Dáil Éireann debate -
Wednesday, 5 Mar 2025

Vol. 1064 No. 2

Financial Services and Pensions Ombudsman (Amendment) Bill 2023: Committee and Remaining Stages

Section 1 agreed to.

SECTION 2

Minister of State at the Department of Finance (Deputy Robert Troy)

I move amendment No. 1:

In page 3, to delete lines 17 to 20 and substitute the following:

“(a) in subsection (1)—

(i) in the definition of “financial service provider”, by the insertion of the following paragraphs after paragraph (g):

“(ga) a person who, before the commencement of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015, engaged in any of the activities referred to in subparagraphs (i) to (iii) of paragraph (a) of the definition of ‘credit servicing’ in section 28(1) of the Central Bank Act 1997 and does not otherwise fall within paragraph (gb);

(gb) a person who, before the commencement of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2018, engaged in any of the activities referred to in subparagraphs (i) to (iii) of paragraph (a) of the definition of ‘credit servicing’ in section 28(1) of the Central Bank Act 1997 and does not otherwise fall within paragraph (ga);”,

and

(ii) by the insertion of the following definition:

“ ‘Credit Reviewer’ has the meaning given to it by the Guidelines issued under section 210(1) of the National Asset Management Agency Act 2009 (S.I. No. 127 of 2010);”,”.

This amendment amends section 2 of the Bill, which provides for an amendment to the underlying section 2 of the Financial Services and Pensions Ombudsman Act 2017. There are two parts to the amendment. The substantive amendment is to the definition of the financial service provider as set out in the 2017 Act. The definition of "financial service provider" is the list of financial entities in respect of which a complainant may submit a complaint to the Financial Services and Pensions Ombudsman.

The amendment will include any person engaged in the activity of credit servicing before the commencement of the Consumer Protection (Regulation of Credit Servicing Firms) Acts 2015 and 2018, respectively. Currently, the Financial Services and Pensions Ombudsman may only accept a complaint relating to the conduct of a credit servicing firm where the conduct giving rise to the complaint occurred after the commencement of the relevant Act.

This amendment will extend the jurisdiction of the Financial Services and Pensions Ombudsman in respect of the activity of credit servicing. The Financial Services and Pensions Ombudsman will have jurisdiction to review complaints made at any point after a loan sale. This includes complaints before the commencement of either the 2015 Act or the 2018 Act.

As the Deputies will be aware, this issue was raised by Deputy Doherty in particular at the Second Reading of the Bill. This amendment will now address the legitimate concern which was raised and will ensure that all mortgage holders will have access to the Financial Services and Pensions Ombudsman, if needed.

The second part of the amendment is solely a drafting amendment, essentially to specify the statutory instrument number of the reference guidelines in the Bill.

I commend the amendment to the Deputies in the House.

Deputy Pearse Doherty

Gabhaim buíochas leis an Aire Stáit as an leasú seo a chur i láthair na Dála inniu. Is leasú tábhachtach é seo atá tugtha isteach ag an Aire Stáit. Tá an leasú mar a gcéanna leis an leasú atá agam féin ar son Shinn Féin agus leis an leasú atá ag an Teachta Nash ar son Pháirtí an Lucht Oibre. Tá an trí leasú ag iarraidh an rud céanna a dhéanamh agus a bhaint amach.

Deputy Robert Troy

I just need to get the translation.

Deputy Pearse Doherty

That is fine.

Deputy Ged Nash

That is just the preliminaries.

Deputy Pearse Doherty

I merely made the point that I appreciate the amendment the Minister of State has brought before the House and I referred to the amendment I have tabled on behalf of Sinn Féin. Without speaking for Deputy Nash, who will speak for himself, his is a similar amendment. All three amendments are trying to achieve the same thing.

There was a serious problem with the original legislation which prevented legitimate claims being heard by the FSPO regarding conduct that occurred before the authorisation of a credit servicing firm.

The role of the Financial Services and Pensions Ombudsman is vitally important. It is a piece of legislation that I have amended successfully in terms of the time limit that was there to investigate pieces of legislation. I am proud that the legislation I got through the Houses of the Oireachtas and enacted has allowed for many customers, particularly those in the tracker mortgage scandal, to have their complaints heard and adjudicated on.

The role of the FSPO is to investigate to resolve consumer complaints regarding financial services. It is essential that the FSPO works as it is intended and that everybody has access to it and its services. That is crucial. That has to include people who have had their mortgages sold off, usually without their permission and against their will.

As I said, the first three amendments before us all have the same intention. The aim is to close a loophole that existed in the legislation since the FSPO was established in 2018. The legal loophole has resulted in people whose mortgages are with a vulture fund having no access to the State's financial services ombudsman. That was a scandal. It was a disgrace. We need to recognise that many people went without those protections for many years.

I welcome the inclusion of the amendment by the Minister in this legislation. I raised this on numerous occasions with his two predecessors. Indeed, there were attempts to proceed with this legislation in committee. I thank all my colleagues on the committee for agreeing to my proposal that the Bill would not go to Committee Stage until we had dealt with this loophole, and this is the legislation to deal with it. I welcome the fact that there is consensus on this issue.

This stemmed from the fact that tens of thousands of mortgages were sold to unregulated vulture funds - something that should never have happened. Approximately 80,000 mortgage loans are held by vulture funds. I and Sinn Féin strongly oppose these sales. I strongly believe that retail banks should be those who hold our mortgages and long-term loans. These should never be in the hands of vulture funds and I warned against the negative consequences for consumers. We have seen those consequences in higher interest rates and also in the context of what we are trying to fix in this legislation, that is, the fact that they did not have access to the FSPO.

At the time, Fine Gael told us that all these homeowners would have the same protections as anybody else. That is complete and utter nonsense. As we know now, they did not have access to the FSPO, one of the core issues that you have in terms of a financial product. Not only that, we know that those whose loans are with a vulture fund are likely to have experienced significant interest rate increases in recent years. That was the cornerstone of the argument that was put forward, not only by Fine Gael but also by Fianna Fáil, when they supported the sales to the vulture funds. The previous Minister for Finance repeatedly made those assurances to the public. In 2019, in a bid to convince the public, he stated that he would be happy for his own mortgage to be sold to a vulture fund. Little did he know he would not have access to the FSPO or, indeed, that the vulture fund would have jacked up the interest rate probably nine times over the past year and a half.

The Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 came into effect on 8 July 2015 and that was followed by the consumer protection Act in 2018, which came into effect in January 2019. Before July 2015, the vulture funds owning the loans or the firms servicing them were not required to be regulated. That meant that the FSPO could not investigate conduct prior to the date with respect to either the fund or the credit servicing firm. The vulture funds owning the loans were only required to be regulated after the 2018 Act and many of these funds did not even ask for authorisation until months later. As a result, we had thousands of mortgage holders with loans held by vulture funds who simply could not make a complaint or, if they made the complaint, it could not be heard by the FSPO because the conduct was prior to 2019 or, in some cases, during 2019.

