Friday, 6 November 2020
Investment Limited Partnerships (Amendment) Bill 2020: Report and Final Stages
Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion, presumably in practical terms after the Minister replies. On Report Stage, each non-Government amendment must be seconded.
Does Senator Higgins wish to move amendment No.1?
I move amendment No. 1:
In page 6, between lines 3 and 4, to insert the following: “Report4. Within 12 months of the passing of this Act, the Minister shall lay before both Houses of the Oireachtas a report in respect of the impact and use of the provisions in this Act, including a consideration of the use of Investment Limited Partnerships for tax avoidance, and their impact, if any, on the Revenue Commissioners.”.
This amendment builds on the discussion we had with the Minister of State on the OECD and the base erosion and profit shifting, BEPS, on Committee Stage. This is a somewhat wider amendment, however. I am asking that within 12 months of the passing of this Act - and I remind the Minister of State that he can agree to the action even if he does not agree to the amendment - the Minister would lay before both Houses of the Oireachtas a report on the impact and use of the provisions in this Act, specifically the investment limited partnerships for tax avoidance and the impact, if any, on the Revenue Commissioners.
We know that many millions of euro are lost each year globally due to tax avoidance. We discussed this on the previous Stage. There is a real concern around the lobbying on this Bill, as we have heard. Unfortunately, between Committee and Report Stages, we still have not received a copy of the lobbying documents that were sent concerning this Bill. There is one thing we know about certain groups because it is in the public domain. For example, the Maples Group law firm, which is one of the largest offshore legal firms in the world with two offices in Dublin, has publicly stated its aim to establish parallel European structures to its pre-existing Delaware or Cayman Islands funds for distribution to European investors via the alternative investment fund managers directive passport and that Ireland might be the location for that. We know the reputation of the Cayman Islands, for example, when it comes to tax avoidance is very poor and we know Ireland has been working extremely hard over a number of years to try to avoid getting a negative reputation when it comes to tax avoidance and to the question of whether Ireland is to be identified as a tax haven. I am concerned that the provisions and the kind of product and funds that will be set up by the Bill will do damage to Ireland's reputation. A lot of the international interest in these funds is not necessarily for investment in Ireland but it is in Ireland as a place where international asset investments can be sold to EU investors, be they individual or corporate. Many of the products they sell will not necessarily be Irish investments and it would be wrong to give that impression. In many cases, in fact, they may be investments in property and other assets that are based around the world. Some of those properties and investments in other assets will be listed and located in countries and spaces that are recognised as centres for tax avoidance or as tax havens. It is a real concern that this Bill will damage Ireland's reputation and that the products and activities that take place under this Bill will damage Ireland's reputation when it comes to tax avoidance and to the question of supporting activities or linking us to activities in recognised tax havens. The concern about this is particularly acute, given that at EU level, there is a new focus on tax policy and transparency.
That is why I suggest it would be a constructive, positive and advisable step to accept my amendment and to ensure we can address any potential damage to public perception and address any concerns on the impact these would have. I would hope this would allay those concerns but it would certainly address them if we ensured there would be a report within 12 months, or if it needs to be 18 months, I am happy to take that suggestion from the Minister of State, which will look at exactly how these investment limited partnerships are being used. Are they being used for tax avoidance, either in Ireland or abroad and what impact are they having on the Revenue Commissioners? I limit my suggested report to the impact on our Revenue Commissioners but I am concerned that we would also address the impact they may be having on the collection of revenue in other countries, including in developing countries, which have been so badly hit by practices of tax avoidance internationally.
I urge the Minister of State to recognise that there is a danger, be it in reality or in perception, with these suite of new products in the lack of clarity we have had on the lobbying basis behind them that has been seeking them and so forth. The Minister of State could address those concerns by ensuring we have a proper review process. I know the Minister of State has mentioned the BEPS process in the Committee Stage debate but we may need to have a specific and targeted report looking specifically at these investment limited partnerships, as set out by this Bill.
The amendment proposes a report on the Act. It is my intention, which I stated on Committee Stage, to lay a post-enactment scrutiny note 12 months after the enactment, in line with Standing Orders of the House. There will be a report, therefore. I am not in a position to prescribe what will be in that report before it is prepared but the gist of what is being said, and I referred to this on Committee Stage, is that the OECD BEPS project developed 15 actions designed to equip Government with domestic and international rules and instruments to address tax avoidance, ensuring that profits are taxed where economic activities generating the profits are performed and where value is created. That is an underlying principle and Ireland has a strong record in taking action on these issues. These include the progress being made on the OECD BEPS process, along with the scheduled updating of the corporation tax roadmap, which will be published shortly before the end of this year.
The lobbying on this Bill was mentioned, as if that was something that should never happen. I have just come through the Finance Bill and the budget and I can hardly think of a voluntary organisation that did not lobby. Lobbying is part of life. We live in an open democracy-----
I want to make a point of clarity because I would not want the Minister of State to accidentally misinform the record. I have not objected to the fact that lobbying has taken place. I have objected to the fact that the lobbying documents were not made available to the spokespersons. The fact of lobbying is not the issue. It is the transparency on it.
