Amendments Nos 1, 2, 9 to 11, inclusive, 13 to 25, inclusive, and 27 to 30, inclusive, are related and will be discussed together.
Screening of Third Country Transactions Bill 2022: Report and Final Stages
Bill recommitted in respect of amendments Nos. 1 and 2.
I move amendment No. 1:
In page 6, line 23, to delete "or an" and substitute ", an".
These amendments are technical in nature. They arise from advice received from the Attorney General. They do not alter the policy intent of the Bill. The amendments ensure that explicit reference is made to the right to seek a judicial review in the text. This is intended to avoid any misinterpretation that the legislation could preclude a party from seeking a judicial review. The amendments are designed to achieve this outcome while still ensuring a large measure of protection for confidential security information. The amendments also make clear that an appeal against a decision of an adjudicator may also be subject to judicial review. The amendments also include some consequential amendments required as a result of the additional text relating to judicial review, to ensure the definitions used throughout the Bill, including the definition of what is termed "relevant material", are consistent.
Amendment agreed to.
I move amendment No. 2:
In page 6, line 23, after "appeal," to insert "or judicial review proceedings relating to a screening decision or the decision of an adjudicator,".
Amendment agreed to.
Bill reported with amendments.
Amendments Nos. 3, 4, 8 and 26 are related and will be discussed together.
I move amendment No. 3:
In page 10, line 13, to delete "Public Expenditure and Reform" and substitute "Public Expenditure, National Development Plan Delivery and Reform".
These are technical amendments. They do not alter the policy intent of the Bill. Amendments Nos. 3 and 8 reflect the change in the title of the Minister for Public Expenditure, National Development Plan Delivery and Reform since the Bill was considered on Committee Stage.
Amendment No. 4 is intended to ensure there is consistency between the definition of what is termed "exercising control" as set out in section 2 of the Bill and the mandatory notification requirements set out in section 9. While this was not considered on Committee Stage there is no change in the policy evident throughout the Bill. The revised text ensures that transactions through which an investor acquires either decisive influence, defined proportion of voting rights, or shares of an undertaking fall within the scope of the screening mechanism.
Amendment No. 26 was suggested on reflection by the Office of the Parliamentary Counsel. It does not change the substance or intention of the provision but makes clear that persons acting as agents of the courts and not only court officers may not unintentionally be excluded from High Court hearings. Amendment No. 26 also ensures that the language in this section is consistent with section 36(3).
Amendment agreed to.
I move amendment No. 4:
In page 11, line 3, after "asset" to insert "or undertaking".
Amendment agreed to.
I move amendment No. 5:
In page 11, to delete lines 8 to 11 and substitute the following:
"(b) the cumulative value of the transaction and each transaction between the parties to the transaction, or persons connected with third country undertakings that are parties to the transaction, in the period of 12 months before the date of the transaction is equal to or greater than—
(i) where no amount stands prescribed under subsection (2), €2,000,000, or
(ii) the amount that stands prescribed under subsection (2);
(c) the same undertaking does not, directly or indirectly, control all the parties to the transaction;".
This amendment arises from a discussion on Committee Stage and builds on a proposal from Deputies Ó Cathasaigh and Duffy which I was happy to accept. On further reflection, and in consultation with both Deputies and the Office of the Parliamentary Counsel, it was decided that the language needed to be refined to ensure it achieves the policy objective. The intention of the amendment is to ensure the threshold of €2 million applies to the cumulative value of transactions in a 12-month period. Transactions below €2 million are notifiable to the Minister if parties to the transaction have within 12 months of the transaction been party to other related transactions which, taken together, amount to at least €2 million. The amendment seeks to achieve this objective and I am happy that it does. It reduces the scope for parties to try to circumvent the screening mechanism by subdividing transactions. It also ensures that the mandatory notification only applies to those deals of most interest to the Minister, that is deals where real changes in control occur rather than internal restructuring where ultimate control does not change hands. I thank Deputies Ó Cathasaigh and Duffy for their assistance in drafting the amendment.
Amendment agreed to.
I move amendment No. 6:
In page 11, lines 30 to 32, to delete all words from and including ", the" in line 30 down to and including "parties" in line 32.