I welcome the fact that these changes have been brought forward and that the Government has listened to the concerns I have raised but, without doubt, it damages the credibility of what Government parties argued in the past, that is, that everything was kosher and there would be no difference. The amendment, while positive in that it closes the loophole, is an admission that the public were misled. Let us be clear about it. They were misled, whether by mistake or design, on the protections they would have. We now need to see people who have been denied this recourse to be prioritised by the FSPO. People could not have their complaints heard. Now they will be able to have their complaints heard and we need to make sure there is a way in which those complaints can be fast-tracked, which may require additional resources.

The statistics of the FSPO indicate the average waiting time for a decision is nine months. They also tell us that 85% of cases were decided within the first 12 months. We know from those two figures that a substantial minority of claims that are skewing these numbers. We have some people who have been before the FSPO not for months but for years. I was recently contacted by a person with a case before the FSPO relating to a tracker mortgage who has been waiting seven years for a decision. When this legislation is passed the people who have been denied access to the FSPO for the past number of years need to be prioritised, but that cannot come at the expense of those are waiting.

We need to look at how this will be managed and how those who have waited too long for access to justice will now be treated and how they can have their complaints against the vulture funds or banks heard.

I welcome the amendment and that the Minister of State has introduced it. I would like some clarification. The legislation deals with the 2015 and 2018 Acts as well as the Central Bank Act and the original FSPO Act. which established the FSPO. All are interlinked in terms of this amendment. I understand from the drafting that it does not require the credit servicing firm to be authorised. It says if an entity was involved in any of the activities - the activities are listed in a previous Act - the entity is automatically deemed a credit servicing firm regardless of whether it is authorised. There is an authorisation process. A grandfathering clause in the legislation allowed for automatic recognition of authorisation, but that obtained only for a period of a short number of months until applications were made. The automatic entitlement of authorisation was also conditional on a number of steps. Will the Minister of State clarify – I believe this is the case anyway – that this text will not require the credit servicing firm to be authorised? The effect of this text's inclusion is that, if an entity was involved in any type of activity that is defined under a different piece of legislation, whether authorised or not, the entity is deemed a credit servicing firm and, consequently, the FSPO can now hear cases on the entity's conduct or the conduct of others.

Deputy Ged Nash

For what it is worth, I think Deputy Doherty’s interpretation is correct. I would also appreciate the Minister of State’s clarification on the matter raised by the Deputy. It seems to me there is a particularly broad definition captured in the amendment. If that is the case, it is very welcome. There was a very wide lacuna in the legislation that was identified quite some years ago by Deputy Doherty and others in opposition at the time. We have individually and collectively campaigned to have this lacuna addressed. It is a pretty egregious loophole to which the Minister of State and Deputy Doherty have referred, where somebody who wanted to make a complaint about the conduct of a financial services firm, a fund or credit servicing firm and the complaint involved conduct prior to regulation, the complaint could not be accommodated by law by the Financial Services and Pensions Ombudsman. It is to the Minister of State’s credit that he has listened to the Opposition - finally, the Government has listened - and has addressed what is a very real problem for all too many people. We know from our experiences as constituency TDs and as spokespersons for finance the number of people across the country who have been damaged - families and businesses destroyed - because of the behaviour of funds and credit servicing firms that acted with impunity and simply could not be held to account by the FSPO because of this loophole in law, which prevented them from having a complaint about something a firm did prior to being regulated investigated.

This is a very welcome development and something that was raised repeatedly on Second Stage. We requested that the then Minister for Finance, Deputy Chambers would come to the Dáil on Committee Stage to work with the Opposition or, indeed, to present his own proposition for how this would be addressed. In anticipation of that, Deputy Doherty and I have separately tabled amendments, which will be dealt with later in a grouping, that seek to achieve the same thing the Minister of State is achieving here. This is a good initiative. It is positive and welcome, if belated.

Deputy Cian O'Callaghan

I also welcome this. It is very important. Like others, I have spoken to people who have been treated absolutely abysmally by some of these credit servicing firms. These include people who have been harassed or who have tried to get out of the situation and tried to sell. On contacting the firms to say they want to sell, they have been told that if they want to talk about that, then they will be charged a fee. They have not had recourse. These people, who have been trapped in these situations - that is their language - have over the past 15 years effectively paid off the vast bulk of the value of their mortgages in real terms, but because of the punitive interest rates they have been subjected to, they are still trapped with very heavy mortgage payments that they cannot get out of. They cannot see a route out of this for themselves at any point. I have been contacted by people in situations where they have been looking to sell but have had grave difficulties getting back possession of deeds from the credit servicing firm. These are all people whose mortgages were sold on for values of maybe 30% or 40%, yet they are shown no co-operation or leniency and, in fact, are treated in a very punitive way. This has a huge impact on their mental health and wellbeing.

This legislation allows people some recourse and it is welcome that the loophole is being shut, but much more needs to be done on the entire area to help people in situations who have been really aggressively pursued. There are media reports today that another ECB rate cut is due. One of these credit servicing firms has made no cuts to its rates at all over five ECB rate cuts. They are charging people punitive rates that are grossly unfair and they never signed up for. That also has to be addressed.

Deputy Robert Troy

It was the Opposition that highlighted this at the time when the legislation was coming through. To the credit of the Minister for Finance at the time, former Deputy Michael McGrath, he undertook to take on board the Opposition’s concerns. I looked back at the debate in the Official Report. In February 2024, he acknowledged the Deputy had raised this matter in the House the previous week when we were bringing through legislation. The then Minister said it was important, and his commitment, that all consumers have equal access to the Financial Service and Pensions Ombudsman. He was not in any doubt about that. He undertook to consider the matter and postpone Committee Stage until a satisfactory resolution could be identified.

Following consultations with the Attorney General, the previous Government approved this amendment last July. It expands the definition of "financial service provider" in the FSPO Act to include entities engaged in credit servicing before the credit servicing regulatory regime came into force. To confirm, it covers all activity of credit servicing before regulation came into being.

Deputy Doherty referred to the length of time it has taken for cases to be adjudicated through the FSPO. I also have concerns about that. The Minister for Finance sanctioned its work plan for 2024 to 2026. The implementation of this work plan increases the office's resources and the capacity of the FSPO to resolve cases more promptly, with an increase of 42% in staffing. We would hope to see much greater efficiency in dealing with consumers' complaints. We all deal with people who have had their mortgage sold to vulture funds or who have been dealt with inappropriately by financial institutions and credit servicing firms. It is not unique to members of the Opposition. I deal with them in my constituency office, as do Government backbenchers, on a daily basis. It is in all our interests that all consumers have the protection of the Financial Service and Pensions Ombudsman.

This amendment takes on board what was identified initially and will give that protection to everyone who needs it.

Deputy Pearse Doherty

I thank the Minister of State. I do not want to fall out with him but, for the record, there were attempts to move this on Committee Stage. He is absolutely right that when I raised this with the then Minister, Michael McGrath, he said he would investigate it, but this legislation was going to go ahead. We stalled it, therefore, because this is the best vehicle to deal with it. That does not matter but I am highlighting it for the record.

I welcome the Minister of State's clarification that those involved in credit servicing before the 2015 or the 2018 Acts will now be captured regardless of whether they are authorised. In order that it will be on the record, will he give the same clarification that those involved in credit servicing activities prior to the commencement of either of those items of legislation, but before their authorisation, will also be captured?

Deputy Robert Troy

That is correct.

Amendment agreed to.

