Wednesday, 17 December 2003
Companies (Auditing and Accounting) Bill 2003 [ Seanad Bill amended by the Dáil ] : Report and Final Stages.
This Bill has been amended by the Dáil and, in accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as a report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the circulation of those amendments and their grouping. The Minister will deal separately with the subject matter of each related group of amendments. I remind Senators that only the amendments made by the Dáil may be discussed.
Mr. M. Ahern: Amendments Nos. 8 to 15 and 18 to 25 deal with sections 23 to 25, inclusive, 28 and new section 28. A significant number of amendments were tabled in both the Seanad and Dáil that proposed the inclusion in the Bill of significant practices and procedures regarding the manner in which a supervisory authority conducts investigations, inquiries or reviews under sections 23 to 25 respectively.
Having reflected on these concerns, I considered it appropriate to bring forward a number of amendments to address these matters. The most significant of these is amendment No. 23 that provides for the insertion of a new section 28 in the Bill. As Senators will see, subsection (4) of the new section requires the supervisory authority to make regulations respecting the procedures to be followed in conducting inquiries under section 23, investigations under section 24 and reviews under section 25. Thus, there is now a statutory obligation on the supervisory authority to prepare its modus operandi for conducting inquiries, investigations or reviews under these sections.
Moreover, subsection (2) of the new section 28 provides that a witness before the authority is entitled to the same immunities and privileges as a witness before the High Court. In addition, subsection (3) of new section 28 protects persons against having to disclose any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege. It also prevents the authority inspecting or copying any document containing such information.
The second most important aspect in these amendments relates to the interaction between sections 23 and 24. In essence, under the Dáil amendments the supervisory authority cannot initiate an inquiry under section 23 where it has already undertaken an investigation into the same matter under section 24 or vice versa. The one exception to this is where the authority considers it needs to change from a section 23 inquiry to a section 24 investigation and gets court approval to proceed in this manner. This is designed to prevent a member of a prescribed accountancy body being involved in an examination and on hazard of being subjected to sanctions under two separate statutory provisions on inquiries to the same set of facts.
Mr. McDowell: These are important amendments and the sections in question are important in terms of the investigation and inquiry powers the Bill confers. Perhaps the Minister can help clarify some aspects of this for me. Following the procedure the Minister has described, what happens to an inquiry under section 23 that is broken off when an investigation under section 24 is commenced? Does the inquiry continue, is it suspended, or is it deemed to be completed? I agree that the important point is that someone should not be at risk of being judged, or even penalised, twice. Apart from anything else, this would not be an administratively sensible way of doing things.
The important thing is that the power of the supervisory authority to investigate members, as opposed to accountancy bodies, should only be used as a power of last resort. No one wants the IAASA to be a port of first call where members of the public with a complaint against an individual accountant go to the supervisory body first. There is common cause in this and we want clients who have a problem with accountants to go, in the first instance, to the accountancy bodies and the supervisory authority will only conduct an investigation in circumstances where there is some inference that the accountancy body itself has not done so properly. This clear principle should be set out in the Bill. Unfortunately the amendments have been presented in a technical way and while I get the gist of them, I am not entirely sure we have achieved this principle. Perhaps the Minister can offer me reassurance on this.
Mr. M. Ahern: No. Senator McDowell also referred to amendment No. 23 which establishes the new section 28. Under this section, the supervisory authority shall make regulations respecting the procedures to be followed in conducting inquiries under section 23 investigations under sections 22 and 25. The supervisory authority shall make the regulations regarding inquiries, investigations and procedures.
Senator Coghlan asked about the term "accountant". I stated in both Houses that this issue would benefit from further consideration and research – I have had great interest in it for many years. We had a discussion with the interim Irish Auditing and Accounting Supervisory Authority and asked it to examine the issue before we introduced the Bill to see if it could decide on terminology that would fit into the legal system. It felt it would be more appropriate for the new authority, when set up statutorily, to review the question of getting legal protection for the term "accountant". We will ask the authority to examine this expeditiously once it is established.
Mr. M. Ahern: Amendments Nos. 58 to 65, inclusive, deal with the directors' compliance statements. Section 43, as amended, contains three key changes to the Bill as passed by this House. The first is the introduction in the new subsection (9) of an exemption from the section for private companies limited by shares whose balance sheet and turnover totals are not greater than €7,618,428 and €15,236,856, respectively. This means that companies operating at levels under those financial thresholds are not required to provide a directors' compliance statement. However, I hope that companies not legally bound by these obligations would, as a matter of prudence, put in place the type of procedures alluded to in the section. While the provisions are not mandatory at present, a time might come when they will be. In this regard, the facility for me to vary the thresholds is contained in the equivalent of section 46 of the Bill as passed by the Seanad. I intend to monitor how this provision operates in practice. Specifically as a consequence of this change, the link in the original section between exemption from the requirement to prepare a directors' compliance statement and eligibility for audit exemption is removed.
