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Dáil Éireann debate -
Thursday, 2 Jul 2009

Vol. 687 No. 1

Companies (Amendment) Bill 2009 [Seanad]: Report and Final Stages.

I move amendment No. 1:

In page 11, to delete lines 38 to 47 and in page 12, to delete lines 1 to 3 and substitute the following:

"(a) by the deletion of subsection (6)”.

This amendment is similar to one I tabled on Committee Stage last week but which has been changed slightly to reflect the full intent. The purpose of the amendment relates to the Bill's provisions, which represent some progress. This Bill requires that loans lent on a preferential basis to directors must be disclosed both to the public and to shareholders. This will prevent a recurrence of what happened with Mr. Seán Fitzpatrick in respect of the concealment of his loans in the past. While this represents progress, Fine Gael does not believe it goes far enough. We are concerned by the fact that loans made on preferential terms to connected persons, that is, to spouses and children of directors in the main, will not be disclosed to the public and will be disclosed only to the shareholders. That is fine in respect of AIB or Bank of Ireland, because such information will be disclosed to a large number of shareholders, of whom there are hundreds of thousands in those companies, both institutional and individual. However, this is not the case with Anglo Irish Bank. Consequently, as a shareholder of both AIB and Bank of Ireland, I will be made aware of loans made on preferential terms to directors of those companies. However, I will not be made aware of loans made on preferential terms to the spouses and children of directors of Anglo Irish Bank, even though I probably am more liable for that company as a taxpayer than I am as a shareholder of the other two companies. The only person who will be in possession of such information will be the Minister for Finance. While Deputy Brian Lenihan holds that office at present, someone else could so do in future. While the only nationalised bank at present is Anglo Irish Bank, there could be others in future. I do not believe the Oireachtas should give the Minister for Finance that exclusive discretion, either now or in the future, for Anglo Irish Bank or for any other bank in the future.

I have tabled this amendment to ensure that preferential loans that are made to persons are put in the public domain. Were there a commitment from the Minister for Finance to the effect that he would be prepared to make such information available, this legislative provision would not be necessary. However, in the absence of such a commitment, it is necessary. People have lost trust in banking and politics and Members have a major job to do to restore trust in both. It is not right to give the Minister for Finance power to conceal the identity of spouses and children of directors who receive loans on preferential terms from a nationalised bank. It is important for the Houses of the Oireachtas to vindicate the right of the public to know the preferential terms on which spouses and children of directors are getting loans from a nationalised bank that is backed up with our capital and by our sovereign guarantee. The Minister of State will argue that this is a matter for the Irish Financial Services Regulatory Authority. However, while I understand that argument, I do not accept it. First, we have decided to put specific provisions into company law relating to the banks in this regard. Consequently, it is not as though the Minister himself believes there is such an absolute separation between what may be appropriately included to in the Companies Acts and what may be appropriately included in legislation pertaining to financial services. I also do not believe that power and decisions always should be ceded to ombudsmen, agencies or regulators. Perhaps this country would be in a better position, had the regulators not been given so much power to decide on their own part how regulations should be enforced in the financial services industry. There is an important role for the Houses of the Oireachtas in the restoration of confidence in politics and trust in the banking system. That means ensuring that members of the public, who are the de facto shareholders of this nationalised bank, will have the same access to information about a company they own as do the private shareholders of AIB and Bank of Ireland.

I am not caught up by the tone or tenor of Deputy Varadkar's amendment. Were Members to continue in that vein, it would be possible to regulate businesses out of existence. As for talking about trust in politics, if Members continue to speak in that vein, they will perpetuate the myth that no one is trustworthy. The de minimis thresholds of €2,500 or €3,000 in this regard are peanuts and in addition, an aggregate amount will be disclosed. While I do not come from a business background, business must be allowed to continue in some form. The fact that one big avalanche of which all Members are aware took place does not mean every business carries on in that fashion. Moreover, I understand the Financial Regulator will be involved. How many more people must become involved in poking their noses into every bit of business? I do not hold a brief for business people in so far as I am not a business person and I do not come from a business background. However, as a self-employed person, I know the amount of scrutiny to which one is subject and to which one must comply is considerable.

