Paschal Donohoe (Dublin Central, Fine Gael)
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Section 53 of the Bill amends section 33AW of the 1942 Act to enhance oversight by the High Court of sanctions imposed by an inquiry decision of the Central Bank or an appeal decision of the Irish Financial Services Appeals Tribunal, IFSAT, and provides for procedures that must be adhered to. These changes are made in light of the requirement for court oversight of decisions on foot of the Zalewski case.

In terms of the process in section 53 of the Bill, an individual can appeal the decision to IFSAT and the decision in the appeal will have to be considered by the High Court; or an individual may not appeal in the allotted time and may withdraw an appeal and in such case, the Central Bank shall apply to the High Court for confirmation of the inquiry decision. The High Court must consider an application for confirmation and it will have sight of all of the evidence that was before the Central Bank or before IFSAT. The proposed change to the role of the High Court in section 53 of the Bill provides for a specific two-stage test. First, that the High Court considers whether, having regard to the evidence, there is an error of law in the inquiry decision or appeal decision which is manifest from the record of the decision and is so fundamental as to deprive the decision of its basis.

The High Court considers whether the sanction imposed by the bank or the tribunal is manifestly disproportionate to the wrongdoing of the individual on whom it is imposed. The High Court can set aside the decision, substitute a decision that could have been made by the Central Bank or IFSAT or remit the decision for reconsideration by the bank or IFSAT, as the case may be.

The Deputy's amendment would delete the provision in section 53 which deals with the circumstances in which the High Court can refuse to confirm a decision on the basis of an error of law. It would substitute it with a specific requirement that the High Court would confirm the decision unless it is satisfied there was an error or omission in the record of the decision or in the conduct of the proceedings such that the confirmation of the decision would be unjust. The legal threshold for confirmation by the High Court as provided for in the Bill was set after very careful consideration, particularly in light of the Supreme Court's decision in the Zalewski case. It is not intended that the confirmation proceedings should constitute a new appeal on the facts of the case. It is a necessarily limited role, as in the case of other processes, as it would otherwise be unduly cumbersome to operate.

There is a long-standing principle of curial deference being shown by the High Court when reviewing decisions of expert administrative bodies. The Legislature creates expert adjudicative administrative bodies which are expected to have specialist skills, competence and experience in the particular matters for which they have responsibility and the aim here is to allow the High Court to determine any errors of law by the bank and the proportionality of the sanctions to be imposed. This is considered an appropriate change in the law to protect the rights of individuals in line with the requirements of the Zalewski decision.