Skip to main content
Normal View

Special Committee on the Companies (No. 2) Bill, 1987 debate -
Tuesday, 12 Dec 1989

SECTION 47.

I move amendment No. 66:

In page 45, to delete line 45.

Will the Minister comment on this amendment?

I would prefer if the Deputy elaborated on the amendment before I respond. That is the usual procedure.

I should like to ask Deputy Barrett to follow the usual procedure in regard to his amendment. If an amendment is in the name of the Minister he moves it and we will apply the same procedure here as if we were in the House.

Will the Minister read out his notes on the section.

He may do so after we have discussed the amendment. We must deal with the amendment first before we have a general discussion.

Section 47 re-enacts, with amendments, section 195 of the Principal Act. One of the amendments introduced in the re-enactment is the addition of subsection (2) (b) which requires the register of directors for each company to contain, inter alia, the date of birth of each director. This is the requirement Deputies Bruton and Barrett went to remove. That is our interpretation.

I would like to assure the committee that there is nothing sinister in the introduction of this particular requirement. In many families children are given the same name as a parent and thus one can find a Mary O'Connor or Patrick Murphy as the name of both the parent and child. If both the parent and child happen to be directors of a company, as frequently happens, particularly in the case of private companies, then the easiest and most definitive means of identifying a particular person would be by reference to his or her date of birth. It is certainly not the intention of the provisions to cause any embarrassment in regard to disclosure of age. I think the requirement to include the date of birth here is reasonable and indeed desirable from a practical point of view, and I would be in favour of its retention.

In moving this amendment the reason I asked the Minister to read out his note on the section was that I thought we might hear why this new requirement was being inserted. I have heard nothing to convince me that it is necessary for somebody to disclose their date of birth. It is a normal business transaction and the information required in subsection (2) is reasonable, with the exclusion of the date of birth. I do not see why somebody should have to give their date of birth in a situation like this, for various reasons.

The amendment that is before the committee is basically whether in the register of directors a director should be obliged to give his date of birth. That is the issue. The Minister has outlined that in the case of a similar name of two directors, father and son, the distinguishing factor that will help to identify the person concerned in any given circumstances is his date of birth. That is the reason he is putting it in; Deputy Barrett's amendment does not wish to put it in. I do not think there is much more we can say about it. I want to put the amendment. Is the amendment. agreed? It is a very simple amendment. I am prepared to hear contributions but I will not take repetition.

The reference is to "his" date of birth. I presume that means his or her date of birth for starters. In all fairness, and keeping in mind various Acts that have been passed here and in compliance with Acts outside the State, I think it should have read "his or her" date of birth, if you must apply it. I wonder if the Minister has taken into account a woman's privilege of not giving her age, and consequently not giving her date of birth which I understand is generally accepted and upheld.

Another point I would put to the Minister — I presume a date of birth must be correct. How do you certify the date of birth unless certified on foot of a birth certificate. I am presuming that is the logical progression of that proposal. I would like to hear the Minister's comments in relation to "his" or "her".

Each of us must have come across the situation of trying to identify persons of the same name. When it comes to registration of holdings, identifying persons with the same name causes a regular problem. I think it is only fair and right that in our legislation there should be no doubt about the identification of that person. The safest and best way of doing that is to get their birth certificate, which is reasonable. I do not think anybody here is particularly shy about their dates of birth. They appear regularly in the columns of the news-papers — both male and female. As regards the interpretation of "he" or "she", I think we should use both words, but the Interpretation Act, 1937, makes it quite clear. It is interchangeable. I do not think there is any difficulty there at all. It is already clarified in the 1937 Act. Every Act takes this into consideration.

"He" embraces "she" for the purposes of the legislation.

When the amendment was put forward, I thought there was a certain amount of merit in it, and there probably is to some extent, but as a security measure I would have to go along with the Minister on this. It happens that family members have the same name, father and son, mother and daughter and if the ordinary man in the street walks into a company's office and tries to determine whether directors are connected with one company or another, or to quickly research the background of individual directors, it can cause a lot of difficulty if they have the same name and home address. That can be quickly dealt with if the date of birth is inserted, although it is a clumsy way to do it, I admit. I cannot see anything better to help clarify the relationship between two persons of the same name from the same family.

Can I suggest that you put in date of birth or some other distinguishing factor, for example, Richard Roche, or Richard Roche Junior, or Bernard Durkan or Bernard Durkan II.

I am opposed to the excision of paragraph (b) because I do not think there is any other way of identification as effective as this. We have all had experiences of people being charged for driving without a licence or insurance and the next thing the father turns up, who also has the same name and claims he can give evidence to the effect that he was not in the car at the time. The same applies here and I would be opposed to it being excised.

What about the word "his"?

The Minister has given his explanation as to whether it is acceptable or not.

