Dáil Éireann debate -
Tuesday, 16 Nov 1999

Vol. 510 No. 6

Companies (Amendment) (No. 2) Bill, 1999: Report Stage (Resumed) and Final Stage.

An Leas-Cheann Comhairle:

We are discussing amendment No. 33 and amendments Nos. 1 to 8 thereto, together, on recommital.

The following amendment was moved by the Minister of State at the Department of Enterprise, Trade and Employment on 3 November 1999:

"33.In page 44, to delete lines 1 to 39, and substitute the following:

53. –(1) Section 20 of the Companies Act, 1990, is hereby amended by the substitution in subsection (3) for ‘any such criminal proceedings as are mentioned in section 21(1)(a) or (1)(b)' of ‘any proceedings for an offence mentioned in section 21(1)(a)'.

(2) Section 21 of the Companies Act, 1990, is hereby amended by the substitution for subsection (1) of the following subsection:

‘(1) No information, book or document relating to a body which has been obtained under section 19 or 20 shall, without the previous consent in writing of that body, be published or disclosed, except to a competent authority, unless the publication or disclosure is, in the opinion of the Minister, required—

(a) with a view to the investigation or prosecution of any offence, being an offence—

(i) under

(I) the Companies Acts;

(II)the Central Bank Acts, 1942 to 1998;

(III)the Exchange Control Acts, 1954 to 1986;

(IV)the Insurance Acts, 1909 to 1990;

(V)the Taxes Consolidation Act, 1997; or

(VI)regulations relating to insurance made under the European Communities Act, 1972;

or

(ii) entailing misconduct in connection with the management of the body's affairs or misapplication or wrongful retainer of its property;

(b) for the purpose of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the State, a local authority (within the meaning of the Local Government Act, 1941) or a health board or for the purpose of collecting an amount due in respect of such a tax or duty or other payment;

(c) for the purpose of the performance by a tribunal (to which the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998, apply) of any of its functions;

(d) for the purpose of assisting or facilitating the performance by any Minister of the Government of any of his functions;

(e) for the purpose of assisting or facilitating any accountancy or other professional organisation in the performance of its disciplinary functions with respect to any of its members;

(f) for the purpose of the performance by the Irish Takeover Panel or any stock exchange established in the State of any of its functions in relation to the body or any other person who, in its opinion, is connected with the body;

(g) for the purposes of complying with the requirements of procedural fairness, to be made to—

(i) any company in relation to which an inspector has been appointed under section 14 or any person required by the Minister to give any information under section 15, or

(ii) any body in relation to which a person has been authorised under section 19 to exercise the powers conferred by that section or any person named in a report prepared by a person so authorised;

(h) for the purpose of complying with any requirement, or exercising any power, imposed or conferred by this Part with respect to reports made by inspectors appointed thereunder by the court or the Minister;

(i) with a view to the institution by the Minister of proceedings for the winding – up under the Principal Act of the body or otherwise for the purposes of proceedings instituted by him for that purpose;

(j) for the purposes of proceedings under section 20 or 160.'.

(3) Section 21(3) of the Companies Act, 1990, is hereby amended-—

(a) by the deletion in paragraph (g) of ‘and', and

(b) by the substitution for paragraph (h) of the following paragraphs:

‘(h) the Central Bank, and

(i)any authority established outside the State in which there are vested—

(i) functions of investigating or prosecuting an offence similar to an offence referred to in paragraph (a) of subsection (1),

(ii) functions of assessing the liability of a person in respect of a tax or duty or other payment owed or payable to the state in which it is established or any other authority established in that state or of collecting an amount due in respect of such a tax or duty or other payment, or

(iii)functions which are similar to the functions referred to in paragraph (c), (d), (e) or (f) of subsection (1).'.

(4) The amendments effected by this section shall apply in relation to the publication or disclosure, after its commencement, of information, books or documents which have been obtained under section 19 or 20 of the Companies Act, 1990, whether before or after that commencement.".

Debate resumed on amendment No. 1 to amendment No. 33:

In the first line of subsection (2) after "1990," to insert "shall be added to the Third Schedule to the Freedom of Information Act, 1997, and".

–(Deputy Rabbitte).

Mr. Rabbitte: As the Minister said, it is difficult to abstract any one of these amendments from the totality of what is before us now. The Minister has recast the entire section and in the process permitted retrospective publication, although the Minister will not concede he has done so. It is not possible to reconcile this with the previous positions of the Government, but it is welcome nonetheless. This first amendment seeks to allow the Freedom of Information Act, in certain circumstances, to override the other prescriptions and the Freedom of Information Commissioner to adjudicate in circumstances like the controversial ones we have been discussing. The Minister has given much time to this argument, which has been given an impetus because it is happening at the same time as developments with respect to Ansbacher, but he has not given much time to this matter. One cannot dismiss the information commissioner so easily. It is an independent office and he could be relied on to make a mature and reflective decision. I outlined on the previous day his views as we know them. People sought to misrepresent him and suggest that he was taking up a particular position on the Ansbacher controversy. I do not think he was doing so. He was saying what he thought was the appropriate place for his office in this matter and it is a strong argument. Nobody could question the independence of his office or the maturity of his decision making and I do not understand why the Minister would not be prepared to take the amendment on board. I am sure he is not suggesting that the commissioner would act in a mischievous or frivolous way or wantonly put into the public domain information that should not be there.

In addressing this aspect, the Minister said on the previous occasion:

Finally, turning to amendment No. 1 tabled by Deputy Rabbitte, I do not accept that section 21 should be amended to permit the information commissioner determine whether or not confidential company information should be publicly disclosed. I am aware from recent press reports that the commissioner has recommended that section 21 should be included in the Third Schedule to the Freedom of Information Act, 1997. The effect of such a change could enable confidential corporate information to be published by the commissioner.

That is the critical sentence and I do not understand how the Minister can conclude that it would be likely to happen. It is technically correct that the commissioner could decide to put confidential information into the public domain; he could decide to put many things into the public domain, but I do not understand the rational argument for the conviction that he would be likely to do so in a wanton fashion or in a manner which was contrary to the interests of individuals who were entitled to their privacy or which would damage the functioning of the Act generally. I do not consider he would be likely to do so. Whatever about the merit of the Minister's argument in respect of the substantive issue, in this case we can repose confidence in the information commissioner to use that power responsibly, to take it out of the political domain and to allow him to make his decision in due course.

Mrs. Owen:

I do not wish to repeat the arguments made previously but this issue involves the recommendation of the information commissioner that he should be listed in the Third Schedule and the Minister's refusal to do so because there must be a wide prohibition on disclosure otherwise the inspectors under section 19 would not be able to get access to company books, etc. However, the Minister's amendment completely alters the amendment he tabled on Committee Stage, which he thought would include the definitive changes to section 21. The inclusion of the words "in the opinion of the Minister" means the Minister will decide what body should get the information in terms of its release to all the new competent bodies, although they are not listed in the same manner as they were in the 1999 Act. It will allow the Minister to decide on the day whether the information commissioner should get the information.

The amendment leaves it open to the Minister to give the panoply of bodies, organisations and Ministers a copy of the information. If she wishes, she could give it to the tax authorities, the tribunal, any Minister, the Irish Takeover Panel, the Central Bank and others. She could decide in any particular instance that all of them should get the report. However, once a report is circulated that widely, it would be almost impossible to prevent its contents becoming public.

If the Minister's refusal to include the information commissioner is based on a concern that he would disseminate the details, it should be noted that it would have to be correct in the Minister's opinion to give it to the information commissioner. I welcome the inclusion of the tribunal but I do not understand why an assessment cannot be made in the same manner about whether in certain circumstances the information commissioner should receive information and whether it should become public.

On Committee Stage the Minister introduced a limited amendment to section 21 to widen the scope of the competent authorities. However, because of matters which are in the public arena, the Minister reorientated section 21(1). He said that, at all material times, it had been the intention of the Government in proposing an amendment to section 21 on Report Stage to give the terms of the amendment retrospective effect in so far as the purposes mentioned in section 21(1) or the list of competent authorities stated. However, it was not the Government's intention at all material times to do anything to section 21(1) on Committee Stage. The only amendment tabled then was to section 21(3) of the 1990 Act.

