Bula Limited (Acquisition of Shares) Bill, 1977: Committee Stage (Resumed).

SECTION 2.

Mr. O'Malley

I move amendment No. 5:

In page 2, after line 28, to add a subsection as follows:

"(4) The sum referred to in subsection (1) of this section shall not be paid until a motion to that effect shall have been passed by Dáil Éireann, which said motion shall not be moved until after the Agreement shall have been laid on the table of each House of the Oireachtas."

The agreement, of course, is defined in section 1 as being the agreement of 12th December, 1975, which is the written version of an agreement which was apparently verbally come to earlier by the Minister with the shareholders in Bula Ltd. who are to be paid in respect of this deal.

The House last night declined to change the consideration figure of £9,540,000 which is to be paid to the vendors, not, I want to emphasise again, to be invested in the company but to be paid personally to the vendors without any reference to the company. The Bill contains six references, in a very short space, a little over a page, to this agreement. This section, in fact, contains two. In subsection (1) it says:

The Minister may acquire shares of the Company in accordance with the Agreement...

This is not simply the buying of shares and that is the end of it. The Minister may only buy the shares in accordance with the terms of the agreement. We in this House do not know—and I cannot repeat this often enough—what the terms of the agreement are. We do not know what way he is buying them in accordance with the agreement. We have established a couple of points. We have established, for example, the very important point—the Minister did not tell us; I told the House and the Minister afterwards confirmed it was right—that the shares do not rank pari passú. It is highly damaging to the position of the State and of the taxpayers that this is what is meant by the phrase “in accordance with the Agreement”. We are entitled to ask how many more such provisions are in the agreement that render unattractive from the point of view of the tax-payers, the purchase of shares from private shareholders. The Minister, by reason of his incredible and unsustainable secrecy, is responsible for the public speculating in this way. This secrecy is not for the purpose of any commercial consideration but in order to avoid the disclosure of matters that would be damaging from the Minister's point of view and to avoid the revelation that this deal which, on the face of it, is a bad one, is even worse than it appears.

This amendment seeks to have the money held up, or not paid, notwithstanding the passage of the Bill, until a motion to release it is passed by the House. What we are seeking is not an uncommon provision. It is merely requesting the passing of a motion by Dáil Éireann for the purpose of allowing moneys to be paid.

Apart from seeking to provide for a motion of this kind, another purpose of the amendment is to give the Minister an opportunity to mend his hand in this regard in that, if, as it appears, he is not prepared to produce the agreement now—I suggest that this is the right time to produce it—at least when the Bill is passed, if it ever becomes law, and there is some doubt in this regard, taking into account the provision of Article 13 of the Constitution, the agreement would be made available to the House. Consequently, at that stage and for the first time, the House will have an opportunity of assessing whether the payment should be made. The Minister suggested that in some way this company would be damaged commercially should the terms of the agreement be disclosed. In view of his stance on this issue, I should like to make a fair analogy and to ask the House to assume that Bula Ltd were a public body, rather than a private body, offering 192,000 shares to the public for subscription. In general terms, I wish to enumerate the sort of prospectus which, under the rules of the Stock Exchange, and the rules of our Stock Exchange are less strict in this regard than are those of many other Stock exchanges, the company would have to publish and make available to any member of the public who was interested or who, potentially, would take up shares in the company.

There are a number of headings which normally would appear in a prospectus of that kind. I shall not go through what would be the equivalent of a full prospectus but shall concentrate on a few basic provisions. Normally, the first heading in a prospectus offering shares would be one which would read: offer for sale of shares. In this regard we would have to reword that in respect of the case we are talking of to make it read something on the lines of "we demand that you buy 192,000 shares, being part of 1,000,000 shares issued to the vendors and issued for a consideration other than cash."

The second heading in a prospectus of this kind—I contend that the analogy is valid since the public are being asked to take up these shares—would be a statement by the directors of the company of their past trading profits and the dividends paid. Normally, this would cover the last five years of the company's trading history and would have to be certified not only by their own auditors but also by independent accountants appointed by the bankers who were underwriting or supervising the offer. Unless that could be done the rules of the Stock Exchange, in this or in any other civilised country, would not allow shares to be offered because the view would be taken that this was one of the issues on which prospective purchasers of shares would need to have information.

Obviously, in the case in point there is no history of profit and there are no underwriters except, in effect, the taxpayers because the deal amounts to an issue of shares to each of 3.1 million people. There are no independent accountants reporting to the public on the accounts and there is no dividend history. Therefore, because these provisions, among others, have not been complied with, there could be no question, under the terms of the Stock Exchange, of an issue of shares to the public.

