SELECT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS díospóireacht -
Wednesday, 4 Apr 2001

Vol. 4 No. 4

Company Law Enforcement Bill, 2000: Committee Stage (Resumed).

Chairman

The Tánaiste and Minister for Enterprise, Trade and Employment is unable to attend. I welcome the Minister of State, Deputy Treacy, and take this opportunity to ask him to convey our condolences to the Tánaiste on the death of her father. I also welcome the Department's officials, Philip Donegan, principal officer, Tim Cleary, assistant principal officer and Catriona Cooney, higher executive officer.

We had concluded our consideration of amendment No. 45a to section 33 and had moved to amendment No. 45b in the name of the Minister. We indicated that we would try to conclude our business today and with members' co-operation we will endeavour to do so. The Minister of State is anxious to give an opening statement which might help the committee to deal with the various amendments.

NEW SECTIONS.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. Treacy)

Is dona leis an Tánaiste nach bhfuil sí in ann a bheith linn inniu. Adhlacadh a hathair inné. Cuirfidh me an rún comhbhróin in iúil di nuair a bheidh mé ag teagmháil léi i rith na seachtaine.

Mr. Rabbitte

We all wish to be associated with the Minister of State's remarks and we sympathise with the Tánaiste and Minister for Enterprise, Trade and Employment on her bereavement.

Mr. Flanagan

I concur with Deputy Rabbitte. The Minister of State began speaking in the first language. From our point of view, the matters are complex enough without dealing with the amendments in Irish. I am not sure if that is the Minister of State's intention, but if that is how he wishes to proceed, I will have a difficulty.

Mr. Treacy

Ní dhéanfaidh mé sin. I move amendment No. 45b:

In page 23, before section 33, to insert the following new section:

"33.-Section 79(7) of the Act of 1990 is amended by the insertion after paragraph (b) of the following:

'(bb) fails to fulfil, within the period of 5 days next following the day on which he becomes aware of the matters referred to in section 91(2), the obligation to give the Exchange (within the meaning of that section) a notice required by that section, or'.".

I wish to inform the committee about a couple of issues that have arisen recently in respect of which we expect to bring forward amendments on Report Stage. The first amendment concerns the work of the gardaí who will be seconded to the office of the director of corporate enforcement to assist the director of corporate enforcement in his work. Following discussions between the director designate and the Garda Síochána concerning the secondment arrangements, it is intended to bring forward an amendment which will make it clear that gardaí seconded to the office of the director will continue to be vested with and may exercise the full powers and duties of members of the Garda Síochána and also that such gardaí will remain under the general direction and supervision of the Garda Commissioner.

The second amendment relates to documents filed with the Registrar of Companies. The Companies Acts require a range of documents to be filed with the registrar. In many instances, the requirement in the legislation is for the relevant document to be delivered to the registrar. Documents that are delivered to the registrar may be found to be deficient in some way, for example, they do not contain all the required information or they are missing a required enclosure. In such cases, the practice has been for the registrar to return the document to the company or individual who submitted it, pointing out the deficiency and requesting that this be remedied. In many cases, the deficiency is remedied and a replacement document is filed promptly.

However, in other cases, the company or individual concerned may not provide a replacement document and the registrar may have to consider a prosecution of the person for failure to file. This becomes problematic if the person has delivered a document in purported compliance with the requirement to do so, but the document concerned has not been accepted by the registrar. While it is clear that a document which does not comply with the law can be rejected, there may be a need to control how that operates in practice and to remove any possible doubt on the legal position. We are considering an amendment to the Bill to do that and we look forward to introducing it at a later stage.

Mr. Flanagan

The amendments presuppose the filing of documents in the Companies Office by way of manual filing, which has been the case over the years. I assumed the introduction of the Bill would have been accompanied by reform of the Companies Office regarding the physical filing and registration of documents. The Minister mentioned the delivery, lodging and return of documents that may be deficient and the subsequent return or non-return of the documentation by the lodging or filing party. I assumed matters would be dealt with on a much more efficient basis and that all the lodging and filing could have been done on-line. There should not be a need to physically file documents in the Companies Office. Up to now, people had to queue to lodge documents. This could be done electronically and provision should be made for on-line filing. This would obviate the need to engage in the type of cumbersome activity to which the Minister referred.

I ask the Minister to comment on the apparent difficulty regarding the delivery and filing of documents and the subsequent appearance of the document on the register. The process is not contemporaneous in so far as documents may be filed one day, but may not appear on the register for some time. This creates difficulties. An on-line system in the office would mean that the lodging and filing of documents and their appearance on the register would be contemporaneous and foolproof. It would also be more efficient. I do not have a difficulty with the amendments, but I have a problem with acceptance on the part of the Department that the manual mode of operation should continue indefinitely. This is not in the public interest.

Mr. Treacy

I appreciate the Deputy's comments. The Companies Office is now a sophisticated and modern technological operation. It has a detailed website and it is moving towards a situation where documentation will be accepted on-line. This relates to the e-commerce legislation that was passed which gives legal status to electronic signatures, documents and transfers. An amendment to a later section of the Bill takes account of this issue among others. I will clarify the matter at that stage. I appreciate the Deputy's comments, but we cannot insist that people file on-line. They must be allowed to deal with hard copies in the traditional manner if they wish.

Chairman

Will that be the case indefinitely?

Mr. Flanagan

There is a gap in the system, irrespective of the import of the amendment. This gap is manifest in the time between the lodging and filing of documents and their appearance on the register. This time lapse could give rise to a difficulty for an inquiring party.

Mr. Treacy

We want decisions speeded up and the office has become most efficient. We will consider whether it would be wise to go totally on-line in the future. I will examine the matter and I may have some information on it for Report Stage.

Amendment agreed to.

Mr. Treacy

I move amendment No. 45c:

In page 23, before section 33, to insert the following new section:

"33.-Section 92 of the Act of 1990 is amended-

(a) by the substitution for 'Director of Public Prosecutions' (wherever occurring, except in subsection (4)) of 'Director', and

(b) by the substitution of the following for subsection (4):

'(4) If, where any matter is reported or referred to the Director under this section, he has reasonable grounds for believing that an offence under section 79(7)(bb) has been committed and-

(a) institutes proceedings in respect of the offence, or

(b) refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions institutes proceedings in respect of the offence, it shall be the duty of a relevant authority of the Exchange, and of every officer of the company whose securities are concerned, and of any other person who appears to the Director or to the Director of Public Prosecutions, as the case may be, to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the proceedings which he or they are reasonably able to give.'.".

Amendment agreed to.

Section 33 deleted.

Mr. Treacy

I move amendment No. 45d:

In page 24, before section 34, to insert the following new section:

"Section 115 of the Act of 1990 is amended-

(a) by the substitution for 'Director of Public Prosecutions' (wherever occurring, except in subsection (4)) of 'Director',

(b) by the substitution of the following for subsection (4):

'(4) If, where any matter is reported or referred to the Director under this section, he has reasonable grounds for believing that an offence under this Part has been committed and-

(a) institutes proceedings in respect of the offence, or

(b) refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions institutes proceedings in respect of the offence, it shall be the duty of a relevant authority of the recognised stock exchange concerned, and of every officer of the company whose securities are concerned, and of any other person who appears to the Director or to the Director of Public Prosecutions, as the case may be, to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the proceedings which he or they are reasonably able to give.',

(c) in subsection (5), by the substitution for 'Minister' of 'Director', and

(d) by the deletion of subsection (6).".

Amendment agreed to.

Section 34 deleted.

Section 35 agreed to.

NEW SECTION.

Mr. Treacy

I move amendment No. 45e:

In page 25, before section 36, to insert the following new section:

"36.-Section 230 of the Act of 1990 is amended-

(a) by the substitution for 'Director of Public Prosecutions' (wherever occurring, except in subsection (4)) of 'Director',

(b) by the substitution of the following for subsection (4):

'(4) If, where any matter is reported or referred to the Director under this section, he has reasonable grounds for believing that an offence under section 228 or 229 has been committed and-

(a) institutes proceedings in respect of the offence, or

(b) refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions institutes proceedings in respect of the offence, it shall be the duty of a relevant authority of the recognised stock exchange concerned, and of every officer of the company whose shares are concerned, and of any other person who appears to the Director or to the Director of Public Prosecutions, as the case may be, to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the proceedings which he or they are reasonably able to give.',

(c) in subsection (5), by the substitution for 'Minister' of 'Director', and

(d) by the deletion of subsection (6)."

Amendment agreed to.

Section 36 deleted.

Section 37 agreed to.

SECTION 38.

Chairman

Amendment No. 46 and amendment No. 1 to amendment No. 46 are related and both may be discussed together. Is that agreed? Agreed.

Mr. Treacy

I move amendment No. 46:

In page 26, between lines 36 and 37, to insert the following subsection:

"(2) The amendment made-

(a) by paragraph (a) of subsection (1), in the case of a company referred to in section 150(3)(a)(i) of the Act of 1990, and

(b) by paragraph (b) of subsection (1), in the case of a company referred to in section 150(3)(a)(ii) of the Act of 1990, shall have effect-

(i) if the company is incorporated on or after the commencement of this section, on and from that commencement, and

(ii) if the company is incorporated before such commencement, on and from the date which is 6 months after that commencement.".

This amendment provides for the insertion of an additional subsection in section 38 of the Bill. Section 38 makes a number of amendments to section 150 of the Companies Act, 1990, relating to the restriction of persons from being directors or other officers of companies. In particular, section 150 specifies the amount of share capital a company is required to hold where a director of the company is restricted. This amount is to be increased in the case of a private company from £20,000 to £50,000 and in the case of a public company from £100,000 to £250,000.

