Aideen Hayden (Labour) | Oireachtas source

I understand that. I have one opportunity to speak and I will take it. We must all agree and move on in this regard. As I have already said, I am a solicitor and I understand the need for a functioning mortgage and banking market but there must also be confidence in the system, which there is not at this time. There is no confidence in the banking system or insolvency regime because it has not yet had a chance to play out. There is no confidence in the mortgage arrears resolution process. The Minister, of all people, is open-minded.

The Free Legal Advice Centres, FLAC, have made a number of submissions outlining reservations about the new mortgage arrears resolution process. I sat in the House the day before yesterday when we were told this is a matter for the Central Bank and not the Minister for Finance but I understood there is a high-level Government group engaged with this process. I cannot understand why the Minister for Finance is fobbing this off on the Central Bank. Of course the mortgage arrears resolution process is a matter for the Central Bank but where is the high-level group that is supposed to be engaging with this and in which we are meant to put our trust? I want to see something more coming from the Government with the issue.

A comment was made by colleagues in government about independent advice. To my mind one of the biggest problems we are dealing with in the system and a reason for the lack of confidence in what is proposed is the lack of any real, sustainable and expert advice available to somebody in mortgage arrears. For this reason there must be a veto option. The Money Advice and Budgeting Service, MABS, is a wonderful organisation but it is national and its product is variable, as resources are not sufficient for a distressed borrower who must approach a lender offering a debt solution or even before that point. Such a lender does not have anybody to bat for them who has legal advice and accountancy expertise. Where is the person to put the lender in the same ring with the lender?

When I studied law I was taught about a contra proferentum rule, meaning the rules should be interpreted against the person making the rules. I do not see that in what is being proposed here, and where is the facility to put the distressed borrower on an equal footing with the person offering the solution? The lender cannot refuse the solution and when a lender appeals against a solution, it is done within the process offered by the bank that is giving the solution. There is a real issue in terms of a veto.

I appreciate that the Minister has in good faith indicated that if we find the legislation is not working, he will go back to the drawing board. Nevertheless, I am very much aware that I am dealing with a number of people who are receiving letters from a bank telling them they are not engaging and repossession proceedings will commence but at the same time the people in question have a stack of correspondence from the bank indicating they are trying to achieve an outcome. We are not putting the people in mortgage arrears on the same playing field as they ought to be with a lending institution.

In the legislation there is mention of the principal private residence, with judges having the opportunity to agree that a personal insolvency practitioner should be brought in to examine the issue. There is a fundamental flaw in that as if the lender is unwilling to engage, how will there be any significant difference? Ultimately, this goes back to a bank veto. I appreciate that the Minister has left an open door and indicated a willingness to re-engage on the matter. There is a problem nonetheless and we must accept that ultimately this is about confidence. I would personally like to see a debt settlement office and an independent person that disgruntled borrowers or lender can see in that regard, with all of what was proposed being discussed. There could be a judgment from the office.

I do not agree with the opinion from the Opposition that the courts should decide this. I made the point with regard to Senator MacSharry's Bill that we do not want more judicial engagement and we want fewer court settlements. I agree that the personal insolvency legislation goes down that track. There should be somebody to indicate whether a personal insolvency practitioner formulates a very good solution and this should be put to somebody who can give a judgment that is not from the court. There is an idea that a lending institution - which might hold all the debt for an individual - does not have to deal with the matter.