Investment Limited Partnerships (Amendment) Bill 2020: Second Stage

I move: "That the Bill be now read a Second Time."

I welcome the opportunity to address the Dáil Chamber on the Investment Limited Partnerships (Amendment) Bill 2020 following progression of the previous Stages in the Seanad. This Bill fulfils a commitment in the Programme for Government - Our Shared Future to progress the revision of the investment limited partnership structure and reflects the strategic priority outlined in the international financial services, IFS, 2020 action plan. In the interest of time, I will refer to investment limited partnerships as ILPs during the course of this debate.

The changes proposed in this Bill will enable Irish industry to compete for some of the global private equity market which has, to date, chosen other European or global locations to base such investment funds. The Bill caters for both the modernisation of the existing ILP structure and makes provision for best practice in the area of transparency and anti-money laundering. It also makes a number of technical amendments to the Irish Collective Asset-management Vehicles Act 2015 to enhance the efficiency of the ILP structure. In addition to these changes, the Bill proposes to amend the Social Welfare Consolidation Act 2005 to allow the Central Bank to verify PPSN information pertaining to the beneficial ownership registers, which it operates for both ILPs and common contractual funds.

I will now give an overview of investment limited partnerships. An ILP is a regulated partnership structure that does not have a separate legal personality. ILPs are tailored specifically for investment in a collective investment fund, and they are regulated and authorised by the Central Bank of Ireland. The basic structure of an ILP is made up of general partners and limited partners. The major difference between these two groupings is that a general partner has responsibility for the running of the partnership and has unlimited liability while a limited partner is a passive investor, with the exception of a limited advisory role, and is liable only for the value of its capital contribution to the partnership. Limited liability can be lost if a limited partner exceeds its advisory role in the partnership.

The Bill provides increased clarity on the list of permitted activities that will not cause a loss of limited liability for the limited partner. This is the white list concept. It is common to limited partnership regimes in other jurisdictions and is a clarification of the actions permitted while the limited partner acts in an advisory role only. Simply put, a limited partner taking part in the management of the partnership outside of the permitted activities will lose its limited liability.

The Bill provides for the establishment of umbrella funds, which will allow a single ILP structure to operate a range of investment strategies on behalf of investors, while ensuring that each such strategy is not responsible for the liabilities of another within the overall fund. Each of these sub-funds will be subject to authorisation by the Central Bank. This will allow for sub-funds with specific investment strategies to be established in an efficient manner and in line with other ILP funds in other jurisdictions along with the other four corporate vehicles used for Irish funds.

Another noteworthy aspect of this Bill are the amendments being brought forward on beneficial ownership. These amendments will bring ILPs, along with common contractual funds, CCFs, in line with beneficial ownership obligations that fall within the scope of anti-money laundering directives. These will ensure that the highest international transparency standards apply to ILPs and CCFs and that it is clear who controls the vehicles as a result of the beneficial ownership register to be maintained by the Central Bank of Ireland. The amendments will further enhance our reputation as a well regulated financial centre.

This Bill also makes minor changes to the Irish Collective Asset-management Vehicles Act 2015, or ICAV Act, including correcting typographical errors and aligning the Act with other company legislation. An ICAV is a legal structure for the holding of investment schemes established in accordance with the 2015 Act. The ICAV structure was specifically designed to be distinguishable from a trading company. As I will set out later, the changes being made to ICAV Act in this Bill are all only technical in nature.

I will now take the House through the key features of the Bill from the beginning but I hope Deputies will appreciate it is not possible to cover every single section in the detail normally required. Further detail is, therefore, set out in the explanatory memorandum published with the Bill.

The Bill contains five Parts. Part 1 consists of three sections dealing with the preliminary matters and definitions used in the Bill.

Part 2, which covers sections 4 to 41, deals with amendments to the Investment Limited Partnerships Act 1994. These amendments ensure that the same transparency and anti-money laundering and counter-terrorist financing arrangements will apply across all Irish fund vehicles in line with best international practice. There are also a number of changes to align with EU and domestic funds legislation, some typographical corrections, and corrections of cross-references.

