muted. I have to say this, though, that I am afraid that in the profession which Senator O'Higgins and myself follow, whether primarily or secondarily is a matter for discussion, we are not perhaps used to moving in such innocent society as the Minister and therefore do not always find everybody incapable of deceit or incapable of engaging in malpractices. The Minister, from the research conducted for him into the activities of various international bodies, has not found any nefarious practices, but this [728] does not convince me in the slighest degree that this Bill could not be used by some successor of the Minister, or that some successor of his might not be used by an international body, in such a way, whether negligently or fraudulently, as to do damage to people it had to deal with.

I have to approach the Bill on the basis that those bodies which will be established in the Community will be subject to the law of Ireland. The Minister himself on the Second Reading, as reported at column 660, Volume 68, of the Official Report of 24th June, 1970, said:

When I speak of the fact that I know that this international organisation would be likely to go elsewhere if we tied them up in a great many legal formalities, all designed to protect the public against virtually non-existent dangers, I should like also to say that if we are always delaying an application by a body to incorporate here, if they have to have lawyers examining the whole of the company law in this country to see how it related to their own concepts, they will not come.

I have news for him. Not only will they have to consult lawyers but they will find very much more difficulty about finding out what is the applicable law to a body corporate established under this Bill than they would find if it were incorporated under the Companies Acts with which a considerable number of members of the legal profession are much more familiar. I will develop this later.

I was disappointed to find that the Minister's reaction as immediately expressed seemed to indicate his irritation at the fact that some work had been done on this Bill. I think the Minister has a duty to this House to open his mind to these amendments. The point has been made by Senator O'Higgins in particular on the Second Reading, and the Minister has opened his mind in recognition of it, that his original draft of that section in fact did not express what was in the mind of the Minister. I do not particularly like the Minister's draft, and in fact I think the Minister may be unfair to himself in using the [729] language he uses, and I would recommend to the House consideration of my amendment. If we look at the sample constitution which has been sent out, then I am afraid that if this constitution is to be applied it may put a restriction on this particular body. If this draft constitution remains in the condition in which it is then it will limit all sorts of charitable and other organisations which in fact in some of their operations derive some profit. I cannot see why any body incorporated under this Bill should be put into a position that it cannot in fact make a profit from activities of some kind provided that it is devoted to the good purposes for which the body was established.

May I read this section? It says:

2.—This Act applies to any international body the functions of which under its constitution relate wholly or mainly to the health of persons, health insurance, the care and treatment of the sick or infirm, medical (including dental) research or the administration of health services.

I am not too happy about the language used there because I am not very happy about how you can deliberate the health of persons—to deliberate, consider, discuss the health of persons seems a strange use of language. It is not the kind of language that I readily understand, but something of that kind might be inserted in my amendment if the Minister would consider it. The amendment that I have drafted would give the Minister power to establish bodies with a right to make profits which they would apply under their constitution for the furtherance of the good purposes for which they have been established. In this case discussion and consideration of how a person's health could be improved, or health insurance, the care and treatment of the sick or infirm and so on, would be involved. That would be all right provided that any profit that is made cannot be passed out to the members in any form.

Miss Bourke:  Am I correct in thinking that Senator O'Higgins has withdrawn his amendment?

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  We are discussing the three together.

[730]Miss Bourke:  In explaining his amendment the Minister said that this type of body could not make a profit. Senator FitzGerald has said that this type of body could make a profit from donations but that this profit should be ploughed back into the foundation of the organisation itself and its deliberations. I should prefer to see the words, “consideration of” or words to that effect retained. Senator FitzGerald made a valid point that it would be unnecessarily restrictive on the organisations and their operations. They would therefore be less likely to come to the country because if they had wealthy sponsors, either individuals or groups, they could be classed as profit-making even though they were deliberative and their profits were ploughed back in the working out of their deliberations and the consideration of matters which were before them as an international organisation. I seek clarification before being able to decide between these two.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  Like Senator FitzGerald and Senator Bourke I feel it would be too restrictive to write into the Bill that these bodies could not make a profit. Both Senators have pointed out that the money could be in the till either by way of donations or by the working of the body. I think we should ensure not that the bodies do not make profits but that any profits which they do make are applied correctly for the purpose for which that international body is in existence. I appreciate that profits can be made in various ways. I am only interested in where these profits will go. Senator FitzGerald pointed out that these profits should not be assigned or distributed to any of the members of that body or any other body or used in any way except for the purpose for which that body was constituted. It is impractical to confine a body of this nature not to make profits. If one wants to implement this correctly one must not prohibit or limit the profit-making exercise of any charitable body. What one wants to ensure is that the profit which they do make is put to the purpose for which that organisation is in existence. I support what Senator FitzGerald and Senator Bourke have said about this.

[731]Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  As I see it, the Minister's amendment does not rule out the deliberative body from making a profit. The Minister mentioned that these bodies could not possibly make a profit and that presumably is his line on it. As far as the Minister's amendment goes it does not preclude a body which makes a profit. The essential difference between the Minister's amendment and Senator FitzGerald's amendment is that while the Minister's amendment does not rule out the making of a profit it does not provide that if a profit is made it should be ploughed back for the benefit of the objects of the federation or body in question whereas Senator FitzGerald's amendment does provide for that. Under either amendment a profit could be made or rather the making of a profit would not rule them out.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not really understand what all this distinction is about. I have not put anything about profits in my amendment because there could not be any profits. If there is revenue, there is expenditure and any corporate body admitted under this Bill must automatically give any surplus to the international body because it is wholly deliberative. It does not engage in any commercial activities, it does not sell anything for a profit in any part of the world; it engages merely in deliberative activity for the care and treatment of the sick and infirm and the administration of health services. I have left this as a general clause with that in view. There is nothing to prevent a millionaire from handing over a large block of shares to an international organisation of this kind but unless they are going into business they will naturally spend their funds on the purposes for which they were set up. I did not put profit-making into this section because I wanted to leave it reasonably flexible.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  I think these bodies should be allowed to invest their money and receive profits from their investments provided the moneys thereby made are devoted to the purpose for which they were established.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  That is the idea. If they had investments the dividends on [732] those investments would obviously go to their deliberative functions. As they are only deliberative the invested money cannot be used for commercial gain either on the part of the directors or collectively on the part of the body itself.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  The point I am making is that if they invest money and make profits on that investment those profits should be devoted for the purposes for which they were established.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not think this would cover a commercial organisation which has spent some of its surplus income on deliberative matters. It is not the kind of organisation we are thinking of at all. Most of the organisations of this kind of which I have knowledge are purely deliberative organisations who receive their funds either from their membership or from various governments who wish to support the organisation or from the World Health Organisation or some other international body of that kind or they may receive a gift from some wealthy foundation either an international one or a national one. I am not thinking of the kind of bodies which are commercial but do a little bit of research on the side. I do not think they are the kind of bodies likely to apply for incorporation in this country.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Is the amendment specifically designed to limit the things to deliberative assemblies and in that sense leave out commercial activities?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  It is designed to leave out commercial activities.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Is this not extremely undesirable? It may not be in the interests of the furtherance of the good works of that body. It should be free to enter into commercial activities and invest the money which it gets from these millionaires, which is the hypothesis put before us. Take, for example, the simple matter of their premises here. They will need to take the whole of one floor in an office block. This will have to be a splendid looking place if it is to house the international body in question—I do not say this particular international body but any given body. It may be [733] the best thing for them to build an office block to their own requirements, to include conference halls and things which such a body would require and which would not be built into the ordinary office block. They will be entitled to develop that office block and to make lettings in it.

With regard to the sample constitution, I find the contradictions in it are such as to make it extremely difficult to understand and to know what it would be construed as meaning. This will be construed according to the law of Ireland unless some other intent lies behind the absence of a particular prohibition which I have sought in another amendment to introduce. This will be construed according to Irish law. It will be strictly limited. The powers and objects of this body which is to be incorporated as a non-profit-making body will be strictly limited. Can a non-profit-making organisation make profit? It is questionable.

There is a contradiction in clause 2 which says it should be incorporated as a non-profit organisation without share capital. I do not know why it should be without share capital. I suppose the Minister is not contemplating that every body incorporated under this Bill, when enacted, will be without share capital. It would be desirable to have share capital. It might be the best way of furthering the good purpose in mind. People might be prepared to take a small return on investment in a body of this kind to achieve a good purpose. I am aware of one body which is given over to providing facilities for the university and they, raise their money by issuing preference shares. They were able to get money because people were prepared to accept a small return, feeling they were assisting what they wanted to assist.

Section 26 of the sample constitution says that the treasurer shall collect subscriptions, donations and all other income. “All other income” is left unrestricted. All other income can include profits. Yet this is a non-profit organisation without share capital. How will the Revenue Commissioners treat the excess of the receipts over the expenditure in any given year? Will they treat this as if it were income? There [734] is nothing in the constitution proposed to be accepted by the Minister about this. I do not know whether the Minister has agreed to accept this particular constitution. The constitution which the Minister has under consideration does not contain anything to prohibit the distribution of dividends.

I would ask the Minister to reconsider his whole attitude to this. I put down this particular amendment which is based on a section in the Companies Act. I think it is section 24. I accept that the Minister thought that the whole design here was to have legislation which would appear to be attractive to these bodies and would attract them to this country. I am convinced of that and I think it would be desirable to have separate legislation which could be presented as an attractive thing to such bodies. This is a decision which faces all the issues involved. It does not diminish them as being legalistic and as if comprehension of the laws of our country in some way diminishes one's rating. The section to which I refer has been in the Companies Act for a long time. I think it was in the 1862 Act and it was in the 1908 Act. It has been considered and reconsidered by generations of lawyers who were concerned about these bodies. The section says:

... association about to be formed for promoting commerce, art, science, religion, charity or any other useful object and intends to apply its profits, if any, or other income, in promoting its objects, and to prohibit the payment of any dividend to its members...

It is precisely this kind of body that lawyers thought it would be right that they should be enabled to trade or to carry on business or to make contracts, which is an important thing, without being freed from the obligation to use the word “licence”. That language has been found to sustain the establishment of countless bodies in Britain and in Ireland devoted to this kind of institution which the Minister has in mind to establish. Such a body, if they wanted to raise money, could if they wanted to, promote a subsidiary company which would engage in actual trading activities and which would [735] reward its subscribers by the dividends which would be prohibited to be distributed to the people who are members of the parent company which was free to make contracts without having to disclose itself as being a limited company although it would, of course, be a limited company. I would press the Minister for reconsideration of his attitude on this. In this Bill, when enacted, we will have something similar to section 24, although not in the same words. We have the benefit of the wisdom of 60 years of people experienced in drafting these documents and drafting them for people with good purposes in mind and concerned to have them in such a condition that they would be right. The Minister for Industry and Commerce introduced the Companies Act, 1963, and was satisfied that the language was right. The Oireachtas accepted it.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I cannot accept Senator Alexis FitzGerald's amendment. As I was saying, the Minister will have the first choice of incorporation of these bodies and then the Oireachtas. My own belief is that this is all that will be required as safeguards. The Minister's choice and the consideration by the Oireachtas of each body will be safeguards. I do not want to say anything about applying profits. That might encourage some organisations who are not worthwhile companies in which the administrative expenses might take an enormous proportion of the receipts, to engage in a little research. One has heard of this kind of bodies around the world. There is no need to mention names. I prefer to leave the amendment as I have put it and I, or my successor, will make use of the definition in an intelligent way. It does not exclude profit-making but it does not emphasise profit-making.

My belief is that this Bill applies to international organisations whose object is to examine the state of the health of people in a great number of countries and to make comparisons and proposals and to exchange facilities and break down boundaries in regard to the availability of special knowledge, et cetera. I do not think [736] it will be concerned with bodies that engage in a great deal of charitable work on the basis of receiving very large subscriptions and spending the money on people who require help. It is meant to be a forum for international deliberative organisations of the kind I have indicated. There is not any reason why the Minister, if he has an application from a body which engage in considerable commercial activities, should not examine it and say whether it fitted into the pattern. If bodies were concerned with charity only and with providing funds for very poor people who were suffering through war or for other reasons they would come under the Minister for Social Welfare and not under my administration. My administration covers bodies concerned with the health of persons and health insurance. I do not think I could say more than that.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Would the Minister explain something in relation to this amendment? Section 2 of the Bill as proposed provided that the Act would apply to any international body the functions of which under its constitution, relate to various matters. I see that that phrase is omitted in the Minister's amendment. If the Minister's amendment is accepted it seems to me that there will be no requirement for the body to provide for these matters under their constitution. I wonder if the Minister is wise in that? I would prefer that it would be obligatory on the body to provide for what is envisaged here.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  The Minister for Health must examine the constitution of any body requesting incorporation. Under section 5, a copy of the constitution must be maintained and made available to the Minister. All the details concerning the body itself will have to be made available and, under section 6, it is necessary for a body to supply the Minister with such information as he may reasonably require, including the accounts. However, if Senator O'Higgins considers that we should add the words “the functions of which under its constitution” so as to provide a greater safeguard I am willing to accept that.

[737]Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I would ask the Minister to put it in because it is better that it should be included.

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  The Minister proposes to amend his amendment by the addition of the words “after which under its constitution”.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  If I accept that amendment, am I precluded from proposing again consideration of my amendment on Report Stage?

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  At the moment, we are only considering an amendment to the amendment. We have not come to the amendment itself. If we agree to amend the amendment, the discussion will continue on the amendment as amended.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  There is one other point but this may be a matter of drafting rather than anything else. Is the Minister satisfied with the phrase “deliberation” of these various things? Is he satisfied that that is broad enough to enable consultation to take place rather than formal deliberation?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I understand from my legal advisers that the word “deliberation” covers a great many different kinds of intellectual activity.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I am not objecting to it but it strikes a discordant note with me. Possibly, it is all right.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  How does the Minister consider taking deliberations of the problems arising concerning the health of a person? How does one deliberate on health without going mad?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am advised this covers the intention behind the section.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  It appears Senator FitzGerald wishes to reserve his rights.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I wish to withdraw my amendment since I cannot agree to the Minister's amendment.

