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Select Committee on Enterprise and Economic Strategy debate -
Tuesday, 8 Apr 1997

SECTION 8.

I move amendment No. 7:

In page 17, between lines 21 and 22, to insert the following subsection:

(2) Within three months of the date on which he received an application under subsection (1), the Registrar shall either notify the applicant society of his decision on the application or require the applicant society to supply to him such additional information as he considers necessary to enable him to reach a decision and, where the Registrar requires the provision of such additional information, he shall notify the applicant society of his decision on the application not later than six months from the date of receipt of the application.".

Is amendment No. 7 grouped with amendment No. 10?

No. We will take amendment No. 10 separately.

Deputy O'Keeffe's amendment is essentially about imposing a deadline on the registrar. I sought to include a not dissimilar amendment in the Bill in discussion with the parliamentary draftsman. I was advised, however, that such a time limit as Deputy O'Keeffe suggests, would not be appropriate in this part of the Bill. The point was made to me that time limits were appropriate where the registrar was discharging administrative functions. However, where the registrar was discharging a judicial function — the essential distinction we seek to make here is between administrative and judicial — the parliamentary draftsman, supported by the Attorney General's office, advised that time limits should not be inserted. They refer to the fact that, as a general principle, the courts are given a wide latitude to reach their decisions without artificial limits being imposed.

In the case of this section, what is involved is the registrar deciding whether a separate corporate entity should be established. The view of the parliamentary draftsman was that this was a judicial function of the registrar and a time limit on his decision in this case would not be appropriate. I regret I cannot accept the amendment, although I had a similar view. We submitted something to the parliamentary draftsman's office but his view was that a distinction must be drawn between discharging administrative and judicial functions.

Is the fact that it is open ended not the weakness in what we are doing? There is no time limit there. It is unfair to the client, person or persons.

One could say the same thing about the courts. If one were in a disrespectful frame of mind one could say that is the way it seems at times. At the same time, however, the convention is that one ought not impose a time guillotine on the courts. Part of the Government decision in approving the text of the Bill was that additional resources would be provided to support the work of the office of the registrar. I sincerely hope and believe — knowing the present occupant of the post — that these functions will be discharged conscientiously. The advice I have is that to circumscribe it, in terms of trying to put in a deadline, would not be accepted.

Is there any right to appeal, or right to bring the case forward?

The right to appeal is enshrined in different sections. The Deputy is echoing a point made by some credit unions who would like to see as speedy as possible a return of exchange of functions with the office of the registrar.

My amendment is reasonable. I cannot question the Minister's legal opinion because I am not a legal person. My amendment provides that the registrar shall notify the applicant society of his decision on the application not later than six months from the date of receipt of the application.

The amendment is being rejected not on that basis but on the principled grounds that where the Registrar is discharging a judicial function it may not be circumscribed. It is perfectly open to the person, the union or the other party to go to court to require the Registrar to make a decision but I sincerely hope that would be neither necessary nor envisaged.

Under the Central Bank Act there is a first line of appeal to the Minister.

The merit of this structure is that the Registrar for Friendly Societies and his office have acquired a great deal of experience, expertise and familiarity in dealing with credit unions. The Irish League of Credit Unions will testify that, by and large, there is a good relationship between it and its constituent members and the present occupant of the office. If there was a case of dereliction of duty or undue procrastination it is open to people to seek relief in the courts and to require the registrar to make a decision.

Is the Deputy pressing the amendment?

I do not want to because we would lose the vote.

You should not anticipate that.

Could the Minister re-examine this before Report Stage as he has done with other issues? The amendment is reasonable and is for protection purposes. I am not critical of the Registrar for Friendly Societies but he might not be interested and so push the case aside.

We are entering the speculative area now.

Two points were brought to my attention. First, it was said the case could be brought to court but that would involve voluntary groups employing barristers, etc., with all the related costs. Second, the Minister made a distinction between the judicial and administrative role of the Registrar for Friendly Societies — could he clarify that?

