Mr. Seamus McCarthy:

Basically, it reiterates the points I made last week at the committee. It looks particularly at the code of practice for the governance of State bodies and specifically the reporting obligations of directors of State bodies. I draw attention to the legal basis of State bodies. The point I made was that most of them were set up under statute - either specific Acts or statutory instruments. However, in some cases State bodies are set up as companies under the provisions of the Companies Act. If they are set up as companies, they must observe all the requirements of the Companies Act. In addition, there may be requirements, in terms of reporting and so on, imposed by the line Minister or the Minister for Public Expenditure and Reform.

It is probably worth bearing in mind that the legal basis for a State body is not synonymous with the depiction or the designation of the body as commercial or non-commercial. For example, Pobal is established as a company, but is classified as a non-commercial State body, while the ESB is established under an Act of 1927, but is classified as a commercial State body. There is a bit of greyness around what applies in the code of practice because of those differences in designation.

The code of practice deals with fiduciary duty obligations on board members in general terms, but the terminology used relates to the interest of a company. So there is a bit of ambiguity there as to whether the same principle should apply to any public body. The specific bullet points that are included in the code are lifted more or less from the Companies Act. It would seem to suggest that is specific to State companies as opposed to bodies.