In regard to section 5 I was saying, before the Minister went out to do his duty — I know from the smile on his face that they won in the other House with a comfortable majority — that I have considerable problems with the section. It is nothing to do with the actual intention behind section 5 but the actual drafting of it that gives rise to difficulty. In a number of places the Minister lays down that certain things are to be in the statement or prospectus, and that is fair enough. He does it, for example, in subsection (4) (a), (b), (c), (d) and (e). However, when he comes to (f) there is a statement which is one which is not drafted in the Bill but is a statement which the Minister is satisfied is appropriate regarding the risk involved in investing in an unquoted company. The Minister will be making a value judgment there. He will be saying, "Is this an adequate warning or not?" It is possible for the Minister to make a mistake. It is possible for somebody to say, "The Minister did not warn me adequately with regard to this." If the Minister makes a mistake it is possible that somebody would have a cause of action against him in negligence. I will come later to what the Minister's answer to that might be. If you look at (vi) you get the same thing.
The prospectus must also contain a statement which the Minister considers sufficient regarding the voting rights, duties and disposals arriving by reason of the shares issued to a fund being held by such a nominee, and certain other matters. That is a value judgment again that the Minister is making. He is going to decide what kind of statement is adequate. If somebody loses his money afterwards he might be able to say the Minister, "Well, you did not do your job properly. I did not realise that they were the kind of voting rights that I was getting and I do not think you explained it adequately." In VII it says a statement which the Minister considers to be adequate regarding any agreement or arrangement made or proposed to be made by or on behalf of the trustee of or the person managing the scheme for the transfer of shares, and various other things like that which we will not go into, is again a value judgment by the Minister. In (ix) a statement which the Minister considers adequate regarding the nature of the investments it is intended to make through such fund together with any amount which is specified in the relevant scheme as being the maximum or minimum which may be invested through the fund in any individual investment. Again, there is a value judgment element involved in that. Number (x), which I will not go into, does exactly the same thing. Subsection (5) again has an opinion of the Minister as being a focal point of its core and centre.
Naturally one would expect the Minister to protect himself in some way against such an eventuality. I do not see where the Minister has adequately protected himself against the eventuality. First, I do not think he can protect himself fully against it. I do not see where he has even attempted to do so in the Bill. He is proposing that a statement should go in saying that no liability should attach to the Minister. But the Act does not provide that. That is just a statement that could go in. The very fact that a statement goes in to that effect does not mean that statement has effect. There is a further statement to be published in the papers that no right of release is given alone by reason of the Minister having given approval under the section.
There is nothing in the Bill which says that the Minister will not be responsible for any wrong decisions which he makes as a result of these opinions. In my opinion it is hardly even possible to draft such a section. I think if the Minister is negligent, no matter what the law says, the common law will override the statute law and the Minister will be held responsible. Leaving that aside for the moment, I do not see where the legislation adequately deals with that problem at all. I would be anxious for the Minister to indicate where it does.