An Cathaoirleach Gníomhach (Deputy James O'Connor)

Amendments Nos. 2 to 4, inclusive, are related and may be discussed together. Is that agreed? Agreed. Amendment No. 3 is a physical and logical alternative to amendment No. 2.

Deputy Pearse Doherty

I am not going to move amendment No. 2 because we have just passed amendment No. 1, which does exactly what we are looking for.

Amendment No. 4 is also in my name, and while I am not going to move it either, I ask the Minister of State to ensure the legislation does what that amendment proposes. It calls on the Minister to bring forward a report on the extension of the jurisdiction of the FSPO to cover all mortgage holders. This relates to the conversation we have just had regarding whether it covers pre-authorisation and so on. So many people have been caught out having been given assurances and told everything was okay. We would not even have known about this had someone not taken a case and pursued it, and the same applies to a lot of areas. When we think about the tracker mortgage scandal and the 40,000 cases, it was a handful of individuals, fewer than a dozen, who started that ball rolling and then we found out the issue was so widespread, with €1 billion of theft in reality.

This amendment would provide that after a sufficient period, the Minister would ask his officials to look at this with the FSPO and carry out an exercise to ensure that the Bill, with amendment No. 1 in particular, is doing what it is intended to do, namely, include all mortgage holders in the net. I am not asking for it to be put into the legislation but, in the spirit of the amendment, the Minister might ask his officials after a period to touch base with the FSPO, make sure there are no issues and report that to us.

Amendment No. 2 not moved.

An Cathaoirleach Gníomhach (Deputy James O'Connor)

Does Deputy Nash wish to move amendment No. 3?

Deputy Ged Nash

I am happy not to move my amendment because it has been dealt with effectively by the Minister's amendment.

Amendment No. 3 not moved.

Question proposed: "That section 2, as amended, stand part of the Bill."

Deputy Robert Troy

I thank Deputy Doherty and understand where he is coming from. The Minister does have regular engagement with the Financial Services and Pensions Ombudsman and we can commit to keeping the matter under review and on our radar in the regular engagement.

In respect of the amendments, as the Deputies are aware, we undertake post enactment to carry out scrutiny of all legislation. This includes the requirement under Dáil Standing Orders that a post-enactment report be produced and laid 12 months after the enactment of legislation in the parliamentary Library. This 12-month post-enactment period provides a more appropriate timeframe in which to consider the operation of new legislation, particularly in this case in respect of extending the scope of the FSPO's jurisdiction. The FSPO is also accountable to the public accounts committee under section 22 of the 2017 principal Act and to other Oireachtas committees under section 23 of that Act. In recent years, representatives of the FSPO have also appeared regularly before the Committee on Public Petitions and the Ombudsmen.

In addition, a range of parliamentary procedures are available to all Deputies, and I have committed to engaging with the Minister, Deputy Donohoe, to ensure he will keep this on the radar in his engagements. It is available to all Deputies to seek updates on the FSPO by way of parliamentary questions and I have no doubt the Deputies will use that opportunity themselves. Under section 25 of the Financial Services and Pensions Ombudsman Act 2017, the FSPO publishes a comprehensive annual overview of complaints, while under section 62 of that Act, it also publishes decisions on complaints against financial service providers and case studies of decisions on complaints against pension providers subject to the requirements of the Act. Accordingly, while it was not proposed to accept the Deputies' amendments, I appreciate that they did not move them and I give a commitment to engaging with the Minister and requesting that, in his ongoing engagement with the FSPO, he will keep this on the radar.

Deputy Pearse Doherty

I thank the Minister of State. Really, what I am looking for here is an early warning system. I am familiar with the 12-month review and so on but I am thinking of people for whom, while they may have made a complaint that has not been heard, it may be a case of a vulture fund absolutely robbing them. It may be the case the vulture fund has taken their home wrongly from them. It may be that they were overcharged. We do not know what the cases are, and the cases have not been able to be heard. We are fixing that now when this legislation becomes enacted.

What I really wanted was that we would not have to wait for a year to find out that there is still an issue. The FSPO may think this is fine, but there is another animal that challenges this and its lawyers will get to see whether the FSPO has jurisdiction in a given case. I welcome the Minister of State's comments but really what we want is an early warning system for this whereby, if something is flagged in respect of the FSPO, in these cases that are now going to come before it but cannot be heard for some reason, and where there is still another issue with the legislation, we will not have to wait for 12 months to find out about it. In the spirit of trying to resolve the issue, I ask the Minister of State to relay that to the senior Minister.

Question put and agreed to.

SECTION 3

An Cathaoirleach Gníomhach (Deputy James O'Connor)

Deputy Doherty has indicated he does not intend to move amendment No. 4.

Amendment No. 4 not moved.

Question proposed: "That section 3 stand part of the Bill."

Deputy Pearse Doherty

This section, which deals with the original legislation, addresses the funding of the FSPO. As we know, it is funded through two sources, namely, a levy and Exchequer funding. The former is an industry levy imposed on financial service providers annually in respect of FSPO activities for the investigation of complaints and the second source is funding provided by the Exchequer through the Department of Finance Vote. The section amends the Act, with which I have no issue, to clarify the methodology underlying how the distribution of expenses across the FSPO to sources of funding would take place. To that end, it is going to replace in the legislation the words "dealt with" with “received by”, which reflects the metric used by the FSPO in practice, so I have no issue with that. It also allows for expenses to be calculated over a three-year period rather than a one-year period, which is fine with me as well. These clarifications in this legislation seem straightforward and I am not opposing them.

I would like to take the opportunity, however, to hear from the Minister of State, or indeed from the Department, about the rationale for not using the levy to cover the costs of the FSPO in its work that deals with pensions, because that does not come from a levy but directly from the Oireachtas Vote. I also note that the existing practice and this amendment focus on complaints received. Over recent years, there has been a concerning decline in the number of complaints substantially or partially upheld.

It is concerning. I have written to the Minister about this issue and the trends that are there need to be analysed and explained. Maybe it is just a case that we are dealing with complaints that are of a certain nature but there is a trend of a decline in the number of complaints that are upheld, substantially or partially.

Will the Minister explain why the work of the FSPO on pensions is not covered by an industry levy?

An Cathaoirleach Gníomhach (Deputy James O'Connor)

Does the Minister of State wish to respond?

Deputy Robert Troy

I have been told that the FSPO was created by merging the Financial Services Ombudsman and the Pensions Ombudsman and the levy system design reflects that since the 2017 Act. I do not know if that clarifies the matter for Deputy Doherty but if not we can come back to him with a more comprehensive answer.

Section 3 outlines and updates the methodology for calculating expenses via a percentage split charged to the financial services ombudsman sector by a levy for financial services complaints, and expenses charged to the Exchequer for pensions cases. That was the question raised by the Deputy and that has been the case since the merger of the two ombudsmen in the 2017 Act.

The main updates proposed by this Bill are to calculate the percentage split between the industry and Exchequer funding over the three immediately preceding financial years as opposed to the previous financial year as is currently provided for in the 2017 Act, and to update the term “dealt with by the Ombudsman” to “received by the Ombudsman".

