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Seanad Éireann debate -
Wednesday, 14 Dec 1977

Vol. 87 No. 10

Nítrigin Éireann Teoranta Bill, 1977: Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

The purpose of the Bill is to increase the limit imposed by the Nítrigin Éireann Teoranta Acts, 1963 to 1975, on the amount that NET may borrow under Ministerial guarantee. It is further proposed to widen the scope of the ministerial guarantee powers to permit the guaranteeing of the due payment of commission and incidental expenses arising in connection with loan guarantees. In addition, the opportunity is being taken in the Bill to introduce legislative controls over the remuneration of the chief officer of the company and over the superannuation schemes operating in the company.

In the Bill, the provision dealing with the raising of the limit on the guaranteeing by the Minister for Industry, Commerce and Energy of borrowing by the company from the present limit of £30 million to a new one of £100 million is by far the most important. This particular provision is necessary to permit the company to complete the financing of its ammonia/ urea project at Marino Point, Cork Harbour. In view of the substantial increase being proposed in the guarantee limit, I think it only right that the House should be aware of developments over the last two years which have made this increase necessary.

As the House is aware the Nítrigin Éireann Teoranta Act, 1975 was enacted specifically for the purpose of assisting the company to finance its Marina Point project. The Act increased the authorised share capital of NET from £7.5 million to a new limit of £27.5 million, it provided that the Minister for Finance could take shares in the company up to a limit of £22.5 million, and that he could take up additional shares in excess of that amount up to the new authorised share capital limit of £27.5 million with prior Government approval and it increased the limit on the guaranteeing by the Minister for Industry, Commerce and Energy of borrowings by the company from £2 million, to the present statutory limit of £30 million.

Based on a project cost of £63.5 million in mid-1975 it was considered that these provisions would be more than adequate to complete the financing of Marino Point. At that time it was intended that the project would be funded by way of £15 million Government equity, £5 million IDA grant and the balance of £43.5 million from borrowings. However, two significant developments since then, namely, substantial increases in the project cost and demands by the different lending institutions for 100 per cent guarantees for all borrowings, have upset seriously the company's best calculations and have brought about the present situation where further legislation is essential to enable the company to complete the financing of the project.

Firstly, I will deal with the question of the project cost. The latest estimate from NET suggests that total expenditure could be in the region of £90 million. This represents an increase of about £27 million on the mid-1975 estimate. The company has attributed almost 45 per cent of this increase to the continued upward escalation of material and labour costs, over 30 per cent to sterling devaluation and additional interest charges, and almost 25 per cent to additional project requirements which had not been budgeted for in the mid-1975 estimate.

It is, I consider, a matter of regret and of grave concern—and the Minister has made his views on this clear to representatives of the company— that costs have spiralled in this manner during the construction of the project. It must be conceded, however, that expenditure on the project has been incurred during a period when inflation reached heights never experienced before in these islands. It was, in fact, precisely because of these massive inflationary trends that NET were unable, despite their best efforts, to arrange a fixed price contract and were obliged to operate on a basis of reimbursable costs for the major proportion of the contract for the project.

The second development which has made it essential that the increased guarantee limit now sought be provided is the demand by all lenders that total borrowings by NET in respect of the Marino Point project be fully secured. This is something that the company did not foresee prior to the enactment of the 1975 amending legislation. At that time it had been anticipated that the institutional lenders, such as the European Investment Bank, who were participating in the funding of the project would require partial Ministerial guarantees for borrowings but that the other source of loan finance, a consortium of banks, would not require any such guarantees. However, it has since become clear following protracted negotiations between NET and the lenders that the institutional lenders must have full guarantees and that the bank consortium wishing to be treated on a par with all other lenders would require similar guarantees. In addition, due to the financing of earlier capital projects at NET's Arklow factory by way of short term borrowings over a number of years, an unfavourable imbalance between current assets and current liabilities had developed in the company's accounts; because of this it was considered prudent to rearrange these borrowings as medium-term borrowings through the bank consortium. The rescheduled borrowings which amount to almost £10 million will also require guarantees. Overall, therefore, total borrowings by the company in the region of £80 million, representing about £70 million required to complete the Marino Point financing and the £10 million adjustment of Arklow borrowings, will have to be guaranteed by the Minister for Industry, Commerce and Energy. In proposing a new statutory loan guarantee limit of £100 million, I considered it prudent that a realistic limit be provided to cover adequately the company's immediate requirements and possible requirements in the future.

