Alice-Mary Higgins (Independent) | Oireachtas source

There has been a push for a senior executive accountability regime because we have seen cases in the past and the responsible individuals, or those who played a role, were effectively able to move pretty unscathed through the process and go on to other very lucrative opportunities.

I have a small concern that through this legislation, we may again be tying it back to the role but that the individuals may, effectively, not be held ultimately accountable. Previous legislation referred to a person concerned in management but, in the new legislation, that would become a person performing a controlled function or pre-approved to perform a controlled function. I would like comment, clarity or assurances in that regard. If an individual, a Mr. Smith or a Ms Lynch, is performing a controlled function, I would like it confirmed that the individual would be held accountable for any wrongdoing so we do not have a situation whereby a person can move out of a role and the problem stays with that role but does not concern the individual. The old legislation referred to a person concerned in the management. While I accept that was quite wide and needed clarity, I am worried that narrowing the wording to a controlled function or a pre-approved controlled function may give rise to a situation whereby senior executives who are not directly in those controlled functions but who have a key role in terms of management and who drive or allow for poor, unethical or dangerous decisions might not get captured in this regime. I am a little concerned about that. There are different ways in which I am worried we could end up narrowing the scope so much that people are not captured by it.

I would push back on some of the comment around encouraging compliance. I am always amazed by the amount of second, third and fourth chances we distribute in the white-collar, financial services sector, compared to any other sector, where misdemeanours are very seriously consequential for individuals. My concern is that if the goal is simply to say we have made senior executives in this country adopt different practices or improve their current practices, an issue may have been addressed within that company but the senior executive may not have been held accountable. Does it trigger an investigation of their roles within other companies? How does the inquiry follow the individual, as opposed to following the individual's controlled function in a company?

Head 5, section 2 mentions all the factors which need to be considered when assessing whether somebody should be investigated or held accountable. It strikes me that a number of the reasons somebody might be able to say they should not be held accountable are in the control of companies. Complexity is offered as a potential reason. The nature, scale, complexity and timeframe are offered as reasons someone can avoid accountability. Who do we hold accountable for the creation of circumstances which an individual can use, under head 5, section 2, to evade accountability under this regime? Is it the company or is it the individual?