Mr. Paul Joyce:

At the beginning of the code, it states, "Lenders are reminded that they are required to comply with this Code as a matter of law." That looks as if it is legally enforceable. It is, indeed, issued under section 117 of the Central Bank Act 1989. However, it is neither primary nor secondary legislation. It has neither been passed by the Houses of the Oireachtas nor signed into law by the relevant Minister, who in this case would be the Minister for Finance.

What it denotes or controls is the regulatory relationship between the Central Bank and the mortgage lenders which it regulates. For a start, to my knowledge, there has not been a single sanction imposed on a lender which has failed to comply with the code. In theory, it is subject to the Central Bank's administrative sanctions programme.

It is not, by my understanding, an offence nonetheless to breach the terms of the code. Mr. Hall mentioned the decision of the Supreme Court in Irish Life and Permanent plc v. Dunne and Irish Life and Permanent plc v. Dunphy. That was a seminal case to test the enforceability of the arrangements entered into by lenders under the terms of the code. The Supreme Court stated the only measure in the CCMA that was legally enforceable was the three-month moratorium on the bringing of proceedings against a borrower when the borrower had been exited from the mortgage arrears resolution process, that there was nothing else in the CCMA that the court could discover that was precise and tangible enough to provide legally enforceable rights to borrowers. The Supreme Court went further and stated that if it was the intention of the Central Bank or the Government to even up the relationship or the power between lenders and borrowers, it suggested that primary legislation was necessary to do that, and hence the call from ourselves and others that the code be put on a statutory basis. If it was a ministerial regulation that specifically stated that this code is admissible in legal proceedings in the courts, it would be of a different order in our view.