Seán Sherlock (Cork East, Labour) | Oireachtas source

Questions have been asked about the legal reasons the Government has for opposing the Bill. As the Minister, Deputy Bruton, pointed out last night, there are some features of the Bill that give rise to constitutional concerns. One of those is the role of the court. Under the current examinership process the court is sitting over the process, taking into account all the relevant interests of those that will be affected by the rescue and making an independent assessment of the appropriate outcome. In Deputy Donnelly's Bill, the court is less of a feature in the process, only entering it at the very end, when time is running out, or at an earlier stage only if an appeal is made.

Another issue of concern is the way in which creditors can pursue their interests. Under existing law, a creditor is heard by the court from the start. That is quite different from the provisions in the Bill where a creditor has to mount a case and meet a high threshold of proof that, in many cases, requires an in-depth knowledge of the company's affairs that would not easily be within his or her remit or to borrow the colloquial expression, within his or her ken.

The Bill also gives new powers to examiners to alter the debts owed to others. These appear to be quite wide ranging and may stray into what is more properly the preserve of the courts. When all of the provisions are taken together, as they are in the Bill, there is a danger of making an unjust and disproportionate attack on the property rights of those who have, in good faith, supplied goods and services. Examinership has been on the Statute Book for nearly 25 years. Any proposal for alteration of that tried and tested formula needs careful consideration.

The House is currently in the middle of consideration of the Companies Bill 2012 with all its reforms and modernisations that are designed to simplify the establishment and management of a company. As some Deputies acknowledged, only a few weeks ago we enacted the Companies (Miscellaneous Provisions) Act 2013 to make it easier for small companies to have their examinership cases heard in the Circuit Court. We all share the hopes of those Deputies who mentioned it that it will bring a noticeable improvement once it is in operation, which should be soon.

We acknowledge that perhaps we could do more. That is why the Minister, Deputy Bruton, announced last night that he is setting up a working group to further examine the remaining recommendations of the Company Law Review Group in the area of examinership to assess whether they offer a viable and less costly solution. The Minister also said that some of the concerns raised by Deputy Donnelly will be examined in the course of the working group’s deliberations.

We should thank Deputy Donnelly for the considerable time and effort he has put into the proposals. We all acknowledge his work in that regard. We regret that on this occasion we cannot support the Bill but it is the Government’s firm intention to keep doing all it can to support enterprises so that they flourish.

Some points were raised by Deputies about the nature of enterprise supports. Some of those issues can be teased out by a committee. We challenge the numbers in terms of the balance between foreign direct investment and support for indigenous industry but I do not have time to address those concerns tonight.

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