By providing for a calculation of expenses over a three-year period, any spikes, or the opposite, with regard to a certain type of complaints received during the year would not dramatically affect the calculation of expenses in a given year. That will provide certainty in terms of the resources for the ombudsman. Updating the term “dealt with” to “received by” makes it easier to identify when a complaint has been received as opposed to when it has been dealt with. This is the metric used in practice used by the FSPO and provides more clarity and transparency for the calculation of expenses.

Deputy Pearse Doherty

I thank the Minister of State for the response. As I said, I have no issue with the parts in this section. However, the clarification and answer the Minister of State gave me was that it always was this way and, therefore, it shall ever be. Without delaying this process, will the Department officials send me a note on why it should always be this way? I am not advocating that it should change but I just want to know the rationale behind the Department’s thinking that may have been this way. We amalgamated the financial services and pensions ombudsmen in legislation a number of years ago. Is there any rethink in the Department as to whether a levy should be imposed on all activities or should it just be maintained for financial services, which is what is provided for here?

Deputy Robert Troy

I will undertake to ask the officials to respond to the Deputy. I honestly do not know but I will put it into context. In the 2024 budget for the FSPO, only 4%, or €525,000, of the overall costs came from the Department and 96% of the funding was covered by the industry. A very small percentage of the funding is coming from the Department. I do not know what the rationale was back in 2017 but we will get that information from the Department. To put it into context, we are talking about a very small element of the overall funding for the ombudsman’s office.

Question put and agreed to.

Sections 4 to 11, inclusive, agreed to.

SECTION 12

Deputy Pearse Doherty

I move amendment No. 5:

In page 6, between lines 8 and 9, to insert the following:

“(2) Section 44 of the Principal Act is amended by the insertion of the following subsection after subsection (6):

“(6A) Notwithstanding any other provisions of this Act, the Ombudsman may, where he or she considers it appropriate to do so to protect the interests of a complainant, accept a complaint with respect to a joint account or joint policy in instances where all owners of that account or policy have not consented to the complaint.”.”.

This amendment seeks to amend the principal Act by the insertion of the following:

Notwithstanding any other provisions of this Act, the Ombudsman may, where he or she considers it appropriate to do so to protect the interests of a complainant, accept a complaint with respect to a joint account or joint policy in instances where all owners of that account or policy have not consented to the complaint.

What we are trying to do is self-explanatory. The amendment is intended to try to address the deficiencies in the legislation as regards complaints from people who have jointly held mortgages or other financial services. This is a consequence, in certain circumstances, of empowering an individual to block another from seeking justice or availing of consumer protection. This can be done out of spite or coercive control and in these instances the ombudsman is blocked from taking the complaint forward. There are situations in relation to this and what this amendment does is that it does not say it will happen automatically but it allows the ombudsman to hear the complaint. The ombudsman may, where he or she considers it appropriate to do so to protect the interest of a complainant, accept a complaint with respect to a joint account or joint policy. This is a sensible amendment and I am interested to hear the Minister of State's response and whether there is another way he believes this issue can be resolved.

Deputy Ged Nash

It is a very welcome amendment and one I considered tabling but I did not manage to do so. I have dealt with cases over the years and I have engaged with the FSPO on behalf of constituents in situations where they were joint holders of a mortgage, the relationship had broken down and there was evidence of fraud, for the want of a better description, perpetrated by one of the people who held the account, which was accepted by the bank. The relationship had broken down and the person on the other side of that relationship wanted to make a complaint to the ombudsman about a matter related to that account and the ombudsman could not accept that because the complainant could not obtain the consent of the other signatory.

That is a very real-life human set of circumstances that confronts far too many people and, arguably, is a form of economic and financial abuse that the FSPO is not in a position to investigate. It perpetrates another injustice against someone who has already experienced a number of injustices in his or her life.

I have been in correspondence with the FSPO on this particular case and I believe it illustrates a broader problem. The ombudsman made it very clear that there are very obvious difficulties in framing a legislative amendment that might be able to accommodate everybody’s rights. I understand that. It seems that the ombudsman’s equivalent in the UK – the regulator there – has managed to steer a middle course on this and is acknowledging the problems. They too have a form of a GDPR regime. GDPR is not necessarily the problem. Of course, it is used as the omni-excuse to cover everything by some agencies that would just prefer to not do anything at all and that is the defence. I accept, however, that when the ombudsman was corresponding with me on this issue that was not the purpose but was obliged to point out the obvious GDPR issues that would arise.

It should not be beyond us as a Legislature to try to come up with an innovative solution to accommodate somebody’s rights because it is an all too human problem. It arises all of the time. I would like to think there are people in the FSPO and similar organisations who would like to see a solution to this.

It is not immediately obvious to me what that is. Deputy Doherty's amendment is helpful in trying to get to the bottom of this and propose some kind of resolution. I am interested in the Minister of State's views. It is a very human problem. It would be useful to hear his views on how the problem might be addressed.

Deputy Robert Troy

The FSPO has advised that where a complaint is made to it concerning a joint account or joint policy, it must recognise that all parties who own the account or policy have rights, entitlements and potential liabilities arising from that account or policy. The rights, entitlements and potential liabilities of joint owners arise not only from a legal and contractual perspective but also from other legislative and regulatory sources such as data protection legislation. Whether the complaint is resolved by way of a binding mediation settlement agreement between the parties using the confidential dispute resolutions service or is subject of a formal investigation by the FSPO leading to a legally binding decision, the rights and obligations of all joint account or joint policy holders are thereby affected. This approach is in accordance with the statutory obligation placed on the FSPO by section 56(3) of the Act, which prescribes that:

Where the Ombudsman proposes to conduct an investigation into a complaint made under this Part, he or she shall provide the parties, and any other person who, in the opinion of the Ombudsman, might be adversely affected by any decision he or she may make in relation to the complaint, an opportunity to—

(a) make submissions with respect to the conduct the subject of the complaint, and

(b) comment on any allegations contained in the complaint or reference.

Under this section, all owners of the account or policy must consent to investigation of the complaint and processing of personal data by the FSPO. Another consideration worth noting is that joint owners who have not consented to the complaint may hold key information relevant to the investigation of the complaint.

This approach is of particular importance given the views of the Supreme Court in the Zalewski case. The court held a public administrative body, such as the FSPO, which provides a complainant with a route to redress as an alternative to the courts is operating within the confines of the provision of Article 37 of Bunreacht na hÉireann and is administering justice. It is against this constitutional background that the FSPO operates a quasi-judicial function and, therefore, is especially cognisant of the need to adhere to fair procedures. On that basis, I do not propose to accept the amendment.

Fraud is clearly a matter for An Garda Síochána, not for the financial services ombudsman. Financial abuse is to be redefined soon in the Central Bank code of conduct. I accept that when complainants are at the financial services ombudsman, they have gone through the code of conduct, but it will be redefined to assist in situations where there is a joint account before the need arises to go to the financial services ombudsman.

My understanding is the process in the UK is different as the UK financial ombudsman sets out that if the consumer accepts the ombudsman's decision in a specified timeframe, the business has to do what the ombudsman has told it to do. It will be binding on the business. The consumer does not have to accept the ombudsman's decision and a rejected decision will not be binding on the business. That, I am told, is the difference between us and them.