Sections 4 and 5 are technical amendments to the 1994 Act. Section 6 amends the 1994 Act to track the language in the EU directive on alternative investment fund management and also inserts subsections to permit the establishment of umbrella funds. Section 7 amends the 1994 Act to permit a limited partner to participate on boards and committees related to an investment limited partnership. As outlined earlier, this is a clarification of the actions permitted. A limited partner taking part in the management of the partnership will lose their limited liability. Section 8 amends the 1994 Act to correct the reference to the fee prescribed under the Central Bank Act 1942, which was merely a typographical error.

Sections 9 to 11, inclusive, establish the use of an alternative foreign name and provide for related matters, and correct cross-references. Section 12 inserts an amendment to align with the requirements for records in other funds legislation. Section 13 sets out the requirements for amending a partnership agreement and the calculation of the majority of limited partners. Section 14 adds two new subsections to the Act of 1994, both related to the admission or replacement of a general partner. Section 15 relates to the naming requirements of the ILP. Sections 16 and 17 set out the procedures for correcting errors in the register, as well as the penalties for non-compliance.

Sections 18 to 22, inclusive are technical amendments to the 1994 Act. Section 23 amends the 1994 Act to allow the ILP to purchase insurance for a general partner or auditor to indemnify him or her against any liability in the event of a case of negligence or default where he or she is found not be negligent or in default. Section 24 amends the 1994 Act to ensure that if the partnership agreement provides for sanctions where a partner breaches the partnership agreement, the sanctions applicable for the failure of performance or breach will not be unenforceable solely because they are penal in nature. Section 25 amends the 1994 Act to correct a typographical error. Section 26 amends the 1994 Act to clarify the subsection being referenced. Section 27 inserts new sections into the 1994 Act to introduce beneficial ownership to ILPs and align with S.I. No. 110/2019, the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019. Section 28 amends the 1994 Act to correct a typographical error and continues to align the beneficial ownership requirements with the previously mentioned regulations. Section 29 inserts a new section into the 1994 Act covering further beneficial ownership provisions.

Section 30 amends the 1994 Act to remove the requirement for the bank to publish notice of revocation of authorisation in Iris Oifigiúil. Section 31 amends the 1994 Act by inserting the words "or depositary" after "proposed new general partner". Section 32 amends the 1994 Act to require the general partner to notify the limited partners of a direction from the bank immediately upon receipt. Section 33 corrects a typographical error in the original Act. Section 34 clarifies that there must be at least one general partner and also clarifies that the partnership is not immediately dissolved in the case of death.

Sections 35 to 36, inclusive, clarify the liabilities and duties of limited partners and include a typographical amendment to remove the requirement to be published in Iris Oifigiúil. Section 37 amends the 1994 Act by adding a new section to align indemnification provisions with the Irish Collective Asset-management Vehicles Act 2015 and the Companies Act 2014. Section 38 amends the 1994 Act to provide for a cost recovery system in respect of the bank’s role in maintaining the beneficial ownership registers. Section 39 inserts new sections, sections 46 to 59, inclusive, which relate to beneficial ownership registers including central register and associated procedures, obligations, etc.

Section 40 inserts a new Part into the 1994 Act to govern the migration of investment limited partnerships in and out of Ireland as well as their conditions of solvency. Section 41 introduces the use of sub-funds in investment limited partnerships. As outlined earlier, these sub-funds are ILPs and are structured in exactly the same way, including regulation by the Central Bank. This is line with existing investment fund vehicles, including ICAVs and common contractual funds, CCFs.

The amendments to the Irish Collective Asset-management Vehicles Act 2015 are dealt with in Part 3. Section 42 amends section 2 of the 2015 Act by adding a new definition of category 4 offence to the definitions. Section 43 adds a new section to the 2015 Act providing supplemental interpretation provisions regarding ordinary and special resolutions. Section 44 amends the 2015 Act in order that the sole object in an ICAV constitutional document aligns with the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011. Sections 45 and 46 add new sections to the 2015 Act to provide that capacity is not limited by an ICAV's instrument of incorporation, along with providing that a contract entered into outside the vires of an ICAV is still enforceable. Sections 47 and 48 amend the 2015 Act to clarify the duties of the Central Bank of Ireland following the change of name of an ICAV. Sections 49 and 50 clarify the use of a common seal and delete a subsection in order that the director of an ICAV acting on behalf of various ICAVs does not have to sign an agreement multiple times. Section 51 amends the 2015 Act to align with the Companies Act 2014 and to allow ICAVs to issue power of attorney in a similar manner to that prescribed under the Companies Act 2014.