I want to stress at this point that the attitude of the lenders in no way reflects any lack of confidence on their part in NET or in the Marino Point project. It simply illustrates the desire on the part of the different lenders involved in the overall financing package to be treated equally by NET and, since the institutional lenders must have full guarantees, it is not at all unreasonable for the bank consortium to seek the same facility. There is, however, no doubt that the company do retain the full confidence of their bankers with regard to their ability to repay all borrowings. Under the loan agreements entered into by the company all borrowings have to be repaid before the end of 1984. In fact, on the basis of their latest financial projections the company would have no difficulty in repaying these borrowings at an earlier date.

In addition to proposing a new statutory loan guarantee limit, I am taking the opportunity at this stage of extending slightly the scope of the powers of the Minister for Industry, Commerce and Energy with regard to guarantees. In section 3 it is proposed that the Minister be empowered to guarantee the due payment by NET of commission and incidental expenses arising in connection with moneys borrowed by the company. In practice the amounts of commission or other expenses that might be payable by the company would represent a very minute fraction of the actual amount being borrowed. Recent experience suggests, in fact, that such additional payments would, if payable, amount to not more than a ½ per cent of the total amount being borrowed. Nevertheless, the absence of the power to guarantee this type of payment did create difficulties for NET when completing a recent guarantee agreement and the amendment proposed in section 3 will get over this problem and bring the NET legislation into line in this respect with that of some other State companies.

The types of controls proposed in sections 4 and 5 in relation to the remuneration of the chief officer of the company and to superannuation schemes covering employees of the company are now being inserted in relevant statutes governing the different State companies as the opportunity arises. The power to control the chief officer's salary and to regulate superannuation schemes is already contained in the Memorandum and Articles of Association of the company; so in fact these new provisions will not affect the controls operating at present but will merely give them a statutory backing.

Now that I have dealt with the reasons which have made it necessary to introduce this Bill, I should like to refer to the Marino Point project itself. This vast petrochemical complex, which will be using as feedstock some of the Kinsale Head natural gas, will in broad terms have an output sufficient to meet the nitrogenous fertiliser requirements of Irish agriculture until at least the mid-eighties. This level of output will undoubtedly play a significant role in the continuing expansion of the agricultural industry and will, for the first time, ensure the availability of adequate nitrogen supplies to our farmers. In the early years of production and until the home market demand for nitrogen expands sufficiently to absorb the total output, surplus production will be disposed of on foreign markets through marketing arrangements already completed.

The actual construction of the Marino Point plans is now at an advanced stage. There have been some disruptions in the construction programme due to intermittent industrial disputes at the site but generally the rate of progress has been satisfactory. At this stage and due to the size and complexity of this undertaking it is difficult to say precisely when the plants will be ready to come on stream. It seems reasonable, however, to expect that the ammonia plant could be ready to commence production by about mid-summer 1978, followed by the urea plant within perhaps a further two months. This time scale should tie-in with the landing of the first natural gas supplies which it is expected will arrive at about that time.

NET's new plant will undoubtedly have a revitalising effect on our fertiliser industry as a whole and this is to be welcomed. There is little doubt that the industry has had more than its share of problems over the last couple of years and some of these are still with us. Last year, in particular, was an exceptionally difficult one for Irish firms in the business. Yet despite this situation companies have been able to maintain the same level of employment during the past year. The latest expectations are that the overall market situation will improve in 1978. The NET project will obviously help in this regard as the availability of home-produced nitrogen based on an indigenous raw material will from the middle of next year onwards be of benefit not alone to NET but also to the different companies involved in the production of NPK compound fertilisers in this country. Therefore, the NET project quite apart from generating an additional 500 jobs in the industry and in ancillary servicing industries will help also to secure the future of existing employment in the Irish fertiliser industry generally.

I confidently recommend the Bill for approval.

I happily accept the Parliamentary Secretary's recommendation of the Bill and I shall not delay the House on it. As it seems to be a Bill essentially of technical character, it is easier for me to make one short speech in which I could make my various points rather than to make a long speech on Committee Stage. The main purpose of this Bill is to extend the ministerial guaranteeing power and to take the opportunity presented by that requirement to make another amendment with regard to the chief executive's remuneration. I want to concentrate my remarks on the ministerial guaranteeing power because I sometimes feel that in addressing this House on technical and legal measures people think I am out of my mind and that what I have to say is not relevant to reality. I wish to draw the attention of the House to the reality of the defect in the existing ministerial guaranteeing power which the Parliamentary Secretary has noted with regard to the borrowing ability of this important national industry and the importance, therefore, of having the guarantee powers in the Bills as we pass them in proper form covering what they should cover and that every technical point that has to be made with regard to them should be listened to. Points which I had to make on the guaranteeing power of the Minister for Finance on Bord Bainne were not listened to. I just hope that what I have to say on this Bill will be listened to.