It would help if the Minister explained what happened between July and 20 October when amendment No. 33, which is massive, was tabled. What went on in the Department? What type of discussion took place? What type of rationalisation occurred to bring about this belt and braces change to include the words "in the opinion of the Minister"? In the examination which led to this massive amendment, why did the Minister not take into consideration the opinion of the information commissioner? He is a reputable man and is an officer of the State. I considered he would be a reputable and responsible person to add to a list. If accountancy bodies, the Irish Takeover Panel and others are to be included, I would have considered that the information commissioner was also a suitable person to include. I wish I had been a fly on the wall between July and October.

The Minister of State did not say on Committee Stage that he planned to change section 21(1). However, he did say he would consider the proposal in relation to the tribunal. He said, "Two different matters are involved. I know the Tánaiste appreciates that concern. She is a young woman with much work to do and I am confident she will continue to do it. Deputy Rabbitte is aware that his amendment was only circulated today. The proposal appears to make sense." This did not relate to the information commissioner but to a committee of the House. The Minister of State said he would look again at this issue. He did, but he did not bring forward any change. However, he introduced a number of other changes we neither anticipated nor requested. What was the nature of the discussion in his Department on why the Third Schedule cannot be amended to include the Freedom of Information Act, 1997? Perhaps there is a good reason for this.

Mr. Treacy:

One cannot win. If one reacts to reports and debates in the House by trying to improve legislation, it appears to be wrong. Deputy Owen would be very interested if she were a fly on the wall during discussions in my Department. I have excellent officials and we have had many discussions. We have reached a clear consensus on the best legislation to bring forward in the interests of the country and good quality company law which will be effective, practical and operational.

It is important to point out to Deputies Rabbitte and Owen that the Freedom of Information Act applies to Part II of the Companies Act, 1990. Deputy Rabbitte quoted from my recent long contribution on amendment No. 53. It is important to again put this on the record. I stated that I was aware from recent press reports that the commissioner, as recommended under section 21, should be included in the Third Schedule to the Freedom of Information Act, 1997. I said the effect of such a change could enable corporate information to be published by the commissioner. There is no doubt it could. As I have already indicated, our experience with the operation of section 19 examinations of company books and documents, which are protected under the secrecy provisions of section 21, is that a wide prohibition on disclosure is necessary. These examinations are intrusive to the company concerned and its officers must be assured that the information gathered will have a high degree of protection from disclosure. If that assurance cannot be offered by the Minister and his or her Department, the company concerned may decide to resist the conduct of the examination either through the courts or otherwise. Such an outcome would entirely defeat the process of preliminary investigation, which is envisaged under section 19, and would be counter-productive to the public interest of seeking to uncover corporate malpractice and of applying the rigours of the law to those found to be in breach in due course.

It is already our experience that the strict prohibition on disclosure under section 21 is not enough. Two companies have already gone to great lengths to question the bona fides of the Minister and her Department in so far as is compliant with their statutory duty under the section. If a public interest test were to determine whether information would be disclosed, every company which was the subject of examination by officers from our Department would believe the publication of its corporate affairs would be the inevitable outcome of being subject to a section 19 examination.

We must understand that regulatory authorities have a job to do. The system has worked well whereby people can carry out examinations and make reports. On many occasions these examinations prove positive and there is no need for further action. On other occasions, however, the authorised officer discovers serious information he brings to the attention of the Minister, and a decision is taken to seek to appoint an inspector. This has been carried out in an inexpensive manner. We have gained the trust of the companies involved over the years and we want to maintain that trust in the interests of good corporate governance and proper regulation. Lest anyone misinterpreted what I said about freedom of information, this applies to information available under Part II of the Companies Act, 1990.

All the proposals have been considered. The reason I did not indicate my intentions on Committee State was that we had not had the debate on the Ansbacher account in this House. It was debated here for two days. Many Deputies indi cated what should be done and, as this legislation is current and being debated, we responded by including these changes. We have gone a long way and I believe we are doing the right thing because the integrity of the information is being maintained. In the final analysis, judgment on whether that information should be transferred to those named as a result of the changes to section 21 of the 1990 Act must be left to the Minister who is answerable to this House. It is reasonable that Members should be able to question the Minister on a particular aspect of any investigation and that an answer should be given in the House rather than referring it to another body for its adjudication. If it is an independent office, we do not have the right to question it and we must await the annual report. In the interests of democracy and of the veracity of the information available to Members, what is being done is in the best interests of the people, the country and corporate governance.

Mr. Rabbitte:

I rose on amendment No. 1 but the discussion went a bit wider than that. On the previous occasion amendments Nos. 1, 4 and 7 were grouped together.

An Leas-Cheann Comhairle:

All amendments are being taken together. Amendments Nos. 1 to 8 to amendment No. 33 are being discussed together.

Mr. Rabbitte:

On amendment No. 1 to amendment No. 33, I have not heard any argument from the Minister of State as to why this override would not be given to the information commissioner. He said confidential commercial information could be put into the public domain by the information commissioner. Obviously this is so. However, there is an array of agencies and offices under the aegis of the State that could do many things, but they do not do those things; they act responsibly given the merits of the particular case. The fact is that Mr. Kevin Murphy is the independent statutory authority. This authority rejects the arguments, in so far as the Minister of State has adduced arguments, for not reposing this power in the independent statutory authority. This is a wish to retain this power in the Minister's Department and the Minister of State has sought to explain this by saying it is the norm. This is the explicit power – to which Deputy Owen referred – in amendment No. 2 to amendment No. 33 where, for some reason the Minister of State has not explained, he has inserted the words "in the opinion of the Minister". However, that is not the case. The Minister specifically says that the opening clause of replacement section 21(1) repeats the existing provision, with the addition of a specific reference to "the opinion of the Minister" determining if disclosure is appropriate. This has always been the practice and reality and it is now being explicitly stated in law. The Minister gives no argument or reason why it is being explicitly stated in law.

In any event, I submit that the Minister's statement is incorrect because up to now, any agency office or person who had this information lawfully could have considered whether to publish. That is the position before the Minister comes in to recast the entire section. Therefore, the Minister is not correct in saying that this is the reality. The reality has been changed and it is a puzzle why the Minister has decided to put in "in the opinion of the Minister". It is in keeping with the overall recasting of the section that, far from what was indicated by the Minister – he tabled amendments to this effect on Committee Stage where he proposed to lengthen the list of organisations or persons who could be considered competent authorities under the existing legislation – he has now governed all of those by this over-arching clause, "in the opinion of the Minister". Unless it is in the opinion of the Minister, these bodies are not, to all intents and purposes, competent authorities whereas up to now, whatever the opinion of the Minister, it was not a subjective test. Objectively, they got the information if they were lawfully entitled to it and they could publish or not publish or do as they decided appropriate. Therefore, it is a change.

I am not criticising the Minister for listening to the debate and changing his mind and I am especially not criticising him for doing a U-turn on the question of retrospective publication, but I criticise him for coming into the House having done that and denying the obvious. What has happened is manifest. All I am seeking to elicit from the Minister is why it was considered necessary to repose this power in the Minister explicitly in law and that each of the succeeding competent authorities will now only find themselves in possession of this information if it is the opinion of the Minister that they should have it. The House is entitled to an explanation from the Minister of why that was considered necessary. That is something we have not received.

As somebody who had to operate these sections in the past, I concede there is a substantial argument in the Minister's speaking note as to why one must tread carefully in this kind of investigation and how one could do damage to the Act if sensitive, commercial or other data came into the public domain in a manner which was prejudicial to whatever inquiry was under way, etc. However, it is puzzling that the Minister cannot or will not explain to us why he went down this road.

One argument for it is that his Department wants to keep a grip on this. His Department, after all, has acquired some experience of the operation of these sections of the Companies Acts. The personnel, who have been concerned with them in recent years in the Department, have merited justified plaudits from commentators and merited thanks from the public for work they have done assiduously and conscientiously. It is in the nature of bureaucracy that a feeling of proprietorship grows up as a result of that experience which other Departments do not have. If it has been operated successfully there are lessons drawn from each case, which has been different. It seems to me the only logical explanation I can find for this over-arching governing clause which amendment No. 2 seeks to excise, which reposes this subjective test in the Minister is that it is maintained within the Department and the Minister and her advisers determine, notwithstanding that it should go, for instance, to a colleague Minister if the Minister is of the opinion that it should not, well it seems to me, as I read that, then it will not. Where we were on Committee Stage, it would go automatically to the tribunal of inquiry; now it does not go to the tribunal of inquiry unless the Minister is of the opinion that it ought. Like I said the last day, in the case which gave rise to much of this controversy, the Ansbacher accounts case, I would have thought that the current Minister, the Tánaiste, would be minded to make whatever pertinent information there is, available to Mr. Justice Moriarty. I would imagine, having regard to her public statements, that that would be the view but that may not be the view of a future Minister. If Deputy Treacy argues that this was always the reality, that the Minister had this power, then why not leave what was always the reality in place? Why expressly enshrine this in the legislation? We have not received an answer to that.

