Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

I thank the Senator. I am not sure that I said it could be looked at again. I said if the need arises and there are difficulties, it could be looked at again. As in all matters of legislation, we have to go back and fix our mistakes. That sort of speaks to one of the points I wish to make on this issue. We need to think about this more broadly. People are going to make mistakes throughout their careers. They are going to make mistakes of process. A lot of it is about whether those are mistakes of fact or intentional mistakes, and we have to treat those things very differently. I am going to make mistakes in my position as Minister of State. Everybody here will make various mistakes. People working in the financial services industry are going to make mistakes because they are human. If there is a regime that allows for an informal investigation to name and account for a mistake and move on from it, that is much better than having a regime that does not enable that quick resolution of process, identification of mistakes and the capacity to learn from those mistakes.

We need to have a culture of acknowledging and owning one's mistakes and the mistakes that can happen within an institution, and enabling the institution to put the cultural and process changes in place to ensure those mistakes do not happen again. It would nearly be a pity were that to get to the point where it ends a person's career. We have to build into every process the fact that errors will be made. It is about how one accounts for those mistakes and the implications they have both for the individual and the institution. It is a very different thing when it comes to intentional or fraudulent mistakes or mistakes of such sheer incompetence that they threaten financial processes more broadly. We must have a proportionate regime to deal with those also.

Although the various issues the Senator has raised are not contradictory in any way, the fact he is raising these different competing issues speaks to the balance we are trying to achieve here. First, we are trying to achieve a change in culture and processes that means mistakes can be quickly identified and accounted for properly and officially. Second, we wish to ensure that where investigations must happen, they take place in the least litigious or adversarial way possible. We know we are likely to get the best outcomes through a fact-finding inquisitorial model rather than through an adversarial one. People's reputations, both throughout the process and thereafter, are more likely to be enhanced and we are more likely to effect broader cultural change through an inquisitorial model rather than an adversarial model, which can tie people up for a considerable time. Adding in legal representation as an entitlement, precursor or assumption tends to make things more adversarial than they would otherwise be. We are trying to design processes that do not encompass that.

On the point in respect of providing information, it is built through the Bill that all reasonable information must be provided. The authorised officer decides what is relevant to the decision. It is important to acknowledge and discuss that subjectivity in the Bill. If the Senator and I were authorised officers, we might have very different views about what is relevant. Where the Central Bank guidance and regulations come into that is extremely important. There are people in the Central Bank and elsewhere in the financial services industry watching these proceedings and listening to this dialogue. It is important that we have this discussion and identify the intention of the Oireachtas in this regard. We are allowing a certain measure of subjectivity but, in the context of the consultation process between the bank and the people whom it will be regulating in this way, there is an obligation on the bank to be explicit in respect of what it expects. It is obliged to be transparent in order that participants can have full knowledge in advance of what they would need to do were they involved in an investigation. There is a measure of necessary subjectivity in the Bill to enable that balance and to keep it in the more informal and inquisitorial nature I described. It is an important point.

I do not believe, however, that we need to provide legal representation in the manner suggested by the Senator. We are trying to avoid that. Our experience is that the provision of such representation has not been necessary. Indeed, the Supreme Court has stated that we do not have to go there.