The increase in these amounts is intended to ensure that companies that have restricted persons among their directors have adequate share capital to meet prospective debts in the more buoyant economy which now obtains compared to when these figures were set ten years ago. The purpose of the amendment is to provide for transitional arrangements in respect of existing companies which currently have restricted persons as directors. The amendment provides that the increased share capital requirements imposed by section 38 of the Bill shall not take effect in respect of companies incorporated prior to the commencement of the section until six months after commencement. The increased levels will have immediate effect in respect of companies incorporated post commencement of section 38.

The effect of Deputy Rabbitte's amendment would be to exempt companies which currently have restricted persons among their directors from the new capital requirements provided for in section 38 of the Bill. It would also exempt any company of which the person becomes a director during the period of the court restriction. The proposed increase in the capital levels reflects a concern that they are not currently adequate to provide a satisfactory level of customer protection. The purpose of the increase would be overturned if the Deputy's amendment was accepted. It would also result in a disparity between the requirements on different companies, that is, those which currently have a restricted person as a director and those which appoint a person who is restricted post commencement of the Bill as a director.

It is not the case that the increase in the levels of share capital required to be held by companies whose directors include restricted persons represents any interference of any kind with orders by the court prior to the enactment of the Bill. Where the court makes an order for restriction, any company of which the restricted person is or becomes a director, is subject to the requirements set out in Part VII of the Companies Act, 1990, including the requirement to have a certain amount of paid up share capital. The court decides on the restriction. It is the function of the Legislature to specify the relevant requirements and to set the level of share capital that must be held by companies affected by a restriction order. I hope this puts the matter in context and in the circumstances I am unable to accept DeputyRabbitte's amendment.

Mr. Rabbitte

I move amendment No. 1 to amendment No. 46:

In the new subsection (2), in the sixth line, after "shall" to insert "not apply to any order made by the court before the passing of this Act but otherwise shall".

The amendment relates to amendment 150 of the 1990 Act. I have no objection in principle to the requirement being made more onerous in terms of the share capital being increased from £100,000 to £250,000. However, a difficulty arises in terms of the transitional arrangement. Subsection (2)(i) of the Minister's amendment states that if the company is incorporated on or before the commencement of this section, it will function from that date. I have no difficulty with that, but subsection (2)(ii) states "if the company is incorporated before such commencement of the Act, on and from the date which is 6 months after that commencement". The provision will be invoked with effect from six months after the date of enactment of the legislation.

There are some difficulties in that regard, for example, there could be a court order restricting a director under the existing arrangements of section 150 of the 1990 Act where the share capital requirement was £100,000. However, the director is in the same position even when the order expires because there is now a requirement that the share capital should be £250,000. The Minister is not being fair in describing my amendment as overturning the import of his amendment because my point is that it should "not apply to any order made by the court before the passing of this Act but otherwise shall apply". It is not fair to suggest that it overturns the thrust of what the Minister is trying to achieve. I am seeking to protect the situation where a court has made an order under the existing law. This order should obtain.

A different regime will apply under the new law and it should apply from that date. However, there is a double whammy. If one is restricted under the existing arrangements and clears the decks, one will then find that the hurdle has been raised from £100,000 to £250,000. This hurdle is sufficient to disqualify a person under the new regime. I am not trying to undermine what the Minister is seeking to achieve, but to facilitate a reasonable transition that would be in tune with the court order made under the current arrangements.

Mr. Treacy

My interpretation of the legislation is that the court may restrict a person from holding the position of director. The court may do that prior to the commencement of this legislation or subsequent to its passage, but the person would still be restricted. My amendment proposes a monetary consideration whereby the company must have adequate resources in its operation to take account of any future liabilities that could be incurred. If it brings back a restricted director, it must have liquidity and resources.

If Deputy Rabbitte's proposal was accepted, directors who were restricted prior to the commencement of this Bill would at all times in the future be able to return as a restricted director under the old arrangements because they were restricted prior to the passage of the Bill. We cannot allow a situation where a person restricted after the passage of the Bill can return at a particular figure, but a person restricted prior to the commencement of the Bill can return at a lower figure. We must ensure that the figure is consistent and that the court has the right to restrict people now and in the future.

Mr. Rabbitte

The court will not make an order that will apply with indefinite effect in the circumstances the Minister described. The restricted director causes the situation to be put right. If the person meets his or her obligations under the court order, he or she may find that he or she is still not entitled to resume his or her position because the hurdle has been raised. It will involve a finite number of cases. There will not be a situation where there is a whole cadre of currently disqualified directors running parallel to a whole cadre of directors appointed under the new regime. As the Minister said, it is a limited transitional arrangement. It would still apply under my amendment with the exception that it would take account of the court order having been made before the passing of this legislation. We are effectively legislating with retrospective effect and, in general, that is not a particularly good idea.

Mr. Treacy

I appreciate the Deputy's point and I want to be certain there is absolute veracity and sustainability in any decision that is taken. On that basis, I am prepared to consider the matter for Report Stage. I will not have a problem if the Deputy retables the amendment at thatstage.

Mr. Rabbitte

In view of the Minister's comments, I will withdraw the amendment to the amendment.

Mr. Treacy

I thank the Deputy.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Section 38, as amended, agreed to.

SECTION 39.

Chairman

Amendments Nos. 47 and 48, amendment No. 1 to amendment to No. 48, amendment No. 49, amendment No. 1 to amendment No. 49 and amendments Nos. 50, 100 and 103 are related and may be discussed together. Is that agreed? Agreed.

Mr. Treacy

I move amendment No. 47:

In page 26, between lines 37 and 38, to insert the following:

"(a) by the insertion of the following after subsection (1):

'(1A) Without prejudice to subsection (1), a person who-

(a) fails to comply with section 3A(1) of the Companies (Amendment) Act, 1982, or section 195(8) of the Principal Act, or

(b) in purported compliance with the said section 3A(1) or 195(8), permits the first-mentioned statement in the said section 3A(1) or, as the case may be, the first-mentioned notification in the said section 195(8) to be accompanied by a statement signed by him which is false or misleading in a material respect,

shall, upon the delivery to the registrar of companies of the said first-mentioned statement or notification or, as the case may be, the said statement or notification accompanied by a statement as aforesaid, be deemed, for the purposes of this Act, to be subject to a disqualification order for the period referred to in subsection (1B).

(1B) The period mentioned in subsection (1A) is-

(a) so much as remains unexpired, at the date of the delivery mentioned in that subsection, of the period for which the person concerned is disqualified under the law of the other state referred to in section 3A(1) of theCompanies (Amendment) Act, 1982, or section 195(8) of the Principal Act from being appointed or acting in the manner described therein, or

(b) if the person concerned is so disqualified under the law of more than one other such state and the portions of the respective periods for which he is so disqualified that remain unexpired at the date of that delivery are not equal, whichever of those unexpired portions is the greatest.',".

Amendments Nos. 47 to 50, inclusive, 100 and 103 are among a number recommended by the company law review group. They relate primarily to the original section 39 amended by section 160 of the Companies Act, 1990. Section 160 of that Act is concerned with the disqualification of a person from being an auditor, director, officer, receiver, liquidator or examiner of a company or being in any way involved in the promotion, formation or management of a company. The company law review group is of the view that a person who is disqualified from being a director of a company in another jurisdiction should be capable of being disqualified in Ireland on the grounds of that foreign disqualification and provided the court is satisfied that the person should be disqualified. The amendments have been introduced to give effect to that proposal.

They provide a system whereby a person who is disqualified in another jurisdiction will be required to make a statement to that effect if he or she is appointed as, or proposes to become, a director of a company in this jurisdiction. The statement will be lodged with the Registrar of Companies. If a person who is required to make a statement fails to do so, he or she will be deemed to be disqualified here for the unexpired portion of their foreign disqualification. This is to discourage persons from concealing the fact that they are disqualified abroad. The director of corporate enforcement will have the power to apply to the court for a disqualification order in respect of a person on the basis that he or she is disqualified abroad. It is important to note that this system will not constitute an automatic recognition of foreign disqualifications as the court in this jurisdiction must be satisfied not only that a person is disqualified abroad, but also that it is just to make a disqualification order against that person. This will allow the person an opportunity to present an argument to the court as to why he or she should not be disqualified here.

Deputy Rabbitte's amendment to amendment No. 48 would alter the requirement that the court consider it just that a person who is disqualified abroad be disqualified here and provide instead that the court be satisfied that the conduct of the person that occasioned the foreign disqualification would, had it occurred here, have been such to warrant disqualification. It is the intention of amendment No. 48 that a person who is disqualified abroad should only be disqualified here if his or her conduct was such to warrant disqualification. Deputy Rabbitte's amendment may help to clarify the power of the court to make a disqualification order and I will consult with the parliamentary counsel with a view to taking it on board on Report Stage if the Deputy withdraws it at this stage.

In addition to provisions for the disqualification of persons who are disqualified abroad, the amendments also introduce a provision where a person may be disqualified on the grounds that he or she was a director of a company that was struck off the register for failure to file an annual return. This is intended to discourage directors from allowing a company to be struck off the register in an attempt to frustrate creditors seeking to enforce the payment of debts which often happens. The provision whereby directors may be disqualified and, therefore, effectively prevented from continuing in business if their company is struck off for failure to file an annual return should act as a powerful disincentive to the abuse of the strike off regime.

Provision is being made whereby a director may avoid being disqualified if he or she can show to the court that the company had no liabilities at the time that it was struck off the register or that any such liabilities have since been fully discharged. Deputy Rabbitte proposes in his amendment to amendment No. 49 that a director should escape disqualification if his or her company had no net liabilities at the time it was struck off the register. This would undermine the effect of the new provision as it would mean that the director of a company whose assets exceeded its liabilities at the time that it was struck off the register would not be subject to possible disqualification. It is in precisely these circumstances, that is, where a company has the capacity to meet its debts, that the strike off regime may be deliberately abused or may serve inadvertently to frustrate the claims of creditors. The fact that a company had no net liabilities at the time it was struck off does not in any way guarantee that its liabilities have since been discharged. As it is intended to ensure that the court is satisfied that any liabilities of a relevant company have been discharged in order not to proceed with the disqualification of the directors, I am not agreeable to limiting this to net liabilities only. I have considered and discussed this matter at length.