I looked at some of what the Tánaiste said on this issue quite a while before it came into the public domain. On 16 February, for example, she said in answer to a Priority Question:

the Minister is precluded from making public the results of such inquiries .. It is a defect because a Minister is acting in the public interest and when matters come to the Minister's attention it is right that they should be brought into the public arena.

On 24 March, in answer to a Priority Question, she stated:

The issues are so serious that they should be in the public domain and not just go to the competent authorities.

That was the Tánaiste when she got off the leash of the formal reply on 24 March. Later that day she said:

I accept the thrust of the Labour Party Bill and that the amendment is necessary.

It is wasting time for the Minister to come in here and pretend that there has not been a volte-face in the Department. Clearly there has been one. That was the position of the Tánaiste then and it is changed dramatically now, some changes for the better but some not for the better because there is this governing clause.

That matter is quite different from either Deputy Owen's amendment No. 4 to amendment No. 33 or my amendment No. 7 to amendment No. 33. That is a fundamentally different matter. I know amendments Nos. 1, 4 and 7 are grouped on the basis of our previous discussion, but amendment No. 7 to amendment No. 33, which I put forward on Committee Stage, proposes to add the term "either House of the Oireachtas or a Committee appointed by either or both of such Houses". The idea here is that a report, a document, etc., could be made available to a specialist select committee of the House which might be examining this matter. The situation envisaged was where the Committee of Public Accounts, for example, might be asked by the House to examine a particular matter of public controversy which was, at the same time, also being examined by an authorised officer. In such a situation, ought not the committee be made aware of the information in the possession of that officer?

I accept that the Minister of State, in respect of amendment No. 7 to amendment No. 33, has brought forward a number of weighty arguments in terms of enshrining that power in law. However, Deputy Owen may not be ready to concede the point in respect of amendment No. 4 to amendment No. 33. However, I cannot see how conceding that point, if we are amenable to doing so, in respect of a committee of the House or the House itself progresses matters. If, for example, it was placed in the possession of a committee, the Minister of State's argument presumably is that it would become common knowledge in a short period and that that might damage not only the inquiry but also this particular facility in company law.

I cannot see how the Minister of State can make such an argument in respect of the independent statutory authority that is the Information Commissioner. To date, he has failed to do so. The Information Commissioner is an independent statutory authority who is unlikely to act on a whim and place something in the public domain for the sheer devilment of doing so. Therefore, it is important that the override is included in the legislation and I ask the Minister of State to reconsider his position in that regard. I also ask him to do the House the service of presenting an argument on why this power is being given to the Minister of the day by the insertion of the words "in the opinion of the Minister".

Mrs. Owen:

It is only fair that the Minister of State should give a straightforward and clear explanation why the term "in the opinion of the Minister" was included. Earlier he shed crocodile tears and said "You cannot win if you take account of what the Opposition says".

Mr. Treacy:

I have never been known to cry.

Mrs. Owen:

On Second Stage the Opposition, particularly Deputy Rabbitte, proposed that tribunals of inquiry should be added to the list of competent authorities. The Minister of State examined the position and returned with an amendment on Committee Stage. Not only were tribunals added to the list but clarifications about which Ministers were competent authorities, etc., were also included. If, as the Minister of State tried to argue, it was common practice that everything that was done was based on the opinion of the Minister, I contend that he did not suddenly discover that fact to which he failed to refer when introducing the amendment on Committee Stage.

When he referred to it earlier, the Minister of State indicated that the amendment was merely a tidying up exercise. That is the only defence he has offered. I contend that he and his officials would have spotted that when introducing the amendment on Committee Stage. He stated "This has always been the practice in reality but it is now being explicitly stated in law". When did that light suddenly shine on him and his officials, given that they were already considering this section of the 1990 Act in terms of introducing an amendment on Committee Stage? If the amendment was merely a housekeeping exercise designed to tidy up the Act, why did he not introduce it at that stage?

The Minister of State is continuing to argue that the Information Commissioner cannot be added to the list of competent authorities. I accept to a degree that the term "with power to publish such a report if the committee deems it to be in the public interest" in amendment No. 4 may cause him difficulties and he referred to the secrecy of reports in that regard. However, he is increasing the number of people who, under the purview of the Minister, can obtain these reports. It seems extraordinary that the House which is enacting the legislation should not also be given some power.

On Committee Stage the Minister of State did not appear to favour Deputy Rabbitte's amendment, nor did he favour allowing reports such as those under discussion be placed before a committee of the House. In the 1990 Act, there was an automatic trigger which ensured that a report would be placed before a committee considered to be a competent authority. Adding the words "in the opinion of the Minister", provides a belt and braces approach to protection. Therefore, if at any time it is not considered proper to give information to a committee of the House, such consideration will be based on the Minister's opinion. Whatever argument the Minister of State put forward for not accepting the amendments on Committee Stage, there is no argument in respect of not including the two additional competent authorities to which I refer.

The Minister of State does not seem to have accepted the point Deputy Rabbitte and I have been stressing in respect of the amendment he introduced. Section 21(1) of the 1990 Act does not refer to the "opinion of the Minister". The only opinion the Minister is allowed to have about the revelation of a report is based on section 21(3)(b), under which he or she is allowed to authorise someone to obtain a copy of such a report. It was under this provision that the Mini ster for Enterprise, Trade and Employment provided the Taoiseach with a copy of the Ansbacher report. As the Minister of State is aware, the Taoiseach is not listed as a competent authority. However, the Minister retained, under the 1990—

Mr. Treacy:

But he is competent.

Mrs. Owen:

He is not a competent authority under the legislation.

Mr. Treacy:

The Taoiseach is a competent man.

Mrs. Owen:

The Minister of State should not misrepresent what I am saying. If he cannot understand the legalistic language I am using, he should not make frivolous interventions. We are discussing a competent authority in terms of section 21(1) of the 1990 Act. The Taoiseach is not listed in the section but reference is made to the Minister for Finance or an officer authorised by him.

The Minister for Enterprise, Trade and Employment correctly and legally used her power under section 21(3)(b) of the 1990 Act to provide the Taoiseach with a copy of the report. She was asked about the matter in the House and she said that she nominated him to receive a copy of the report as "a person authorised by the Minister". However, that is the only part of section 21 where the opinion of the Minister must be exercised. I wish the Minister of State would accept that.

The 1990 Act clearly states that no information, book or document relating to a body which has been obtained under section 19 shall be published or disclosed, except to a competent authority, unless the publication or disclosure is required. Under the Act, the Central Bank is listed as a competent authority and it cannot disclose any information unless it decides that the publication or disclosure is required either for the purposes of criminal proceedings or another of the reasons listed under the terms of the Act. Suppose the Central Bank, which is now a competent authority and has this report, decides that it wants to proceed under section 20. Section 20 states that if there is "on oath laid by an officer authorised by the Minister or laid under the authority of the Minister that there are reasonable grounds for suspecting that there are on any premises any books or documents..". If the Central Bank had information that there were more documents that had not been made known to the inspector, it would have a direct right triggered by that section. It did not have to ask the Minister for an opinion if it decided that it had information which allowed it to proceed under section 20 to go the courts, it could do so without seeking the opinion of the Minister. Now, however, there is an extension.

We did not raise this issue on Committee Stage. The Minister of State said he listened to us but that he was damned if he did it and damned if he did not. We did not ask him to insert "in the opinion of the Minister" or to rework section 21. We asked him to consider widening the list of competent authorities. The Minister of State says this is predicated on the fact that the Ansbacher report was not available when the debate took place. He has not made any changes in this section arising from that debate. When the Ansbacher report came out, it was said that if some names had been leaked there was a case that all the names should be informed that they would be made public, giving them a chance to make a statement. Instead some names were leaked. There was also a call for the report to be given to a committee of the House. Neither issue is dealt with in the reworked amendment.

For the Minister of State to plead that he came back with this long amendment because he listened on Committee Stage and to the debate on the Ansbacher report is poppycock. He did not listen. If he had, he would not have introduced this amendment. Instead there would be provision for a committee of the Houses and the information officer in the Bill. The Bill has been reworked but I do not know why. Does the Minister of State know why? Perhaps he did not create this amendment and therefore it is on the Tánaiste's head as to why it was turned completely around. No argument by the Minister of State will tell me otherwise.

