SECTION 2.

I move amendment No. 1 :

In subsection (1), in the definition of " existing company ", to delete " or deemed to have been registered, in the State " and substitute " in a register kept in the State, ".

The words ‘ or deemed to have been registered ", were taken from the Northern Ireland Act of 1960. They are necessary in the North of Ireland because of the problem peculiar to that part of this country as a result of Partition in the early 1920‘s. Prior to that a register was kept in respect of the entire country in Dublin, but after Partition companies which were in existence in the partitioned part of the country were deemed to be registered in Belfast. The words are not necessary here and it is for that reason that they should be deleted and the words " in a register kept in the State " substituted.

The comma will disappear, too. Therefore it means a company formed and registered in a register kept in this State—and that clarifies every case.

That is right.

For the record, it was not in the early 1920's that Partition was established. It was by the Government of Ireland Act, 1920.

I got confused about the date.

You would not like to include the Act of 1948—or 1949, was it ? I say that for the record.

Amendment agreed to.
Question proposed : " That Section 2, as amended, stand part of the Bill."

Take the definition of " agent ". In Section 168, " agent " is expressly stated as including a solicitor. I am not quite clear whether the express inclusion of the solicitor in Section 168 is in accordance with Section 2 which provides that " agent " does not include a person's counsel, acting as such. It includes solicitor in another capacity but does it include solicitor as set out in Section 168 ? The importance of this arises in relation to privilege. It is because of the position in relation to privilege that I want the matter to be quite clear all through.

There is a saving for privileged communications in Section 388.

There is, but——

That would include counsel, anyway. I think " solicitor " has to be covered separately.

The saving section deals with communication made to a solicitor as such. Whether a communication to the solicitor, who is also defined to be an agent, could, without special expression, be also covered by it, I do not know. This is a very difficult case. As we go through the Bill we shall meet a lot of these technical matters. It is because I visualise this—and that the Minister would not be able to answer off hand—that I suggest it is quite understandable that the Minister will have to look into points like this and that we shall have to come back to them again when we are examining our record. I take it that the Minister would prefer to say : " I should like to think about it " ?

I should like to look at it and to introduce an amendment, if necessary, as suggested this morning.

Take the last line on page 21—" professional ". If there is a definition anywhere of " professional " I could not find it.

There is no definition in the Act.

What does it include here ? It includes presumably counsel, solicitors, auditors, and an architect in relation to building.

Valuers, in certain respects.

I think it ought to be tightened a bit in some way.

I do not get the Deputy's point on the word "agent".

Before that—does " agent " include a solicitor ?

It seems to me that when it defines it as not including a person acting as such, everybody else is included.

Then why is it included in Section 168 ? If " agent " included solicitor, it automatically would not mention it as being so in Section 168.

I propose to examine this and to have amendments introduced, if necessary, on Report Stage.

Do you want to have a solicitor as agent for the Company ?

If you want it, then, naturally, he is an agent. I would read it as simply excluding a barrister and that is all.

Would the Minister consider whether it might not be better to be specific about professional capacity ?

Could the Minister oblige us in relation to the top of page 22, subsection (3) ? Has he listed the corporations sole, other than Ministers ? What corporations sole, other than Ministers, are there in the State ?

Bishops are. I I believe they are.

Are they, from the point of view of civil law ?

Very likely.

I would not be an expert on that subject. Before indicating whether this was excluding any reference to corporations sole I should like to know what corporations sole there were. CIE, I believe, is a corporation sole. Could the Minister give us a list of the corporations sole of which his Department is aware, anyway ?

I can do that but I do not think it is necessary to define whether a Catholic bishop is a corporation sole.

No. I will let them look after themselves but I was wondering whether in relation to certain bodies analogous to companies, it might not be better to include them in certain respects in relation to the Bill.

It might be necessary to introduce an amendment in order to overcome this point.

If I knew what the Minister had in mind when he was making this exclusion then I would understand the reason.

There is a number of provisions in the Bill which refer to corporations and it has been the practice to exclude corporations sole, because one would not expect to find corporations sole involved in this kind of proceeding, trading, and that sort of thing.

Is not CIE a corporation sole ?

Is there a list of corporations sole ?

There must be a list somewhere.

Where did you get this phrase from ?

It is taken completely from the 1948 Act.

They would probably have been of more importance in 1908 than they are today.

If you wanted to write to a corporation sole tomorrow, drawing their attention to some provisions in this Bill, where would you start ? Is there a list in the Companies Office?

I am told not.

Could the Minister give us some idea of the categories involved in corporations sole ? It would certainly help me if I knew what sort of bodies were involved, without necessarily having an exclusive list of corporations sole because I cannot see how anybody would have a list of them.

You could not form a corporation sole without government permission.

I think you could.

I think not. I think you could do it by royal charter before 1921 but I do not think you can now.

It would have to be registered with the companies office.

I would charge more that 6/8d. if anybody came and asked me that question.

As Deputies know this Bill applies to aggregates of persons whether they be public or private companies. It is not intended to cover individual persons who might be described as corporations sole. If the members of the committee would look at Section 139, it describes what a body corporate may do. It is only for such bodies corporate or corporations that the legislation is intended. However, if it is necessary to check what are corporations sole or to check whether there is a list in existence, I will do that between this and the next Stage and I will consult with the Committee again about it.

If you are going into that I should like to mention two points. As this Act is intended to deal with continuing corporations generally, in other words, legal persona other than persons in their individual capacity, it would be as well to get that clear, whether the provisions of the Companies Act apply to corporations sole if such there are in the modern world. The second point is of more practical importance : If a corporation sole is still a potentially legal method of doing things, we want to be careful we are not giving somebody a means of getting outside the Act.