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  If amendment 2, as amended, is agreed it would be open to the Senator to put down a similar amendment for Report Stage.

[738]Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I hope to spare the House that but I wish to consider it.

Amendment amended, by leave, by the insertion of the words “under its constitution” before “consist” in line 2.

Amendment, as amended, agreed to.

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  The acceptance by the House of amendment No. 2, involves the deletion of section 2.

Amendments Nos. 3 and 4 not moved.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I move amendment No. 5:

In subsection (1), line 16, after “may” to insert “,if he is satisfied after consultation with the Minister for Industry and Commerce that the issue of a licence under section 24 of the Companies Act, 1963, would not be appropriate,”.

There are two matters arising here. On Second Reading, I suggested that this was the kind of situation in which the Minister for Health should consult with the Minister for Industry and Commerce before making an Order under this Bill. I suggested, further, that without jeopardising the setting up of any international bodies here, efforts should be made to see that consultation would not run counter to our Company Law. In the course of his reply, the Minister said at column 660 of the Seanad Debates of the 24th June, 1970:

I will consult the Minister for Industry and Commerce in order to make sure that the constitution of any body desiring to incorporate here would not in any way be in conflict with the Companies Act to the point that might result in difficulties being created, but I can assure the House that the kind of organisations that will want to incorporate here will be organisations where it would be patently easy for the Dáil and the Seanad to see that they are respectable, that they are formed from respectable sources, that they are concerned with international matters of a philanthropic character....

[739] I am suggesting by this amendment that we should require the Minister for Health to consult with the Minister for Industry and Commerce and also that we should provide that a corporate body order under the Act would only be made in cases where, in the Minister's view, the issuing of a licence under section 24 of the Act is not appropriate.

The Minister has said already that in no case would be take the view that it would be appropriate to deal with these organisations by means of the issuing of licences under section 24 of the Companies Act. If that is his view, well and good, but another Minister might take a different view. I am seeking to preserve in so far as we can, the framework of the Companies Law in dealing with these bodies where it is appropriate to do that. Where it is not appropriate to do that, the onus will be on the Minister, and I am happy, that the corporate status should under this Bill be issued when the Bill becomes an Act. It might be that interposing this requirement between the Minister's decision and the making of an order by the Minister might delay matters but if it does it only delays matters very slightly. All that would be required under this amendment is that consultations should take place with the Minister for Industry and Commerce. Presumably that would automatically involve that the Minister for Industry and Commerce be informed of the status and type of body that is making the application and that his advice should be taken as to whether or not section 24 of the Companies Act, 1963 would be appropriate machinery for establishing the company here. It would still rest with the Minister for Health to say whether or not he regarded it as appropriate but I would like to see this kind of consultation taking place.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  “Appropriate” is rather ambiguous in that case. Appropriate from what point of view? The Minister for Health may be quite satisfied it is inappropriate from the point of view of the kind of organisation [740] that makes the application and from the health point of view that it should be governed by the Companies Act. The Minister for Industry and Commerce may advise him as far as he can see purely from the point of view of the Companies Act that it would be quite appropriate and quite possible for it to be governed by the Companies Act. You may then have a conflict of opinion between the Minister for Industry and Commerce who says it is quite appropriate for the Companies Act and the Minister for Health who says it is quite inappropriate. In that case is it appropriate or not?

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I appreciate that point but I do not think the amendment leaves any doubt as to which Minister in that event would have the supremacy. It would rest with the Minister for Health to say whether it was appropriate or not. If he chooses to decide that issue purely on what he might regard as health considerations rather than legal considerations such as the Companies Act, he would have the right to do so but it would provide for the consultation which the Minister in any event has assured the House will take place.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  If he has already decided it is inappropriate this would be a purely theoretical and academic exercise in which he consults the Minister for Industry and Commerce.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Is it not worthwhile all the same?

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  He has already decided from the health point of view that it is inappropriate but he has to consult the Minister for Industry and Commerce.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  The Minister has to consult this House with regard to the Bill and with regard to the amendments although he has made it quite clear at the outset that he has his face absolutely against accepting any amendments. Notwithstanding that, he has been sufficiently broadminded already to accept an amendment suggested from this side of the House.

[741]Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I do not think Senator Ryan's point is very valid. It is a matter which finally rests with the Minister. Any discussions with persons who will be well informed on this and with the Minister for Industry and Commerce must be beneficial to him in the making of his order or in the sort of questions he may put on the constitution which is presented to him to adopt. Those will be people who are presumably particularly expert in this matter from the information which flows to them from all the countless applications they get every year from the different bodies which look for dispensations from the use of the word “licence”.

There must be an accumulation of knowledge about the kind of problems which arise with regard to those bodies in the Department of Industry and Commerce that is not in the Department of Health. It seems to me that the Minister would then be saved from making a body corporate body status order that the people in this House and in the Dáil would want to oppose because of defects they thought it had. Perhaps the people in the Department of Industry and Commerce would know more about all of this than any body in this House knows about it but the Minister is still the final arbiter.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not think it is necessary. We would have half a dozen international organisations within the next ten years applying for incorporation here and I do not believe they are the kind of bodies who will require this meticulous examination, constitutional or anything else. That is where I differ with the Opposition.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  There is a great time coming for the Irish courts if those organisations enter into any contracts pursuant to any body corporate status order that is made in relation to them. I can say that with some confidence.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  That would be unfortunate because they will not come here because the lawyers will get at them.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  You are dealing with a constitutional position [742] in which the lawyers' duty is to present the citizens' rights to the courts of justice. We have no other duty. It is the courts of justice under the Constitution which should administer the laws which are enacted in this Parliament. If an order is made, which is unwisely made, adopting a constitution which officials in the Department of Industry and Commerce could advise has defects then the Minister would be prevented from making an order establishing an international body which would in fact suffer at the hands of our courts.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am sorry if the Constitution can cause trouble for the organisations. If they hear this they will not have it. That is unfortunate. Perhaps that will apply to every international organisation which will come here.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  We must consider this on its merits.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I want to make it absolutely simple for them to come here. I want to make it clear I am not going to put any barriers whatever in their way except those in the Bill. I want to be perfectly frank about this. I am quite aware, having been friends with lawyers who are skilled in international law, that part of the difficulty of getting things done internationally is the bedevilment of innumerable court charges and everything else which is written in such a way that it can catch perfectly innocent bodies of a wholly deliberative character who are not concerned with making profits.

I am not going to start by making it the least difficult for organisations of this kind to incorporate here. That is the main and quite definite difference of opinion between myself and Senator Alexis FitzGerald and Senator O'Higgins who with very great care and a sense of conscience no doubt fully justified have spelled out a great number of amendments of this kind. We are not going to get the bodies to come here if they have to conform to all sorts of things suggested here, so we may as well have it out now.

Senator FitzGerald has already given me a warning that they may not even [743] be able to come here because of their constitution although they might perhaps be willing to alter it in some way to conform with what is the law in this country under this Bill, unamended except in the way I have already agreed to. After what the Senator says, I am all the more fierce in my belief that we should not complicate matters, because those bodies are not likely to come.

Miss Bourke:  I appreciate the Minister's desire to encourage organisations to come here and not to put petty restrictions in their way or to make it complicated for them. If this is his attitude he is going to reduce such restrictions to a minimum. In relation to this particular amendment I think there is a good case for putting in a section that the Minister ought to consult with the Minister for Industry and Commerce so that if it is possible, and if the organisation accepts, it will comply with the ordinary company code of this country and will apply for a licence under section 24. If not, and if there has been this consultation and the matter has been discussed between them, the Minister would have the final say in this.

This is an exceptional Act and it ought to be regarded as such. It is an innovation and it is one we ought not to extend to any organisation which can be fitted into our existing company code which protects Irish people living here to a much larger extent than this Bill would perhaps protect them when it reaches its final form. The Minister would not be departing from his principle of encouraging those organisations to come here by a willingness to consult with the Minister for Industry and Commerce to see if this organisation could be diverted to the Department of Industry and Commerce with a view to applying for a licence there. It might be perfectly willing to do so and so fall within the existing company code.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I will compromise. I will on Report Stage bring in an amendment saying that I will consult the Minister for Industry and Commerce before I make an order under [744] this Bill without any reference to the Companies Act.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I am satisfied with that.

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  Is the amendment being withdrawn?

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  It is because the Minister has undertaken to put down an amendment on Report Stage.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  This is simply to consult the Minister for Industry and Commerce in general before making an order under section 3.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I fully accept the Minister's assurance and his amendment on those lines. I think it would probably flow from that, although it would not be written into the Bill, that consultation would be on the lines as suggested in this discussion.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  If by any chance there was an organisation of a most peculiar character where there were all kinds of activities within the organisation and the Minister for Industry and Commerce and his officers felt that the public here needed some kind of protection if they were engaged in commercial dealings with the organisation, naturally the Minister for Health would be mad if he did not have regard to that in any conditions he might lay down for the admission of that body. I think that this is what the Opposition really have in mind. I have to consult the Minister before making the order, and I think that that will cover the situation.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I am quite happy.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  For my part, and I think that this is true also of others who have taken part in this debate, I am not merely concerned with protecting the activities of the corporation from people with whom it makes contracts, but I am also concerned that we should not enact laws that would trap innocent people into trouble. The Minister will find that he will get help from his colleague the Minister for Industry and Commerce in advising these bodies as to the kind of situations they [745] would be in and the steps they should take to avoid difficulties in this country.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  Yes.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 6:

Between lines 26 and 27 to insert the following:

“A body to which a corporate status order relates is hereby added to the list of qualified persons contained in section 45 of the Land Act, 1965.”

This would not be an amendment which I would wish to press if the Minister's officers are satisfied that the body is already enjoying the benefit, or likely to enjoy it, of being a qualified person under section 45 of the Land Act. I would have thought it desirable that it should be given that specific status, and that if it had to make title to any property it required it could cite to the vendor the fact that it is incorporated under this Bill and as the Land Act has been amended to give it the benefit of being a qualified person. This immediately gets them over any difficulty of a contractual kind which might arise with regard to a vendor; and this is desirable from the point of view of acquiring land.

It is desirable also from the point of view of any purchase it might make. One is aware of bodies that have established conference halls involving purchase of lands of more than five acres given over to purposes which they think are good, and it might be that some international body might have some reason to make such an acquisition and if it has to make title it must satisfy any purchaser that it falls within the section. Thus it is dependent upon section 1, where there is a list of qualified persons which might include this body under the list in item 7 as listed in subsection (1) of section 45 of the Land Act:

a body corporate incorporated in the State pursuant to a specified direction or authorisation contained in a Saorstát Éireann statute or an Act of the Oireachtas.

[746] I am not certain that this follows because it is not clear to me, but it may be that the Minister got advice on this, or will receive it, that the Ministers and Secretaries Act will give the necessary protection to the purchaser for the production of the statutory instruments as evidence of title. Any purchaser who will send the papers to counsel will know what is an essential document of title.

It is clear from my knowledge of the law in regard to this that the Evidence Act, 1845, is still extant, and it provides:

Whenever by any Act now in force or hereafter to be in force any certificate, official or public document, or document or proceeding of any corporation or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other proceeding, shall be receivable in evidence of any particular in any court of justice, or before any legal tribunal, or either House of Parliament, or any committee of either House, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature or of the official character of the person appearing to have signed the same, and without any further proof thereof, in every case in which the original record could have been received in evidence.

There is nothing in this Bill which gives protection in regard to this, and it seems to me that there would be a considerable advantage in dissipating any doubt that there may be in this matter by accepting the amendment which I have put down. I would like if the Minister would assist me in my further consideration of this by telling me if he is advised that, for example, an existing statute, the Ministers and Secretaries Act 1924, does in fact assist [747] us in this. Then I would be enabled to consider it further. If he is satisfied that there is an advantage in getting bodies listed they could come under category 10, and that would involve going to the Minister for Lands who would then have to make regulations, which would naturally be a nuisance to the international body, which would feel a suspicion of our operations here.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  It might well have to go back to the Minister for Industry and Commerce.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  That may be, but it would be very bad in any event if this body were in any way embarrassed by the provisions of the Land Act, 1965, and I should be glad to get the necessary references, if the Minister would be so kind, which would satisfy me that this amendment is unnecessary.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I should like to suggest to the Minister that this amendment would seem to fit in very much with the Minister's own idea of facilitating these bodies. The Minister is no doubt aware of the set-up under the Land Act. This amendment deals only with the question of a consent to vesting under section 45 of the Act. There is no question of trying to avoid the consent to subdivision, for example, under section 12 of the Act. It is concerned purely with the case where at the moment if an English person or a company acquire or seek to acquire property here of a type to which the Land Act applies it is necessary for them, if they do not come within the category of qualified persons, to get consent to vesting. If they do not come within the category of qualified persons set out in the Bill it is necessary for them to get the consent to vesting. They may get the Land Commission consent or they may apply to the Minister for Industry and Commerce and obtain a certificate from him to the effect that he is satisfied they are acquiring the land exclusively for the purpose of an industry other than agriculture. Having regard to what we have all been talking about so far under this Act, I think it would be very difficult [748] for such a body to maintain that they were acquiring the property for the purpose of an industry. Consequently I take it that an application to the Minister for Industry and Commerce would be ruled out.