This amendment fundamentally changes the import of section 21 of the 1990 Act. Nothing the Minister of State can tell me will convince me otherwise. If the amendment was so straightforward why was it not introduced on Committee Stage? Why was it only after all the debate that the Minister of State decided to tighten up the situation and remove some of the existing powers of the competent authorities? Why, when pleading that he cannot bring in the information commissioner or have an Oireachtas committee getting its dirty hands on this, has the Minister of State added all these extra people which, clearly, makes it harder to keep something quiet? It is as if the Minister judges that some people are better at keeping confidences than others. I object to that inference being made about Members of this House and the information commissioner. I am sure he would object to the inference that these Ministers, bodies and the Central Bank are better at keeping their cards close to their chests than others.

Why does the Minister of State not accept the addition to the Bill of a committee of either House of the Oireachtas? I accept that the power to publish may have been a bridge too far, but I cannot see why that should be if the committee so decided. Why will the Minister of State not accept the amendment, given that he has inserted "in the opinion of the Minister" so he can say on the day that he will or will not give it to a committee? The section will sit there like a dead fish until some Minister decides that the committee will get it. It is not feasible for the Minister of State to argue that he trusts some groups and not others, Members of this House included. I know the Minister of State would not want to cause offence and I hope he might be convinced by that argument.

Mr. Treacy:

Deputy Owen said that amendment No. 33 was not flagged on Committee Stage. We reviewed the section in great detail following Committee Stage and gave consideration to the involvement of a committee of the Oireachtas. There was also a debate on Ansbacher on 29 and 30 September which caused us to reflect further. Eventually, we decided that we would table amendment No. 33. It was my opinion that we were making a positive contribution.

Deputy Rabbitte also referred to a committee of the House. I gave the House a five page explanation why we could not do that – pages 22 to 27 of the document I gave to the Deputies, the first Minister ever to give his documentation to the Opposition during a debate. I felt that was the proper thing to do to be of help.

Deputy Rabbitte quoted statements made by the Tánaiste in answer to questions he asked but, as when he quotes me, he did not give the full quotation. I will quote from the Official Record of 4 November when he asked the Tánaiste questions about the Ansbacher report. Deputy Rabbitte asked, "Is it the Minister's intention when the Companies Amendment (No. 2) Bill is enacted, to use the powers in it to have this matter referred to the Moriarty tribunal? Has she had any request for the information from the Moriarty Tribunal?". The Tánaiste's reply was:

I am not aware that we have had any request from the Moriarty tribunal. The Flood tribunal has been involved with many Government Departments in getting files relating to events in the past. However, it clearly would be my intention that a report of this kind would be submitted to that type of tribunal. In my experience, most of the information which is sent to the Authorised Officer is also sent to the Moriarty tribunal in so far as it relates to Ansbacher. A year or so ago, I took the view that section 19 reports should be made public. However, the strong legal advice, both from the current Attorney General and his predecessor and from every other lawyer I have spoken to was that if we did that we would get a section 19 report, that the full rigours of the law would have to be applied and everybody would have to have their rights to legal representation and so on. That is the basis of the case being taken by Dunnes and Margaret Heffernan. The whole purpose of the report is not just to carry out an inquiry but to put the information into the public domain. They argue that cannot be done under what is a basic preliminary inquiry.

That is what the Tánaiste said on 4 November 1999, confirming the legal advice, the discussions and the consideration we gave to the matter.

Mr. Rabbitte:

That is not fair. The Minister of State is making the Tánaiste look foolish.

Mr. Treacy:

No, I am putting the situation in context. Deputy Rabbitte put the question and received a very lucid answer from the Tánaiste as a result of discussions, the legal advice of two Attorneys General and many other lawyers. We must operate within the law. Deputies will recall that I outlined at length the nature and reasons for the amendments which I tabled in regard to sections 20 and 21 of the Companies Act, 1990, by virtue of amendment No. 33. Arising from the contributions of Deputies Owen, Rabbitte and Callely, there are a number of issues on which I wish to respond.

Deputies Rabbitte and Owen have highlighted a specific difficulty with the inclusion of the phrase "in the opinion of the Minister". They are former Ministers and are aware that every decision is taken by a Minister on the basis of his or her opinion.

Mrs. Owen:

That is not the point we made.

Mr. Treacy:

One forms an opinion, arrives at a conclusion and takes a decision under section 21(1) of the Companies Act, 1990, in regard to the publication or disclosure of information gathered pursuant to sections 19 and 20. In commenting on the amendment I indicated that it has always been the practice but it is being explicitly stated in law. I meant that the information, books or documents that are obtained pursuant to sections 19 and 20 by an authorised officer would more usually be set out in the form of a report from the authorised officer to the Minister. The Minister then decides whether the information, book, document or report should be transmitted onwards to a competent authority for the specific purposes set out in sections 21(1)(a) to (e). The Minister of the day always considered the information, books, documents or reports which had become available and decided to whom they should be sent. There is nothing wrong with that because there is not much point in appointing Ministers if they do not have responsibilities to discharge.

We are significantly extending the list of parties that can access such information, books, documents or authorised officers' reports but the inclusion of the test "in the opinion of the Minister" would prevent any of these parties from asserting a right to be given such information against the Minister's wishes. This is good law and I am satisfied on the basis of the legal advice available that this is the appropriate manner in which to deal with this matter and the words should be retained as proposed by the amendment. I have not changed my mind and I am satisfied that this is the proper course of action.

A number of other issues were mentioned.

Mrs. Owen:

Why was this housekeeping not noticed on Committee Stage?

Mr. Treacy:

At the conclusion of Committee Stage I gave a commitment that we would reflect on the debate and consider everything. The Ansbacher debate then took place.

Mrs. Owen:

Nobody sought the inclusion of the phrase "in the opinion of the Minister".

Mr. Treacy:

We are dealing with serious matters and serious issues are currently being investigated. We want to make sure that the Bill, when enacted, is absolutely watertight. Our legal advice is that this phrase should be included. I am a legislator, as are the Deputies opposite, and not a lawyer. Hopefully, together we can interpret that which is advised to us and arrive at a conclusion that will stand the test of time, therefore, ensuring that the law is operable and will allow serious decisions to be taken.

In section 21(4) of the proposed amendment we are clarifying that any information available to the Minister under sections 19 and 20 of the Companies Act, 1990, whether obtained before or after the enactment of the Bill and the commencement of this section, can thereafter be passed to any of the authorities mentioned in sections 21(1) or 21(3) for use by them as is necessary. Deputy Rabbitte accepted this clarification but in his final contribution when we discussed this previously he appeared to go further and suggest that any competent authority which, under existing provisions, had obtained information lawfully could take the decision to publish. If he means to publish the information in the form as obtained from the Minister or the authorised officer, I take issue with that. However, if he means that the competent authority could use the information and in doing so some of the information that had been gathered by the authorised officer comes into the public arena during court proceedings, then I agree that is one way it could become public.

I also disagree with the Deputy's assertion that if tribunals of inquiry were added to the list of designated competent authorities then the report of authorised officers would automatically go to the tribunal of inquiry. This would only happen if the Minister considered that it contained information that was of relevance to the matters under examination by the tribunal. This ties in with the Minister exercising his or her discretion as to what authority should be given the information, books or documents or report of an authorised officer gathered under sections 19 or 20.

I refer to designating either House of the Oireachtas or a Committee as a competent authority, which was raised by Deputies Owen and Rabbitte. When I moved this amendment, I set out in a reasonable degree of detail the reasons I was not prepared to designate either House of the Oireachtas or a committee of either or both Houses or a number of variations thereof as a competent authority. The record will show these reasons and it is not necessary to repeat them as they still hold good and I have not changed my mind.

Deputy Callely referred to meetings he had and representations made to him by representatives of company formation agents. I have no difficulty confirming that any submissions made by that organisation to the company law section of my Department will be examined in the same manner as those received from any other party. If meetings are considered necessary to discuss and explore issues raised, these can be arranged at a mutually satisfactory time. I hope I have put these matters in some context. However, our message is clear. We reflected on and reconsidered the issues raised on Committee Stage and during the Ansbacher debate. Our response is contained in this final amendment.