First, for me it will be the last time I will agree to a Bill which amends a section in the Principal Act as is the case in respect of two sections of this Bill which has been amended already in the 1970 Act by three sections and one Schedule. It was amended in the 1975 Act by another section which is proposed to be amended now by two further sections in this Bill, sections 2 and 3. You have a gobbledegook as a result of it all, an inability for anybody who is not invited to waste time to know what the ministerial guaranteeing powers are. It could all be set out in one table which would be the end of the two sections incorporating the effect of the amendments on the existing legislation so that in one document— the 1977 Nítrigin Éireann Bill—one would find out what the guaranteeing powers of the Minister for Industry. Commerce and Energy were. That could be important and would make it easier for us to understand.

This becomes obvious with my second point, which is to ask the Parliamentary Secretary why it has not been found necessary in this Bill to make an amendment in regard to the guaranteeing power of the same Minister under the Industrial Credit Act which we recently made, that is to say, in which we amended the manner in which the moneys borrowed in a currency other than our own currency was to be expressed. The Minister introduced and the Oireachtas passed an amendment to the Industrial Credit Bill which we debated. The previous provision was that it was the par values from time to time fixed by the IMF which determined the liability under the guarantee but we changed that to the exchange rates prevailing at the time of the transaction. If you had to go through the labours of putting together the effect of all the different sections of this code you would discover that this code is in the unamended condition that the Industrial Credit code was in before we amended it, in other words, that the provision with regard to foreign borrowings of Nítrigin Éireann or what the Industrial Credit Company borrowings were before we amended the situation, are different from the Industrial Credit Company. I am entitled to ask why. I am entitled to know if we have now in relation to this an adequate guarantee of foreign borrowings why was it inadequate in the case of guarantees of the Industrial Credit Company and adequate in the case of Nítrigin Éireann Teoranta. No doubt there is an answer, but if there is not an answer there ought to be an amendment. The two should be brought together. I understand the situation to be that these par values are now not strictly relevant, but that is the way it is under the code which governs Nítrigin Éireann Teoranta. There is a consortium of lenders and I suspect the consortium must include some foreign banks as well as home lenders.

My third point on this is to make a suggestion with regard to this and other guarantee sections which arise under the different codes where these ministerial guarantees are regarded as important. I agree with the Parliamentary Secretary that the fact that the consortium looked for ministerial guarantees in no way suggests a lack of confidence in the company concerned. They were in a sense forced to look for guarantees in order that they might be of equal rank and security with the European Investment Bank who, as anticipated, were looking for guarantees. Where you have that situation, where you have that in this particular Nítrigin Éireann code and you had it in the industrial credit code and in the Industrial Development Bill I would suggest that it would be found to be a great aid in facilitating the completion of these financial transactions if there was a provision in the guarantee section to the effect that a certificate by the Minister that the particular guarantee he was giving did not exceed or could not exceed the total amount he was capable of guaranteeing under the Act.

I know he makes a representation to that effect in most of these cases. The documents of lending recite that in fact the guarantee in question does not exceed, but if some difficult lender raised the point, it would be of considerable doubt as to whether that representation would save the situation of a lender who might be a key lender where in fact the representation was erroneous, where somebody made a mistake at some point and where perhaps a later guarantee shoved him over the limit. A question would arise then as to the ranking of the guarantees within the limit.

It is all very well to say you could come in here and look for extensions of powers and all that, but you could get a captious and difficult crew in this assembly some day. It cannot be assumed that the House will be as docile always as it is today. It cannot be assumed that the Legislature will always nod to the beck of the Executive and do what they are told. The thing should be got right particularly if it is a lender who has just closed down a factory employing 1,400 people. There would be very little sympathy for him in that situation. His adviser at the time of the loan would tell him he might get into that situation and therefore would have to rely on his strict legal rights. I would suggest that for the consideration of the Minister in his code and of all the other Ministers that this type of certificate which would put the lender in the position that the Minister would be estopped in law from arguing that the lender was in excess of his statutory limit ought to be included. So much for the guarantee matter.