The normal process when legislation is going through the Houses is being applied. We are going through the deliberative process in respect of this Act and when that is completed the lobbying documents can be sought. All the documents in relation to lobbying on the Finance Bill and the budget, for example, can be made available in due course but not before they have been fully considered. That means consideration by the Oireachtas as well. I have to take issue with the Senator when she says this Bill will damage our reputation. I entirely refute that. This Bill is good for our reputation. The Irish Central Bank is deemed to be a good central bank internationally.Any suggestion that it will regulate and approve investment limited partnerships that would damage our reputation I do not accept for a split second. In fact, the Central Bank has often been accused of being too strict in its regulation. Our Revenue Commissioners are also very strict on tax compliance. They take on not just the biggest people in Ireland but also the biggest corporations in the world when they have to. We have seen that they have never been shy of doing that. I therefore do not accept for a minute that the Irish Revenue Commissioners or the Irish Central Bank would in any way allow issues to arise on their watch that would damage our reputation. I therefore do not accept that this legislation will damage our reputation. It will be strictly regulated by the Central Bank.
There will be a 12-monthly report. I cannot envisage what the content of that report will be at this stage, so far in advance. There will be an opportunity when the report is published to discuss it and its contents or perhaps issues that could be included in future reports. The commitment at this stage is a post-enactment scrutiny note 12 months after the enactment of the legislation, in line with Standing Orders. Accordingly, I cannot accept the recommendation made by Senators Higgins and Ruane.
Again, it is very important to clarify that nobody objects to the fact of lobbying. It is a normal process. Many of us received lots of pre-budget documents, for example, from various bodies on the budget and the Finance Bill. The issue is the clarity. I note that the Minister of State at least believes the Houses of the Oireachtas should have access to these documents as part of their process of consideration. I regret that this House of the Oireachtas has not had access to the documents because this is the consideration process. I am hopeful that the other House may be able to access relevant documents.
It is not simply the Executive that determines and make decisions on legislation. We all need to scrutinise legislation and give it our due consideration. Where documents are considered to be relevant to the legislative process in that way, it is appropriate that all relevant spokespersons have access to those documents. I am certainly not imputing anything to the Central Bank or Revenue. I am very confident that they will do absolutely everything as rigorously and appropriately as possible. I am not speaking to that. I am speaking to our duty as legislators. The tax avoidance mentioned in my amendment would not be illegal. No one is claiming it would be. This is about best practice and what is illegal.
The legislative framework within which Revenue, the Central Bank and all other parties operate is the framework set by us. That is really important because this is a legislative framework which, for example, reduces a lot of liabilities. We are reducing a lot of liabilities and removing them from a number of parties in this legislation. That is part of my concern. Again, it would be useful if the Minister were able to give some assurance on post-legislative enactment. It is a concern that we do not know if this will include the issue of tax avoidance. It really should. It would be an inadequate piece of post-enactment scrutiny if it did not consider the question of best practice in respect of taxation. I say this as somebody who wants Ireland to have a good reputation in this area and wants us to be able to show our bona fides in that regard.
I regret that the Minister of State is not able to accept the amendment. I recognise that he is putting forward post-enactment scrutiny but, if not in this House perhaps in the other House, he will really need to clarify what issues he expects to be covered within that because that will be important. I will press the amendment.
Amendments Nos. 2, 18, 24, 26 and 41 to 43, inclusive, all relate to the same core issue, which is the fact that there is what I am concerned might prove to be somewhat of an omission in the Bill. The Bill refers specifically to beneficial partners throughout as individuals and does not give recognition to the fact that beneficial owners may be corporate entities, or bodies corporate. Especially given that we are looking to a very large new tool and product that will be made available and that we are reducing liabilities for limited partners and limited owners, if we only have beneficial owners and the beneficial owners consist only of individuals and exclude corporate entities, I am worried that this could be a really substantial gap in the Bill.
It is particularly important given that the 1994 Act, in section 5(2), states, "A body corporate with or without limited liability may be a general partner or a limited partner and a partnership may be a limited partner." We have in the past established that a limited partner may be a body corporate and that a general partner may be a body corporate. Similarly, in the Irish Funds Industry Association's submission to the Government it made clear that investment limited partnerships are typically professional investors and include public pension funds, sovereign wealth funds, private sector pension funds, insurance companies, endowments and foundations as well as private investors. Given this is the case, the language in the Bill is a concern.
Quite a large number of amendments are grouped together under this point. One of the key points is that the term "beneficial owner", as it relates to an investment limited partnership, means any individual. Therefore, I again respectfully suggest that the Bill will have a serious gap in it if there is any space for beneficial owners to consist only of individuals rather than body corporates. There may be an interpretive answer, but we need to be really clear. We certainly do not want to be at odds with how we chose to clarify these issues in the 1994 Act. That Act went to the trouble of specifying this. Now, however, we have a new phrase. While the 1994 Act deals with the terms "general partner" and "limited partner", here we are talking about the term "beneficial owner". Given that we are introducing this phrase, let us be very clear on it.
Issues of money laundering are very important. One of the elements in the Bill concerns a response to the drive against money laundering internationally, but it is not just individuals but also bodies corporate that launder money, and it is crucial that Ireland, in its register of beneficial owners, includes bodies corporate, which may be involved in such activities or may need to be investigated in the future in respect of such activities. Common contractual funds, for example, allow pension funds and other institutional investors to pool investments, sometimes for tax avoidance purposes. There is nothing illegal in that but it is one of the main uses of such funds.Some of these funds, the investment limited partnerships, ILPs, will be geared towards institutional investors, pension funds, companies and corporate bodies. If the beneficial ownership register - I am speaking now to the later amendment specifically on the register - only includes individuals, effectively all those bodies will fall out of the function of the register and we would be at risk of not really fulfilling the spirit or perhaps even the letter of the obligations that have come from Europe. The beneficial ownership register comes from that imperative.
The stated primary purpose of the beneficial ownership register is to assist national and international agencies in their fight against money laundering and other illegal acts. Nothing under the Bill as it stands will stop an individual or a group of individuals setting up a corporate body and placing their assets within its legal structures in order to then go on to place those assets in a common consolidated fund or an investment limited partnership. Potentially this could be done by criminal organisations and no paper trail would link to the register in respect of that.