Section 52 amends the Act of 2015 by inserting a new section to align ICAVs with the Companies Act 2014 in permitting intra-group loans or transactions. Section 53 adds a new section to the Act of 2015 which provides that an officer of an ICAV, in anticipation of apprehended proceedings, can make an application to the court to be relieved of liability in respect of the wrong concerned. Section 54 adds a new section to the 2015 Act regarding written resolutions. This will align the Act with the similar provisions in the Companies Act 2014. Section 55 amends the 2015 Act by substituting a new subsection clarifying that, where an investment company converts into an ICAV, the priority of pre-existing charges remains unchanged. Section 56 amends section 140 of the 2015 Act to correct a typographical error. Sections 57 and 58 amend the 2015 Act by aligning the Act with the provisions of the Companies Act 2014. Section 59 corrects a typographical error in the 2015 Act. Section 60 amends the 2015 Act by inserting a new subsection after section 186(3) stating that a person guilty of a category 4 offence under the Act shall be liable to a class A fine.

Part 4 deals with amendments to the Investment Funds, Companies and Miscellaneous Provisions Act 2005. These amendments provide for the establishment of a beneficial ownership register for CCFs and will bring the latter into line with the beneficial ownership obligations that apply to companies and corporate entities, as well as other investment vehicles such as unit trusts and ICAVs. Section 61 amends the 2005 Act to provide for a cost recovery system in respect of the bank’s role in maintaining the beneficial ownership registers. Section 62 amends the 2005 Act to add definitions of new terms. Section 63 inserts new sections into the 2005 Act introducing beneficial ownership to common contractual funds and aligns with the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019.

Part 5 deals with amendments to the Social Welfare Consolidation Act 2005. Section 64 amends the 2005 Act to provide for the inclusion of a registrar of beneficial ownership of investment limited partnerships; a registrar of beneficial ownership of Irish collective asset-management vehicles, credit unions and unit trusts; and a registrar of beneficial ownership of common contractual funds in the list of bodies specified in the Schedule.

I hope the detailed outline I have provided will assist Deputies in understanding the technical aspects of this legislation, along with the benefits that will arise from this new Bill. The economic impact of Covid-19 emphasises the need to progress legislation that promotes investment, job opportunities and Ireland’s competitiveness in the international financial services sector. In addition, the anti-money laundering provisions for both ILPs and CCFs contained in the Bill will give Ireland a best in class beneficial ownership framework. I look forward to hearing Deputies' contributions on this important Bill, which I commend to the House.

The Minister of State will agree this is a highly technical Bill which is pitched towards one industry with its own needs and interests. He will also agree that those needs and interests are not shared by the majority of our constituents who would benefit much more from solutions to the coming wave of mortgage arrears and increased capacity in our hospitals, rather than arcane legislation that will delight private equity asset managers. Much has been said in recent days about how time is prioritised in these Houses. Over a number of weeks, the Government has spent hours in the Dáil and Seanad progressing legislation which is not urgent, which serves a narrow range of interests and which is of benefit to very few of the people.

The ILP produce was first established under the Investment Limited Partnerships Act 1994. It was thought then that the ILP would become a popular investment vehicle for real estate investments and private equity. This Bill intends to update the existing ILP regime and make Ireland an attractive place for international investors. Amazingly, it made its way into the programme for Government rather than, for example, any real commitment to affordable housing. I am not sure if we should be amazed by this.

The funds industry regrets the fact that this Bill has become embroiled in the appointment of former Fine Gael Minister of State, Michael D'Arcy, as CEO of the Irish Association of Investment Managers three months after leaving office. Unfortunately, this was inevitable. It was strange that this legislation found its way into the programme for Government at a time of a public health emergency and with so many other pressing social issues, such as those relating to housing, childcare, health and disability services, facing our people. That this legislation made it to the front of the queue, and given the revolving door between power and industry, questions are obviously raised and impressions made. That is unfortunate and that is why lobbying legislation must be overhauled, updated and improved. Deputy Doherty and Sinn Féin will be introducing legislation to do just that in the coming days.

