Michael Ahern (Cork East, Fianna Fail)

I move amendment No. 2:

In page 3, line 22, to delete "This Act" and substitute the following:

"(1) Subject to subsections (2) and (3), this Act".

I will discuss amendment No. 5 first. In a number of provisions in the Companies Acts, documents that require to be filed in the Companies Registration Office, CRO, must contain a statutory declaration. Examples include section 60 of the 1963 Act in the context of a company providing loans to employees and others for the purchase of its shares.

Usually, it will be a director of the company who must make the declaration. Such declarations must be made before one of a number of persons who are authorised to receive and witness them.

In most instances the statutory declarations are substantive requirements, not simply procedural, and in most instances form part of documentation that is required to be submitted to the CRO for registration in the context of the transactions in question.

Under general law, statutory declarations made in the State are required to be made under the Statutory Declarations Act 1938. They can be taken before a person authorised by law such as a solicitor, a commissioner for oaths, a peace commissioner or a notary public.

Statutory declarations made outside of the jurisdiction are required to be made under the Diplomatic and Consular Officers (Provision of Services) Act 1993. Essentially, this Act requires that the declaration be made before a diplomatic or consular official.

For many years, the practice operated by the CRO permitted the registration of statutory declarations taken abroad when made before persons authorised to administer oaths in the jurisdiction in question, including in the case of Northern Ireland and the UK, before practising solicitors in those jurisdictions. However, as a result of a detailed analysis of the situation, in the first instance by the Law Society of Ireland, and subsequently in the Office of the Attorney General, it emerged that the existing practice was incorrect. Consequently, since April of this year, the CRO has changed its practice so that it now only accepts statutory declarations made abroad where they comply with the 1993 Act.

The Law Society has strongly argued that the essence of the previous process and procedures should be restored.

Amendment No. 5 will allow statutory declarations to be made abroad by Irish practising solicitors, for the purposes of the Irish Companies Acts, or a person such as a notary public authorised in that state to administer oaths. In the case of the latter, it is proposed that the signature would be expressly required to be subject to existing arrangements regarding authentication under conventions to which Ireland is already a party.

In that regard, where the state in which the declaration is made is a contracting party to the EC Convention, as defined in subsection (9), the terms of that convention, which provide for the complete freedom of movement of public documents without the requirements for authentication, shall apply. Where the state in which the declaration is made is a party to the Hague Convention, which provides for the "apostille" system of authentication, and is not a party to the EC Convention, then the terms of the Hague Convention will apply as far as authentication is concerned. Where the state in which the declaration has been made is not a party to either of these conventions, the authentication procedures applicable in that jurisdiction shall apply. In all instances, where the CRO has a concern about the authenticity of documentation submitted, it can seek such proof as it considers appropriate or as permitted by the conventions, as applicable.

Subsection (7) will retrospectively validate statutory declarations made abroad which have already been delivered to and registered in the CRO in accordance with practice and guidance that was previously issued by the CRO.

The essence of amendments Nos. 2 and 3 to section 2 is to ensure that a number of provisions of the Bill will come into operation on the passing of the Act. Apart from the provisions of Part 1 of the Bill, which contain the usual preliminary and general matters, provisions coming into operation will include the provision regarding statutory declarations, which I have just described, as well as some of the existing and other new provisions which we will be discussing later. Perhaps most noteworthy among these are the provisions dealing with the increase in the audit exemption thresholds. There has been a universal welcome for the increase in the audit exemption threshold provided for in section 6 of the Bill, and the amendments to section 2 will ensure these become applicable immediately on enactment of the Bill.

I commend these amendments to the House.

See this speech in context