The Chairman seems to have been delayed and I invite nominations for temporary Chairman.
Election of Temporary Chairman.
I propose Deputy O'Dea as temporary Chairman.
Clerk to the Committee
If there are no further nominations, I call on Deputy O'Dea to take the Chair.
Deputy O’Dea took the Chair.
We have had a chance to consider the case made by Deputy Bruton on the last occasion and I would like to give a considered response.
Deputy Bruton suggested that the powers being provided for the Minister to approve a code prescribing standards of professional conduct for members of a body of accountants under section 192(4)(a) should extend to ensuring that such bodies do not limit access to their body either by actually limiting the annual intake of new members or prescribing artificially high entry requirements with which only a small number of applicants could comply.
First, I am not altogether certain whether a code of conduct would be the most appropriate place to address questions relating to restrictions on entry to a professional body. I would see such codes as more designed to deal with prescribing standards of professional conduct, and this is the specific aspect subsection (4) is designed to address. Second, and despite what I have said, the power of the Minister under subsections (1), (2) and (3) of section 192 are pretty wide and will enable the Minister to address problems relating to restrictions on entry in the context of recognition of the body and attaching such terms and conditions as he considers necessary. Finally, on this point we seem to be straying into an area separate from company law, that is, the area of restrictive practices and restrictions on entry to a profession. While I accept it also falls within the portfolio of the Minister for Industry and Commerce, I think it is a separate area for attention.
As Deputy John Bruton and other Members of the Committee are no doubt aware, the Restrictive Practices Commission have been engaged for a number of years in a wide ranging study into the rendering of certain professional and other services. The terms of reference of that study include the examination of the effect on the public interest of barriers to entrance to the profession, with particular regard to the institutional, including statutory, structures within which the relevant profession is carried out and any prohibition, including statutory prohibitions, on the provision of services by person who are not members of the profession as well as any other practice which tends to restrict competition between members of a profession or between members of a profession and other person who could be regarded as capable of providing an equivalent service. As I said this is part of an ongoing examination by the Commission and I am satisfied that we should leave them to complete their work in this area.
I am really disappointed. If you were looking for a classic excerpt from the script of "Yes Minister" indicating all the stock reasons that could be produced to reject a proposal of this kind, I think we have had it in the script just read to us. It is a classic of its kind. First the Minister tells us that this is a different area and we should not deal with it. Then he says, if we want to deal with it, we can deal with it within the section. Then he goes on to say while the Department is looking at this they are looking at it under another heading. The bottom line is that he is not going to accept any suggestion that he should have the explicit power to deal, if necessary, with any possible artificial restrictions on the supply of accountants.
Simply extending the matters upon which the Minister can make regulations to include restrictions of supply would have two effects. One, by having it in this Bill it would be a warning to the accountancy profession not to do this and as a result there would be no need for the Minister ever to use the power; but by leaving it out, particularly in the face of the matter having been raised in the Committee the last day, the proceedings will be of course be studied by the accountancy bodies, if by nobody else, and probably by nobody else, as well as the Minister's classic reply, and they will say: the Minister really is not too pushed about whether we restrict numbers and he is certainly not prepared to deal with it in the Companies Bill.
It seems to me that even if the Fair Trade Commission come up with recommendations on this subject which could be implemented admittedly through the fair trade legislation if necessary, it would be obviously much easier from an administrative point of view for the Minister to have the power in this legislation to deal in it. I have seen cases where recommendations were made by the Fair Trade Commission in regard to the legal profession — in regard to conveyancing — and we were told that they could not be dealt with under the fair trade legislation because they required an amendment to the Principal Act, the Solicitors Act which is the responsibility of the Minister for Justice. I can imagine the same argument being used if, for instance, the Fair Trade Commission make recommendations in regard to accountants, whenever they get around to considering the accountancy profession. I understand that they are not actively working on the accountancy profession at the moment anyway but when and if they do come up with recommendations we will be told that we cannot deal with that now under the fair trade legislation by means of an order because it would require an amendment to the Principal Act, which is the Companies Act. There will be many problems with that. However, we will be bringing forward reforming company legislation some time in the future — some time in the first half of the next century — and we will look at it at that stage. Of course nothing will be done. Perhaps we could put a little phrase or paragraph — it probably would not need to be more than a phrase — into amendment 239a saying that the Minister may, by regulation, make provision for the function of monitoring compliance by individuals of the code or by the profession with reference to any artificial restrictions on supply. To my mind that might not have to be used but even if the matter did arise, by having it in the Companies Bill, he could act much more quickly than if he had to rely on the fair trade legislation. I believe that ministerial control of potential abuse in terms of restricting numbers of supply in any profession should be a standard part of all legislation governing professions, whether they be the legal profession, the accountancy profession, the architectural profession or any other profession. I cannot understand why the Minister, particularly as he has reflected on the matter, should have taken the attitude he has.
I am delighted Deputy Bruton has continued to make the point. As he knows, I have checked with our Department, not just the officials who are here but with other officials, and they have considered the points raised and brought forward those objections. I am not overly impressed by the objections either. As I said last week, I got a considered response from the Department which I read out.
It was merely "considered".
It was considered by the officials and they feel it is appropriate. Section 192 (1) gives the Minister a power to attach to the recognition or authorisation as the case may be such terms or conditions as he thinks necessary or expedient and specified in the notice. Under that section it is possible to make requirements as far as the accountancy profession is concerned, and I would like to have restrictions included there too. I do not want restrictive practices within the profession itself as to the number to be accepted each year, and raising the standards to exclude others. I would be delighted to hear further submissions from the Committee on this. I read the considered response from the other sections of the Department who were responsible for this particular area besides company law, and I have read that into the record now. I have put the arguments in that regard.
Deputy Bruton has put forward his reply to that. I am responding to that and I would certainly be very much in favour of coming along with an amendment on Report Stage or, at least, on Report Stage coming back with some response more appropriate to the case being made here than has been put forward.
I congratulate the Minister on what he has just said. That is very heartening. The Minister is probably right. Where is your precise reference?
Section 192 (1), —"such terms and conditions."
I think part of the value of legislation of this kind is not just specific powers that it gives to the Minister but also the signals that it sends out to the public reading the legislation. While I am more than prepared to accept that the Minister has the power under section 192 (1) to do what I would like him to do, it would be no harm to put in an amendment with a reference to "including the regulation of any artificial controls on supply" or some such wording to make it clear that the Minister has the power to deal with that particular problem if it arises. Even though it might not actually add anything to the Minister's legal power, it would have some persuasive value.
Maybe an amendment can be drafted which would take into account what Deputy Bruton has said.