Deputy Pearse Doherty

I am very disappointed with the response from the Minister of State and Department. This is a real issue. I have an example of this. Coercive control exists. These people have a right to do what everybody else can, which is to make a complaint to the financial services ombudsman about the conduct of financial institutions. The Minister of State is telling me he will not do anything about the legislation that prevents them doing so where the person exercising coercive control over them does not allow it. That is nonsense and should not happen. Surely to God there is enough wisdom in this room to deal with this issue. If it cannot be fixed for contracts in the past, surely we can legislate to ensure contracts in the future allow for all joint accounts to have it specified that if a party to the agreement brings it to the FSPO without consent, it will be heard by the FSPO. There are ways around this.

That response is a typical response outlining why not to do something. The Minister of State has to put himself in the shoes of the, mostly, women in this situation. Their partner took a joint mortgage with them and is not allowing them to get the justice they deserve. They do that, in some cases, out of spite and as a way to harm the individual. That is what this is about. If there is a way for us to resolve that, which I believe there is, it should be done. I understand the limitations of the FSPO but if the Minister of State is saying the limitations are consent and GDPR, can they not be provided at the point of entering into a contract?

I have a case where there were eight signatories to a contract, six of them children. Some of them were not even in the country at the time. They were in Australia. They cannot take the case to the FSPO because the individual who benefited from this and from the wrongdoings of the financial institutions, as is alleged, will not play ball with the partner and children. That is nonsense. I cannot accept that. Let us imagine somebody coming to my constituency clinic who is the victim of domestic violence. Through other engagements, we find out she has been wronged by a financial institution but she cannot seek justice because the person who perpetrated that violence is attacking her once again through legislation that we can fix. Surely they have the right to do it.

The Minister of State is probably not in a position because Cabinet has decided all this stuff but we have to be able to fix this. This is simple to fix if we want to do it. We make the law. The Minister of State read out that these are the rules by which the FSPO is set up. We know the FSPO has to play by the rules but we make the rules. Sinn Féin in this amendment is trying to change the rules so this type of situation would not be allowed and the FSPO would have discretion to hear a case from one party to a joint agreement where it felt it was in the interests of protecting the rights of that party. We can put in protections and rights for people to do this, that and the other but the basic right to take a case and seek redress should be afforded not just to some citizens but to all citizens.

I strongly urge the Minister of State to rethink this. This is absolutely wrong. I know some individuals who have been in this circumstance. It is just not right.

Deputy Ged Nash

With respect, the remarks the Minister of State read out are a restatement of the position the FSPO has put into correspondence with me over the years, and with others as well. Deputy Doherty is familiar with these kinds of cases. He has worked on them too. I imagine many other Members of the House have as well. The Deputy is right that we are legislators. We make the law and it is up to the agencies of the State to enforce that law. If the political will is there, it is surely not beyond our ability to develop an innovative solution that is fair to everyone and that can address these very real everyday human problems that are becoming more apparent by the day.

I spoke last year to the Business Post, which started to express an interest in these cases. It did a desktop assessment of the kinds of regimes in place in similar common law jurisdictions where, for example, GDPR laws apply. They referred to the UK financial services ombudsman which said, “it had similar problems, but crucially, it was able to help in some instances”. It did not go through in detail what those instances were, but clearly the legal system with which we have most in common, the UK common law system, managed to find a way around this to accommodate this unfortunate everyday reality.

Deputy Doherty's amendment is well crafted and it gives some latitude to the FSPO to make a determination on whether a complaint is appropriate or whether it can accept that complaint. An agency and organisation, operating under the laws we develop in this House and pass as a sovereign Parliament, should be able to interpret those laws and we should give it the latitude it needs to be able to operate in the real world and create some kind of practical framework to take these complaints and try to resolve them. The amendment is not overly explicit as to how that will be done. It is drafted broadly enough to allow the FSPO to look at all of the facts and merits of each individual case and make a determination as to whether it can take on the case while balancing everyone's interests. I find it extraordinary that there is an overly legalistic interpretation of these kinds of things. We deal all the time in this House with much more complex problems and we manage to find solutions. I reiterate that if the political will is there to deal with this, it should not be beyond us to find a resolution to this very real problem.

Deputy Cian O'Callaghan

I ask the Minister of State to reconsider this. The case for this amendment has been made strongly. Yesterday in the audiovisual room, Members of the House from Opposition and Government parties heard directly from women who are survivors of domestic abuse and have gone through horrendous situations. They spoke passionately about the lack of support for them and the lack of refuge places that have trapped survivors of domestic violence in horrendous situations. Their clear message to all of us as legislators is that we need to do everything we can to support them in every possible way and that they are not consistently getting the support they need and deserve. All this amendment seeks to do is allow some level of flexibility and discretion so that people, usually women in those situations, would have recourse. I cannot possibly see how it is defensible not to allow some level of flexibility and discretion here so that when people are in those terrible situations and need recourse, at least that can be considered. Every Member of this House, across parties, in opposition and government, would surely support what is being attempted to be achieved in this amendment. I ask the Minister of State to reconsider.

Deputy Robert Troy

To be brutally honest with the Deputies, when I was briefed on this Bill before coming in, I saw the merits of where they were coming from. I could see the reason for this and the examples of where it could well be needed. I could think of examples of dealing with marital breakdown in my constituency where one party has gone, never to be engaged with and the other person is unable to make contact with them. I see the rationale behind this, and it is in that context that the Central Bank's consumer protection code plays an important role in the context of wider financial consumer protection frameworks to support consumers. The code was subject to a major review by the Central Bank recently in order to deliver an updated, modernised and fit-for-purpose code for consumers of financial services. As part of that consultation process and the proposed revised code measures, the Central Bank has set out a number of important policy proposals relating to consumers in vulnerable circumstances and experiencing financial abuse, which would provide important enhancements for consumers in such circumstances. That is what Members were alluding to a moment ago. This includes a proposed new and overarching provision on securing consumers' interests, which obliges firms to effectively incorporate those interests in their strategy, business model and decision-making process, reflecting their overarching obligation to act in the best interests of their consumers. New measures on vulnerability are expected to be included in the updated code as part of the overarching duty on firms to secure the interests of customers. Firms would also be required to secure the interests of customers in vulnerable circumstances. This approach seeks to embed an understanding of vulnerability within the operation of a firm and ensure the needs of consumers in vulnerable circumstances and that a commitment to addressing these needs is an integral part of a firm's customer focus. This should allow firms to be prepared to assist when the needs of consumers in vulnerable circumstances arise.

The Central Bank also consulted on the introduction of a new definition of financial abuse to mean the wrongful or unauthorised taking, withholding, appropriation or use of customers' moneys assets or property; any act or omission by a person, including through the use of power of attorney, guardianship or any other authority regarding a customer, to gain control through deception, intimidation or undue over the customer's money, assets or property; or wrongfully interfere with or deny the customer's ownership, use, benefit or possession of the customer's money, assets or property.