Mr. Rabbitte:

I am not sure the Minister of State's contribution adds a great deal to our knowledge. I do not know whether Niall Quinn will play in Turkey but Robbie Keane is certainly out and it appears that young Delap will play up front. I feel the same way about that as I do about the Minister of State. He is a utility player for the Government. Whatever the scenario, he will come out and faithfully recount the Government's position. Whether a goalkeeper was needed after Alan Kelly was injured or somebody up front in the absence of Robbie Keane—

Mr. Treacy:

I am not sure about the Deputy's suporting history but Niall Quinn and myself played the same game for a while albeit at different stages of our careers and at different levels, of course.

Mr. Rabbitte:

That bears out my view. The Minister of State is the utility player.

Mr. Treacy:

The Deputy has played on the wing a few times.

Mr. Rabbitte:

The Minister of State accused me of not quoting him in full. That is odd because the quotes which I repeated from the Minister, Deputy Harney, were clear and pertinent and I also furnished the dates on which they were made. He asked why I did not go on to quote her in November. A good reason is that in February and March I did not know what the Minister might say in November. I am entirely puzzled as to how the Minister of State expected me to know that the Minister had changed her mind in November and that somehow around St. Patrick's Day I should have drawn the attention of the House to the fact that the Minister had done so.

Mr. Treacy:

The Deputy misinterpreted me. He quoted from spring this year instead of quoting the Minister throughout the year, which would have provided the totality of her thinking.

Mr. Rabbitte:

It is extraordinary that the Minister of State will persist with this argument. If there was an accident and the Minister was no longer in the Government how would I know that she had changed her mind by November?

Mr. Treacy:

The Deputy does not understand the point.

Mr. Rabbitte:

On Committee Stage I could only go on what the Minister had said at that time, no more than I can comment today on what she might think next March depending on whether there is another crisis.

Mr. Treacy:

I am going on the Deputy's quotation today.

Mr. Rabbitte:

That was the Minister's position in March and the Minister of State proved that she holds a different position now. It is difficult to figure out from what the Minister of State has said why she holds a different position. It is interesting that the Minister of State keeps pointing to the fact that this was the view of two Attorneys General. It never occurred to me before to make a comparison – maybe the reason we have an entirely recast Bill is because we have a new Attorney General. All I do know is that if this was the opinion of the previous Attorney General the Minister did not betray that to us last July on Committee Stage. I am not sure what was the opinion of the then Attorney General and I do not know the opinion of the current Attorney General. I am sure if this is his considered opinion it ought to carry weight here. I am also sure if he were on the Opposition benches he would make a very powerful argument for transparency on this issue. We do not know. The Minister said we are dealing with very serious matters and we all accept that. Presumably the Tánaiste knew that in the spring, as the Minister of State, Deputy Treacy, put it.

My memory is that during the Christmas period the Tánaiste started the process of high profile comment on this information which was oppressing her at the time. She expressed the wish to bring it into the public domain and repeatedly confirmed her wish that it would go into the public domain. She said the law was defective and not sufficient and that whatever the law said it should only go to the competent authority and come into the public domain. That was the position and it has changed. I do not know the reason for the change. That is something that clearly the Minister of State will not tell us. Nor do I think the Minister of State has thrown a great deal of light on certain things that have been said in the course of the debate. In my own case, when he talks about my saying that formerly when we were on Committee Stage it would have gone automatically to the tribunal of inquiry, he corrects me to say, "if relevant". Of course, I was speaking in that context. I was not suggesting that the proceeds of this inquiry which we have been discussing in respect of Ansbacher would go to the Flood tribunal. I was suggesting it might go to Moriarty if parts of it were relevant to Moriarty. I ask the Minister of State to take it that I am talking about where the tribunal is trawling the same territory as is being investigated by the authorised officer. That goes without saying. Similarly, it goes without saying, in respect of the manner in which any competent authority might put this into the public domain or might just utilise it in terms of acting on it – the DPP, the Revenue Commissioners or whatever.

In the actual text, the Minister of State draws our attention to the relevant pages of his speaking note, for which I am grateful, which he gave to us on the last occasion although it is now published in the Official Report. It was helpful then and it is helpful now. The particular area to which he draws attention is: "If authorised officers' reports were capable of being published it would irrevocably alter the entire structure of a section 19 examination". That is the nub of the argument as I understand it. That is the position of the Government now, notwithstanding what the Tánaiste said in the spring. That is not quite true. As the sentence is baldly recorded there, it is not quite correct. If authorised officers' reports were capable of being published it would irrevocably alter the entire structure of a section 19 examination.

Mrs. Owen:

They are capable of being published.

Mr. Rabbitte:

They are capable of being published in whole or in part, to reverse on the Minister of State his argument about the information commissioner when he said he could put it into the public domain. Of course he could. Similarly, one could do so in this case as well, as has happened before the courts. They are capable of being disclosed as happened to parts of the Ryan report, for example, before the courts. If resort to the court is necessary, as a result of the information discovered by the authorised officer, that information will come into the public domain as a result of being adduced in court. The argument is not by any means open and shut. The Minister goes on to say: "This give and take between the regulator and the regulated companies would break down if there were a substantial possibility that information on the companies was readily publishable. There would likely be regular challenges involving High Court judicial reviews of ministerial decisions"– an argument that is rejected by the information commissioner, in his remarks. The Minister of State goes on to say: "In short, companies would see that their commercial interests would be capable of being sacrificed on the altar of political expediency". I suggest that is an infelicitous phrase. If that is how the Government looks at the whole question of transparency in the companies legislation we are dealing with, and sees it as a matter of political expediency, it denigrates what we are about.

There are a couple of areas in the Minister of State's script where he trivialises this power. For example, when speaking about the powers we are talking about here, he said "they are purely information gathering mechanisms". I take it that is a reference to sections 19 and 20 of the existing legislation. That is trivialising this power. What is a tribunal? What is a tribunal of inquiry but an information gathering mechanism that hopefully – although we know from experience it does not always – reaches certain findings of fact. That does not wash with me either. It would appear the Government has reached a position, following this period of reflection to which the Minister has referred, which is irrevocable. It is unsatisfactory that we have not managed to divine the trigger for the change of heart.

The Minister of State draws my attention to section 21(4) which permits of the retrospective publication. We welcome it. We were told that could not be done during the whole Ansbacher row but, clearly, it can be done and is being done here within the rubric of subsection (4). The reorientation of the entire section is a clever way of approaching an intractable problem. I accept the difficulty that once something is put in legislation it might in certain circumstances be used in a fashion that could be injurious to the entire process. However, it is unsatisfactory that the Minister of State cannot say what the trigger was for recasting the section.

With regard to Deputy Owen's point on an Oireachtas committee, I understand that approximately 60,000 documents were opened to the Committee of Public Accounts subcommittee during its inquiry on DIRT and related matters. Not one of them came into the public domain; not one was leaked. The direct imputation of the Minister of State's position is that a committee of the House is not to be trusted on the basis that if it was to be seized of information of this kind it would automatically come into the public domain. While documents produced before the DIRT inquiry became public, a great many more were made available on discovery to the six members of the subcommittee, yet not one was betrayed into the public domain.

We are sometimes our own worst enemies. Deputy Owen makes a good point about the new conventional wisdom which says that information given to a committee of the House would mean the dogs in the street having it within hours. On the one hand we argue for more effective committee work on the basis that it would better deal with work elsewhere that is costing the taxpayer a great deal of money, yet we go along with the supposition, as set out in the Minister of State's speaking note, that in giving information to the Members of the House they would act in an irresponsible fashion, the consequences of which would be to damage this delicate balance and the instrument for investigation under consideration here.

Mrs. Owen:

The Minister of State referred to "throwing" information into the public domain.

Mr. Rabbitte:

Ministers should reflect on this. I know the Civil Service mind is conditioned to think that way and I understand why, because Ministers are not above leaking when they think it suits their individual or collective position. However, we are in an era of freedom of information, where it will take time for the system to settle down and where access to the most private of information is possible. At some stage these inquiries will be over and we will be able to pull the shutters down and say we are finished investigating planning corruption and the fallout of a political era most of us have lived through. When that happens we must look at the instruments of inquiry, whether it be tribunals of inquiry legislation, the Companies Acts, as amended, with the provision regarding inspectors, or the parliamentary committees.