The third heading that one would see normally in the prospectus of a company issuing shares to the public would be one on such lines as application of the proceeds of the issue or of the sale of shares. Normally, this would indicate the use which a company whose shares were being offered, proposed for the moneys subscribed. In the case we are talking of the company receive no money because all the moneys are going to the shareholders. Consequently, even if they were in a position to do so, and I doubt that they are, they could not inform the public as to the use to which the money would be put. They would be private shareholders who would be getting the money but even if this were not so the paucity of information we have in regard to the company's capitalisation plans or their production plans, all caused by the doubtful situation in relation to planning permission, would render it impossible for the company to comply with that provision.

The fourth heading would be a director's statement as to the essential capital requirements of the company, both in the short term and in the long term. This is the statement generally which certifies that the company have adequate resources for their foreseeable needs. It is a requirement of the Stock Exchange that the directors would certify that statement. In this case the directors say they will need about £25 million, perhaps more, but they do not say how, or on what terms they will raise the money. Neither do they tell us what are to be the duration periods of the loans or on what security the capital is to be raised.

The ordinary company trying to raise money from the public would immediately be knocked if they could not fulfil that condition or if the directors were not in a position to fulfil the condition as they are not in this case.

The Minister has been asked time and time again for this information and has refused to give it. The Minister has refused because he cannot say and does not want to speculate in that regard.

The fifth heading would be the details of the directors and their beneficial shareholders in a normal prospectus. This would normally indicate the experience of the directors in the relevant business, in this case the mining business. It would indicate the duration of that experience and their shareholding in the company. In this case the position would be that the prospectus would have to say that the directors have no previous experience in the mining business. So far as I know, that is the case and it has not been suggested by the Minister that they have previous experience. I must emphasise that I am not trying to criticise Bula or its directors but in considering the company I must relate the facts. If these are painful or hurtful to the company, I am sorry. We have no information as to the beneficial interest in the company of the directors. On the face of it, this may appear to be surprising, but it is not, because apart from the Wright shareholding which we know of, all the other shares, apart from the Minister's proposed shares, are held by a private unlimited company called Bula Holdings. The shareholders of Bula Holdings are not disclosed in the company's office file in relation to Bula Holdings. I am not being critical of that fact. There is no obligation under the Companies Act, 1963 to disclose the membership of a private unlimited company. We are left in the position that 80 per cent of the holdings of Bula Ltd. as things stand now are in the name of a private unlimited company and we do not have the beneficial ownership of the shares in that. Because of that, if this were a normal public issue subject to the normal rules, it would fall down.

The next heading that one would expect to see in a prospectus for a normal public company would be on the lines of a profit and dividend forecast of the directors. Normally, this is regarded as a test of the ability and credibility of the directors and the management of the company. We have asked time and again for this in respect of this company and in respect of what the Minister proposes to do. We have got no profit forecast, and no dividend forecast, either the amount or the likely time when it might be paid. On the evidence it would appear that at least eight years will have to elapse from the date of the start-up of the company before any dividend on earnings that would be attributable to, or available for distribution to the ordinary shareholders would arise. Even on the most optimistic basis, start-up production could not be earlier than about two years from now. One must bear in mind that the planning application is in every sense back at square one. It will take a very long time from after it has been relodged to process this difficult planning application. Up to about two weeks ago the planning application had not been relodged. Inevitably there will be an appeal and almost certainly there will be an oral hearing on this appeal. If the ordinary public company offering shares to the public were not able to give a profit and dividend forecast that would be the end of it. Again, the Minister's proposed purchase falls down on that aspect.

The seventh heading one would normally see in a prospectus of a company asking the public to subscribe would be roughly on the lines of details of assets and liabilities of the company. These are normally based on accounts prepared by the company's auditors and examined and confirmed by independent accountants appointed for that purpose by the bankers who are handling the issue and who normally underwrite it as well. It is normally presented in the form of a certified balance sheet which is usually endorsed by the directors and endorsed independently. The balance sheet would list the issued capital, the reserves, the fixed assets and the liabilities. Where these assets are in property, details are normally given of the tenure of the property and of the extent of the holdings, with a directors' certification for which the directors are personally liable. As well as that, an auditor's certification would be given and an independent valuation of the property made by some well-known firm of valuers. The bank balances, the value of work in progress, and the value of stocks would be given. In this case we know some of these details but I suggest to the House that what little we know about them are known as a result of myself and my colleagues giving the details to the House so far as we could ascertain them. It was not from anything the Minister told us. For example, we gave details of the charges on the company's assets, we introduced the fact that the company had received no money in cash or cash subscriptions for the million shares they had issued. We have been told that there were valuations for the company's assets ranging from just marginally under £1 million to £106 million. The actual price being demanded for the shares that the Minister is buying was fixed by a panel of arbitrators acting in a manner described by the Minister as horse trading.