Unless they are accepted or unless they come within the categories of qualified persons set out in section 45 of the Land Act it would be necessary for them to make an application for consent to the Land Commission. This would be another restriction in their way. It would certainly facilitate them if the Minister were prepared to accept Senator FitzGerald's amendment. I appreciate that before doing so he might find it necessary to consult with the Minister for Lands. As I understand the position—I am afraid I do not have the Land Act before me—the Minister for Lands may from time to time by order add to the list of the categories of qualified persons set out in section 45 of the Act. The Minister for Health may feel that the appropriate way to deal with the matter would be to ask the Minister for Lands to make an order adding to the list of categories of qualified persons any body which has been granted the benefit of corporate status under this Bill. Whichever way it is done, whether it is done by acceptance of this amendment or done by means of securing the agreement of the Minister for Lands to make an order adding to the category of qualified persons, it would seem to me clear in any event that it would remove an unnecessary restriction on these bodies if they were facilitated in this way.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  Section 45 (1) (x) states that the Minister for Lands could make the necessary order in regard to land being purchased outside a city or town which comes under the Act in question. I do not think it would be very difficult to make an order. There is no reason why we should not accept the amendment as has been suggested by the two Senators because it simplifies the matter.

Amendment agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 7:

[749] To add to the section the following new subsection:—

( ) Nothing in this section shall empower the Minister to make an order hereunder in respect of any body corporate incorporated under the law of another State.

I touch here on a sensitive area of law which I do not want to find myself too deeply involved in. It is not yet clear that we cannot have a body corporate status in this land for a company which has a body corporate status in another land. It is unlikely that one can but the common laws of many of the States of the United States of America recognise that companies can be established in one State and re-incorporated in another State. The Minister will have to be constantly reminded not to do this in relation to any existing body corporate status because there would immediately be questions of construction. According to which law would the body corporate be construed? Would it be construed according to the law of the State where it was first incorporated or would it be construed according to our law? A body thinking of coming here should be alerted about the difficulties which might arise on the matter of the construction of its own constitution. It should know perfectly well that the law of Ireland will apply to the incorporation and the construction of the constitution which it establishes here by virtue of ministerial order.

There are also questions of taxation because a company's domicile is determined by its place of incorporation. A company incorporated somewhere else would not be taxable on income that it did not remit here. If there is any conflict here the Revenue Commissioners will be in serious dispute. The Revenue Commissioners are only concerned with collecting revenue, they are not concerned with facilitating anybody to come in here and do anything, they are not concerned to please any Minister as far as I am aware. They would pursue, with complete disregard for the Minister for Health's effort to attract these bodies and keep them happy here, their objective to collect taxation on that income, claiming that it was an Irish body corporate [750] even though the body might be disputed by the other body corporate. If we could exclude the possibility of body corporate status being conferred on any existing body corporate we remove a possible difficulty and we alert these innocent bodies to a danger which might exist under our law.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am going to read what I have written down here which comes from the legal officers because I am not skilled in the question of the incorporation of bodies from one state to another. The legal advice I have received states that it is not contemplated that any body which has already formal corporate status under the laws of another country would or could be incorporated under this Bill and in fact the purpose of any organisation seeking to avail itself of the terms of the Bill would be that it required to achieve corporate status or having decided that its status or indeed location elsewhere was unsuitable having shed that status there it might find it convenient to come to this country for incorporation. In other words they would be international bodies formed in the sense that they have a constitution which required incorporation here or else they may be an international body which for one reason or another wanted to leave a country and be incorporated in this country. It is inconceivable that they would do anything to arrange their dissolution to correspond with their incorporation here. I am advised therefore that the Senator's amendment is unnecessary. I cannot say more than that.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I do not wish to press this amendment. I must say that the Minister's legal advisers have not allowed that there is an area of doubt here as to the ability of the Minister to confer Irish body corporate status on an existing body. I think it is desirable to exclude that area of doubt but I shall not press the Minister so long as the Minister's advisers have recorded my view that there is an area of doubt.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 8:

[751] To add to the section the following new subsection:—

( ) The Minister shall, within 14 days after the making of a corporate status order, give notice thereof by advertisement in Iris Oifigiúil.

The intention of this amendment——

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  Before the Senator goes any further I should say that I have accepted the amendment in a different form because it is a useful amendment. I have been told the best way to express it is as follows:

In page 2, after line 8, to insert the following new subsection:

“Every corporate status order shall as soon as may be after it is made, be published in the Iris Oifigiúil.”

There is something about 14 days and if a strike were to take place in a printing works there would be a peculiar snag.

An Leas-Chathaoirleach:  Is the Minister referring to an amendment which appears elsewhere or to one which it is proposed to introduce?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  One which it is proposed to introduce with the leave of the House and slightly to alter the Senator's amendment.

An Leas-Chathaoirleach:  The House is free to amend the amendment. The House might prefer to leave it until the Report Stage.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am prepared to accept the amendment.

An Leas-Chathaoirleach:  From a procedural point of view it would be better to make the amendment on the Report Stage. There would be less danger of any mistake being made.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 9:

Before section 4 to insert the following new section:—

The constitution of a body to which a corporate status order relates must:

(a) be printed:

(b) be divided into paragraphs numbered consecutively;

(c) bear the same stamp as if it were a deed; and

(d) be signed by at least seven persons in the presence of at least one witness, who must attest the signatures.

This is not an amendment which I particularly desire to press. There is nothing invidious or legalistic about it. It is provided in section 7 that the memorandum must be printed. This is not quite the same as the United Kingdom legislation on the matter where there is no obligation to print. I put down this amendment to see if the Minister would disclose his views as to the kind of formality which he thought it might be desirable to have these bodies comply with. It is desirable that there should be some provision whereby membership would be established in some fashion and that there should be brought into existence according to some law a document which could be identified as being the constitutions. We are all familiar with constitutions and with the difficulties which can arise in the matter of identifying what precisely is the constitution, or where it is. This arises with regard to all bodies. It is desirable that the constitution should be in some durable form. I would not have thought that an international body would have been put off because we wanted them to print their constitution and to have it in proper order and signed by their members and their witnesses attested and that this would be the document which a court might accept in some circumstances to the advantage of the international body concerned. It might facilitate proceedings if an international body entered into a [753] contract with some Irish rogue and if it was necessary to protect their own interests and to go to court. There would then be no difficulty in establishing what was in the constitution. Such constitution would assist a body in pursuit of its rights in court proceedings. I am not wedded to the language used here or to the idea. I would be interested to hear the Minister's views on the desirability of having a section which would make clear for the Minister's successors the form which the constitution was to take.

Miss Bourke:  I should like to agree with Senator FitzGerald on this. In section 5 of the Bill there is reference, at subsection (2) (b), to a register which would include copies of the constitution. The requirements are that it be printed and clear and divided into paragraphs and have a stamp or an indication of some sort which one would expect of an international organisation. That would make it clear to anybody who wanted to see the constitution. It would simplify things to have the requirements set out for an international body so that such body will know the conditions it has to meet. I think this is a welcome addition to the Bill.

Dr. Belton: Information on Richard Belton  Zoom on Richard Belton  I would like to support this amendment. I am not qualified legally to speak as the two previous speakers did. This is a Bill which was introduced in the Seanad. The Seanad has to dissect this Bill before it goes to the Dáil. Usually the reverse occurs and the Dáil dissects a Bill before it comes to the Seanad. We are in the happy position that a Bill is being introduced through the Seanad. I wish more Bills were initiated in the Seanad and passed to the Dáil. It might save time in the end. The Minister must take seriously any amendment put forward here which tends to be constructive. He must treat any amendments here as if he were dealing with them in the Dáil.

I am not a legal man but I have impinged upon certain legal aspects all my life and have had dealings with the Registry of Deeds. I have dealt with the questions of seals of companies and other aspects. This is a [754] necessary amendment. I support it. I have praised the Minister for his attitude towards the Seanad but I would not wish him to adopt an attitude at this stage that because these amendments are produced in the Seanad they should not have the same attention as they would have if they were introduced in the Dáil.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I must say definitely I do not propose to accept any of these amendments which seem to demand of the body a conformity with all sorts of rules. I have already explained that I think that section 5 and 6 of the Bill are quite sufficient for international bodies. The bodies are required to supply the Minister with information. Section 3 also has other provisions which cover the position sufficiently. I should mention that there are a great number of bodies which have been set up which do not have to meet the provisions in these amendments, for example, RTE, a great number of bodies set up under the provisions of the Health (Corporate Bodies) Act, 1961, the Dublin Dental Hospital, the Mass Radiography Board, the Blood Transfusion Services Board, the National Drugs Advisory Board. There are also hospitals set up under charter, which have operated successfully for many years and where there is no such control exercised as has been suggested in these amendments. I am not, able to get into a legal discussion with the Opposition Members of the House over questions on which one could argue for hours. I simply say that with the kind of international bodies which will be set up I think the provisions of the Bill are sufficient. They not only relate to the Minister deciding first of all whether he will accept or make an order for incorporation. Whether he accepts or makes an order for incorporation, he must come before the Dáil and Seanad. He also has power to revoke the order. With those powers I think the public are sufficiently protected.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I approach this in the same spirit as Senator Alexis FitzGerald when he was speaking on the amendment. I shall not press the Minister, but I ask him if he will agree [755] on Report Stage at least to consider inserting in this Bill a clause that the copy of the constitution which is to be delivered to the Minister in accordance with section 5 (a) will be written and (b) will be translated into either English or Irish.

It does not seem to me to be worth anything to provide that there will be a register with which there shall be kept copies of the constitution and that a copy should be furnished to the Minister, unless that copy be in a form that will be comprehensible not only to the Minister but also to the public.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I understand that we can require that the constitution be supplied to us in either one or both of our official languages. I honestly do not think this amendment is necessary.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I urge the Minister to consider this amendment. I am discussing it only in relation to having the constitution written in Irish or English.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I will consider it on Report Stage.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 10:

Before section 4 to insert the following new section:—

(1) A body to which a corporate status order relates shall, notwithstanding anything omitted from its constitution, have as regards third parties the same powers as an individual.

(2) The provisions of the constitution of a body to which a body corporate status order relates as regards the objects of the body shall operate solely as a contract between the body and its members as to the powers exercisable by its directors, committee of management or other controling authority.

(3) The constitution of a body to which a body corporate status order relates shall not be a public document of which third parties dealing with the body are deemed to have notice.

[756] May I ask the House to discuss amendments Nos. 10 and 11 together?

An Leas-Chathaoirleach:  If the House agrees.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Then we will discuss them together. I shall begin by referring to amendment No. 11. On Second Reading, I made a reference to the fact that if the body were to be incorporated under the Companies Act, it would give the benefit of section 8 to persons who traded with that body and who found themselves in difficulty if the company did something which they had no power to do and the persons dealing with the company did not know that the company did not have this power under the Act. I shall not waste the time of the House on the language of amendment No. 11. It is, quite simply, to repeal section 8 of the Companies Act of 1963 and to substitute “a body corporate to which a body corporate status relates.”

The Minister has said he does not wish to be drawn into legal discussions on these matters but, unfortunately, legal discussions are necessary. In the course of some of his remarks, the Minister has referred to the position of certain chartered bodies. It is necessary to remind the House of the position of chartered bodies—that is to say bodies chartered by virtue of the exercise of the Royal Prerogative. I quote now from a recent edition of Palmer's standard textbook on company law to show that there is a difference between a chartered company and a company formed under an Act of Parliament:

There is a difference of fundamental character between a chartered company and a company formed by or under an Act of Parliament. At common law a corporation created by royal charter, has power, as was determined in the Sutton's Hospital case, to deal with its property, to bind itself by contracts, and to do all such acts as an ordinary person can do, and so complete is this corporate autonomy that it is unaffected even by a direction contained in the creating charter in limitation of the corporate powers. For the common law has always held that such a direction of the Crown—though it may give the Crown a right to [757] annul the charter if the direction is disregarded-cannot derogate from that plenary capacity with which the common law endows the company, even though the limitation is an essential part of the so-called bargain between the Crown and the corporation. This feature—the unrestricted corporate capacity of the chartered company—is in marked contrast to the strict delimitation to defined objects which is characteristic of all corporations created by, or under, an Act of Parliament. In short, the ultra vires doctrine, which applies to all corporations of the latter type, does not apply to chartered corporations.

The ultra vires doctrine will apply to the bodies to be incorporated pursuant to this Bill, that is to say, the bodies will be confined in their powers to the powers they take in the constitution which they establish. This matter came under consideration by a committee established by the United Kingdom Parliament and known as the Cohen Committee. I quote from paragraph 35 of the report:

The nature and effect of the ultra vires doctrine in relation to companies incorporated under the Companies Act, 1948, and its predecessors are concisely stated by the Cohen Committee in this passage from paragraph 11 of their report:

“The memorandum of a company defines its objects and a company's objects are limited to those expressly mentioned and such as are ancillary to the expressed objects. A contract made by the directors upon a matter not within the ambit of the company's objects is ultra vires the company, and, therefore, beyond the powers of the directors. This principle is intended to protect both those who deal with the company, and its shareholders.”

In paragraph 12 the Cohen Committee went on to refer to the practice “of drafting memoranda of association very widely and at great length so as to enable the company to engage in any form of activity in which it might conceivably at some later date wish to engage and so as to confer on it all ancillary powers [758] which it might conceivably require in connection with such activities” and concluded that “in consequence the doctrine of ultra vires is an illusory protection for the shareholders and yet may be a pitfall for third parties dealing with the company...”

May I pause at this moment to ask the House to take it from me that amendment No. 10 is intended to remove the application of the ultra vires doctrine from bodies to be incorporated under this Bill?

The report continues:

The ready proposed by the Cohen Committee for this unsatisfactory state of affairs was that “every company... should, notwithstanding anything omitted from its memorandum of association, have as regards third parties the same powers as an individual” and that “existing provisions in memoranda as regards the powers of companies, and any like provisions introduced into memoranda in future should operate solely as a contract between a company and its shareholders as to the powers exercisable by the directors”. In conjunction with this proposal the Cohen Committee expressed the view that “it would then be a sufficient safeguard if such provisions, i.e. provisions in memoranda as regards the powers of companies taking effect solely as a contract between a company and its shareholders as to the powers exercisable by the directors' were altered by special resolution without the necessity of obtaining the sanction of the Court.”