We may find it necessary to review or update the law so that it is possible to more efficiently and expeditiously inquire into some of the matters under investigation. It is the view of the public that present inquiries are taking an interminably long time and are enormously expensive. Can it be done with more efficacy? If we are serious about addressing that question we cannot continue with the presumption that if Members of the House are seized of certain information they would immediately act in a partisan and irresponsible fashion and in a way that would be likely to damage the public interest. I do not accept that argument.

Mrs. Owen:

The more I read the Minister of State's speaking note on this amendment, detailing his argument against what Deputy Rabbitte and I seek to do, the more his defence collapses. He makes the case for not disclosing information or not even including certain people on a list to whom the information might, in the opinion of the Minister, be given. He says that while many persons may be named in company information, the inspector has no legal right to question them unless they are past or present officers. This means that while the inspector may compile a list of names for a report they cannot be questioned if they have left the company. The Minister of State goes on to say that while some of them may have a reasonable explanation for their association, the authorised officer may, because of his limited powers, be unaware of it when presenting the information. This means that when the report is presented to the Minster he or she must make a judgment on its content.

The Minister of State refers to the statutory prohibition on publication of this information. However, he does not qualify this. While there is a statutory prohibition it is not absolute. There are times when there is no prohibition on the release of information. He should have said there is a statutory prohibition except in certain circumstances where the High Court allows for the publication of the information or where the Minister is allowed to give it to the High Court through an affidavit.

The Minister of State endorses this position because it shields potentially innocent parties from possible public opprobrium. That is a fine sentiment. Who is to say what public opprobrium the approximately half dozen names leaked in connection with the Ansbacher report were subjected to? Nobody told us what shield they had.

The Minister of State proposes to retain the absolute embargo on publishing information except under the law, where the Minister can go to the High Court. One of his contentions for taking this approach is that the whole system would be thrown into chaos if the rules regarding the way the inspector has been doing his work are changed. While the Minister of State has not got rid of the prohibition on publication, amendment No. 33, subsection (4), refers to "information, books or documents which have been obtained under section 19 or 20 of the Companies Act, 1990, whether before or after that commencement." This means that the people questioned by Mr. Ryan before this legislation was introduced and before he submitted his report to the Minister were questioned under a set of circumstances provided for in section 21 of the 1990 Act, which listed the competent authorities as being the Minister, a person authorised by the Minister, an inspector appointed under the Act, the Minister for Finance, an officer authorised by the Minister for Finance, any court of competent jurisdiction, a supervisory authority within the meaning of the regulations relating to insurance made under the European Communities Act, 1992, and the Central Bank. In such circumstances, a person questioned would know the competent authorities and make statements based on a knowledge of who would receive the inspector's report. While a person questioned would not lie, he or she may decide not to be as frank with some information because the report may, for example, go to the Central Bank.

Throughout this debate the Minister and the Minister of State have expressed the fear that the section 19 process governing the role of the inspector would be cast aside and be of little value if the legislation was changed to add, for example, an Oireachtas committee to the list of bodies or persons to whom a report may be submitted. What advice did the Attorney General or his predecessors give the Minister of State and his Department about the effect of changing the ground rules after Mr. Ryan or another inspector had obtained information from those from whom he was authorised to collect it? These would be people who worked in the company concerned and would have looked at its books, etc. What advice did the Minister of State receive about this retrospection? Did the Attorney General say it was acceptable for Mr. Ryan to have collected under the 1990 Act a great deal of information, given however frankly by those questioned and in the knowledge of the competent authorities to which it would be given in the end? The Minister of State has changed the list of competent auth orities to which the report might be given after the people concerned have finished being questioned and the law also gives him permission to extend that list.

I know retrospective law cannot be enacted which criminalises someone on the basis of something they said which they would not otherwise say if the law was changed. What advice did the Minister of State receive on the fine legal point I have raised? If I were one of the people questioned, what chances would I have were I to take a case to have Mr. Ryan's or anyone else's report overturned on the basis that I was misled at the time I answered the questions, that I did not know the Minister would retrospectively change the list of competent authorities, that had I known that or that my answers might have turned up in a report to the Moriarty or any other tribunal, I might have been more circumspect in my answers? In the interests of fairness to the people questioned by Mr. Ryan, what is the situation regarding the legality of what is being done in the amendment to subsection (4)?

This is another example of the Minister of State seeing the light after Committee Stage. We touched on this area, although we did not make a specific request. The intent of the debate on Committee Stage was that people would like to see tribunals included. I was of the opinion, and I would be interested to know if Deputy Rabbitte shared it, that we would be laying down the law for future inquiries so that people would know that, if a tribunal were in progress and the issue on which they were being questioned was relevant to it, the report might end up in the tribunal. That opinion was confirmed when the Minister said: "We have added in all of these [competent authorities] thereby removing all impediments for the future". The clear implication was that there would be no retrospection, no changes which would affect investigations under way, that this would all be introduced on a given day and that, from then on, the new measures would prevail.

I am not a lawyer, so I cannot run the rings around the Minister of State which Mr. McDowell might, but I suspect if the Attorney General were a Member of the House, he would do so regarding the Minister of State's explanation of the retrospection and the dangers it might create in future. As a result of the Ryan report going to the former justice, Mr. Costello, anyone who answered Mr. Ryan's questions could argue that they gave answers on the basis of the law as it existed when they were questioned and that the emphasis on the answers they gave is now different because there is now a different group of competent authorities. The Minister of State was quick to share with us the legal advice of two previous Attorneys General. Perhaps he could tell us what the Attorney General said about the risk of someone challenging this amendment to subsection (4) on the basis that they were not aware of the changed circumstances which would occur when the report was completed.

Mr. Treacy:

I listened with great interest to what Deputies said. There is an inference that, based on my defence, I have cast a slur on the House and a committee of the House. That is certainly not the case. I am proud to be a Member of the House, have the utmost regard for those who are and believe in the democratic process. Every opportunity to make information available to Members should be taken. Deputies Rabbitte and Owen have suggested that my defence is a slur on membership of the House. I disagree and they misinterpreted what I said.

The problem is simple. Companies will see disclosure to the House as tantamount to public disclosure. That is the position. This will result in non-co-operation with authorised officers' inquiries under section 19. This is the perception – even if it is not based on reality, it is what counts. We will not receive co-operation, we will go to court and it will be hammer and tongs and legal expenses to pursue section 19 reports in future if there is this disclosure. That is the perception and the position and it is not a slur on anyone.

Mrs. Owen:

It is not an automatic disclosure. It must be in the Minister's opinion that it is warranted.

Mr. Treacy:

If companies know such reports will be referred to a committee of the House, they will bring down the shutters and we will have to go to court to discover anything. We want to ensure we strengthen the position which has proved to be positive and has produced information and that we allow it to continue and develop. We do not want to place impediments in its way or discourage people from co-operating.

Deputy Rabbitte referred to the greater public interest. The public interest in this instance is that information on corporate malpractice should be uncovered for possible criminal investigation. That is what we must achieve with this law. Once this legislation is enacted, we must ensure it gets to the root of corporate malpractice and that criminal prosecution is pursued if necessary.

Deputy Rabbitte disagreed with me about section 19 investigations and said that they would break down. I acknowledge that investigation material obtained under section 19 can be made public in the courts, but that is the only place it can happen. The point is that it will only happen under conditions of due process where the individuals involved are given the right of reply and their constitutional rights are safeguarded. That is the key. They have the same right in that court as the plaintiffs making the case against them. That is equality of opportunity in the law and we must protect it. Deputy Rabbitte also pointed out that any agency could publicly disclose section 19 information. That is not correct. Each agency has been and remains subject to section 21(2) which makes it a criminal offence to publicly disclose information.

Deputies Rabbitte and Owen spoke about the Information Commissioner being added to the list of competent authorities in section 21(1). It would not amount to adding a new competent authority to that subsection. Rather, it would be an addition to the Third Schedule of the Freedom of Information Act. In other words, the commissioner's competence under that Act would be extended to allow him have this information. That is a different situation.

Deputy Owen said it would be difficult to prevent disclosure to the public having given information to other authorities under subsection (1). Disclosure to the listed authorities is designed to assist them in carrying out their proper functions when it is in the Minister's opinion that this would be helpful to those authorities to discharge and execute those functions. Each authority is still required to keep this information under wraps. The Information Commissioner's role is to make disclosure to the public in appropriate circumstances of certain information obtained under sections 19 and 20.

