Insurance Bill, 1999: Committee Stage. SECTION 1.
I move amendment No. 1:
In page 5, subsection (2), lines 20 and 21, to delete "and the Insurance Acts, 1909 to 1990," and substitute "the Insurance Acts, 1909 to 1988, the Insurance Act, 1989, and the Insurance Act, 1990,".
This is a technical amendment which seeks to delete "and the Insurance Acts, 1909 to 1990" and to substitute the correct terminology. The purpose of the amendment is to ensure that the collective citation for the Acts from 1909 to 1990 is accurate. The Bill should state, "the Insurance Acts, 1909 to 1988, the Insurance Act, 1989, and the Insurance Act, 1990". The 1989 Act updates the previous Acts and the collective citation should be changed to reflect that fact.
I have had this matter examined in great detail by the key officials in the insurance division of the Department. I understand the 1989 Act refers to export credit insurance only. It is not intended, when the Insurance Acts are referred to collectively, that they should include reference to export credit insurance legislation but rather, solely and specifically, to the legislation concerned with the supervision of the insurance industry. Accordingly, it would not be relevant or appropriate to include export credit insurance in this area. That has always been something the State has carried. It is a separate issue. It is more of a financial mechanism than a protection system. It would not be appropriate to have it included in this Bill. Consequently, I will not be able to accommodate this amendment.
My only concern is that other Insurance Acts, which are part of the collective citation, also refer to export credit insurance but the Minister is not ruling them out. I do not understand why he should make an exception of the 1989 Act. The Minister does not seem to have problems with a number of other Acts. Why has he focused on the 1989 Act?
The Act referred to deals specifically with export credit insurance per se and this Bill deals with the supervision and delivery of insurance products on the island of Ireland. We cannot legislate for something outside the island of Ireland. Export credit insurance refers to business which takes place outside the country. It is a State-run operation. We are talking about regulating an industry which has undertakings and intermediaries and interacts with the consumers. The legislation deals with all three different groups. Its sole purpose is to ensure absolute transparency in the information available to the consumer from the undertakings through the intermediaries. Export credit insurance does not come into it. The consumers we are dealing with through this legislation would not seek export credit insurance. Consequently, it would be unnecessary and unwise to include export credit insurance.
I accept the Minister's point. As many of the other Acts deal with export credit insurance, this Act, although it deals exclusively with it, should also be included. Why should it be excluded in toto, when we are talking about a collective citation of all the Acts from 1909 to 1990, if it deals with something which is dealt with in the other Acts?
The purpose of having other Acts included is that products would be available under particular aspects of insurance cover from undertakings. Some of them may be in the export area and products would be available to consumers and companies in this country. The export credit Acts are not included in this citation and it would be unwise to do so. The State has extracted itself from this area and we do not want to create any confusion. We want to ensure everyone understands that we are talking about the inhabitants on the island of Ireland, the undertakings operating in the delivery of insurance products and services on the island of Ireland and the intermediaries through which these products are sold to the consumers.
We must be specific and ensure that a protection, including a clear mechanism and parameters, is extended to the three different groups. That is the purpose of this legislation. Consequently I am unable to accept the amendment.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3.
I move amendment No. 2:
In page 8, between lines 10 and 11, to insert the following:
"(m) by the insertion of the following after the definition of ‘prescribe':
‘"pure protection product" means an insurance policy whose purpose and function is to provide payment of a specified amount on the happening of a specified event and where the insurance policy has no element of cash return or value other than on the happening of such specified event;',".
The subject of pure protection products was discussed on Second Stage. As the Minister of State is aware, there is no material benefit to the consumer from the disclosure of commission on such products. The commission is the cost incurred by the insurance company in having its products sold to the consumer. In the case of pure protection products this cost is a set figure across the board among all companies. If it increases the consumer will pay the extra cost. If it decreases brokers' income will be reduced and they may go out of business.
Declaring commission on pure protection products to the consumer will confuse him. He will think he can get a better deal elsewhere, but he cannot. Pure protection products are not like motor or other forms of insurance. Given the figures recorded on Second Stage and the fact that the average consumer has cover of only £50,000, we should be mindful not to discourage consumers from taking out life protection products.
This amendment seeks to insert a definition of pure protection product in the Insurance Act, 1989, presumably with a view to excluding those products from the disclosure regime to apply in accordance with section 7 of the Bill. The House will recall that in replying to Second Stage I indicated I would give further consideration to this issue and to the issue of whether protection products should be included in the disclosure regime. However, that is an issue for the disclosure regulations. I would prefer to make whatever provisions might be necessary, including definitions, in the regulations.
I emphasise that I have not made a final decision on this matter. There are still compelling reasons for disclosure of commission in respect of protection products. In the first instance, the consumer of these products has as much right to the information as the consumers of other life assurance products. Second, I fear that an incomplete regime of disclosure would create a lacuna, creating a shifting of remuneration from investment products to protection products. Third, it is mandatory in certain cases, especially on the financial institutions with regard to certain products they provide by way of mortgages and otherwise, that protection products are required. Consequently, I see no difficulty in creating a market balance where the products will be required. In the modern, enlightened economy people will protect themselves by whatever mechanism they can and there will be no reduction in the range of protection products being sold in a growing economy.
While I am prepared to consider the text of Senator Coghlan's amendment when considering this matter in the context of the disclosure regulations, I am unable to support the amendment at this time. However, on Second Stage I gave a commitment to give the matter further consideration. I have done that and have held discussions within my Department. We are still discussing the matter. We have had indications from the industry, including intermediaries, that it is happy with the way we are proceeding. I will give the matter further consideration within the context of disclosure operations before reaching a conclusion.
In view of what the Minister of State has said and his honouring of his commitment on Second Stage and given also that he has not reached a final determination in regard to this matter and that it will be further considered in the light of disclosure regulations, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
I move amendment No. 3:
In page 8, line 37, before "at any time" to insert "in a case where the information concerned was concealed by the fraud of the defendant,".
Section 4 proposes to amend section 3 of the Insurance Act, 1989, to the effect that no summary proceedings shall be commenced later than five years from the date on which the offence concerned was committed. That appears to be an abnormal period of time in which a penalty can be imposed. Is the District Court or Circuit Court to be involved? It would appear to be an appropriate penalty in the context of the Circuit Court but not the District Court, which normally prescribes that summary proceedings be commenced within two years.
If an extension is to be provided to the District Court, whose jurisdiction is mainly concerned with summary prosecution, this amendment proposes that the type of offence subject to this provision would be specified and that it would be a serious offence. That is why my amendment proposes to add the words "in a case where the information concerned was concealed by the fraud of the defendant", that being of a serious and deliberate nature. If the penalty is to be imposed by the District Court, the time permitted to issue summary proceedings appears to be in excess of what is expected of the remit of that court. In such circumstances the provision should be more constrained.
Section 4 proposes an amendment to the 1989 Act. It seeks to permit summary proceedings to be taken against a person accused of an offence under the Insurance Acts, either within two years of the offence being committed or within six months of the offence being discovered, subject to an overall limit of five years since the offence. This amendment is deemed necessary in light of the experience of my Department in recent years. The six months provided in the 1989 Act has proved impractical, even when an offence is detected immediately. More time is needed to gather the evidence to prepare proceedings. In addition, unfortunately, in the nature of insurance it may be much more than two years before an offence comes to light. For example, a couple could buy a product as protection on their lives, one could die after two, three or four years and on death it could be discovered by the other party that the product was not what it was thought to be in which case the matter would have to be investigated and, where necessary, prosecuted. In view of this, a certain balance must be offered to the consumer to allow for the evolution of time. Five years is the maximum, which is fair in the circumstances.
The question of which court would hear the proceedings would depend on the value of the prosecution claim. If it is a certain figure it must be heard in the District Court, if above that it must be heard in the Circuit Court. It would be an arbitrary decision, depending on the prosecution at the time.
The amendment proposed by Senator Costello would create difficulties in proceeding with prosecuting offences. For example, fraudulent concealment would have to be proved, again delaying matters to the point where the provision would be inoperable. The onus of proof of concealment would be on the plaintiff, which may not be established until after the time period allowed, in which case prosecution would be impossible. Accordingly, I am unable to accept the amendment. What is proposed in the Bill is reasonable, fair and equitable. It takes account of the different situations that could occur and, ultimately, it is in the best interests of the consumer.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Section 5 agreed to.
SECTION 6.
Amendments Nos. 4 to 18, inclusive, are cognate and amend ment No. 23 is related. Amendments Nos. 4 to 18, inclusive, and No. 23 may be taken together. Is that agreed? Agreed.
I move amendment No. 4:
In page 11, line 15, after "Minister" to insert "or such authority as may be prescribed".
There is a range of areas where authorisation regarding reinsurance is granted. Absolute authority should not be confined within the realm of the Minister alone but should be extended to such authority as may be prescribed. In other words, the Minister should not take upon himself the role of having to authorise everything but should extend it to another person or body.
I support Senator Costello's amendments. The amendment is correctly worded. It states that the Minster will maintain responsibility but if he wishes to pass it on to somebody else, he may do so. If we are to produce a Bill which will last a long time, that is a freedom the Minister would welcome. Looking at good management practice in the long-term, that is something that could be delegated but it is in the hands of the Minister to delegate it. This is an amendment the Minister may consider.
The Senators, by virtue of the amendment and through their contributions, have rightly highlighted areas where the Minister currently exercises authority but where, in the future, it may be more appropriate to have these functions carried out by a body independent of the industry and any possible political interference. That would be in line with international best practice. Such a change, however, is premature at this time. We cannot presume that which will happen in future legislation. We must maintain the continuity of new legislation with existing legislation and maintain that balance and consistency.
When proposals are brought forward in the future concerning the single financial regulator, it will be appropriate at that time to make the necessary arrangements to assign all these and other functions to any new regulator or authority. There is also no need to provide for the appointment of a single regulator in this legislation in advance of a decision on this matter and in advance of the subsequent legislation. We cannot do that. The necessary arrangements for transfer of powers can be made relatively easily in the new proposed legislation. Consequently, it would be unwise and imprudent to second guess that which might come forward in the future. We must maintain the consistency and, regrettably, I will not be able to accept these amendments.
We are merely trying to be helpful to the Minister so that he does not have to rush back to the House again.
I am deeply grateful for that help.
