The Supervisory Authority
The Irish Auditing and Accounting Supervisory Authority is continued in being by the Companies Act 2014. Its existing board membership was preserved. The Authority consists of nominees of
- each prescribed accountancy body, whether or not a body corporate;
- the Director of Corporate Enforcement;
- the Central Bank;
- the Irish Stock Exchange;
- the Revenue Commissioners; and
- other bodies prescribed as a designated body.
The objects of the Supervisory Authority which are included in its memorandum of association are to
- supervise how the prescribed accountancy bodies regulate and monitor their members;
- promote adherence to the high professional standards in auditing and accountancy professions;
- monitor whether financial statements comply with the applicable accounting framework standards; and
- act as a specialist source of advice to the Minister on auditing and accounting matters.
The functions of the Supervisory Authority are to
- grant recognition to bodies of accountants for the purposes of EU Audit Directives and Regulation;
- attach conditions to the recognition and approval;
- require changes in the constitution and bye-laws of prescribed accountancy bodies, including in particular in relation to, investigation and disciplinary matters and standards and approval of changes;
- conduct enquiries as to whether prescribed accountancy bodies have complied with their investigation and disciplinary procedures;
- impose sanctions on them;
- undertake investigations into the breach of standards by a prescribed accountancy body;
- supervise how each body monitors its members;
- co-operate with the recognised accountancy bodies and other interested parties in developing standards relating to the independence of auditors and monitoring effectiveness;
- monitoring effectiveness of the Act and Audit Regulations relating to the independence of statutory auditors;
- supervise the investigation and disciplinary procedures of each prescribed accountancy body, including requiring access to its records and requiring explanations;
- co-operate with prescribed accountancy bodies and other interested parties in developing audit and accounting standards and practice notes;
- arrange for regulation and supervision of recognised accountancy bodies of statutory auditors;
- perform certain functions under Transparency (Stock Exchange) Regulations;
- perform public oversight functions under the EU Audit Directive.
Provision is made for the corporate governance of the Supervisory Authority. The directors are appointed by the Minister. They comprise representatives of nominated prescribed accountancy bodies, representatives of certain other nominating bodies and certain other appointees. The accountancy bodies are themselves to nominate persons by a majority vote of the bodies.
The Authority is to have a chief executive officer, appointed by the directors. His terms and conditions are set by the directors, subject to the approval of the Minister for Public Expenditure. The Supervisory Authority may employ staff with the consent of the Minister for Public Expenditure. It may retain advisors.
The Supervisory Authority is to prepare and submit a work programme to the Minister, for each successive period of three years. It is to deal with its key strategies and activities in order to further its functions, the outputs that it aims to achieve; and the requisite staff, resources and expenditure.
The Minister shall not give directions to the Supervisory Authority concerning the discharge of a work programme. A copy of the work programme is to be laid before the Oireachtas. The annual programme of expenditure is to be approved by the Minister. He is to take account of the views of the prescribed accountancy bodies and obtain the consent of the Minister for Public Expenditure.
The Supervisory Authority is funded by a grant of up to 40% of its annual cost by the Minister and as to the balance, by levies on prescribed accountancy bodies. The Supervisory Authority may also levy certain companies, undertakings, and groups thereof, including public companies, whether listed or unlisted, private limited companies or designated activity companies with balance sheet in excess of €25,000,000; and turnover in excess of €50,000,000;
The total amount levied on companies and undertakings is capped. A levy is not to be imposed unless the Minister has first approved the total amount of the levy and the criteria for apportioning the levy. In determining whether to approve the total amount, it shall have regard to the Supervisory Authority’s work programme and the use to which its funds have been put in previous years.
The Supervisory Authority must establish criteria for apportioning the levy between companies and undertakings and submit the criteria to the Minister for approval.
The Supervisory may impose, with the Minister’s consent, one or more levies in each financial year on statutory auditors and audit firms which audit public interest entities. There are limits on the amount that may be levied. The scheme for apportioning and applying the levy is to be prepared by the Authority, and the criteria are to be approved by the Minister.