Amendment No. 10 is designed to make those bodies, that is bodies which would be incorporated, as strong legally as bodies which were chartered by the Crown by virtue of its Royal Prerogative. I cannot think of anything which would more completely remove the embarrassments of the Minister in his negotiations with those bodies as this amendment conferring this power because the ultra vires doctrine is peculiar to the common law countries, if my understanding is correct, and such a doctrine does not exist in many continental countries. I do not think it [759] exists under the Napoleonic code as that exists all over Europe and is imitated in other parts of the world.

I will give one incidence of the troubles created by the ultra vires doctrine, which is John Beauforte (London) Limited, 1 Chancery Division. 1953. This company was authorised by its memorandum of association to carry on the business of costumiers, gown makers and other activities ejusdem generis. The company decided to undertake the business of making veneered panels which was admittedly ultra vires and for this purpose erected a factory at Bristol. The company later went into compulsory liquidation. A number of proofs of debt were lodged which were rejected by the liquidator on the grounds that the contracts to which they related were ultra vires. Applications by way of appeal were lodged by three creditors, none of whom had actually realised that the veneer business was ultra vires. They lost in their proofs. They were not admitted to proof. They did not get their money back. In that particular case it was the people dealing with the company which went into liquidation who were in trouble.

In another case where the international body was established by body corporate status such, for example, as this sample document proposes, there is no bank in Ireland which would even lend those people bridging finance to do anything because it would be ultra vires the constitution established by body corporate status. If, however, my amendment is accepted they could borrow as freely as any chartered corporation can do. Amendment No. 10 is the one I would like to have accepted but if it is not acceptable then amendment No. 11 would at least put those people dealing with those bodies in the same position as they would be in if they were companies incorporated under the Companies Acts but the bodies themselves would suffer some disadvantage.

As this matter may be receiving further consideration I should tell the House that it was also considered by our Company Law Reform Committee in 1952 and so that there would be nothing [760] disingenuous in what I say both it and the Jenkins Committee recommended a continuation of the ultra vires doctrine but did so on the grounds that in fact as a result of the development of the techniques of drafting memoranda of associations can be as long as from here to the end of the room because they put in power to do everything you can think of to be quite sure that you would never be in the position that you could not, in fact, enter safely into any particular contract.

The Minister has talked about those bodies being bothered about having to go to lawyers. I am doing my best to avoid their having to go to lawyers in making this particular proposal to the House because here they will really have a strong position. If they get an order under this Bill when it is enacted they will be in great difficulty in the matter of the extent of the powers they have. I would like Senator O'Higgins, Senator Mary Bourke and any others who have had an opportunity of looking at this to say what they think. I think the courts here would divide this document up into two parts and say that one part represents the powers this body has and the other part represents its internal constitution. It will be construed quite strictly. If the powers are limited and if they have taken only five powers under clause 3 of the constitution, they will be very restricted and find all sorts of things they want to do which they will not be able to do if it remains in that condition. On the other hand, if they want to get safe they will have to get sewn up into the sort of document which will drive the Minister mad. I recommend the consideration of the House particularly to amendment No. 10.

Miss Bourke:  I should like to support the very well made argument of Senator Alexis FitzGerald on this point. It is extremely important that we remember we are creating a new form of legal personality by this Bill giving this new concept of corporate status to an international organisation and try as we might we cannot do so very simply. It will not come into existence and it will not fulfil the conditions of the law outside the companies code [761] itself by the merest skeleton form. We must, to some extent, give enabling powers and also protection.

Senator FitzGerald has argued very well his reasons for introducing amendment No. 10. I agree with him that it would be difficult to see how other bodies in this country will have confidence in the international organisations so set up unless they can look on and rely on the facility given by amendment No. 10 and the fact that it gives as sort of quasi corporate status and gives the same powers as though this international body was an individual for the purposes of Irish law. There would, therefore, be a reliance on that and there would be a willingness to deal with such a body. Again, although the wording is somewhat complex, this is not a restrictive but an enabling clause which is necessary because we are operating outside the existing company code. We just cannot leave it to the discretion of the Minister to allow such a body to be formed into a company and hope there will not be any loopholes in it. We have to come to terms with the fact that it is going to be a legal personality, that it is going to enter into legal relations with other existing bodies and individuals, and that we must provide the legal mechanism for this to happen. I, therefore, very strongly support this amendment for the reasons given by Senator FitzGerald.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I should just like to say briefly that I can fully appreciate that people who do not know or appreciate the importance of matters such as the ultra vires doctrine might possibly feel a bit at sea in considering an amendment on the lines suggested by Senator Alexis FitzGerald here. Possibly Senator FitzGerald will agree with me that a very simple way to look at this would be to take the sample constitution which the Minister has been good enough to circulate and to ask oneself how would a body operating on the basis of the draft constitution even take a letting of premises in the City of Dublin, never mind acquire premises. We have already agreed that they should be facilitated so far as land is concerned, or property outside cities and towns, by accepting the amendment [762] regarding the Land Act. How would a body operating under this constitution, unless it gets the assistance which is offered by this amendment, even take a letting of premises in the City of Dublin? They do not, as I see it, take any powers under this constitution which would enable them to acquire property by means of letting, leasing, purchasing or otherwise, and they certainly do not acquire rights or powers subsequently to dispose of any such property. I think that Senator Alexis FitzGerald will agree with me that if his amendment is accepted and if by reason of it these bodies are put in the same position as if they were individuals, separate legal entities having the same powers as individuals, then these powers of letting, leasing, selling or so on would automatically follow.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not propose to accept these or any other similar amendments. I have been advised by by legal officers that I should keep very clear of all matters relating to ultra vires that have been expressed by Senator Alexis FitzGerald. Where a person enters into large-scale contracts with a body given corporate status under the Bill it would be reasonable to expect him to look at the powers of the body. That will be a public document and the constitution of the body will be available for public inspection. If it is a small matter no real difficulty should arise in practice. In relation to any body set up by or under any statute other than the Companies Act it has not been found necessary over a considerable number of years to make this provision. I have already given a very limited list of corporate bodies to whom these amendments have never been applied and they have managed to operate successfully, to purchase land, to let land and so forth; and if the constitution of this body is inadequate I presume they will have to amend it. It is not the final constitution. It was given as an example. I am afraid I am not prepared to accept these amendments.

An Leas-Chathaoirleach:  Is amendment No. 10 withdrawn?

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I do not know. I am extremely disappointed at the Minister's reaction to this and I [763] certainly intend to press it very far, as far as I can. I think he is making a very wrong decision indeed and that it will have very adverse consequences. If he studies the provisions of the various Acts establishing the Electricity Supply Board and all those other various statutory bodies he will find that the powers taken there are very extensive and because they are so extensive do not prohibit those bodies or impede them or upset them in their activities.

I suppose that the best known academic writer on this subject is Professor Gower. I only happen to have available to me the second edition at the moment, but he has expressed himself very strongly against the ultra vires doctrine and as to the danger that it is. He points out that even the unanimous consent of the members cannot render it within the power of a body, cannot render it right. It seems to me peculiarly suitable for the kind of body here to be established that it should be given the kind of constitution that it would expect from its awareness of the laws of its members' own countries, where they would not find this peculiar English institution, which survives here to the extent to which it does though we have restricted to some extent the damage it can do to third parties. The Minister's advisers, when they were drafting what he read to us, were thinking that because they were considering the proposed amendment 10 in the context of a lot of other amendments which I have put down—and I could think of better ways of spending my time than in doing this—I had in mind third parties exclusively. I had not. I had the international bodies in mind as well. The international bodies, the Minister may find, will run into great difficulties when at some stage they come to rent and office and the landlord may say “You may be the finest body in the world but you have no power to pay rent, to lease or to guarantee”. We should all be very well aware that financiers and people of that kind, property owners, are actuely conscious of the necessity to have the powers of the body examined most carefully.

The Minister has a choice to make [764] here. Let him clearly and fully understand the choice he has to make. The choice is to offer a simple kind of constitution to people who will understand it as being the kind of constitution with which they are familiar and which will save them if they come in here and if this section is amended. The alternative is that they are going to have a constitution with powers so ample that they will be shocked out of coming here. This is the Minister's choice, and if he wants it and we and the majority in the House will support him there is no power of language in me that can prevent him doing so. The Minister should realise the choice he is making. The Minister's advisers should consider the impact of this rule upon the consideration of members of the body and the people who will come here. There is no indication from anything the Minister has said that the minds of his advisers have been directed to the degree of frustration which those not familiar with this peculiarly English law will feel when they find the impact of it here. If they come along with this type of constitution they will be very limited indeed. It looks to me as though it were a translation from Spanish. There are so many contradictions in it that a ribald time would be enjoyed in the courts if any question of construing it arose.

The Minister should shed the prejudice which he has disclosed very openly against what he calls legalistic operations. An orderly society requires laws. Laws are made and they have to be enforced. The people dealing with these bodies will have rights and will have to enforce them because they are bound to make very substantial contracts. They have the power to acquire land and they have been given additional qualifications by the amendment which the Minister has been kind enough to accept about the Land Act. Substantial bodies have suffered serious loss through no fault of the officials who may not be Irish. If one tries to tell a German that the law governing this country is the law of Ireland and not the law of Germany he always gets a great surprise because he always thought it was the law of Germany that governed this country. He will say it is all wrong because it is not the law of [765] Germany which governs this country. A foreign official may dash off and make engagements which will expose the corporations established by the order to great damage. The Minister's advisers have approached this in the context of consideration of other amendments I have put down which are clearly designed to protect third parties. The Minister has not said that his advisers have considered the position of the laws of other countries. They know the law of this country and whilst we have had no case in this country a case arose last year in Great Britain which caused serious difficulties. If I withdraw this amendment it is with a view to putting it down on Report Stage.

Miss Bourke:  Am I to take it that the Senator has not withdrawn it?

An Leas-Chathaoirleach:  The Senator has expressed his intention to withdraw it.

Miss Bourke:  The Senator has made a valid point. It may very well be an oversight because if I refer back to subsection (3) it clearly indicates that corporate status gives these international organisations legal personality here which will allow them to carry out the normal functions of international organisations. Subsection (3) of section 3 states:

A body to which a corporate status order relates shall, by virtue of the order, be a body corporate with perpetual succession and with power to sue and be sued in its corporate name and to hold land.

Senator FitzGerald has pointed out the anomaly in the law of the doctrine of ultra vires and to a continental or other legal system it might appear sufficient for that body to operate as a corporate body but there is no power here to borrow money and under the constitution there is no power for the organisation to borrow any money. International organisations would not therefore be empowered to do this simple and very necessary legal act.

Before closing his mind to it perhaps the Minister would reconsider the amendment. He might add a clause to subsection (3) of section 3 giving [766] international organisations the status of a corporation having powers under our law even though those powers are not actually written into the constitution. Otherwise we shall be allowing international organisations to come into the country who are not equipped to cope with the doctrine of ultra vires and they might find themselves severely handicapped. Subsection (3) of section 3 was meant to be operated fully but this is not being done. The purpose of the amendment is to give international organisations a legal personality in this country so that they will not come up against the unusual law of the doctrine of ultra vires which cannot be got around. An international organisation should not have the power to borrow money and yet not be able to do what is written into its constitution.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I feel sure the Minister will be the first to concede that he has not advanced any strong arguments against the case which has been made. He has quite honestly told the House that he is advised by his advisers to steer away as far as he can from talking about or dealing with this question of the doctrine of ultra vires. In the context of the arguments which have been made here I do not think with all respect to the Minister that that is sufficiently strong to persuade the House—I hope this applies to Members of both sides of the House— that this amendment should not be made. All sorts of difficulties are likely to be encountered if this amendment is not made. These difficulties will be encountered by the body which the Minister wants to assist. This will militate against the Minister's whole approach which has been to try to remove obstacles and difficulties in the way of such bodies. Because the Minister has been told of the difficulties of the doctrine of ultra vires it appears he is not prepared to accept this amendment.

There is a further anomaly in subsection (5) of section 3 because it is implicit in subsection (5) that any body to which an order under this Bill will be made will have a corporate seal. In the sample constitution which the Minister has issued to us there is no provision whatever for the body to have a seal, so that straight away this section [767] is going to be in conflict with the constitution of a particular body, although we are dealing with it rightly as a sample. The fact that the Minister contemplates that such a body must have a seal and he proposes legislating that judicial notice should be taken of the seal means that the Minister contemplates that such a body will enter into contracts of one sort or another where the use of the seal of that body will be necessary. At the same time there is no provision for a seal in this sample constitution before us. There is a very limited and confined set of objects being taken as the purposes for which the body will function. Senator Alexis FitzGerald is right in this. If it does not take other powers then under its constitution it has not got the necessary powers. Because of the rejection of this amendment it will not have the powers which it ought to have.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I think Senator O'Higgins has made a point extraordinarily well which supports the proposition which I have made because many countries do not have laws which provide for seals. It is a perfect example of where we have provisions here which are common to us and to Britain but which are not in common practice elsewhere. I am aware of countries which have seals. What kind of mistake are these bodies going to make if they come in here not knowing that companies established in Ireland are required to have a seal? Therefore the easier we can make the situation for them the better and the more likely it is to achieve the Minister's purpose.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I can insist that a body should have a seal.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  It is an example of how they do not understand our system.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am instructed by my advisers that this is only a draft constitution which can be amended to conform with the kind of organisation which is likely to be established here. In deference to Senator FitzGerald's [768] enormous knowledge on this subject the best thing I can do is, if all the amendments are withdrawn including amendments Nos. 13, 14 and 15 which again imply a complication in regard to this which I do not think we will ever be involved with, is to ask the legal officers to read Senator FitzGerald's speech and the observations of other Senators to see whether we are making it more difficult for the organisations to come here if they wish to engage in business. They may wish to buy or to rent a small property or purchase articles or employ people. We wish to make it easy for them and at the same time there should be some kind of protection for the community with whom they do business. This legislation does not apply to all the bodies which I have mentioned here already. It does not apply to the Blood Transfusion Service Board, the Miss Radiography Board, the Dublin Dental Hospital and others. These are some of the great many bodies to whom this legislation does not apply. I will have the Senator's speech carefully read and if my advisers consider there is some merit in what the Senator has said we can put in these amendments or ones like them on Report Stage.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I appreciate very much the Minister's attitude. I should like to withdraw all these amendments. While agreeing before discussing the particular amendments, would the Minister consent to having amendments Nos. 13, 14 and 15 discussed? I have one particular amendment which may be found to be actually essential for the working of the body corporate itself. That is amendment No. 15. I would wish to assist the Minister and his advisers by saying, if I am permitted by the Chair to do so——

An Leas-Chathaoirleach:  I think it would be preferable if the debate did not go beyond the confines of amendments Nos. 10 and 11 now.