This Bill is extensive. An ILP is a partnership, the primary business of which is investment in financial assets such as property and shares. It is a collective investment fund consisting of one general partner who assumes unlimited liability, along with limited partners who assume assets and liabilities in proportion only to the capital they each contribute. The partnership does not have an independent legal status like a normal company. The profits are owned by the partners with each able to use tax reliefs available in their own jurisdictions. Unlike a general partner, a limited partner cannot take part in the management of a firm without taking on full liability for the debts and liabilities of the partnership.

The ILP is established as an alternative investment fund, AIF, and is regulated by the Central Bank. Given the technicalities of this legislation, as well as the small audience it seeks to please and the more pressing matters that the Dáil faces, it is strange that the Government has given it such priority. Ireland remains one of the best destinations for AIFs in Europe. In the past ten years, the number of funds domiciled here has risen by 60%, with the net assets of those funds increasing by 350%. The value of investment funds currently domiciled and administered here stands at €4.9 trillion - a figure that is almost too big to say.

This is not an industry in need of help at this critical time. Instead, we should be talking about industries hammered by Covid-19, such as hospitality and tourism, not the Irish funds industry, which is getting by just fine. We should be talking about amending legislation to ensure the eligibility of suppliers to the Covid restrictions support scheme, suppliers who are currently locked out.

Global private equity asset managers have been keen to establish European structures similar to those held in places such as the Cayman Islands for distributing profits to their European investors. This encouraged the Irish funds industry to lobby both the Central Bank and the Department of Finance to upgrade the legislation relating to limited partnerships and to achieve the Government's aim of making Ireland a global hotspot for private equity funds. The result is the Bill before us. Sinn Féin views this legislation as an unnecessary distraction and a waste of time in light of the crucial issues we face. However, we will endeavour to give it the scrutiny it deserves as we did before it lapsed in the previous Dáil.

The Bill, updated from that published last June, proposes several changes to the current regime. It allows ILPs to be set up as umbrella funds, then allows them to be divided into sub-funds which are treated individually without being liable for the debts of other sub-funds in the umbrella. This is an arrangement similar to that enjoyed by ICAVs. It seeks to expand the white list by allowing limited partners to take part on boards and committees without loss of liability.

The Bill seeks to incorporate practices from other jurisdictions aligning the ILP structure fully with the alternative investment fund managers directive and other fund structures such as ICAVs. In addition, we welcome the fact that new provisions have been added to the legislation which were not included in its previous incarnation in June 2019. Last year, in an earlier iteration of the Bill, Deputy Doherty spoke with the then Minister of State, Michael D'Arcy, around issues of beneficial ownership. We welcome the fact that section 27 will ensure these funds are covered by beneficial ownership legislation. Sections 29, 39 and 63 are similar in this regard. Sinn Féin will further scrutinise these provisions of the legislation as it progresses on Committee Stage.

We recognise that the Irish funds industry employs a significant number of people, a fact that cannot be contested. However, I would dispute the relevance of this legislation, given the other pressing challenges we face including the not-so-small issue of a global health pandemic. That the Irish funds industry has bumped itself up the list at the Department of Finance is testament to its determination and the priorities of the Government. This is a highly technical Bill but that is no reason to let it pass without scrutiny. We look forward to examining its provisions on Committee Stage.

I call Deputy Nash. I remind Members we have to suspend at 5.12 p.m. for 20 minutes for a sanitisation sos.

I do not plan to detain the House too long. I appreciate the opportunity to respond to the Minister of State's remarks and to discuss what the Bill seeks to achieve in general terms. I also appreciate that sections of the Bill have been long overdue, as well as long awaited. It is not too long ago since the media uncovered the fact that such ILP funds are not covered by European anti-money laundering law which requires the identification and registration of the real owners behind obscure and complex funds. Likewise, limited partnerships, which are separate but similar to ILPs, continue to elude anti-money laundering requirements for beneficial ownership. We have seen such funds implicated in several scandals in the UK.