Accounts and Reports
The Supervisory Authority is to keep and maintain accounts of its expenditures, income, expenditure, assets and liabilities. They are to be submitted to the Comptroller and Auditor General. The Comptroller and Auditor General shall audit the accounts and present its audit to the Minister. The Minister shall ensure that the accounts are laid before the Oireachtas.
The Supervisory Authority is to produce an annual report of its activities to the Minister, each year. A copy of the report is to be laid before the Houses of the Oireachtas.
The chief executive and chairperson of the board are accountable to Dáil Éireann committees in respect of
- the regularity and propriety of transactions recorded in its accounts;
- the economy and efficiency of the authority in using resources, systems, procedures and practices including evaluating their effectiveness;
- any matter affecting the Authority referred to in a special report by the Comptroller and Auditor General or another report.
The Authority shall have regard to any recommendations made by a committee in response to an account given by it to the committee.
The chief executive officer and chairperson of the board shall not question or express an opinion on the merits of any government policy or the objectives of the policy.
Recognition of Accountancy Bodies
The supervisory body may recognise bodies of accountants in pursuance of EU Directives on establishment. Each of the following is deemed to be recognised:
- Association of Chartered Certified Accountants;
- Institute of Chartered Accountants in Ireland;
- Institute of Chartered Accountants in England and Wales;
- Institute of Chartered Accountants of Scotland;
- Institute of Certified Public Accountants in Ireland;
- Institute of Incorporated Public Accountants.
Where a disciplinary committee of a body of accountants which is recognised has reasonable grounds for believing that a category 1 or 2 offence may have been committed by a person who is a member of the body, the body shall provide a report to the ODCE giving details of the offence.
It shall furnish the ODCE with such further information in relation to the matter as it shall require. If it fails to do so, the body and any officer of the body to whom default is attributable are guilty of a category 3 offence.
Investigations by Recognised Body
Following a complaint or on its own initiative, the Supervisory Authority may, for the purpose of determining whether a prescribed accountancy body has complied with approved investigation and disciplinary procedures, enquire into the decision taken to undertake or not to undertake an investigation into possible breach of standards, the conduct of an investigation, or any other decision of that body relating to a possible breach of standards by a member, unless the member has been the subject of an investigation under the Act.
The Supervisory Authority may inspect documents, records, etc. It may require the recognised body to explain the decision reached and how it has conducted its investigation. If it forms the opinion that the matter ought to be investigated under the Act, the Authority may apply to the court for permission to investigate the matter under the Act. Where the court permits an investigation, the decision of the Authority may be suspended.
A fresh investigation may be undertaken. If it is not satisfied that the accountancy body complied with the approved investigation and disciplinary procedures, it may admonish the body and censure it by annulling any part of its decision on foot of the enquiry. It may direct that a fresh enquiry be held and require payment of a monetary sanction and its costs
The Supervisory Authority may publish each decision above and the reasons for the decision, after giving the accountancy body and members concerned not less than three months’ notice of its intention to do so.
The accountancy body or member may appeal to the court against a decision by the Supervisory Authority in relation to annulling a decision, directing a fresh investigation or monetary sanctions.
If the Supervisory Authority is not satisfied that the accountancy body has when undertaking an investigation or fresh investigation, has complied with the approved investigation and disciplinary procedures, it may appeal to the court against any decision of the accountancy body, within three months.
Direct Investigations I
The Supervisory Authority has powers to investigate a breach of the standards of prescribed accountancy bodies by its members. It may require a range of persons to give records and information, including by attending before it for such purpose. They include clients or former clients of the members, employees or agents of a corporate or a person who is an officer, employee or agent or another person whom the supervisory agent reasonably believes has information or documents relating to the investigation other than information, the disclosure of which is prohibited or restricted by law.
A report and investigation may be undertaken into a possible breach of prescribed accountancy body standards by a member, following a complaint or on its own initiative, if the Supervisory Authority considers it appropriate in the public interest to undertake an investigation. No investigation shall be undertaken, in relation to a matter the subject of an enquiry relating to that member by the accountancy body, other than with court permission.
The Supervisory Authority may examine persons on oath or by written interrogatories. It may certify the refusal to answer questions, produce documents, attend or answer questions put, on the basis that it constitutes the equivalent of contempt. The court may inquire into the matter and direct the person to attend before the Supervisory Authority and comply with the requisite requirements. Failure to do so would constitute contempt of court.
