What are the qualifications of a liquidator if the examiner has to have the same qualifications? I ask a question for the simple reason that there should be basic standards required in relation to all of these posts. We all know that, at the end of the day, it is going to be a certain group of people who will be appointed, but why not put it into the legislation that people must have some qualifications? As it stands here a person shall not be qualified to be appointed or act as an examiner of a company if he would not be qualified to act as a liquidator. What does that mean? There is no qualification for a liquidator. There is no qualification for an examiner.
SECTION 180.
Question proposed: "That section 180 stand part of the Bill."
If I could deal with the specific point Deputy Barrett is making. There are certain grounds on which a person will not be entitled to act as a liquidator. He is disqualified for certain reasons such as relationship with some of the officers of the company or something like that. What the section is saying is that an examiner, in the same position with the same degree of relationship to the officers or directors or whatever, will equally not be qualified to act as examiner. The question that Deputy Barrett raises is undoubtedly a valid one. I have no qualms about that, but I am just explaining the section as I read it.
Deputy Barrett has raised a very important question. I would like to read on a little further and say that it is my impression, from a consideration of the role of the examiner up to now, that he has a special role to play with regard to a company that may be ailing or may be in difficulty or about to get into difficulty or causing a creditor or some other interested person, a problem. It is for that reason that I would like to see the sort of qualification mentioned by Deputy Barrett being spelt out more clearly. I am not referring to the examiner being disqualified because he would not have the qualifications to act as a liquidator. I think that the role of the examiner is much wider than that. I do not think that we should just tie it up, or require an examiner to have the same qualifications as a liquidator. I would like to see an examiner having the capabilities of playing a much broader role. He would probably be bringing to his role a much wider class of experience specifically related to saving a company, or rescuing a company. He would be bringing to that company or business an experience that he or she might have had in the business world that would be of benefit to the particular company. That is why we should get away from trying to narrow it down too much.
I totally agree with my colleagues. On the sidenote we have qualifications of examiner, and the first thing we are told is that a person should not be qualified to be appointed or act as an examiner. That is explained in detail. I find this is a comical section. I would ask the Minister to use this Bill at the next stage — we cannot do much at this stage I presume — to clearly define the qualifications required. Obviously, we all want the highest degree of qualifications and indeed, as Deputy Flood has said, to have experience in this area. It goes back to earlier points. It is quite ridiculous to have a sidenote describing the qualifications of an examiner, and then going on to tell us what people would not qualify for this position. I do not think I have seen that in any other description of jobs in any profession. You describe the qualities required; You do not go on to say what you do not need for this position and what kind of people would not fulfil the requirements of this position.
I find myself in agreement with my colleagues on this. Could I suggest to the Minister that he might look at the possibility of changing the section around to read that a person shall be qualified to be appointed to act as an examiner if he fulfils such qualifications as may be prescribed by order. That would mean that, if the Minister wanted to, he could make an initial order, along the lines of the section saying that the only people who could qualify are those who are qualified to be liquidators. If, in practice, he discovers that other qualifications are required or that that is too narrow a qualification or whatever, there could be a certain amount of flexibility to change it. That might be a way around it. I do not think we want to see the whole thing tied up too tightly.
This section creates some interest in relation to the qualifications. We have expressed qualifications. Qualifications are expressed in the negative. They refer back to section 124 which outline the actual different categories an undischarged bankrupt and an officer serving within the previous 12 months. We have gone through this ad nauseambefore. I do not know why there is any great difficulty with it at this stage. It is outlined there. It refers back to section 124. That outlines the disqualifications, the people who are not qualified.
A Deputy
Maybe the sidenote is wrong, then.
The sidenote says qualifications, of examiner, which are actually disqualifications. They are expressed in the negative. It is quite reasonable.
[Loss of text due to technical fault]
Does the Minister agree though that there are certain advantages in allowing a measure of flexibility here? It may well be that the negative provisions of section 124 are not sufficiently specific to the person we want to act in this capacity, particularly in view of the fact that examiners are a new type of person in company law, whereas liquidators are not. The formula of words that I suggest would give the Minister much more flexibility to either have narrow or wide qualifications. Could he respond specifically to that suggestion?
