Vol. 331 No. 11
I move amendment No. 1:
Section 1 in page 2, subsection 2 (b), line 22 to delete "a subsidiary company or subsidiary companies" and to substitute "a company formed and registered in the State or a company, or companies, formed and registered outside the State".
An amendment has been circulated by the Minister and I am not very clear as to its meaning. Perhaps he would explain it.
The danger the Deputy adverted to is very remote. As far as I can see there is unanimity on both sides of this House that this loss-making operation should not be taken on by the State and I cannot see any Government giving in to it. Nonetheless, in view of the short time we have, I thought I would try to meet the Deputy's point by amending paragraph (b) of section 1 (2) by taking out most of the second line so that the paragraph would read as follows:
The promotion or acquisition by the permanent company of a company formed and registered in the State, or a company or companies formed and registered outside the State;
That seems to accommodate the points on which there is no issue between us because it will permit the company to form or hire subsidiaries abroad but will confine it within the State to the actual single acquisition which is now taking place. If the Deputy can suggest an improvement to that on his feet, I will try to meet him; but it seems that that formulation would effectively deal with the points he raised. No change is necessary in paragraphs (a) or (c) because they do not bear on that matter.
I accept the point the Minister is trying to make, but the draft is not one of the most elegant I have seen. The draughtsman is trying to distinguish between the Church and General and other activities by simply putting the reference to a company in the State as "a company" and to those outside the State as "companies". In other words. the phrase "a company formed and registered in the State" should be construed as referring only to the Church and General. I do not think a court would interpret it that way. If that meaning is sought to be put on it the words "one company" should be used rather than "a company".
Since the two parts of my suggested interpolation are distinguished by the fact that in the first part it simply refers to a company in the singular but in the second part it goes out of its way to give the singular form and, alternatively, the plural form, that makes it absolutely clear that a single company and only a single company is in comtemplation in the first part of the phrase.
I am not talking about this legislation; but if one read in an Act the following phrase "Fóir Teoranta shall be entitled to take over a company." one would construe that as meaning that Fóir Teoranta shall be entitled to take over whatever company or companies they see fit. If one were trying to make that provision it would not be drafted as follows: "Fóir Teoranta shall be entitled to take over companies in the State."
I can see the Deputy's point, but what I am trying to say is that since the companies outside the State are expressed in the singular and plural and since the element inside the State is expressed in the singular only, there is not any room for misunderstanding. I am told that is the specific view also of the draughtsman.
If it is, I am prepared to accept it. My difficulty is that when the High Court or Supreme Court come to construe this they are not supposed to take these debates into account. They will have to interpret the legislation as it is in the statute. The Minister and I are ad idem. He recognised what I said and tried to meet it in the public interest. It is not very elegantly drafted. One has to twist it somewhat to get the meaning intended out of it. One possible variant on it which would make the matter clear would be to remove the words “a company formed and registerd in the State” out of the substituted words and put in “the Church and General Insurance Company Limited or a company or companies formed and registered outside the State”.
I do not think I can go along with that. There might be implications there, even very simple ones such as getting the name or designation of the company wrong. I would not like to agree to that on my feet because in my view the formulation suggested here meets the Deputy's point. If I had any doubt about it, I would go along with the Deputy.
While it is not ideal I acknowledge that the Minister has tried to meet the point and has done it in a fair way, but whether it is legally and totally desirable in the way it is drafted is another matter. I acknowledge that a genuine effort has been made and in the circumstances I accept the amendment, which is not exactly framed in the words I would have used but is trying to meet the import of what I said.
Could the Minister spell out parts of the memorandum being deleted by paragraph (c) of subsection (2)?
I understand they are transitional items which were of importance when the original company was taking over the four companies which were in difficulty in 1938. I will read out the material if the Deputy wishes.
No, I have it now. They are transitional items.
The total amount outstanding at the moment according to the Minister's speech in the Seanad is £68.1 million and the existing limit under the 1978 Act is £100 million. Is the liability regarded as cumulative? It must be, because it could not increase at that rate so rapidly in three years if it is not. Why do the Department not remove the obligations that no longer exist? Why does the amount keep increasing in a cumulative way?
It rises and falls like a balance. It is like a tide coming in gradually. The £68.1 million refers to the level of the Minister's exposure at the end of 1980, but by 30 June 1981 the figure was already £58 million. That is not cumulative because according as debts are paid the risk correspondingly falls. By the middle of this year the figure was already £58 million and it is judged to be possible that it may reach the limit of £100 million fairly soon.
Does this relate only to the guarantee of EIB loans or does it relate to construction guarantees or construction bonds and things of that kind?
It does not specifically say the EIB but that is what is primarily contemplated. The reason is that doubts arose as to whether the specific terminology in the 1978 Act would allow licensed banks to guarantee loans from the European Investment Bank. The formulation in 1978 referred to the sole obligation of the person under the contract whereas in the case of EIB loans the person borrowing the money is not only required to repay the loan but also may be subject to further conditions such as completing the project on time. That will still be the primary obligation, but it is not necessarily the sole obligation in terms of the EIB system.
It being 11.30 a.m. I am putting the question: "That Fourth Stage is hereby completed and that Fifth Stage is hereby passed."
Bill to be sent to the Seanad. The Bill is deemed to be initiated in the Dáil by virtue of Article 20 of the Constitution.
That is a happy start to this morning's business.
I should like to thank the Minister for having met the point I made. I am glad he understood it because I could envisage a situation where if it was not understood there would be a digging in and a rather sterile debate.
I should like to thank the Deputy for taking that much interest in the Bill.
