As this is a Private Member's Bill, it is necessary formally to move that the Bill be considered on Report. The amendments on the paper appearing in my name are purely verbal and are the result of the amendments inserted in Committee. These amendments have been circulated to Senators. They do not alter the purpose of the Bill in any way.
PUBLIC BUSINESS. - BODIES CORPORATE (EXECUTORS AND ADMINISTRATORS) BILL, 1928—REPORT.
CATHAOIRLEACH
It is only right that I should let the Senate know that I have had representations made to me by the President of the Incorporated Law Society to the effect that under an English Act similar to this careful provision has been made to prevent bogus corporations being set up for the purpose of getting the benefit of that Act. These regulations have fixed a substantial amount as the capital of any such trust company.
May I interrupt to say that it is my intention, with your permission, to propose an amendment?
CATHAOIRLEACH
You have given no notice that such an amendment was to be proposed.
I was going to ask permission of the House to move it.
If it is in order, and you have given the reasons of the Incorporated Law Society as to why it is desirable, I think I ought to give reasons as to why it is not desirable.
CATHAOIRLEACH
I only want to keep myself safe with the Incorporated Law Society, for they called my attention to this.
The Incorporated Law Society are, I think, interested in this. They were first under the impression that they would have a hearing before the Committtee appointed to consider this question, which was not the case, but it could be so in the case of a Private Bill. I immediately moved that the Committee adjourn to enable the members of the Committee to have an informal conversation with the members of the Incorporated Law Society, and a large number of points were considered; but what they have written to you, sir, was carefully considered, though not technically, by the members of the Committee during a lengthy conference. As to the point you have mentioned, that is only one of many raised but not made in Committee. The proposal was that the only body that should be entitled to get the benefit of the Act would be one with a capital of £50,000, at least £20,000 of which should be paid up. They suggested that there is an Act in England which makes similar provisions. With great respect, I would point out that there is not a similar Act in England, but there is Lord Birkenhead's Act, which deals with the whole question of companies and a great deal of the probate law. It provides certain limitations as to the functions of a trustee and executor. It provides that only companies with a capital of £100,000 can be a trustee or executor. That is a matter which, I think, is open to fair interpretation as to whether there should be such a limit or not. Personally, without careful consideration, I would not very much object if the bodies in Ireland likely to hold themselves out would have a capital very much larger, but the insertion of such words in this Bill would not achieve that purpose. In the Bill it is provided that corporate bodies, that is, limited companies, may act as trustees and executors, and they are in just the same position as if they were individuals. It gives them no powers individuals did not have before, and it takes no powers from them that individuals have. If you insert the section in this Bill its effect will be that where a corporate body is appointed as executor, as they can at present, they will be able to appoint a syndic under their own name and seal and be able to act.
If the Bill is now amended they are actually the persons who would under the ordinary law have the right to act as administrators, and they can be appointed by the court and only under such circumstances. The only advantage is that the procedure would be simpler. No new powers are given. If you put in a section to limit the powers of this Act to companies with a capital of £50,000, from my point of view it would not spoil the Bill. It would mean that if a company, acting as executor, has £50,000 capital it has not to appoint a syndic, and with a capital of £49,000 it has. Therefore I suggest that what you raise is not a matter which should be dealt with in this Bill. Unfortunately, the Secretary of the Incorporated Law Society sent me the amendment only yesterday, and I had no opportunity of explaining the position to him. I suggest that to put in the amendment would be out of place, and also that, even if it could have effect in this Bill, which I am quite satisfied on legal advice it could not, it would be doubtful if it would be wise at this stage. If a man wants to appoint a dud executor who has no money as an individual he can do it. I think it would be foolish to do it if he wanted the estate properly administered. If he is foolish enough to appoint a dud limited company, or one that has not enough of money to carry out its obligations, he can do it, but it would be foolish. A company having large capital, such as Messrs. Guinness, would be fit to act as executors. It is a matter the Government will probably have to face, to make an alteration in the whole question of probate law. It would be a mistake to deal only with the question of capital. I do not think small companies will be appointed. There may be a case where a man knows that a limited company he himself is connected with would be able to carry out the functions of an executor. I think they should be able to act in the same way as one of the individuals in partnership. There is no difference.