It is a concern that there has been a trebling of such phantom ILP firms, an abnormality noted by the Companies Registration Office, especially given that these phantom or postbox firms do not register a principle place of business in Ireland, with this abnormality also noted directly by the Companies Registration Office. Accordingly, I welcome the measure that beneficial owners of funds managed under ILPs will have to be disclosed as part of anti-money laundering safeguarding measures.

We must be careful, however, regarding access to the central register of beneficial ownership. As we have seen time and again in this country, rules are one thing but enforcement is another. We know only too well where turning a blind eye here and applying a light touch there can bring our society and economy.

It is essential that the mechanisms enabling access to the register are truly accessible and comprehensible. It must not be restricted by price or means to those with an inside knowledge of the industry. There must be absolute transparency with regard to information pertaining to the ownership of these funds and those who have a beneficial interest. For the sake of the public interest, such details must be readily accessible, not just to financial regulators but also to the wider public. Only then can we truly ensure confidence in the nature and activity of these funds, which, to be frank, do not enjoy widespread public understanding.

Despite this much-needed and long overdue safeguard, I am still concerned at the way in which some of the murkier financial instruments in this industry operate. They can be opaque, to say the least. They are literally designed to be as impenetrable as possible in order to attract little real attention. It is my understanding that unlike real high street businesses and many of the important international institutions that are big industry names and employ tens of thousands here, many, if not all, of these investment limited partnership funds are under no obligation to publish financial accounts or statements. Meanwhile their individual partners are taxable in their resident jurisdictions. Unsurprisingly, many of these are in low-tax jurisdictions. Again we could stand accused of standing over legal tax avoidance for those who are skilled enough and wealthy enough to afford very creative and skilled accountants and tax advisers.

As we saw with last month's sudden drop in corporation tax receipts, which now account for one fifth of all of our tax revenues, we have become over-reliant on a handful of multinational corporations, many of which operate in the financial services sector. This Bill seeks to intensify the share of employment that is reliant on highly mobile capital and to make Ireland more attractive to new kinds of funds and investments. We value the investment made in Ireland by firms such as State Street's international fund services company, located in my home town of Drogheda. The broader financial services sector accounts for tens of thousands of quality jobs held by skilled professionals throughout the country. The fact that many of these companies are located outside Dublin is important. They have driven regional jobs growth. The strategy for the industry worked on several years ago by the then Minister of State at the Department of Finance, Deputy Eoghan Murphy, and the former Minister of State, Michael D'Arcy, was imbued with a focus on attracting financial services firms to invest in the regions and to develop second-site solutions outside Dublin to ensure the growth they bring is shared across our State.

The uptick in remote working and the change in attitude and culture against being present in the office will present challenges to IDA Ireland where our future approach to foreign direct investment is concerned. I know that our financial services sector and the funds management industry generally are susceptible to that issue. I know that the Minister and IDA Ireland will be very conscious of this when planning strategies.

I return briefly to the very many kinds of opaque financial instruments developed in recent times that are used to move billions of euros in and out of states at the push of a button, often attracting little tax liability in this jurisdiction or, indeed, any other. A very live and important global debate on international tax justice is ongoing. Christian Aid Ireland and other important development NGOs have led this debate. We should all note the recent decision of the UN Committee on the Rights of the Child to examine the impact of Ireland's international tax policy on the ability of countries in the global south to raise revenue, invest in their states and fulfil their basic social and human rights obligations. Our actions or inaction in this area have implications not just for Ireland but for states and citizens across the globe. Our policies ought to be mindful of this fact. Too often we are not and we fall short of the standards to which we should hold ourselves. I urge the all the Ministers and senior officials in the Department to engage openly and frankly with this review and to ensure that Ireland does the right thing and is not left on the wrong side of history or justice on this front.

I am glad to have the opportunity to contribute to this debate. I truly welcome the Minister of State's very detailed analysis of this legislation. Many of us have been waiting quite some time for it to come back before the House. It is a shame that it fell in the previous Oireachtas, but we have finally got here. There are a few points I wish to make and a few concerns I would like to raise which are very similar to those raised by my colleague, Deputy Nash.

