The Government will come under pressure this week to amend the Companies Act to allow for the naming of the holders of Ansbacher accounts. However, such a course could itself be open to legal challenge, according to a senior counsel specialising in this area of company law.
At the moment the Government is precluded from naming the beneficiaries of these accounts by the nature of the investigation so far carried out. This was carried out by Mr Gerard Ryan, an "authorised officer" of the Department of Enterprise, Trade and Employment, and under the Companies Act his report is confidential to the Minister.
On the basis of his report the Minister, Ms Harney, has now asked the High Court to appoint inspectors to investigate the affairs of the company. These inspectors will have more extensive powers than the Minister's authorised officer, and their report, which will be made to the High Court, will be able to be published.
The legal basis for the non-publication of the names of depositors at this stage lies in the difference between Mr Ryan, the authorised officer, and the High Court inspectors. Specifically, Mr Ryan could only examine the records of the company and interview those in charge of it.
In contrast, the High Court inspectors have the power to interview other parties. In the words of the affidavit read out last week, these include "the Irish beneficiaries of Cayman trusts and companies, on oath in this jurisdiction who, she believes, are likely to have information and documentation concerning the activities of the company". Under Section 21 of the Act "no information, book or document" relating to the body under investigation by an authorised officer can be released without the consent of that body, unless criminal proceedings are being taken or in connection with the Minister taking proceedings for the winding-up of the company. Any person who does publish this information commits an offence.
Certain names have already entered the public domain, but this is because they were in the affidavit read out in court.
According to another senior counsel specialising in company law, the High Court inspection is "a much more serious affair".
The Minister does not have the power to wind up a company, but the High Court does. It also has the power to order any inspectors' report to be printed and published. As the product of a court action, such a report has absolute privilege.
The Opposition parties are, however, seeking earlier publication of the names than that offered by the process now under way through the High Court. They want to amend the Companies Act to allow the publication of this section of the authorised officer's report.
But, according to legal sources, while such amendment is technically and legally possible, it may generate further legal problems. "Can you change the rules halfway through the game?" asked one lawyer.
"There would be no problem at all doing it, but there is a question mark whether you can do it when the report is already in. It would be open to some question as to whether it was constitutional. I could see how you could make a case if you were an aggrieved party."
This source also made the point that there might be some beneficiaries of the Ansbacher accounts who had legitimate reasons for holding funds abroad, such as conducting business overseas. "They would be entitled to be treated differently," he said.
In any case, he said, the names were going to be published sooner or later. "It is only a matter of time rather than substance. Historically, these inspectors haven't taken too long, and most of the facts are there already."