The reason why I raised this is because of the sidenote which would imply that "qualifications of an examiner" means that, like any other position, you have to hold certain qualifications or whatever. Obviously, that is not what is meant. I suggest that should be changed straightaway. Secondly, I do believe that, given the importance of this position, you need to build up confidence in order for this Part of the Bill to work. It is more important than ever that the creditor would have confidence in the ability of the individual who is going to be appointed to act as an examiner. The effectiveness of this Bill depends on the goodwill of people working together to try to save a company, where they themselves, as creditors, may stand to lose more money. I want to tell you that if I was put in that position, I would be watching very closely who was the individual who was being put in as the examiner, more so than the receiver or a liquidator. The ball game is all over at that stage but in this position the ability of the person to do a deal and get people together, to examine the company, see its way forward, is very important. He should be somebody of substance who has some basic qualifications in the real sense of the word. I would certainly go along with Deputy Bruton's suggestion that we give the Minister power by order to set the qualifications for an examiner rather than have someone trying to write it into legislation. Unless I am misreading the situation, a lot of the success of this Part or the failure will depend on the cooperation of creditors and the confidence that each individual can give. For that reason we should not be afraid to say that we want somebody with certain qualifications. I equally think that the Minister should amend the sidenote of the Act, because it could be interpreted differently from what he has said in his note.
The sidenote to section 124 should read: "Disqualifiation for appointment as liquidator" whereas there it says "Qualification of examiners". I will endeavour to clarify that point. It seems to be a contradiction in terms. In general, calls for the establishment of basic minimum qualification of persons to act as receiver, liquidator or examiner would amount to the setting of qualifications for operating as insolvency practitioners. I understand that such provisions have been in operation in the United Kingdom for a number of years.
The basic thrust of the present Bill is, and always has been, to curb abuses in business. Many people have urged us to incorporate in the Bill many other wide-ranging reforms which go beyond its scope. While many of these suggestions are worthwhile, I have decided not to tackle the relevant issues in the present Bill. The question of setting minimum qualifications for receivers, examiners or liquidators falls into this category.
I would agree with Deputies that there are arguments in favour of laying down minimum qualifications for persons appointed as receivers, liquidators or examiners. There are also other considerations which would not favour such an approach. In other words, I am not saying there are not grounds for making provisions along the lines Deputies suggested but that I do not intend to move in that direction in this Bill. Clearly, the issues need to be examined in greater detail. I would regard it as somewhat precipitate to move on this issue now. The minimum qualifications for receivers, liquidators and examiners need further examination. With regard to what the Deputy said in relation to scope or flexibility I should say I would prefer such to be clearly stipulated, as they are in section 124. If we left it to the making of orders or regulations then we would be raising other issues which would not have had the benefit of having been debated here on Committee and or Report Stages. The provisions incorporated in section 124 have been cleared by the Attorney General whose advice is that they cover all possible contingencies. It is a very complex Bill. I will not name the particular Attorney General on whose advice we relied but it has been going on for ten years. Quite a number of Attorneys-General have come and gone in the meantime.
I do not think the Minister would lose anything by leaving the section exactly as it is, but adding after the word "liquidator", save that the Minister may, by order, make more particular provision laying down qualifications for acting as examiner — something like that. That would leave the provision exactly as it is but would give the Minister power — if he decides next year or ten years from now that he wants to make a more detailed provision — so that he would not have to come back, go through the whole rigmarole of preparing legislation, heads of a Bill and so on. It would just entail the order-making procedure.
It is not too big of a step but this has been debated ad nauseam. I have gone through it here before. The Deputy has a very good point, but it would leave it up to the Minister of the day to make such regulations. That is a matter for consideration. It does arise in other sections. I know it is a point of view Deputies have voiced numerous times. We are putting a lot of work back for further consideration at the end of the day. Nonetheless it is worthy of consideration.
Perhaps Deputy John Bruton could consider tabling an amendment on Report Stage.
That is why the Minister is paid a slightly more ample salary than I. He is responsible for preparing amendments of this kind — with the benefit of official advice — under political direction. All I am asking the Minister to do is give a political direction to his officials in this case which would make eminent sense — to give himself the power to be more specific as to the qualifications of examiners at a later stage. It does not bind him to changing the Bill at all at present. It would give him flexibility for the future bearing in mind that it took ten years to get this Bill to this stage. If we are going to have to wait another ten years to remedy this position — which could be dealt with by order — we will waste a lot of time.
I have been subjected to great persuasion from all sides today but I am not going to give Members commitments I cannot honour on Report Stage. I am satisfied that the section, as drafted, covers all possible contingencies we want covered. I am quite satisfied to retain this section.
Who is running this Bill? The fact of the matter is that the majority in this Committee agree that there should be a change along lines that would allow flexibility. The Minister should take account of the fact that clearly a majority of the Committee Members present believe there should be something done along these lines. I know that if it comes to a vote rightly the Minister will have the support of his party colleagues, but that is not the point.