The Act does not cover corporations sole.

There might be some way—I do not know—of setting up a corporation sole as a device for evading details. That is just the suspicion I would have so it might be worth looking into again.

My only point is that the Bill does not affect the corporations sole. Before I can make up my mind whether it should affect corporations sole, I want to know what sort of genesis they are apart from a few obvious ones like Departments of State. I cannot find any such exclusion in the Companies Act of 1948 in England. I am not going to say I am completely accurate in that. I find it hard enough to keep abreast here but I fail to discover any such exclusion in England and I should like to know why we are excluding it here.

If there are any corporations sole outside the scope of the Bill, is it not desirable in order that we shall know what we are doing that we should get a legal definition of a corporation sole so that we can decide whether it should be outside the scope of the Bill ?

In that connection might I refer to the definition of a director:

A director includes any person occupying the position of director by whatever name called.

It is perfectly all right, where the word " director " is incorporated in the title like " managing director " or where there is a board of directors of which a person is a member but how does one differentiate between the position of a general manager who is not a director and that of a director occupying the position of director ? What is the position of a director ?

A member of the committee of management.

But is a managing director not a member of the committee of management.

But a general manager ?

He is in an executive position and the governing director is the committee of management in toto.

In some cases.

In all cases in which he is governing.

Is that definition satisfactory, particularly in regard to the corporation sole ?

In regard to Deputy Norton's point, it is quite clear it is not the intention of this Bill to deal with corporations sole because you could not have a company in this country consisting of one person only. It is permissible in certain countries all right but it has never been permissible in this island. You must have at least two persons and the type of company with which the Bill deals is one consisting of not less than two persons. The reason for this exclusion of corporations sole is that there are a number of provisions, one of which has already been referred to, Section 139, which relate to bodies other than companies; another one is Section 377 which makes reference to bodies corporate and which applies the provisions of this Bill to bodies corporate which might not necessarily come within the scope of the Bill in general. It is necessary to exclude corporations sole from these provisions because there would be no point in binding them by sections dealing with accounts etc.

The answer to that is that you cannot become a corporation sole here.

You cannot become a corporation sole for the purpose of the Companies Act.

Is it possible to become a corporation sole in Belfast ?——

——and get out of their obligations here because of the fact that corporations sole are excluded ?

It is not.

I want to make all the necessary reservations because I have not studied the point. It seems to me in general that a corporation sole can only be established by statute or charter.

That is what I thought.

The common ones are established either by statute or charter. A Minister is a corporation sole. There may possibly be some Common Law ones. Bishops might be Common Law ones, but whoever mentioned them was not taking the Reformation into account. The net point would be : can they be established ? Is there any way they can be established at present other than under State control ? If they can be established other than by State control, then the Bill should deal with them. If they cannot be established other than by State control, that is, by legislation, I think the provision in the definitions is in order.

Does that in fact mean that statutory companies will be outside the Bill ?

Statutory corporations are outside the scope of the Bill, but State companies registered under the Companies Acts do come under the scope of the Bill.

" State Companies " is an omnibus description. Some of them are statutory and some of them are formed under the Companies Acts. I think the ESB and CIE are statutory and the Sugar Company is not statutory. It has statutory recognition but it is set up under the Companies Acts.

There are various others formed on a direction given in an Act of the Oireachtas. A direction is given in an Act of the Oireachtas to the effect that within a reasonable period a company shall be established under the Companies Acts. A company like the Grassmeal Company is set up under the Companies Acts. They would come within the scope of the Bill.

That is probably true for these recent ones like the Grassmeal Company but I would not be so certain about some of the earlier ones, which I think were formed under the Companies Acts. Irish Steel, for instance.

There was an enabling provision in the Bill. I think the articles of association were set out as an appendix to the Bill.

There are a couple of companies under the Companies Acts. What we have in the Bill will affect them but will not affect the ESB or Bord na Móna. Their powers and duties are set out in the Acts relating to them.

Some of them will be exempted and some will not.

A large part of my difficulty has been met by my being referred to Section 455 (subsection 3) of the English Companies Act. It would appear that this is largely a " cog " from that section. What I was worried about was why it was being put in here when it was not in the other, but I was looking at the wrong part of the Act.

The net question arises whether corporations sole can be established and so defeat the purpose of this Bill for some purposes. That is one of the points I shall look into.

I do not think there is a lot in this but it can certainly be checked.

If there was any list of categories of corporations sole at the moment it might clear our minds.

I am in some difficulty with Section 2. This is a section to which we will be constantly referring back. I think Deputy Sweetman will agree this is a section that will constantly come into our discussions as we go through the Bill. Even though it seems to be totally irregular, I would suggest that the passing of this section be postponed until the end in view of the possibility of amendment both from the point of view of the Minister or anybody else—drafting amendments, possibly—that may arise from our discussion of subsequent sections. There is hardly a section which will not be affected by Section 2. It is very difficult to legislate on it. Naturally, the draftsman will probably start with his definitions and be clear on what he is writing. It might not be a bad thing for us, having discussed it at this stage, to wait for the formal disposal of the section until the very end.

There is a difficulty from the point of view of Standing Orders in doing that but I think the position is met by the fact we have made provision for further amendments when we have finished the Bill.

If we are not happy about one definition in Section 2, when we have finished the Bill, we can put down an amendment to it for the purpose of having the definition discussed.

Leave it open until we are finishing the Bill.

That is what I was suggesting, but there is a point of procedure that we have to pass the section.

I think the Chairman explained at the outset that in the case of any amendment that would seem to be necessary, it was the intention to take them on report and have them recommitted to this Committee by the Dáil on motion which I will move at the appropriate time. I think that covers the point Deputy de Valera has in mind.

Question put and agreed to.