A lot of work has been done on updating the Central Bank consumer protection code to help customers in vulnerable situations. However, I am told that in relation to the amendment, and taking account of the views of the Supreme Court in the Zalewski case, in which the Supreme Court held that any public administration body, such as the FSPO, which provides a complainant with a route to redress as an alternative to court is operating within the confines of the provisions of Article 37.1 of Bunreacht na hÉireann and is administrating justice. It is against this constitutional background that the FSPO operates as a quasi-judicial function and, for that reason, must be especially cognisant of the need to adhere to fair procedures. I am advised that legally we cannot do what is proposed. The Deputies are saying we can but I have to take the advice I am being given, which is that we cannot do it. I accept the rationale they have brought forward and their bona fides on this, but I have to take the advice I am given.

Deputy Pearse Doherty

I heard what the Minister read from his note, but his note did not say that he could not do it. It stated that he had to be conscious of quasi-judicial procedures and so on. I have not seen legal opinion on this, and I do not have legal opinion on it, but I am certain there are ways in which we can address the matter if we put our heads together. Even if, as I said, we may not be able to do it for those who have entered into contracts, we can look at contracts in the future if there is an issue. The bizarre thing in this is that an individual - for example somebody who is a victim of domestic violence – who may have been wronged by the financial institution can make a complaint herself to the financial institution.

The Central Bank, in the context of the codes the Minister of State mentioned, expects that financial institution to deal with her complaint and to respond to her regardless of whether the individual who has been involved in domestic abuse against her consents to it. However, when the financial institution fails her, she has no right to seek recourse from the Financial Services and Pensions Ombudsman unless her abuser puts his signature on her complaint form. That is nonsense. It just does not make any sense.

Let us look at the Bill before us, which I support. Section 15 gives the Minister for Finance the power to bring forward regulations involving internal dispute mechanisms within financial services providers where they may not exist. Would the Minister of State be happy if those regulations stated that an individual cannot be heard from unless the second person signs the form? No financial institution works like that. It is only the Financial Services and Pensions Ombudsman that works like that. The financial institutions will hear a complaint from one individual. There has to be a way to deal with this.

I am conscious that we are not going to get agreement on this amendment tonight, but I am trying to make sure that we go away, look at the legal avenues and find a way to resolve this issue. Protections can be put in place to allow for due process, engagement and information to be provided to any other signatory of the account but that should not block any consideration of a complaint the Financial Services and Pensions Ombudsman feels is important. As already stated, I am not arguing that it should be done willy-nilly or for every single case. I am arguing that this should be allowed where the Financial Services and Pensions Ombudsman is of the view that it is in the interests of the complainant for a complaint to be heard. This may be in a case of domestic abuse or coercive control or where the other party to the original mortgage is in some far-flung land and the complainant has not had contact with him or her for 20 years. As it stands, the complainant's case can never be heard. That is not acceptable in this day and age. As I have said, there are bound to be ways to resolve this.

The amendment could stand in this legislation because all it does is enable the Financial Services and Pensions Ombudsman to hear these cases. It does not mean that he or she will hear the cases. It may be the case that we will have to look at other amendments to legislation to allow for protections for other signatories to the contract. The Minister of State mentioned the Central Bank code of conduct and all of the protections that are there but who polices the code? It is the Financial Services and Pensions Ombudsman. If you make a complaint to the Central Bank, it will say that it cannot deal with individual complaints and will direct you to the Financial Services and Pensions Ombudsman. It is the ombudsman's code and he or she obliges the bank to adhere to it. If you feel the banks are not adhering to the code, you can make a complaint to the Financial Services and Pensions Ombudsman. However, in this circumstance, you cannot. All of the protections are there. The more protections, the merrier. I am absolutely for that but I want to ensure that people are able to exercise their rights where they feel that consumer protections have been disregarded by financial institutions. They should then be able to make a complaint. It is crucially important that they can do that through a mechanism I very much support, which is free of charge, which has been efficient, although there are some issues at the minute, and which is readily available to the population.

I ask the Minister of State to commit to looking at this issue again in the spirit of determining what we would need to do to allow this to happen in these circumstances, which are limited in number but which still exist. How can we give the Financial Services and Pensions Ombudsman discretion to hear such cases? That is what I am not hearing at the minute. I hear what the Minister of State has said about just being briefed on this recently but I ask that he commit to looking at this issue again. I am not asking for it to be included in this legislation. This legislation will pass tonight but there will be other opportunities.

Deputy Ged Nash

Just to clarify, this is Committee Stage and we will also have Report Stage.

An Ceann Comhairle

Report Stage is being taken tonight.

Deputy Ged Nash

I understand. We will be dealing with other finance-related Bills over the coming months. It is not unusual for an amendment that is not directly related to the subject matter of a Bill to be accommodated. This might be done in respect of the issue that is exercising me and Deputy Doherty. Deputy O'Callaghan has also spoken about it. This is not the first time I have raised this. We have raised it time and again in the Houses and elsewhere. The Minister of State understands the issue. He gets it. He is a constituency representative and a compassionate human being who understands that these problems arise all the time. He believes it is not possible to accommodate this in the legislation at the moment. We would disagree although regulation could potentially enable this area to be addressed. An overarching amendment to future legislation might be able to house such a regulation, for want of a better description, and enable that to happen. Will the Minister of State commit to engaging with the Financial Services and Pensions Ombudsman on this issue and to coming back to us in any format? He can see that we are exercised about it. We want to resolve this. Our bona fides on it are well established. Will the Minister of State engage with the Financial Services and Pensions Ombudsman to see if there is an innovative and imaginative solution that balances everyone's rights while addressing this problem? If we can get such a commitment here this evening, it would be a good evening's work and we could return to the issue again.

Deputy Cian O'Callaghan

I endorse Deputy Nash's request for that commitment from the Minister of State that he will look at this and work on getting a solution to it. It would be very welcome if he would do that. I will make a point to him. I accept his bona fides in what he is saying about the Supreme Court ruling on the Zalewski case. What is pertinent in that ruling is that, because of the quasi-judicial role involved here, there must be cognisance of the need to follow fair procedures. Deputies Nash and Doherty, the Minister of State and I all recognise that accommodating those who have been put in horrendous situations and their access to recourse must be at the heart of fair procedure. There is nothing fair in a procedure that excludes them from recourse. I bring that point strongly to the Minister of State's attention. With regard to the Zalewski case, the access to fair procedure he has talked about has to apply to people who have been in abusive relationships, who have been subject to coercive control or who have suffered horrendous abuse in their relationships. There must be fair procedure for them. Any reading of the Zalewski case ruling and the reference to fair procedure would surely acknowledge that access to fair procedure must apply to people in those situations.

Deputy Robert Troy

I hear what each of the Deputies is saying but, to be fair, the review of the consumer protection code is a good, positive and concrete change. We must also acknowledge that both parties to a contract have rights and they both have obligations. Deputy Doherty mentioned that the Central Bank or the relevant financial institution or pension provider can undertake a review if one party raises an issue, but it is also fair to say that neither the Central Bank nor a financial institution or pension provider is a quasi-judicial body. As a result, they cannot issue a legally binding finding in such a scenario.

I recently wrote to a bank to request a change of address on a joint account I hold with my wife. The bank would not change it without her signature. It would not even change a postal address without her signature. I am not saying the Deputy is wrong, but my personal experience is in a situation where there is a joint account, both signatures must now be present, even to change an address. That is probably a welcome protection that is in place. I know of examples where the courts have difficulties where both parties are not coming to the situation. Quite often, the courts will suspend and give additional time to get a party to make contact with the other party because it will make it easier.