Mr. Keating

That is not so.

Mr. O'Malley

This is rather difficult since the Minister in two of his Second Stage speeches referred to horse trading as being the method used here, on I would safely guess, six occasions.

Mr. Halligan

Not by the arbitrators, which is the point the Deputy is making.

Mr. Keating

I am only correcting the Deputy for the record.

Mr. O'Malley

I am glad that the Minister corrects me for the record sometimes because that underlines the number of times he makes no attempt to deny what I say. We are entitled to ask ourselves whether we, the Minister and this House, are engaged in a serious commercial assessment or whether we are having some sort of day out at a horse fair when we engage in this operation?

I have given seven headings of absolute importance under which disclosure is mandatory if an offer so serious is to be made to the public. It is not the law of the land directly which makes disclosure of these matters mandatory. It is the rules of the Stock Exchange. Those rules are there for the protection of the public. Here we have a situation where the public are being committed, in effect, to subscribing for shares at a substantial price and where all the rules that the Stock Exchange feel are necessary safeguards are not complied with. Not one of those seven headings—and they would be seven of the basic, fundamental headings in a prospectus on the offer of shares for sale to the public— has been complied with here. It would be bad enough if one was not complied with but all seven are not complied with, and they are only the basic ones. Anybody who has seen a prospectus knows that it is a big document which goes on and on for pages in very small writing and covers an enormous amount of ground in order that the public might be safeguarded. I could go on and give probably another seven or 17 specific deficiencies which exist in this case.

We do not even know in this case when the business is going to start and what the company is going to do about, for example, working capital. The example I have cited should be sufficient for the Minister and the House as a whole to realise the shortcomings in investment terms of his approach. I doubt if the betting procedures engaged in by even the most unsophisticated newspaper in this or any other country would permit that newspaper to take an advertisement soliciting investment from the public when the deficiencies I have listed here in relation to this matter exist. It is undisputed and is common case that this information is not available, and we are entitled to ask how can the Minister persist in this approach. How can he be supported continuously by a majority of the Members of this House when all these patent deficiencies exist? Do the Members of the House care? Is the only function of this House now to rubber-stamp whatever the Minister of the day happens to bring in?

I have shown in detail that the minimum measure of disclosure required in any appeal for or solicitation of investment funds by companies who are in competition with other companies has not been complied with here. For those companies—companies who offer shares to the public from time to time—this information is publicly quoted on the stock exchange.

Commercial privacy is just as necessary as it is in the case of Bula. Nonetheless they give all this information. This is the private information we are asking from the Minister and we are not getting it. Some of this information at least—not by any means all of it—is contained in this agreement we are asking for and the Minister will not give it on grounds of commercial secrecy. How is it therefore that any and every public company in this country give it in a prospectus every time they invite the public to subscribe for shares? How is it that they are able to give that information without damaging themselves commercially? Even if they are not inviting the public at a particular time to subscribe they have to file in the Companies Office in Dublin Castle a very detailed annual return, much more detailed than in the case, for example, of a private company like Bula Ltd. They are able to do this without damaging their commercial viability.

If large public companies who are in direct competition with others can do it why cannot a private company such as this who are hardly in a competitive situation, because the sale of lead and zinc is not really on the open market? A cartel situation exists in relation to it and the only alternative frequently to the prices fixed by the cartel would be for the company to try to sell their concentrates either to a new Irish smelter, if and when there is one, or alternatively to some Eastern European smelter which is not part of the cartel.

This is not an instance of commercial viability or commercial interest being protected by secrecy. This is a case of accountability to the public which is not being observed. It is only by the release to the public, and in particular to this House here and now, of the same level of information as is normal in relation to any public trading company that the Minister can fulfil his responsibility, not just to the Oireachtas but to the public and, I might add, to the courts, who may well have to make decisions about the validity or otherwise of this proposed legislation. I hope that it will come to that, whether as the result of a reference by the President or of an action by some individual citizen, because it is a matter the courts should concern themselves about and it will give the courts a great deal to think about and to chew upon.