I carefully read the Minister's contribution on Second Stage in which he confidently asserted that the Minister for Finance and the Tánaiste were at an advanced stage of preparing their legislation for the independent regulator, that they had it all worked out. We are not second guessing anybody. The Minister told us categorically that the regulator was about to be introduced in the very short-term rather than down the road. We were trying to be helpful to the Minister and to take away the extra burden he has imposed on himself in relation to all these onerous and specific tasks relating to re-insurance. Clearly that is the way it will go, regardless of whether we like it. It has to go down the road of a regulator so either a person or a body will be doing these functions. We might as well introduce it here as good practice in the legislation and perhaps it will hasten the Minister for Finance and the Tánaiste in getting their act together.
I do not wish to be argumentative but now that the subject of the regulator has been mentioned by my good friend and colleague, Senator Costello, I would like to support him. It is my clear understanding that the Minister stated on Second Stage that this matter would be before us shortly and that it would be introduced by the Minister for Finance. I was concerned that I was reading too much into that – we referred to it here this morning on the Order of Business.
I would like the Minister to refer to this matter again for the benefit of Senator Costello, myself and the other Senators because the issue of a single regulatory authority is important for all the financial institutions. The Government is committed to it, and rightly so, but where will the regulator reside? My views are known on the matter, and Senator Costello and I might differ on it, but I would like clarification from the Minister.
The situation has not changed in the past week since I addressed the House on this issue on Second Stage. As the Senator knows, discussions have taken place between the key officials in the Department of Enterprise, Trade and Employment and the Department of Finance. Discussions are ongoing between the Tánaiste and the Minister for Finance and when the outstanding issues in this complex matter, which I referred to on Second Stage, have been settled, both the Tánaiste and the Minister for Finance will bring proposals to Government for its consideration and final decision. Following the Government's decision on this issue, it will be expected that the Minister for Finance will bring forward the relevant legislation for the establish ment of the new authority. The Tánaiste, the Minister for Finance and their officials will take great comfort from the fact that this House is warmly anticipating a decision and will expedite any proposals that come before it in this area, and I will convey that matter to them.
I am still totally confused.
Amendment put and declared lost.
I move amendment No. 5:
In page 11, line 17, after "Minister" to insert "or such authority as may be prescribed".
Amendment put and declared lost.
There is mighty power over there for one man.
I move amendment No. 6:
In page 11, line 19, after "Minister" to insert "or such authority as may be prescribed".
Amendment put and declared lost.
I move amendment No. 7:
In page 11, line 23, after "Minister" to insert "or such authority as may be prescribed".
Amendment put and declared lost.
I move amendment No. 8:
In page 11, line 25, after "Minister" to insert "or such authority as may be prescribed".
Amendment put and declared lost.
I move amendment No. 9:
In page 11, line 33, after "Minister" to insert "or such authority as may be prescribed".
Amendment put and declared lost.
Amendments Nos. 10 to 18, inclusive, not moved.
Section 6 agreed to.
SECTION 7.
I move amendment No. 19:
In page 13, line 14, after "insurance" to insert "or, if not practicable at that time, not later than seven days after the conclusion of the policy,".
This amendment provides that if it is not practicable to furnish the information at the time of completing the policy, it can be furnished within seven days of the conclusion of the agreement on that policy. It is not practical to furnish the full information to the consumer up-front. Life assurance policies have to be underwritten according to risk, namely, the health of the consumer, whether he or she smokes or has a history of family illness. Despite the best intentions, therefore, actual information is not available before the consumer can accept the policy. To have the availability of the full information with the cooling off notice is adequate for the consumer as he or she still has ten days in which to cancel the policy. This could be extended to a longer period, if the Minister so wishes, to ensure that the consumer has adequate time to consider the full costs of the policy. PIBA, IBA and the consumers association are in agreement on this point and, accordingly, I commend this amendment.
Senator Coghlan's amendment seeks to amend section 43(b) but that section is based on agreed and mandatory provisions in the third life directive. These provisions were originally implemented in Irish law by the 1994 life framework regulations. However, we are restating them in this Bill for clarity and coherence and revoking the relevant section of the 1994 regulations in section 14 of this Bill.
I cannot accept this amendment because the provisions of section 43(b) are agreed mandatory minimum EU standards. We have already agreed this in previous legislation and we are restating it in this Bill to maintain consistency and clarity. We have already accepted it in the third life directive, through our own life framework regulations and, consequently, we must accept it here.
I was concerned on Second Stage that we were going beyond European requirements and I question the need for this provision. However, I will withdraw the amendment in light of the Minister of State's sincere comments.
I thank the Senator for withdrawing the amendment. I give him and the House an assurance that we will, in the disclosure regulations, provide that where certain information cannot be provided at the point of sale it can subsequently be provided at the beginning of the cooling-off period.
I am grateful to the Minister of State.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 13, lines 27 and 28, to delete ", subject to section 108 of the Insurance Act, 1936, be provided in the English language" and substitute "be provided in both official languages of the State".
Ba mhaith liom an leasú seo a mholadh don Aire. Tá sé tábhachtach go leor.
Section 108 of the Insurance Act, 1936, refers to the provision of policies and copies thereof in Irish. However, this Bill restricts that provision to the English language. The simple approach would be to accept my amendment, namely, that the information be provided in both official languages rather than English alone.
The Minister of State at the Department of Arts, Heritage, Gaeltacht and the Islands, Deputy Ó Cuív, is trying to provide equality between both languages under the constitutional requirements and is to introduce a Bill to that effect. In light of this I would have thought the Bill before the House would provide that information be provided in both official languages of the State. Has the Minister of State consulted the Minister of State, Deputy Ó Cuív, on this issue and how does this provision fall into line with what he has been working on? My amendment would improve this provision.
Is dócha nach bhfuil focail Ghaeilge ann do na focail Bhéarla go léir atá san amendment agus nach bhfuil aon enthusiasm ar an Minister don obair seo.
I urge the Minister of State to accept this amendment. I was involved in a Supreme Court case 30 years ago where the court's decision depended on whether the wording was taken from the Irish. The case involved a ministerial order from 1938 and the case was in 1971. The Supreme Court's decision rested on the meaning of one word and the case was won on the basis that the Irish language version in the Constitution was taken as the correct version.
If this is the law of the land and the Irish language takes precedence in the Constitution, there is a need to explain why documentation should be provided only in the English language. There may be a valid reason why this should be the case. However, in a nation which values its heritage I would not like to see a provision in a Bill that information should be provided only in the English language and that the English language should be the language on which decisions would depend. I urge the Minister of State to accept this amendment.
Tá meas mór agam ar an nGaeilge agus is dóigh liom gurb í an teanga an seod is iontaí atá againn inár n-oidhreacht. Bheadh fonn orm aon seans a ghlacadh chun cuidiú leis an leasú seo atá molta ag na Seanadóirí. Ach tuigeann siad go léir nach teanga oifigiúil í an Ghaeilge ar mhór-roinn na hEorpa nó do Choimisiún na hEorpa agus sin mar atá ó 1 Eanáir 1973.
The amendment provides that insurers offering insurance in Ireland will automatically have to make documentation available in Irish and English. The existing provision means that documentation must be made available in Irish on the request of the client. Since 1936, Irish law has required that when a policy holder completes a proposal for insurance in Irish, documentation from the insurer shall be provided in Irish if the policy holder so requests.
The third insurance directive opened the entire European market to European Union insurance companies. Any new conditions to be imposed on insurers in any part of the EU would have to be justified, otherwise they could be seen by the Commission as a barrier to the Single Market. It could be difficult to justify the condition proposed by the amendment since only a small number of people in Ireland are likely to opt for receiving documentation in Irish. We have made official inquiries to the Irish Insurance Federation and have confirmation that, since 1989, only three people have asked for documentation to be provided in Irish.
I share the Senators' concerns as I have a deep commitment to the native language. These concerns may be alleviated by the knowledge that insurers operating in the Irish market are required to provide documentation in Irish when a policy holder seeks to complete the proposal form in Irish. The same applies to State bodies. If someone contacts a State body to obtain information it is mandatory for that body to provide that documentation in Irish and also to provide officials who can converse with the individual in our native language. That is as it should be.
Senators will be aware there are concerns about the cost of insurance. Due to mergers and acquisitions in Ireland and within the EU the number of players in the insurance market is shrinking. In other words, the number of insurers carrying the liabilities, collecting and reinvesting the premia and paying claims is constantly shrinking. We now have bigger companies but fewer competitors and this amendment could have a detrimental impact on competition and price. I am seeking to avoid any measures which might discourage new players from entering the Irish market.
As Ireland is a key exporter of insurance services, our overall national interest does not lie in introducing new barriers to trade but in supporting the free operation of the Single Market. Within the system we operate under the Constitution and under the 1936 Act the right exists for an individual to have business translated into and transacted through the Irish language. Any company operating in Ireland is obliged to provide such services and this protects the interest of the language and the right of the citizen and the consumer. Taking these reasons into account, we have to be positive and practical in how we frame legislation. If accepted, this amendment would create an impediment which might discourage further competition and the availability of products and options for consumers. As legislators that would be an unwise step to take.
I appreciate the point made by the Minister of State that only three requests for documentation in Irish have been made since 1989. In those circumstances the use of both Irish and English would seldom occur. However, has any other legislation put before both Houses included a provision to the effect that information specified in insurance policies or copies thereof, shall be provided in the English language unless there is a specific request otherwise? This is an exclusive statement which inserts into legislation that no insurance company can provide information in Irish unless requested, even if it wishes to do so. That is my reading of it. The Bill uses the words "subject to section 108 of the Insurance Act", but that section makes provision for a case where somebody who fills out the form in Irish requests the information in Irish. Unless that request is forthcoming, does that mean that the company is not in a position to provide information in both official languages of the State?
I do not remember ever seeing a provision of this nature. It is unique in legislation which has come before us and I wonder why the Minister feels it should be here in this form.
I listened with interest to what Senator Costello said. I am not sure if there is other legislation where we specify this but, as Senator Mooney pointed out to me, subsection (2) of section 43C certainly incorporates options for people.
The purpose of section 43C(1) is to ensure that products for consumption by the citizens of Ireland must be provided in the English language, the idea being that we would attract competition into the marketplace. If that competition comes from the European Union, rather than have the documentation provided in the official language of the country of the company providing these new products and creating confusion in the Irish market, there would be an obligation in Irish law for them to provide the products in the English language in order that everybody could understand them and consequently that such companies could not tell the European Union that Ireland was discriminating against them by not letting them produce the products in the official language of the country of such companies. Under the principle of subsidiarity within the directive, we have the right to do that and we have chosen to do so here to ensure there is no doubt whatever about future opportunities for new companies whose products come on the market, but they must fulfil this condition in doing so.
