Joint Committee on Social Protection, Community and Rural Development and the Islands debate -
Wednesday, 21 Jun 2023

General Scheme of the Safe Deposits Boxes and Related Deposits Bill 2022: Discussion (Resumed)

An Cathaoirleach

Apologies have been received from Senator Garvey. Members participating in the meeting remotely are required to do so from within the precincts of Leinster House only. I ask members and witnesses to please turn off their mobile phones or ensure they are on silent mode. I advise members of the committee who are participating in the meeting remotely to use the raise hand function on Microsoft Teams if they wish to contribute.

This is the committee's third session of detailed scrutiny of the Safe Deposits Boxes and Related Deposits Bill 2022. This Private Member's Bill tabled by Deputy Ó Cuív concerns abandoned safe deposit boxes residing in some of the oldest banks still in operation today. The Bill comprises six Parts and 30 sections, addressing, among other items, the registration of deposits, the retention by the State of unclaimed property, notification of relevant institutions such as the National Gallery or the National Library and the disposal or transfer of unclaimed property and moneys. The Bill was introduced in May 2022 and has now reached pre-legislative scrutiny stage.

Some of the issues raised with the Departments on 24 May related to the scope and drafting of the Bill.

The committee engaged with Finders International on 31 May. This firm worked to assist with the process of identifying and locating property for owners held in safe deposit boxes by financial institutions on behalf of companies and private individuals.

Today we welcome representatives of the Banking & Payments Federation of Ireland and look forward to discussing how the Bill will affect the main banks, which store these safe deposit boxes. The committee is interested in how they can best incorporate their views in the detailed scrutiny process to assist with and improve the Bill. I welcome Ms Michelle Byrne, head of consumer banking, and Ms Bernice Evoy, solicitor and head of legal and regulation.

Before we start, I wish to explain some limitations to parliamentary privilege and the practice of the Houses as regards references witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect they should not comment on, criticise nor make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I invite Ms Byrne to make her opening statement.

Ms Michelle Byrne

I thank the committee for the invitation to attend the meeting. I am joined by my colleague Ms Bernice Evoy, solicitor and head of legal and regulation at the Banking & Payments Federation of Ireland, BPFI. As the committee will be aware, BPFI made a detailed submission to the committee regarding the Bill on 19 May. In that submission, we welcomed the committee’s interest in understanding the sector’s position and asked that the points we raised be given due consideration as part of the process. We also indicated our willingness to work with the joint committee and the relevant Departments to agree a workable and pragmatic approach to dealing with the issues arising and the legacy arrangements that exist regarding items held by members in safekeeping and in safety deposit boxes. Without reiterating in detail the points made in our initial submission, we very much welcome the opportunity to attend in person and highlight the main concerns of the sector pertaining to the Bill as drafted.

First, we reiterate the concern raised in our initial submission in respect of the need for indemnification throughout the Bill, in case BPFI members’ compliance with the Bill should result in legal challenge in the future. We note the indemnification proposed under section 10 but believe this should go further. While depositors or their representatives will be able to reclaim any items in the future or any funds realised from the sale of items, the latter may be deemed insufficient in the context of any sentimental or emotional value attaching to the item.

BPFI members also note concerns regarding the potential breach of data protection and the privacy rights of customers should items be accessed or sold without prior notification to the depositor or their representatives. The majority of items held by banks are more likely to be of personal, rather than historical or cultural, importance. The Deloitte report of 2019 regarding its review of additional assets for potential inclusion in the Dormant Accounts Fund noted that where "100 safety deposits belonging to deceased customers with no identifiable next of kin” had been opened by one institution, the items discovered included “old currencies, title deeds, savings certificates, death certificates, marriage certificates, wills, personal correspondences, keys, photographs and one item of jewellery." The report concluded that none of the items was valuable. While we do not discount the potential to find some items of significance, we expect the majority to be more of personal, rather than historical or cultural, importance. To address the concern raised, we ask the committee to consider the inclusion of indemnification or an immunity from suit for institutions in all provisions of the Bill.

