Ms Michelle Byrne:

I thank the committee for the invitation to attend the meeting. I am joined by my colleague Ms Bernice Evoy, solicitor and head of legal and regulation at the Banking & Payments Federation of Ireland, BPFI. As the committee will be aware, BPFI made a detailed submission to the committee regarding the Bill on 19 May. In that submission, we welcomed the committee’s interest in understanding the sector’s position and asked that the points we raised be given due consideration as part of the process. We also indicated our willingness to work with the joint committee and the relevant Departments to agree a workable and pragmatic approach to dealing with the issues arising and the legacy arrangements that exist regarding items held by members in safekeeping and in safety deposit boxes. Without reiterating in detail the points made in our initial submission, we very much welcome the opportunity to attend in person and highlight the main concerns of the sector pertaining to the Bill as drafted.

First, we reiterate the concern raised in our initial submission in respect of the need for indemnification throughout the Bill, in case BPFI members’ compliance with the Bill should result in legal challenge in the future. We note the indemnification proposed under section 10 but believe this should go further. While depositors or their representatives will be able to reclaim any items in the future or any funds realised from the sale of items, the latter may be deemed insufficient in the context of any sentimental or emotional value attaching to the item.

BPFI members also note concerns regarding the potential breach of data protection and the privacy rights of customers should items be accessed or sold without prior notification to the depositor or their representatives. The majority of items held by banks are more likely to be of personal, rather than historical or cultural, importance. The Deloitte report of 2019 regarding its review of additional assets for potential inclusion in the Dormant Accounts Fund noted that where "100 safety deposits belonging to deceased customers with no identifiable next of kin” had been opened by one institution, the items discovered included “old currencies, title deeds, savings certificates, death certificates, marriage certificates, wills, personal correspondences, keys, photographs and one item of jewellery." The report concluded that none of the items was valuable. While we do not discount the potential to find some items of significance, we expect the majority to be more of personal, rather than historical or cultural, importance. To address the concern raised, we ask the committee to consider the inclusion of indemnification or an immunity from suit for institutions in all provisions of the Bill.

Second, the Bill as drafted proposes a lengthy and complex process for the registration, access, transfer and potential subsequent sale of the items. The concerns raised in our initial submission refer specifically to section 6(1) and (2) in respect of the register of deposited property, section 7 regarding a notification procedure, section 8 in respect of the publication of notice and section 9 regarding the examination of unclaimed property. We note the recommendation made to the committee by a departmental official that the proposed register be limited to items of historical or cultural significance and we urge the committee’s consideration of this approach in an amended Bill. Such an approach would allow for a more manageable and focused approach to documenting items of interest under the Bill. We also note and welcome the comments made by the representative of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media when she stated her Department would be willing “to consider ways to support the financial institutions in assessing the importance of items, including through the development of a set of criteria that could be used by the institution to assess whether an object should be referred to the director for further consideration.” To address these concerns, we ask committee members to consider the time that will be taken to establish processes and procedures to comply with the Bill once enacted, and a more focused approach to the development of a register of items.

Lastly, in respect of the items held by banks, it is important to note items are held in safekeeping or in safe deposit boxes. Some BPFI members hold items only in safekeeping, while others hold items both in safekeeping and in safe deposit boxes. In the case of safekeeping, or safe custody as it is referred to by some BPFI members, items are held securely, for example in a secure room on behalf of a customer in an envelope, box, suitcase or something similar. In the case of items stored in a safe deposit box, these items are held in a locked facility to which both the customer and the institution hold a key, both of which are required to open the box, and for which the customer may pay a fee.

The interchangeable use of language in the Bill may pose challenges to BPFI members in complying with the requirements of the Bill. To address this, we ask the committee to reconsider the scope of the Bill to align with the agreed Ireland's safe deposit box, bank and payments accounts register, ISBAR, approach, given the work undertaken at industry level to meet these obligations, with a phased approach being perhaps the most effective way to implement the legislation. This would allow for full consideration of any legacy issues and the distinction that exists in the case of some BPFI members between safekeeping and safe deposit boxes.

I have outlined the main concerns arising in respect of the Bill as drafted, including the need for indemnification throughout the Bill, the complexities of some of the processes proposed in the Bill and the distinction that exists between institutions in regard to the holding of items. Again, I thank the committee for its engagement with the sector on the Bill. We will be happy to remain engaged as the legislation progresses to ensure a practical approach is adopted in the Bill that will work for all impacted stakeholders. My colleague and I will be happy to answer any questions members may have.