The effect of the various amendments is as follows. Amendment No. 47 provides for the insertion in section 160 of the Companies Act, 1990, of two new subsections. The purpose of the new subsections 1A and 1B is to provide that where a person who is required to make a statement as to his or her disqualification in another jurisdiction fails to do so or makes a false statement, the person shall be deemed to be disqualified in this jurisdiction.

Amendment No. 48 provides for the insertion in section 160(2) of two additional reasons for which disqualification may be imposed by the court. These are that the person in respect of whom the disqualification order was sought either was a director of a company that was struck off the register for failure to file an annual return or is disqualified in another jurisdiction. As I indicated, I intend to introduce a further amendment along the lines of the amendment tabled by Deputy Rabbitte on Report Stage.

Amendment No. 49 provides that the court shall not disqualify a person on the basis that he or she was a director of a company that was struck off the register for failure to file an annual return if the person can satisfy the court that the company had no debts or that any debts were subsequently fully discharged. In relation to a person who is disqualified abroad, the amendment makes it clear that the court can impose a disqualification order notwithstanding that the person concerned is already deemed disqualified for failing to make the required statement as to that foreign disqualification.

Amendment No. 50 extends the list of paragraphs to which the new subsection 6A of section 160 will apply. This will permit the director of corporate enforcement to make an application for the disqualification of persons on any of the grounds for disqualification set out in section 160, including the proposed new paragraphs (h) and (i) inserted by amendment No. 48.

Amendments Nos. 100 and 103 respectively require a person who is disqualified abroad and who becomes a director of a company here, or who proposes to become a director of a company seeking incorporation here, to file a statement as to his or her foreign disqualification with the Registrar of Companies. This will alert the director of corporate enforcement to the fact that the person concerned has become a director of a company here and allow the director to consider whether to seek a disqualification order against the person so named.

Mr. Rabbitte

The first point that occurs to me is the need to codify company law. It is almost impossible to follow the amendments which are on at least three different sheets of paper, let alone follow the course of the Acts being amended. I chased paragraph 3A in the amendment on the basis that it was in the 1990 Act, but I discovered that it is in the Companies (Amendment) Act, 1982. The chairman will recall that in a previous discussion on a different Company Law (Amendment) Bill, there was a problem because the Minister had designated the wrong Bill. He referred to the first Bill in 1990, which I call the Goodman Bill, when he meant the principal Bill. It may be impossible to believe, but the Minister of State was the person who made that error, although I know he does not make too many of them. He fielded the matter with the same aplomb and confidence he displays when he is right, but it highlights the need for a consolidation Act because it is difficult to follow all the legislation.

The various amendments on this section refer to section 160 of the 1990 Act which relates to the disqualification of directors. I am seeking, in amendment No. 1 to amendment No. 48, to impose a test in terms of where the disqualification would take place. It should not just be automatic as a result of the fact that the director had been disqualified in another jurisdiction. Rather, the court here ought to be satisfied that if the same offence had been committed in this jurisdiction, disqualification would have been warranted. I do not know what the company law regime is in Croatia or Uganda but we ought to clarify the test that the court is expected to apply in terms of the automatic disqualification. I am seeking to do no more than that.

I welcome the Minister's statement. If he is taking advice on it from the parliamentary draftsman and from the Office of the Attorney General before Report Stage, I am happy with that. That was the purpose of the amendment in the first place so I withdraw it to facilitate the discussion.

I was not aware, even though the Minister knows I rely on his every word——

Mr. Treacy

I appreciate that.

Mr. Rabbitte

The Minister tells me that the import of amendment No. 1 to amendment No. 49 is that where assets exceed liabilities, the director would not be liable to be struck off. That was not my intent. Every company has liabilities but I thought the issue was whether the company had net liabilities, which is a different matter. Just because the company is in a net plus situation does not mean it does not have liabilities. It could have a variety of liabilities and I was seeking to establish the test that it would be net liabilities. If the Minister tells me that in trying to make that distinction I am, in effect, overturning his amendment No. 49, I will believe him but he will have to explain it to me again.

Mr. Flanagan

My point relates to the Minister's amendment rather than Deputy Rabbitte's amendment. Will the Minister clarify the practical import or consequence of his amendments? My understanding is that the ministerial amendments are, as it were, removing the bluntness from the blunt instrument that is the original section 39, which provides for an automatic strike off. The Minister is introducing a qualification whereby the strike off would not be automatic where there is no net financial liability.

The object of the exercise is that the law would not be automatic and sweeping in its manifestation. The objective would be that where a disqualification order might otherwise apply, it would not apply in this section if it could be shown that the subject of the disqualification application was not guilty of a breach that caused material financial damage to the company rather than in a situation where there was no net liability. The case made by Deputy Rabbitte is reasonable in so far as there will be companies whose liabilities will exceed their assets for reasons that might have nothing to do with misconduct on the part of a member or qualified person.

I am seeking an assurance from the Minister that we are looking at the reason for the liability and that unless it can be shown that the reason for the liability is some stated misbehaviour or an error of a type that would warrant disqualification and if it can be shown that the person involved took reasonable steps to act in a prompt manner and where his error or misbehaviour did not cause any material financial damage to the company itself, the disqualification order would not apply or the escape the Minister has suggested in amendment No. 48 might apply. Perhaps he would clarify that point. I would not welcome a situation where there would be automatic disqualification for reasons over which we have little jurisdiction.

Mr. Treacy

In response to Deputy Rabbitte's comments, there is a permanent company law review group. It is committed to ensuring that company law is codified. Given that it will be a permanent structure, we are confident the group will be able to address the situation in an evolving way, and the sooner the better. It is difficult for legislators and people who deal with companies to have to refer to the various Acts. It would be more simple if they were codified, especially with the availability of modern technology.

With regard to the queries raised by members, most companies would have net liabilities and in many cases companies would have assets that are greater than their liabilities. Just because a company has assets that exceed its liabilities, it does not mean the company has discharged the liabil-ities. This is what the court must take into account.

It is the fact that the company has been struck off that frustrates the creditors in seeking to have their claims paid. In other words, if the directors and people acting on their behalf fail to file returns, the company might be struck off. They could constructively and creatively work, individually or together, to achieve that objective. That would mean the company is struck off and nobody can get to the assets. The creditors stand to lose in a serious way. Strike off for failure to file will continue. The registrar will still be entitled to strike off. The question of liabilities will only be considered in relation to disqualification. Automatic disqualification takes place and the court is obliged to disqualify for fraud and dishonesty. Where the company is struck off without meeting its debts the court must take that into account and make the necessary decisions.

Applications for disqualification will only be brought by the director of corporate enforcement where he or she thinks it appropriate to do so. Only the court can make an order for disqualification. It is not and will not be automatic. The court will make its decision on the basis both of the evidence presented to it by the director in his or her submission for prosecution and the defence offered by the director or directors. Having examined the books and figures of account, the court will make its final decision.

Amendment agreed to.

Mr. Treacy

I move amendment No. 48:

In page 27, paragraph (a)(ii), to delete lines 1 and 2 and substitute the following:

" '(g) a person has been guilty of 2 or more offences under section 202(10); or

(h) a person was a director of a company at the time of the sending, after the commencement of section 39 of the Company Law Enforcement Act, 2001, of a letter under subsection (1) of section 12 of the Companies (Amendment) Act, 1982, to the company and the name of which, following the taking of the other steps under that section consequent on the sending of that letter, was struck off the register under subsection (3) of that section; or

(i) a person is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking and the court considers it just to make a disqualification order against him;'.".

Amendment No. 1 to amendment No. 48 not moved.

Amendment agreed to.

Mr. Treacy

I move amendment No. 49:

In page 27, between lines 2 and 3, to insert the following:

"(b) by the insertion of the following after subsection (3):

'(3A) The court shall not make a disqualification order under paragraph (h) of subsection (2) against a person who shows to the court that the company referred to in that paragraph had no liabilities (whether actual, contingent or prospective) at the time its name was struck off the register or that any such liabilities that existed at that time were discharged before the date of the making of the application for the disqualification order.

(3B) A disqualification order under paragraph (i) of subsection (2) may be made against a person notwithstanding that, at the time of the making of the order, the person is deemed, by virtue of subsection (1A), to be subject to a disqualification order for the purposes of this Act, and where such a disqualification order is made, the period of disqualification specified in it shall be expressed to begin on the expiry of the period of disqualification referred to in subsection (1B) to which the person, by virtue of subsection (1A), is subject or the said period of disqualification as varied, if such be the case, under subsection (8).',".

Amendment No. 1 to amendment No. 49 not moved.

Amendment agreed to.

Mr. Treacy

I move amendment No. 50:

In page 27, paragraph (c), line 9, to delete "(f) or (g)" and substitute "(f), (g), (h) or (i)".

Amendment agreed to.

Section 39, as amended, agreed to.

Section 40 agreed to.

NEW SECTION.

Mr. Treacy

I move amendment No. 51:

In page 27, before section 41, to insert the following new section:

"41.-Section 245 of the Act of 1963 is amended-

(a) in subsection (1), by the insertion after 'The court may,' of 'of its own motion or on the application of the Director,', and

(b) by the substitution of the following for subsection (6):

'(6) A person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him and any answer by him to such a question may be used in evidence against him in any proceedings whatsoever (save proceedings for an offence (other than perjury in respect of such an answer)).'.".