In order to avoid any misrepresentation in this matter, if an Irish citizen wishes to have documentation in his or her language of first choice, which would be the Irish language, and if he or she specifically requests that information from an insurance company, irrespective of the country of origin of that company, will the Minister of State clarify that this law would not prevent this from happening?
I appreciate the Minister's explanation. I had not understood the objective of this. This is to stop a German company, for example, coming into Ireland and stating, "Here is an insurance policy. Never mind that it is in German but here is what it means." It forces a company from a country which uses another language to provide an English translation. I had not understood that and now I understand why the Bill stipulates that it be provided in the English language.
On Senator Mooney's question, I am not sure he is correct. If a person asked that German company for an Irish language translation of the product, for instance, and the company refused, I do not think the company would be breaking the law. I do not think companies are being forced by law to provide everything in the Irish language and therefore Senator Mooney is probably not correct.
It would not be right—
I did not offer a solution. I asked the Minister of State for clarification.
I am sorry, I apologise. If the Senator was being rhetorical in suggesting that the law should make such provision, I do not think we could support it. It seems to me that if every commercial organisation trading in Ireland was forced to deal with every customer in a second language, it would be hugely costly. In the light of inflationary pressures, it would not be feasible.
I thank the Minister for his explanation. I understand it correctly now. I would like to believe that a company would respond to its customers by providing them with products in whatever language they wanted, even if that language was not Irish. That would make good commercial sense. I understand the objective of the Bill and I support it.
What Senator Mooney said was correct. My interpretation of section 108 is that if an Irish person completing an insurance form requested that the communication be in Irish, then the insurance company would be obliged to communicate in Irish. That was my reading of it. I do not know whether that is a fair practice. I am sure that Senator Quinn, as a businessman, would find it difficult to deal with all such people who might write in Irish to his company regarding its business, although I am sure that is a different matter.
It seems that the legislation, in section 108, is quite restrictive in requiring that a person who completes an insurance form must be dealt with in the Irish language if he or she so requests. That is the person's right under the Constitution. The Minister will probably clarify it to that effect.
Is it the case that the Bill provides that every company, including Irish, European and English companies, entering the Irish market shall, unless there is a specific request to the contrary regarding the Irish language, provide all its information only in English? Is that the interpretation to be taken from the words "provided in the English language"? That is the matter about which I am not sure.
Is there a restriction on companies providing it in another language? If companies so wish, may companies now choose to provide it in Irish, English or German, for instance, or does the legislation state that it must be provided at least in English, that English is one language in which it must be provided? That is not clear from the Bill because the 1936 Act states specifically that the Irish language must be the only language in which a person is dealt with if the person makes such a request and completes the form in Irish.
Most of the interpretations outlined in the Senators' contributions are absolutely correct. Senator Mooney is correct when he stated that citizens have the right to request that business be done in the Irish language and companies are expected to oblige them by doing that. Of course it would be very difficult to prosecute for not doing so under competition or EU law because Irish is not an official language of the European Union.
Senator Quinn is absolutely correct. It is a matter for the companies to choose to provide the documentation in Irish if they so wish. As he will be aware, there is a large amount of commercial activity in Gaeltacht areas. Údarás na Gaeltachta has a strong record of industrial activity and has been successful in the Gaeltachtaí around the country. I do not live there myself and therefore I cannot confirm this is the case but I presume the people who do business in that area complete documentation in Irish in order to make sure they maximise their market penetration.
On the point Senator Costello raises, the legislation states that a company must provide documentation in the English language. That means they must do that and can be prosecuted for not doing so and forced to do it. There is nothing to prevent them from providing documentation in another language used in the European Union if they so wish. It is a matter for them to decide what the market will absorb or the capacity to attract business which the use of another language would have in the market in a particular functional area. If there are enough Germans in Ireland who want to do business in German, I presume there will be companies which will want to provide documentation in German and the same can be said of French and other languages. I am not sure about that but certainly they must provide it in English. We are protecting the consumers of Ireland by specifying that it must be in the English language per se. Then it is a matter for the company to decide whether it wants to provide it in other languages.
Section 43C(2) means that they may provide documentation in another language if requested to do so. That is in answer to a question raised by Senator Costello or Senator Mooney. That is exactly what it means. If they wish to provide documentation in another language if requested to do so, they may provide that documentation. Therefore it gives them the right and flexibility to do so. The legislation acknowledges that this situation prevails and that the companies can do so. However, we must be specific. The legislation is specific in that at a minimum English language documentation must be provided by all companies providing insurance cover in Ireland.
I do not wish to pursue this and I fully appreciate from where the Minister of State is coming on this matter. Am I correct in saying it is a rather sad acknowledgement of the commercial reality that, in the very competitive area of insurance and assurance provision, the law will now require of companies within the European Union, among the many legal obligations they have, that the language of their product shall be in English? That is what is being enshrined in Irish law. That is essentially what this is about.
It should not pass without recording not so much the death of the Irish language but a somewhat stark commercial reality that 99.9% of the people use English as their preferred language and that in order for commercial activity to operate, the Government, the instigators of the legislation, has faced this reality that it must be in the English language. There is not much point, as Senator Quinn said, having it in German, French, Danish or any of the other official languages unless it is so requested. In terms of a company competing in the Irish market, it must be in English. I feel somewhat sad that is the reality.
I wonder – the Minister of State touched on it briefly – about prosecutions in light of the precedent that has been set in other areas where citizens dealing with Departments have taken the Government to court to ensure that, if they so prefer, their business will be dealt with through the Irish language, which has equal status with the English language in the Constitution. Without anticipating anything and speaking rhetorically, one wonders whether a citizen will decide to test this in the courts if an insurance company does not comply with a request for documents to be in Gaelic.
I do not want to prolong the discussion but, like Senator Costello, who commenced this by tabling his amendment, I confess it is the first time I have seen this in any legislation coming before this House, that is, that English has become the preferred language of business and commerce. This is no reflection on the Minister of State and the Department but I think it is an acknowledgement of the commercial reality in which this legislation will operate.
I understand the sentiments expressed by Senator Mooney but we should see this as a positive strength of Ireland. English is the universal language of the world. It is said that the English brought their language to Ireland and that we gave them the literature attaching to that language. They might not be prepared to accept that, but the great literary figures we have had in the English language over the years certainly stand to our credit. It also shows our universal strength in that we are outstanding users of the English language, we can communicate with the world and we are clear in our communication. We have used this to maximum capacity in terms of our economic growth over the years. Some of the great industries in Ireland today are basically here because of our capacity to use, communicate, market and to do business quickly throughout the world in the English language. That gives us a great intro no matter where we go and it opens up many opportunities, not only in Europe where there is a diversity and multiplicity of languages but elsewhere.
On the other hand, our Irish language gives us a special badge of identity, a special uniqueness, and it is important that we maintain and sustain that. As a result of that, the Constitution, the 1936 Act and the goodwill we hope still prevails in the commercial community for sustaining the language, those who want to use that language on a regular basis should not be debarred from doing so. We must be practical. I see this as all inclusive rather than exclusive and I am confident it is good legislation.
Question, "That the words and figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
NEW SECTION.
I move amendment No. 21:
In page 14, between lines 26 and 27, to insert the following new section:
43DD.–Regulations under section 43D shall prohibit an insurer from seeking, obtaining, using or retaining information relating to genetic testing of an insured or proposed insured.".
I consider this to be one of the more important amendments being proposed because it deals with a relatively new and important issue, that is, genetic testing of an insured or proposed insured. My concern is that the insurance industry could effectively create something of a genetic underclass by insisting on information in relation to the genetic testing of an individual in order to determine their liability and creditworthiness for insurance on the perception that genetic testing would provide reliable information on a person's likelihood to contract a particular illness or disability. A development of that nature would be reprehensible. I am trying to deal with it both in terms of the industry seeking that as a prerequisite for insurance and using or retaining on a database any information that might become available on an insured or proposed insured person.
The Minister of State's ministerial colleague, the Minister for Tourism, Sport and Recreation, Deputy McDaid, also raised it in the context of the equality legislation brought before the Houses when he was Opposition spokesman. He tabled a similar amendment to the legislation at that time reflecting his concern about genetic testing being a prerequisite for certain insurance products. In that respect, it is a concern which has been expressed not only by the Opposition side but also by the Government side.
Previously, some in the insurance industry would have seen cancer as something which made a risk virtually uninsurable, yet modern medicine means that roughly 50% of cancer diagnosed is cured and people go on to live a normal life. It would be the thin end of the wedge if we were to use genetic testing as a criterion of which the insurance industry would take advantage and thereby probably rule out, as it would see it, a large percentage of the population from the benefits of insurance at a very early stage.
It is an important issue which needs to be reflected in legislation. We need to put down a marker and this legislation is the area in which to do so. It would be worthwhile if the Minister seriously considered this amendment and took it on board, perhaps not precisely in the terms we have here. Perhaps a provision of this nature could be introduced on Report Stage.
I strongly support this amendment. It is a most important issue. The Minister of State may have seen letters in The Irish Times recently from the department of genetics in Trinity College, Dublin, and the department of genetics in Our Lady's Hospital for Sick Children, Crumlin, urging us to introduce legislation preventing insurance companies from asking for genetic information from any of their clients.
There are several reasons this is extraordinarily important. Even in diseases which have a genetic background, approximately one third of them are due to de novo mutations, so one third of the cases which arise will not be familial. The next problem is that those who have a familial history of some condition may decide not to undertake testing because they will be asked by an insurance company if they have had such a test. It might be advisable for them to have the test because they could perhaps change environmental conditions in their lives which would mean they would be less likely to develop this genetic condition. It is most important if someone has a genetic predisposition to something like, for example, polyposis of the colon that they undertake testing. If people change their diet and undertake a regular colonoscopy it may ensure they will be less likely to develop the condition.
The third reason the amendment should be accepted is that some people may come from families who have a serious genetic condition which cannot be altered and which may not develop until later in life. If people are forced to have genetic screening they will know that they are likely to develop the condition in 20 or 30 years' time. Huntington's disease does not manifest itself until people are in their forties. If people in their twenties were obliged to have such testing, it would be very difficult if they knew they were likely to develop the condition for which there is no cure to date.
In an edition of The Irish Times Professor McConnell and his co-workers, together with Dr. Andrew Greene and his co-workers, pointed out that it is only in the United Kingdom this issue is being pressed and that many countries in Europe and many states in the United States of America do not seek genetic testing. Given that there are many parent companies in this country of companies in the United Kingdom, it is most important to make it plain that this requirement will not be acceptable because it would have a deleterious effect on the health of Irish people. I know insurance companies are entitled to take into account various risks, but there is also community risk.