I have made the point previously that those who enter politics are subject to fairly significant intrusions. I acknowledge the case has been made that assets could be put into a spouse's name or something similar. However, my understanding is that a register will be kept of such transactions. As Deputy Varadkar noted, the Minister of the day will have a shareholding in this regard. That means he or she will have an obligation to act in the public interest and on behalf of the public. Moreover, one of the 15 constitutionally-bound members of the Executive will have a role in this regard. Ultimately, having reflected carefully on this issue, I am prepared to give the Minister's views on this issue a fair wind and a fair opportunity. I understand that further regulation and further legislation dealing with this particular issue is forthcoming and that the banks themselves will be obliged to maintain a register that must be furnished. The Minister of State might pay attention to this point. My understanding is that the register must be furnished under pain of penalty. It is no longer a nice option, it is mandatory and carries penalties. As someone who, in another guise, must examine the legislation that passes through this House it sometimes borders on prurience. The Labour Party will not support the amendment, it will abstain from it. I have concerns about sections 5 and 6 of this Bill, of which the Minister of State is aware.

We are enacting legislation because of the particular circumstances but the Government is throwing out much legal precedent and common law applicable in every common law jurisdiction. I am loth to be a signatory to this. That is why I asked for this to be furnished in a report to the Dáil. It is my intention to be vigilant in that regard because I am deeply concerned that someone can arrive, bring all and sundry and load up the tractor and trailer, taking everything in the place including privileged documents and those with lawyer-client privilege. I have grave concerns and I will not wait until the game is over before saying this. Rights are involved and in the rush to trammel rights sometimes bad law is made.

I am well aware of the background circumstances that have led to this Bill with which we have co-operated. As Labour Party spokesman, it would be remiss of me not to signal a degree of discomfort in respect of some aspects of this Bill. I say that with no vested interest, other than as a lawyer who reads Bills and watches them operate subsequently. I will be very vigilant on the operation of these sections. They should be used only as a last resort. That is why I seek a report on their operation on an annual basis. I understand the Minister of State will facilitate this.

Deputy Varadkar has given valid reasons for the tabling of this amendment. I do not hold the same view. His views are as plausible and well-founded as mine but the measure in the legislation is more than adequate. It will be complemented by subsequent legislation and financial regulatory control. We used to talk about triple locks but we will have the whole place locked in. Mr. Justice Kingsmill Moore said that to make accidents impossible would be to make work impossible. In other words, we can never insure against every risk. We could get to the stage where the amount of regulation means we may not get people who want to be directors or part of a business set-up. We must be careful to strike a balance.

The net effect of Deputy Varadkar's amendment is to delete the original as well as my proposed amended version of section 41(6) of the Companies Act 1990, a subsection that exempts companies that are licensed banks from the requirements that apply to companies in general to disclose in annual accounts prescribed details about loans made to directors and persons connected with these directors. Section 8(1)(a) of the new Bill substitutes a new section for section 41(6) of the 1990 Act and differentiates between the positions of directors and persons connected to directors as follows. For the directors, the net effect of the substitution is that, from now on, any company licensed as a bank will be required to disclose in its annual account details all loans to individual directors where these exceed a minimum level, as referred to by Deputy Penrose. This will be the case where the loans are on ordinary or favourable terms. For those connected to directors, details of their loans will continue to be exempt under section 41 from disclosure in the annual accounts. However, the latter sections of Part 3 of the Companies Act 1990, as amended by the current Bill, will require aggregate disclosures in the accounts about loans to connected persons and detailed disclosures through a register and a statement that must be made available prior to the AGM of the licensed bank in question. In both instances, disclosures about connected persons will only relate to loans made on favourable terms.

If accepted, Deputy Varadkar's amendment would lead to detailed disclosure in the annual accounts of all loans above the minimum amount, not only to directors but to persons connected to directors of the institution. It would not apply only to preferential or favourable term loans but to any loans made to a person connected to a director. We must be conscious of the right of ordinary people to go about their business in privacy as long as they are not in breach of legislation. I encourage Deputy Varadkar to re-examine this.

According to Deputy Varadkar's amendment, all loans would have to be declared by people connected to directors. I am married to a bank manager but let us suppose she was promoted to the position of director of the bank. One may also have a brother, a sister or a spouse appointed as a director of a bank. In such cases all loans to the person would have to be disclosed. That is a fundamental infringement of the right of someone to go about business that is not anything other than legal. Favourable term loans must be put on a register, which is available to the Financial Regulator. The Financial Regulator already has authority through the Acts of the Oireachtas to insist on disclosure of loans if he deems it necessary.