Amendment agreed to.

Section 41 deleted.

Section 42 agreed to.

SECTION 43.

Chairman

Amendment No. 55 is related to amendment No. 52. Is it agreed that we discuss both amendments together?

Mr. Rabbitte

Is amendment No. 52b not also related?

Chairman

No. It is suggested that we deal with amendments Nos. 52 and 55 together and amendments Nos. 52a and 52b together. Is it agreed that we discuss amendments Nos. 52 and 55 together? Agreed.

Mr. Treacy

I move amendment No. 52:

In page 28, line 46, after "the Director," to insert "a creditor of the company or any other interested person,".

These amendments relate to sections 43 and 46 of the Bill. Section 43 provides for the repeal and replacement of section 247 of the Companies Act, 1963. Section 247 currently provides that a contributory of a company that is being wound up by the court may be arrested by order of that court. The court may make such an order where it is satisfied that the person concerned may be about to abscond or otherwise seek to avoid examination as to the affairs of the company or the payment of calls in relation to the debts of the company.

Section 43 of this Bill extends the list of persons to whom this section applies to include directors, shadow directors, secretaries or other officers of a company. It also provides that an application for the arrest of a person under section 247 of the 1963 Act may be made by the director of corporate enforcement. Amendment No. 52 provides further that such an application may be made by a creditor of the company or other interested persons. This is implicit in the current wording of section 247 which provides that the court may make an order under this section on proof of probable cause for believing that the person may be about to abscond.

In the replacement of section 247 these words have been repeated but there is some doubt as to whether by specifically providing that the director of corporate enforcement may make an application under the section the revised wording might in some way raise questions as to the right of others to do the same also. The purpose of this amendment, therefore, is to make it clear that an application under section 247 may be made not only by the director of corporate enforcement but by any creditor of the company or by any other interested person.

Amendment No. 55 has the same effect in respect of section 46 of this Bill, which provides for the insertion into the Companies Act, 1963, of four new sections dealing with the powers of the court in the case of a voluntary liquidation. The sections in question provide similar powers to the court in respect of voluntary liquidations as it currently exercises in respect of companies in official liquidation.

Amendment agreed to.

Acting Chairman (Mr. D’Arcy)

Amendments Nos. 52a and 52b are related and may be discussed together. Is that agreed? Agreed.

Mr. Rabbitte

I move amendment No. 52a:

In page 28, lines 46 and 47, to delete from and including "the contributory," on line 46, down to and including "his" on line 47 and substitute "that person's".

I have no idea what I had in mind in amendment No. 52b but it might come back to me. The point of amendment No. 52a is the appropriateness of the power of arrest in these circumstances. As the Minister said, this section is designed to deal with a situation where somebody is likely to quit the State or otherwise abscond. Certain far-reaching powers are now provided in this section to deal with that situation, including the seizure of documents and personal property.

While I support that and the seizure of books, papers and movable personal property in the circumstances described, I question the issue of arrest and detention of persons who have not committed an offence. It is clear from the section that they have not committed an offence. The power of arrest is a significant power and there is a right to personal liberty in this democracy. This section is conferring the power to seize property, books and relevant papers. As I see it, the court order might be quite indefinite. It refers to such time as the court may order.

The court may, on its own motion or on the application of the director of corporate enforcement, cause the director or other officer to be arrested, his books, papers and movable personal property to be seized and he and they to be detained. Amendment No. 52b is consequent on amendment No. 52a in terms of the necessary tidying up of the language. The section permits the seizure of the personal property and for the person and the property to be detained until such time as the court may order. That means that the person can be arrested and detained at the pleasure of the court even though, at this stage, he or she has not committed an offence.

This is due to the fear of the person absconding. The Minister's advisers will have advised him on particular cases that have occurred in the past which warrant this measure. There are cases in our recent commercial history where this would have been useful. However, if one can seize the necessary documents and evidence one requires, automatic detention and arrest appear to be somewhat draconian. I ask the Minister to reflect on that.

Mr. Flanagan

I do not disagree. This is an important section. One could describe it as the Marbella avoidance section. I wonder about its practical application. It looks, sounds and reads well, but how workable is it? I assume it is designed to avoid a situation where persons in the beef and insurance industries, who are living lavish lifestyles in the south of Spain, cannot be followed by subsequent persons in the same or different businesses. The Minister of State should convince the committee of its workability or practical application. From reading the section and the amendments tabled, I assume the director believes a person can be stopped having purchased a ticket, or beforehand if the director believes the person concerned is about to leave the jurisdiction. That is a broad and sweeping power and while I do not disagree with the concept, I am not sure if the manner in which we are going about this matter will achieve the desired result.

The Minister of State should elaborate on the standard of evidence that will be required of the director or the burden of proof required and the involvement, if any, of the Garda in the matter. As Deputy Rabbitte indicated, no criminal offence will have taken place at the time of arrest or prohibition on movement. Will the Minister of State give a practical example of the way in which he sees the section working? I do not disagree with it, but I see problems with it and I am unsure it will achieve the enforcement application envisaged.

Mr. Treacy

These amendments relate to section 43 which provides for the repeal of section 247 of the Companies Act, 1963, which provides that the court may order the arrest of a contributory of a company which has been wound up insolvent if it is satisfied that there is a reason to believe the person concerned may be about to abscond to avoid payment, the cause of examination into the company. It also provides that the court may order the seizure of an individual's personal property and its retention until such time as it may direct. Section 43 of the Bill extends section 247 to cover directors, shadow directors, secretaries and other officers of a company as well as contributaries. Amendment No. 52 provides that an application under section 247 may be made not only by the Director of Corporate Enforcement, but also by any creditor of the company or any other interested person. The effect of Deputy Rabbitte's amendments would be to remove the power of arrest provided for in section 247 of the 1963 Act and confine its power to the seizure of an individual's personal assets. This would undermine the central purpose of the section, which is to secure the arrest of a person likely to abscond.

Section 247 is not only about seizing assets to meet an individual's liabilities towards the debts of a company, it is also intended to allow the court to arrest and detain a person who may be required to give information about the affairs of a company being wound up by the court. The exercise by the court of its power of arrest may in some cases be the only way in which it can secure the information required in order to complete the liquidation of a company. The power of arrest is provided for in section 247 since 1963 and it would not be appropriate now that we are bringing forward modern legislation to remove it at this time.

Mr. Rabbitte

Committee Stage is about trying to tease the matter out and an argument should be made from the civil liberties point of view. As Deputy Flanagan said, there is also a practical aspect. What is the Minister of State's advice regarding the power of section 247 of the 1963 Act? I have no objection to the expansion of the term "director" to include shadow director and so on. That makes perfect sense. How frequently has this power under the 1963 Act been invoked? How many times have would-be absconders been snatched from the boat in Dun Laoghaire and incarcerated at the pleasure of the State? If the Minister of State is arguing in defence of a power we have had since 1963, when the world was young and we were all more innocent as a commercial class as well as everything else, he must have the experience to justify the reason we now want to extend it. In terms of we on this side of the House measuring its efficacy, can the Minister of State tell us some of the famous figures still rotting in Mountjoy or elsewhere in order that we can see if this is worth the candle?

Mr. Treacy

The court is empowered under section 245 of the 1963 Act to examine persons as to the affairs of a company. If a person to be examined under section 245 failed to attend and appeared to be about to abscond, the power of arrest under section 247 would be invoked by the court. This can be considered as being similar to contempt of court. In other words, if, as a director, I am sent for to respond to the court regarding an examination of myself, my involvement with the company and the company itself and refuse to turn up, one could say that I am in contempt of court as I was expected to be in court and did not turn up. Consequent on this, the court could use the power of arrest by directing that I be arrested and brought before it. It would make the decision.

Regarding Deputy Rabbitte's question, we have no evidence as of now that this power has ever been used. We can search a little more, but we cannot think of any occasion on which it has been used. Obviously, in the future, under the new regime, the Director of Corporate Enforcement could go to the court to seek such action as deemed necessary by the court which he or she would believe appropriate. At the end of the day it is for the court to decide what action is appropriate. Also, people may be reluctant to co-operate, once co-operation is made possible by one's physical presence and the procurement and presentation to the court of necessary documentation and information that the court would take into account, as it does on all occasions.

Mr. Rabbitte

Is it not a salutary commentary that in defence of the amendment the Minister of State can tell the committee that this power which has been provided for since 1963 has never been invoked?

Mr. Treacy

That is the information available to me.

Mr. Rabbitte

Absolutely.

Mr. Treacy

I was a mere national school student then.

Mr. Rabbitte

I would say that the Minister of State was as forthright and confident in his opinions then as he is now. I want to measure whether they have more validity now than when he was in national school. If this power has never been invoked, Deputy Flanagan's point comes into play in terms of its practicality. Is the Minister of State advised that it is a deterrent, or that it is more likely to be invoked in the future? Is it, simply, not feasible in the practical world? What kinds of circumstances are likely to make up the court's mind along the lines suggested by section 247 of the 1963 Act or section 43 of the Bill? If a person packs a BMW, has the poodle put into a kennel and the ticket bought at Dún Laoghaire and then someone sees him or her walking down Grafton Street with the ticket sticking out of his or her pocket, what is the standard of evidence needed? In what set of circumstances would this power be invoked? Would the court be likely to say that in its judgment the person concerned is likely to abscond if he or she is at liberty, but that this is a valuable power in company law that it intends to implement?