I identified that any possibility of disclosure will be used as an excuse to frustrate or delay section 19 investigations. We cannot create law that will frustrate section 19 investigations. We must have the right for the regulatory authority, the Minister and the Department to be able to select an officer to conduct an investigation of a company and to be certain we receive the co-operation of that company to obtain the maximum amount of information so that it can be concluded whether an inspector should be appointed or criminal proceedings are warranted. If we do not create law which will provide for that, we will not succeed in eliminating corporate malpractice. If we opt to change the goalposts, we will find ourselves in a serious litigation situation which will cost taxpayers a great deal of money. I do not think any Member of this House wants that to happen.

Deputy Owen said that this amendment is legally unsound. We have taken legal advice on the matter and are satisfied that there is not a legal problem with extending the list of competent parties under the Bill. The new authorities, like the old ones, must continue to respect the confidentiality of this information. Although we have put in new authorities, the conditions of confidentiality under which they will operate have not changed.

Mr. Rabbitte:

In what circumstances would information be given to the Stock Exchange?

Mr. Treacy:

Information would be provided in situations where there would be an artificial construction of an environment through various mechanisms to inflate the value of shares prior to a flotation or where companies were trading in quick-sand type circumstances about which the Stock Exchange should be informed. It would be incumbent on the Minister of the day to do that. There are a number of other Acts under which the Department can pass on information to the Stock Exchange, for example with regard to take-over panels.

I always like to hear Deputy Rabbitte quoting because he is usually very accurate. He quoted from something the Minister said in the spring and he tabled a question this month which really identified the thinking which prevails as we conclude this legislation.

Mr. Rabbitte:

We are squaring the circle.

Mr. Treacy:

Absolutely. Discussions, consensus, advice and action are all in evidence. On the point that rules have been changed retrospectively by the inclusion of section 21(4), I explained in great detail in my speech why these changes are appropriate. I do not wish to get bogged down in an exchange of views with the Deputies on the question of retrospection. The record clearly shows that with regard to the specific issues raised in relation to the Ansbacher lists, the argument on retrospection related to the publication of information which had been gathered under conditions of secrecy. We were legally advised that we could not publish that information. On a more general point in regard to retrospection, I pointed out that the Constitution does not permit retrospection which would involve making an act which was not an offence at the time it was committed an offence some time thereafter. That has not changed.

Mrs. Owen:

The Minister did not really respond to the nub of my question. The position of the inspector is sacrosanct in order that he or she would receive the full co-operation of a company and I wonder why that would be threatened if the Minister dared to add an Oireachtas committee to the list. What is the exact point in law in regard to the inspector approaching someone and stating that he or she was carrying out an inspection under all the rules laid down in this section and the various codicils and sections of the Companies Act, 1990, relating to inspectors' powers? One of those sections relates to destination of the report. The Minister is aware of the point I am making. How can the disclosure of information, on the basis of a report ending up on the desk of a competent authority, not pose a problem in regard to the report's credibility? Will the Minister of State explain how the inclusion of an Oireachtas committee in a list of competent authorities can, of itself, be in breach of Article 15.5 of the Constitution which provides that the Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission? There is a risk, however small, of information being leaked by any of the competent authorities but I do not see how the fact that something is known or made public can turn it into an offence. How can something be turned into an offence through the act of publication?

If I used to drive my car having consumed a certain amount of alcohol and the law was changed retrospectively, I would probably be prosecuted, together with everyone else in the country. If it was stated that from the year 1980, anyone found with alcohol in their blood had committed a criminal offence, in spite of the fact that there was not any limit at the time on the amount one could consume, that would be a case of retrospectively making something which was not formerly an offence into an offence. I cannot understand the Minister of State's defence. There may be practical reasons why he does not want this information to be made public but using Article 15.5 as a defence does not hold water. The publication of a report carried out by an inspector under section 19 does not mean that either the inspector or the person who disclosed information to him or her can be accused of having committed an offence. I am at a loss to know how the Minister of State can use that particular argument for not adding to the list of competent bodies.

He said he tried not to give offence in the closing part of his reply on why the report should not go to the Dáil. He said that the Government had taken the view that it was not open to it to publish, in the sense of throwing information into the public domain. He went on to say that the Minister could simply sacrifice investigatory powers under the Companies Act to a "name and shame" agenda of individual Members of the Oireachtas who have absolute privilege. How dare he impute that the only reason we are seeking to include the Oireachtas is that we want to satisfy some prurient desire and get our names in the newspapers? Hunger for publicity is not the reason that Deputy Rabbitte or I seek the inclusion of this provision. The Minister of State used his strongest tone in his speech to defend his reasons for not including the Oireachtas committee, implying that the only reason we are in this House is to gather titbits of juicy information to use in pursuit of a "name and shame" agenda. He did not use the same tone or language with regard to any other group which might be included. I did not mean to intervene again but the Minister did not grasp what I said about the retrospection clause in subsection (4). Is that not as damaging to the process of the investigation, because we are bringing it in retrospectively, as any change in the terms of publication?

Mr. Rabbitte:

There is not much point prolonging the misery. We have a choice of calling a vote or of terminating the discussion now because the Minister is clearly not minded to change his view on this final section. It is an important section, although it is not the only important one. The Minister's view prevailed on a couple of matters which I believed were quite contentious. Notwithstanding this is a total recasting of the section concerned and whatever reflection went into it or whoever inspired it, the Minister is impervious to any arguments to change it. We have reached a stage in the debate when we have to accept that is his position.

With that in mind, I would like to draw attention to a reference in the script to which I referred on the last occasion. The paragraph put in is entitled, Subsequent Publication. The Minister said: "Before concluding, it is only fair that I say, as has been indicated previously, that I favour publication of the results of completed investigations in due course following proper conformity with constitutional procedures and due process." What does the Minister mean by that?

Mr. Treacy:

What aspect does the Deputy mean?

Mr. Rabbitte:

The part where the Minister commits—

Mr. Treacy:

What page?

Mr. Rabbitte:

Page 32 where the Minister says it is his view that there should be publication and that he favours publication of the completed investigation. Will the Minister explain to the House how he sees that functioning having regard to the section he is now about to enact? How would the normal investigation be conducted under sections 19 and 20 by an authorised officer and referred, if the Minister was so minded, to the relevant competent authority because she felt the efficacy of the investigation engaged in by that competent authority might not be done properly without access to this information? Suppose that happened, how would this completed investigation come into the public arena?

I note the Minister says he favours it and, as I said the last day, I understand why he might say that. Somebody who has not laboured through the tedious detail of this Bill might say the Minister says he is in favour of publication but, of course, the Minister does not say that. It is circumscribed by due process and constitutional procedures and so on but even then I am puzzled as to how the Minister is in favour of investigation.

If it goes to the Revenue Commissioners, the Central Bank, the Stock Exchange or whatever, it is not clear to me how investigation will ensue. I am afraid I do not understand that. I understand that if there is a subsequent invocation of other powers in the Bill and that if one goes before the High Court, some or all of this may come into the public domain in due course. That is a very narrow area and to use the Minister's term, this is purely an information gathering mechanism. In a situation where subsequent resort to the High Court was not had, I am not clear how that comes into the public domain.

I refer briefly to my amendment No. 8 to amendment No. 33 which seeks to insert the following paragraph: "any court of competent jurisdiction or any tribunal of inquiry to which the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 apply." The Minister said somewhere in his riposte—

Mr. Treacy:

What page?

Mr. Rabbitte:

Page 21. The Minister said: "in relation to Deputy Rabbitte's amendment No. 8 to new subsection (3), I would point out that the existing reference to any court of competent jurisdiction in subsection (21)(3) of the 1990 Act remains as I have just indicated, unaltered by virtue of my present amendment." I am persuaded that is correct. He went on to say: "Consequently the need for the first part of the Deputy's amendment does not arise as I have also already indicated the second part of the Deputy's amendment is catered for by new subsection (21)(1)(c) of his amendment." I cannot see how that is correct because—

Mr. Treacy:

On what page is the Deputy?

Mr. Rabbitte:

Page 21, the last sentence of the penultimate paragraph. It is quite clear that the Minister of the day could refuse to have the report published to the tribunal of inquiry. The Minister is not even required to defend her opinion. Unless the Minister can refer me to a different section, I cannot see anything in the Bill, as I read it, where the Minister is required to have regard to any reasonable considerations. It is purely whether it is in the opinion of the Minister. It is not correct to say, as the Minister said, that the second part of my amendment is catered for. I felt after Committee Stage that it was catered for; that a tribunal of inquiry in future trawling the same territory would be entitled to the relevant information. Now it is only entitled to that information in so far as it accords with the opinion of the Minister. It is not quite as the Minister says and that part is still relevant. I acknowledge the difficulty in the Minister accepting that amendment because the entire structure of the section is different. The entire section is governed by this requirement that it should be in the Minister's opinion.