That is not the point of having a discussion on this section — as far as the majority are concerned — because it would be much easier to say: "Yes, we will". I know Deputy Bruton is well aware of the protracted discussions on this section — under sections 124 and 145. That discussion has to be taken on board in relation to the very detailed discussions that took place on the people who should be qualified or disqualified from serving as examiner, liquidator or receiver under the provisions of this Bill. I do not want to be disagreeable or uncooperative in this regard. I think the general feeling of the Committee would be that there should be some elaboration or clarification of this section. The point has been well made by Deputies in relation to this section. The point has been gone into in such detail on so many occasions here——
No, it has not.
Given the sensitivity of this part of the Bill, would the Minister agree that it is important that a person appointed an examiner would be somebody who would gain the confidence of creditors who, at the end of the day, may not wish to risk losing any more money, and that he would need to be an individual in whom the banks would have confidence. Would he agree with that? Is the Minister saying that that type of individual should not have some basic qualifications? It is a joke. Can we spell it out for the Minister in simple English. All we are asking him to do is — on Report Stage — to table an amendment giving himself power in the future, to make an order if he sees fit to impose certain qualifications on any potential examiner. We are not even asking him to specify such qualifications here now, but merely to give himself power, in the future, when he may say: I am not happy, the examiners must have the following qualifications. We attend this Committee each week; Deputy Bruton, myself and others have not missed one meeting. We have Ministers of State who attend intermittently. We have a Minister for Industry and Commerce who has not turned up but who has lambasted us — in the press — for having delayed the processing of this Stage of the Bill. Yet he has not been seen——
Ad nauseam.
He sends in a Minister of State who has not even got the authority to consider saying: "I will consider for Report Stage" a petty amendment like this without having to consult officials. Are we wasting our time? Should we just go home? It really is frustrating when one makes a genuine non-political, non-contentious point, when there is whispering between officials and the Minister of State, at the end of which process the Minister of State says "No, we cannot do that". What are we sitting here for?
Deputy Seán Barrett is being very unfair in this regard. The absence of the Minister for Industry and Commerce has been brought about by his attending a meeting of the OECD in Paris. As the appropriate representative of the Minister I am in a position to accept the amendment put forward. You can take it from me that I would not be here in this position unless I had authority to accept amendments or adjust them. You can take that for a fact, but I am not going to be browbeaten or intimidated by Deputy Barrett into amending something. All I am saying in this regard is this has been gone through ad nauseam. I am not going to give in to any proposal. It is very easy to say yes to every request. In this regard——
Would the Minister have the courtesy to give us a genuine reason for not accepting a very genuine request?
That has been outlined. We are not going to go back into the section again. We dealt with this area.
(Interruptions.)
The Minister has been disorderly for the last half an hour. That is not the first time he has been disorderly in this Committee. He is frustrated because he has no power. The position is the Minister is coming in here to bulldoze this Bill through as best he can. We have to put up with the Minister's speeches up and down the country about the Fine Gael Party delaying the Bill, the most important Bill since the foundation of the State. This great Minister for Industry and Commerce will be the man that will bring it in. Is that not right, Chairman? He will get the kudos for the amendments. Look at the bundles of them, 250. The Department should be ashamed.
There should be a ban on opinion polls being published before——
There is another bundle of them today: 300 amendments the Minister has put down.
A Deputy
You had a few amendments as well.
Is that not some legislation, to which the Minister has to make 300 amendments, and consider that you were in the Seanad, Chairman, and the Bill made a tortuous journey through that House too. There were also plenty of amendments from the Department of Industry and Commerce then. When there is a request from my colleagues here, a simple request that the Minister put down some small little provision that you can take some action in the future, it is no, no, no. We have put up with that. It has been the Minister's own party that has been at pains to shout at length since the foundation of that party about this "no" from the North of Ireland that the unionists have been giving. The poor Minister of State would be better off if he was paddling down in the Shannon. For all the power he has here, he would at least have the power to paddle down there.
To come back to the Bill: we have been dealing with the North of Ireland. Can I come back to the South? The position is that if the amendment is not accepted that does not prevent the Minister or any future Minister from doing something along these lines. That was implicit in Deputy Carey's statement, that the Minister is in someway tying his hands as regards doing something in the future. This can always be done. As far as the Minister of State's power to accept amendments is concerned, there are amendments and I have attended practically every committee meeting here also. There will be amendments in the Bill ultimately to become law which will be in there directly as a result of suggestions made by the Opposition. They were good suggestions and I am glad they were taken on board. Furthermore, we have heard a lot of talk about the Minister not giving reasons for not accepting the amendment. I will give you one reason. The amendment would give the Minister the power to set out minimum qualifications for examiners. It may be that we would not need to give minimum qualifications because the people who have attained certain academic qualifications are not always, necessarily, the best people to act as examiners of companies.