Amendment, by leave, withdrawn.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  This is in the context of what the Minister says. It is [769] open to Senator FitzGerald to resubmit the amendments?

An Leas-Chathaoirleach:  When amendment No. 10 is now withdrawn does the Senator wish to reserve his rights in regard to amendment No. 11?

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Yes.

An Leas-Chathaoirleach:  It might be preferable if the amendment were moved and withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 11:

Before section 4 to insert the following new section:—

(1) Any act or thing done by a body to which a body corporate status order relates which if such body had been empowered to do the same would have been lawfully and effectively done, shall, notwithstanding that the body had no power to do such act or thing, be effective in favour of any person relying on such act or thing who is not shown to have been actually aware, at the time when he so relied thereon, that such act or thing was not within the powers of the body but any director, manager, secretary, member of the committee of management or other controlling authority of such body who was responsible for the doing by the body of such act or thing shall be liable to the body for any loss or damage suffered by the body in consequence thereof.

(2) The court may, on the application of any member or holder of debentures of a body to which a body corporate status order relates, restrain such body from doing any act or thing which the body has no power to do.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 12:

Before section 4 to insert the following new section:—

(1) The provisions of Part III of [770] the Companies Act, 1963 (and the general provisions as to interpretation of the words used therein contained in section 2 of the Companies Act, 1963) shall apply to any body with a share capital to which a body corporate status order relates.

(2) A body without a share capital to which a body corporate status order relates shall not issue a prospectus as defined by section 2 of the Companies Act, 1963. without the consent of the Minister.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  We do not regard this amendment as necessary.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  There is nothing in the Bill which would prevent this body from issuing a prospectus. If a prospectus were issued and people did subscribe they would do so as unprotected as they were 250 years ago when the South Sea bubble burst.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  We are not talking about the South Sea bubble. I am becoming impatient with the Senator. These are perfectly harmless, deliberative organisations.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am satisfied they are splendid people. So were the South Sea companies until the bubble burst. This is historically true.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  At this moment the Senator and I part company. Any kind of understanding is finished. If the Senator is going to start talking about the South Sea bubble in relation to international organisations of which I have knowledge it is utterly ridiculous.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am not wedded to the language of the amendment. I do not want to refer to the Companies Act. The Minister dislikes references to it. I would be prepared to recommend to the House that the amendment might be redrafted and might simply give a definition of a prospectus. Subsection (2) simply provides that they could not issue a prospectus without the consent of the Minister. The Minister said he parted company with me. I am sure he did not do so [771] to the extent of not performing his public duty of considering any amendment to the Bill as introduced here in the Seanad. If I may say so, the Minister is the only person who used the words “opposition” or “Government”. This Bill is not being opposed. My words were not heard at the Second Reading. We want to improve the Bill. The Minister's attitude has made it possible for us to do so. I do not think there is any other Minister in the Cabinet, or in any future Cabinet, who would have approached these amendments in the way the Minister has done, disposed as he is against lawyers and irritated as he is by legalistic language. I would invite the Minister to consider that it might be desirable to have a safeguard against any abuse. The Minister is not immortal and will not be forever Minister for Health. He will have many successors. This Bill, when enacted, will attract many international bodies. If I am allowed to refer to convicted persons in this House may I say that if Mr. Singer had thought of an “International Stamp Collecting Body” we could have had such a body and not merely Shanahan's stamps. There are people who are wrong-minded and people who are right-minded. One might want to issue a prospectus but these bodies might find themselves in a position where no lawyer could advise his client, or broker or banker their customers, that they could properly invest in such a body, which might need funds, because such involvement would lack all protection that, through time, has been found necessary to protect those who invest in public companies, and these bodies may be public companies. They will, in fact, be public companies. It may be that the State should have some power to control the situation or that the Minister should have the right to say: “You cannot issue that unless certain conditions are fulfilled.” Having said that, I would accede to the Minister's request.

Miss Bourke:  I should have thought that the Minister would be glad to have power to some extent to control but, as I read the Bill, the Minister's power can be exercised only if the [772] international organisation was going to do something that the Minister would not have wished it to do.

Amendment, by leave, withdrawn.

Section 4 agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 13:

Before section 5 to insert the following new section:—

(1) For the purposes of the registration of bodies to which body corporate status orders relate the Minister shall maintain and administer a register at an office in the State at such place as the Minister thinks fit.

(2) The Minister shall appoint such registrar as he thinks necessary for the registration of bodies to which body corporate status orders relate and may make regulations with respect to their duties and may remove any person so appointed.

(3) The Minister may direct a seal or seals to be prepared for the authentication of documents required for or connected with the registration of bodies to which body corporate status orders relate.

(4) A body to which a body corporate status order relates shall deliver to the Registrar within one month of the making of the order:

(a) a certified copy of the constitution of the body and if the constitution is not written in the English or Irish language a certified translation thereof;

(b) a list of the directors, manager, secretary, member of the committee of management of other controlling authority of such body;

(c) in relation to each person so to be listed his present first name and surname and any former first name or surname, his usual residential address, his nationality (if not Irish) and his business occupation (if any);

(d) the address of the office kept by a registered body in [773] accordance with section 4 of this Act.

(5) Each such body shall deliver annually thereafter to the Registrar a certified copy of amendments (if any) in the constitution of the body prepared in accordance with paragraph (a) of subsection (4) hereof together with lists prepared in accordance with paragraphs (b) and (c) of subsection (4) hereof showing all changes thereon and any change in the address of the office kept by such body in accordance with section 4 of this Act.

(6) The register containing all the information required to the registered under this section shall be kept open for public inspection on all business days during usual office hours.

Acceptance of this amendment would involve the deletion of the existing section 5. Clearly, section 3 is already covered by the provisions of subsection (5) of section 3 and, on re-reading this, I asked the House for leave to amend my own amendment. Anyone who studies section 5 will see that the amendments have been designed to maintain all the provisions that are in it. Rather than to insert words here and there I found it would be easier for me to redraft the entire section. My first point about it is that I would be interested to know how one could have a register without having a registrar. Presumably copies of the constitution will have to be kept by somebody and that somebody would be a registrar. I cannot see the Minister carrying such documents with him in his portfolio. Therefore, he is likely to nominate a person to be the registrar and that person will be empowered to sign certificates and so on. I think some person must be named in the legislation to take care of certificates.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  The Minister is the registrar under the Ministers and Secretaries Act.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  At one point, the Minister becomes very cross with lawyers and, at another point, he is very well informed about the law, far better informed than are some lawyers. I studied section 15 which, I presume, relates to the Ministers [774] and Secretaries Act on which the Minister is relying. I wanted to be satisfied that the Minister had the power to nominate a person who could do all the necessary work in relation to certificates and so on. I thought that this person might be somebody like the registrar of a company. He need not necessarily be such a person but, if we are to have a registrar, we should know where the register is going to be kept if we have occasion to deal with I it. It must be kept in some place but, if we are to have the right of inspection, we must be told where it is. We want to know where the register is. It would seem to me to be a desirable thing and it would seem to me to adorn the office if in fact you had a registrar for those bodies, who is known as such, just as you have the assistant to the Attorney General as the registrar of friendly societies. One turns to him for any information in regard to friendly societies and also in regard to provident societies. It is useful for people who have to deal with those bodies and who want to get certified copies. I would not press the Minister kindly on this. I am inclined to concede that he is so advised that under section 15 he has the power. I thought if he had the power he should do it this way rather than that way. Incidentally, if it is so absolutely certain that this is so I wonder why the Minister for Industry and Commerce was advised that he has to have a registrar of companies. I suggest he was so advised because it was desirable that there should be a certain individual known as the registrar of companies who would accumulate knowledge and experience that would be useful for those who have to deal with companies.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  If he had 1,000 companies to deal with that would be a different thing.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  As I already said I am not really pressing that part of the amendment if the Minister really objects to it. I press him to consider subsection (4) and subsection (5) There are a few things new in this such as the provision in regard to the constitution that if it is written in language other than English or Irish there should be [775] a translation. Maybe the Minister might say that this is quite unnecessary. I would not press him on this either if he is satisfied this is not necessary, that nobody would be so silly as to register a body corporate which would then have to be produced in the Dáil and the Seanad in any language other than English or Irish.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  The Minister has given an undertaking to consider an amendment on that already.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I have but I do not know why I did. After all this, I feel I should not have done so.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  This results from to much talk imposed on me by what I felt I had to do. I think the registrar should keep a list of the directors, manager, secretary, members of the committee of management or other controlling authority. The person dealing with such body should know who the different people are, should know the person's surname and first name. The equivalent of that is already provided for in Part II of the Companies Act, if I dare to refer the Minister to it.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  All the information regarding this will come under section 6.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The Minister can get this but not persons dealing with those bodies.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  There is this dreadful theory of the collapse of the State and some Minister in the Government incapable of doing things correctly.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I have scrupulously refrained from collapsing anything.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  The basis of the Fine Gael argument is that after 30 years Ministers cannot be trusted to do things properly. That is the whole argument this afternoon.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  This is not Fine Gael argument.

[776]Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  We will deal with that after tea.

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  We might as well deal with it now.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I will deal with it now if you like.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  It is really a bit much when I have scrupulously kept to each section that I should be drawn into the political arena in relation to a matter which I would have thought is totally non-political.

Miss Bourke:  I want to dissociate myself from the Minister's remarks which are most unfair. There has been a great deal of restraint and argument for the improvement of legislation before us which is the purpose of the Seanad. I do not know if the Minister feels he is wasting his time in this assembly but I feel a great deal of homework has been done with regard to this legislation. Those of us who are lawyers have made constructive arguments on the amendments. There has been no political waffling.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  It might be any Government. If we start to enact legislation on the basis that some future Minister would do something and would allow some resolution to go through which would cause what is suggested here, no matter which party he belonged to, the Dáil and the Seanad could very soon change this. If this is what the Opposition think could happen I do not know how we could ever frame legislation.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  We could frame it properly.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I thought it was the practice in this House for Members when addressing the House simply to do so without other people making speeches at the same time.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am sorry.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  If this practice is not the practice of the House I would propose to avail of it myself.

An Leas-Chathaoirleach:  Would the Senator please continue on amendment No. 13? The Chair allowed the time of [777] 6 o'clock to pass in the hope that amendment No. 13 might be disposed of before the adjournment. As the House has not since 6 o'clock debated amendment No. 13 perhaps the House would like to adjourn now?

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  As far as I am concerned I am prepared to go on without a teabreak.

An Leas-Cathaoirleach:  It is a matter for the House to control its own sittings.

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  I think with the sort of speeches we have had we will not finish by ten o'clock.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I thought section 5 as drafted, which I have redrafted in this amendment, was not full or adequate for the purposes of persons dealing with it. I do not follow the Minister at all on this matter of the collapse of the State. It seems to me totally irrelevant to a section which is designed to protect people in their dealings with bodies corporate to be established pursuant to this Bill.

What I have said about the list of directors, managers, secretaries and so on is, I think, desirable and the former first name, usual residential address, nationality and so on. I think it is desirable that each body should deliver annually to the registrar a certified copy of amendments to the constitution prepared in accordance with paragraph (a) of subsection (4) together with lists prepared in accordance with paragraphs (b) and (c) of subsection (4) showing all the changes thereon. “Annually” is a very moderate requirement. It seems to me that this is desirable and would represent an improvement in the legislation.

I may say for the Minister's guidance, if I have not said it already, that the language of subsection (4) is in fact taken from that part of the Companies Act which casts obligations on a foreign body which was establishing business here. I have tried to adapt it to make it suitable for the purposes which Part II of the Companies Act has in mind, the protection again in this case of the people dealing with this. The Minister will have all this information available but there is nothing [778] in the existing section which requires the list of members, directors, secretaries and so on. There is no requirement about when the registered body is to supply a copy of amendments or when those amendments are to be notified. We may be in the position on a Tuesday of looking at a constitution which has already been amended but the amendment has not been notified to the Minister. There should at least be some minimal obligation on the body concerned to inform of the changes in an annual way.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I want to say a few words about this. Senator FitzGerald has made it clear he is not urging the Minister to accept the amendment he has proposed in full. I do not agree that I think Senator FitzGerald knows that all of the provisions which he seeks to make in this amendment are necessary but I agree that some of them, if not necessary, are clearly desirable. I recognise the Minister's desire for simplicity and clarity in this legislation. I can see that from the point of view of the Minister himself or of the officers of his Department, obviously, it will be a lot easier if they are required to answer queries put up by bodies of the sort contemplated who are thinking of establishing themselves here, if they are in a position to say “We have a very simple Act here that does not tie you down in any way at all, but only essentials are dealt with.” Lawyer though I may be, I can appreciate that aspect, but there are grave dangers of becoming slipshod in a desire for simplicity in legislation of this sort.

I would very strongly resent the remarks which the Minister made by way of interjection but I think that the Minister himself probably on reflection would regret the remarks he made. I regard it as the duty of any House of the Oireachtas to do the best thing they can in considering legislation and in constructively suggesting amendments. I think that Senator Alexis FitzGerald has shown great care and not merely erudition but diligence in endeavouring to improve this piece of legislation.