I asked a barrister whom I know if he would go through, on my behalf, the Acts of the Oireachtas since the 1920s onwards to try to find a precedent for a Bill of this kind. He has failed to find any. We have been asking the Minister here, several of us for several weeks, for a precedent and he has never come up with one, so it is fair enough to assume that there is not one. The man whom I asked to go through as many Acts as he could to find if there was a precedent told me he could not find a precedent, but he did come up with two Acts fairly similar to this in that they both refer to and purport to ratify agreements made by the Minister of the day with companies or organisations for the takeover either partly or wholly of them. He came up with two such Acts. By saying he found two, I am not suggesting there are only two, and that exhausts the list. It does not by any means. There were two which seemed to be very apposite to this.

One is the Foyle Fisheries Act, 1952, where the State made an arrangement with the Minister for Agriculture and Fisheries in Northern Ireland and the Foyle Fisheries Commission to take over the old Foyle fisheries and to administer them jointly as between the North and South with a new type of commission which would have responsibility jointly to the Six County authorities and to the Government here in Dublin. That agreement is scheduled in the Act. Another one is the Great Northern Railway Act of 1953 where the State, acting through CIE, I think. agreed to take over the old Great Northern Railway. Needless to say they made an agreement. You would have to reduce a complicated transaction like that to writing and it was reduced to writing. That agreement is referred to constantly throughout the Act and the agreement is scheduled, he tells me, in the Act. He believes there are many more.

I know that in very many cases where the agreement was lengthy—and it may well be lengthy for all I know in this case—it was often the practice not to schedule the agreement in the actual Bill for the sake of space, to save printing costs and so on. It has been the practice to lay the agreement on the Table of the House so that, well in advance, Deputies would have the opportunity to examine it fully. I was looking at the Order Paper last week and there are three motions down to ratify three agreements which the State entered into. Each of the motions ends up with the words "which agreement has been laid on the Table of each House of the Oireachtas" or "has been laid on the Table of the Dáil", as the case may be. They relate to agreements about coffee and cocoa and tin as far as I remember. They are still on the Order Paper. It was not contemplated by whatever Minister is responsible for cocoa and coffee and tin—I presume it is the Minister for Foreign Affairs—that the House would be asked to ratify those agreements and bind the State to them, or by them, without letting the House know what those agreements were and what was in them.

In this Bill we are asked to ratify something which is a great deal more important for everyone in the country than an international agreement about cocoa and we are not allowed to see the agreement concerned. The reason given is that it would be commercially damaging. I have shown that the type of things which would be in this agreement would be in a prospectus issued by a public company. That company would be in trading competition with many other companies and would be much more likely to suffer than a company engaged in the rather specialised business of mining which simply has to make an agreement with a smelter to take its concentrates. Those companies are not damaged commercially by giving the kind of information we have been seeking. How can Bula Ltd. be damaged? Are we not entitled to be suspicious when the agreement and the information are not given to us? Can the Minister complain if suspicion is widely felt throughout the country in these circumstances?

Mr. Halligan

As to what?

Mr. O'Malley

As to what is behind all this. Why the secrecy? Why not produce the agreement? Today we have produced one very important fact——

Mr. Halligan

That is not very specific.

Mr. O'Malley

——one matter of extreme importance in the agreement which was not published, that is, the fact that the shares do not enjoy equal voting rights and that the State will be in a permanent minority situation, always being outvoted. How many more such things are there and is it any wonder in this atmosphere of unjustifiable secrecy—and I have demonstrated that it is unjustifiable—the public will continue to be suspicious about the whole thing?

Mr. Halligan

Not on one side.

Acting Chairman (Mrs. Hogan-O'Higgins)

The Deputy should not interrupt.

Attorney General (Mr. Costello)

I rise to deal briefly with one matter which was adverted to by Deputy O'Malley in passing today but which he raised last week, that is, the interaction between the provisions of the Constitution relating to the promulgating of laws, the present Bill and the agreement referred to in section 1.

The Bill which the House is considering provides for the acquisition of shares by the Minister for Industry and Commerce in the company referred to in section 1 and authorises him to expend sums up to a specified maximum amount in such acquisition. It makes provision for matters connected with and consequential upon such acquisition and expenditure. The Bill, when enacted, will not in any way make the agreement referred to in section 1 law. It is not correct to suggest the Bill proposes to make the agreement the law of the land, or that the Bill ratifies the agreement, or that the President is required to promulgate the agreement when exercising his functions under Articles 13 and 25 of the Constitution.