Second, the Bill as drafted proposes a lengthy and complex process for the registration, access, transfer and potential subsequent sale of the items. The concerns raised in our initial submission refer specifically to section 6(1) and (2) in respect of the register of deposited property, section 7 regarding a notification procedure, section 8 in respect of the publication of notice and section 9 regarding the examination of unclaimed property. We note the recommendation made to the committee by a departmental official that the proposed register be limited to items of historical or cultural significance and we urge the committee’s consideration of this approach in an amended Bill. Such an approach would allow for a more manageable and focused approach to documenting items of interest under the Bill. We also note and welcome the comments made by the representative of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media when she stated her Department would be willing “to consider ways to support the financial institutions in assessing the importance of items, including through the development of a set of criteria that could be used by the institution to assess whether an object should be referred to the director for further consideration.” To address these concerns, we ask committee members to consider the time that will be taken to establish processes and procedures to comply with the Bill once enacted, and a more focused approach to the development of a register of items.

Lastly, in respect of the items held by banks, it is important to note items are held in safekeeping or in safe deposit boxes. Some BPFI members hold items only in safekeeping, while others hold items both in safekeeping and in safe deposit boxes. In the case of safekeeping, or safe custody as it is referred to by some BPFI members, items are held securely, for example in a secure room on behalf of a customer in an envelope, box, suitcase or something similar. In the case of items stored in a safe deposit box, these items are held in a locked facility to which both the customer and the institution hold a key, both of which are required to open the box, and for which the customer may pay a fee.

The interchangeable use of language in the Bill may pose challenges to BPFI members in complying with the requirements of the Bill. To address this, we ask the committee to reconsider the scope of the Bill to align with the agreed Ireland's safe deposit box, bank and payments accounts register, ISBAR, approach, given the work undertaken at industry level to meet these obligations, with a phased approach being perhaps the most effective way to implement the legislation. This would allow for full consideration of any legacy issues and the distinction that exists in the case of some BPFI members between safekeeping and safe deposit boxes.

I have outlined the main concerns arising in respect of the Bill as drafted, including the need for indemnification throughout the Bill, the complexities of some of the processes proposed in the Bill and the distinction that exists between institutions in regard to the holding of items. Again, I thank the committee for its engagement with the sector on the Bill. We will be happy to remain engaged as the legislation progresses to ensure a practical approach is adopted in the Bill that will work for all impacted stakeholders. My colleague and I will be happy to answer any questions members may have.

An Cathaoirleach

I thank Ms Byrne.

Deputy Éamon Ó Cuív

I thank the witnesses for the detailed notes they sent. I have noted the various points they made. In regard to the indemnification issue, one of the proposals put to us suggests the Bill is too comprehensive, which relates to the point Ms Byrne made regarding registration and to the points the banks and others made regarding the sale of articles when the boxes are opened. My view, having listened to the perspectives, is that a fair point is being made. When we were drawing up the Bill, I had the assistance of two draftspersons but I am the person who was responsible for the content. I felt it would be better to be too comprehensive and then remove aspects than to meet in committee and decide it was so tight as to have no range. The idea of taking out aspects, therefore, is to a certain extent welcome, and that issue could be dealt with. The issue of indemnification could be looked at again, but if the banks are not going to dispose of the sale but rather hold on to them, that is fine. I would have thought the banks would like to get rid of some of these things and free up space, but that is a different issue and it is one for the banks. If the banks are happy that way, that is fine.

On data protection and privacy rights, the provision for starting with the oldest boxes was a conscious decision for several strategic reasons, one of which is that it is less likely an owner would be found. It is not impossible, given there could be a titled person who had kept careful records, with wills down through ten generations. That is fine, but it is less likely and, therefore, there was less jeopardy in doing that. If we find an issue we had not foreseen - I have never seen a comprehensive Bill come through the Houses in respect of which an issue has not arisen - the Houses of the Oireachtas can always amend legislation.

We try to do it as best we can but it is never perfect, no matter how much time we spend in here on Bills. The courts would not be so busy if everything was perfect. That issue will have to be looked at.

I was curious about the issue of data breaches, which are a worry. On the other hand, the next thing is Deloitte says the Dormant Accounts Fund opened 100 boxes. I was a little bit curious how those two points sat together but that was only a small point. I have dealt with the issue of indemnification. The registration was a protection that everybody knew about. If you are happy that the bank's records are adequate, it is not key to the bank. What is key is that there is a registration of everything that would be put on public display. Again, that issue can be looked at simply enough. We would note carefully the proposal of the committee, and the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media suggested that we just register the boxes that are of note.