I would recommend in relation to this amendment and in considering section 5 of the Bill that at least it is [779] necessary that the register which the Minister contemplates should be kept in some place that will be definite. I would be quite happy to accept the suggestion which is made by Senator Alexis FitzGerald in this amendment that the place should be fixed merely by the Minister deciding where it is to be. Under subsection (1) of the section suggested by Senator FitzGerald it is provided that the register shall be maintained at an office in the State at such place as the Minister thinks fit. That is not imposing any burden on the Minister, to accept the obligation under this Bill to designate the place where the register which he himself under section 5 of the Bill considers should be kept will be kept. I do not think it is imposing any hardship on the Minister or any restriction on the bodies which the Minister hopes will be established under this Bill. So could we at least agree that the obligation should be placed on the Minister under section 5 to designate the place where the register is to be kept and where it is to be open for public inspection?

I am not going to dwell at any length on the question of the necessity for the constitution to be in writing in a language that will be understandable and understood by the officers of the Minister's Department and by the public, because the Minister has already conceded that he will examine it with a view to bringing in an amendment on Report. I would suggest, though, that provision should be made —and it is not made under the section —to enable members of the public if they so desire—and there may be reasons why they should desire—to obtain copies of the constitution of these bodies. The Minister, I think on Second Reading, gave an example of a federation concerned with health matters of which the Voluntary Health Insurance Board in this country is a member, and I think that a member of the board, or the secretary, is a member of the federation. Surely it is proper that members of the board of the Voluntary Health Insurance, or the secretary, should as a matter of right be entitled to demand and to obtain a copy of the constitution [780] of this federation when it becomes established as a corporate body under this legislation? I think that it would be proper to provide that if a copy has to be furnished it should be furnished on payment of a fee from the registry which the Minister should designate. That does not seem to be referred to by the section as it stands.

I would strongly urge on the Minister to look at this and the other amendments. I think that he will find that even from his own point of view and his desire for the utmost simplicity and the greatest clarity in the legislation there is something of value in them. Let him then, if he is not prepared to accept the amendments as they stand, at least in his own interests and in the interests of the legislation, endeavour to pick what is good and of value out of them and bring them in on Report. This is one of the amendments which it has been suggested should be withdrawn and if necessary put down again on Report, and with the understanding that it may be open to us to have further discussion on Report, I do not think that I will say anything more at this stage.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  With the consent of the House I will withdraw the amendment on that basis.

Amendment, by leave, withdrawn.

Section 5 agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 14:

14. Before section 6 to insert the following new section:—

(1) Any person may

(a) inspect the documents kept by the registrar to be appointed under section 5 on payment of such fee, not exceeding ten shillings, as may be fixed by the Minister;

(b) require a certificate of the incorporation of any body corporate to which body corporate status order relates, or a copy or extract of any other document or part of any other document, to be certified by the registrar on payment for the certificate, certified [781] copy or extract of such fees (calculated by reference to expenses incurred) as the Minister may fix.

(2) No process for compelling the production of any document kept by the registrar shall issue from any court except with the leave of that court, and any such process if issued shall bear thereon a statement that it is issued with the leave of the court.

(3) A copy, or extract from, any document kept and registered at the office for the registration of bodies corporate to which body corporate status order relates, certified to be a true copy under the hand of the registrar or other officer authorised by the Minister (whose official position it shall not be necessary to prove) shall in all legal proceedings be admissible in evidence as of equal validity with the original document.

I will say very little on this amendment because I put it down to have the Minister's advisers understand or consider it. I must be extremely frank with the House—I do not know why—this is a repeat fully and with no draftsmanship of Alexis FitzGerald at all except to substitute “body corporate”, of section 170. I myself thought, as did the Minister and his advisers, that section 15 of the Ministers and Secretaries Act would have covered most of this even under the Companies Act where the officers of the Minister for Industry and Commerce apparently think that the registrar of companies would be not a person authorised under the Ministers and Secretaries Act. Perhaps there is an inconvenience involved in this, where you have somebody dealing exclusively as he would be with many companies and a number of persons. I have not studied the Ministers and Secretaries Act recently in any thorough way, and I do not know if there is any limit to the number who can authorise, but I think that in practice probably the Act should limit the list to persons who are authorised. It would be desirable that it should. For that reason they may have decided to have the registrar of companies given the sort of powers the would have in any event if he was an authorised officer under the Ministers and Secretaries Act. That would deal with subsections (1) and (3).

[782] I must tell the House that I do not understand what is the significance of subsection (2). This, I am repeating for the consideration of the House, the Minister and his advisers, is the subsection which apparently was found necessary when drafting the Companies Act. It ought to be considered whether a similar subsection is necessary here. My own feeling is that there must be some basic reason for it which I do not understand but subsection (3) is probably unnecessary in the context of this Bill.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not propose to accept this amendment. There are no difficulties about the inspection of documents. The documents which are held by the Minister as registrar for the company can be inspected.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Despite all the irritations which have been provided him the Minister has kept on demonstrating an openness of mind which is encouraging. I would invite the Minister to have subsection (2) specially considered and have inquiries made as to why it was thought necessary to introduce it into the Companies Act, 1963. It ought to be considered to see if it is necessary to have it for technical reasons. I withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 15:

Before section 6 to insert the following new section:—

(1) A document may be served on a body to which a body corporate status order relates by leaving it at or sending it by post to the office to be kept in accordance with section 4 or if the body corporate has failed to give notice of such office by serving it on the Registrar to be appointed under section 5.

(2) For the purposes of this section, any document left or sent by post to the place for the time being recorded in the register to be maintained under section 5 as the address of the body to which a body corporate status order relates shall be [783] deemed to be left or sent by post to the body notwithstanding that the address of the office has been changed.

This is a vital amendment if persons dealing with any body corporate established under this Bill are not to be put to enormous inconvenience in the matter of the service of documents. I would refer the House to Order 9, Rule 1, of the Rules of the Superior Courts which are to be found in Statutory Instruments No. 72 of 1962 which state:

In the absence of any statutory provision regulating service, every summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation; and every summons issued against the inhabitants of a county district or other like district may be served on any officer of the Garda Síochána not below the rank of Superintendent stationed in the county in which such district is situate and every summons issued against the inhabitants of any county or any city or town, or the inhabitants of any franchise, liberty, city, town, or place not being part of the county district or other like district on some peace officer thereof: provided always that in all such cases a sufficient notice of the issuing of the summons shall be given in Iris Oifigiúil and in one of the local newspapers of the county, city, or district in which the defendant or defendants or the officer or other person to be served shall reside, the times for appearing to run in such cases from the day of the publication of such notice in Iris Oifigiúil or such newspaper, whichever shall be the latest; and where——

these are the significant words:

by any statute, provision is made for service of any proceedings upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or incorporate, every summons may be served in the manner so provided.

[784] The last sentence of the Rule saves plaintiffs proceeding against such corporations from the burden of this kind of publication which has to be engaged in by every corporation. If the Bill enacting the body corporate makes any provisions for service that service is good if it is served in accordance with the Bill in question. This is dealt with in relation to foreign companies in section 356 of the Companies Act where provision for service therein is laid down. It is also dealt with in section 379 of the Companies Act.

This amendment provides that bodies corporate will be in exactly the same position with regard to the service of summons on them in relation to all sorts of matters which can arise as a company incorporated under the Companies Act. The Minister will invariably find in the statutory corporations which have been established by the State that a provision for the service of proceedings is made. We do not have to go through this antique nonsense of publication in Irish Oifigiúil. This amendment is designed to improve the legislation.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not propose to accept the amendment. Any body incorporated under this Bill will be the kind of body with the kind of solicitor who will have no objection to accepting service. The idea that there should be provision in the legislation insisting they accept it is totally ridiculous.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Is the Minister serious?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am absolutely serious.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I must accept that the Minister is serious when he says he is serious. I wonder what kind of information the Minister is going on. As I understand the Minister's argument it is this: it is not necessary to provide any manner of service because these bodies may get a solicitor to accept service. I do not pretend to be an expert on the law in relation to these matters. I understood the Minister was approaching these amendments in horror at the idea that any of these bodies would become entangled [785] in any way with lawyers in this country. We now find that the Minister's approach to this particular amendment is that they are going to get solicitors to accept service on legal proceedings. I do not think that this is a realistic way to approach the matter. I do not know to what extent the Minister has received advice as to the position of a solicitor who may obtain instructions from a body which conceivably under the sample form of constitution given to us has no authority to instruct solicitors because that power is not taken. The Minister has already resisted an amendment which would among other things have given these bodies that power. Surely it is common practice to provide provision for the service of documents in the case of legal entities of this sort?

Senator FitzGerald has pointed out that provision exists in the Companies Act for the service of documents in the case of companies with addresses abroad and so on. I cannot see why the Minister should reject a similar provision in relation to these bodies. I do not think it is sufficient for the Minister to say it is not necessary because they can get a solicitor to accept service. Has the House any right to assume they are going to get solicitors to accept services? Surely the argument being put up by the Minister is tantamount to an invitation to the bodies concerned not to get solicitors to accept service. The Minister is in effect saying “you cannot be served unless you authorise a solicitor to accept service”. The Minister is correct in that. That would be the position unless this amendment or a similar amendment is accepted by him. The Minister, by his refusal to accept this amendment or to introduce an amendment himself, would be creating a situation where these bodies could not be served if they did not choose to be served by adopting the device of authorising a solicitor to accept service on their behalf.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  The Mass Radiography Board and the National Rehabilitation Board have no sections in the orders establishing them of the kind suggested by the Senator. They have none whatever and they seem to have survived [786] everything and not to have exploited the community in any way.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I cannot see why the Minister is making that point or that there is any validity whatever in pointing to a defect in any other Act as a reason for not having a defect removed from the present Bill. The bodies to which the Minister refers are respectable bodies and so are the bodies to be established under this Bill. One can have a plaintiff and a defendant who are both respectable people but who both happen to be aggrieved about a particular matter which must be resolved. Their arguments often have to be resolved by going to court. I am thinking in terms of civil rather than criminal proceedings. There are resources available to the prosecution in criminal matters which are not available to people laying civil claims.

The Minister said that if I withdrew amendments Nos. 10 and 11, together with amendments Nos. 13, 14 and 15 he would consider all these amendments. Now, in each case the Minister is rejecting them in a manner which suggests that it is no longer the argument which is affecting him as it had been affecting him in the earlier stages. The fact of the matter is that, looking at the constitution which is before us, no solicitor in his sane senses would accept instructions to accept service unless he was absolutely satisfied with the competence of the governing body which is obliged to meet only annually on 30 days notice.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  Perhaps the international organisation would get to know this. No doubt they would change the constitution if they could not get a solicitor to help them.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The Minister must not be obsessed with the word “international”. He must not approach this legislation in this fashion. There are other people whom he wishes to attract here. The citizens of Ireland will have to deal with these bodies. The Minister, by being obstinate in this matter, which surprises me, is refusing simply because he finds support in defective legislation introduced by a predecessor in his Department [787] and he is not giving rights to the citizens of Ireland which they should have.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  There are many bodies established by Ministers at different times of different governments.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  This is not a political debate.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  There were bodies which were initiated and incorporated but not by any Minister at all.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The constitutions of those bodies are different from the constitution of this body.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  They seem to have survived.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  That proves nothing. Some bodies can get through many years without litigation and through subsidisation of public funds they are able to settle disputes without bringing them into courts. If the Minister does not accept this, and if he is supported by the majority of this House and by the majority of the Dáil —but one cannot be quite confident of that—and if he is going to push me into political argument——

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  There is not any doubt about the majority in the Dáil.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  ——then we will have a nice debate.

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  Is that a threat?

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I invite the Minister to open his mind to the consequences of this legislation. Notice must be given of a summons in Iris Oifigiúil and in local newspapers in the district in which the defendant to be served is living. This is to place an additional burden on all persons dealing with that body. This seems to be unfair. I withdraw my amendment on the basis that the Minister might yet reconsider the matter.

Miss Bourke:  I think that perhaps Senator FitzGerald is putting too much emphasis on a fear that there may be something wrong with an organisation which comes here. A citizen may need to sue such an organisation and that is justification for having a section [788] relating to the place of service. The Minister might consider the situation where the international organisation might need to sue. The service of the document is not always for the purpose of suing somebody. It could be notice to them of legal proceedings in which they are interested. It might be necessary in relation to the proceedings that there would be a place at which notice could be served. What we are doing to this international organisation is providing the type of facility which is provided for companies under the Companies Acts for the service of documents on a legal person instead of on an ordinary person. It does not imply for example, that there might be a likelihood of this international organisation suddenly folding up and leaving many creditors. It is a type of enabling amendment which is as much to the benefit of the international organisation as it is to the benefit of anybody who deals with this international organisation. It is an amendment which, if agreed to, would increase the trust in such organisation because of the safeguards it provides for the benefit of the Irish people. This is not a political point but, rather, it is something that would improve the Bill itself.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am grateful to Senator Bourke for having spoken. If it has been considered necessary to correct me in anything I have said, I would suggest that I would not expect these bodies to behave badly and it was no such suggestion that motivated this amendment. There is nothing wrong in being a defendant. Every other day, defendants are found to be right in resisting large claims made against them but, at the same time, I want to have a convenient procedure such as is usual in regard to existing companies. I had not in mind anything adverse to any body to be incorporated.

Amendment, by leave, withdrawn.

Question proposed: “That section 6 stand part of the Bill”.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  On this section, I would like to ask the Minister a [789] question. Subsection (1) of section 6 reads:

A body to which a corporate status order relates shall supply the Minister with such information (including copies of annual or other duly audited accounts) as he may reasonably require.