It is by no means unusual for Ministers to enter into contractual arrangements with outside parties. When they do so, the legal rights and obligations of the parties arise from the agreements and not from any statutory source. Exactly the same situation will exist in relation to the agreement referred to in the section we are now considering. This Bill, when enacted, will confer authorisation to carry out the terms of the agreement, but it gives no statutory force to them. Any legal rights and obligations of the parties will continue to arise from the agreement and not from the statute.

Accordingly, by passing this Bill, the two Houses of the Oireachtas will not require the President to promulgate the agreement. He will be required to promulgate a law authorising the Minister to do certain things specified in it. This is a normal function, of course, and a proper one for him to perform.

Mr. O'Malley

Would the Attorney General not agree that the Minister is authorised by this Bill to do certain things and I quote from section 2 (1) of the Bill, "in accordance with the agreement"? Assuming the Bill is passed, and assuming it is signed by the President, the Minister will be empowered by the Oireachtas to do X in accordance with the agreement. If it were to happen that, after the Bill is passed and enacted into law on the signature of the President, a copy of the agreement, which we cannot now find, were to come into the hands of a private citizen, and if that citizen were to read the terms of the agreement and say: "My goodness, the Minister did X all right but he did not do it ‘in accordance with the agreement'", could that citizen not then go to the courts for a declaration that the Minister acted ultra vires in doing X?

Could that citizen not produce to the court the agreement and say: "Under section 2 (1) of this Bill the Minister was entitled to do X but only ‘in accordance with the terms of the Agreement' and here is the agreement and clause 7 (g)"—or some such clause—"is not complied with. Therefore the Minister did not do X ‘in accordance with the terms of the agreement'. Therefore what he did was unlawful." Would that not be the situation, that the terms of the agreement are what determine the validity or legality of the Minister's action? In the circumstances, would the court not have to look for the agreement? On the other hand—naturally, I would like to have time to prepare a reply to the Attorney General—would there not also be the provision that a citizen could go to the court after the Minister did X that he is allowed to do under the terms of the Bill and say: "The Minister is allowed to do that but only ‘in accordance with the terms of the Agreement'. I have not seen the terms of the agreement; the court have not seen it. How does the court know or I know or any citizen know that he has done it in accordance with the terms of the agreement? How therefore do you or I know that he has done it in accordance with the law of the land?" Thereupon he would request the court to request the Minister to produce the agreement so that it could be scrutinised by the court and the citizen concerned to see if the action of the Minister was "in accordance with the terms of the Agreement". If it was not, the court would have no option but to say that the Minister acted ultra vires, beyond his powers, that he did not act lawfully in this matter because he had not complied with the terms of the section which in section 2 (1) are “in accordance with the terms of the Agreement”.

There are many other references— in subsection (3) it says "any right or power referred to in the Agreement" being exercisable by the Minister: in section 3 (2) there is "right or power referred to in subsection (1) of this section or referred to in the Agreement as being vested in the Minister..." Does the Attorney General see in section 3 (2) the two kinds of power that are conferred on the Minister and that may be exercised by him? There is first, the right or power referred to in subsection (1) of this section and secondly, there is a right or power referred to in the Agreement and this subsection seems to give equal validity, equal legality to each type of right or power. The right or power contained in the section or conferred by the section is no greater than the right or power "referred to in the Agreement"— and I am quoting the words "referred to in the Agreement". That is section 3 alone.

Section 4 (3) provides that the Minister for Finance may after consultation with the Minister and subject to the Agreement sell, transfer or otherwise dispose of any shares of the company held by him under this Act. If the Minister for Finance does purport to sell, transfer or otherwise dispose of any shares held by him in the company under the Act, a citizen who disapproves of the sale and says, for example, that the Minister should have held on to the shares or not sold them so cheaply, may say to a court that the Minister did not comply with the phrase or words in section 4 (3), "subject to the Agreement". The court would say: "We have not seen the agreement. The agreement is part of the law of the land because the Minister has to act in accordance with it and it is referred to continuously in an Act of the Oireachtas but we have not seen it. Therefore, until we see it we cannot know whether the Minister complied with it". The court would thereupon make an order, as I suggest they are entitled to do, calling for production of the Agreement to the court for consideration of its terms by the court and by the parties.

Section 5 says that all moneys required from time to time for the acquisition under this Act and pursuant to the Agreement, of shares of the company shall be advanced out of the Central Fund. It is not just the acquisition under this Act; if the proposition were as the Attorney General says, it would stop there; it would be the acquisition under this Act. But it does not stop there. It says "acquisition under this Act and pursuant to the Agreement". There are two conditions with which the Minister must comply. First, he must get the power given him by the passage of this Bill into an Act of the Oireachtas. Secondly, he must also act pursuant to the Agreement. I respectfully suggest to the Attorney General that failure to fulfil the terms of the section, on his own argument here, failure to do so, to buy the shares or get the money from the Central Fund pursuant to the Agreement means that he would be acting unlawfully if he did not do it pursuant to the Agreement. The words are here and the words "pursuant to the Agreement" are part of the law of the land. He cannot be seen to act either in accordance or not in accordance with that law unless the Agreement is actually produced.