Ms Byrne talks about safe keeping and safety deposit boxes. The legislation as drafted in the interpretation section is quite clear. One thing that always raised questions and causes confusion is the following. In legislation on housing, for example, it is whatever the Act defines it to be and so on. In this case "'safe deposit box' means any box, vault, or other safe keeping arrangement maintained by an institution for the safe storage of deposited property". Not only does it cover the things physically put in boxes but also art or anything else people might have put in. If it was too big to go in a box, it is covered. I see that the Banking & Payments Federation of Ireland seems to be suggesting it should not include this in the first phase. Why not? If we start back in 1790, 1800 or 1810, why would we not look at everything that is in safekeeping? It is unlikely the person who put it there will reappear and look for it back. There is a strong obligation to try to find the owner, so if there is some case where we think we can identify the owner, we have to go to every length to do so, as in the case of Dormant Accounts Fund money. What is intended here is that it covers all items.

I am curious about the following point. We do not want to open any boxes at this stage but would it be possible to approach, say, the Bank of Ireland on College Green, which is the oldest bank in the country, and be shown where all of this stuff is kept? I am sure the committee would love to see how much space is there and what size boxes or materials are in safekeeping there. I would say that might bring a bit of reality to the Bill from our point of view. I would say a lot of us are curious as to how much stuff there is.

I mention historic artifacts and what was personal 150 or 200 years ago could be of public interest nowadays, including letters and so on. We should not underestimate what might be there because if it was modern or current in that it was written two weeks ago, for example, it would be covered under all sorts of other legislation. Leaving that aside, it would not be as interesting as title deeds and so on that went back a long way. If there are title deeds to property, I doubt if, under modern law, they would have any relevance, but if they had, they would be relevant to the Land Registry and so on if somebody wanted to claim the property, and I am sure they would be glad to get it back to whoever was meant to own it. I doubt if there would be many cases where there would be a dispute based on documents going that far back, although I have seen stranger things. I remember a court case in Connemara and they went back to the 1500s or 1600s to establish a claim to a marine property. Stranger things have happened, but if that happens, the person who has a claim, if they can prove they have ownership and substantiate that claim, would have rights.

I thank the Banking & Payments Federation Ireland for the contribution. All the contributions we have received to date have been exceptionally positive. There are issues in something as complex as this, and we foresaw that. We tried to be as thorough as possible, and so far there seems to be mention of taking things out, which I am personally pleased with, rather than putting a whole lot of things in. That is a great tribute to the drafters who helped me and who did a lot of research on the background law to this. They looked at a lot of issues such as privacy rights, property rights, EU law, Irish law and so on. They did a really thorough job.

I do not have too many questions. I have responded to points Ms Byrne has made. I will leave it to the Cathaoirleach to interact on what I have said.

Ms Michelle Byrne

As the Deputy has acknowledged, we are positive about this, we are happy to engage and we support the policy objective. However, as I have outlined in the two submissions we have made - the written submission and the opening statement - there needs to be broader indemnification and simplification of the Bill. We are available to engage and assist as appropriate.

On safekeeping and safety deposit boxes, we have called that out to ensure there is an understanding that there is a distinction between them. On safety deposit boxes, I ask the Deputy to imagine a wall of locked boxes, some of which are accessed daily and others which have not been accessed in a long time. Some of those are still subject to a fee. That is one aspect of it and that has been subject to a recent regulation, ISBAR, which came in under the fifth anti-money laundering, AML, directive, whereby the owner of all deposit boxes is now included on a register for AML purposes. Some work is being done in that regard, not in this context but some work has been done on safety deposit boxes. On safekeeping, I ask the Deputy to imagine a secure room that is lined with shelves with all manner of items in there. There are envelopes and the majority of items would be paper. There are suitcases, trunks and boxes, and the owners of all of these would be known but the majority of the items are paper.

On our sense of simplifying the Bill as it is currently drafted, indemnification is one piece and the removal of the need for a detailed register is another. The first step in the process should be the opening of the items and communication with customers to try to identify the owner. If an item is deemed to be of historical or cultural significance, that is when we believe a register would come into play in noting those items. If those have been passed on to the director and an assessment is carried out, depending on the director's assessment, either they would be held by the State or returned to the bank. That sales process that is currently in the Bill should be removed. That would simplify the Bill as it is drafted.

There are also concerns around the 80-year timeline. It poses challenges in understanding the most recent access to the items, and that is not always clear. It also presents a challenge in introducing an annual assessment. Items that come into that 80-year scope every year would have to be assessed. What we would consider might be worth the committee's consideration is whether the timeline should be removed to allow for a one-off project whereby all items would be opened and dealt with. Those are some comments on what Deputy Ó Cuív said.