My amendments in this area try to address that issue by ensuring that the definition of beneficial owner is amended to include corporate bodies. At the moment we are providing simply for the PPSN of an individual. However, where the beneficial owner is a corporate entity, its company number or its equivalent business identification number needs to be included in the beneficial ownership register.
As an example of this narrow assumption about individuals throughout the Bill, in another amendment I deal with reference to "birth". The Bill refers to the birth of a beneficial owner, when we might need to specify birth or incorporation.
The Minister of State will understand this is a very genuine concern in terms of not just the impact but also in terms of the extent to which the legislation fulfils one of its key stated purposes. I ask the Minister of State to address the suite of amendments and the wider issue.
I hope I can allay the Senator's concerns on the issue. I understand her points. The legislation as drafted is remarkably strong and perhaps, inadvertently, the amendments would substantially weaken the beneficial owner framework and prevent full transparency in the beneficial ownership register. These amendments would allow an incorporated company to enter a date of incorporation or a company number, rather than the date of birth or a PPS number of the beneficial owner. The information which is delivered to the registrar must be of a natural person and the amendment goes against the purpose of the modernisation of the legislation to align with anti-money laundering developments, and I cannot accept these amendments.
This would block the registrar from looking through a company to see who the beneficial owner is. This could mean that only the surface level would be entered on the register, rather than the actual individual person. The Bill provides for the registrar to determine alternative forms of identification for those without a PPS number. We mentioned passports etc. on Committee Stage for both ILPs and common contractual funds, CCFs, in sections 52 and 18 of the Act, respectively.
No matter what mechanism is used to invest in an investment limited partnership, the purpose of the legislation as drafted is to identify the actual person or persons behind the investment, not a company or some other corporate structure, incorporated or unincorporated. The legislation goes further and mentioning a limited company there would prevent us getting through that. The whole essence of the Bill is that actual natural real-life person who controls the company is the person to be identified here. We are taking everything beyond the company and right through the company into whoever controls the company if he or she owns more than 25% of the company or without 25% of the shares if he or she is in a position to control the company. When it comes to the taxation and following through who the real investor is, the real investor is not just a shelf company. The real investor in those cases is the person or people behind the shelf company. Everything in this legislation is to get at the people behind what can be a shelf company. Everything in this legislation is to get at the people holding shares in what can be a shelf company. I believe that is really what the Senator would want us to do. Inserting the reference to a limited company might restrict us to seeing the company and not being able to look through the company to see who controlled it.
The legislation as drafted allows it to get right back to the beneficial owner wherever they may be. That is why we have the reference to PPS numbers. If companies were allowed be in that position, we would be prevented from finding out who the individuals behind that company were. The legislation is stronger because we exclude a provision for company. We go straight through the company to the beneficial owner. I can understand that on the face of it, it looks as though we are excluding companies. However, that is because we have gone much further in the first place; we have gone to the people behind the companies.
In an investment limited partnership, including where the investment limited partnership is an umbrella fund with sub-funds, will a beneficial owner be identified for each company who is an investor in that company? I wish to clarify that it will not be simply one beneficial owner in respect of the investment limited partnership, but that persons relating to the sub-funds within the umbrella will also be identified.
I will come to the 25% issue in a moment; it is dealt with in a separate set of amendments. In that circumstance, there may be a number of beneficial owners in respect of a company or investor.
My wider concern is about the disappearance of the limited partners and the fact that the limited owners may effectively be in that corporate space. I think it would be better if a person were identified for each investor in that context. That would be the natural follow-through on it. Perhaps that can be looked at in the Dáil. I accept the Minister of State's bona fides on this matter. I still feel the problem is there, but I feel that my amendments might not address it in the right way and so I will withdraw my amendment.
Amendments Nos. 3 to 6, inclusive, are related. Amendment No. 4 is a physical alternative to amendment No 3. Amendment No. 6 is a physical alternative to amendment No 5. Amendments Nos. 3 to 6, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
These amendments deal with the issue of the 25%. These investment limited partnerships are potentially very large. An investment limited partnership could potentially have up to €100 million in capital. Under the Bill, an investor who might have €24 million in capital in an investment limited fund would not be listed as a beneficial owner.I am concerned that there is still effectively a mandate for secrecy for very large-scale investors, whether for individuals who come in under that 25%, corporate entities as described, or the kinds of structures of concern mentioned in respect of the issue of money laundering and so forth. At a certain level, 25%, which is a very blunt tool that is not attached to any other limitations regarding amount or volume, tens of millions of euros may be invested in an investment limited partnership without transparency attached. This figure of 25% seems somewhat arbitrary. It does not speak to the wider need, which is the driver of some of this Bill, the idea that we need greater transparency around beneficiaries, for individuals to be more accountable and more capacity to investigate issues such as money laundering. If even €1 million, €2 million or €3 million of investment is not subject to potential investigation through the beneficial owners register, that is of real concern. Again, this is the core part of the Bill. I am concerned about the very large volume of money associated with limited partners, the considerable power given to them, as we will be discussing when we get to section 7, and the fact that their liabilities and their transparency under the register are extremely limited. This is our concern.
My amendments in this regard include both a main one and a compromise. In one I suggest that anybody who has a share in an investment limited partnership should be considered a beneficial owner. Although I felt it was something the Minister might want to address himself, an alternative would be to link percentages to different sizes of investment limited partnership. I do not believe anyone who is investing €1 million should not be recognised as a beneficial owner or actor. That is a potential solution. My solution simply suggests that the threshold of 25% be deleted and that all who have shares be considered beneficial owners. I have another alternative, which is to alter the figure to 10%. If we are talking about a fund of the scale of €5 million or €100 million, 10% is a very substantial amount of money. It is appropriate that the owners of such a proportion of a fund be regarded as beneficial owners and have the liabilities and transparency associated with that.