Direct Investigations II
If the Supervisory Authority finds that a member has committed a breach of the body’s standards, it may impose sanctions in accordance with the limits in the body’s constitution. The sanction shall be disclosed to the public and shall indicate whether the matter has been appealed and if so, such further particulars as it thinks fit.
The cost of the Supervisory Authority investigation shall be defrayed by the prescribed accountancy body concerned.
The member, who is subject to a decision by the Supervisory Authority may appeal to the court within 3 months of the date when the member was notified by the Supervisory Authority of its decision.
Review of Body’s Regulation
The Supervisory Authority may if in its opinion it is appropriate to do so, undertake a review of the member of a recognised accountancy body to determine whether that body is regulating the matters in a manner required by law. For this purpose, the Supervisory Authority may inspect and make copies of all documents in the possession or control of the body.
The member of the body is to co-operate as if the recognised accountancy body were undertaking the review. A failure to co-operate may be dealt with in the same manner as a failure to cooperate in the course of a disciplinary procedure by the Supervisory Authority.
The Supervisory Authority may delegate any of its functions to committees established for that purpose. In this case, the committee has the powers of the Authority in relation to investigations. It may perform its functions through officers or employees or other persons duly authorised by it.
The Supervisory Authority may for the purpose of its functions conduct, oral hearings in accordance with regulations made by it. A witness is entitled to the same immunities and privileges as a witness in court. Nothing in the provisions is to require the disclosure of information that a person would be entitled to withhold on the grounds of legal professional privilege or authorising possession of any document containing such information.
An appeal may be taken against decisions and orders of the Supervisory Authority. New evidence may be introduced. On the hearing of an appeal, the court may make any order it sees fit, including one confirming the decision, modifying or annulling it.
Where an order is made granting permission to investigate a possible breach of the accountancy body’s procedures, the court may make such ancillary or consequential orders as it sees fit, if permission is granted.
A decision of the Supervisory Authority annulling a decision of a prescribed accountancy body and directing fresh investigations does not take effect until it is confirmed by the court either on appeal or on application by the Supervisory Authority.
References and Sources
Companies Act 2014 S.900- 944 (Irish Statute Book)
Companies Act 2014: An Annotation (2015) Conroy
Law of Companies 4th Ed. (2016) Ch.18 Courtney
Keane on Company Law 5th Ed. (2016) Ch.30 Hutchinson
Other Irish Sources
Tables of Origins & Destinations Companies Act 2014 (2016) Bloomsbury
Introduction to Irish Company Law 4th Ed. (2015) Callanan
Bloomsbury’s Guide to the Companies Act 2015 Courtney & Ors
Company Law in Ireland 2nd Ed. (2015) Thuillier
Pre-2014 Legislation Editions
Modern Irish Company Law 2nd Ed. (2001) Ellis
Cases & Materials Company Law 2nd Ed. (1998) Forde
Company Law 4th Ed. (2008) Forde & Kennedy
Corporations & Partnerships in Ireland (2010) Lynch-Fannon & Cuddihy
Companies Acts 1963-2012 (2012) MacCann & Courtney
Constitutional Rights of Companies (2007) O’Neill
Court Applications Under the Companies Act (2013) Samad
Company Law – Nutshell 3rd Ed. (2013) McConville
Questions & Answers on Company Law (2008) McGrath, N & Murphy
Make That Grade Irish Company Law 5th Ed. (2015) Murphy
Company Law BELR Series (2015) O’Mahony
Companies Act 2006 (UK) (Legilsation.gov.uk)
Statute books Blackstone’s statutes on company law (OUP)
Gower Principles of Modern Company Law 10th Ed. (2016) P. and S. Worthington
Company Law in Context 2nd Ed. (2012) D Kershaw
Company Law (9th Ed.) OUP (2016) J Lowry and A Dignam
Cases and Materials in Company law 11th Ed (2016) Sealy and Worthington
UK Practitioners Services
Tolley’s Company Law Handbook
Gore Browne on Companies
Palmer’s Company Law