Deputy Éamon Ó Cuív

The thinking behind the 80-year timeline is as follows. We presume the vast majority of people who put items on safe deposit are over 20 years of age, give or take, so that means it is 100 years since they were born. If they were alive today, they would be 100, and that is when you finish this rather long process, starting with the older ones first. The first reaction was to go to the date they were deposited, but since some of the boxes would be physical boxes with keys, you could be putting things in and out that could have been passed on between the generations and recent things could have been put in.

That provision was put in to provide protection in circumstances where you knew that this was an active box. It is under the remit of this Department because it was a kind of dormancy issue, but basically what we are interested in is things that are put in for 80 years. We could put a 120 years limit because it would take a long time to get that far down if doing this systematically. Regarding the timeframe, the whole idea was to do it in way that nothing was being opened where there was a high risk of interfering with people's current property rights and where we were actually likely to be reuniting people with things they did not even know existed, in other words, people who could prove they had an entitlement to the property by virtue of being the heir. In many cases, they would have to prove title generations back. That was the idea.

I was actually surprised that in all the debate up to now, nobody had suggested moving the timeline back a bit. When we fixed the 80-year limit, it was on the basis that somebody would be 100 years of age. It was a round number but it was not an absolute number. We could say a hundred years from now. The further back we put the limit, the less the risk of all the imagined scenarios such as people walking in and saying something was theirs. The saying is you learn as you go. If, for argument's sake, the limit was set at 100 years ago, if it got that far and it was found that all the risk people had worried about had not really materialised, then it might be decided to reduce it and jump forward another 20 years. If, on the other hand, issues arose that had not been foreseen, then the Bill, or the Act as it would be at that stage, would have to be amended and that would have to be dealt with. As I said, with any legislation that is brought in, if we are going to do anything, we have to minimise the risk but we also have to be ready to deal legislatively with any unforeseen consequences that have not been thought of. That has often happened during my career in politics. I do not know how many cases have come forward where there was some lacuna in the law that had to be dealt with, sometimes swiftly and other times not so swiftly. The Bill is constructed to try to minimise that but it cannot be a thousand per cent. We were trying to be very comprehensive on that purpose.

Certainly, from the debate we have had to date, it can be taken, particularly since the banks have no problem keeping all this space, that the idea of selling does not arise. The other issue that does not really arise is that if old currency more than 100 years old was found, I would imagine it would be of more interest and worth more in terms of its historic value than its cash value would be. Therefore, I doubt anybody would sell it anyway. The State would have a great interest in holding on to it because currency from 1850, 1860, and 1870 and whatever would be more interesting as notes than they would be as currency, even more so if coins were found.

Ms Michelle Byrne

On the timeline piece, boxes being accessed at the moment could potentially be removed from the scope of the Bill. What we were thinking in terms of removal of a timeline was to approach it as an entire project rather than it coming in under an annual assessment. In our view, this would make it a bit more simplified.

Deputy Éamon Ó Cuív

However, the annual assessment would only arise after a very long time and after this Bill was well tried and tested. As we have said clearly from the beginning, starting back in 1783, when the Bank of Ireland opened, and 1813, when AIB was opened in some form, or one of their banks, many of these deposit boxes go back a long way. This would not be a quick process. By the time we would get to 80 years ago, we would have a lot of experience. It is just a cut-off line. What would be done when it got that far would obviously be something to review anyway. We wanted to reassure people that things that had been put in boxes in living memory would not be chased. That is all we wanted to ensure. As I said, it would be a long way down the line before a bank would ever face the one-year thing, and there would be so much experience built up that there would probably be issues at that stage that needed to be dealt with and that could be resolved from the experience gained. The 80 years was a reassurance and it could just as well be 100 years.

An Cathaoirleach

The Bill could have a review clause enshrined in it that would kick in before we got to that threshold, which would help to address the concerns Banking & Payments Federation Ireland has highlighted.

Deputy Donnchadh Ó Laoghaire

I do not have a whole lot to add. Most of the questions I had were asked in previous sessions. It is very welcome that Banking & Payments Federation Ireland is going to work with the legislation. I have asked this question before of other organisations and I probably know the answer to it, but can the witnesses offer a ballpark sense of the number of items in both categories, that is, the boxes and the items, that are in safekeeping?

Ms Michelle Byrne

It is not something we have collated at an industry level. We have not undertaken a piece of work to establish how many items are held but very rough figures would indicate between 1,000 and 2,000 for a smaller institution and then tens of thousands for the larger institutions.