The second core amendment for those companies which will be subject to this section is that one of the aspects of the directors' compliance statement has been deleted. I refer to my decision to omit the requirement for an opinion to be given by the director that his company – minor incidences apart – complied with its relevant obligations in the financial year to which the statement relates. I regard the removal of this requirement as a major concession.
The third significant change is that companies not trading for profit, for example, management companies for blocks of apartments and companies used by the voluntary sector, usually constituted as guaranteed companies, as well as unlimited companies, have been removed from the scope of this section by virtue of the wording of subsection (2).
As a result of the substantive changes that were made, some consequential technical-type amendments were necessary in the two new sections, sections 205E and 205F, which are being inserted by the original section 43 into the Companies Act 1990. These changes remove the difficulties that Senators, Deputies and outside interested parties who made submissions raised regarding this provision.
Mr. McDowell: Nonetheless, they seem extraordinarily high and will have the effect of exempting a considerable number of private companies limited by shares from the requirements of the compliance statement. However, I understand the pressures that existed to do something about the thresholds, even though the Minister of State has pitched them higher than he might have done.
The Minister of State has also changed the section substantially by removing the requirement on the part of directors to sign a compliance statement, which comprised the teeth of the section. I realise he has left the bulk of the process in place and that the directors have a responsibility to ensure there are financial procedures in place within a company to ensure compliance with the various tax enactments, etc. However, he has removed the requirement on the director to sign a compliance statement stating he is satisfied the job has been done.
I hope we have not effectively removed the teeth from the section. A major concession has been made, as the Minister of State put it. We should keep a very close eye on this area because it may well be that directors will be happy to say they are satisfied that procedures are fine if they do not have to put their necks on the block by saying they are satisfied those procedures have been complied with. I hope the Minister of State has not gone too far in listening to Deputies, Senators and outside groups.
Mr. M. Ahern: I mentioned that we would be monitoring how the procedures are operating. Directors cannot be auditors and audit every little tittle-tattle that happens in their companies. However, they have responsibilities under company law and we now require them to ensure procedures are put in place. This is logical. It is not logical to expect a director to say every aspect of company law, tax law or environmental law is being complied with – this is up to the management of the company. My view is that it is the directors' responsibility to make sure procedures are in place that ensure these legal aspects are being monitored.
Mr. M. Ahern: Section 40 was a subject of considerable debate in both Houses or the Oireachtas, on the basis of which I introduced a number of refinements in the Dáil beyond those I had already made in this House. They are designed to take account of suggestions for improvements which I trust will make the provision workable in practice. The broad areas of change concern the scope of the remit of the audit committee, amended requirements applicable to all relevant categories of companies and relevant undertakings and the revised criteria for public limited companies and refined requirements for large private companies in relevant undertakings.
It has now been clearly provided for in paragraphs (a)(ii) and (c) that the audit committee's remit will encompass group accounts. The committee will now also be required to review the directors' compliance statement in its entirety. Of general relevance to commercial entities required to establish an audit committee is a relaxation, under the new subsection (7), in the length of time for which an employee needs to have left the employment of a company or its subsidiaries to qualify for appointment as a non-executive director and, ipso facto, be available to be appointed as a member of an audit committee. The period has decreased from five years to three years and this will make it easier for companies to find non-executive directors.
Subsection (8) of the amended text provides, by way of exemption from the earlier requirements of the section as applicable to public limited companies, that only one director needs to quality under the criteria in the new subsection (7), provided he is appointed as the only member of an audit committee or as the chairman of a committee consisting of not more than two persons, including himself, and has the casting vote.
Under the new subsection (3), the boards of directors of large private companies and relevant undertakings can, subject to satisfying the other applicable requirements, establish an audit committee with only some of the responsibilities listed for audit committees under subsection (2). This is a significant concession because these entities are being allowed discretion as to which of the responsibilities they will direct their audit committee to take on and where they decide to establish one. In their report, under section 158 of the principal Act, such concerns will be required to state whether they have established an audit committee or decided not to, and whether they have assumed some or the full list of responsibilities under subsection (2).