Mr. Flanagan

I do not wish to be repetitive, but the Minister of State has not dealt with my earlier concern about the standard of proof that will be required in the practical application. How will the section work? The Minister of State indicated that when this power was first introduced he was a mere national school pupil. The inefficiency or unworkability of the law is underlined by the fact that the Minister of State has now left national school, presumably gone through secondary school and college and is now a Minister of State for 12 of the last 15 years, yet still nobody has been arrested under the section. He has not said anything that leads us to believe the situation will be otherwise. Has the advice of the Attorney General been sought on the issue? Some would be concerned by the way in which assets, papers or property might be removed rapidly, but leaving that to one side to concentrate on personal liberty, the court may act on the basis of some evidence - I say "some" because we have not heard the standard from the Minister of State - given by a director.

Does a certain amendment refer to the evidence of other interested parties being used? Can a party other than the Director of Corporate Enforcement make such an application? For the purposes of the legislation, what is an interested party? This can also be very wide in its application and I envisage great difficulties from the civil liberties perspective in the application of the section. That is the reason I am not surprised there has been no great success with the old section 247 since 1963. There could be fundamental civil liberties difficulties with the section.

What advice has the Attorney General proffered on the matter? As we all are aware, wearing another hat, he is the author, more than anyone else, of this legislation.

Mr. Treacy

The Deputies' contributions are very pertinent. The direct response is yes, the advice available to me is that this is a very valuable power in company law and that it is expected to be used much more frequently in the future by the Director of Corporate Enforcement. The standard of proof would be the same as that in civil cases, that is, that on the balance of probability a person was likely to abscond. Investigations would be ongoing by the gardai in the Office of the Director of Corporate Enforcement. The director would be actively investigating relevant cases and in a position to professionally predict, as a result of the information available to him and his colleagues in that office, that a person may be about to abscond.

Regarding interested parties, an interested party could be a co-director of the company who, for nefarious or other reasons, was not discharging his or her obligations or acting in a negative capacity to undermine the company or others. It could be an auditor or lawyer or any professional representative of another creditor.

Mr. Flanagan

An unsecured creditor.

Mr. Treacy

Perhaps. It could be someone who is owed money and who might have a nugget of information to bring to court or the Director of Corporate Enforcement in particular. This could lead to an application being made, but at the end of the day we take comfort from the fact that a court will make the final decision which will have to be based on the balance of probability that a person is likely to abscond.

Mr. Flanagan

Is there a specific power on the part of the court to remove an individual's passport?

Mr. Treacy

I am not certain, but I think that power is provided for under other laws and presume that the court can make a decision based on that situation. From my knowledge of the legislation, we have not included it, but I am prepared, based on the important points made by Deputies Flanagan and Rabbitte, to consult the Attorney General on the issue. As Deputy Flanagan said, he was the author, chairman and final editor of the report produced on the issue. Consequent on this, we can take it that the legislation has been professionally and legally concluded. I want to make sure, however, that whatever we do, as legislators, the rights of the individual, constitutional and otherwise, are paramount. We must protect them at all times. I will consult the Attorney General again to clarify the points raised.

Mr. Rabbitte

We have had a reasonable discussion and if the Minister of State takes the advice of the Attorney General, it would help on Report Stage. Part of the difficulty is that it might be difficult for us to advance a case on civil liberties grounds when that could easily be construed as acting in defence of fraudulent directors, which is not the intention.

Deputy Flanagan's last point was interesting. If there was power to sequester a would-be offender's passport, one would have thought that, generally speaking, that would be enough to encourage him or her to stay in the jurisdiction. What percentage weight is being given to this measure as a deterrent, as distinct from anything likely to be enforced? Is it a comment on our tardiness in enforcing company law that we have no cases chalked up, though we have a number of people, as has been said, who defected from the jurisdiction and allegedly are living high lifestyles in more congenial climes? Is it our tardiness in enforcing the legislation, or is it the legislation's impracticality in the view of the court that has mean that we cannot produce a single case to say: "This is a valuable measure, look at the high profile case in which it was implemented. If we did not have the power of arrest, Mr. Tony Taylor or whoever would have got out of the jurisdiction"? It is remarkable that there has not been a single case because it is not as if we are an island of saints and scholars. We might have been down in Ahascragh in 1963, but nobody could say that about the rest of the island since. How come we have not chalked up one case in the meantime?

Mr Flanagan

Lest there be any misunderstandings, I hold no flags for corporate fraudsters. It is vitally important for us, as legislators, to thrash out these points and raise these issues. The last thing we want to do, as the Minister of State would agree, is facilitate the driving of a coach and four through the law or two fingers being given by some corporate general to a section that reads and looks well, but which might be totally inconsequential and ineffective.

Acting Chairman

The Minister of State has promised Deputy Rabbitte to ask the Attorney General for his views and come back to the issue on Report Stage.

Mr. Treacy

Most definitely. I take on board everything that has been said. We want to ensure we retain that which is best in existing law, reinforce and strengthen it in current law and allow the Director of Corporate Enforcement to proceed on the basis that he has enabling legislation available to him which allows him to ensure there are no loopholes and that corporate law can be properly policed and enforced. Points were made by both Deputies pertaining to the past. The fact is that while we were tardy in ensuring this situation was policed, we now have a new environment and regime. It is important that we leave no stone unturned to ensure the different legal requirements are fulfilled. It is our duty, as legislators, to ensure the individual's rights are protected in whatever we decide.

Amendment, by leave, withdrawn.

Amendment No. 52b not moved.

Section 43, as amended, agreed to.

NEW SECTION.

Mr. Flanagan

I move amendment No. 53:

In page 29, before section 44, to insert the following new section:

"44.-Section 266(3) of the Act of 1963 is amended by the deletion of paragraph (a) and the substitution of the following:

'(a) cause a full statement of the position of the company's affairs, together with a list of the creditors of the company and the estimated amount of their claims to be-

(i) laid before the meeting of the creditors to be held as aforesaid; and

(ii) lodged with the Companies Registration Office; and'.".

This amendment seeks to require directors to verify, by way of affidavit, the statement of affairs and that a copy of the affidavit be filed and registered in the Companies Registration Office. This would merely give a similar status to the situation that obtains in a court liquidation or a member's voluntary liquidation. For the sake of clarity, such an affidavit would be of assistance; it would be for the record and with the statement of affairs. It would be a sworn document lodged to bolster the statement of affairs in the same way as occurs in other situations.

Mr. Treacy

The amendment proposes a new section amending section 266 of the Companies Act, 1963, subsection (3) of which requires the directors of a company to lay a statement of affairs of the company, including a list of its creditors, before a meeting of the creditors where the company is being wound up through a creditor's voluntary liquidation. The amendment would also require that the statement of the company's affairs prepared by its directors be lodged at the Companies Registration Office in addition to being provided for the creditors at their meeting and thereby be publicly available. I understand what Deputy Naughten is trying to achieve with the amendment, but the inclusion of a provision along these lines may do more harm than good. Currently information as to a company's indebtedness is private to the company and, in the case of a creditor's voluntary liquidation, its creditors. This information can be viewed as potentially commercially sensitive in that the credit rating of one or more of the company's creditors may be affected if the perception is created that the creditor concerned has a substantial exposure in respect of the company in liquidation. There may, therefore, be an undesirable knock-on effect in making the information known outside the body of creditors.

It is an offence for the directors of a company not to provide a statement of the company's affairs to the creditors in a creditor's voluntary liquidation. This should be sufficient to ensure the directors meet their obligations or, if they do not, that there is an adequate sanction available. In the event of a company failing in its obligation to provide a statement of affairs to its creditors, it is unlikely to meet any new statutory obligation to lodge such a statement with the Companies Registration Office; in other words, if it does not honour its commitment to its creditors within the existing structure, it will surely not do so under a new one. There is no compelling reason, therefore, to require that the statement of affairs of a company in voluntary liquidation be placed on the public record in the Companies Registration Office. The information in question is only of immediate relevance to the creditors and I do not consider wider disclosure to be warranted. Consequently, I oppose the amendment.

Mr. Flanagan

I accept what the Minister of State says.

Amendment, by leave, withdrawn.

Section 44 agreed to.

Section 45 agreed to.

SECTION 46.

Acting Chairman

Amendment No. 54 has been discussed with amendment No. 29.

Mr. Treacy

I move amendment No. 54:

In page 30, lines 7 to 12, to delete all words from and including "might" on line 7, down to and including "answer." on line 12, and substitute the following:

"might incriminate him and any answer by him to such a question may be used in evidence against him in any proceedings whatsoever (save proceedings for an offence (other than perjury in respect of such an answer)).".

Amendment agreed to.

Acting Chairman

Amendment No. 55 has been discussed with amendment No. 52.

Mr. Treacy

I move amendment No. 55:

In page 31, line 35, after "Director," to insert "a creditor of the company or any other interested person,".

Amendment agreed to.

Section 46, as amended, agreed to.

NEW SECTION.

Mr. Rabbitte

I move amendment No. 56:

In page 31, before section 47, to insert the following new section:

"47.-Section 297A of the Act of 1963 (inserted by section 138 of the Act of 1990) is hereby amended by the insertion after subsection (2)(a) of the following:

'(aa) he was responsible for the failure by the company to have adequate employers' liability insurance in respect of death or any personal injury caused to any or all of its employees and for which the company has been or would have been held liable in damages, or'.".

I am seeking to amend the definition of "reckless trading", a matter I have raised on previous occasions, whereby the failure to have in place adequate insurance for personal injury would be subject to the same sanctions as reckless trading. A director responsible for failing to ensure adequate insurance cover would, under the amendment, become personally liable and, in effect, reverse the import of the Supreme Court decision in the case of Sweeney v. Duggan where a manual labourer who had been seriously crippled as a result of an accident was found not to be successful because there was no insurance cover. If we require certain minimum standards of public safety and other basic standards of conduct by employers in terms of employment offered, this is a gaping hole that seriously and urgently requires an amendment, particularly at a time of boom in the economy. Some sections of the building industry are known to be cutting corners and the number of fatalities has risen in recent years. Men run the risk of being seriously injured only to find that there is no personal liability insurance cover. We are talking about personal safety, which can be far more serious in its consequences than some of the other issues on which we have dwelt. Somebody can be crippled for life and yet not be in a position to recover any damages because of the absence of personal injury insurance cover. I urge the Minister of State to take this on board when amending the definition of "reckless trading".

