Pearse Doherty (Donegal, Sinn Fein) | Oireachtas source

I move amendment No. 17:

In page 46, lines 4 and 5, to delete all words from and including “The” in line 4 down to and including line 5 and substitute the following:“On receiving a complaint, the Financial Services Ombudsman shall, as far as possible, try to resolve the complaint by mediation.”.

This amendment proposes the deletion of section 58(1), the first subsection in the mediation clause, which replaces the existing legislative provisions that establish a Financial Services Ombudsman. It is my view that section 58(1) is weaker than the original provisions. Section 58(1) reads: "The Ombudsman may, as part of an investigation, in circumstances where he or she deems it appropriate, try to resolve a complaint by mediation." My amendment would delete that subsection and re-establish the existing wording from the legislation establishing the Financial Services Ombudsman, to read: “On receiving a complaint, the Financial Services Ombudsman shall, as far as possible, try to resolve the complaint by mediation.”

As we discussed earlier, two pieces of legislation on this matter are currently going through the Houses of the Oireachtas. It is hoped that my own Bill will go before the Seanad next week. We have been drafting amendments for the Seanad and in doing so, found the wording that is proposed under this amendment. It is the wrong reference because, obviously, the Financial Services Ombudsman's office would no longer exist. We did try to engage with the Bills Office but the officials there would not allow us to amend the amendment. I will therefore be withdrawing amendment No. 17. However, I believe the substantive point stands, namely, that we should revert back to the existing provision under subsection 58(1).

The other subsections of section 58 are very positive and I commend the Government on them. It was an issue that I raised in my own draft legislation, published in 2014, which was intended to compel the financial institutions to engage in mediation or give valid reasons as to why they would not do so. I welcome the fact that there is more voluntary mediation. Although it may not always be the case, there are institutions that would reject the idea of mediation. Any court would look at the Bill before us and ask why the Legislature is now weakening the provision by using the word "may" instead of "shall". The powers provided here do allow the ombudsman to carry out mediation as part of an investigation. However, in any court case, these discussions and the intention behind the wording would be teased out and, as part of that process, the Judiciary would compare the new wording with the one it replaced.

I intend to withdraw the amendment. I have engaged with the officials and hope to come up with a resolution shortly. I know the intention of the Minister and the Government is that there would be no weakening of the provisions. I am concerned about possible unintended consequences.