The director of a large private company or a relevant undertaking is guilty under the new subsection (13) when he or she fails to take all reasonable steps to comply with the requirements of subsection (4). These requirements, in summary, are to state in the section 158 report whether they have established an audit committee, or not, and the reasons or to indicate where they have not taken on all their responsibilities under subsection (2). The offence resides in the failure to make the due notification under subsection (4).
I repeat that the requirement to establish an audit committee is not mandatory on any private company. The new subsection (16)(a) exempts a public limited company, which is a wholly owned subsidiary of another public limited company, from having to establish an audit committee. There are a number of other technical consequential amendments throughout the section arising from the more substantive amendments I have described. The section as amended accommodates the concerns expressed by various interests.
Mr. McDowell: I am not sure I understand the thinking behind the amendment. The audit committee can be responsible for a huge number of functions and subsection (2) is exhaustive. When the Minister of State says he will allow the audit committees of certain companies to opt out of certain powers, what is the thinking behind that move? Those powers and functions are listed in some length in subsection (2). Of which does the Minister of State expect companies to choose to opt out?
Mr. M. Ahern: As I said, the requirement to establish an audit committee is not mandatory on any private company. Under subsection (6) a director of a large private company or a relevant undertaking is guilty under the new subsection (13) of an offence where he or she fails to take all reasonable steps to comply with requirements under subsection (4). Again, these requirements are stated in the section 158 report – whether they have established an audit committee or decided not to do so, taking on either full or partial responsibilities. They are not required to do this but if they do not set out in a section 158 report why they have not done so, they can be charged with an offence. They do not have to set up an audit committee unless a public limited company is involved.
Mr. M. Ahern: There are two substantive aspects to amendment No. 82. The first is to increase the turnover exemption threshold below which companies are eligible to dispense with having their accounts audited from approximately €317,000 to €1,500,000. This is a substantial increase in the operative threshold and is likely to allow a significant number of companies to avail of the exemption.
The second substantive amendment is to delete the current section 32(3)(b) of the Companies (Amendment) (No 2) Act 1999 and to insert a new section 32A. The requirement here is that companies can only avail of the audit exemption if they file their returns in the Companies Registration Office on time in the year in question as well as for the previous year where applicable. The focus on this amendment arose from the fact that the exemption from the directors' compliance statement was linked to the audit exemption threshold. It was argued in both Houses and outside that this limit should be increased and that is what the amendment does. Having given this matter very careful consideration, I am firmly of the view that the revised limit which I have struck is the appropriate level of exemption. As I said, this threshold will continue to be monitored.
Mr. Coghlan: I acknowledge that the Minister of State gave a commitment here which he honoured in the other House. However, if I have a disappointment it is with this part of the Bill. The EU would allow a threshold of €7.3 million while Britain has gone from a £1 million turnover to £5.6 million. The Netherlands limit is €7 million and the German threshold is €6.8 million. If we are encouraging increased cross-Border trade on the basis of an all-island economy, that figure is still too low. I accept the Minister of State has moved in the right direction but it is rather meagre. The Minister of State, given his accountancy background, would accept that I and many people, particularly in the Border counties, feel the figure is low.
Mr. McDowell: This is one of those amendments which was waiting to happen in the sense that when the Bill was first discussed here we anticipated that an amendment would be made. I have never quite understood why the comparison is made with Northern Ireland or why people thought there was necessarily a knock-on effect. It does not seem to me that clear that there are direct implications or that people would simply incorporate or do business elsewhere because there was an auditing requirement. I never found that argument particularly persuasive but it was clear the Minister of State would accept it and if I was him I would probably have done so also. The new limits he has struck, which are intended to conform to the Northern Ireland limits, are probably the best way to pitch it.
Mr. M. Ahern: They would not conform to the Northern Ireland limits. They are the same as the British limit, which has gone to approximately £5.6 million. The accountancy bodies in Britain did not favour that move, as they only wanted the limit to go to £1.5 million or £2 million, but the limit was raised to £5.5 million anyway. Senator Coghlan expressed the fear that companies would incorporate in Northern Ireland, although whether that is practical is another question. Raising the threshold to €1.5 million in turnover will take approximately 100,000 of 122,000 companies out of the audit field. I was talking to former colleagues of mine in the accountancy profession who feel that many companies will still get audits done, but they will not be required by law to do so. They will still have to make annual returns in time and have their accounts done. This will not be earth-shattering.