With regard to section 4—this is Devlin I presume popping his head up here as elsewhere, and I am dead against Devlin on this matter. I am not talking, though I have to, about Nítrigin Éireann Teoranta, simply. I am talking about all the other bodies involved in this. What we are talking about here is placing limitations on the people whom the Minister has chosen to look after the affairs of these companies as to what he can pay to get the best skill to look after the considerable capital involved. In my view this type of limitation ought not to be in this Bill or in any other Bill where there is substantial capital involved. The best man, no matter what he may cost, should be engaged. It is penny wise and pound foolish to be cheeseparing in this way. Apart from anything else I do not see what I would have expected. What we say here is rather like what a shareholder would say to his wife in his sittingroom with regard to his company.

There is no provision in this Bill which I would have thought would be required that the articles of association would be amended so as to provide that within the constitution of the company there would be this restriction on the ability of the company to pay this thing. This brings me and entitles me I think therefore to refer to the last point, that is, with regard to a provision in the statute governing Nítrigin Éireann Teoranta which exists in a lot of these statutes governing these bodies that we incorporate which I think is both outrageous and contrary to the Constitution. I am trying to win as much sympathy as I possibly can with the least possible interference with the human being's rights. It is provided in the Schedule to the original Act that if a director of a company is nominated as a candidate —he has not to be elected—for either House of the Oireachtas he should then cease to be director of the company.

Somebody listened to me sometime before and amended an Act on this. There is one odd thing about nominations to the Seanad. Nobody asked my consent to the nomination of me to the Seanad. Perhaps I consented by the exercise of my body and carefully distributed portions of my mind in the business of getting elected, but there was no formal consent to my nomination. If, say, four fellows in the Oireachtas wished to get rid of somebody on a public board there is nothing to stop them nominating him to the Seanad even though he has no chance of being elected. Therefore, this provision is bad and should not be in this code or in any other code. There have been serious and embarrassing cases to my knowledge in respect of other companies. The provision excludes not only a director of a company but an officer or servant. This means that if somebody is employed in any one of our public boards that where this provision remains he would have to vacate his job in the event of being nominated for election to either House of the Oireachtas. The opportunity in this Bill with regard to the chief executive's remuneration was used wrongly but we should avail of the opportunity now of getting rid of this other provision.

I should like to thank Senator FitzGerald for his comments and for his welcome for the Bill. I would certainly agree with him that the Bill is a very technical one. Sections 2, 3 and 4 in particular amend sections of the Principal Act. I explained at the outset the reasons for the increase in the borrowings to a limit of £100 million and I think Senator FitzGerald accepted these reasons. The main reason was, first, to enable the Marino Point project to go ahead and finish. The cost of the project had increased from £63.5 million which was the estimate in 1975 to a figure now in the region of £90 million. In addition the various lenders who were providing something in the region of £70 million in borrowing wanted and, as he pointed out rightly so, assurances that they would get full guarantees for all moneys lent.

The other points which the Senator made about the guarantees are general points but they are mostly points which are for Ministers other than my own Minister. They are for my own Minister but also, I think the Senator would agree, for the Minister for Finance. The point about currency changes is a valid point, too. The Industrial Credit Bill was drafted after the NET Bill. However, the sort of provision that the Senator has urged should be in this Bill as in the Industrial Credit Bill is provided for already in the individual agreements which NET have with the various lenders. I understand that this is the case.

Was that within his authority? Perhaps I should not bother the Parliamentary Secretary with that now.

The Senator spoke about Devlin and I do not think we should be commenting here on whether Devlin was right or wrong. It is provided in this Bill that the remuneration to the chief officer of the company and also superannuation schemes covering company employees should be controlled. That is provided for already in the Articles of Association. They provide for ministerial control. In order to provide for the eventuality where the chief executive might be a manager or general manager it was considered best to include a section which would apply to the chief officer of the company irrespective of the title which he would have within the company and whether he was a board member. The power to control this is being brought into being in the different State companies. We have a NET Bill before us and it was considered necessary and right that this should be done. It is also being done as different legislation to cover State companies is being brought before the Houses of the Oireachtas. I trust the Bill will go ahead to Committee Stage.

Question put and agreed to.
Agreed to take remaining Stages today.
Bill put through Committee, reported without amendment, received for final consideration and passed.
Business suspended at 6 p.m. and resumed at 7 p.m.
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