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

I note Senator Horkan’s amendment, which seeks to introduce a new section to Deputy Pearse Doherty’s Bill to oblige the Financial Services Ombudsman to hold an oral hearing where there is a discrepancy in the account of events between the parties and the complainant has requested such a hearing. As the Senators may be aware, as part of the ombudsman's procedures for resolving complaints, an oral hearing may be necessary where there is an issue of fact in dispute between the complainant and the provider in circumstances where the ombudsman cannot resolve fairly without hearing both sides.

In the course of reviewing the evidence, the ombudsman will consider whether an oral hearing is necessary. It is solely at the ombudsman's discretion to decide whether to hold an oral hearing. This proposal to require oral hearings where there is a discrepancy in the parties' account of events was discussed during the Dáil Committee Stage debate on 11 May. The then Minister for Finance, Deputy Noonan, noted during the debate that oral hearings are best left to the discretion of the Financial Services Ombudsman and that this is common practice in many public bodies.

While I appreciate what Senator Horkan is trying to achieve, the proposal could have a negative impact on the consumer as there are always discrepancies at an initial stage when a complaint is made. I am advised that the proposal could inadvertently impose a requirement for oral hearings in all circumstances. I have been informed that it is the experience of the Financial Services Ombudsman that providers are usually well represented at oral hearings and, therefore, it can be a difficult process for the complainant who must undergo cross-examination in an adversarial environment. As a result, the courts have, on a number of occasions, endorsed the ombudsman's decision regarding whether to hold an oral hearing. In addition, the High Court and Supreme Court have noted on a number of occasions that the ombudsman holds oral hearings where necessary and it is more suitable that this power is maintained in a discretionary manner.

It seems contrary to fair procedures to allow only the complainant to dictate when an oral hearing is held. There is a risk that the proposed amendment would also have to allow the provider to demand an oral hearing. If this were the case, it is the view of the Financial Services Ombudsman that complainants would be placed at a significant disadvantage and potentially discouraged from taking cases in the first place. Moreover, the premise of the Bill and existing legislation is to support informal redress procedures. I am sure the Senator will agree that the best way to achieve this is through mediation. The Government Bill allows for the Financial Services Ombudsman to take a more proactive approach to encourage participation. Mediation is also at the heart of this Bill.

While I appreciate the Senator’s desire to achieve a solution in difficult cases, it is clear that oral hearings must be at the discretion of the Financial Services Ombudsman and that mediation should be the primary route. For these reasons, I do not support this amendment.