Will the Minister of State indicate whether he is inclined to accept these amendments or whether he has concerns or plans to ensure that we will not have a number of invisible large-scale investors in investment limited partnerships in the future?
I thank the Senator. While I understand the points she has made, we are concerned, to some extent, with money laundering and, possibly, some other areas. The definition of beneficial ownership in this Bill aligns with the definition in the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. The specific definition of "beneficial owner" in the 2010 Act is a person who:
(a) ultimately is entitled to or controls, whether the entitlement or control is direct or indirect, more than a 25 per cent share of the capital or profits of the partnership or more than 25 per cent of the voting rights in the partnership, or
(b) otherwise exercises control over the management of the partnership.
The threshold for control is therefore applied through two tests. If a person has a shareholding of more than 25%, he or she is included in the definition and he or she is also included if he or she can control the investment. A number of people may be defined as a beneficial owner. Even if a person only has 10% of the shareholding, he or she may control more because of the way it is constructed. There may then be three other people who each hold 25% or more of the shareholding but who might not actually control it. In that case, four beneficial owners would be captured by the definition. The beneficial ownership framework is also being introduced in Ireland and it follows the provisions of EU legislation. We want to ensure the highest international transparency standards apply to investment limited partnerships. It is therefore important to have consistency with existing legislation on money laundering and EU legislation. An alternative method of dealing with this matter would not align with the various elements of existing legislation. It is important that this legislation align with existing legislation dealing with money laundering and with EU regulations.
EU regulations use the definition I have just mentioned, which is that a person with 25% of the shareholding, or control over 25% even if he or she owns less, is a beneficial owner. If a different level was set in our legislation, say 10% or 20%, we would be out of sync, which might make it more difficult for people who want to invest under the funds structure we are setting up in Ireland. If our legislation was out of kilter with the rest of the EU, it would cause unnecessary difficulties and might make it less practical to operate. We should not choose to be out of sync with money laundering legislation and EU regulations. For that reason, I am not in a position to accept the amendments.
I respect that 25% is the figure set out in the money laundering legislation but the concern is one of scale. As I see it, Ireland is keeping the same definition of a big fish while enlarging the pond very considerably. The concern is that investment limited partnerships are not of the same scale as an individual company. They are an amalgam of multiple funds. That is the case that has been made in favour of them; that there will be large umbrella funds with multiple sub-funds, a very large investment vehicle with governance measures attached to the top. It is a matter of the scale. That is where there is an issue. One will be able to invest €24 million and not be considered a key actor in the fund because it is a fund of €200 million. I appreciate the sentiment driving the money laundering legislation from Europe and that we are now seeking to comply with the letter of that legislation but I am concerned that the scale will make that measure less meaningful and less effective. This is an issue that needs to be addressed, whether individually or, given Ireland's key role as regards the finance ministers of the EU, collectively. Some 25% of a €4 million or €5 million fund is not the same as 25% of a €100 million or €200 million fund. In that context, I will press these amendments. I hope these issues will be addressed in another way elsewhere.
I recognise and appreciate the Minister of State's points as to the issue of control. Some of my later amendments touch on the issue of what constitutes control of a vote.
Garret Ahearn, Paddy Burke, Jerry Buttimer, Malcolm Byrne, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Regina Doherty, Aisling Dolan, Timmy Dooley, Robbie Gallagher, Seán Kyne, Vincent P Martin, John McGahon, Erin McGreehan, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 7:
In page 7, line 25, after “2005” to insert the following:“or its international equivalent for individuals without a PPS number such as a passport number or national identity card number or national insurance number”.
This amendment deals with issues relating to the use of PPS numbers and so forth. I separated it out because it is a slightly different point to the one we were making about corporate bodies and how they are addressed in the Bill. Many of the internationally based individuals, non-resident individuals who are beneficial owners may not have a PPS number. In order to ensure such beneficial owners can be identified on the register we may need to collect an equivalent international number such as a passport number, a national identity card or a national insurance number. Again, it is just recognising the fact that a number of the non-resident investors who may constitute beneficial owners in the investment limited partnerships may be based overseas and may not have a PPS number.I raised this issue on Committee Stage and the Minister of State suggested that the Bill will facilitate the recording of non-resident individuals for beneficial ownership reasons. He also stated that people will have to show their passports or prove they are beneficial owners. Actually, there is nothing I have seen in the Bill which requires them to perform such an act. The Bill specifically relates to PPS numbers and this is the only identification method that is identified or recorded. It is not clear what mechanism under the Bill will allow us have identification in respect of non-resident individuals who are beneficial owners. This amendment would clarify that.
I acknowledge the purpose of the Senator's amendment but the matter is well and truly dealt with and the position is clear. The Central Bank of Ireland is the body that will determine the position where a PPS number is not available and it will require a relevant identifier to its satisfaction. The normal procedure in place requires not just a passport number but actual copies of the passport to verify the individual. There may not be the equivalent of a PPS in several other countries and, in that case, everybody will have to produce a passport. The Central Bank has the authority to determine precisely what form of identification is required, whether a PPS number or a passport, depending on the nationality of the person involved. The onus is on the Central Bank to satisfy itself as to the identity of the person involved. I am satisfied the Central Bank will do the job it is required to do under the legislation.