This is a Companies Bill and not a document that is trying to find out personal information about people. We are here for a certain purpose, to see that people carry out their business in an efficient manner and do not carry it out in such a way as to cheat the State or to deprive somebody of proper information. This information is being made available freely to the general public. Some people have genuine reasons for not wanting to disclose their age to the public in a business sense. We should concentrate on what is required under the Companies Act to protect individuals. I have a fundamental objection to this provision, unless a genuine reason is given as to why it should be put in. I suggest that in (2) (a) "his present forenames" should be included. That would get over the difficulty of Patrick O'Connor and Patrick O'Connor Junior. It could be Patrick Joseph O'Connor or Patrick Anthony O'Connor Junior. It could be Patrick Joseph O'Connor or Patrick Anthony O'Connor.

What if both names are the same?

There are very few cases where Patrick Joseph O'Connor is the son's name as well as the father's. Normally, the second name is different. I do not think that just because it is convenient for us as legislators we should say, we want to know your date of birth, it is going to be disclosed to the general public and we think it is necessary because we want to be absolutely certain about the identification. If we are going to put in something extra we should have a good reason for doing so. There are people running business who, for various reasons, do not want their age to be known. We should be able to tell those people why we are now asking them to disclose their date of birth to the general public. Simply because you go into business does not give the State the right to start poking into your private life. Do we ask a sole trader to give his date of birth? There are all sorts of reasons why we should be very careful.

It is not a question of whether I or anyone else is afraid of giving our date of birth. We are in public life but we are talking about ordinary members of the public who are going about their daily business, not doing any harm to anybody and giving employment. I do not see why, unless we have a very good reason, we should impose more on them by asking them to disclose their date of birth simply because it is convenient for us.

I am suggesting that we insert in subsection (2) (a) "his present forenames and surname and any former forename and surname" and you could insert something else if you so wish, as suggested by Deputy Roche. That should be done to make it absolutely certain that we make it as easy as possible for people to indentify the individual in question. This is a Companies Bill and not any other legislation where we are asking people to apply for a driving licence.

The problem arises constantly under the electoral legislation where two or three people with the same name live in the same area or in the same house. Under the Electoral Acts we do not expect people to identify themselves by putting in their date of birth. It may be that putting in the date of birth is embarrassing for some people and, if so, we should look for some alternative non-embarrassing way. I agree with Deputy Barrett in that the date of birth of everybody here is well known but who is interested? There may be reasons why people do not want their date of birth known. It may simply be vanity, it may be that they are self-conscious or that they are very private people and do not want their date of birth to be known. If you put in all the forenames I cannot see any circumstances arising whereby there would be no way of identifying the person. However, if that did arise, we would have to put in some other distinguishing factor. In 99.99 per cent of cases, it should be possible, by the use of names and forenames, to identify the person.

I have been listening to the arguments for and against. We are very limited in the process of identification and I do not see why one should have a hang-up on age. Deputy Barrett has made very solid arguments here for and against the disclosure of age. I do not see why anyone should be embarrassed about their age. I have friends ranging in age from two to 82 and I cannot see why we are pushing this argument. If, as Deputy Flood has pointed out, there are problems about people in the same family having the same name, how can we provide for a very definite process of identification? Are we to introduce finger printing or thumb printing? We could extend this argument to the bounds of impossibility. I think this is an obvious provision and we should proceed with it. We are making too much of the whole matter of age.

I want to support Deputy Barrett's interpretation of this matter. In the business of a register of directors and secretaries, is it not normal practice for signatures to appear on documentation? We are always told that when signing a document block letters cannot be used, and the reason for that is obvious. Everybody's signature is personal and that is a deciding factor in the case of identify. The pursuing of this personal kind of information could be stretched further and further and we could be setting a precedent. Because of that, surely the normal appending of a signature should be enough. I support Deputy Barrett's position on that.

Deputy Rabbitte to conclude.

For the reasons already advanced I am opposed to the excision of this paragraph. I do not think the point made about the electoral register is a good one in the sense that if the birth requirement existed there it would be more readily obvious that somebody of 139 years of age would not be around to vote. The requirement for the date of birth should stand.

May I ask for clarification on "his" and "her". The Minister stated that it is covered in another Act and so it may be, but does that Act and this section comply with anti-discrimination legislation which has since been passed?

The interpretation is based on the Interpretation Act, 1937. The masculine imports the feminine as well. That is a rough interpretation of the 1937 Act. I do not think Deputy Durkan need have any concern about this section. That interpretation applies to nearly all Acts of the Oireachtas since that date. As far as we are concerned, we are sticking by that line and I would allay the fears of Deputy Durkan. He has nothing to worry about and he can allay the fears of his feminist friends in relation to this Act.

Question put: "That the amendment be made".
The Committee divided: Tá, 4; Níl, 7.

  • Barrett, S.
  • Durkan, B.
  • Cotter, B.
  • Reynolds, G.

Níl

  • Cowen, B.
  • O’Dea, W.
  • Flood, C.
  • Rabbitte, P.
  • Kitt, T.
  • Roche, D.
  • Leyden, T.
Amendment declared lost.