I refer to my amendments to amendment No. 33. The Minister should take amendment No. 1 on board. It is, as he says, an amendment or an addition to the Third Schedule of the Freedom of Information Act. The Information Commissioner is acting, in any event, in a quasi judicial capacity and should be trusted with that information. I am adamant in respect of amendment No. 2 that the phrase should be excised. In respect of amendment No. 3, I am prepared to accept what the Minister said that the effect is the same.

I am not prepared to go to the wall for amendment No. 5. I thought that in this day and age, while we may use the term "he or his" in legislation generally and that in so far as it refers here to the Minister and having regard to the gender of the person who is Tánaiste, the Minister of State might be minded to take on board the words "or her" but clearly he is not prepared to do so. Amendment No. 6 would be consequential on that.

Amendment No. 7 relates to the debate we had about whether it would be appropriate that a committee of the House or the House should be seized of this information in certain circumstances, and I have explained my arguments in support of that amendment. I just referred to amendment No. 8 and believe the circumstances in which a tribunal of inquiry may now get this information is somewhat circumscribed by the governing clause at the beginning –"in the opinion of the Minister".

Mr. Treacy:

I will try to deal with all points raised by Members. In relation to Deputy Owen's point, that information gathered under certain rules can now be disclosed to a greater number of parties, I submit that under section 21(3)(b), the Minister can authorise any party that he or she considers appropriate to get the information. A party under examination would never know what party would get that information. They would never know who would get it.

Deputy Rabbitte referred to my contribution and my desire to publish information and to put it in the public domain. Section 19 or 20 investigations would eventually end up being used by the competent authority under subsection (1), as now extended, or a competent authority under subsection 21(3), and thereby could possibly come into the public domain. To clarify my position, I would be in favour of publication once different systems and structures as well as due process had taken place and once constitutional protection was given to each individual involved. At the end of the day we must protect the rights of the individual.

Mr. Rabbitte:

It is misleading.

Mr. Treacy:

It may be to suit the occasion, but at the end of the day there are great—

Mrs. Owen:

It is to paper over statements from the Tánaiste.

Mr. Treacy:

There is no papering at all. It is a de facto position. I would like to see a conclusive work published – investigation, report, court decision and publication.

Mr. Rabbitte:

It cannot be.

Mr. Treacy:

That would be my desire. In relation to another point made by Deputy Rabbitte, that the second part of amendment No. 8 to amendment No 33 is dealt with, regarding tribunals of inquiry, I accept the Deputy's clarification. However, I am satisfied this is as far as it is appropriate to go at this time. The phrase "opinion of the Minister" seems to have caused a lot of difficulty and it is the case that that phrase does not govern disclosure to a competent authority under subsection (3). I am advised it would not be appropriate to do so. Under subsection (3), disclosure to a court of competent jurisdiction may be made. If the phrase "in the opinion of the Minister" were to apply to such disclosures, it would be theoretically possible for the Minister to deny disclosure to a court. This would not be a desirable state of affairs and would probably not be constitutional. It could give rise to conflict between the executive and judicial arms of the State. I am advised accordingly that disclosure to competent authorities should continue to be subject to the existing arrangements.

The distinction between the two approaches can be summarised as follows. The parties specified in the now expanded subsection (1) cannot assert a right to be given information, pursuant to sections 19 or 20, against the Minister's wishes, whereas the Act is silent with regard to the competent authorities specified in subsection (3). If any of these competent authorities were to press the matter to a court adjudication, in the case of a refusal to disclose information, while the Minister would, as heretofore, have made a decision, that court could not reject the application in this instance on the grounds of the Minister's opinion, but would have to examine all the factors relevant to the specific case before deciding whether refusal was justified.

I have examined this matter after our discussions. I have thought about it and teased it out. We have had consultations and legal advice. The advice available is that the present formulation is both necessary and appropriate and I accept that.

Amendment put and declared lost.

Mr. Rabbitte:

I move amendment No. 2 to amendment No. 33:

In the fourth and fifth lines of subsection (1), as inserted by subsection (2), to delete ", in the opinion of the Minister,".

Amendment put and declared lost.

Amendment No. 3 to amendment No. 33 not moved.

Mrs. Owen:

I move amendment No. 4 to amendment No. 33:

After subsection (1)(c), as inserted by subsection (2), to insert the following:

"(d) for the purpose of assisting or facilitating the performance by an existing committee of either House of the Oireachtas or a committee appointed by either or both Houses of its functions, with power to publish such a report if the committee deems it to be in the public interest;".

Amendment put and declared lost.

Amendments Nos. 5 and 6 to amendment No. 33 not moved.

Mr. Rabbitte:

I move amendment No. 7 to amendment No. 33:

In subsection (3), before paragraph (a), to insert the following paragraph:

"(a) by the insertion after paragraph (a) of the following paragraph:

"(aa) either House of the Oireachtas or a Committee appointed by either or both of such Houses;'.”.

Amendment put and declared lost.

Mr. Rabbitte:

I move amendment No. 8 to amendment No. 33:

In subsection (3), before paragraph (h), as inserted by paragraph (b), to insert the following:

"(h) any court of competent jurisdiction or any tribunal of inquiry to which the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 apply.".

Amendment put and declared lost.

An Leas-Cheann Comhairle:

Amendment No. 33 has already been discussed.

Amendment agreed to.

Bill reported with amendment.

Mr. Treacy:

In accordance with Standing Order No. 126, I request the Ceann Comhairle to direct the Clerk of the Dáil to make the following formal technical correction: On page 28, line 19, after "conviction", to delete "or" and substitute "on", which means that we are substituting the letter n for the letter r. It is a technical error and we would be grateful if the House would accept this request.

An Leas-Cheann Comhairle:

Is that agreed? Agreed.

Bill reported with amendment.

Question proposed: "That the Bill do now pass."

Mrs. Owen:

We have had a pretty intensive debate on this legislation, although sadly there have only been a few of us present. However, there have been enough of us to show that the House is serious about bringing in legislation to amend company law. I hope the Minister of State recognises that my efforts to improve the legislation were motivated by the lack of implementation of or adherence to company law as it exists. We know the current Attorney General has carried out an extensive report on adherence to company law. With the passing of this legislation I hope that some of the concerns I and others have expressed will not occur. I am still concerned by this last section, but I am also concerned about Irish registered non-resident companies. I await with interest the Minister for Finance's considerations of the article in Finance Dublin which pointed out ways people are avoiding the law to set up Irish registered non-resident companies. I hope this legislation will be seen as preventing people breaking the law by setting up companies which are not bona fide and thus bringing Ireland into disrepute by the way in which non-resident companies have been used for criminal activities. I welcome the conclusion of this legislation – we will judge it by its implementation.

Mr. Rabbitte: I concur with Deputy Owen. This legislation does not complete the agenda of the Gallagher review group as certain matters remain to be addressed, including those which have arisen since due to various developments in this area. Bringing forward law in this area is a painfully slow process and, as Deputy Owen remarked, it does not exactly set the House alight. However, it is extremely important.

The next major step facing the Government is enforcement. Whereas our law may continue to be defective in some areas – Deputy Owen referred to the phenomenon of Irish registered non-national companies – it is in relation to the area of enforcement that we are living in a simpler era. That era has well and truly passed. If legislation such as this is on the Statute Book, it must be enforced. I congratulate the Minister on bringing this legislation through the House. I hold adamantly to my view that we made an error in the area of big ticket leasing. However, numbers rule and for the moment I accept that.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Treacy):

I thank you, a Leas Cheann-Comhairle, the Ceann Comhairle and the staff of the House and Deputies Owen and Rabbitte who have given this Bill tremendous attention throughout this year. I thank them for their co-operation. They got us to reflect on the thrust of the legislation. Any amendments we tabled were based on what we heard and observed. I hope we get it right – it is our utmost desire that we do so. We want to ensure the elimination of corporate malpractice and that we deal with the INR situation. There has been a reduction in INRs of on average 1,000 per quarter in the first three quarters of the past year in company registrations. We believe we are on the right road as a result of the package of measures introduced by the Government in the last Finance Act and in this legislation. We are totally committed to corporate enforcement and we will deal with that sincerely. I thank everyone for their co-operation.

Question put and agreed to.