The PPS number would be the most common identifier and it is mentioned. However, if we were to tie the Central Bank's hands by prescribing one, two, three or four particular forms of identification from across the globe, and try to put that into this legislation, we would inevitably leave out something. We are giving the authority to the Central Bank to determine the relevant identifiers in the absence of a PPS number. I am not in a position to accept the amendment.
My concern is not just that the PPS number is the only identifier mentioned but that, in fact, it is quite a narrow definition of PPS number in the Bill, in that it is the PPS number within the meaning of section 262 of the Social Welfare Consolidation Act 2005. We are talking about Irish PPS numbers and that is what is specified in the Bill. I recognise there is reference to the “information to be delivered to the Registrar” and “such information as stands determined by the Registrar for the purposes of this section”. I am not sure if that is what the Minister of State is referring to. Again, my concern is that it is not particularly clear and I believe the amendment would clarify the Bill.
The term "PPS number" is used throughout the Bill. Even though there is that small power in terms of referring to other information, consistently, the term "PPS number" is used in regard to how the register is to be operated and function. For example, the Bill states:
As respects a PPS number of a beneficial owner that has been delivered under subsection (2) to the Registrar-
(a) the Registrar shall not disclose that number, and
(b) that number shall be stored securely by the Registrar.
We do not have an equivalent for a passport or any other form of identification, which concerns me. I am not seeking to limit the discretion in terms of forms of identification, which is why my amendment suggests the national insurance number or passport number. I would be happy if language were inserted in the Bill to suggest such other forms of identification are appropriate or if the definition of PPS number were widened in some frame. I am concerned it is not simply in one place in the Bill but throughout the Bill that "PPS number" is used as a form of placeholder in terms of the functioning of this system. We want to ensure there is no ambiguity.
Section 7 gives rise to one of my most fundamental concerns in respect of the Bill. I will be pressing this amendment to a vote in opposing the section but I am also proposing a number of other amendments to extract some of the more egregious elements of the section.
On Committee Stage, no strong rationale was put forward for the section besides the question of what is a change and a shift in the current understanding of what constitutes a limited partnership versus a beneficial partnership. Effectively, this section inserts a new set of actions in which a limited partner can engage, including very significant actions, such as the following: serving on the board or committee of an investment limited partnership, including an advisory committee; appointing, electing or participating in choosing the representatives who will serve on the board of a committee; acting as a member of a board or a committee directly or through another representative; giving advice on, consenting or refusing to consent to any action that the general partner in an investment limited partnership might take; and exercising all of the powers, authorities or obligations that a member of a board will have.
This is a substantial decision-making role that is being accorded to limited partners under the protective cover of stating that they will not be subject to liabilities in respect of those actions. That is significant. Given, as we have discussed, the extraordinary scale of the investment limited partnerships, the substantial amounts of money at play, and the very substantial decisions at play, we are now in a position where we are effectively excluding these very active decision makers from liability. In the Minister's response, he simply said that people may have an opinion and that everyone is entitled to that. There were provisions in the 1994 Act to ensure there are certain actions which it is appropriate for a limited partner to engage in that do not necessarily carry liability. However, I suggest that serving on a board, determining who serves on a board and making decisions on that board are not actions that are appropriate for exclusion from liability. It is a particular concern if we widen the exclusion from liability to include these actions when we are effectively bringing in giant investment limited partnerships. We have a much bigger instrument, potentially, and we are giving people more control at the wheel of that instrument, yet we are lessening their liability. That is a serious concern.
I am opposed the entire section. However, I want to oppose a few specific aspects of it as well. I oppose the specific aspect in regard to serving on a board in the introduction of this section. I would also like to specifically oppose a very extraordinary set of lines which state that not only are these acts excluded from the question of liability if something were to happen on one occasion, for example, but that this applies “irrespective of the frequency with which that holding out, or that purported doing of the act or acts concerned, occurs”. A person could be in there every day, could be at a board meeting every week and could be making decisions constantly. This is not a one-off, inadvertent question of whether a limited partner expressed an opinion and whether that has had an influence. This is literally a situation where the Bill states that it applies regardless of the frequency.Even if those lines are deleted, this section would still be a problem. However, it would state that being on a board, selecting a member of the board or participating in a decision on a board should not in and of itself be a breach of the liability protections. There are some protections for each action in itself, but if they are done frequently we allow a pattern of control, influence and steering of a company to occur. I will oppose this section and the Minister of State should delete it, but if he cannot, he should consider removing the proviso that allows people to do such things all the time. In that way, one action in itself would not be considered a problem. That protection would still be there but we would not have this idea of as many actions as one likes. There is a concern that a pattern will emerge of people who are only 10% or 20% shareholders effectively steering the policy and actions of a limited partnership without any liability.
We have come to the kernel of what this legislation is about. To use a phrase that is well known to most people, this legislation does what it says on the tin. The legislation is called the Investment Limited Partnerships (Amendment) Bill 2020 and the essence of it is to give limited liability to limited partners. If we were to in some way take away a limited liability from a limited partnership, where would the legislation be after that? That is what it says on the tin or on the front cover and this section is copper-fastening what is stated in the Title. I find it hard to reconcile calling the legislation the Investment Limited Partnerships (Amendment) Bill 2020 while delimiting the limitations of liability of the actual partnerships. I would make that overall point. The Senator and I probably have different views on what the entire Bill is about. She says the right thing to do is to take out the section or if that is not possible to make some amendments, but everything she has said goes against the grain of what the legislation is about.