I was very taken by the remarks of my dear friend opposite, which were somewhat dismissive of this Bill and the industry to which it pertains. I must say, I was exceptionally disappointed to see someone I really respect and with whom I work closely read out the script that was given to him. No Sinn Féin members of the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach were prepared to come in, but Deputy Nash has taken potshots at an industry that employs 16,000 people and contributes just short of €1 billion to the Exchequer. The Deputy may dismiss this legislation, but the gains to the Exchequer and the employment it will create will allow for more affordable housing and more investment in public health. We should not blacken the people who work in the financial sector with the implication that we should not be discussing legislation like this. This legislation allows us to align ourselves with what are simply norms throughout the European Union. We are less than 50 days away from the end of the Brexit transition period. The economic impact of Brexit will put what we have experienced during this pandemic in the ha'penny place. In that context, it is the responsibility of this Government and every responsible party in this Parliament to ensure that legislation is provided so we can take every opportunity to protect an Irish economy that will be facing into global decline not of our making. We must insulate our economy and provide new opportunities and incentives for growing industries.

Let us not forget that the fund industry the Deputy dismisses is the largest employer in the Irish Financial Services Centre. What do we say to the people who have those roles, who are paying their mortgages and paying the taxes that pay for so much in our society? This is legislation that many Members have been awaiting for quite some time. We never got to examine it in the Upper House during the lifetime of the previous Oireachtas. It is deeply technical in nature. We will go through these technicalities with the Ministers in due course in meetings of the Select Committee on Finance, Public Expenditure and Reform, and Taoiseach, but the technicalities which the Minister has listed in such detail are all quite straightforward. They will enable us to insulate our economy and our society against the threats that are facing us. The Bill will update our regulatory standards. Not only will it make our regulations more robust, it will also enhance the transparency to which Deputy Nash so rightly referred. The Bill does not include any tax provisions. It will not change anyone's income tax, but it will ensure that we get increased resources and opportunities.

Let us go through the numbers again. This can potentially create 1,400 jobs instantly, as well as a return to the Exchequer of €187 million. That should not be dismissed or put down the pecking order when it can be done in a very short debate here this evening. We will come back to it again next week and then address it in the Committee on Finance, Public Expenditure and Reform, and Taoiseach. In a matter of weeks we will have a very simple piece of legislation that will provide for a sector whose growth will benefit the rest of our society. I take umbrage with these comments, and I am very disappointed that they come from Deputy Nash of all people, as we are working very closely and warmly on the very many threats that concern the Joint Committee on European Union Affairs, which affect so many people who we consider to be so important.

Given the importance of the Bill and its financial implications, it is important to note that it has been extensively studied and examined as far back as 2015. We cannot wait any longer or kick it to the back of the legislative queue. We can move this forward, reap the opportunities and, crucially, implement the reforms. The Central Bank has examined this Bill alone and with Irish funds and many other bodies. Some five years of work have gone into this Bill, as have many protections and many years of oversight. Allowing its passage through this House in due course will ensure that the funds industry and the general financial services industry on which we will be so reliant in the coming years will have those opportunities.

I appreciate that we are coming towards a sanitation break. I conclude by thanking the Minister of State, commending the Bill and looking forward to examining it with the Minister of State at the Select Committee on Finance, Public Expenditure and Reform, and Taoiseach.

I thank Deputies Ó Murchú, Redmond and Nash for their contributions. While I accept the point that this is a technical Bill, it deals with many significant issues. On beneficial ownership and who will be the ultimate owner, the provisions in this Bill strive to achieve the objectives mentioned. These amendments will ensure that the highest international transparency standards apply, including the EU anti-money laundering framework and that is why we are insisting on PPS numbers for any Irish resident. A person who is not from Ireland and wants to be considered for beneficial ownership will have to produce a passport and prove their identify to the satisfaction of the Central Bank.

Deputies also asked why we are prioritising this legislation. It has been on the Statute Book for some time. The Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach supported the need for the Bill to proceed into the Oireachtas without scrutiny. In other words, the committee was happy for it to not undergo legislative scrutiny. Essentially, the Bill seeks to create investment, employment and revenue to the Irish economy, which is good for everybody.

In the context of the specific issues that have been raised, given the shortage of time, I will be happy to respond to them on Committee Stage. I again commend the Bill to the House.

Question put and agreed to.