Mr. Treacy

The amendment proposes the insertion of a new section, amending section 297A of the Companies Act, 1963, which provides for the civil liability of officers of a company in respect of the debts of the company in certain circumstances. Under section 297A a court may order that an officer of a company be held liable for its debts where he or she was guilty of reckless or fraudulent trading. Reckless trading is defined as including where a person was party to the carrying on of a business in the knowledge that his or her actions or those of the company would cause loss to its creditors or contracting a debt by the company that he or she did not honestly believe it would be able to pay. The amendment would further define reckless trading to include being responsible for the failure by the company to have in place adequate employers' liability insurance in respect of personal injuries caused to its employees.

While the matter of employers' liability insurance is very important, it does not fall within the scope of the Bill. Before legislating to, effectively, make employers' liability insurance a prerequisite for the promotion of a business through the vehicle of a limited liability company, consideration needs to be given to all the implications of so doing. I am aware that some large companies may choose to carry their own insurance in cases where the risk is very small or, conversely, where the premium is very large. This is becoming more frequent nowadays.

This matter needs careful thought before being legislated for. In this regard we are willing to add it to a future work programme of the company law review group. With the Minister, I propose to ask the group to consider the issue. It is more prudent and appropriate to proceed in this way. If it is believed that the law should be amended after such consideration, we should do so.

Mr. Rabbitte

I thank the Minister of State for his goodwill on the matter. Given the best will in the world, the process outlined by him will take approximately five years to complete. Even with the most industrious of Ministers in terms of legislation, the company law review group is considerably behind in terms of the number of areas of company law it has identified for revision. It will continue to be behind, despite the fact that it is in permanent session. By the time it considers this area, the Minister of the day is persuaded to act and the parliamentary counsel drafts the legislation a lengthy period will have elapsed.

This is not the first time I have proposed an amendment of this kind. Similar commitments were made by the Minister of State's colleagues in the Department, although I do not doubt his good faith in the matter. We are, effectively, placing a higher premium on loss to creditors than injury to employees. It is remarkable that we can do this without demur. The vast majority of employers make prudent provision for this situation, but that is very little good to the man who falls off scaffolding only to discover that there is no insurance.

The Minister of State says that he cannot proceed because it is outside the scope of the Bill. However, where there is a will, it is remarkable what can be done. I have facilitated the passage of legislation at this committee where there was no connection between one part of the Bill and another other than political expedience requiring the use of a Bill to tack on reform of the law in some area we considered urgent and desirable. If we were to reject amendments on the basis that they were not coherent or symmetrical with Bills, a great number of legislative measures passed by the House would be invalid.

This issue is not to the forefront in the Department. I worked with the company law review group and greatly respect the voluntary work it puts into complex areas. However, none in this House could make the case that the group is entirely free of vested interest. It, probably, could not be otherwise. I do not know if there is a trade Unionist on the group who would make these considerations more prominent on the agenda than others who may have their own hobby horses and who, for example, in their professional work as accountants may have come across matters badly in need of reform. It would be natural for them to push them. However, this issue is a matter of life and death, in dealing with which we are very backward.

Mr. Flanagan

I did not expect such an amendment in the context of the legislation, but having listened to Deputy Rabbitte and considered the amendment, I see his point. The Minister of State has conceded that the amendment is technically sound, but that this is not the most appropriate forum in which to accept it. That argument can be countered by the length of time it will take to deal with the issue in a different context. We should, therefore, provide for it in the legislation.

The Minister of State does not appear to have any principled objection to the amendment. It would be alarming if he did. While significant, the application of the amendment would not be widespread. The type of company likely to operate without employers' or public liability insurance is the one at which the legislation is targeted. It is the company likely to be engaged in shady activity and have problems of the type dealt with in the Bill.

This is the type of situation we should address in the Bill. Tragic circumstances have confronted individuals and their families because of criminal negligence by companies in allowing people to enter sites and employing them in whatever corporate adventure they might be engaged without having an appropriate policy of employers' liability insurance. Workers do not have recourse to the equivalent of the Motor Insurance Bureau which addresses problems encountered in the absence of valid motor insurance.

Deputy Rabbitte's arguments are compelling. The Minister of State has conceded agreement on the point. Given the title of the Bill - Company Law Enforcement Bill - the matter should be included in the agenda of the Director of Corporate Enforcement. Every company should be aware that there are serious sanctions for those who wish to engage in work or practice without having a valid policy of employers' liability insurance at all times. I urge the Minister of State to accept the amendment.

Mr. Treacy

It is not the first time I have debated this matter with Deputy Rabbitte and others and I appreciate their positive points. Deputy Flanagan has also made good points. I do not oppose the amendment as such but we must take into account that some companies carry their own insurance. We must decide if this is the appropriate legislation in which to include this provision. Do we have sufficient information to make such a decision?

This is more properly a matter for the Health and Safety Authority and legislation pertaining to health and safety. It could also be a matter for insurance legislation. Deputy Rabbitte made a very important point about the life and death aspect. A comparison could be made with mortgage protection where before mortgage protection became mandatory, a husband could die leaving his widow to carry the mortgage liability. I am prepared to refer this matter to the Company Law Review Group and I will ask it to produce an early report within one year of the commencement of this legislation.

Mr. Rabbitte

I appreciate the Minister of State's good faith in the matter and his commitment. I accept his offer in the spirit in which it is intended. I am nervous that while his advice indicated the matter should be considered by the Company Law Review Group he went on to indicate that it might be a matter for the Health and Safety Authority. The Department or the authority is undertaking analysis of a number of matters affecting health and safety. I am worried the issue may fall between two stools. Had I known about the Programme for Prosperity and Fairness - or programme for prosperity and delight - when it was being negotiated, what I know now and had I imparted that information to IBEC or the ICTU it would probably be law by now. It appears that the real way to make law is to get the social partners to do it. We are merely elected by the people and do not have much say in that kind of thing.

I am worried that one section in the Department will tell the Minister of State that the issue should be dealt with not by the Company Law Review Group but by the Health and Safety Authority. Alternatively, the insurance section could tell him that instead of addressing the awkward question of young drivers the insurance industry has indicated that progress can be made on this issue. I do not mind which part of the Department deals with the issue so long as it is addressed because it is a matter of life and death. I know of families on the bread line because they failed to get significant compensation for crippling injuries which one their members sustained.

The matter is urgent. I accept what the Minister of State has said. It should be referred to the Company Law Review Group on the basis that a conclusion is reached within 12 months.

Mr. Treacy

I hope I did not convey the wrong message. This matter may be more appropriately dealt with by way of health and safety or insurance legislation as distinct from company legislation. I am committed to referring the matter to the Company Law Review Group for consideration and I will ask it to report one year after the commencement of this legislation. I recently held a positive meeting with the group which lasted approximately three and a half hours. Those involved are excellent and highly committed to their work. They are proud to serve their country in a voluntary capacity at this level. The trade union movement is represented. I am confident that whatever responsibilities are given to the group, it will produce a positive recommendation.

Amendment, by leave, withdrawn.

Section 47 agreed to.

Sections 48 and 49 agreed to.

SECTION 50.

Chairman

Amendments Nos. 57 and 62 are related and both may be discussed together by agreement.

Mr. Treacy

I move amendment No. 57:

In page 33, between lines 14 and 15, to insert the following:

"(3) A request under subsection (1) may not be made in respect of books relating to a receivership that has concluded more than 6 years prior to the request.".

These amendments relate to sections 50 and 54 which permit the director of corporate enforcement to inspect the books of a receiver or liquidator as part of the director's general supervisory role over the activities of liquidators. The Bill provides that the director may request the production of a receiver's or liquidator's books and that it is an offence for the person concerned to refuse to comply with the request from the director.

The amendments will limit the extent to which the director can request production of a receiver's or a liquidator's books to cover only those books relating to cases that have been concluded in the six years prior to the request. This is the same period for which companies are required to retain their books of account under section 202 of the Companies Act, 1990. It is a reasonable time period to require receivers or liquidators to keep records of the companies they have dealt with.

Amendment agreed to.

Section 50, as amended, agreed to.

NEW SECTION.

Mr. Rabbitte

I move amendment No. 58:

In page 33, before section 51, to insert the following new section:

"51.-Section 25B (provisions with respect to leases) of the Act of 1990 (inserted by section 26 of the Companies (Amendment) (No. 2) Act, 1990) is hereby repealed.".

I endorse the Minister of State's comments about those who give of their time voluntarily on the Company Law Review Group. Ironically, this amendment relates to the repeal of an amendment proposed by the group. When I was Minister of State I was lobbied incessantly by the group to enact legislation the effect of which would be to exempt the banks from taking a hit during an examinership. I profoundly object to that. Everybody should take a limited hit during an examinership. As Minister of State I refused to accede to the request, however, I was rudely and mistakenly removed from office and my replacement promptly enacted legislation to give the banks such an exemption. It was mistaken.

Examinership has been a useful instrument. Others are more knowledgeable about how frequently it is resorted to in an economic boom but in the past where companies encountered temporary difficulties examinership proved its value. It is equitable that in such circumstances banks like others should take a limited hit.

The difficulty with this is that 99.8% of the public does not know anything about it. The ability of the media to become preoccupied with irrelevant fripperies never ceases to amaze me. They rarely dwell on matters of greater moment. This is one such matter where legislation has been enacted to exempt the banks from the hit as other creditors would take under an examinership. The effect of the bank's position could be the folding of the company concerned because examinership will not work without the banks. I am sure the amendment will be accepted by the Minister of State. It will at least embarrass him because I know he agrees with me.