I understand why Deputy Varadkar is pursuing this because of the circumstances that arose in a bank that is now nationalised. To put it in perspective, the Minister for Finance is the representative of the Irish people as a shareholder of Anglo Irish Bank. He has the authority to publish material and the Financial Regulator has authority to inspect and ensure that no favouritism is granted to directors or shareholders of Anglo Irish Bank, or in this case the Minister for Finance. Apart from the fact that it is unnecessary, there are many other reasons this amendment cannot be accepted. We have discussed the matter on numerous occasions. I could go into the detail of it but the general principle is that individuals related or connected to directors and lawfully going about their business in acquiring a loan from licensed banking institutions in this State should not be exposed to any further vigilance, as long as they are in compliance with laws and there is no favouritism shown.

I urge the Deputy to accept our bona fides in respect of the review of financial regulation in this country, as has been announced by the Minister for Finance. The Central Bank commission has been appointed. We are examining other areas of financial regulation to ensure strong corporate governance and enforcement of corporate governance in the context of finance.

Deputy Penrose is correct, one wants regulation appropriate to the risks involved. A knee-jerk reaction can have unanticipated results. If this amendment were accepted, it would have unintended consequences and would be a flagrant infringement on the right of an individual to go about his or her business. Deputy Varadkar should not pursue this and should accept our genuine belief that the Financial Regulator already has the necessary authority and power vested in him by the Houses of the Oireachtas in legislation. The register must be filled and is available for inspection by the Financial Regulator at all times. There is a severe penalty in regard to breaches and, equally and as important, the Financial Regulator can make regulation requiring publication of such loans if he or she so wishes.

There are plenty of safeguards and these will be enforced. Ordinary people should not be penalised because they may be related, possibly even without consent. It is blatantly wrong to put them at a disadvantage. If this were any other piece of legislation, I am sure those opposite would have very serious views on this issue of somebody being penalised because of a relationship with somebody in a position like that.

I did not think the day would come so soon when the Fine Gael spokesperson in this House would argue for tighter regulation and more openness and the Labour Party spokesperson would argue for less regulation and openness.

It is a funny old House.

I understand Deputy Penrose's point and fully respect his perspective. The difficulty I have is largely philosophical. When a bank or other company is nationalised and becomes a State-owned company, all citizens become shareholders. Although in law the Minister for Finance is a shareholder, in my view a nationalised company belongs to all of us and we are all shareholders. These are the ordinary people I care about rather than the people who happen to be related to a director of a company. It is their interests I am trying to put first.

Somebody who is a shareholder in the AIB or Bank of Ireland can get this information and has access to that register. In the case of a company like Anglo Irish Bank, which is now nationalised, the people do not have access to that register as only the Minister and Financial Regulator have such access. There is more secrecy in reality around a State owned bank than there would be around a privately owned bank, which I cannot accept.

The intention of the amendment was to relate to favourable loans. There is a diminished threshold, which can be set at €200,000 or €300,000, so that we are not taking into account mortgages of €400,000. The intention of the amendment relates to a disclosure of loans to connect to persons where loans are on favourable terms.

If it is the case that the Minister is prepared to commit to bringing in his own amendment to this end, I would be happy to withdraw mine. If he cannot introduce an amendment to require disclosure of loans on favourable terms, I will have to push the amendment as it stands. We agree on the matter of the diminished threshold in that we are not talking about small loans but significant loans. If the Minister can commit to bringing in his own wording to connect it only to persons on favourable terms, I would be happy to accept it because that is the intent of the amendment. If he does not make that commitment I will push the amendment to a vote.

I support Deputy Varadkar's amendment. I understand that people in public life are in a glasshouse for all of their time in public life at least, if not well beyond it. It is unfortunate that in some cases, family members of public representatives happen to be in that category. I have instanced a case in the past where, for example, the son of a former Minister for Justice made headlines in a way that was grossly unfair and unreasonable to both the child and the former Minister. I can understand some of the Minister's point on protecting people in that category who happen to work in a bank.

The difficulty is that coming off the back of recent experience in the banking sector, we have seen Anglo Irish Bank and a network of others prepared to weave a carpet of deceit and deception. We are told no rules or laws were broken and nobody has been charged or put in jail. That has left a very bad taste in everybody's mouth. The only solution is for the Minister of State to accept Deputy Varadkar's amendment and come back to review it in three, four or five years' time, after a proper regulatory regime has been put in place and when it has begun to engender some trust in the public. That is the best way to handle this in a way acceptable to all of us.

I am a director of an enterprise which is on the Members' register for all to see. I understand the point made by Deputy Penrose on having some care in the matter of administrative burden. I hope I am not going against Deputy Varadkar in this as that is not my intention. This burden carries a significant cost and there is a bureaucratic process that brings about much hardship on businesses right across this land. This comes at a significant price to those businesses, particularly the smaller and medium-sized businesses that can ill afford it not just at this time but at any time.