Deputy Donnchadh Ó Laoghaire

Is that each?

Ms Michelle Byrne

Yes. Therefore you might be looking at somewhere between 60,000 or 80,000 individual items. That is not an absolute figure that has been collated at industry level but that is roughly the number.

Deputy Donnchadh Ó Laoghaire

I get that. There is an awful lot of trawling needed to figure out the precise number. The only other thing I would say is that we probably need to give consideration to the point of a project. I do not understand the mechanics of how banks work on a daily basis but I am quite sure people are given a task of work for six months to two years and a team is set up and things like that. In any organisation that is allocating staff, in so far as I understand banks, I can understand the logic of allowing the flexibility of something being taken on as a single project by a group of people on a consistent basis until such time as the work is done rather than having to consistently come back to it and having members of staff whose regular job it is, coming back to it every year for a few weeks, or whatever way it would work. The idea of it being treated as a single project could make sense. That is just something to give further consideration to. That is all I have.

An Cathaoirleach

On that point, the witnesses made reference in their evidence this morning to the 100 safety deposit boxes that were opened and the report that was done by Deloitte. In this case, we are talking about something like 5% of boxes where there was no next of kin that could not be traced after opening the box and there had to be further investigations carried out. However, we have had an old institution close its doors here. Surely there is now a case study available to which Banking & Payments Federation Ireland has access in terms of the logistics and the scale of doing a project like this. As a case study on how this could actually be managed, would that be something it would be willing to share with the committee? Obviously, Ulster Bank has had to deal with this problem over recent years and it could give us an insight into the challenges and issues with this that are there. Perhaps Ms Byrne would comment on that.

Ms Michelle Byrne

The first thing to say is that I am not authorised to speak on behalf of an individual member, so I think-----

An Cathaoirleach

For the record, this committee wrote to the individual members of the federation and they all came back and said Ms Byrne would be speaking on their behalf. I want to clarify that for the record.

Ms Michelle Byrne

Okay. Ulster Bank would be best placed to outline the process it has gone through. I know it has centralised all of the items that were held at branch level. These items are now in a centralised location and there is a piece of work ongoing to try to identify owners. In the absence of this identification, Ulster Bank is trying to ensure there is appropriate storage in place for items that cannot be relocated to their owners. However, any of the detail would need to come from Ulster Bank on that particular piece of work.

An Cathaoirleach

For the record, we did contact Ulster Bank, which made it clear it would not speak individually to us. The responsibility comes back to the federation. It can come back to the committee with further evidence based on the experience of one of its members with regard to this. We would be delighted to hear from Ulster Bank if it is willing to engage but we have made that request and that has not been forthcoming.

Ms Michelle Byrne

I can take that back.

An Cathaoirleach

Are there any other questions?

Deputy Éamon Ó Cuív

It is not a question but a comment. Obviously data protection is an issue, but the State has been publishing records such as census records from 1911. Therefore, there is a precedent for opening very old records. That is why the date issue is key. Obviously they are not going to open up census records beyond a certain date. The appropriate date was debated in Cabinet and the Oireachtas. It was opened a fair while ago. The people from 1911 might have been alive as children. It did give personal information. I was curious about one case. The lesser known grandfather wrote the whole thing in the return for 1911 in the simplified version of Irish he had, so there was a lot of personal information and it told how serious they were in private life about what they were doing in public life. It is not unknown for the State to decide that there is a point beyond which documents can be opened.

An Cathaoirleach

Does Ms Byrne wish to add anything?

Ms Michelle Byrne

GDPR and data protection obligations are taken very seriously by our members. That concern is there and that is part of the reason we sought indemnification. It is a concern that exists and an obligation that is taken seriously, so we felt we had to raise it.

Deputy Éamon Ó Cuív

I agree, but we try to be careful and we also look to precedent regarding that. These are all issues we will tease out in more detail. Again, it is more the reason a date from way back is preferable.

An Cathaoirleach

Yes, and we have noted the concerns expressed by Ms Byrne today and in the very detailed submission she gave, for which I thank her.

That concludes the committee's business in public session for today. I thank our two witnesses for their evidence and the report they produced for the committee. We may revert to them regarding either the written or oral evidence before we conclude our report. We thank them for their assistance to date. We will now go into private session to consider other business. Is that agreed? Agreed.

The committee went into private session at 10.14 a.m. and adjourned at 10.42 a.m. until 9.30 a.m. on Wednesday, 28 June 2023.