If, as seems obvious, the agreement will have to be produced to a court after this measure is enacted, why not produce it now so that the Oireachtas will know where it is going? We may be legislating absolute lunacy for all we know. Why not let us know in advance so that we shall not legislate in the dark? These continuous references such as "subject to the Agreement", "pursuant to the Agreement" and so on make it clear that in practice the agreement becomes the law of the land and the Minister is bound by the agreement. It is not enough for him to spend money and buy shares; he must do it subject to the agreement, in accordance with the agreement, and pursuant to the agreement. How can a court say whether he did or did not act subject to the agreement, in accordance with it, having regard to it, and so on, unless it sees the agreement? If the court has to send for the agreement and have it produced in order to adjudicate on the validity or legality of the Minister's exercise of these powers, any citizen is entitled to see it because any citizen is entitled to go to the High Court and ask the court to make an order in the particular circumstances of this rather unusual legislation.

Therefore, I repeat what I said last week that the President will have to consider deeply the implications of signing or purporting to sign into law a Bill of the Oireachtas which on the face of it he himself will be unable to promulgate as it is his duty to do and which, on the face of it, binds citizens and in particular binds the Minister in a way that the citizens at large cannot be aware of or cannot ascertain.

Apart from the taxing provision of which I spoke last week—the fact that 3.1 million people have to provide £9.54 million—there is also the aspect that the Minister is empowered to do certain things in accordance with the agreement, subject to the agreement or referred to in the agreement or pursuant to the Agreement. Any citizen is entitled to examine the actions of a Minister to see if he acts in accordance with the law. How can a citizen do this when he does not know what the provisions of the agreement are. He does not know if the Minister acted "in accordance with the terms of the Agreement" because he has not the agreement. Is he not entitled to go to the High Court and ask for it so that the Minister's actions may, in a democracy, be adjudicated on for the public to whom he is accountable in the long run and in particular so that his actions may be adjudicated on by the people to whom he is accountable in the short term, the elected representatives of the people in this House?

Mr. Costello

The matter on which we differ relates to the suggestion made by the Deputy that in some way the President would be acting wrongly in promulgating the law. The point I wished to make—one which, with respect, I do not think the Deputy has answered—is that this legislation is not ratifying the agreements; it is not requiring the President to promulgate the agreement; it will merely authorise the Minister to do certain things and will have certain consequential provisions in it relating to the authorisation given in it.

I rose merely to point out to the House that the legislation we are being asked to enact was not something which would place the President in any particular difficulties. He will be able to do what the Constitution clearly allows him to do, namely, to sign and promulgate this Bill if passed by both Houses.

In relation to the other area the Deputy's main remarks adverted to, I do not wish to speculate on the kind of actions that may be taken by the private citizen if and when this Bill becomes law. I have considerable faith in the common sense of our judges. I do not think the sort of outcome the Deputy envisages is likely to occur.

Mr. O'Malley

We had better leave the President and the courts to make up their own minds.

Mr. Costello

With confidence.

Acting Chairman

Does the Deputy wish to withdraw the amendment?

Mr. O'Malley

Not before giving the Minister an opportunity of denying any one or more of the points I made. If he wished to avail of this opportunity it would be quite unfair and improper of me to withdraw the amendment before he had done so.

From the long silence we can assume that the Minister does not wish to demur on any of the points I have made. We are now having legislation by silence. Sixty-five of 67 Deputies will walk through the lobby and say Yes or No as the case may be, and that will be it. We have a silent Minister. This is a situation without precedent, where he is clearly unable to deny the truth of anything I have said. He lets it all go by default; but his contempt for public opinion and for this House is such that it does not matter a damn. It is boots going through the lobbies that will count in the long run. The people will have an opportunity in the not too distant future to express their opinion of the Minister's opinion of the elected representatives of the people.

I set out at length why the non-provision of this information is untenable. The Minister for Industry and Commerce, Deputy Justin Keating, agrees with me, by his eloquent and prolonged silence, that there is no justification for his refusal to publish this agreement. If that is the way he wants it, let it be.

Amendment put.

The Committee divided: Tá, 57; Níl, 65.

