Michael McDowell (Independent) | Oireachtas source

Section 43, for instance, states: "A draft report and final report under this section shall include any material that in the opinion of the responsible authorised officer is relevant to the consideration of the report by the Bank under section 33AO(1) or (2) or 33AR(2) or (4)." If it is being suggested that the report has to have appended to it all the relevant material that might be of assistance to the subject of the proposal to investigate, that is not very clear. In a criminal prosecution, one gets all the statements, the draft statements, the documents and the records. Is it seriously being suggested that the draft report has to have appended to it every document that might be of assistance to the person under investigation? If we take as an example the tracker mortgage issue, how much material would be attached to a draft report? Is everything that goes both ways obliged to be appended to the report?

The Minister of State made reference to section 62. It is interesting that section allows documentary evidence of a hearsay kind to be used in line with the general change of rules on hearsay evidence that was done a couple of years ago. That shows a very formal approach to rules of admissability and it seems to apply both to the person under investigation and to the bank. I accept that subsection (10) allows for informality, in any event.

We are talking about the culture of the banks here. I want the culture of the Central Bank to be one in which it is absolutely axiomatic that all relevant information which could assist the person who is on the receiving end of this is given to that person. Otherwise, there is a very significant chance of injustice. In other words, if a fellow employee says that it is not like that at all and that what appears to be the case is not in fact the true explanation or if a board member says that is not what caused the bank to do X or Y, all of that information has to be given to the person who is on the receiving end. It cannot be selective. That is why the first of the amendments I tabled was designed to bring about a change in culture in the Central Bank, which is what the Minister of State is saying she wants bankers to do. I want everything to be made available to the person who is on the receiving end. The Minister of State mentioned, and I accept what she said, that an awful lot of senior pre-approved controlled function holders have insurance. Some of them may have and we are widening the category. I wonder who is going to insure all the other people who are now being swept into this potential category. If a person is halfway up the ladder, who is going to pay for their insurance? Is it the bank? What happens if the bank ceases to function or if a person is sacked? Who is going to pay for the representation of a sacked person?

I know the purpose of this is to have inquiries conducted in an informal way. However, by any standard, if there is going to be an inquiry and a subsequent appeal from the inquiry to an appeal body, at that point most people would require legal assistance. Most middle management accused of misbehaviour would need legal assistance. If we look at this from the point of view of the State, State employees will be assisted. How many State employees are told they are on their own and must defend themselves for doing business in a Department? Very few are unless they were thieving from the Department or something like that. Very few are left in the position where they are subject to legal action and have to finance their defence themselves. That is why I put that forward.

The Minister of State also said that to date the prohibition has been done very infrequently, bearing in mind the number of people who are carrying out controlled functions. I accept that. One of the problems with this new regime is that if a person thinks they are innocent, they will be confronted with a deal. It is part of the process where the Central Bank will say that if a person pleads guilty, a penalty can be negotiated and the matter will go no further. That is built into the process. This is practical and I have no problem with that regime applying. It is a sensible regime to have in place. A person can admit it and not insist on a full-blown inquiry and appeal. The person can say they got it wrong and whatever will be done to them will be done.

To somebody whose whole livelihood and employability is at stake, this is a serious matter. If somebody is employed in a financial institution and a prohibition order is made, that is more or less the end of the person's career. The Minister of State referred to people getting a two year prohibition. Who is going to touch somebody who has had a prohibition? It is like hiring as a chauffeur someone who had a five year disqualification for dangerous driving. Very few people will do so. There is a strong case for having some form of legal assistance.

The second of the amendments is cast in a way not to set up a formal system of legal aid. I fully accept that one could not possibly have a legal aid programme and legal advice for all controlled function people at all stages of their career. The amendment was not designed to do that. It was solely to enable them to fully and fairly participate in the proceedings to which subsection (3) applies, which is to participate in the course of such proceedings or investigation where a prohibition or a penalty is in question. The Minister of State said we can look at it again but I wonder whether it can ever be looked at again.If we pass the Bill, will it ever be looked at again? Is it the view of the Central Bank and the Office of the Attorney General that nothing can be done to give legal assistance to a person facing such sanctions? If the law states that it is ultra viresfor the Central Bank or the chairman of the appeal board to direct that legal assistance be made, then it will not happen and a serious injustice will be done.