Mr. Paul Joyce:

The unfair terms directive has not got any huge traction in the Irish legal system. It is much underused. One problem is there is a very restricted number of entities that can refer a term to the Circuit Court or High Court to have its fairness tested. Ironically, it includes the Central Bank, and the Competition and Consumer Protection Commission. The point we are making is that there is a fundamental lack of fairness in the contract in the first place, that allows for the sale to take place. That is an issue that would arise in any assessment of the constitutionality of the Bill. In practice, borrowers do not know this term is in their mortgage contract. They are not asked for their consent, nor are they ever informed, except at the very last minute, that this is happening. There is a fundamental imbalance there. It is an open question as to what the courts would make of whether this is strictly an unfair term but the point we are making is that the imbalance is clear. These are pre-drafted terms in contracts to which the consumer has no opportunity to contribute.