Environmental factors are much more important than genetic factors. We would all like to blame our various ailments on our genes but they are far more likely to be due to environmental factors such as smoking, eating and drinking too much and so on. These factors are far more likely to militate against health insurance. If legislation such as this is not enacted, we will be asking people to disclose the most private details of their gene make-up.
I fully understand the Senators reasons for tabling this amendment and the discussions on the issue are timely. The issue of genetic testing is of great importance because it brings together a number of very serious public policy concerns, which have been alluded to by Senators Costello and Henry. These include public health issues, with which Senator Henry often deals professionally and otherwise, and the privacy of personal data.
Senators may be aware that I responded in the Dáil last night to a question on the Adjournment on this issue. Let me repeat that I have asked my officials to begin a process of consultation with interested public bodies to examine the issue surrounding the possible use of genetic data by the insurance industry with a view to determining what action would be appropriate. The officials were consulted by the insurance industry about a proposed code of conduct to be followed by the industry in Ireland in relation to the use of gen etic tests, which I understand is quite encouraging in its terms. I am confident the code of conduct, after due consideration and deliberation, will be equitable and fair to everyone.
While I share many of the Senators' concerns, I cannot accept the amendment at this time. When the process of consultation undertaken by my Department is completed, and taking appropriate account of the insurance industry's code of conduct, I will consider what action will be necessary at that time. I read the letters in The Irish Times, to which Deputy Henry referred, and I appreciate the fact that Senator Costello tabled this amendment, which is timely. As Minister with responsibility for science, I will have another detailed look at this aspect and, as Minister with responsibility for commerce, I will look at it from the insurance industry point of view.
I appreciate the fact that the Minister's Department will have further consultations on the matter. Can I take it from what the Minister said that following consultations and examination of the issue, the code of conduct will be put on a statutory footing and not self-regulated? It is acceptable if he gives a commitment to come forward with proposals to both Houses in relation to the outcome of the consultations. I would welcome his response in that regard.
I cannot look at this matter from the narrow point of view of insurance only because we are talking about consumers. Consequently, the broad gamut of activity within the Department, which is a large Department covering a huge number of interests in the consumer area, must be taken into account. The Director of Consumer Affairs would have a detailed interest in this whole area. Therefore, I have asked my officials to examine this activity. There will be discussions within the Department and every aspect will be examined. When I receive the relevant report from my officials on the code of conduct issue, I will make a decision on what action should be taken.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 18, line 36, to delete "offence.'"and substitute "offence.
(2) The court may decide if it is in the interests of justice to do so that an insurer who fails to comply with a provision of regulations made under this Part may thereby be disentitled to repudiate liability under the contract of insurance concerned, notwithstanding default or omission on the part of the insured.".
I am seeking to make it an offence for insurance companies and brokers not to give information. If we say that non-compliance could limit their ability to repudiate a contract of insurance, this is something about which they would think far more seriously.
This amendment seeks to introduce an additional penalty for insurers who fail to comply with the disclosure regime, viz. that they would not be able to repudiate liability in respect of that contract of insurance even if the insured had failed in his or her obligations. I am opposing the amendment because I fear it would increase litigation and add to the costs borne by ordinary policyholders. In such cases it would presumably be necessary to satisfy the court that failure to comply had occurred. Moreover, in every case where an insurance company was attempting for good reasons to repudiate a claim, such a provision would encourage the invention of accusations of failure to comply. In other words, we would be compounding the legal process and creating confusion. This would have adverse consequences on costs and the length of time it would take to conclude litigation and would add to the costs borne by ordinary policyholders. I do not believe such legislation would be positive.
However, I have some sympathy with the idea underlined in the Senator's amendment. It appears that occasionally insurance companies use quite minor oversights by their clients to repudiate full responsibility in the event of a claim. This is one of a number of consumer issues which merit further consideration once the Insurance Bill and disclosure regulations are in place. My Department, with the Director of Consumer Affairs, will be looking at this issue which will have to be dealt with in subsequent legislation.
I welcome the latter part of the Minister of State's response. He will be aware that on Second Stage I provided an example, based on personal experience, of precisely what he has outlined, whereby an insurance company used a minor element of its policy under exclusions to deny liability. This is in the travel insurance area. Since I made those remarks I have had discussions with representatives of brokers. I was talking about insurance companies, not insurance brokers. There is a clear distinction which, as the Minister pointed out, is somewhat blurred in the public mind. I am pleased to hear what the Minister has said and I hope he will follow through on it.
The mis-selling of travel insurance is a scandal. It has been discussed by the Consumers Association of Ireland and by various Departments but nothing has been done about it. Unscrupulous insurance companies operating outside this country are selling travel insurance to consumers who often feel obliged to purchase the products and do not examine the small print. These clients often find their claims rejected for the most minor details. It is sometimes said that the devil is in the small print, and the consumer often suffers because of this. I am pleased the Minister has indicated his intention to tackle this problem, which is not confined to travel insurance. I look forward to his proposals in this area.
Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."
Subsequent to remarks I made on Second Stage, representatives of the Professional Insurance Brokers Association, which has been in regular contact with the Minister, put forward a number of suggestions on the question of disclosure of information. I do not speak for the brokers' association but in the absence of my colleague, Senator Cox, I undertook to raise its concerns during this debate. The Professional Insurance Brokers Association acknowledges the positive response it has received from the Minister in its dealings with him. He has accommodated the association in so far as he can on a wide number of issues which have been of concern to it.
The issue I raised on Second Stage is also of concern to the association. It is the question of restrictions on giving advice on products similar to products for which a broker holds an agency. Brokers argue that it is unsatisfactory to ask brokers to restrict themselves to give information as the consumer will assume he is being given advice. They argue that it is contradictory to use the term "restricted" in relation to an independent broker. They go on to make the point that independent brokers give general advice in relation to mortgages and death claims and advise people to contact solicitors, make wills or seek legal advice in relation to separation or divorce. They argue that this is part of the added value a consumer receives from a broker and often protects the consumer from a larger institution.
I cited my experience of contacting a number of UK companies. I discovered that if, for example, an investor has an interest in investing in the European market and contacts one of the large unit trust companies which have a range of financial products tailored to an investor's particular interest, under UK law the company can only offer information in relation to the range of products. When the investor asks which product he should invest in, the company is precluded by law from giving that specific advice. I was reminded of my colleague Senator Quinn in that I have often asked the advice of one of his employees in Superquinn as to which product I should choose and I have always been offered some indication, although a product may not actually be endorsed.
The distinction between information and advice is blurred. I would accept the bona fides of independent brokers in this area. There should be some flexibility when clients approach them seeking to purchase insurance products under this legislation. The law, as proposed, would restrict them considerably and could cause problems.
I cited the example of Senator Quinn's company to illustrate that most people who are not familiar with a product, whether insurance or food, tend to seek advice. This section could cause difficulties for intermediaries. I ask the Minister to clarify the question of disclosure of information.
Does the Bill propose that advice will no longer be acceptable if a consumer goes to an independent broker? Will brokers be required to operate within very strictly regulated guidelines in relation to how they sell their products?
Section 43F(1) (a)(v) of section 7 states that an insurer may provide a written statement which shall specify details of any additional amount payable by reason of sex, age, medical status, place of residence or any other matter.
Is this not an invitation to introduce extra loading? In what circumstances is an insurance company entitled to impose an extra loading in relation to sex, place of residence or medical status? This section appears to imply that such loading can be justifiable. Will the Minister clarify the circumstances in which additional loading could be imposed?
A number of issues have been raised. I thank Senator Mooney for his kind words. He referred to the Investment Intermediaries Act, 1995, which was a Central Bank Act guided through the Oireachtas by the then Minister for Finance. The Act defined investment instruments, investment intermediaries and the different status of each intermediary. In insurance law we have no option but to ensure that we maintain consistency with that Act.
The status is a matter of choice for the professional who is giving the advice and acting on behalf of the various companies as an intermediary. An insurance agent must have not more than four authorisations from four different companies to operate as an agent. An insurance broker cannot have less than five to be a broker. A restricted investment intermediary is restricted in terms of what he or she can do. However, there is nothing to suggest that they must be in that category. It is a matter for them to decide what risk they want to take, what investments they want to make, what services they want to give, etc.
The purpose of the Act was to be inclusive rather than exclusive. The idea was to include everybody who wanted to purvey products, protection policies and investment opportunities. The Act was careful to ensure that there was no exclusion and that if there was a differentiation, it was clear. This was to ensure that people were not disenfranchised or discommoded and that their livelihoods would not be eroded. This was the reason for the Act. It defines the different types of investment people, whether agents or brokers. It defines the types of policies and instruments and it also defines the investor. We must ensure that this legislation conforms with that Act.
Regarding the point raised by Senator Costello, I did not know that there was loading based on one's sex. There is a downloading or a mitigation of premium for women who can avail of special "lady cover" policies because they are considered to be more responsible and have fewer accidents. Certain incentives are provided by companies to encourage women to take that type of cover.
The Bill does not mention downloading. It refers to an additional amount payable by reason of sex.
To which section is the Senator referring?
Under section 7, section 43F(1)(a)(v) on page 17.
That states: "details of any additional amount payable by reason of sex, age, medical status, place of residence or any other matter;".
It appears to be an indication of extra loading.
Regarding regulations of non-life insurance, section 43F(1) of section 7 states: "Without prejudice to the generality of subsection (1) of section 43D, regulations made under that subsection may provide in relation to non-life insurance:". This means the regulations that will be introduced can refer to all these issues. People must be told that there is a loading on them. We want to ensure that there is total sustainability and transparency. Under the subsection, the regulations may require disclosure of details of loadings attributable to the client's sex, age, medical status, place of residence or any other matter.
The notion of rating risk according to sex and age is familiar. There are indications that insurance may also be able to rate risk according to place of residence and credit rating. At the least, if insurance were to use such ratings in the future, the clients must know about it as a result of this legislation. The provision relates to disclosure. It will require disclosure where the factors of sex, age, place of residence etc. are used because they are part of the underwriting criteria.
I have no power to intervene in the underwriting. The Department, the Government and the State are debarred in that regard because of the European Commission's directive that the market must rule. The Senator asked about loadings. The company must decide the risk it is fit to carry on any particular individual or policy in a particular case. It also has a responsibility to ensure that it has a sufficient liquidity ratio and the necessary reserves to meet any subsequent liabilities or claims the client may make against it.
My job as Minister of State with responsibility for commerce is to ensure that there is competition in the market, that there are underwriters and undertakings which are prepared to provide cover, that these underwriters and undertakings have the necessary resources, that is, liquidity and cash resources, to make the necessary payments if claims are made against them and that they are able to provide cover at a reasonable price commensurate with the liabilities they expect to have. The market rules as such and I cannot intervene or interfere in that area. It is a matter for the company.