Tá

Andrews, David.
Barrett, Sylvester.
Brady, Philip A.
Brennan, Joseph.
Breslin, Cormac.
Briscoe, Ben.
Brosnan, Seán.
Browne, Seán.
Brugha, Ruairí.
Burke, Raphael P.
Callanan, John.
Calleary, Seán.
Carter, Frank.
Colley, George.
Collins, Gerard.
Connolly, Gerard.
Crinion, Brendan.
Cronin, Jerry.
Daly, Brendan.
Davern, Noel.
de Valera, Vivion.
Dowling, Joe.
Fahey, Jackie.
Farrell, Joseph.
Faulkner, Pádraig.
Fitzgerald, Gene.
Fitzpatrick, Tom (Dublin Central).
French, Seán.
Gallagher, Denis.
Geoghegan-Quinn, Máire.
Gibbons, Hugh.
Gibbons, James.
Gogan, Richard P.
Haughey, Charles.
Healy, Augustine A.
Hussey, Thomas.
Kenneally, William.
Kitt, Michael P.
Lalor, Patrick J.
Leonard, James.
Loughnane, William.
Lynch, Celia.
McEllistrim, Thomas.
MacSharry, Ray.
Meaney, Tom.
Molloy, Robert.
Moore, Seán.
Murphy, Ciarán.
Noonan, Michael.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Desmond.
Timmons, Eugene.
Tunney, Jim.
Walsh, Seán.
Wilson, John P.
Wyse, Pearse.

Níl

Barry, Richard.
Begley, Michael.
Belton, Luke.
Belton, Paddy.
Bermingham, Joseph.
Bruton, John.
Burke, Joan T.
Burke, Liam.
Byrne, Hugh.
Clinton, Mark A.
Cluskey, Frank.
Collins, Edward.
Conlan, John F.
Coogan, Fintan.
Cooney, Patrick M.
Corish, Brendan.
Cosgrave, Liam.
Costello, Declan.
Coughlan, Stephen.
Creed, Donal.
Crotty, Kieran.
Desmond, Barry.
Desmond, Eileen.
Dockrell, Henry P.
Dockrell, Maurice.
Donegan, Patrick S.
Donnellan, John.
Dunne, Thomas.
Esmonde, John G.
Finn, Martin.
Fitzpatrick, Tom (Cavan)
Flanagan, Oliver J.
Gilhawley, Eugene.
Governey, Desmond.
Griffin, Brendan.
Halligan, Brendan.
Harte, Patrick D.
Hegarty, Patrick.
Hogan O'Higgins, Brigid.
Kavanagh, Liam.
Keating, Justin.
Kelly, John.
Kenny, Enda.
Kyne, Thomas A.
L'Estrange, Gerald.
Lynch, Gerard.
McDonald, Charles B.
McMahon, Larry.
Malone, Patrick.
Murphy, Michael P.
O'Brien, Fergus.
O'Connell John.
O'Donnell, Tom.
O'Leary, Michael.
Pattison, Séamus.
Reynolds, Patrick J.
Ryan, John J.
Ryan, Richie.
Spring, Dan.
Staunton, Myles.
Taylor, Frank.
Thornley, David.
Timmins, Godfrey.
Toal, Brendan.
White, James.

Tellers: Tá, Deputies Lalor and Browne; Níl, Deputies Kelly and B. Desmond.

Amendment declared lost.

Mr. O'Malley

I move amendment No. 6:

In page 2, after line 28, to add a further subsection as follows:

"(5) At the same time as the laying of the Agreement on the table of each House of the Oireachtas there shall be laid on the table of each such House all documents submitted to the Arbitrators appointed under the Agreement by each of the parties to the Agreement.".

I believe much the same arguments which applied to the last amendment apply to the principle in this amendment. There is, of course, a difference. The last one related to the moving of a motion for the payment of money in the House. It also related to the laying of the agreement on the Table of the House. This amendment seeks, as well as having the agreement laid on the Table of the House, to have the various other documents referred to continuously throughout the debate, when the Minister spoke, which is not today, laid on the Table of each House. It seems to me that my task in this matter must be a simple one.

There was no reply to what I had to say the last time. There was a very minor interjection by the Minister in the middle of my speech saying that he was always very keen to keep the record right and he wanted to correct some words I used which I attributed to him. The Minister corrected my attribution to him of the use of the words "horse trading". Since he was so keen to get the record right so far as the use of those words was concerned, one is perfectly entitled to draw the conclusion that because he said nothing else, even though we waited, perhaps, 30 seconds for him to reply and specifically invited him to do so, everything else I said was right.