I will give a commitment that I will engage with the FSPO to see whether anything is at all possible going forward. I accept and agree with the bona fides of what the Deputy is saying, especially in respect of people who have been subjected to marital breakdown and domestic abuse, who should not be penalised unnecessarily. I do not accept that it is as easy as projected, but I will give a commitment to the Deputy, if he does not press the amendment, that I will speak to the FSPO to see whether anything can be done.

Deputy Pearse Doherty

I welcome that. As I said, the FSPO will operate within the rules that we set. It would be worth having that conversation with the Attorney General as well. The original Bill stems from the Zalewski case in the WRC. Any quasi-judicial organ of the State should have fair procedures, but fair procedures do not mean that someone should have to sign the complaint. Fair procedures can be about being notified that a complaint is in, and that an individual has the right to be there, to be heard, to be cross-examined and to take evidence under oath. These were all the issues that were at the core of the case that was dealt with by the Supreme Court. It should not be a block for an individual. As I said, the FSPO is a good first step but advice from the Attorney General on how this can be addressed in the here and now, or going forward, is crucially important.

I will not press the amendment, given the Minister of State's commitment, although to tell the truth I want to press it. This is a big issue. It may not be one that affects hundreds of thousands of people but as I have said over and over again, a lot of the issues that become financial scandals happen because of one individual. One person did not lie down, was not going to be browbeaten by the financial institution and may have told his or her story to people. Those people may have thought that person was a crackpot or whatever, but he or she just kept on going and took it to the FSPO, which ruled for him or her. In some cases, the FSPO ruled against the person and he or she still kept on going.

I know people who have benefited from the actions of one individual. I will not mention the bank, but there was an FSPO case a number of years ago. One individual took a case on prevailing rate issues. That person won the case. One complaint won that case and thousands of people were notified that they were owed thousands of euro by that bank. Let us imagine that the person who took that case against a major financial institution in this State was a woman whose partner or former partner was exerting control over her and would not sign the document. Can you imagine the impact of that on any financial institution? It would state straight away that it could not deal with that case and to forget about it, and not one of those thousands of people would have ever found out that they were robbed by that financial institution. At its core, this is about the right to justice, the right to be heard, and rights in those circumstances where blackguarding is going on that tries to deny access to the organs of the State that allow a person to have his or her complaint heard, considered and adjudicated on. It is that person's right in the first instance. I am very conscious, from our past, that the actions of such an individual can have an impact on tens of thousands of other people who have been wronged but who never knew about it and would never do anything about it if were it not for that person.

I will leave it at that but I am very passionate about this issue. I am happy to work with the Minister of State on it. I will return to it because, as I said, this issue can be resolved. I hope it is without delay.

Amendment put and declared lost.

Question proposed: "That section 12 stand part of the Bill."

Deputy Pearse Doherty

This relates to SMEs. At present, a dual track or dual process is under way where people can appeal a credit decision by a participating institution to a credit reviewer, while at the same time submitting a complaint regarding the conduct to the FSPO. The section seems to clarify that the complainant may not make a complaint to the FSPO and it may not investigate the complaint in circumstances where the credit reviewer has already issued an opinion to the complainant. The text in the explanatory memorandum is a wee bit contradictory. Maybe that is just my reading of it. I am looking for clarification on this. Obviously, the credit reviewer or the credit review office is something we want people to go to. It is non-binding, but can people go to a credit reviewer and if they are not happy with that decision, can they take a case to the FSPO after this legislation is passed? I ask the Minister of State to clarify that in order that we have clarification regarding section 12.

Deputy Robert Troy

Section 12 clarifies the respective remit of the financial services ombudsman and the credit reviewer. There is another similar amendment to section 14 of the Bill; that section also corrects a typographical error. The credit reviewer makes a recommendation regarding a participating bank's lending decision as a result of which the participating bank may decide to approve the loan. The FSPO's jurisdiction does not overlap because the FSPO does not interfere with the commercial discretion of a financial service provider regarding its decisions to advance credit, or the conditions under which the loan facilities are offered, including interest rates or repayment period.

It is important to note that the credit reviewer reviews cases for SMEs, sole traders and farm enterprises, where the FSPO also investigates complaints by individual consumers. Nevertheless, a consumer, including a small business, may make a complaint to the FSPO regarding the conduct of the bank in how it assessed the loan application or regarding the treatment of a customer during the application process. The FSPO has jurisdiction to investigate whether the bank's conduct during the period was contrary to law or was unjust, unreasonable, oppressive or otherwise improper. The updated wording will foolproof the provisions of the legislation to prevent an overlap in the respective roles of the FSPO and the credit reviewer.

Deputy Pearse Doherty

I am still not clear, and that may fall on me, on what the Minister of State said about updating and clarifying. People will still have the ability to make a complaint to the FSPO regarding the conduct. What will they not have the ability to make a complaint to the FSPO about as a result of the legislation? This legislation will ensure there is no overlap, which means it will remove the right to make a complaint in certain areas because it will have already been dealt with. Will the Minister of State explain what that is or what the overlap is?

Deputy Robert Troy

It will not remove any right; it just clarifies what the right is.

The Credit Review Office, as the Deputy knows, was established for people who had a grievance or felt their credit application was not dealt with appropriately by way of a commercial decision on their ability to repay a financial loan. The measure clarifies the difference between the review office and the FSPO but is not removing any right. If people still believe it is required to go to the FSPO on grounds other than commercial-decision grounds, they can still do that.

Deputy Pearse Doherty

That is clear. Why does this arise? The FSPO cannot adjudicate on commercial decisions of banks that operate in line with the codes of conduct and all the rest. Can the Minister of State explain to us why there is some confusion in the legislation because what he has described seems to be clear regarding the existing practice? Why is this section needed? Why is an amendment to the original Act needed?

Deputy Robert Troy

I understand it was raised during pre-legislative scrutiny that clarity was needed. The amendment is to give rise to that clarity.

Question put and agreed to.

SECTION 13

Question proposed: "That section 13 stand part of the Bill."

Deputy Pearse Doherty

I mentioned this section earlier when talking about amendment No. 5. This obviously clarifies that the ombudsman may require witnesses to attend before him or her to be examined or cross-examined on oath or affirmation. This comes from the judgment we referred to in the case that involved the Workplace Relations Act 2015. It was found that the procedures were unsatisfactory in that cross-examination of witnesses of the opposing party is fundamental to the fair procedures guaranteed under Article 40.3 of the Constitution. It is obvious that cross-examination of witnesses is fundamental to the concept of fair procedures. We talked about fair procedures.

The original 2017 Act contains several provisions that recognise the quasi-judicial role of the FSPO. The decision in the Zalewksi case has required such bodies to examine their processes and procedures and ensure consistency with the constitutional requirements. That is really the core function of the original legislation. However, my understanding is that cross-examining witnesses has always been a feature of oral hearings of the FSPO, without this being in legislation. I understand there has always been a stenographer present to take a transcript and cross-examine the other party's witnesses, and that has provided for the three-dimensional discussion. Can the Minister of State provide certainty that the amendments will not have an impact on the operations of the FSPO? The FSPO has been doing what I have described anyway in practice for quite a long period. Is putting the existing practice in legislation just to have a belt and braces so things will remain as normal within operations?