As discussed on earlier Stages, the 1994 Act permitting a limited partner to participate on the board and committees related to an investment limited partnership. Section 7 of the 1994 Act allows that. This adds board participation to the white list of activities that can be undertaken by a limited partner and that will not be deemed as taking part in the conduct of the business and that will, therefore, not result in any loss of liability. The white list concept is common in many areas. The essence of the Senator's argument is that participating in those activities, including serving on boards or committees of the investment limited partnership, choosing a person to serve on such a board or making a decision to approve a change of partnership agreement is so major that it makes people of influence more akin to a general partner. That is the essence of the argument being made. The clarification in this legislation allows limited partners to serve on a board in a consultative capacity. That is the essence of it. They can be there in a non-decision-making capacity and can offer opinions but they have no role in the management of the partnership. They can be consulted and have their say but they have no role in decision-making. A person is entitled to participate and express his or her views but that does not make him or her a decision-maker.
If such partners are deemed to be partaking in a decision of the investment limited partnership or breach their role as a limited partner, they will lose their limited liability. In effect, they will then become general partners with unlimited liability for the whole partnership. It is possible to have more than one general partner but some people only want to be there as passive investors who are consulted on issues and do not want to be involved in the decision-making process. They can be consulted on issues but cannot be brought into the decision-making process. If they were, they would lose their limited partnership protection and limited liability and would become general partners. As the regulator and registrar, the Central Bank will be always oversee and approve the schemes of all legislation being put in place. I must again revert to the fallback position that I am satisfied that the Central Bank is very thorough. It has a strong international reputation for being a good, strong, straight and effective regulator and it will not be any less so when it comes to this legislation. For those reasons, I am not in a position to accept the amendment.
I am very concerned because I thought we were setting up new vehicles. The Bill was to set up investment limited partnerships, as the Minister of State said, and the limitation of liabilities between sub-funds under an umbrella structure. If the nub of this legislation is not accountability for beneficial owners but the expansion of what the Minister of State calls a "white list" into a set of new activities, that is a concern and the case has not been made for it. I have not heard the case for why it is so important to have limited partners on boards and decision-making committees. The Minister of State has said repeatedly that they would only have a consultative role but I must correct him because that is not what is in the text before me. The inserted section states that the white list of activities a limited partner can do includes:
(i) serving on any board or committee ... of the investment limited partnership
(ii) appointing, electing or otherwise participating in the choice of a representative or any other person to serve on any such board
[... and, crucially,]
(iii) acting as a member of any such board or committee either directly or by or through any representative or other person, including giving advice in respect of,
[that is the consultative piece] or consenting or refusing to consent to, any action proposed by the general partner on behalf of the investment limited partnership and exercising any powers or authorities or performing any obligations as a member of any such board or committee ...
That is a lot of power. That is not consulting or sitting there passively and throwing in one's tuppence worth. These people are consenting or not consenting. That is very significant. If the Government is saying that if they were to consent, not consent or interfere, they would be in breach and would become beneficial partners, it must be clear on that because it is inserting these activities into the section of activities protected from liability under section 6 of the 1994 Act. That is an issue.
There are many companies in Ireland with limited partners or people playing a role. Why would an Irish investment company or a normal Irish company be restricted in how certain investors might participate in the board and decision-making while the Government gives these huge investment limited partnership vehicles a disproportionate level of power, bearing in mind that a number of them may be international or commercial investors from around the world because these are international vehicles? I am concerned about why these particular partnership structures, with up to €100 million or whatever large amounts an investment limited partnership might be in control of, are giving so much power and freedom from accountability to their limited partners in a way that is not reflected in any other company structures and that is not normal.The Bill directly suggests that they will refuse consent to any action proposed by the general partner on behalf of the investment limited partnership. That is straight up in the Bill. Those sections should be refused, rejected and reconsidered and I will call a vote in respect of that.
Ivana Bacik, Frances Black, Lynn Boylan, Eileen Flynn, Paul Gavan, Alice-Mary Higgins, Annie Hoey, Sharon Keogan, Michael McDowell, Rebecca Moynihan, Niall Ó Donnghaile, Lynn Ruane, Marie Sherlock, Mark Wall, Fintan Warfield.
Garret Ahearn, Jerry Buttimer, Malcolm Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Regina Doherty, Aisling Dolan, Robbie Gallagher, Róisín Garvey, Seán Kyne, Vincent P Martin, John McGahon, Erin McGreehan, Eugene Murphy, Fiona O'Loughlin, Joe O'Reilly, Pauline O'Reilly, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.
I move amendment No. 12:
In page 10, between lines 11 and 12, to insert the following: “Amendment of section 7(4) of Act of 19948. Section 7(4) of the Act of 1994 is amended by the insertion of the following paragraph after paragraph (a):“(aa) the degree to which the investment limited partnership will make a positive contribution to civil, social, economic or cultural life within the State;”.”.
I have retabled amendments Nos. 12 and 13 from our Committee Stage debate. They relate to the introduction of important civil, social, economic, cultural and environmental clauses into the investment policies of private financial actors who come together to form a limited partnership under this Bill. Amendment No. 12 will empower the Central Bank to, when considering an application for the authorisation of an investment limited partnership, set important conditions for ensuring that the new fund must demonstrate that it will make a positive contribution to civil, social and economic life in Ireland through its investment policies. Amendment No. 13 would further empower the Central Bank to consider the degree to which the investment policies of the proposed limited partnerships would support global efforts to tackle the climate and biodiversity crisis.These are extremely reasonable amendments. I am not saying that such clauses are even a requirement for these new limited partnerships. I am simply giving the Central Bank the power, where it sees fit and deems it appropriate, to choose to set its own conditions for the granting of this new legal investment personality in return for the favourable legal and investment opportunity we are giving to them. The vast majority of Irish people want to know what we are getting in return for the extraordinary efforts the Government is making to facilitate the growth and accumulation of international capital here in Ireland. Amendment No.12 would allow for exactly that. These proposals are entirely in keeping with the climate and biodiversity focus of the programme for Government and could feasibly represent a real and tangible opportunity to address those crises. We had a lengthy and detailed debate on biodiversity in the Seanad last night where the lack of solutions presented by the Government to date was lamented. It is this kind of proposal that could cause a sea change in our crisis response. If every investment policy under this Act was designed to support even one specific biodiversity or climate project we could feasibly see all the ground lost in Ireland in recent years made up in a very short time.