The balance is to protect not just workers but other businesses associated with the companies in question, which are trading and dealing with them. It is most important that those people have protection as well. I acknowledge the concern of Deputy Penrose and the Labour Party in that regard. I support the amendment and I would like to see the Government accepting it with an undertaking to review it in a few years.

I have stated on numerous occasions that plenty of legislation is passed in the Houses of the Oireachtas that gives adequate powers of enforcement to the Financial Regulator to inspect favourable loans that must be placed on a register. Equally, those favourable loans must be declared to shareholders 15 days before an AGM of shareholders. The Office of the Director of Corporate Enforcement also has access to that register so there are plenty of people capable of inspections.

With regard to the Minister for Finance being the sole shareholder of the nationalised bank, as far as I recollect we went before the people and those of us in this Parliament were elected. A Government was formed and the specific purpose of anybody in this House is to act in the public interest. The Minister for Finance is charged with a responsibility as shareholder and will act in the public interest and be held to account in this Parliament.

From the political perspective, there is adequate accountability for those in this Chamber in how they are first elected to office and then held to account by this Parliament. There should be enough confidence in this Parliament to hold any member of Government to account to ensure the public good and interest is upheld.

Favourable term loans must be placed on a register and there is an inspection process by the Financial Regulator and the Office of the Director of Corporate Enforcement. On Committee Stage I indicated that the reason licensed banks are in company law is because there was not a strong corpus of legislation relating to financial regulation. The long-term intention is to try to migrate those towards the financial regulatory area. That is where they would be best enforced.

The Government has had 12 years to do that.

I have not as I am only here a short time. We are working very expeditiously. With regard to the Company Law Review Group, there can be further discussions on——

It has had six years.

The work is very advanced and it has had much co-operation from Deputies opposite. For the reasons outlined, unfortunately I cannot accept the amendment and I ask the Deputy to withdraw it in view of the commitments already given to this House in the context of past legislation and ample enforcement available through the Office of the Director of Corporate Enforcement and the Financial Regulator.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 75; Níl, 47.

  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Chris.
  • Ardagh, Seán.
  • Aylward, Bobby.
  • Blaney, Niall.
  • Brady, Cyprian.
  • Brady, Johnny.
  • Browne, John.
  • Byrne, Thomas.
  • Calleary, Dara.
  • Carey, Pat.
  • Collins, Niall.
  • Conlon, Margaret.
  • Connick, Seán.
  • Coughlan, Mary.
  • Cregan, John.
  • Cuffe, Ciarán.
  • Curran, John.
  • Dempsey, Noel.
  • Devins, Jimmy.
  • Dooley, Timmy.
  • Finneran, Michael.
  • Fitzpatrick, Michael.
  • Fleming, Seán.
  • Flynn, Beverley.
  • Gogarty, Paul.
  • Gormley, John.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Harney, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kenneally, Brendan.
  • Kennedy, Michael.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McEllistrim, Thomas.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • Mansergh, Martin.
  • Martin, Micheál.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Brien, Darragh.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • O’Keeffe, Batt.
  • O’Keeffe, Edward.
  • O’Rourke, Mary.
  • O’Sullivan, Christy.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Ryan, Eamon.
  • Sargent, Trevor.
  • Scanlon, Eamon.
  • Treacy, Noel.
  • Wallace, Mary.
  • White, Mary Alexandra.
  • Woods, Michael.


  • Allen, Bernard.
  • Bannon, James.
  • Barrett, Seán.
  • Breen, Pat.
  • Bruton, Richard.
  • Burke, Ulick.
  • Byrne, Catherine.
  • Carey, Joe.
  • Clune, Deirdre.
  • Connaughton, Paul.
  • Coonan, Noel J.
  • Creed, Michael.
  • Creighton, Lucinda.
  • D’Arcy, Michael.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Enright, Olwyn.
  • Feighan, Frank.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Hayes, Tom.
  • Hogan, Phil.
  • Lee, George.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Joe.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Naughten, Denis.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Mahony, John.
  • O’Sullivan, Maureen.
  • Perry, John.
  • Reilly, James.
  • Ring, Michael.
  • Sheahan, Tom.
  • Sheehan, P. J.
  • Stanton, David.
  • Timmins, Billy.
  • Varadkar, Leo.
Tellers: Tá, Deputies Pat Carey and John Cregan; Níl, Deputies David Stanton and Dan Neville.
Question declared carried.
Amendment declared lost.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."


Well done, Deputy Kelleher.

It is his first Bill.

Question put and agreed to.

A message will be sent to the Seanad acquainting it accordingly.