Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

I move amendment No. 1:

In page 6, line 6, after “paragraph (b)” to insert “and subsection (3)”.

It is fair to say that Deputy Pearse Doherty and I are not totally in opposition in terms of these amendments. We both want to ensure that long-term financial services which are not of a fixed or definite duration can be investigated by the ombudsman under the longer time limits applying to long-term financial services. These Government amendments are squarely aimed at ensuring that financial services which are long-term in nature but which do not specifically fix their duration can be investigated by the Financial Services and Pensions Ombudsman.

The first amendment is technical and is required by the substantive amendment. The substantive amendment allows the ombudsman to investigate cases where the duration is not fixed but where it is reasonable for a consumer to expect its duration to be longer than the five years and one month threshold by virtue of the manner in which the services operate, the type of assets with which it is connected, or by virtue of representations made by the financial service provider. It specifically excludes current accounts and other financial services of an indefinite duration which do not have such characteristics.

I appreciate that this is a complex amendment, and I can see the attraction of the simplicity of the amendment tabled by Deputy Pearse Doherty. However, I consider that it would capture more than we agreed we would include in the expanded definition of long-term financial service. For example, a consumer opening a current account on starting his or her first job or when he or she goes to college might reasonably expect that it will last more than five years, but we have been clear that such a product is not and should not be considered a long-term financial service.

These Government amendments mean that whole of life cases, which are not of fixed duration by definition, can be investigated by the ombudsman subject to the time limit in section 51 of the 2017 Act. Contrary to the common understanding that these time limits rule out misconduct that occurred prior to 2002, the current legislation permits the ombudsman to investigate cases outside this limit in particular circumstances. Section 51(2)(3) provides for a time limit of, "such longer period as the ombudsman may allow where it appears to him or her that there are reasonable grounds for requiring a longer period and that it would be just and equitable in all circumstances to so extend the period". This gives the ombudsman the discretion to extend the time period to cover events that occurred earlier than 2002. However, I should stress that there are conditions attaching to the exercise of this discretion. There must be reasonable grounds and it must be just and equitable in all circumstances. This means it must be just and equitable to both sides, both the consumer and the financial service provider.

Officials from the Department were in detailed discussions with the Office of the Attorney General to see whether it was possible for the office of the Parliamentary Counsel to draft a constitutionally robust amendment which would allow whole of life complaints to be made to the ombudsman without time limits. However, I would have concerns that it is arguably unfair and potentially unconstitutional to require the ombudsman to depart from these time limits regardless of whether he considers it fair or reasonable. The key question for legislative time limits for the bringing of complaints or legal actions is whether the Oireachtas has struck a reasonable balance between the rights of the plaintiffs, the applicants, the interests of the defendants-respondents, and the public interest.

I believe that the current Act, with the proposed Government amendments, strikes a reasonable balance. For these reasons I am pressing the Government amendments and cannot accept the amendment tabled by Deputy Pearse Doherty.