On Committee Stage an amendment tabled by Deputies Ó Cathasaigh and Duffy was accepted to amend section 10 of the Bill and to make explicit reference to including the names of natural persons in the list of information that must be submitted to the Minister as part of the notification process. Following consideration by the Office of the Parliamentary Counsel, and after discussion with Deputies Ó Cathasaigh and Duffy, it is my belief the original text as published is sufficient to achieve the policy objective. Consequently the accepted amendment was unnecessary. The Department has confirmed that the wording of section 10 already provides sufficient detail on what is required to allow a comprehensive screening review to be undertaken. When conducting a screening officials will not solely rely on the information provided via notification to inform the screening process. Alternative sources of intelligence are being developed to allow all information submitted as part of the notification process to be checked and verified. I thank both Deputies and their staff for their input on this issue.
Amendment agreed to.
I move amendment No. 7:
In page 12, to delete lines 7 and 8 and substitute the following:
"(xi) details of any sanctions and restrictive financial measures imposed on the parties, and on persons connected with a third country undertaking that is a party, by the European Union or by the United Nations;
(xii) details of any convictions of a party, and of persons connected with a third country undertaking that is a party, by the International Criminal Court;
(xiii) details of any convictions of a party, and of persons connected with a third country undertaking that is a party—
(I) on indictment (other than a spent conviction within the meaning of section 5 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016) by a court in the State, and
(II) in a state or territory other than the State, in respect of which a sentence of at least 12 months’ imprisonment was imposed and that is not a spent conviction (within the meaning of section 5 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, save that references in that section to a "court" shall be construed as references to the court or body that convicted the party or connected person in the state or territory concerned);".
On Committee Stage I indicated that I agreed with the policy objective of Deputy O'Reilly's proposed amendment to expand on the factors that the Minister should consider when reviewing a transaction. Specifically the amendment reflects a more comprehensive set of sanctions that can be taken into consideration. It also adds consideration of any criminal conviction on indictment. This is quite a technical amendment. It required careful consideration by the Office of the Parliamentary Counsel, in particular on the text dealing with criminal convictions and the need to use very precise language when defining equivalency between jurisdictions. I place on the record my thanks to Deputy O'Reilly, her staff, and the Office of the Parliamentary Counsel for their assistance in designing and drafting the amendment.
I support the amendment. As the Minister of State has pointed out, it arises from an amendment I proposed on Committee Stage. I thank the Minister of State, the officials and the staff of the Office of the Parliamentary Counsel for their work on this. It is very important that sanctions from the EU, UN or International Criminal Court should also be notified to the Minister. If we are going to assess, investigate, authorise, condition or prohibit third country investment based on a range of security or public order criteria it should be done in the round and to the maximum and fullest extent possible. The legislation is intended to equip the State with the means to protect itself and us against possible threats. I welcome that the Department will now know whether parties or persons connected with a third country have been sanctioned by the UN or the International Criminal Court. While I would have welcomed the amendment going further, to include convictions in another state for breaches of human rights law or employment law, I am happy for the inclusion of UN and International Criminal Court sanctions. It makes the legislation stronger. It is a very good starting point. I thank the Minister of State and the officials for their frank engagement on this and for taking the suggestions on board.
Amendment agreed to.
I move amendment No. 8:
In page 21, line 12, to delete "Public Expenditure and Reform" and substitute "Public Expenditure, National Development Plan Delivery and Reform".
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 9 to 11, inclusive.
I move amendment No. 9:
In page 24, lines 31 and 32, to delete “in any legal proceedings”.
Amendment agreed to.
I move amendment No. 10:
In page 24, line 32, after “of” to insert “judicial review or”.
Amendment agreed to.
I move amendment No. 11:
In page 24, line 33, to delete “, but for this section,”.
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 12:
In page 28, between lines 21 and 22, to insert the following:
“(3) The Minister shall not withdraw, or otherwise reverse the effect of, a notification under subsection (2)(b).”.
Amendment No. 12 is a technical amendment. The intention in the Bill was always to allow the Minister to certify a matter that has been deemed suitable to be heard in public, and once the adjudicator is notified of this fact, then section 31(2) applies and the appeal to the adjudicator can be held in public. There is no suggestion in the Bill that the Minister can subsequently unnotify, as it were, the adjudicator and reverse this decision. This amendment is based on advice from the Attorney General and is intended to reinforce this point and avoid any possibility of the approach being misconstrued, that is, that the Minister should not be able to reverse a notification making a matter public.
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 13 to 25, inclusive.
I move amendment No. 13:
In page 28, line 30, to delete “, subject to subsection (5),”.