From their experience in the marketplace, they are able to decide where the risk is greatest. They have the right, if they wish to exercise it, to make decisions within certain parameters. This provides them with market research information based on the market and the frequency of claims from a particular area for a certain reason, for example, in terms of a type of person or vehicle. They make their own decision but they must operate within the European directive. We cannot interfere with their decision.
The section is an enabling provision to allow us to make the necessary regulations. It refers to what can be done at any particular time to ensure full and absolute disclosure. Each citizen has the right to know if he or she is being discriminated against under any particular guise or if he or she is being charged a particular price for a specific reason. If he or she considers that there is an unnecessary loading, he or she must be told the reasons for the loading.
I understand the Minister of State's point about the disclosure of any extra loading that might be imposed by an insurance company. However, the Bill selects and identifies certain areas in that it refers to an additional amount payable in respect of certain matters. The Bill focuses attention on those as relevant or appropriate areas that might be subject to extra loading.
If it was considered proper in terms of accountability and disclosure – I understand there must be full disclosure of any information where there is extra loading – rather than selecting sex, age, medical status or place of residence, why was the section not couched in terms of an obligation under the regulations on the company to give a written statement giving details of any additional amount payable by reason of any matter? It should not refer to only a few areas which are highly questionable in terms of equality legislation.
The selection of those areas appears to be discriminatory on the basis of the language used in the provision in terms of identifying them as deserving of loading. I ask the Minister of State to reconsider this matter and to accept that there can be full disclosure of information and account ability without specifying areas which are highly contentious and volatile. These areas could be misused by insurance companies if there is a focus on them as ones that might be deserving of extra loading.
I hope I am on the right line in relation to the provision of information under section 7. The Professional Insurance Brokers Association said that, as indicated on many occasions, providing policy specific information to the consumer before a policy is underwritten is not practical. It can only be generic until the risk is underwritten. It continued that providing this information at point of sale would lead to misunderstandings and it would be preferable that all up-front information supplied is generic. Inevitably this will happen over time anyway.
Although there is no reference on this information from the PIBA, I assume it relates to Senator Costello's point about section 43F. I do not share that view. I do not see what is wrong with a client who wants to take out an insurance policy going to an insurance intermediary and being told they must buy a pig in a poke. The pig may not be fully in the poke until such time as one signs up but that is the best offer in the meantime. I am sure the Minister had discussions with the insurance brokers on this issue and I am curious to know their concerns. They seem to dress up their argument as an attack on consumer rights and interests. I do not agree with that conclusion. I know Senator Costello's point is specific to section 43F of section 7, but perhaps the Minister will outline his views on the issue of disclosure.
I accept and understand Senator Costello's point. However, we must be clear about what we intend to do. The disclosure regulations envisage that some of the information given at the point of sale will be generic with a choice of specific information before commencement of the cooling off period. We are pleased the industry does not appear to have a problem with that.
I agree with Senator Mooney that the product is only generic from once it is repeated. There are always new products coming on stream and it is important that our legislation ensures that maximum information on those products is available to the consumers so they can make an informed choice before making an investment or taking a risk with a product. After that it may become generic if it is tweaked by another company and a new similar product is put on the market. It may have advantages or disadvantages, depending on the relativity of that product to the client at the time.
Senator Costello said we are assisting the industry to create these loadings. However, that is not the case. This situation has prevailed for a number of years. It was not obvious to the client that there was a loading. They knew they were paying a higher premium than people of a similar age or profession in another part of the country. As a result of complaints to the Department, we took up the matter with the industry and we received a response which outlined factors such as location, accident frequency, highways, where people lived, what they used their cars for, the distance they travelled, the type of jobs they had and the risks involved. Decisions were then taken to load amounts on people. Perhaps after our efforts, some of this information was made available. However, some of it may not have been obvious to anyone. Unless a person knew what he or she was looking for, he or she may not have got the answer he or she wanted.
We have had many meetings with the industry. Since I came to office in October 1997 I have met the top management of most of the companies. I have dealt with the industry, the federation, the different associations and professional bodies, the brokers association and the agents. I have addressed the annual general meetings of every organisation, which was not done before. We met the organisations in the industry over the years and we told them what we wanted to achieve. We tried to bring everyone on board and we have succeeded in doing that.
The purpose of this legislation is to eliminate any latent or hidden reason for loading additional amounts on people by ensuring inclusion under the disclosure regulations. That will give comfort to the consumer and it will make the cost of the product or premium more transparent. It will ensure that the undertaking which is providing the cover, the intermediary who is conveying the cover and the consumer who is the beneficiary of the cover will know from where they are coming, what it costs and the reason it costs that amount.
I agree with the Minister of State and I do not want to labour the point unduly. However, I am concerned about generic disclosure and listing specifics. If the Minister of State selects four areas which may attract additional loading, which he has done, he is telling the insurance industry that written information must be provided on the reason extra loading is required in these four areas. However, there is almost a presumption that they deserve extra loading.
One could equally add profession to the list of sex, age, medical status and place of residence. The fact that someone is a docker or a Senator is relevant. Why does the Minister of State not include profession? Marital status could also be included. The fact that a person is single or married is relevant in many non-life insurance policies. Why has the Minister of State selected four areas if he is talking in generic terms? Why can the Bill not state: "details of any additional amount payable by reason of any other matter"? That gives disclosure on generic terms. It is unfair to draw attention in the legislation to four areas which may attract extra loading. I urge the Minister of State to reconsider this matter between now and Report Stage when he might introduce an amendment.
I will think about it between now and Report Stage. I respect the Senator's point and the contribution legislators make when enacting good laws. I have tremendous regard for Seanad Éireann which has not received due regard for the huge contribution it has made to making good laws.
Section 43F(1)(a)(v) states: “details of any additional amount payable by reason of sex, age, medical status, place of residence or any other matter”. If a person goes into an insurance company in the morning and applies for cover or an investment product, he or she must give information on his or her sex, age, medical status, place of residence and many other things. If a person is a certain age, he or she must have an optical test. If a person suffers from a particular disease, he or she must disclose it.
If a person does not disclose it, he or she invalidates his or her insurance cover. A client may presume he or she is getting cover at a reasonable price based on the status of that client and the detailed information provided. However, he or she may discover he or she is paying an unnecessarily high premium. We want to be able to say to the industry through the disclosure regime that it must tell people it is loading them because they are of a particular sex or age.
As regards the motor industry, insurance is provided at a particular price for people aged between 17 and 19. However, there is a different price for people between the ages of 19 and 21, 21 and 23, 23 and 25, 25 and 30, over 30 and over 40. Age is important. According to the industry, the risks for a married man within those parameters may be lower. A single woman within those parameters may be a lower risk than a single man in a corresponding age bracket. This is the way the insurance industry regulates itself in adjudicating the premiums it charges for the different covers it provides. Within that context we want to segment the information disclosed about these costs. We want the individual to have the right to ask why they must pay the price set, whether it be for cover for a house in a particular location, a motor car in another location or some other type of cover or investment product required.
Under equality legislation the insurance industry must justify such loading with actuarial data. It must be able to say actuaries have done the research, have computed figures and, based on their advice and information, they have concluded that X, Y or Z must be charged for systems one to three, or whatever. Unless we specify, we will not be able to create the subsidiary legislation through the regulations. Reference is made to any other matter because there may be other eventualities, reasons or cases. We do not want an escape clause.
Am I right in suggesting that one must look at the overall package, to use the insurance term, in the context of the proposed addition of section 43F to the Insurance Act, 1989, as distinct from considering one aspect of it? All of the other areas, for example, the amount of the discount and the amount of commission, pertain to questions raised with insurance intermediaries by clients rather than insurance companies. I do not suggest there is anything incorrect in Senator Costello's approach, but it is on the basis of these being the questions the insurance companies ask of the clients, whereas the package as a whole relates to the obligations of the insurance industry to the client. Does the Minister of State concur that the client, the consumer, is ultimately being protected by the package in its entirety, rather than one element of it?
The totality of measures proposed in the legislation seeks to ensure there is no opportunity for non-disclosure to the client.
There is no meeting of minds on this.
Question put and agreed to.
Sections 8 to 15, inclusive, agreed to.
SECTION 16.
Amendment No. 23 not moved.
Question proposed: "That section 16 stand part of the Bill."
Expressing its concerns, the Insurance Brokers Association refers to "a considerable blurring at the margins of investment and insurance products". It goes on to point out that insurance intermediaries only sell insurance products, not pure investment products, for example, stocks and shares. Insurance products also carry a benefit on death, while non-insurance investment products do not. While the association would agree that the same regulator should cover both types of activities, it believes the regulatory regime should be tailored according to the risks involved and the proposed regulatory rules are still tending towards over-regulation of independent insurance brokers. Does the Minister of State have any comment on that? Is he concerned that this legislation is weighted against the independent brokers who, in the main, are operating in one person businesses?
I hope I am not incorrect in assuming that the Minister of State's background was as an intermediary of sorts where he had to pay his overheads and raise his family. Nobody likes regulation and where consumer interests are concerned they always tend to regard it as being over-regulation. Could the Minister of State reassure insurance brokers that the heavy hand of regulation is not bearing down too heavily on their sector, to the detriment of the industry as a whole?
I want effective, fair and equitable regulation. I do not want to over-regulate. We have looked at this in great detail. I believe it is accepted across the country that while the insurance industry was self-regulating it did not work. A number of high profile cases led to tragic consequences for the good name of Ireland, the insurance industry and people acting as brokers in Ireland. We want to eliminate that for the future.
We have looked at the legislation of other countries, which is more detailed and aggressive than what we propose. We have considered this over a period of three years, which has allowed for fairness to all and the opportunity to change. We believe we have achieved a consensus between the legislators in both the Dáil and the Seanad and in the industry, including the brokers and agents. Ultimately, I do not want, nor have I wanted, to impose something on people. I wanted them to come through this process in partnership with us to ensure that we would be fair to all. By and large, that is what has happened. All legislation has advantages and disadvantages, but they are all relative.
Section 16 defines the terms of insurance agents, insurance brokers, insurance intermediaries, insurance undertakings, investment instruments, insurance policies, investments in limited partnerships, the investment business firm, the investor and the limited partnership. What are termed "restricted" people have the special privilege of not having to demonstrate capital adequacy to anybody, be it the State or the consumer. This privilege is extended to them under the Investment Intermediaries Act, 1995, on the basis that they will only advise on and sell the product of producers for whom they hold appointments. They have direct appointments from product producers and they specialise in promoting those products. They sell those products only and cannot transgress from that by virtue of the status they hold. That is their decision. Nobody placed them there. They decide that is what they want to be. It allows for competition in the marketplace. Senator Coghlan understands such competition very well and I am sure he agrees with it.