Arising from that, I would ask the Minister how the requirement would arise that there should be audited annual accounts? Is it intended that the Minister should attach a condition to the making of the order, in the first place, that any of these companies must have their accounts prepared annually and that they must have them audited annually? I am sure that the Minister knows as well as I do that there is a vast difference between preparing accounts and having accounts audited. The requirement to have audited accounts does seem to imply that there will be auditors who will have authority, by virtue of the fact that they are auditing the accounts, to inquire closely into all receipts and all expenditure.

I am wondering, as a result of what the Minister said earlier in regard to his approach to those bodies, if what he intends is that there should be a balance sheet certified by auditors or accountants without actually requiring a full audit of the accounts. Secondly, in relation to subsection (2) which reads:

In case the Minister proposes to make a revoking order under section 7 of this Act because he thinks it is in the public interest to do so, he may, before making the order, require the body, to which the corporate status order which he proposes to revoke relates, to supply him with such information as he considers necessary to enable him to determine whether any provision mentioned in paragraph (b), (c) or (d) of section 7 (2) of this Act, or any other consequential provision, should be included in the revoking order.

The provisions in (b), (c) and (d) are, respectively:

the transfer or distribution of the property, rights or liabilities of such body;

[790] the preservation of continuing contracts made by such body;

the continuance of pending legal proceedings.

Would the Minister not be inclined to agree that, in view of the provisions which I have read out in subsection (2) of section 7, it would be desirable between now and Report Stage for him to consider further the amendment under discussion?

My principal reason for speaking on this section is to get some information from the Minister as to his intention in using the words that appear in brackets in subsection (1) of section 6.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  In reply to the Senator, it is intended to ask the body incorporated under this Bill to supply us with an annual duly audited account. We will make it a condition that they supply us with an annual audited account of their activities. In regard to the other matter raised by the Senator, I do not mind looking into the Senator's suggestion between now and Report Stage.

Miss Bourke:  In regard to subsection (2) of this section, I am wondering if the Minister, in proposing to make an order requiring the body to supply him with information, will define the requirement.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  This is a drafting section. The subsection relates to the making of the revoking order. I cannot explain it any other way.

Miss Bourke:  I assume that the Minister will require that the requirement be complied with.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  Subsection (3) must be complied with. This subsection endeavours to make more emphatic what is in subsection (2).

Question put and agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 16:

Before section 7 to insert the following new section:

[791] Every body to which a corporate status order relates shall, in all business letters on or in which the names of the body appears and which are sent by the body to any person, state in legible characters the following particulars:

(a) that the body has been incorporated under this Act and the date of incorporation;

(b) that the liability of the members of the body is limited; and

(c) the present and former first name, or the initials thereof, and the present or former surname of every director, manager, secretary, member of the committee of management or other controlling authority of such body.

The first point I wish to make relates to all these amendments that have been put down in my name. As I make my points, the Minister can decide whether there is any validity in them. The members of the body corporate to be incorporated under the Body Corporate Status Act will be limited in liability. It is desirable that people dealing with these bodies should know this fact. In case it might be derogatory for a body to accept the provision of (b) of this amendment, it may well be that it would be sufficient if (a) was taken as being the requisite. This reads:

that the body has been incorporated under this Act and the date of incorporation;

I am not certain that the date of incorporation is necessary but what is very desirable under this Bill would be that all communications issued by these bodies should bear the fact of incorporation under the Act because, then, anyone dealing with them will know the kind of body they are and they will also know the full legal significance of trading with them.

Since tabling this amendment, it has occurred to me that it might be desirable if there was some prohibition in this Bill preventing bodies that are not incorporated under this Bill from [792] describing themselves as international health bodies. Side by side with such a prohibition would be the positive requirement that the authenticity of the person could be identified from his business letters thus excluding any possibility of a bogus set-up that would mislead the people. On the one hand, this would not seem to take from the status of a body and, on the other, it would ensure that the body was incorporated under this Bill. It would also inform people of where they should look for further information about the body, if they wished to have such information.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not think it is necessary at all. I do not think this amendment is necessary for the small number of companies which will be incorporated under this Bill. People will know that the Minister for Health is the registrar and I cannot see the necessity for it at all. It is an elaboration of legislation and I do not think it is necessary.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  It is the shortest wills that make the biggest fortunes for the lawyers who have to interpret them. I do not think Senator Nash will disagree with that. It does not necessarily mean that you will complicate a situation if you provide for contingencies which may occur. I will leave it at that. I would like to be able on the Report Stage, from what I am saying now, to put down an amendment providing for a prohibition of bodies calling themselves international health anything if they have not got the benefit of an order under this amendment.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 17.

Before section 7 to insert the following new section:—

The corporate status order made by the Minister in relation to a body shall be conclusive evidence that all the requirements of this Act and all matters precedent and incidental thereto have been complied with, and that the body is a body corporate duly incorporated under this Act.

[793] This amendment arises from the fact that it has been found with regard to the corporations generally that it would be disastrous if any person was allowed to go back and enter into an examination of the circumstances attending the original registration of incorporation of the company in question. There is a whole series of Acts relating to quite different themes which provide that where they could establish that something under this Act had gone wrong, for example that the body truly could not be regarded as an international health body because the court did not agree it was international —if the certificate of incorporation is conclusive the court will not be able to hold it was not international—and there will be a complete prevention of anybody going behind the order made by the Minister.

There have been sections in the Building Societies Acts, the Companies Acts, the Joint Stock Companies Acts and the conclusiveness of the certificates issued under those Acts has prevented any action in many cases. For example, prior to the 1900 Acts there were all sorts of inconveniences arising from the fact that you had to have seven subscribers and people got out of their difficulties in those cases by being able to establish that one of them was an infant at the time and the company did not have any viability whatever. If you have a section in this Bill which provides that a body corporate status order is produced as evidence of the existence of a body corporate all that possibility is eliminated. It has been in existence as part of our company legislation since the discovery of the absence of such a section in the years preceding the Companies Act of 1900, which is 70 years ago.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I will look at this amendment between now and the Report Stage since the Senator seems to suggest it may be very necessary. I am advised it is not but I will look at the position.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 18:

[794] Before section 7 to insert the following new section:

(1) A person shall not be qualified for appointment as auditor of a body to which a corporate status order relates, unless he is a member of a body of accountants for the time being recognised for the purposes of paragraph (a) or is authorised for the purposes of paragraph (b) of subsection (1) of section 162 of the Companies Act, 1963, and he is not otherwise disqualified under the said section from acting as auditor to a company.

(2) Section 162 of the Companies Act, 1963, shall apply to a body to which a corporate status order relates as if such a body were throughout the section substituted for a company.

I would have had the Minister more disposed to listen to this amendment if, instead of adopting section 162 of the Companies Act by reference which is a practice in any case I object to because it is almost impossible to know where you are with legislation which is being amended by reference to other legislation, I had written it in in extenso. I am very lazy and the effort of pushing my pen across the paper to produce all that would be required to make this effective was too much for me. I am quite sure the Minister thinks this is frightful nonsense and that of course those international bodies will have splendid firms acting for them. I am quite sure that is true but I think the statutory position ought to make it quite clear that they would be members of recognised bodies.

It may be said that this is one of the things which the Companies Act did. It recognised that there were people who had experience, at a time when you did not have to be a member of a recognised body, of acting as auditors for companies, who had developed skills in this field and had been given power by the Minister to continue to be officers of the companies in question. That is the explanation for the provision for authorisation. I do not know if anybody knows how many persons were authorised. I am quite sure there were many people who could only have [795] been authorised if they were in practice already. It seems desirable that the same sort of code should apply here. Incidentally, as the Minister I am sure is aware, I do not think there is an international company of chartered accountants which does not now have a practice in Dublin or is not associated with a firm practising in Dublin. One would expect that in fact those bodies will appoint persons who will fall within those categories but it seems to me desirable that this should be a statutory requirement. However, it is not an amendment I would press.

Miss Bourke:  Since the Minister has indicated he would, as one of the requirements of those international bodies, require an annual audit could this not be written in? It seems to me that it would be better to have this requirement under the Act than to have it as a requirement of the Minister. As has been pointed out we are legislating for posterity and although this Minister knows what is required the next Minister might not be aware of the facts. In that way this might not in fact continue in relation to international organisations whereas it would be fairly simple to write it into the Bill. It would seem to me to fit into this legislation.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not think this is necessary at all. It is inconceivable that any Minister in this country would allow the accounts of a body incorporated under this Bill to be audited by any other than professional auditors who would conform with section 162 of the Companies Act. It is just as inconceivable that he would allow people who were not properly trained and had not got the reputation and the standards of professional accountants to do this. It is part of my faith in the future of this country that I do not believe those things could happen. We need not start that argument again, but I would like some time or other to have a whole debate on legislation based on the supposed collapse of the moral qualities and the general integrity of the Government, political parties, civil servants and even the law of the country.

[796]Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  The whole criminal code is part of this.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  If we have to protect ourselves against this kind of thing we will find it impossible.

Amendment, by leave, withdrawn.

Government amendment No. 19:

In page 3, subsection (1) (a), line 35, to delete “and the” and insert “, the”.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  This is just a technical amendment substituting a comma for “and”.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  What is the effect of it? I have not studied it as I am too busy drafting amendments.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  I think it is a sensible one. It collapses “and” and puts in a comma.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  That is certainly acceptable.

Amendment agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 20:

To add to the section the following new subsection:—

(3) Section 344 of the Companies Act, 1963, is hereby amended to include within the meaning of unregistered company a body to which a body corporate status order relates notwithstanding that the body has less than eight members.

I wonder would the House agree to discuss amendments Nos. 20 and 21 together?

An Cathaoirleach: Information on Michael B Yeats  Zoom on Michael B Yeats  Does the House agree to discuss amendments Nos. 20 and 21 together?

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Yes.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I will very shortly summarise the effect of the adoption of amendment No. 20. A body corporate under this Bill would be unregistered under section 344 of the Companies Act, which provides for [797] the winding-up of unregistered companies and provides a definition of an unregistered company as being a company with less than eight members. It then brings into play the provisions of Part X of that Act. That is quite clear, and it may be tautological to go on with amendment No. 21 but I thought it might be an alternative which would be more acceptable to the Minister than amendment No. 20, and I propose to suggest to the Minister and to the House that the Minister will have no power if he excludes the provision which would have the effect of leaving in his hands the matter of determining the transfer or distribution of property rights or liabilities of any body established by this Bill. He would have no power under the Constitution enacted by the Irish people to deprive citizens, creditors of that body, or members of that body, from claiming rights which would be determined by him because this is a matter for the determination of the courts. I refer the Minister and the House to the Articles dealing with the courts. There is no point in my going through what can be easily read hereafter by the Minister and his advisers and, I am sure, is available to Members of the House, but those Articles are 34 to 37 setting out the powers of the judiciary. Those powers in a notable case, the Sinn Féin Funds case, it was held could not be invaded. I know the Minister's intentions are admirable but if he seeks to take powers, in my view this particular section would be held to be unconstitutional unless there was a right reserved in the section to have the court determine any matter which might arise in a dispute regarding any body which come for dissolution. I do not think that the Minister will find that he will be able, if he wants to, to revoke, and after all we are talking about a situation where the Minister must contemplate some situation in which he does not want to have the body any more. He will revoke its authority and determine it as a body, but I want to tell him that if he does that and the body corporate does not like it or some member of it is aggrieved by it or some of its creditors are aggrieved by his determination or by not getting preferences which they should get under [798] the Companies Act as preferential creditors, or there has been some transaction which would amount to fraudulent preference carried out by the body corporate within six months of its dissolution, I am submitting to this House that his power under this section might be held to be unconstitutional.

The effect of that would be disastrous to the section and disastrous to the intention of the Minister in the matter that he has in mind. He obviously rightly contemplates that there must be some method by which having created one of these bodies, if it does not behave itself—this is presumably a reason, but there could be other reasons—that, whatever the reason may be, there could arise disputes between members of the body corporate, between a third party and the body corporate as to what he was doing with the assests, and I would like to know what ability the Minister can get to transfer liabilities from one person to another without the consent of that third party. Certainly I would say that if I had a fine international body as my debtor and suddenly I was told that I no longer had it but that one member was taking over the liability I would say “Not on your life. I am going to the court to get my right established against those assests”.

The trouble about all this legal stuff is that you are talking about events that have not happened. When the Minister is considering this, as I hope he will be, I hope that he will also consider whether or not this is in fact a section which does not also breach Article 43 preservative of the right to private property, or whether it can be regarded as delimitation by law exercised with a view to reconciling the exercise with exigencies of the Companies Act. I think myself that the stronger argument is the argument relative to the invasion of the privileges of the judiciary which has already, in a very important case, been found unconstitutional. Nobody wants the position which would mean that we could create a corporate body that we could not dissolve even though they were in complete breach of what we were at that time approving of and because the power to revoke was held to be an invasion of the rights of the courts.

[799]Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I understand that Ministers have under other statutes transferred property and taken steps of a kind that could be a power to revoke an order under this Bill and I am not aware of there ever having been any difficulty. Nevertheless I will look into what the Senator says between now and the Report Stage to see if there is any substance in the fears he has expressed. I do not believe that there is. We have had a great deal of legislation which has included power for a Minister to revoke orders, and, as I have stated, by statute even to transfer property from one body to another because of a change in function of the body or a change in circumstances.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am very grateful to the Minister for his reaction to that, but the fact that sections of an Act have not been challenged yet in the court does not mean that they will not be challenged. The Sinn Féin Fund case is the leading authority on this. Quite clearly an attempt was made here to transfer assets which was not acceptable to the courts because it was thought to be in contravention of constitutional rights.

Miss Bourke:  I am not very happy with the wording of the present section. As I understood the Sinn Féin Fund case it was because the case was already being heard before the courts when an attempt was made to bring in legislation to remove the funds and therefore to negate the proceedings. I am not sure whether the Minister has power to transfer funds himself as part of his power under the section. I should be glad if the Minister would reconsider the section in the light of what has been said because I am not happy that the section does give adequate protection to creditors of this international organisation. If a situation arose where it was necessary to revoke corporate status of one of them —I know this is a situation which none of us would like to envisage—it would involve the creditors of this body and it is therefore a situation which must be safeguarded against.

