Mr. Edmund Honohan:

In 2014, a year after the introduction of the code, the EU adopted the first mortgage credit directive. By 2020, the penny had dropped with the Supreme Court and it said that looking at the 2014 directive, these codes are enforceable. It is ridiculous. It took seven years for the courts to realise that these codes were enforceable. During that time, how many people lost their homes? I do not know. There is something wrong with a system that allows a court to proceed on the basis of a misunderstanding. One has to go back to the EU and ask if the EU can fault Ireland for not providing the mechanisms for judicial protection. I will give members an example of that. It is well worth me referencing it. In Law of the European Union, Trevor Redmond notes that the principle of state liability applies in any case in which a member state breaches EU law, whatever the organ of the state whose act or omission was responsible for the breach, even the legislature. The courts or the Central Bank could be responsible for the breach. The barristers could be responsible, but they are not an organ of the State. The Legislature, which has failed to communicate the material to the courts, could also be responsible.

Looking at the directive we are dealing with, it is a quite a lengthy document with something like 61 preambles, which are actually part of the law. They have to be read by the judge who is considering the meaning of the terms. I cannot be certain, but having listened to Senator Mark Daly the other day at the Seanad committee, he appears to be of the view that Members do not get a copy of these directives until the statutory instrument is produced. The Oireachtas never had a chance to look at this directive, note it is interesting and decide that there are bits and pieces of it that it should look at as plenary legislation. A decision to go with the plenary route, as opposed to the statutory instrument route, should be made before the paperwork is inked by the Department preparing the instrument. The part of the directive we are interested in, and which is the subject of the discussion today, is way at the back of it. Nobody looks that far through a document. Even if TDs got a copy, they would not have gone as far as reading Article 28. They will have given up, or perhaps they will have had to answer the phone or go to another committee meeting.

If the Dáil had looked at this beforehand and taken advice on it, it would have said, "Hang on. Article 28 relates to amendments to the directive of 2014, which we have already transposed. This is quite important because it includes different language for forbearance. It includes a reference to partial debt forgiveness. This is a significant change in law." That article in itself, which was the only article amending the earlier directive, could have been lifted straight out and transposed in a few weeks. It did not have to wait two years while the rest of the directive gathered dust.