Mr. M. Ahern: Amendments Nos. 40 and 41 delete subsections (6) to (10), inclusive, (13) and (14) of section 35. The amendments remove the legal underpinning of sanctions arising from the disciplinary approach of prescribed accountancy bodies and the requirement to have them ratified by the High Court. This is in line with the express wish of some of the accountancy bodies which indicated that these could impose delays, increase costs and otherwise undermine the basis on which the bodies impose sanctions on their members.
Mr. M. Ahern: Amendment No. 42 inserts a new section into the present Bill which amends section 194 of the Act of 1990. It is designed to enable the Director of Corporate Enforcement to seek and obtain information from auditors in respect of indictable offences reported to his office under the said section 194. It will also permit the director to access books, which is not covered by the existing text of section 194.
The inclusion at paragraph (d) is designed to relieve auditors of the obligation to notify the Director of Corporate Enforcement in respect of offences relating to sections 125 and 127 of the Companies Act 1963, which relate to the filing of annual returns, on the basis that these offences are already apparent from the public record in the Companies Registration Office.
In the limited time the office has been in operation, a number of technical difficulties have arisen concerning the manner in which the office is able to bring information before the courts. Amendment No. 81 is designed to ease the way in which such information can be certified and submitted to the courts. It is then up to the court to determine what weight and value it wishes to attribute to any of the information or documents submitted. The provisions are based on precedent found in competition and taxation law.
Mr. M. Ahern: Amendment No. 83 inserts a new section 52 into the Bill. Essentially, it inserts a new subsection (16) into section 43 of the Companies (Amendment) (No. 2) Act 1999 to provide that an alternate director is not acceptable for the purposes of this section as fulfilling the requirement of that section of the 1999 No. 2 Act to have a director resident in the State.
Senators may remember that section 43 was one of a number of provisions contained in the Companies (Amendment) (No. 2) Act 1999 to address problems created by non-resident persons using the State as a convenient companies registration point, and essentially tarnishing the reputation of the State abroad by engaging in undesirable practices in other jurisdictions.
To facilitate venture capital partnerships it is proposed to make such a regulation. However, it is considered appropriate that the exemption should apply to existing as well as new partnerships formed after the regulations are made. Accordingly, amendment No. 84, which inserts a new section 53 into the Bill, amends subsection 13(2) in the 1982 Act to enable this to be done.
Mr. M. Ahern: Amendment No. 85 adds four new subsections to section 200 of the Companies Act 1963. The essence of the amendment is to ensure that companies can take out directors and officers' liability insurance. There is doubt as to whether companies can actually take out such insurance under the terms of existing section 200. These amendments serve to remove that doubt and provide certainty for any existing cover.
Mr. M. Ahern: Amendments Nos. 86 and 88 provide by way of the detail in Schedule 2 for removing doubts which have arisen as to ability of the Office of the Director of Corporate Enforcement to prosecute criminal offences under the Companies Acts in respect of all the sections specified in the Schedule.
At its simplest, the absence of the words "shall be guilty of an offence", or similar words in other sections, has raised the spectre of an arguable case being made that the sections in question are not capable of being prosecuted in an appropriate manner. The various defaults set out in the sections in the schedule are being corrected and will thus be capable of allowing criminal prosecution to be pursued by the Office of the Director of Corporate Enforcement.
Mr. M. Ahern: Amendments Nos. 29 and 30 relate to the deletion of subsections (3) to (5) and their replacement by new subsections (3) to (9) of the section. The amendment arises primarily because of the necessity to include a provision dealing with a recognition related application of the Institute of Incorporated Public Accountants to be made before the section is commenced. It sets out various scenarios and eventualities with regard to an application by the Institute of Incorporated Public Accountants for recognition. I confirm that I have received an application which I have referred to the board of the interim IAASA body for advice. This advice is still awaited.
The provision provides that a member of the Institute of Incorporated Public Accountants at the time of the making of the institute's application is deemed to continue to hold recognition until the commencement of the section or the date of the decision on the application for recognition by the IIPA, whichever is later. If the application is refused, the members of the Institute of Incorporated Public Accountants are considered to hold recognition for a further three year period, mirroring the situation for individually recognised auditors provided for in section 34.
Mr. M. Ahern: Amendment No. 47 involves the deletion of subsections (5) to (9), inclusive, of section 36 as passed by this House. These subsections provided for the application by the Director of Corporate Enforcement to the courts to have members of recognised accountancy bodies removed from the register of auditors. The submissions from the accountancy bodies argued that it is a function of the bodies themselves to remove a member from acting as auditor. This will now be subject to oversight by the supervisory authority being established by the present Bill. However, the Director of Corporate Enforcement will still have the power, in section 160 of the Companies Act 1990, to seek the disqualification of a person from acting, inter alia, as an auditor.