I listened closely to what the Minister of State said when rejecting these amendments on Committee Stage. He said that the Central Bank is responsible for the authorisation and supervision of investment funds established here in Ireland and as such, "it is not a matter for the Oireachtas to set out the rules and conditions of any investment fund". I fundamentally reject this assertion because we are doing exactly that here. We are setting out the rules and conditions by which investment funds are approved and operated. It is entirely within the powers of the Oireachtas to set out the kinds of conditions we expect from these funds. We are not making decisions on individual funds but setting the framework by which the decisions are made. The Minister of State has set out many conditions for authorising an investment partnership. They are detailed and set out in this legislation and I am simply proposing that we add more. As representatives of the public and their law makers, it is up to the Oireachtas to decide how this area is regulated. The Minister of State may not want to set out these kinds of social and environmental considerations but he cannot say that it is not our role or within our powers to do so. The Minister of State also referenced a number of very worthwhile and important European legislative instruments on social and environmental investment policies. However, I do not see how they can be presented as obstructing the need to include the kinds of provisions that I am proposing. Surely we should look to strengthen our laws to aid implementation of EU directives and increase our ambition and scope rather than just doing the bare minimum because it is a European requirement. I am disappointed that the Minister of State does not see this as an opportunity for Ireland to become a leader rather than a follower in this area and urge him to prove me wrong in that assertion by accepting these amendments.
I will speak briefly as Senator Ruane has covered the arguments extensively. As I said, I second these amendments. The fundamental point is that we are the Legislature and we are putting in place the framework under which these funds will operate. Indeed, extraordinary provisions have been made in this Bill to allow particular activities to take place that would not normally take place, for example, to allow a limited partner to exclude limited partners from certain liabilities. Many choices are being made in this legislation and a similar choice would be to include the possibility for the Central Bank to put in place measures in respect of benefits to the State, business and human rights, on which a UN treaty is being negotiated, and on climate and biodiversity which would be in sympathy with the State's policy of fossil fuel divestment, for example. There is nothing to preclude us from giving those powers to the Central Bank. The Minister of State spoke about the good offices of the Central Bank and these amendments seek to strengthen the hand of the bank so that it can perform to a high level in delivering on issues around business and human rights, climate and biodiversity sensitivity in these funds. This is very reasonable in view of how much is being given to those who are seeking to set up these news kinds of products and structures in Ireland. That should come with at least some positive conditionality.
Investment funds are established for the purpose of investing the pooled funds of investors in assets in accordance with the investment objectives and policies published in the proposed prospectus. A fund is established for a particular purpose and the objectives of that fund are set out in the prospectus. People in normal society are then free to invest in that fund. In the context of investment limited partnerships, the investment fund will be authorised as an investment if it meets the requirements of the Central Bank's rules and guidance. It will be an alternative investment, known as an "alternative investment fund" which is recognised across the EU and can be marketed across the EU's internal market. Nobody here wants to limit the free movement of people, goods and services within the EU. An investment limited partnership may seek investment exposures which are not limited to Ireland or even to the EU. The amendment makes reference to the degree to which a fund could make a contribution within the State but it quite possible that some of the funds managed here will not be invested in Ireland. They could be invested anywhere in the EU or even outside the EU. It is not a requirement that the investment funds must be used solely in Ireland. That is not what this legislation is about because we are long past the position of trying to prevent the free movement of goods and services in the EU. This must operate in the EU context.
The European Social Entrepreneurship Funds regulation already provides the regulatory framework for funds with a social investment objective. Investment limited partnerships may be established under that regulatory framework and would be regulated by the Central Bank of Ireland. Furthermore, an EU regulation on sustainability disclosures in the financial services sector was recently agreed and will apply from March 2021. Under that regulation, it is a requirement that investment funds consider the environmental and social impacts of their investment. They are not obliged to solely invest in projects with environmental or social objectives. They will be obliged to consider such objectives as part of their prospectus but cannot be directed to invest solely in such projects. Funds will be obliged, before publishing any prospectus, to consider the impact on environmental and social objectives. That EU regulation will operate from March 2021.
It is for the reasons just outlined that I am not able to accept the amendments. They seek to limit investment to within the State but it is accepted that the scope of these funds should be broader than that. Further, these funds will be governed by EU processes and the new regulation on sustainability disclosures which comes into effect next year.
I move amendment No.13:
In page 10, between lines 11 and 12, to insert the following: “Amendment of section 7(4) of Act of 1994
8. Section 7(4) of the Act of 1994 is amended by the insertion of the following paragraph
after paragraph (a):“(aa) the degree to which the investment policies identified under paragraph (a) will support initiatives that contribute to domestic or
international efforts to address the climate and biodiversity crises;”.”.
Amendments Nos. 14 to 16, inclusive, address the fact that the way a majority of limited partners is calculated under this Bill is not by a simple vote of all limited partners but according to a majority shareholding, that is, who has the largest amount of shares. Again, this comes to the question of invisible control. My concern is that one may have a single limited partner who has 51% of all of the limited partner shares and can, therefore, call the shots in terms of votes.
