Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

I thank the Senators for raising this matter. It is why I said earlier to Senator's Stephenson that the discussion on section 12 is the most appropriate time to reply. I thank Senator Murphy for tabling the amendment. There was a detailed and comprehensive discussion on this issue on Committee Stage in the Dáil, which highlighted that this complex matter involves wider legal and contractual issues. For the information of Senators, during the Dáil debate I noted the FSPO advised that where a complaint is made to it concerning a joint account or joint policy, the FSPO must recognise that all parties who own the account or policy have rights, entitlements and potential liabilities arising in relation to such an account or policy. The rights, entitlements and potential liabilities of joint account owners arise not only from a legal and contractual perspective but also from other legislative and regulatory sources, such as data protection legislation.

I listened to what Senator Murphy said regarding the banks doing more. Recently, I gave the example in the Dáil that when I tried to change a joint account with my wife, the bank would not do it - rightly so from the point of view of protecting both parties - without both signatures and both IDs. This was to ensure I was not trying to take control of the account without her prior consent. This is there.

Recognition of these rights, entitlements and potential liabilities is important due to the potential for the complaint to conclude by way of a binding mediation settlement agreement using the confidential dispute resolution service of the FSPO, or by way of legally binding decisions following an informal investigation by the FSPO.

Other considerations worth noting are that the joint account holder who has not consented to the complaint may hold key information relevant to investigation of the complaint. This approach is of note given the views of the Supreme Court in the Zalewski case, which we have discussed throughout the debate on the Bill. It is against this constitutional background that the FSPO operates a quasi-judicial function and issues decisions that are legally binding on parties. This binding outcome is understood to be unique in the European context, as many similar bodies in Europe issue recommendations rather than legally binding opinions.

As mentioned, there was a good discussion on this issue when Deputy Doherty proposed the same amendment on Committee Stage in the Dáil last month. Work on this matter is progressing and, at my request, the Minister for Finance has written to the Minister for Justice to see how potentially this issue can be explored further, given the broader legal and contractual context at play here. Also, officials in the Department of Finance are engaging with the FSPO on this matter. We are all in agreement that this is a very important issue. We must also take the legal advice that, because of the contractual issues at play, it is not as easy as accepting the amendment. We share Senator Murphy's views and we have written to see whether there is any way this can be progressed further. One of the suggestions made by Senator Murphy's colleague is that while it cannot be progressed retrospectively, a measure may be able to be introduced from that day forward.These are things we have written to seek advice on. As I said in reply to the previous Senator, the timeframe is quite short from when we were here last week to being back here today. There has not been time to do the detailed analysis. The 12-month review is the opportunity and is something we will keep a close eye on.