There is a blurring between the client and the product designer and producer. We have decided to deal with it through the disclosure regulations and we are confident we will remove that grey area and ensure there is a sustainable product with absolute transparency to consumers.
Question put and agreed to.
SECTION 17.
I move amendment No. 24:
In page 25, line 36, after "appeal to" to insert "an arbitrator appointed by the Minister and".
Under the Investment Intermediaries Act, 1995, it is envisaged that there might be a need for an arbitrator and there is provision for one to deal with situations where a broker may believe he is unjustly treated. I feel strongly that an appeal to the High Court should be the last resort and, accordingly, this amendment provides for an arbitrator to be appointed by the Minister. It makes good sense.
The purpose of this amendment from Senator Coghlan is to provide intermediaries with an avenue of appeal to an arbitrator as an alternative to the court in respect of conditions imposed by the Central Bank. These conditions apply equally to fully authorised firms as well as those firms in a transitional period until they are fully authorised. In other words, the Central Bank has an option, through the Investment Intermediaries Act, 1995, to allow these companies to become authorised firms, and there is also a transitional period. We all have to crawl before we walk. We get an opportunity of coming into the marketplace and subsequently we become fully authorised.
The conditions that may be imposed are in place to protect consumers. Experience has shown that the power to make such conditions is, unfortunately, necessary from time to time to protect clients. The purpose of these provisions is to ensure equality of treatment as between firms that are authorised and those that stand authorised and are therefore free to transact business pending the acceptance or rejection of their application to become authorised firms. It is then reasonable that both types of firms should be subject to the same conditions. We would not want somebody to see an opportunity to make a killing over a short period, during which period they were not authorised but stood authorised. They could collect a lot of money from many gullible people and may head for the Bahamas or somewhere else with it. We would have a serious situation on our hands, so it is important that there is absolute equity and that nobody is given an opportunity to escape the law.
These conditions are already imposed by the Central Bank, under the Investment Intermediaries Act, and it is important that we continue to maintain the consistency through the Insurance Bill. Consequently, is oth liom nach mbeidh mé in ann a leasú seo a ghlacadh.
I appreciate what the Minister is saying. He is allowing one situation under the Investment Intermediaries Act but he is not prepared to allow this as a first step as opposed to a last resort in the Insurance Bill. I do not understand the logic of that.
I am not responsible for the Investment Intermediaries Act. That is a matter for the Minister for Finance, the Central Bank and the Department of Finance. My responsibility is to do with the insurance industry and I want to make sure that it has absolute equity, that there is no dual option, that everybody abides by the same rules, that the system is the same and that there is nothing arbitrary whereby a person would have an alternative to court in going to an arbitrator. We would have to create a new system. Who would be the arbitrator? How many people would be needed to run that office? It is something that would be unwise and unnecessary to create. To return to what Senator Coghlan said, as time evolves it may be proven that we need to go down this road and if that is the case, perhaps it is something we could consider in the future.
I am allowing for the arbitrator to be appointed by the Minister.
I am grateful for that trust and that honour but as of now I have no desire to appoint an arbitrator in this area.
Is the amendment being pressed?
No, but perhaps the Minister will keep it under review.
I do not want to delay matters, and I am sure the Minister is pleased that Senator Coghlan has once again used his undoubted logic in this area. Am I right in saying – Senator Coghlan would have expertise in this regard – that the main thrust of the objection of the Professional Insurance Brokers Association is based on cost and that it is not necessarily about the principle of this section? It is about the fact that they will have to appeal a court decision to the High Court. Will the Minister indicate whether he believes that this concern is valid? On my reading, the insurance brokers' proposal, as so well enunciated by my colleague, Senator Coghlan, is based on cost, not necessarily on an ideological objection to the existence of this law.
The application of common sense, which is often closely allied to cost.
Is it expensive? Taking this argument to its natural conclusion, if an appeal is launched against someone falling below the statutory obligations of an intermediary and if they have to appeal to the High Court, can the Minister indicate whether there are valid concerns, as expressed by the Professional Insurance Brokers Association, that such a burden would prove to be too prohibitive and may result in the intermediary not only going out of business but having his or her livelihood threatened as a result of incurring enormous legal costs?
If we had the arbitrator, the right to go to court would still exist. We can avoid all that because investment intermediaries, people in the insurance area, would be in contact with the Central Bank, and the Central Bank would be in contact with them, and it is only when that contact has broken down that action would be taken. The Central Bank would be a little like the Companies Office. The person would be notified of the transgression and given an opportunity to respond, and if he or she responds positively, his or her file is closed and everything is in order. If the person does not respond the Central Bank would have no option but to proceed down the courts line. If the person responds, the Central Bank would give the person an opportunity of producing the extra information required to fulfil the statutory criteria that is necessary to hold the right to operate in the particular area of activity. Consequently, I am confident, from my experience of dealing with the Central Bank over the years, that court would be a last resort. Court should be a last resort at all times and we hope that the number of occasions that will arise will be few. Obviously, depending on the gravity of the offence, some cases may be for the District Court while others may be for the Circuit Court. The appeals would be to the superior court, so again costs would come into it but we hope that will be in few cases rather than in many.
I did not quite understand the question of costs until it was explained. The Minister said that the Central Bank will act as the arbitrator.
He also said in an earlier response that if the position changed, he would consider it in the future. Is it not too late to consider giving the Minister power to appoint an arbitrator? That is probably what Senator Coghlan is looking for in the amendment. It would enable that to happen if such a situation arose. I understand what Deputy Coghlan is trying to achieve but I am not sure that the Central Bank could be regarded as an independent arbitrator in this case. That is Senator Coghlan's concern. I urge the Minister to find a solution which may be that the Minister would have the right to appoint an independent arbitrator, which is what Senator Coghlan is seeking.
I am grateful to Senators Mooney and Quinn for their contributions. As the Minister and Members know, I am simply trying to be practical and reasonable.
Senator Quinn is right. I could not have put it better myself. When I stood up earlier I intended to say that the Central Bank would be the arbitrator, in other words, it would act in an environment of arbitration, but it will be the regulator and it will have to be fair to everybody, although, by and large, it has been fair over the years. Before we go down the road of appointing an arbitrator – I accept Senator Coghlan's sincerity in this matter – we would have to have a thorough review of the legislation we are proposing here to ensure that all analogous situations would be covered. If it was proven that there was difficulty or friction with the regulator over a period of three, four or five years, we would have to examine that, but as of now it would be foolish to create a dual option when we will have a new regulatory environment under the Central Bank in which there will have to be trust and communication before anybody contemplates litigation. I am confident this can be addressed over time but it is not necessary to insert that caveat at this stage.
I will not press the amendment but I respectfully disagree with the Minister of State.
I was commending the Minister of State for having opened the door of opportunity in that he is talking about a thorough, ongoing review of legislation and that if practice dictates the need for change perhaps he will be open to that change. That is my interpretation of his remarks and, if that is so, I commend him.
I record my acceptance of that.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Section 18 agreed to.
SECTION 19.
Amendments Nos. 25 and 40 are related and may be taken together.
I move amendment No. 25:
In page 25, line 52, after "or approve" to insert "and the insertion of ‘and such supervisory authority shall further ensure that all such registers are also published by electronic means'.".
These amendments seek to bring a long-standing legislative practice into line with advances in technology and stated Government policy on using information technology to conduct the nation's business. This has been policy for some time.
The long-standing legislative practice concerns ensuring that certain information is, by law, open and available to the public. The word "available" is important. Long before the Freedom of Information Act, the need was recognised in many Acts to underpin the public's right to certain information. One mechanism for achieving this was by requiring State bodies to publish annual accounts and in this House I have sought to ensure they do so speedily. Since I started asking this question in 1993 most legislation includes a time limit within which such reports must be published.
Another objective was to require the State or other bodies to keep a register of particular information and to make that register open for inspection by the public. The need for keeping such registers continues but the means of doing so have changed. When registers were first introduced, it went without saying they had to be kept at one physical location and that if members of the public wanted to inspect the register they had to go to that location. As a result, the place of inspection was limited in practice but so was the timing. Given that registers are normally kept in an office it was unreasonable to expect it to be possible to view them day and night, so they were open for inspection only during normal business hours.
Limitations of place or time no longer need apply as a result of new technology. Through electronic publishing the location at which the information is inspected is no longer limited. Similarly, electronic publishing makes information available 24 hours a day, seven days a week and 52 weeks a year. Access is further facilitated by the fact that neither the act of publishing information nor accessing it on the part of the public is expensive, rather it is very cheap compared with other methods.
Whatever legislation specifies that a register of information should be made available to the public should also specify that the register be published by electronic means. Not to do so would be to place an unnecessary barrier between citizens and the information and there is no basis on which that can be justified.
I made these arguments two weeks ago on the Dumping at Sea (Amendment) Bill. The Minister for the Marine and Natural Resources, Deputy Fahey, accepted my argument and amended the Bill. I made the case that if someone in Killybegs wished to see information on the register and was interested in what was happening in Dunmore East he or she would have had to go to Dublin to look at the information if it was not available electronically. The Minister recognised and accepted this point and I hope the Minister of State will do so with regard to this Bill. This is particularly the case as it is Government policy to do as much of the State's business as possible through the use of information technology. The case stands for itself, it is accepted policy and I urge the Minister of State to accept these amendments.
Senator Quinn argues so eloquently for this amendment that there is little more to be said. I urge the Minister of State to don his science and technology mantle and accept it as it is important that access is by the most modern methods possible.
I support the amendment. If we are going to compile a register and regard a register as an element of accountability and information, surely it behoves us to ensure it is as available as possible. If this can be done via the Internet then that should happen. I urge the Minister of State to accept the amendment.
Senator Quinn makes a good case and I have given much consideration to this amendment. We have discussed this amendment in the Department and in the House and I have listened to the case made by the Senators which has much merit.
Amendment No. 25 seeks to require the supervisory authority to publish the register of investment business firms electronically. This is a sensible proposal. The present provisions of the 1995 Act permit the authority to so publish the lists. I understand it is proposed to publish the lists on the Central Bank's website in the near future. Thus, in practice, Senator Quinn's point will have been met.