I move amendment No. 67:

In page 46, subsection (3) (a), line 6, to delete "five years" and substitute "ten years".

The subsection we have dealt with sets out the particulars required to be maintained on the register. This amendment to subsection (3) deals with the area where the register need not contain any particulars of directorship where a person has not been a director at any time during the preceding five years. I submit that that is not an adequate period especially in circumstances where, for example, the workers lost their livelihood due to some action of a particular director or where the savings of a number of citizens have been lost due to negligence on the part of the director or directors as we have had in certain instances. Such a director ought not be allowed to spring up again by default after a period as brief as five years and that information should be contained on the register. There have been notorious cases where people suffered greatly as a result of fraudulent activity by a small number of directors or negligent activity and the period of five years is not adequate in those circumstances.

I agree to that. I have no strong views on it.

We are going over-board in relation to what we are trying to achieve here. The Bill as it stands at present is quite reasonable. I have a feeling that individuals who go into business and do their business properly are being asked to do certain things that is above and beyond what I would regard as reasonable. I believe the Bill as it stands is quite reasonable. What this country needs is to encourage more and more people to go into business. We should have less of this bureaucracy. We should deal with rogue directors in the proper fashion. The Bill is attempting to do that. We have enough impositions on people as it stands. I do not think there is any logical or genuine reason why we should extend the period from five to ten years.

I fully understand the reason for the amendment and for the section. That should be to deal with the rogue directors and to ensure that they do not repeat the same performance within a period as set out here, five years, and as set out in the amendment, ten years. Are we dealing with everybody alike? For instance, there may be situations which are not the fault of a director, where the company falls into disrepute by one or other means or maybe as a result of another company getting into difficulty and causing a knock-on situation. Are we then automatically going to penalise the directors of perhaps innocent bystanders in the form of a company who happened to be pushed out of business, perhaps with workers being pushed out of business as has happened in the past as a result of a company malfunctioning, whether directors have done so deliberately or otherwise. If a particular company is operated in an unprofessional and unjust and unfair fashion with the result that other companies downstream are affected by the domino factor, are those directors going to be penalised in the same fashion as would a rogue director who had deliberately set about engineering a situation whereby he could defraud his company?

Everything Deputy Durkan has said is equally applicable to keeping the records for five years. I did not hear him objecting to that. I support Deputy Rabbitte's amendment and I can see what he is trying to achieve. As it stands, the Bill is very weak. If I were in a position to do so, I would include details of people connected with directors and if it were possible I would like to see something about the previous business activities of directors of a company. It would be drafting the legislation too wide to include that but the fact that somebody was not a director of a business in which he was involved does not necessarily mean anything.

The standard required here is the absolute minimum and Deputy Rabbitte's amendment is a fair and reasonable one. I would like to ask the Minister one question. What is the position of corporate directors? What information needs to be kept about directors of companies who are themselves companies?

As far I am aware, there is no provision in our company law for corporate directors. There is for corporate secretaries but not as far as I am aware of for corporate directors. A director, as far as I am aware, has to be a person. The only person of that type who can be a body corporate, and sometimes is, is the secretary of the company but by virtue of his holding office as secretary he is not ex officio a director. The Companies Act of 1963, section 176, specifically forbad a body corporate to be a director. It has been illegal since 1963 so that is why there are not any.

Amendment agreed to.

I move amendment No. 68:

In page 46, between lines 39 and 40, to insert the following subsection:

"(8) Without prejudice to subsection (6), a person who has ceased to be a director or secretary of a company may send to the registrar of companies a notification in the prescribed form of such cessation, and of the date on which it occurred.".

Amendment No. 68 aims to provide a practical solution to a fairly common problem which tends to crop up in relation to the register of directors. The position is that section 195 (6) of the 1963 Act which we are re-enacting here through section 47 (6) of this Bill requires a company to notify changes of directors or secretaries to the Companies Registration Office. What happens in many cases is that the company overlooks or neglects to notify the CRO when a given director has resigned. This leads to situations which are at the least embarrassing for the director concerned. To get over the problem the amendment proposes that the director or secretary concerned should himself be able to notify the CRO of his resignation. While it might be felt that in the absence of legislation there is nothing to stop a director from making such a notification anyway, I think it would be wise to standardise such notifications. The amendment, therefore, speaks of the use of a prescribed form for that purpose.

Amendment agreed to.

I move amendment No. 69:

In page 46, line 43, to delete "subsections (2) and (3)", and substitute "section 47 of the Companies Act, 1989".

This is simply a drafting amendment, and arises because section 47 inserts a new section 195 in the 1963 Act and on that account subsection (8) should really refer to the coming into force of section 47 and not subsections (2) and (3) which are within section 195 of the 1963 Act. In other words, this is simply a technical drafting amendment.

Amendment agreed to.
Section 47, as amended, agreed to.
Progress reported: Committee to sit again.
The Committee adjourned at 5.45 p.m. until 2.30 p.m. on Wednesday, 20 December 1989.
Top
Share