Acting Chairman: Group 14 comprises technical and drafting amendments. They include amendments Nos. 1 to 7, inclusive, amendments Nos. 16, 17 and 26, amendments Nos. 32 to 39, inclusive, amendments Nos. 43 to 46, inclusive, amendments Nos. 48 to 51, inclusive, amendments Nos. 53 to 57, inclusive, amendments Nos. 66 to 80, inclusive, and amendments Nos. 87 and 89.
Amendment No. 39, by the addition of the words "ancillary or consequential", makes clear that the court order in the situations in question must flow from the subject matter before it for determination. If the formulations in question were not included, the court could, in theory, impose punitive sanctions which could be open to legal challenge. The amendment, therefore, sets out the parameters of the court's determination.
Mr. Coghlan: I compliment the Minister of State on what he has done, particularly in honouring his word to us on Committee Stage in terms of amendments to the Bill in the other House. From my discussions with colleagues in the other House and having read the debates there, I am satisfied the matter was handled very well in both Houses. If I have any criticism, it is perhaps that the Minister of State was too generous with regard to the threshold for the compliance statement, as Senator McDowell has already pointed out and, dare I say, not generous enough on the audit exemption threshold.
The Minister of State is well aware of my views on small companies and business generally. The low audit exemption threshold could hamper business in Ireland and place us at a competitive disadvantage vis-à-vis Northern Ireland in particular. I had the Border counties very much in mind. The Minister of State referred to the danger of certain businesses being set up and incorporated in the North.
Mr. McDowell: I wish to be associated with Senator Coghlan's comments. On the face of it, this could be regarded as a very dry Bill, although it has greatly exercised the professional bodies it directly affects. I have no doubt it has taken up a great deal of time on the part of the Minister of State and his officials. This is a Bill of some importance and topicality, having regard to our experience in recent years when processes and standards of some very large companies have not met our requirements. It is timely to put into legislation the requirements now applicable to companies and their auditors. One hopes this will be just another part of the process of changing the culture of corporate compliance in Ireland.
I congratulate the Minister of State and his officials on their work. Perhaps, in his response, he will give some indication as to when he anticipates having the supervisory bodies up and running on an interim basis and when he envisages the various actions and powers provided for in the Bill being activated.
Ms White: I thank the Minister of State and his officials, who are specialists in this area of business. I compliment the Minister of State on the speed and efficiency with which he has handled this important Bill. In that process, in addition to his departmental brief on trade and commerce, he also speaks from practical experience as an accountant and businessman. His empathy with that area has been evident in his handling of this and previous Bills which he has brought before the House.
Mr. Leyden: I extend my sincere thanks and congratulations to the Minister of State and his officials on their successful handling of the Companies (Auditing and Accounting) Bill 2003. It is a big achievement for any Department to bring a detailed Bill through the Oireachtas so expeditiously. The Minister of State has been very open in his response to representations from Members of both Houses and outside parties. All concerned will be very happy with this Bill. That is evident from the absence of further representations in recent weeks, by comparison to the volume of such representations following the Bill's initial publication. Again, I compliment the Minister of State and his officials and wish them a very happy Christmas and a successful new year.
Minister of State at the Department of Enterprise, Trade and Employment (Mr. M. Ahern): I thank Senators for their contributions on the various Stages of this Bill. Many of the points raised in debate were followed through, including some relatively minor changes advocated on Committee Stage in this House. However, it was during the passage of the Bill through the Dáil that we brought forward many of the amendments which had been tabled initially in the Seanad but not adopted here. The Seanad provides an opportunity for debate at a different level and in a less heated environment than in the Lower House. That is a very positive feature.
I thank Senators Coghlan and McDowell for their participation in this debate and their welcome comments on the amendments. On the implementation of the Bill, there have been some discussions with the interim IAASA about setting up the statutory body and further discussions are required. The implementation of the Bill will be staggered over a period of time. It is hoped to move it forward early in the new year, but I do not have any definite date at present.
I thank my officials for their excellent work and the time they have given to this Bill over the past few years. Such matters do not materialise overnight, as Senators will be well aware. A great deal of work has been involved in bringing the Bill forward, during which officials have been exemplary in their work ethic and advice, on which I compliment them. I also thank the Seanad staff for their help and advice.