Denis Naughten (Roscommon-Galway, Independent) | Oireachtas source

I welcome this legislation and I think we all do. It will streamline the processes for small businesses to be able to restructure and to do so in a simplified and effective manner rather than the current cumbersome, expensive examinership process that is in place. Everyone across different parties and the Independents fully supports the thrust of this legislation, but in the haste to enact this legislation, anomalies are being created which will be gone through with a fine comb at some stage in the future and which may have an impact on the viability of some businesses.

I will raise a specific anomaly where an error has been made in the drafting. Sadly, I did not get an opportunity to table my amendment on time because of the bizarre situation where the amendments had to be in before Second Stage took place. The Bill as it is drafted borrows a section from the Criminal Justice (Perjury and Related Offences) Act 2021. The Minister introduced an amendment on Committee Stage of that Bill whereby directors may be found to be personally liable where an offence is committed by a body corporate with the involvement or facilitation of a particular director. At the time when this amendment to the Bill was tabled by the Minister of State, Deputy Browne, he stated:

This is a necessary and common provision in statutes such as this whereby offences can be committed by a body corporate but there stands an additional liability for directors if the offence is proven to be committed with their consent or connivance. It is important, therefore, that I make provision for it in the Bill so that offences of this type are not overlooked.

That refers to white-collar crime. In plain English, it means directors of a company who make a false statement or are aware of false claims being made can be held personally liable for such a statement. We all agree with that. It is reflected in this legislation. However, the difficulty is that the penalty for the offence in this legislation is different from the penalty under the Criminal Justice (Perjury and Related Offences) Act 2021. In this Bill, on conviction and indictment, the penalty is a fine not exceeding €50,000, or imprisonment for a term of up to five years, or both. However, the offence in the Criminal Justice (Perjury and Related Offences) Act on conviction or indictment is a fine not exceeding €100,000, or imprisonment for a term not exceeding ten years, or both. This is a blatant anomaly. Provisions which are now enacted in law in the Criminal Justice (Perjury and Related Offences) Act 2021 have been incorporated into this Act, which I welcome.

The difficulty is that the penalties for the one offence are very starkly different in both pieces of legislation, which are being enacted in this House within a couple of weeks of each other. That needs to be amended before this legislation is enacted.

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