CATHAOIRLEACH
The difficulty that was presented to me by the President of the Incorporated Law Society was of a somewhat different kind. I am not advocating this thing, but as the members of the Law Society are not here themselves I think it only fair to mention the matter. They said that under this Bill an individual, who is a pauper, might incorporate himself with some other person as executor, administrator, and trustee of the corporation, and advertise himself all over the place under that high-sounding title, and that women and others who were not well versed in these matters, and not careful, might be attracted by the title and make such an individual their executor.
That is the position at the moment. They can still do it whether it is the law or not, and putting in the £50,000 capital will not prevent them. It only means they will act as a syndic. This Bill simplifies procedure where there happens to be a limited company. I think there is the probability of a Bill here on the same lines as in England, but until that Bill is brought in I am satisfied that what is proposed would not achieve what is wanted. I have legal advice on that.
I would like to know is it possible for any corporate body under the Bill to undertake the duties of executor. The Senator mentioned the name of the firm with which I am connected. Would the Bank of Ireland and the Royal Dublin Society come under this Bill? Would it be possible under this Bill to appoint these bodies as executors?
It would be possible, if there is nothing in their articles of association which would prevent it. I think it is very possible that they have not the powers in their articles.
CATHAOIRLEACH
Would it not be the better way round to say that they could not do it except they had taken the powers to do it in their articles of association?
That is the case under the limited companies law.
My position is the same as that of Senator Douglas. I received only this morning from the Incorporated Law Society a letter suggesting amendments. Largely owing to a suggestion from the Chair the House honoured me by making me Chairman of the Committee. As Senator Douglas has told the House, an informal discussion took place with representatives of the Incorporated Law Society before the Committee sat. The members of the Committee had the opportunity of discussing these matters with two of the most eminent solicitors in Dublin.
Including this particular matter.
It is only fair to say that all along the Incorporated Law Society was very apprehensive as to the powers which would be conferred when this Bill became law, exactly in the direction indicated by you, sir, namely that bogus companies could be created. Apart from Senator Douglas's point that this Bill does not seek to alter the law as it stands, as if you were conferring on a body corporate the rights an individual already possesses, I do not know whether you rule that an amendment could not be moved on the Report Stage, because if the House allowed me I would move an amendment at the proper time. I think it would be on Clause 4 regulating the amount of the capital. There is an amendment I would like to move before that.
CATHAOIRLEACH
Better take it on the Report Stage, and then we will see what amendments are suggested.
I move:—
Section 1, sub-section (3). To delete in line 33 the words "a probate" and substitute therefor the words "the probate."
The amendment is purely verbal, simply taking out the word "a."
Question put and agreed to.
I move:—
Section 2, sub-section (2). Before the word "duties" in line 37 to insert the words "liabilities and."
I think it will be quite clear to the House what that amendment means.
Question put and agreed to.
I would like to move the following amendment:—
Sub-section (2). To add the words "including such security as would be required from an individual."
Here again the Incorporated Law Society fears that in the case of a body corporate the Probate Court would not require the security which is required in the case of an individual.
I would think that the Court would require such security whether the applicant be an individual or a body corporate. I respectfully submit that the addition of these words would not do any harm to the clause.
CATHAOIRLEACH
That is a very long way of putting it. Would it not be sufficient to say "and be subject to the same duties and security"?
On that point I consulted the Attorney-General and I am informed that, as far as the administrator is concerned, whatever the law is as regards an individual, including security or anything else, a company would be liable to. The number of cases, I may say, where a company would be given administration under this Bill is extremely few and far between, as there are very few cases under ordinary law at present in which the company could be the body to apply for administration.
CATHAOIRLEACH
That is not exactly the point. The difficulty is that here you have gone out of your way to say that they shall be subject to the same rules as an individual. If you do not put in that they should be subject to the same security the argument would be that, because you provided nothing else and had no other security it was not intended that they were to be so subject. If you are right, notwithstanding that you were advised that the position is the same precisely as for an individual, that sub-section is not necessary. You have put it in and by limiting it to certain definite cases you exclude other things; that is to say, security.
It is only right to say that this Bill received the careful consideration of a Special Committee ad hoc, set up by the Incorporated Law Society, and I am quite sure that any opinion they form carries very high authority as far as the draftsmanship is concerned.