Deputy Robert Troy

To clarify, it is exactly that.

Question put and agreed to.

Section 14 agreed to.

SECTION 15

Question proposed: "That section 15 stand part of the Bill."

Deputy Pearse Doherty

On section 15, which we touched on in terms of internal dispute resolution and the power of the Minister to make the regulations, will it now be the case that all financial services firms and pension providers will have to have internal dispute resolution procedures? Will this amendment ensure this is the case? Is it a factor that there are many that do not have such procedures in place?

Deputy Robert Troy

Currently, there is no statutory obligation on pension providers to have internal dispute resolution processes in place. This measure will make it a statutory requirement.

Question put and agreed to.

Sections 16 to 18, inclusive, agreed to.

SECTION 19

An Ceann Comhairle

The acceptance of amendment No. 6 involves the deletion of section 19.

Deputy Robert Troy

I move amendment No. 6:

In page 7, between lines 20 and 21, to insert the following:

“19. Section 62 of the Principal Act is amended—

(a) in subsection (1), by the substitution of “section 60 or 61” for “section 61 or 62”,

(b) by the substitution of the following subsection for subsection (2):

“(2) Subject to subsection (2A), the Ombudsman—

(a) shall publish—

(i) decisions made by him or her after the establishment day in relation to complaints concerning financial service providers, and

(ii) case studies in relation to complaints concerning pension providers,

and

(b) may, if he or she considers it appropriate to do so in any particular case, publish, in such form as he or she thinks fit, a report in relation to any investigation under this Part and the result of that investigation,

in such a manner that—

(I) ensures that—

(A) a complainant shall not be identified by name, address or otherwise, and

(B) a financial service provider or a pension provider, as the case may be, shall not be identified by name or address,

and

(II) ensures compliance with the Data Protection Regulation and the Data Protection Act 2018.”,

(c) by the insertion of the following subsection after subsection (2):

“(2A) Where the Ombudsman has, as part of an investigation into a complaint, conducted an oral hearing in public under section 56(4A), the Ombudsman may identify the complainant and either the financial service provider or the pension provider concerned when publishing decisions, case studies or reports, as the case may be, under subsection (2).”,

(d) by the repeal of subsection (3), and

(e) in subsection (4), by the substitution of “any decision, case study or report, as the case may be, under subsection (2)” for “any report under subsection (2) or (3)”.”.

This is just to correct a typographical error in section 62 of the 2017 Act, which refers to a decision of the ombudsman under sections 61 or 62 in respect of a complaint rather than a decision of the ombudsman under sections 60 or 61 in respect of a complaint. The amendment rectifies the typographical error so section 62, on decisions of the ombudsman, refers to sections 60 and 61. Section 60 is related to complaints and redress in respect of financial service providers, while section 61 refers to complaints and redress in respect of pension providers. It is just a technical amendment.

Deputy Pearse Doherty

While the amendment is technical, is it correct that section 19 deals with the publication of information relating to complaints?

Deputy Robert Troy

Yes.

Deputy Pearse Doherty

The issue I have, although the Minister of State will probably refer to fair procedure and all the rest, is that there is a huge difference between not naming Mrs. Doherty or whoever is taking a case that may not be upheld or is partially upheld and not naming the financial institution, such as Mars Capital. A David-and-Goliath battle that is being fought on this. I do not like the idea that the same privacy given to those making the complaints is being provided to the massive financial services firms, including vulture funds. That protects them from adverse findings made against them. I have concerns about this. The onus is on them, they are regulated, and, by law, they are supposed to do X, Y and Z. I am just concerned about this and wanted to put my concern on the record.

Deputy Robert Troy

My clear understanding is that, as the law stands, the only person who can opt to have the hearing in public is the person bringing the complaint. Therefore, it is not the FSPO who makes the decision to have the hearing in public. By virtue of the fact that the complainant is willing to have the hearing in public, he or she is giving implied permission to be known. If he or she wanted to have it in private, he or she could do so. It is his or her choice, nobody else's.

Deputy Pearse Doherty

I hear that and it is to be welcomed, but does the section not deal with the power of the FSPO to publish the decisions and, therefore, give privacy or protection to the financial institutions under the guise of providing privacy to the individual making the complaint, whether he or she wants the hearing in public or not? None of us, or very few of us, will rock up to the hearing, but it is the publication that I am referring to. It relates to what I was saying earlier, namely that it is sometimes the case that only a few challenges to the system open up a Pandora's box. Where there is a case in which it is stated that AIB, Bank of Ireland, Mars Capital, Start Mortgages or another body did X, Y or Z, people start to pull out their contracts, be they in suitcases under the bed or elsewhere, and see whether X, Y or Z actually happened to them. When the name of the financial institution is not published, it becomes a bigger issue. I am not arguing that it all should happen but discretion should be applied by the FSPO. That was my point on the section.

Deputy Robert Troy

To confirm again, it is only where the hearing has been in public. The matter that will be published has already been heard in public. No new information is being published. The only person who can decide if they are willing to have the hearing in public is the person who is bringing the complaint. If someone is willing to have their complaint heard in public, they will not have an issue with the findings being published.

Deputy Pearse Doherty

Will the Ombudsman be able to name the financial institution if the case against it was partially upheld?

Deputy Robert Troy

That is my understanding, yes.

Deputy Pearse Doherty

Is that possible without the consent of the financial institution?

Deputy Robert Troy

The hearing would have been held in public anyway. It would be known.

Deputy Pearse Doherty

It is only known to people who attend the public hearing. There is a publication thereafter of the findings. There is also then a second thing.

I will go back to a point and finish on it. It is a David and Goliath scenario. People come to me all the time and I tell them the FSPO is a great system because people do not have to get lawyers or barristers. They can take out a pen and paper and write their story. They do not have to worry about how well it is written or whatever else and can send it to the FSPO. It will assist people in finding where the complaint is and all the rest. Some people will be gung-ho and will want to have that in public. However, most people will not. That is the reality. If their complaint is upheld, they would like the institution to be named. In that circumstance where they have not exposed themselves, their vulnerability and what they might believe to be their inadequacies, whether grounded or not, if they have decided not to hold the hearing in public, can the financial institution's name be published? I have argued that a discretion should be there.

Deputy Robert Troy

The FSPO publishes an overview of complaints every year, as the Deputy will be aware. Where there are numerous complaints against a particular financial institution, it is named. It is at the discretion of the FSPO. The Deputy is right. If the complaint is heard in private, it is not guaranteed that the name of the financial institution will be published. However, if there are continuous complaints against that financial institution, the FSPO will publish and name it. I will have to come back to the Deputy on the threshold required in respect of the number of complaints against a particular financial institution. If there is one complaint, we can take it that will not be published. However, if there are numerous complaints, the institution's name will be published. I need to come back to the Deputy on the threshold.

Deputy Pearse Doherty

I thank the Minister of State.

Amendment agreed to.

Section 19 deleted.

Section 20 agreed to.

Title agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Deputy Pearse Doherty

I agree with the question. I thank the Minister of State and his predecessor for engaging to deal with the loophole in this legislation. I also thank the officials from the Department and the FSPO for their input.

Question put and agreed to.