Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

I move amendment No. 2:

In page 22, to delete lines 2 to 33 and substitute the following:“18. (1) In this section, “regulatory authorities” means the Bank, the Competition and Consumer Protection Commission and the Pensions Authority.

(2) The Council and the Ombudsman shall co-operate with the regulatory authorities with a view to ensuring that this Act operates in a way that contributes to promoting the best interests of consumers and actual or potential beneficiaries of financial or pension services and to the efficient and effective handling of complaints.

(3) Notwithstanding anything contained in any enactment, for the purposes of the performance of the functions of the Ombudsman under this Act, information held by the Ombudsman may be transferred by the Ombudsman to the regulatory authorities.

(4) The Ombudsman may, or shall whenever requested in writing to do so by a regulatory authority provide that regulatory authority with records or copies of records, or information, dealing with specified matters, or matters of a specified kind, relevant to the performance of the functions of the regulatory authority.

(5) The Council or the Ombudsman may make recommendations to the regulatory authorities in relation to measures that those bodies might take in order to—

(a) effectively deal with persistent patterns of complaints made against—

(i) specified financial service providers,

(ii) a specified class of financial service providers,

(iii) specified pension providers, or

(iv) a specified class of pension providers,

(b) improve the way in which financial service providers or pension providers deal with complaints that are made against them, or

(c) effectively deal with any other matter relating to promoting the interests of consumers and actual or potential beneficiaries of financial services or pensions.

(6) A person who discloses information under or for the purposes of this section does not incur liability for defamation or other civil liability only because of the disclosure.

(7) Nothing in this section affects an obligation or power to provide information in any other enactment.

(8) Without prejudice to section 33AK of the Act of 1942, at the request of the Ombudsman, the Bank may validate any information provided to it by the Ombudsman under this section that is used to calculate the financial services industry levy in so far as such data to validate that information is available to the Bank.

(9) The Ombudsman and a regulatory authority may enter into a memorandum of understanding setting out the terms under which they agree to give effect to any of the matters mentioned in subsections (2), (4) and (5)(a) to (c).”.

Section 18 allows for the transfer of information between the ombudsman and the Pensions Authority and the Central Bank of Ireland. This includes enabling the ombudsman and the bank to enter into a memorandum of understanding. Section 77 provides for co-operation, as well as the exchange of information, between the ombudsman and the regulatory bodies of the Central Bank of Ireland, the Registrar of Credit Unions, the Competition and Consumer Protection Commission and the Pensions Authority. There is substantial overlap between the sections. Specifically, they both contain provisions facilitating requests for information from the ombudsman by certain regulatory authorities and granting the ombudsman the power to make recommendations to those authorities. In light of this overlap it is proposed to merge section 77 with section 18. This merger will avoid needless duplication within these sections and increase the cogency of the Bill.

The first drafting change as a result of amendment No. 1 is the inclusion of new subsections (1) and (2) into section 18. These subsections essentially transpose subsections (1) and (2) of section 77. The new subsection (1) defines regulatory authorities as the Central Bank, the Competition and Consumer Protection Commission and the Pensions Authority. These are the bodies with which it is proposed the ombudsman may share information under this section. The inclusion of the Competition and Consumer Protection Commission as a regulatory authority is necessary because it authorises credit intermediaries who provide financial products such as hire purchase agreements and deals with any complaints regarding the advertising of such products. The Registrar of Credit Unions is no longer included as a regulatory authority because credit unions are regulated by the Central Bank and it is, therefore, already included.

The new section 18(2) mirrors a similar existing provision from section 57CQ(1) of the Central Bank Act 1942, which currently governs the co-operation between the council and the Financial Services Ombudsman with the Central Bank. This subsection was in section 77(2) but, from a drafting perspective, we have decided to merge the two sections to eliminate duplication.

Amendment No. 1 also updates subsections (3), (4), (5) and (9) by providing that individual references to either the Central Bank, the Registrar of Credit Unions or the Pensions Authority be replaced by a reference to the "regulatory authorities". As the ombudsman's duty to co-operate and its ability to make recommendations extends to bodies beyond the Central Bank and the Pensions Authority, it is necessary that he or she be able to provide information to all the defined regulatory authorities under the scope of this section.

Section 18(3) allowing information to be transferred despite any other enactments was previously section 18(1) in the Bill as published. Section 18(4), relating to requests for records, was previously section 18(2). Section 18(5) was previously section 18(3) and is further updated by including the "Council" as a body that is able to make recommendations to certain regulatory authorities regarding specified matters, in addition to the ombudsman. This brings this section into line with the text of the equivalent provision in the existing legislation, section 57CQ(2) of the Central Bank Act 1942. The inclusion of the council is also consistent with its review and advisory functions as contained in section 40 of the Bill.

Section 18(6) is a repeat of the original section 18(4), a standard clause which provides that the discloser does not incur liability for defamation.

Section 18(7) is a repeat of the original section 18(5) providing that nothing in this section affects an obligation to provide information in any other enactment.

Section 18(8) is a repeat of the original section 18(6) where the bank may validate information regarding the calculation of the industry levy. The final drafting change made by amendment No. 1 is to expand the scope of the topics covered by memorandums of understanding between the Ombudsman and the regulatory authorities to all matters contained in subsections (2), (4) and (5)(a) to (c). In other words, the authorities' memorandum of understanding can cover matters relating to promoting the best interests of consumers, the provision of records or information, or recommendations regarding persistent patterns of complaint. This change to section (9) ensures consistency with the existing rules regarding such memorandums of understanding, as currently contained in section 57CQ(3) of the Central Bank Act 1942.

As a consequence of the changes proposed to be made to section 18 by amendment No. 2, the provisions contained within section 77 have become redundant. Therefore, amendment No. 16 necessarily removes the entirety of section 77 from the Bill as it is now replicated in section 18.

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