Amendment agreed to.
I move amendment No. 14:
In page 28, line 35, to delete “and”.
Amendment agreed to.
I move amendment No. 15:
In page 28, line 37, to delete “paragraph (a).” and in page 29 to delete lines 1 to 8 and substitute the following:
“paragraph (a), and
(d) judicial review proceedings based on the proceedings.”.
Amendment agreed to.
I move amendment No. 16:
In page 29, line 20, after “section 34,” to insert “or judicial review proceedings are taken in relation to a screening decision or a matter before an adjudicator,”.
Amendment agreed to.
I move amendment No. 17:
In page 29, line 22, after “appeal” to insert “or proceedings”.
Amendment agreed to.
I move amendment No. 18:
In page 29, line 23, after “appeal” to insert “or proceedings”.
Amendment agreed to.
I move amendment No. 19:
In page 29, line 24, after “appeal” to insert “or proceedings”.
Amendment agreed to.
I move amendment No. 20:
In page 30, between lines 30 and 31, to insert the following:
“(8) In this section, a reference to an appeal under section 34 includes a reference to any judicial review proceedings taken in relation to a screening decision or a matter before an adjudicator.”.
Amendment agreed to.
I move amendment No. 21:
In page 31, line 4, to delete “in any legal proceedings”.
Amendment agreed to.
I move amendment No. 22:
In page 31, line 5, after “of” to insert “judicial review or”.
Amendment agreed to.
I move amendment No. 23:
In page 31, line 6, to delete “, but for this section,”.
Amendment agreed to.
I move amendment No. 24:
In page 31, line 24, to delete “or” where it firstly occurs.
Amendment agreed to.
I move amendment No. 25:
In page 31, line 24, after “35” to insert “or judicial review proceedings relating to a screening decision or a decision of an adjudicator”.
Amendment agreed to.
Bill reported with amendments.
I move amendment No. 26:
In page 32, line 31, to delete “a judicial assistant, or other court personnel,” and substitute “an officer or agent of the court”.
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 27 to 30, inclusive.
I move amendment No. 27:
In page 33, line 4, to delete “or”.
Amendment agreed to.
I move amendment No. 28:
In page 33, line 5, to delete “appeal.” and substitute the following:
“appeal, or
(c) judicial review proceedings relating to a screening decision or the decision of an adjudicator.”.
Amendment agreed to.
I move amendment No. 29:
In page 33, line 8, to delete “or”.
Amendment agreed to.
I move amendment No. 30:
In page 33, line 9, after “37, ”to insert “or an appeal in judicial review proceedings relating to a screening decision or the decision of an adjudicator,”.
Amendment agreed to.
Bill reported with amendments.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
An bhfuil aon duine ag iarraidh teacht isteach ag an bpointe seo?
Ag deireadh an próisis seo, gabhaim buíochas leis an Leas-Cheann Comhairle agus leis na hoifigigh atá anseo agus i mo Roinn as ucht an tacaithe leis an mBille seo.
When we first introduced this Bill last September, I spoke about the importance of responding to potential threats to our security and to public order arising from some third country investments. In that context, it remains essential we enact this Bill to provide the State with the powers necessary to deter or mitigate the impact from hostile actors acquiring ownership of or influence over businesses and assets to cause harm to the State. I believe the mechanism we have developed is tailored to suit Ireland's needs. It strikes a fair balance between preserving our attractiveness to potential investors while equipping the State with the necessary safeguards to protect against risk, confirming Ireland as a responsible and secure location in which to do business.
I sincerely thank the Deputies across the House. I thank Deputy O'Reilly, who is here with us, and her team, Deputies Ó Cathasaigh and Duffy for their engagement at committee level and subsequently, and the Cathaoirleach of the Joint Committee on Enterprise, Trade and Employment, Deputy Quinlivan. We had a very good engagement at the committee previously and subsequently which has allowed us to proceed today. I thank the officials in my Department who have worked on very complex legislation. I thank the Office of the Attorney General and the Office of the Parliamentary Counsel for their work on this. It may seem from the way the debate has proceeded this evening that it was seamless. A huge amount of work went in on everyone's part to get to this level. Gabhaim buíochas le gach duine as ucht na hoibre sin.
Question put and agreed to.
Cuirfear an Bille chun an tSeanaid anois. The Bill will now be sent to the Seanad.