In the circumstances envisaged here, the Registrar would be seized of the matter in his capacity where he discharges a quasi-judicial function. The Bill contains a time limit and I have changed it arising from representations from the league in respect of administrative matters. If a union is requested to get the approval of the Registrar for some matter —for instance, to change its rules or to offer new services —there is a requirement on the Registrar similar to the one for which Deputy O'Keeffe is arguing. The distinction is that the Deputy is seeking to impose on the Registrar a time limit in respect of when he is sitting in his capacity as a judicial person. There is no precedent for that and it is not done in the courts.

I will return to this point on another of his amendments, where he seeks to change the administrative level of the court to the District Court. My answer to that amendment is that the Registrar is considered to have that status or stature when making decisions in his judicial capacity, therefore appeal may not lie to the District Court, it must be to a higher court. Similarly, the Registrar is sitting in a judicial capacity in this case and there is no precedent to impose on the courts a limit within which they must dispose of this issue.

Let us deal with that amendment at the right time.

We will be setting a dangerous precedent if we start discussing an amendment before we reach it.

I was merely adducing it as evidence of the Registrar sitting in a judicial capacity. As to this amendment, my legal advice is that I may not impose a time limit if a registrar is sitting in his judicial capacity as distinct from when he is dealing with administrative matters.

On the amendment to change "court" to "District Court", is the Minister saying the Registrar has a discretion as to the correct court? Is that why the Bill mentions "court" rather than "High Court", "District Court", etc.?

The Registrar is regarded as having the same status as the District Court when seized of a matter judicially and, therefore, if one wants to appeal from his decision, one must appeal to the next tier of court.

I am not satisfied, although I fully recognise the functions and importance of the Registrar of Friendly Societies. I will not press the amendments but it is not unreasonable to ask the Minister to look at it again. We have found weaknesses in other parts of the Bill and there may be a way around this problem before Report Stage.

I agree to look at the matter again but I expect Deputy O'Keeffe will put this formula to me continuously as we go through this lengthy Bill. I will re-examine those matters with a view to taking his points on board but in this case I will re-examine this point with the despairing view that I will not be able meet it.

I do not despair.

Amendment, by leave, withdrawn.

Amendments Nos. 8 and 9 are related and may be taken together by agreement.

I move amendment No. 8:

In page 17, subsection (3), line 28, before "Court" to insert "District".

I would like to hear the Minister before I speak.

Deputy O'Keeffe's amendments seek to make the District Court the appropriate court of appeal for refusals by the Registrar to register a society as a credit union. This is another issue which has been discussed at some length with the parliamentary draftsman. The joint view of his office and the office of the Attorney General is that, because the Registrar is exercising a judicial function in section 8, he effectively has the status of a District Court for that purpose. Despite the fact that the corresponding section of the 1966 Act permits such decisions to be appealed to the District Court, the legal advice now available to me is that the High Court is the appropriate court of appeal. Given that the Registrar, in deciding to refuse any application for registration as a credit union, will interpret the new Credit Union Bill, the office of the Attorney General and the parliamentary draftsman are agreed that appeal from the Registrar's decision on the soundness of his decisions under that legislation are appropriate for consideration by the High Court. Accordingly, I am not in a position, based on this legal advice, to accept Deputy O'Keeffe's amendment.

That is unreasonable as there are precedents for this. For example, the Minister has a function in regard to the Central Bank regulations on registration. Going to the High Court involves huge expense. The District Court is the local court and it is unfair to take the persons involved to a higher court. We looked at the amendment, to which amendments Nos. 8 and 9 are related, very closely before we tabled it. There should be a right of appeal to the High Court but the District Court should look at the case.

I am not sure if the Minister of State can answer it any differently.

My difficulty is that I cannot knowingly promote an amendment which I am advised is not safe by the law officer to the Government. We are talking about a pretty exceptional situation — this is not the nature of the Registrar's relationship with the credit union movement. One could presume that if the Registrar refused to register a credit union he would have pretty good reasons to support his case, especially since he would know it could be challenged in court. I am not in a position to give comfort on it because of the legal advice I have received.

Is the Deputy pressing the amendment?

No, but I am disappointed.

Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 not moved.
Sections 8 and 9 agreed to.
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