I move amendment No. 1:
In page 9, line 5, after "of" to insert "financial and non-financial"
I welcome the Bill and the aim behind it to put a stop to, or draw more attention to, crimes that are of a more privileged financial nature. It is essential that these crimes are properly investigated and prosecuted in Ireland. I want to take this opportunity to voice my support for the establishment of the corporate enforcement authority. With this support in mind, the amendments I have tabled seek to strengthen the remit and functions of the authority and allow it the best chance of meeting its aims. To this end, amendment No. 1 is very simple. It looks to insert the concept of non-financial reporting explicitly into the text of the Bill. The amendment would grant the authority the ability to enforce non-financial obligations, standards and procedures now or at any time the Minister considers appropriate.
In July, the House passed the Gender Pay Gap Information Act. The corporate enforcement authority should be empowered to ensure company directors and their shareholders are held responsible for the standards set out in that Bill. I also believe that making non-financial oversight explicitly part of the authority's functions would future-proof the authority for forthcoming legislation.
As the Minister of State is aware, the Companies (Emission Reporting) Bill 2021 has passed Second Stage. Under section 10 of that Bill, should an offence be committed by a company director, manager, secretary or other officer of the body corporate in their emissions reporting they would be prosecuted. With such legislation in mind, the amendment looks to ensure the authority can be proactive rather than reactive in the upholding of non-financial standards and obligations of the body corporate.
With regard to this amendment, I have spoken in this Chamber on multiple occasions about the use of non-disclosure agreements, NDAs, within various sectors of our society. As I am sure the Minister of State is aware, NDAs prevent the sharing of information that companies deem confidential. Originally, they were devised to maintain company and sectoral trade secrets but, following the #MeToo movement, the full extent to which NDAs have been used to silence victims of sexual assault, harassment and bullying has emerged. The reason I bring this up in the context of the corporate enforcement authority is that these NDAs are often used by company directors and those in positions of authority in companies to silence victims of sexual assault or harassment. They use them to stop victims of such abuses from speaking out and to treat such abuses as if they were trade secrets. The corporate enforcement authority has an obligation to examine the use of NDAs in the State and to audit the payments companies are making under the guise of NDAs.
To follow on from that point, I will briefly state that amendment No. 2 relates to this amendment. I am disappointed that it has been ruled out of order. The purpose of amendment No. 2 was to amend the composition of the authority's membership in order that it would comprise no less than two and no more than five members. This was ruled out of order because my second amendment was in large part a follow-up to my first. It is an amendment which aims to be proactive in the context of future legislation which may come under the remit of the authority. The amendment would also have facilitated the authority's enforcement of non-financial obligations, standards and procedures now and in the future. I am aware that the Minister of State addressed this point regarding expanding the membership on Second Stage, but I still do not see the logic in restraining ourselves in the investigation of corporate crimes. The Minister of State noted, for example, that increasing the authority's membership to three would give a staff to member ratio of 20:1, a figure he noted as being top-heavy. However, who is to say that we will not also need to expand the staffing of the authority in the future?
I am also aware that, when this matter was raised in the Dáil, the Minister of State noted how the three members would be given scope in the areas of investigation, prosecution, supervision and advocacy with clear lines of responsibility. As I have stated already today, however, the scope of corporate crime is constantly changing. There must be a level of flexibility and capacity in the remit of the authority's members to address this. What are often known as white-collar crimes - which is a term I do not really like - are more accurately just the crimes of those in a more privileged position. This is true whether financial or otherwise. The Government now has the opportunity to establish this new authority and to hold such criminals to account. I have already cited the possibility of the authority maintaining standards and obligations of the body corporate with regard to the Gender Pay Gap Information Act 2021 and any forthcoming legislation on emissions reporting but we are all well aware that the financial services industry is only going to grow in the coming years with the further expansion of the fintech and crypto-finance sectors. To work effectively, the authority must grow to meet these demands. The only way to do this is by appointing experts to top positions within the authority. That means increasing the membership capacity.