Mr. Keating

The Deputy cannot so assume.

Mr. O'Malley

I am afraid that the public are entitled to assume that. If there is no denial of statements made the person not denying, whether he likes it or not, is being taken as unable or unwilling to deny.

Mr. Keating

Neither.

Mr. O'Malley

The Minister cannot have it both ways. I believe the procedure we are going through now is described in the Standing Orders of the House as debate. Would you, in your capacity as chairman of the Committee on Procedure and Privileges, bring for consideration before that committee at its next meeting the question of finding a more appropriate word for the word "debate" to describe the proceedings on this Committee Stage? It does not seem to me to be debate whatever else it is. It is a constant reiteration of the proof of the badness of this deal, the incompetence of the Minister in relation to it and in relation to the post he holds generally. The Minister's inability to defend himself and/or unwillingness to answer questions is in my approximately nine years in the House the most revealing performance by any Minister I have ever heard. I suppose everyone of us, who held the post of Minister at some time, was in a difficulty answering questions but at least we made a reasonable attempt if it was only for the sake of trying to defend our position or trying to extend courtesy to the House. Neither of those considerations appears to apply to this Minister who by his own actions and his own silence underlines his obvious incompetence and the mess he has made, in the opinion of a great many people in the country, of this whole affair.

The superior genius we were led to believe that existed in the Department of Industry and Commerce for the past four years has now been shown, in the course of this debate, in his true colours. For the sake of the country the sooner he departs from that office he holds the better. He has now demonstrated by his own actions—it gives me no great pleasure to say it— his patent unfitness for the office he holds.

I could go through all the arguments I went through on the last amendment. They all basically apply in principle to this amendment. I can add as many arguments again if that is necessary but I fail to see why I should cause my voice to deteriorate further. There is no point in making the arguments if they are accepted. The Minister has now accepted them. I am entitled to allow my colleagues, if they wish to contribute, to do so or to allow the Minister, who apparently at long last has been provoked into talking——

Mr. Keating

The Deputy's reasoning is wrong.

Mr. O'Malley

Is that right? It must be a great consolation to the Minister in those circumstances that in respect of whatever course the debate takes he will still get 60 or 65 people to put it through. I wish that instead of ten or 20 people, there were a few hundred or a few thousand people to watch this performance. I wish there were more than just a handful of people in the Press Gallery to report this because one gets reports written in some of the daily newspapers by people who are never present in the House during the debate. If more people were there they could see what is happening. They could report what they see. Unfortunately, when they are not here they cannot report what they see. If they were here during the past hour they would have found it interesting. They would have witnessed something of which I know of no precedent in the history of the debates in the House.

Mr. Keating

I will start by pointing out that we are on amendment No. 6 which relates to the discovery of documents. It would be hard to gather that from the tirade we have just heard. Every time Deputy O'Malley purports to quote me it is done with distortion, imprecision and not with the objective of conveying in an unbiased way what I said. It is done with the idea of putting a distorted gloss on what I say in an effort to validate some sort of lawyer's argument, not by the process of finding out what is true but by making an argument. I, now, not specifically about any recent statement of his or about the last amendment but in general, want to indicate to the House that if I do not repudiate him time after time it cannot be assumed that I agree with him. If I occasionally set the record right, it cannot be assumed that in other cases I do not simply ensure the continuing distortion and put up with it because in the end we are judged by the people at large and we are judged by those reading all the Parliamentary record in an unbiased way. That sort of trick impresses nobody.

We have been repeating ourselves. We were told last night by the Deputy that this Bill could take one, two or three months—he was not sure. Of course, he has been repeating himself. You asked the House to take amendments Nos. 1 and 5 together because they are very like each other. We had a lengthy argument on amendment No. 1 and I decline to go around the horsepond again on something practically identical. Ordinary procedure of the House would have indicated that they be taken together. It was sheer obstruction and a desire to waste time on the part of Deputy O'Malley——

Mr. O'Malley

This is a matter on which the Chair makes a decision and the Minister's remarks are critical of the Chair and the Chair only.

Mr. Keating

It was deliberate obstruction to insist on what was a formal right but which he might well have waived in the interests of respect for Parliament if we had taken Nos. 1 and 5 together.

Dáil Éireann debate - Wednesday, 16 Feb 1977

Bula Limited (Acquisition of Shares) Bill, 1977: Committee Stage (Resumed).

Acting Chairman

Tá

Níl

Tá

Níl

Dáil Éireann debate -
Wednesday, 16 Feb 1977