Mr. Treacy

I have no problem being on the same course as Deputy Rabbitte but whether we end up at the same post at the same time is another matter. The amendment concerns section 25B of the Companies (Amendment) Act, 1990, which was inserted by section 26 of the Companies (Amendment) (No. 2) Act, 1999. Section 25B was the subject of a lengthy debate on Committee and Report Stages of the Companies (Amendment) (No. 2) Bill.

Section 25B of the 1990 Act provides that where a company is under the protection of the court, that is in examinership, a compromise or scheme of arrangement may not contain any provision in respect of a lease of land which reduces the amount of any rent or other periodic payment due after the coming into effect of the compromise or scheme of arrangement or which cancels the right of the lessor to such payment. The effect of this is to protect a lessor from having to accept reduced rents for the future.

However, like all other creditors, if the lessor was owed money prior to the appointment of the examiner, he could be required by the examiner's proposals to accept a write-down of that debt. Post examinership, lessors are placed on the same footing as other creditors, none of whom are expected to accept reduced payment for goods supplied after the examinership process has come to an end. However, where a lessor agrees a scheme of arrangement it can include a provision for the lessor accepting a reduced rent post examinership for whatever period he or she is prepared to do so.

It has been suggested that this section could mean the lessor could repossess a substantial asset from a company, thereby preventing it from continuing to trade and preventing a scheme of arrangement from being effectively put in place. If a company is not in a position to honour the terms of a lease and pay the pre-agreed rent for a property once the examinership period has come to a close, then the lessor cannot be made by the examiner's scheme of arrangement to accept a reduced rent for that asset. This may mean that if the company begins to default on its payments after the examinership has come to an end, the lessor could seek to repossess the asset.

The basic question here is should a lessor be forced to subsidise the ongoing operation of a company that is unable to pay its debts? That is a very serious situation because latent subsidies would be made available which would distort competition That would be unfair.

Post examinership, other creditors cannot be forced to accept reduced payments for their goods and services from a company because it was once in examinership. Creditors who have to engage in a write-down during an examinership in respect of money owed to them might decide not to do business with the company again. That is their right.

A lessor does not have the same level of flexibility. He or she must honour the terms of the lease with the company. This section ensures that post examinership, a company, unless a lessor agrees otherwise, should also do so. The Company Law Review Group, which examined this provision, considered it unreasonable to require a lessor of an asset such as an office block to be required by an examiner's scheme of arrangement to accept reduced payments for a future period post examinership. Everybody takes a hit during examinership, including lessors, property owners, suppliers and banks. That is only fair and reasonable and that the law should take account of that. We must be fair to everybody. We cannot provide that somebody must take a bigger hit post examinership when there is no opt-out clause. For example, leases cannot be broken. The examinership allows the company to trade out if its crisis following which it should be on a sound footing and should be able to meet all its commitments. Consequently, equity, reasonableness and fairness must prevail. Accordingly, I cannot accept the amendment.

Mr. Callely resumed the Chair.

Mr. Rabbitte

While I do not accept the Minster of State's argument, I accept this provision will not be enacted. I doubt if I can call on the assistance of the four Independent Deputies to support me. I am not sure if the issue of examinership and leasing predominates in Kilgarvan or Kilcoole so I will withdraw the amendment.

I suggest, Chairman, that the committee adjourn at 5.15 p.m. We have made considerable progress but we will not finish Committee Stage today. I have another meeting at 5.30 p.m. Perhaps that would be agreeable to the Minister of State and Deputy Flanagan.

Mr. Treacy

I am anxious to facilitate the House and the Members and I appreciate the time and attention given by the excellent members of the committee to the consideration of legislation. If we are to make progress we must facilitate the requirements of all members.

If examinership was to be objectively examined it would be found that all parties are treated fairly and that an opportunity has been provided to those involved to restore economic success.

Amendment, by leave, withdrawn.

Sections 51 and 52 agreed to.

SECTION 53.

Mr. Treacy

I move amendment No. 59:

In page 34, subsection (1), line 12, after "appointment" to insert "or the commencement of this section, whichever is the later,".

Section 53 imposes an obligation on liquidators of insolvent companies to report to the director of corporate enforcement on the conduct of the directors of those companies. In addition, liquidators of insolvent companies are required to apply to the court for the restriction of the company directors unless the director of corporate enforcement relieves them of the obligation to do so.

The Parliamentary Council has advised that the requirement to make a report to the director of corporate enforcement would only apply to liquidators and insolvent companies appointed after the commencement of the section. The amendment seeks to also impose the requirement to make a report to the director on liquidators of insolvent companies in the case of liquidations that are ongoing at the time of the commencement of the section. It does so by providing that the time limits for the submission of the required report to the director will be six months after the appointment of the liquidator, or the commencement of this section of the Bill, whichever is the later. This would give liquidators appointed before the commencement of the section six months from the date of commencement to submit the required report.

Once the director of corporate enforcement is able to become operational as a result of the passage of this legislation, whatever difficulties companies have with liquidation or any other type of activity would be noticeable to the director so that he could take due cognisance of that fact and build up information that would be available for future cases in legislation. We should take account of that.

Mr. Flanagan

There may be an unfair burden in the form of costs placed on the liquidator in cases envisaged under this section. We are dealing with insolvency here. Creditors - there may be many - will already have been placed in a position of considerable fear, anguish and disadvantage. Placing this responsibility on the liquidator will add considerably to the costs and will ensure that any assets or fall-out that may be due to creditors will be lessened.

Has the Minister considered the criminal law analogy of the role and function of the Director of Public Prosecutions? Rather than have the liquidator engage in this work by obligation, perhaps the director of corporate enforcement might undertake the work this section envisages the liquidator might do, if for no other reason than to reduce the question of costs, which in the circumstances could be substantial. Would it be possible to have the director, rather than the liquidator, make the application?

Mr. Rabbitte

I support the arguments made by Deputy Flanagan. I do not have in my possession the submission of the CCABI, but do not doubt that it has been received by the Minister of State and his advisers. As Deputy Flanagan stated, the net point is that the obligation to apply for disqualification ought to rest with the director. I am not sure I understand the nature of the argument against it. An application can hardly carry much conviction if the liquidator is forced to make it. As matters stand, the liquidator will have to make the application, regardless of whether he wants to, unless the director relieves him of that obligation. I agree with Deputy Flanagan's assertion that there are many downsides to making it a mandatory requirement for a liquidator of an insolvent company to apply to the courts for a disqualification. The Minister of State has not indicated what is the upside. Why frame the section in this way, rather than conferring the responsibility on the director?

Mr. Treacy

If we took amendments Nos. 59 and 60 together, I might be able to supply further information in respect of amendment No. 59.

Chairman

Is it agreed that amendments Nos. 59 and 60 should be taken together? Agreed.

Mr. Treacy

Amendment No. 60 relates to section 63 in so far as it requires the liquidator of an insolvent company to apply the courts for the restriction of the company's directors unless the Director of Corporate Enforcement relieves him or her of the obligation to do so. The remainder of the information in my possession is extremely relevant to amendment No. 59.

One of the chief controls contained in the Companies Acts in respect of directors of companies which become insolvent is the provision in section 150 of the Companies Act, 1990, for the restriction of such persons. Those restrictions set out certain minimum capital requirements on companies of which the restricted person is a director. They are designed to protect, as far as possible, the interests of shareholders, creditors and other persons with whom such restricted persons may do business. In court order liquidations, liquidators are required by an earlier direction of the court to apply for the restriction of the directors of companies. Section 53(2) of the Bill will extend this requirement to the liquidators of all companies which become insolvent, whether these are wound up by the court or through a creditors' voluntary liquidation.

The exception to this general rule will be in cases where the Director of Corporate Enforcement, on the basis of the information contained in a liquidator's report - which we propose to have forwarded to him - relieves the liquidator from the obligation to make applications for the restriction of company directors in specific cases. The Director of Corporate Enforcement might do so either because he or she did not consider that the actions of particular directors were such as to warrant restriction or because he or she proposed to take action against a particular director, on his or her own behalf, and intended to include a restriction application as part of that action.

I do not agree that section 53(2) should be deleted as proposed in the amendment. There is a requirement on liquidators of companies in official liquidation to apply for the restriction of company directors. This provision will merely extend that requirement to cover all insolvent companies. There is no reason that the directors of an insolvent company wound up by way of a creditors' voluntary liquidation should be treated any differently from those of an insolvent company wound up by the court. The liquidation fund will have to bear the costs of any application for the restriction of a director made pursuant to the section. The working group on company law compliance and enforcement was aware of this fact when making this recommendation, but considered it a reasonable requirement to impose on liquidators in view of the importance of having restriction applications made in appropriate cases.

Under the section, liquidators are obliged under existing law to apply to the courts to have directors declared unsuitable. In this instance, we are referring matters to the Director of Corporate Enforcement who may take a decision that that may not be necessary and who will also have the option to decide, on foot of information made available and the outcome of his or her investigations, that it may only be necessary to pursue only one director and take them to court.

Mr. Flanagan

At that stage, the money will have been spent and the investigation taken place.

Mr. Treacy

Is it not right that this should be the case? Liquidation is a serious matter and we cannot allow professionals to fail to discharge their obligations. The State should not be involved, through the Director of Corporate Enforcement, in cases where the professionals discharging their obligations would not be mandatorily obliged to transfer information to the Director of Corporate Enforcement. It is important that records and information on the reasons for a liquidation and the persons involved in a company should be made available in order that judgments can be made and that people can refer back to such verifiable information which will be available from the Director of Corporate Enforcement.