Deputy Barrett mentioned people in whom the banks would have confidence. I could name three or four of the top business people in this country who have no formal qualifications. If the banks have no confidence in the likes of those people, would they have confidence in a little solicitor, practising in a hole in the wall in some part of the south of Ireland, the Midlands or some place else? This question of minimum qualifications for examiners, whether they be legal, accountancy, medical or whatever, would have to be considered in much greater depth.
The purpose of the suggested addition to the section is not to require the Minister to lay down minimum qualifications or, indeed, to say that these should be academic qualifications if they were laid down. It is simply to allow the Minister the flexibility to do it, in the future, if he sees fit in the light of experience, and to enable him to do it without the requirement of having to introduce an amendment of the Principal Act. As every Member of this Committee knows, if the Minister is required to change this small matter in regard to qualifications of examiners by means of amendments to the principal legislation, he has to go through a very long rigmarole. First of all circulating the heads of a Bill to every Department; secondly getting those approved by Cabinet, having received the observations of each Department, then getting the Bill drafted, then having it approved by Cabinet again, then circulating it and then it will wait in place in a long queue of legislation to be considered by, first the Dáil and then the Seanad or vice versaThat process, we all know, can take anything up to three years, even at a rapid pace, for a simple Bill.
What we are suggesting here is that, without taking anything out of the present section, the Minister should add in words that would allow him to make changes, if he wants to, by order. That could be done much quicker, at one third the delay. In deference to the fact that there is no written amendment tabled here we would, of course, be happy to accept from the Minister an assurance that he accepts the principle of what we are saying, and that he would be prepared to consider the introduction of an amendment in his name, along these lines, on Report Stage. He does not have to accept the particular wording that we are putting forward. That would be enough to bring this discussion to a conclusion. That is reasonable. What we are, in fact, proposing is to give the Government of the day more power to deal with a matter.
It is rare to see a Government, an executive, unwilling to take additional discretion into their hands, when it is being offered to them by the Opposition in the Dáil. In this case that is what is happening. I am surprised at the Minister. He is not prepared to accept the proposal in the spirit in which it is being suggested. It is a reasonable one, and the only reason that Deputies Carey, Barrett and myself have got annoyed is that we seem not to be taken seriously.
I defer to Deputy Bruton's superior expertise in parliamentary procedure. If the proposal is taken on board, as Deputy Bruton suggests, will the Dáil and the Seanad have an opportunity to debate the qualifications of examiners, if they are brought in by way of Ministerial order?
That depends on which method of order-making you use. If you use the affirmative motion method there has to be a debate on the approval of the order in both Houses. If you use the other method the order is laid, and if a motion is put down within 21 days to annul the order, then there will be a debate but not otherwise. I imagine that if there was a proposal that was in any way controversial, even if it was under the latter procedure, such a motion might be put down, so there would be a debate, but there is no guarantee of a debate if the latter method is used.
With regard to the acceptance of amendments, in fairness we have had very good discussions. We are coming to the end of a very important section in the Bill. Up to now we have had a consensus on the question of the examiner, and I am sorry we have come to a stage where there is definite disagreement in this regard. I have outlined the reasons we feel we should not detail the qualifications. Deputy Bruton wants flexibility so that at some stage a Minister could bring in an order to outline the qualifications of the examiner. That sounds very reasonable, but Deputy O'Dea has outlined the area of qualifications. I know there is pressure for this and an organisation would be anxious to have qualifications outlined in this regard which would disqualify other who would be suitably qualified.
The Minister will still have discretion. There is no limit to the discretion of the Minister.
All the points raised here will be considered on Report Stage as I have stated. I am sorry to have to be bogged down on this. It seems a non-contentious area, and it may seem unreasonable that I should not accept the point being put forward at this stage. I do not feel it is appropriate that I should accept it, and I am sorry to have to be so dogmatic about it.
Question —"That section 180 stand part of the Bill"— put.
The Special Committee divided: Tá, 5; Níl 4.
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Tá |
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Flood, Chris. |
O'Dea, Willie. |
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Kitt, Tom. |
Roche, Dick. |
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Leyden, Terry. |
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Níl |
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Barrett, Seán. |
Carey, Donal. |
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Bruton, John. |
Reynolds, Gerry. |
Question declared carried.
Section 181 agreed to.