Dan Boyle (Green Party)

The Companies (Miscellaneous Provisions) Bill 2009 is a reaction to recent controversies which diminished the international reputation of Ireland's corporate and financial services sectors. It is the second amendment to the Companies Acts in the wake of these controversies. This is to be regretted because, despite Senator O'Toole's suggestion that we might be better off without company law, we were looking forward to the consolidation of the legislation in the near future. Consolidation is badly needed because the law has given companies a legal personage without encouraging them to observe the principles of corporate social responsibility. Companies tend to act amorally but the existing law does not allow us to hold them properly to account. We could argue about the failure of political will to put stronger legislation in place but we must also admit to cultural issues in our corporate practices. In tandem with legislative change, we must redouble our efforts to change that culture.

This Bill reminds me of the spoonerism coined by Myles na gCopaleen for his characters Keats and Chapman, "dogging a fled horse". We are trying to shut a large stable door after the damage has been done. The Bill will give us confidence that we will prevent such damaging events in the future but it will do nothing to assuage public concern about what has happened. Public anger about the lack of ethical standards in financial services companies is justified.

Senator O'Toole referred to exemptions for American multinational companies in Ireland. I am uncomfortable about putting dual standards in place and hope the company law consolidation and reform legislation will address the anomaly we are creating with the Bill before us. It might be useful, however, to adopt American standards in respect of malfeasance in financial institutions. The idea of arresting, charging and prosecuting someone would be welcome if it fostered higher corporate standards. It is unacceptable that 18 months after our controversies arose, we are no nearer to bringing prosecutions. In the United States, people have been identified, arrested, prosecuted and processed in the courts. Ireland's body of corporate law is extremely weak in terms of securing results within a timeframe that would achieve the public confidence required. The position is even worse in that public confidence is so low that people believe prosecutions will never brought in the case of activities that we all know have not been for the common good. I hope this view will not become a self-fulfilling prophesy as it would indicate that corporate law has failed. If the necessary action is not being taken because certain aspects of corporate law preclude it, sufficient resources are not available in the Office of the Director of Corporate Affairs or there is a reluctance to identify individuals who are presumed to have been involved in the practices that caused the current economic calamity because these persons would expose and compromise others, we must act to address these issues. We must not allow such perceptions to exist.

The Bill reflects a sincere effort to address flaws in the companies legislation, for example, in areas such as loans to directors, residency requirements and the use of legal privilege. I accept, however, that the approach is one of applying a band aid. The Government must indicate its plans to strengthen companies legislation further through the promised consolidation Bill. By reacting to events and taking relatively quick action to strengthen the law in areas in which it was viewed as weak, we miss areas where further abuses may occur. More encompassing legislation will provide an opportunity to address these areas.

The Bill is welcome but I would have liked stronger measures. The Government should commit to making available whatever resources are necessary. I concur with Senator O'Toole that legislative measures providing for directors' statements of compliance should be introduced as quickly as possible. Regrettably, the Bill reflects the fact that in the current corporate environment, especially in financial services, the inclination to do good or recognise the concept of the common good has been superseded by the cult of the individual and greed. We must recognise this change in legislation rather than relying on gentlemanly agreements. We must move on from the concept of allowing companies, notably in the financial services industry, to be self-policing in terms of auditing and accounting. We must recognise that the role of the State is, in a sense, to legislate for Murphy's law-type scenarios. In other words, it must operate on the basis that if something can go wrong morally and ethically, it will go wrong. We need to provide the legislative means to ensure all such circumstances will be addressed.