CATHAOIRLEACH
If you put in sub-section 2 you improve it by including both after "duties" and securities.
It is not a matter that I object to. The only reason I resist it is, because I took legal advice and was advised against it.
CATHAOIRLEACH
And you did not follow that advice. If you did you would have left out the clause.
It was on that advice I put the clause in, as a matter of fact.
Amendment put and agreed to.
In order to satisfy myself I would like to move that the following new sub-section be inserted in Clause 4:—
"For the purposes of this Act the expression ‘body corporate' means and includes only a body corporate having a capital for the time being of not less than £50,000, of which not less than £20,000 shall have been paid up in cash."
That I dealt with at considerable length. When you say only for the purposes of this Act, it means that it only affects this Bill, and would not affect the law outside. That means that a company with a smaller capital could do everything that it does at present, except that it would not have the facilities if its capital was less. I am not sure that that is the best way of wording it, but I will not oppose the amendment if the House wants it to be put in. I think that it is a doubtful thing to add to a Bill of this kind without considerable care.
CATHAOIRLEACH
This Bill has only gone through this House.
That is all.
CATHAOIRLEACH
Any of these amendments could be put in in the other House.
If I got time I intended to consult the Incorporated Law Society. The Bill has still to go through the Dáil, and I intended to send it to the members dealing with it, and also to the Government, as they will have to deal with it.
That argument cuts both ways. If this House thinks that it should insert this amendment if the other House is so advised it can eliminate it.
CATHAOIRLEACH
This is a serious clause, and an important one, to rush in this way, as the House heard nothing of it when the Bill was introduced or on the Committee Stage.
I think if it is done it should be done by definition of what a body corporate is.
CATHAOIRLEACH
The only sensible way would be to define what a body corporate is for the purposes of this Bill.
When you have it confined to a body corporate, does it mean only a body corporate with a capital of £50,000 can get it?
CATHAOIRLEACH
Can get the benefit of this Bill. There are certain benefits conferred by this Bill, and to be qualified for them any body corporate must comply with the provisions of this Bill.
In the informal conference with the two gentlemen authorised, I presume to speak for the Incorporated Law Society, this matter was given consideration. The Committee did not approve of it, and I think the Incorporated Law Society fell in with their views.
CATHAOIRLEACH
I can only say that a very strong complaint was made to me to-day that this had not been attended to, and that the Incorporated Council was very keen about it.
My recollection is that the Committee were agreed that this clause should not be in the Bill.
CATHAOIRLEACH
I suppose that is the reason the Council were anxious about it. I think we had better let this stand over.
I will undertake that the letter and everything I have had from the Incorporated Law Society will be put before the Government Department that will have to deal with this matter before it passes. If the Government opposes it, the Bill will not pass.
I suggest we refer the matter back to the Committee for reconsideration.
There is no necessity for that.
CATHAOIRLEACH
A motion to refer it back is quite proper if it is to be brought in on the Report Stage. If we are told the Committee had this proposal before them and discussed and ruled it out, then the position is different.
Technically, the position is that it was not formally moved on the Second Reading, and in order to have the benefit of Senator Brown's presence, we had an informal conference. The Committee was hurried in order to have Senator Brown present, and it was decided at the conference not to go any further. I believe that the two members of the Society decided not to go any further.
CATHAOIRLEACH
We are not passing this Bill finally to-day. As we cannot do so until this day fortnight, could not the Report Stage remain unclosed and meantime let the matter be cleared up? If you are able to satisfy the Society that this is not necessary, I am sure they will not insist.
If that is so, I would not object. The fact is that being a Private Member's Bill and sent back to the Committee——
CATHAOIRLEACH
I am not suggesting to send it back to the Committee.
If not, it means, as the Seanad does not meet regularly, I cannot give the requisite notice for the final stage until this is through. If that is the wish of the Seanad, I agree.
Adjourn consideration of the Report Stage.
CATHAOIRLEACH
I think we had better let the Report Stage stand over until this day fortnight, and deal in the same way with the amendment we have accepted, because I feel that these words come in in another section, and that they have not been inserted there. They are omitted. This is too hurried, and I think we had better adjourn the Fourth Stage until this day fortnight.
Further consideration of the Bill on Report adjourned for a fortnight.