The Minister of State might address this because he seemed to indicate earlier that wherever anybody is found to be in control of a vote, he or she will be regarded as a beneficial owner. If that is the case, then perhaps amendment No. 16 is unnecessary and the Minister of State can clarity whether that is already his interpretation. I refer to an example where a number of limited partners in a company hold more than 25% of a partnership and then one individual constitutes a majority of those limited partners. Consequently, one individual controls 13% or 14% of the 25% and, therefore, is in a position to control the majority vote, that is, to control how that 25% or more is used or reflected. That individual constitutes a majority of limited partners in terms of shares and, therefore, controls the outcome vote of a majority of limited partner. Is that person considered to be a beneficial partner, because he or she is in control of 25% or more of a vote within an investment limited partnership?
The Minister of State has suggested that where anybody was found to be in control, he or she would be the beneficial partner. In this circumstance, an individual might only hold 14% of the shares overall but that would be enough for him or her to be in control of the outcome of a 25% share.
These amendments relate to the manner in which a majority of the limited partnership shall be calculated by reference to the value of their contributions made to them, at the time being, in the investment limited partnership. The structure of the investment limited partnership is not based on one partner, one vote. It is based on their contribution to the partnership as outlined in the partnership agreement when it was created.
What we did say is that the issue of control is separate from the beneficial owner. These are two distinct issues. If one has over 25% then one is a beneficial owner. One can be deemed to be a beneficial owner if one has under 25% but one can effectively have control. Even though one's shareholding is less than 25%, if one is in a position to exercise control then one becomes a beneficial owner in that situation. As I did say, obviously one could have more than three people with more than 25% so it is possible that three or four people could be beneficial owners but it does not mean that they actually control it because there can be other beneficial owners with equal shares as well. So the 25% rule does not come in here. Like in any company, voting rights depend on how many shares one owns. It is not a mutual society like a building society where one person has one vote. When one attends a company's arrangement or meeting the strength of one's vote is determined by the number of shares one holds. The principle of the one partner, one vote is not part of this legislation.
Yes, if such a person controls 25% of the vote in the limited partner. I am not talking about the general partner who runs the whole business but the limited partner. Yes, he or she is a beneficial owner but it does not give him or her control of the general partnership that is solely in the hands of the general partner because such people have limited control, they are limited partners and, as we said already, they can have a participating vote in an advisory capacity, which is certainly not control. They can make their recommendation but they cannot tell the general partner what to do. The general partner makes a decision. As soon as a limited partner tries to make a decision, he or she loses the limited liability protection and could be deemed to be a general partner but he or she does not want to go there at all.
There is a difference between the control of a limited partner versus the whole question of a general partner, which is the person who actually runs the operation. There can be several limited partners, or any amount of limited partners, in the general partnership.
I see a clash. The Minister of State has said again that it is an advisory capacity and so forth. Again, the legislation explicitly says, "consenting or refusing to consent to, any action proposed by the general partner" - that is not advice - "on behalf of the investment limited partnership and exercising any powers or authorities" as a board member. We need to be clear. The Minister of State has repeatedly stated this is a consultative role but the power, as given, is directly a power of consent or non-consent in that regard.
According to the definition of "beneficial owner", a beneficial owner is somebody who is entitled to, or controls, more than 25% share, or more than 25% of the voting rights. If limited partners own 30% or a large amount of shares and so have those voting rights, and if an individual, for example, owns 20%, the fact that he or she owns 20% of the shares might not make him or her a beneficial owner but the fact that he or she controls 30% of the vote does make him or her a beneficial owner because of the rule we have on how a majority of limited partners is determined and the fact that the outcome of any vote - or the decision in terms of any majority vote - is determined by the shareholder who has the majority of shares who is a limited partner. Again, that person with 20% will determine how the 30% of voting rights is used and, thereby, is effectively a beneficial owner. My view is based on the definition here. One cannot have a tautology where we say he or she is not a beneficial owner because he or she is not a beneficial owner. The definition of beneficial owner is based on the control of ownership of shares or the control of vote. The mechanism set out later in the Bill allows for an individual who might be a limited partner in terms of share level to, nonetheless, exercise a level of control of vote that tilts him or her over the 25%. Clarity is needed because one is really looking at somebody who is being a limited partner and if that happens then he or she needs to be treated with the same liabilities as a beneficial partner.
The only point of clarification is, the voting strength of all the people is determined in the original partnership agreement. That is where it is determined. People can have a majority of shares but the partnership agreement is the one that runs the partnership and they appoint the general partner to do the job on their behalf. So, the partnership agreement decides the voting strength and they sign up to that at the beginning, irrespective of the voting. One could have somebody with a lot of shares but who does not want to have any particular involvement and be totally passive. That is set out in the partnership agreement, not solely on the basis of shareholding and that is agreed when people sign up to the partnership agreement to start with.
I move amendment No. 15:
In page 16, between lines 26 and 27, to insert the following: “(2A) Where a single limited partner holds a majority shareholding a simple vote of limited partner shareholders shall be constituted as majority.”.
As the time permitted for the debate has expired, I am required to put the following question in accordance with the order of the Seanad of this day: "That the Government amendment undisposed of is hereby made to the Bill; that Fourth Stage is hereby completed; and that the Bill, as amended, is hereby received for final consideration and passed."
Garret Ahearn, Jerry Buttimer, Malcolm Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, Emer Currie, Paul Daly, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Robbie Gallagher, Róisín Garvey, Seán Kyne, Vincent P Martin, John McGahon, Eugene Murphy, Joe O'Reilly, Pauline O'Reilly, Mary Seery Kearney, Barry Ward, Diarmuid Wilson.