There is a difficulty in compelling the supervisory authority to publish such lists because of the risk of inaccuracies which are beyond the supervisor's, that is the Central Bank's, control. For example, a producer may fail to inform the supervisory authority of the discontinuance of an appointment. In other words, someone on the list may hold an appointment on the electronic system but technically and legally that appointment could have been discontinued and the authority may not have been notified. This could create some difficulties for me.
Amendment No. 40 seeks to require product producers to publish lists of their appointed investment product intermediaries electronically. I am confident that most product producers would be in a position to do so, particularly with the assistance of their representative associations. Nevertheless because I am anxious to encourage as many insurers as possible to compete in the Irish market, I am reluctant to impose conditions beyond those strictly necessary.
I have given much consideration to this matter. I do not wish to agree to the amendments only to find myself in a legal conflict on Report Stage. I propose to examine these amendments in detail before Report Stage when I will accommodate them if possible.
I thank the Minister of State for his positive response. As regards my amendment to the Dumping at Sea (Amendment) Bill, it was incorrect to say that my amendment was accepted because what the Minister of State is saying is correct. The Minister improved the wording I used. I tabled a similar amendment to the copyright Act which was not accepted. I made a mistake on the Dumping at Sea (Amendment) Bill as I used words like "the Internet" and "website". I accept that "electronic means" is a more sensible and valid phrase. I thank the Minister of State for his positive response and withdraw the amendments in the hope of finding a solution on Report Stage.
Amendment, by leave, withdrawn.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21.
Government amendment No. 26:
In page 26, line 10, to delete ", tied insurance agent".
Section 25(6) of the 1995 Act defines an investment product intermediary. Those so defined are required to go through a formal process of authorisation. This amendment seeks to make such a process of authorisation unnecessary in the case of two types of tied agent.
The first category comprises tied insurance agents for whom an undertaking takes full and unconditional responsibility. Since the authorised undertaking is prepared to take that responsibility, the consumer can deal confidently with such intermediaries.
The second category covers credit institutions dealing as tied agents. Since credit institutions are already subject to an authorisation process, a second one would be redundant, unnecessary and unfair.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Acting Chairman
Amendments Nos. 28 and 30 are cognate and are related to amendment No. 27. Therefore, amendments Nos. 27, 28 and 30 may be discussed together by agreement.
Government amendment No. 27:
In page 26, line 37, to delete "or herself".
The Insurance Act, 1989, and the Investment Intermediaries Act, 1995, follow the former convention of being expressed in the masculine gender. To maintain absolute consistency, references to the feminine gender were applied in error in the drafting of the Bill. Consequently, I am asking the House to agree to their deletion.
Amendment agreed to.
Government amendment No. 28:
In page 26, line 39, to delete "or she".
Amendment agreed to.
Acting Chairman
Amendments Nos. 29 and 36 are related and may be discussed together by agreement.
I move amendment No. 29:
In page 26, between lines 41 and 42, to insert the following:
"(i)A life insurance broker will operate as a ‘defined' activity investment product Intermediary within the meaning of the Investment Intermediaries Act, 1995, section 4(2), paragraphs (a) to (c).
(ii)A life insurance broker may give advice in the course of carrying on his/her profession or business where the giving of such advice is a necessary part of providing ‘best advice' to his/her clients during the normal course of carrying on his/her profession or business.".
The purpose of this amendment which contains two parts is, first, to get rid of that appalling acronym RAIPI, which we all agreed we would like to do on Second Stage. It is to change the term from restricted activity investment product intermediary to defined activity investment intermediary. The word "defined" is more appropriate and it makes more sense because the insurance broker's activities are "defined" but they cannot or should not be "restricted", as this is in conflict with a broker's independence and I would strongly wish to maintain that. We want to provide for a level playing pitch, an idea to which we all subscribe, and that is also behind the thrust of this amendment.
On the second part of the amendment, an independent insurance broker must be able to continue to give advice to his or her clients as he or she does at present. I commend Senator Mooney's earlier remarks on another section regarding the independence of the insurance broker. We all subscribe to that and, like me, the Minister of State, in view of his own past, would also appreciate that. We do not want to lower the standards in any way but it is vitally important regarding the provision of a level playing pitch that we do nothing to infringe the independence of the independent broker. The independent broker is an important person in the community, particularly in provincial towns and rural Ireland.
It has been put to me that this Bill will impinge on clients getting the full range of independent advice from insurance brokers. They will need to choose between being restricted activity investment product intermediaries or fully authorised investment product intermediaries. If they are in the first group of restricted activity investment product intermediaries, they will not be able to give advice on the products of companies for which they are not agents. Even if a client asks whether another form of insurance might be better they will not be in a position to give advice on it even if the brokers will be paid for this advice. Surely this worsens the position for the client.
If all brokers are to become fully authorised investment product intermediaries they will need to invest far more in what they are doing. They will need quarterly management accounts and clients will need to pay considerably higher fees to them.
The Central Bank has informed those people who contacted me about this issue that the restricted activity investment product intermediaries will be allowed to give advice only regarding products from product providers for whom they hold agencies. Surely this is not in their clients' best interests.
I support both parts of the amendment. The Minister agreed on Second Stage that the acronym RAIPI is undesirable and he was interested and anxious to find an alternative. Senator Coghlan has provided an alternative here, using the term "defined" rather than "restricted". It does seem to accurately cover the meaning and, therefore, I would support the change.
The concept of independent advice should be retained. It is desirable with regard to general financial advice rather than a restriction. The elements of the amendment are worth accepting.
Amendments Nos. 29 and 36 seek to provide an alternative to the current title, restricted activity investment product intermediary, and to address the issue of giving advice. On the first issue, it might be useful to recall the thrust of the provisions, which transfer regulatory responsibility for insurance intermediaries from a system of self-regulation, which we all agree is no longer acceptable, to regulation as a result of this Bill by the Central Bank under the system which already applies to all other types of intermediaries. Therefore, we are levelling the playing field in that regard. A separate regulatory category for insurance brokers is, therefore, not appropriate.
Some concerns have been expressed about the term "restricted activity investment product intermediaries", commonly known as RAIPI. This term was introduced by the Investment Intermediaries Act, 1995, and has been used since then as a result of being in that Act by intermediaries in the wider investment industry who deal in a restricted range of investment products, in other words, they have chosen to operate only in this range of investment products.
These individuals and companies have incurred expense in setting up their systems using this title. To change the title at this late stage would impose added expenses on them. It is worth noting that there have not been complaints from them about the title. Therefore, while I have no objection in principle to a change in this title, I do not propose at this stage to accept amendments to alter the title in this legislation. A much wider consultation process would be necessary. In the event after such a process it was decided to revisit this title it could be addressed in other legislation, such as the Finance Bill. In other words, there is nothing to stop us considering this in the Finance Bill. As a matter of fact, it would be the place to change it because it originated in the Department of Finance, through the Central Bank. If it is to be changed, it should change it. I must maintain the consistency in this legislation with the Investment Intermediaries Act, 1995.
The system of supervision proposed here does not seek to regulate what may be said between an intermediary and his or her client but rather what an intermediary may sell to a client. In other words, we are not going to impinge on what they say to one another but the regulations lay down parameters within the status under which they are authorised and they decide to go into that structure.
The proposed system envisages that intermediaries may offer for sale only the products of producers from whom they hold an appointment. This is to ensure that the consumer may purchase an investment product confident that the intermediary is acting within his or her area of expertise when selling this particular product. In other words, the consumer will now know that this is the area in which the intermediary operates, the product has the full support of the undertaking which created the product and this intermediary is a professional competent to deal in and market this product and to take an investment.
If the intermediary believes that his or her competence goes beyond the existing appointments, he or she can apply to the Central Bank for a change of status. It is a matter of an application and conforming to the regulations and criteria. If they conform, they have the confidence and the capital adequacy, they put themselves forward and there is no limit to what they can do within the financial environment in which they operate. To do this, the person would have to demonstrate a wider competence and the existence of financial resources adequate to protect the consumer, popularly known as capital adequacy. Clearly, the extent to which intermedi aries may offer products must be related to their knowledge of the range of products available in the marketplace. Furthermore, the consumer must be in a position to pay for such products confident in the knowledge that the intermediary is financially solvent.
It would need much further consideration and consultation and it would be unwise for us to make a change in an insurance Bill when this is a financial situation referring to the Central Bank and the Department of Finance. If we need to change it, there is the Finance Bill and the Senator can test that again.
I understand from where the Minister of State is coming and the desire of the Government machinery and bureaucracy, if one likes, to maintain the line he has outlined. It goes against every grain, every fibre of my being to accept a restriction. That is why I used the word "defined". Equally, I cannot accept a limitation on the independence of professional people doing a good job serving their communities, which they have done for so long. These are people who are not only professional but who are bonded, have indemnification and all the necessary insurance to cover them in these situations. I cannot accept this. The Minister of State said he would like to do business with us and I always like to do business with him, but sadly on this occasion I cannot. I must press this amendment.
The Minister of State said he is anxious to protect people from brokers who may be acting beyond their professional competence and financial abilities. I suppose caveat emptor comes into things sometimes and people may want to get advice. It is rather restrictive that they cannot say someone is an agent for A, B, C, D and E, but that they rather like the look of F.
It seems unfortunate that the broker will have to apply to be in a different category before they can give this advice. After all, the person will pay them for the advice. It is not as if they are going in and something is being stuffed down their throats. I would have thought it was very restrictive but the Minister of State's knowledge of the insurance industry is greater than mine.
Like Senator Coghlan, I have great difficulty with this. In many ways, it seems to go back to the old days of protectionism. I wonder if the Competition Authority has expressed a view in regard to this. When I started in business first, the supplier was very strict about what one could do with his products and whether one could sell somebody else's product.
I remember in the old days a petrol station would have four or five different pumps. I do not think anybody remembers that now. When one pulled into a petrol station, one could decide whether to take Esso, Shell or Texaco. In Britain, they have just passed laws doing away with the tied house where the supplier of the beer would not allow anybody else's product to be supplied.
I am not sure there is a good comparison here but Senator Coghlan made the case, which was supported by Senator Henry, that someone who holds a licence is able to say they are licensed for something but that they would like to recommend or comment on something else. Maybe I have misunderstood this but it seems to be like the very old-fashioned restrictions on trade to protect those who are already there. I may be wrong and would be happy if the Minister of State corrected me on that. The amendments tabled by Senator Coghlan are worthy of support and I do not quite understand the old-fashioned, out-of-date restrictive clauses that would come about if these amendments were not accepted.