Amendment, by leave, withdrawn.

Amendment No. 21 not moved.

[800] Question proposed: “That section 7, as amended, stand part of the Bill”.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  It seems appropriate for me to make this point here because it is only in this section that we have anything which amounts to a punishment for a breaches. I think there should be some punishments greater than the revocation of the corporate status order for breaches of the provision of the constitution of the corporate body. I am not satisfied that in a Bill of this kind I would necessarily consider providing punishment for offences other than the power of the Minister to revoke and the preservation of the rights of citizens. I should like to address myself to the theme sufficiently to be able to raise the matter on the Report Stage.

Question put and agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 22:

Before section 8 to insert the following new section:—

“The Minister may by order prescribe forms to be used in connection with any of the provisions of this Act.”

I have put this amendment down but I shall not be concerned if the Minister does not accept it. I thought it would be more orderly if we had forms which could be filled in by any body. As I visualise it the Department of Health might not be the first body approached. A firm of solicitors or accountants might be approached. A body here might like to find out what its position was going to be if it got together with its international colleagues with a view to getting a body corporate established here. There might be objections from the body to disclosing all this to the Department of Health. Bodies should be able to be told the sort of information they would have to supply about their activities if they applied for an order. Most legislation providing for incorporation and registration provides for a surprising number of extensive forms covering [801] different sorts of situations. In this case I do not visualise anything more than the application form which the person representing the international body proposing to incorporate would fill in. The Minister has said he is contemplating only ten bodies. He may say all these matters will be negotiable between the Department of Health and the bodies concerned, and there is no need for anything formal of this kind. If the Minister does say that, I shall not press the amendment.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  There is no need for anything of this kind.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 23:

Before section 8 to insert the folowing new section:—

“A document or proceeding requiring authentication by a body to which a corporate status order relates may be signed by a director, manager, secretary, member of the committee of management or other controlling authority of such body and need not be under its common seal.”

This deals with the question of the proof of documents. The Secretaries Act cannot possibly deal with this because the documents I envisage here are not necessarily the official documents of the body corporate but merely documents issued by the body corporate. The law, as I take it from a very popular—very popular in the sense of not being very deep—book is Cockle's Cases and Statutes on Evidence which provides at page 317 for secondary evidence. We do not want these bodies bothered by having to get originals. It states:

Copies signed and certified as correct by officials having custody of the originals. They are allowed as evidence by various statutes, and are used chiefly to prove entry in registers, proceedings of corporations and companies, by-laws and the like.

An amendment of this kind is necessary to make it convenient for companies [802] to produce documents without too much difficulty.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not think this provision is required. There are other statutory instruments where this requirement is not indicated and I do not see why we should have it in this particular case.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Is the Minister entirely satisfied about that?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  Yes.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I am unable at this moment to cite the reference to the Companies Act but I think the Minister will find the Companies Act will contain such a provision. The thing to remember about the Companies Act is that it represents a great deal of experience. This is something not to be overlooked. I would like Senator Miss Mary Bourke to direct her attention to this. When in court one has to prove things. I am not impressed by the argument that things are not in other Acts which ought to be in them. Section 42 reads:

A document or proceeding requiring authentication by a company may be signed by a director, secretary or other authorised officer of the company, and need not be under its common seal.

This seems to suggest it had been, prior to the enactment of that section, necessary to have a document proven as the company's document by having it sealed. This amendment would facilitate the proof of the document by permitting it to be cited without its being sealed. The courts are cluttered up with witnesses which is not a comfort to anyone trying to produce proof in any proceedings. This amendment would aid an international body as well as any persons who might have civil disputes with that body.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I do not think the activities of such a body are the kind which would be covered by the amendment.

Miss Bourke:  I agree with Senator FitzGerald's point that this is standard procedure for proof in court. Even [803] a fairly substantial number of bodies set up in this country would not use their seal for this type of document. One would want authentication. This could give rise to difficulties. It would be an anomaly to continue an out-dated procedure here. It is a simple matter to get it into line now.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I have been advised that it is not necessary for this kind of body which is going to be incorporated.

Miss Bourke:  It envisages that international companies may be involved in litigation here. The Minister is not prepared to provide this simple facility for proof?

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I will look into it.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  If something of this sort is not done the only method of identification would be by the seal. The Minister is taking power to stipulate what type of authentication will be required in relation to the actual seal of the documents. I do not think it is too much to require that documents would be authenticated in such a way that they would be acceptable as evidence.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 24:

Before section 8 to insert the following new section:—

“In the case of any body to which a corporate status order relates which becomes insolvent the provisions of sections 283 to 299 inclusive of the Companies Act, 1963, shall apply as if a body to which a corporate status order relates were substituted for a company where that word appears in such sections.”

I hesitate to propose this amendment because it brings up the Companies Act. I am open to be convinced by the Minister on this. This kind of body may not ever act so as to require for other persons the protections which are given. The sections relate to what one does when one finds a company has become insolvent. Special provisions [804] apply. There are bankruptcy rules and so on. It would be a fair guide to what the Minister ought to be doing when he is operating the order. Section 285 provides for preferential payments for all sorts of people. It might be that some people would question the Minister's right to make a preferential payment which he would wish to make to particular categories of persons because of the absence of any section of this kind. It also upsets any actions which have been taken by a body within six months of becoming insolvent and brings back to the body sums which have been paid out in preference of creditors to other people.

Section 288 provides that a floating charge shall be invalid in certain circumstances. This amendment is based on my not sharing the Minister's faith in mankind that everything always will be right for everybody. The Minister is envisaging a situation in which, in the interests of the country, it might be necessary that the body corporate order should be revoked. The Minister is envisaging circumstances in which he would find guilt and where there would not be innocence. The Minister would be aided by having these amendments. If the Minister is advised that he has this power, then he may well consider incorporating in extenso some of the provisions to which I have referred in the section which I have drafted and which is before the House.

Miss Bourke:  I would like to support this amendment. This could be incorporated into the power of the Minister under section 7. I am not happy that this is a well worked-out scheme for winding up. We are dealing with what we hope will not happen— a national organisation which has defaulted. We are dealing with Irish creditors and we must try to visualise what would be the expectations of these Irish creditors. Their expectations would be based on the type of treatment they would get under these sections of the Companies Act. The Minister would be well advised to adopt this procedure in toto or to base his whole scheme for the treatment of creditors on what is in the Companies Act. The Minister might consider this [805] amendment in the light of his powers under section 7.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  The Minister, if he used his powers properly, would adopt the principles implied in the sections in the Companies Act referred to in this amendment. I will look into the matter between now and the Report Stage to see if there are circumstances and to see if it is necessary to add some further provisions to section 7.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I thank the Minister.

Amendment, by leave, withdrawn.

Section 8 agreed to.

Amendment No. 25 not moved.

Section 9 agreed to.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 26:

Before section 10 to insert the following new section:—

The Minister shall cause a general annual report of matters within this Act to be prepared and laid before both Houses of the Oireachtas.

Again, it seems to me desirable that the Houses of Parliament be informed by annual report, as they are in regard to many other matters and under many other Acts, of the activities under this Bill. We all know that of the vast amount of literature that we receive a great deal goes into the waste paper basket and I hesitate to advocate adding to the flow of literature to the Oireachtas. However, in principle, we ought to have this information for those persons who will be interested in what the Minister has been doing. Of course, Iris Oifigiúil will contain information but, then, that is not the most popular of magazines.

Members of Parliament might be interested in knowing what the Minister has been doing under the Bill [806] during the year and it is only right that they should be given this information. I do not think there is anything unusual in the amendment. What is there is incorporated in many other Acts. I am anxious not to add unnecessary burdens to the bureaucracy. The Minister may say that every case of every body requiring corporate status will be brought before us and that we will be told all about it in detail but it would be nice to have it summarised so that we could survey what the Minister has been doing from year to year; also, so that we would be able to compare reports from one year to another in order to see whether the exercise has been successful. I would hope that it would be an increasing success but it seems to me to be desirable machinery to have this obligation imposed on the Minister.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I would not mind accepting the Senator's amendment in a slightly different form.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 27:

Before section 10 to insert the following new section:—

(1) The Minister may specify fees (calculated by reference to expenses incurred) to be paid in respect of the registration

(a) of bodies to which corporate status order relates,

(b) of amendments of the constitution of any such body,

(c) of alterations of the address of the office to be kept in accordance with section 4,

(d) of alternations in the directors, manager, secretary, member of the committee of management, or other controlling authority of any such body.

(e) of alterations in the names or addresses of the persons authorised to accept service on behalf of such body.

(2) All fees paid in pursuance of this Act shall be paid into or disposed [807] of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

This amendment demonstrates the mean approach I have to life. It would appear to me to be desirable that we should get some return from these international bodies if we are to provide them with a service. After all, if one considers the bodies that would be involved, it is not too much to ask that they remunerate the taxpayers to some extent. Under Article 4 (c) a body with an annual income subscription of £500,000 would pay £20; if the income were more than £500,000 but less than £1,000,000, they would pay £40; if the income were more than £1,000,000 but less than £10,000,000, the subscription would be £80 and for £10,000,000 it is £100. Therefore, it will be seen that we are talking about rich bodies with very substantial subscription income.

While I agree with the principle of this Bill—I approve now of the idea of attempting to attract these bodies here — I think the cost of the operation should be borne the bodies to be established under by the Bill. Our people are burdened by the cost of the various services being rendered by the Government at their behest.

I put down this amendment so as to direct the Minister's attention to this aspect of the matter. The language I have used need not necessarily be adhered to.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  We do not intend to charge fees. Therefore, I cannot accept the amendment.

Amendment, by leave, withdrawn.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  I move amendment No. 28:

Before section 10 to insert the following new section:—

Where a body to which a body corporate status order relates is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that [808] there is reason to believe that the body will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.

This is merely to repeat in different language the provisions which are not considered to be unreasonable in regard to big companies having limited liabilities. The bodies corporate to be established under this Bill will have limited liabilities and the Minister is contemplating that there may be a situation in which such a body, as plaintiff, would give security for costs. A body might initiate proceedings for some reason or other but they might not have the money available here to cover costs. I am merely repeating section 390 of the Companies Act for the substitution that I have mentioned already.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I have been advised that it would be reasonable to argue that the general application of the law should be adequate to deal with the sort of situation the Senator is trying to cover by this amendment.

Mr. O'Higgins: Information on Michael Joseph O'Higgins  Zoom on Michael Joseph O'Higgins  Would the Minister look at it from this point of view: in relation to these bodies that will be set up here under the Bill, and if a particular set of circumstances should arise as envisaged by Senator FitzGerald where a body are taking civil proceedings in the courts against either an individual or another body, as I understand the position, there would be no precedent by which the courts could deal with an application for security for costs. There are plenty of precedents for the courts to deal with cases where, for example, the plaintiff is resident abroad or registered abroad or under the Companies Act but here we will be dealing with an entirely new set of circumstances and an entirely new type of body in so far as the courts and their jurisdiction are concerned.

We will have a body that will be very much on a par with a chartered body established here except that they themselves provide their own charter. I express doubt, in the absence of precedent, that the courts will have any kind of guideline by which they could [809] deal with an application for security for costs.

Miss Bourke:  I would like to support the two previous speakers in what they have said. The particular type of international body that would be set up under this Bill combines nearly the two basic reasons for requiring security for costs by the plaintiff under the Companies Act. A body bringing legal proceedings might not be a good mark. Therefore, I think this amendment could be accepted. It is an amendment which we could very properly include in the Bill and it is again an application of Irish law in very appropriate circumstances to those international organisations and not an extra legal barrier to their setting up in this country.

Mr. Alexis FitzGerald: Information on Alexis Fitzgerald  Zoom on Alexis Fitzgerald  Might I add my voice to that by saying if one of those international health bodies came to instruct either Senator O'Higgins or myself and the Minister was not disposed to revoke section 7 perhaps he himself might be the defendant in the proceedings where the whole constitutionality of his powers to revoke the authority might be in question by a body which he knew had not twopence. Would he not like in those circumstances to have the protection of being able to stop those proceedings by being able to argue in court that there was credible testimony that this body did not any longer have the funds that it once had? He could well be the defendant in those proceedings himself.

Mr. Childers: Information on Erskine Hamilton Childers  Zoom on Erskine Hamilton Childers  I am not accepting this amendment.

Amendment, by leave, withdrawn.

Section 10 agreed to.

Title agreed to.

[810] Bill reported with amendments.

Report Stage ordered for Wednesday, 22nd July, 1970.

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  Could I ask the Leader of the House which motion is being taken tomorrow?

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  We are not meeting tomorrow?

Mr. McDonald: Information on Charles B. McDonald  Zoom on Charles B. McDonald  Which one will be taken next week?

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  We may not meet next week.

Professor Quinlan: Information on Patrick Michael Quinlan  Zoom on Patrick Michael Quinlan  Might I suggest that we give precedence to Motion No. 9?

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  The Senator may suggest it.

Professor Quinlan: Information on Patrick Michael Quinlan  Zoom on Patrick Michael Quinlan  We should have a discussion on the Common Market which is surely something on which the Seanad should be in a position to make a particularly useful contribution.

Tomás Ó Maoláin: Information on Thomas Lincoln Mullins  Zoom on Thomas Lincoln Mullins  The Senator will get his name in the paper.

Professor Quinlan: Information on Patrick Michael Quinlan  Zoom on Patrick Michael Quinlan  I would feel happy if we gave precedence to this.

Miss Bourke:  I should like to support this.

An Leas-Chathaoirleach:  Before this discussion goes much further I might point out that the House earlier today ordered that certain business be taken today. All that business has now been taken. The only thing open to the House to do is to adjourn. Accordingly, the House should now adjourn.

The Seanad adjourned at 7.45 p.m. sine die.


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