Mr. Flanagan

I am not sure whether the Minister of State and I are on the same wavelength in respect of this matter. Under the section a liquidator will undertake the appropriate investigation in respect of every director of a company. In most cases, the majority of directors will not have engaged in wrongdoing. Why will creditors ultimately be obliged to foot the bill? I do not know if I am being unfair, but I remain to be convinced by the Minister of State. I put it to him that it is a fair analogy to state that what is envisaged in the section is similar to requesting a victim of crime to do the job we normally expect to be undertaken by the DPP. I request that the Minister of State rebut what I have said.

Mr. Treacy

I suggest that the Deputy should change his analogy and state that he expects the liquidator, in this instance, to do the job of the DPP, acting for the victims of the collapse of a company. We are asking that a report be provided - presumably, a new document created by the Director of Corporate Enforcement which would be simple in its nature and not overly expensive - and that its provision will not impose any significant cost on the liquidator.

The McDowell group did not go as far as to recommend the establishment of a State funded liquidation service, rather it envisaged the existing arrangement with regard to liquidations continuing with the Director of Corporate Enforcement having the role of determining whether directors of companies should be made the subject of applications for restriction. There is no reason that professionals charged with the serious matter of managing liquidations should not be able to report the de facto situation to the Director of Corporate Enforcement. It would be foolish if we did not include a clear caveat that they should be obliged to do so and that the Director of Corporate Enforcement will have the right to decide whether to make a general application on the restriction of the directors of a company, to make an application to restrict a sole director, or to make no application whatever. That is a good way to proceed.

Mr. Flanagan

I am sure the Minister of State will accept that creditors will be expected to foot the bill.

Mr. Treacy

I accept that to be the case, to a certain degree. However, the cost involved will be minimal. We are not imposing a major burden.

Amendment agreed to.

Amendment No. 60 not moved.

Mr. Treacy

I move amendment No. 61:

In page 34, subsection (2), line 16, to delete "4 months" and substitute "5 months (or such later time as the court may allow and advises the Director)".

Section 53 imposes an obligation on liquidators of insolvent companies to report to the Director of Corporate Enforcement on the conduct of the directors of those companies. In addition, liquidators of insolvent companies are required by section 53 to apply to the court for the restriction of the company directors unless the Director of Corporate Enforcement relieves them of the obligation to do so.

Amendment No. 61 relates to the time frame within which a liquidator is required to apply to the court for the restriction of the directors of an insolvent company. Section 53 currently allows a period of one month only for the application to be made and the legal assistant has advised that this could be interpreted as too strict a time limit to impose. Accordingly, I propose to extend the period in question to at least two months and to provide that the time allowed may be further extended on application by the liquidator to the court. This will have no substantive effect on the requirement to seek restriction orders; it will merely facilitate liquidators in circumstances where they have difficulty complying with that requirement within the time allowed.

That the court will have the power to extend the period within which a liquidator may apply for the restriction of directors will also have another beneficial effect, namely, it will avoid any possible interpretation of the existing text to the effect that a liquidator who failed to apply before the stated time period expired will be prohibited from doing so thereafter. I hope this places the matter in context.

Amendment agreed to.

Section 53, as amended, agreed to.

SECTION 54.

Mr. Treacy

I move amendment No. 62:

In page 34, between lines 35 and 36, to insert the following subsection:

"(3) A request under subsection (1) may not be made in respect of books relating to a liquidation that has concluded more than 6 years prior to the request.".

Amendment agreed to.

Section 54, as amended, agreed to.

SECTION 55.

Chairman

Amendments Nos. 63 and 81 to 83, inclusive, are related and may be taken together by agreement.

Mr. Treacy

I move amendment No. 63:

In page 34, line 46, after "body" to insert "to whom the failure is attributable".

Amendments Nos. 63, 81, 82 and 83 relate to sections 55 and 70, which require certain professional bodies to report to the Director of Corporate Enforcement instances of misconduct or suspected offences under the Companies Acts on the part of their members in the conduct of receiverships or liquidations. The sections provide for reporting by prescribed bodies where a disciplinary committee or tribunal of the body finds that a member has not maintained proper records in the conduct of a receivership or liquidation or appears to have committed an offence under the Companies Acts. If the body fails to comply with its reporting requirement, the body and its officers will be guilty of an offence.

Amendments Nos. 63 and 83 clarify that only officers of the body to whom the failure to make the required report is attributable would be guilty of an offence. These amendments are proposed on the basis of legal advice to the effect that the automatic criminalisation of every officer of a body that was required to make a report but failed to do so would be disproportionate and might be unconstitutional. Where, for example, an officer of the body was abroad or otherwise absent for the period of the proceedings of the disciplinary committee or the tribunal, that officer should not be held accountable for the failure by the body to fulfil its reporting obligations.

Amendments Nos. 81 and 82 specify that, whereas the findings which are to be reported to the Director of Corporate Enforcement under section 70 are those of a disciplinary committee or tribunal, the reporting requirement itself attaches to the body in question and not specifically to the committee concerned, as it is the body that is subject to regulation.

Amendment agreed to.

Question proposed: "That section 55 stand part of the Bill."

Chairman

Will Minister provide me with information regarding the qualification of liquidators in this regard and the action that can be taken where a liquidator is found wanting in terms of not proceeding with a liquidation to the full extent? I had experience of this matter a number of years ago when I was deemed to be a creditor of a company and I could only take certain steps at the time. I was dissatisfied with the other options available to me. I would welcome it if the Minister could supply the information I have requested.

Mr. Treacy

We will make it available in due course.

Section 55, as amended, agreed to.

Section 56 agreed to.

NEW SECTION.

Mr. Flanagan

I move amendment No. 64:

In page 35, before section 57, to insert the following new section:

"57.-Section 127 of the Act of 1963 is amended by the insertion of the following after subsection (1):

'(1A) The date of the annual general meeting shall be forwarded to the registrar of companies not later than 30 days prior to the annual general meeting.'.".

I have been informed that the provisions in section 57 will cause difficulties from a practical point of view and I am sure representations have been made to the Minister of State in that regard. It will be difficult to operate in practice, particularly in light of the time scale involved and the fact that there are such heavy fines for non-compliance with the provisions of this section. Amendment No. 64 introduces an element of flexibility that does not detract from the clarity of the situation and I would like to hear the Minister of State's views on it.

Mr. Treacy

This amendment relates to section 57, which provides for the introduction of a new mechanism - the annual return date - for determining the date in each year on which a company is required to file its annual return for the registrar of companies. The section makes provision to replace section 127 of the Companies Act, 1963, which provides that a company's annual return must be completed within 60 days of its annual general meeting and filed with the registrar of companies forthwith. The link that currently exists between the holding of the annual general meeting and the filing of the annual return is problematic for the registrar of companies in enforcing the statutory obligation on companies to file an annual return.

As the Tánaiste previously indicated to the committee, there is a considerable degree of laxity on the part of firms in meeting their statutory obligation to file an annual return. This section replaces the requirement that the annual return be completed within 60 days of the AGM, with the requirement that it be made up to a date not later than the annual return date and filed with the registrar within 28 days of that date. The introduction of this provision, which breaks the link between the filing of annual returns and a company's AGM, will allow the registrar to monitor compliance with annual return filing requirements, a task that cannot currently be done effectively because of the link to which I refer.

The amendment proposes that in place of the introduction of the annual return date, the existing system should be retained and a company should simply be required to notify the registrar of companies of the date on which it proposes to hold its AGM. This would not achieve a solution to existing difficulties with the policing of the annual return filing requirement. Where a company failed to inform the registrar of its intention to hold an AGM, it would still be the responsibility of the registrar to prove that the company had defaulted. It would be equally as difficult to prove precisely when that default occurred as it is to prove that a company defaulted on the filing of its annual return. The advantage of the annual return date system proposed in the Bill is that it will allow the registrar to monitor a company's compliance with its filing requirement on an ongoing basis because the registrar will know precisely when that company is due to file its annual return. This will allow the registrar to issue advance reminders to companies and to inform them when they fail to file on time. It will also facilitate the calculation of late filing fees.

An effective system for the management of the annual return filing requirement is greatly dependent on the existence of a clearly identifiable and objective date by which a company is required to file its return. A facility whereby companies could unilaterally alter that date would completely undermine the system. Such a problem exists at present. We must also consider that the registrar's enforcement report in respect of the annual filing requirement will, by definition, be targeted at non-compliant companies. If a company fails to file its annual return, it is reasonable to expect that it is also likely to fail to inform the registrar of the holding of its annual general meeting.

The annual return date system contains considerable flexibility for companies, while giving certainty to the registrar of companies. Amendment Nos. 65 and 67 introduce further flexibility regarding when the annual return may be delivered to the registrar. The annual return date system provided for in section 57 has been devised following careful and detailed consideration of the various issues involved and consultation with all the interested parties. While it may seem complicated at first, the new system will prove reasonably easy to operate, for both companies and the registrar, once it is up and running.

Mr. Flanagan

I will withdraw the amendment if the Minister of State can supply me with a copy of the transcript, perhaps later this evening, because I would like an opportunity to consider its contents before Report Stage.

Mr. Treacy

I will do my best to provide it to the Deputy by 8.30 p.m. If not, he will receive it tomorrow. I thank the Deputy for his co-operation.

Amendment, by leave, withdrawn.

Chairman

As agreed earlier, it is proposed that we adjourn proceedings at this point. We will recommence on section 57, amendment No. 65. I thank the Minister of State, Deputy Treacy, and his officials, Philip Donegan, Tim Cleary and Catriona Cooney for attending today's proceedings. I will ask the Clerk to liaise with the Minister of State's office to arrange a further meeting to allow us to complete our consideration of the Bill as soon as possible.

The Select Committee adjourned at 5.22 p.m. sine die.