I understand from where the Senators are coming and would like to be able to accommodate them. Of course, the right of the individual is paramount. These individuals, these professional people, have decided on the status they want, whether as an agent or a broker and whether they are restricted under the existing legislation and the rules laid down. The Investor Compensation Act, 1995, is a very fair Act and some of these people only have to pay £200 per annum for their bond to the Central Bank. The consumer is protected.
The parameters within which they can operate are to protect the consumer from those who in the past, as we all know, took a lot of money from people and did not invest it where they said they would and who gave the advice across the board. People trusted them, the money vanished and they vanished with it to a foreign shore. Based on that, we have to be absolutely certain that the rules are clear. People opt into the system and must meet certain criteria. They must have a certain competence to deal with the products they are purveying or selling to the public. If they have further resources and capital adequacy, they can move up the value chain, have a broad option and sell everything they wish. I think it is fair.
We are not restrictive, we are inclusive. We are giving everyone a chance, including the small person coming into the market to compete with experienced people. This is a good thing and we want that competition and to be able to give different types of advice at local level. I fully accept what Senator Coghlan said about the importance of the insurance broker in the provincial town. They are highly respected and trusted people who provide an outstanding service. However, we must ensure that those dealing in this area meet the criteria laid down lest the State be asked to carry the can for the innocent consumer.
With respect to the Minister of State, these people have not decided but rather this Bill is boxing them in. It cuts against the grain and totally goes against the provision of a level playing pitch. This Bill favours the big player in the marketplace. The Minister of State means well and I do not want to take from his bona fides. My reading of this and my contacts with these professional people tell me that this is the right approach and I am absolutely sincere and genuine about it.
I compliment Senator Mooney and Senator Quinn. Senator Mooney put it very eloquently earlier when he spoke about not placing a limitation on the independence of an independent broker. That is what this does and the reason I tabled the second part of this amendment. Sadly, I must press this amendment.
Tá
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Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Hayes, Tom.Henry, Mary.Jackman, Mary.
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Keogh, Helen.McDonagh, Jarlath.Manning, Maurice.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.
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Níl
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Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Fitzgerald, Liam.Fitzgerald, Tom.Gibbons, Jim.Glennon, Jim.Glynn, Camillus.Kett, Tony.
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Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.
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Tellers: Tá, Senators Burke and Coogan; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Amendment No. 30 has already been discussed with amendment No. 27.
Government amendment No. 30:
In page 26, line 44, to delete "or she".
Amendment agreed to.
Government amendment No. 31:
In page 27, line 38, to delete "to" and substitute "of".
This amendment is to correct a typographical error.
Amendment agreed to.
Government amendment No. 32:
In page 28, lines 15 to 17, to delete "whether or not accompanied by a sum of money" and substitute "accompanied by a payment of money".
The language of this section reflects the original drafting of the Insurance Act, 1989. However, the intention behind this provision in the 1989 Act was somewhat different. The intention in this Bill, in inserting this provision into the Investment Intermediaries Act, 1995, is to ensure that receipts must issue when, but only when, there has been a payment of some kind. Accordingly, the amendment to lines 15 to 17 makes it clear that a receipt is to be issued where a payment has been made.
Amendment agreed to.
Government amendment No. 33:
In page 28, to delete lines 31 to 34.
Subsection (5), which is now to be deleted, provided for circumstances in which an intermediary did not have to issue a receipt. Those circumstances were where an insurance intermediary issued a policy of insurance. However, on reflection it is necessary to require receipts in all instances. This will become clear later as we discuss further amendments. This need for intermediaries, consumers and those who regulate the industry is clear. Accordingly I am bringing forward this amendment to clarify the exact position pertaining to the issue of receipts.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
Acting Chairman
Amendment No. 35 is consequential on amendment No. 34 and both may be discussed together.
Government amendment No. 34:
In page 29, line 33, to delete "or".
This is a very important area. It takes into account the many requests made in this House on Second Stage. Senators will be aware that I gave a commitment on Second Stage in this House and on Report Stage in Dáil Éireann to examine the provisions of this Bill regarding cash handling by certain intermediaries. I am satisfied that the amendments I am now proposing represent a balanced compromise, meeting the legitimate concerns of such intermediaries while safeguarding the interests of consumers.
This amendment will permit non-life insurance intermediaries to handle cash. In the case of life insurance intermediaries other than tied insurance agents, they will be permitted to handle cash provided the circumstances in section 25G apply. This will safeguard consumers by limiting cash handling to circumstances where the insurer is standing behind the intermediary.
Section 25G provides that a premium paid to an intermediary shall be treated as having been paid to an undertaking when it is in respect of a renewal invited by the undertaking or a new policy proposal accepted by the undertaking. Earlier amendments Nos. 32 and 33 copperfasten all payments. In the case of tied insurance agents, the consumer is safeguarded because the insurer is responsible for any act or omission of its tied insurance agent in respect of any matter relating to a contract of insurance offered or issued by the undertaking with which the tied agency agreement related.
Amendment agreed to.
Government amendment No. 35:
In page 29, to delete lines 35 to 39, and substitute the following:
"‘(lll) when acting as a non-life insurance intermediary, or when acting as a life insurance intermediary in circumstances to which section 25G applies, taking cash from a client,
(lV)when acting as a tied insurance agent, taking cash from a client in circumstances to which section 25E(3) applies'.".
Amendment agreed to.
Amendment No. 36 not moved.
Government amendment No. 37:
In page 30, line 1, after "an authorised investment", to insert "business".
The inclusion of business is a technical amendment which corrects a textual oversight in the original text of the Bill. It corrects an omission.
Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24.
Government amendment No. 38:
In page 30, line 39, to delete "deleting" and substitute "the deletion of".
This is a drafting amendment.
Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
SECTION 27.
Government amendment No. 39:
In page 32, to delete lines 41 to 43, and to substitute the following:
"(c) the value of the instrument or payment received from the person furnishing it and the date on which it was received;”.
This is a technical amendment to provide consistency with the terminology in the 1995 Act.
Amendment agreed to.
Section 27, as amended, agreed to.
Amendment No. 40 not moved.
Section 28 agreed to.
NEW SECTION.
I move amendment No. 41:
In page 33, before section 29, to insert the following new section:
29.–Section 31 of the Act of 1995 is hereby amended by the insertion after subsection (6)(b) (inserted by section 61 of the Investor Compensation Act, 1998) of the following:
‘(c) Notwithstanding paragraphs (a) and (b) of this subsection, the
supervisory authority may dispense with the requirement to ensure the publication of a notice of discontinuance where the investment product intermediary satisfies it that such publication may be detrimental to the orderly and good conduct of its business or may undermine the confidence of clients in the investment product intermediary or for any other reason.'.".
This relates to a discontinuance notice. There are many legitimate reasons that a broker may decide to discontinue a line of business, such as illness or retirement. It may be a commercial decision to concentrate on the core business. Regardless of the wording of such a notice, it will be misconstrued as wrongdoing in rural Ireland. The Minister of State knows this and he agreed with me on this matter on Second Stage.
In addition, it is likely that these notices will appear frequently due to the number of brokers who will now be regulated under the Investment Intermediaries Act, 1995. This will take away from the impact of the notice which is necessary where wrongdoing occurs. My amendment suggests that this notice should only be published in cases of suspension of a broker due to non-compliance with the supervisory authority's regulations. The Minister of State knows in his heart and soul that the amendment makes sense.
I am not sure about my heart but my head is different. The purpose of the amendment is to dispense with the need to publish discontinuance notices with the agreement of the supervisor. I understand the sincerity and motive behind the Senator's amendment. Discontinuance of appointments may occur for ordinary reasons but notices may give the wrong impression of the intermediary. However, the 1995 Act requires the intermediary to publish the notice himself or herself. The product producer is only required to do so when the intermediary fails to do it.
For example, if I was an intermediary and I do not publish, the undertaking for which I was an intermediary is obliged to publish the fact that I have discontinued operations. Accordingly, on the one hand, the intermediaries have control over the content of the notice but, on the other, the purpose of the requirement to publish is to inform consumers locally, regionally and nationally. Providing such information for consumers is obviously of overriding importance. Accordingly, I regret that I cannot accept the amendment – this system favours the individual intermediary.
Question, "That the new section be there inserted", put and declared lost.
SECTION 29.
Government amendment No. 42:
In page 33, line 28, after "This Part", to insert "(other than section 30)".
Senators will recall that I gave a commitment to re-examine this matter in the light of the debate on Second Stage in the Seanad. The existing provision excludes travel agents and tour operators from the scope of Part IV of the 1995 Act because they are already subject to a regime of authorisation and bonding under the Transport Act, 1982. I cannot interfere with that in this legislation.
However, in light of the excellent arguments made in this and the other House, I have decided to provide that tour operators will be subject to the requirement to issue receipts when acting as insurance intermediaries to ensure equity in the system and to satisfy consumers that they have paid for and been given insurance. They will have a receipt for it. I ask the House to agree to the amendment.
Amendment agreed to.
Question proposed: "That section 29, as amended, stand part of the Bill."
The Minister of State will be aware that I have raised the issue of travel insurance previously. He has brought travel operators within the scope of the Bill in terms of limited transparency. They must now provide proof that one has taken out an insurance policy. However, that is not the main problem and I hope the Minister of State will consider, or ask his officials to consider, the operation of travel insurance.
I hope he will also come to the conclusion in the absence of arguments to the contrary that the conditions attached to a significant amount of travel insurance are not in the best interests of the consumer. This issue has almost become an obsession with me but nobody appears to be taking the ball and running with it. It is being kicked around between various Departments and people are either afraid of taking on the travel industry or they are not interested in making it a priority. In the context of the Minister of State's obvious commitment, which has been proven again during this debate, to protect consumer rights, I urge him to ask his officials to consider the workings of travel insurance.
I give the Senator that commitment. I have discussed the matter with the excellent officials and that will be done.
Question put and agreed to.
Sections 30 to 32, inclusive, agreed to.
SECTION 33.
Government amendment No. 43:
In page 34, line 4, to delete "25A(2), 25(C),".
This is a technical amendment to correct an oversight when the amendment was introduced on Report Stage. Sections 25A(2) and 25(C) have been deleted already. The reference to them in section 33 is not necessary or appropriate and I ask the House to agree to the amendment.
Amendment agreed to.
Section 33, as amended, agreed to.
Section 34 agreed to.
First and Second Schedules agreed to.
Title agreed to.
Bill reported with amendments.
Acting Chairman
When is it proposed to take Report Stage?
Report Stage ordered for Tuesday, 21 November 2000.
I wish to thank the Members for their contributions to the debate. I will give every consideration to the various recommendations made and I will do what I can to improve the Bill for Report Stage. I look forward to returning to the House for that debate.
