Linda Nelson Murray (Fine Gael)
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I wish to raise a point I raised last week. I hope I am saying this right. Section 2(1)(a)(ii) of the principal Act refers to "a sole trader, partnership, trust club or charity ... with an annual turnover in its previous financial year ... of €3 million or less". I ask that the amount would be raised to €5 million.

Patricia Stephenson (Social Democrats)
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I am very supportive of this Bill, by and large, but I wish to raise one major issue. It pertains to forcing survivors of domestic violence to obtain the consent of their abusers. I know the Minister of State is aware of the point, as I followed the debate in the Dáil. The current process forces survivors of domestic violence to obtain their abusers' consent to file complaints about jointly held financial products. The data we have on domestic violence show specifically that in 2024 there were 65,000 incidences of domestic violence reported to the Garda. Women's Aid states that in 2023, 78% of coercive control cases involved financial abuse. Safe Ireland's finding was that survivors face an average lifetime cost from abuse of €100,000. What this means is that, in its current form, the Bill very much excludes the needs of vulnerable survivors of domestic violence. We have data from women's rights organisations that clearly highlight that financial abuse is often used as a weapon and it traps victims into cycles of control and fear. In its current form, the Bill obliges survivors to obtain their abuser's consent to challenge fraudulent debts or coercive financial arrangements. I know everyone in this Chamber will agree that is morally wrong. The legal barrier within the Bill leaves survivors to choose between financial ruin or continued abuse.

While I welcome the expansion of definitions, I note the omission of the Domestic Violence Act 2018. I would like us to consider adding that financial abuse means behaviour constituting coercive control under the Domestic Violence Act, including unauthorised use of joint accounts or coercive financial agreements. This addition would create a statutory basis for recognising abuse patterns in FSPO decisions.

Robert Troy (Longford-Westmeath, Fianna Fail)
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I will respond initially to Senator Nelson Murray's query. On the previous day we gave an undertaking to look at the issue, but I did not realise we would be back less than a week later to go through Committee Stage. It has not been possible in that short timeframe to give the matter the scrutiny it needs. We are concerned that any delay in the implementation of the Bill could have unintended consequences.For example, it could prevent the Bill being enacted and giving the support to the people who are in the regulated financial entities. We want to give the opportunity to people who are subject to poor practices, perhaps, by vulture funds and who currently do not have recourse to the Financial Services and Pensions Ombudsman in a timely fashion. That is the urgency in bringing the Bill to its natural conclusion through Committee and Remaining Stages in the Seanad, so that it can be referred to the President for signing and become law.

We are still committed to looking at this in the course of the annual review, but it was not possible to do the in-depth analysis that needed to be done in those short few days we were here. Typically the Bill would be a longer time between the Second Stage reading and, subsequently, Committee Stage in the Seanad. I point out that the figures from the CSO show that, in 2021, microenterprises, which are those with fewer than ten persons employed and with a turnover of less than €2 million, accounted for 92.6% of all enterprises in Ireland. The vast majority of microenterprises are included currently. I take on board genuinely what the Senator is saying, however. As I said, there will be an opportunity in the 12-month review to have a look at expanding that, but it was an issue of the time constraints.

With regard to the second point made by Senator Stephenson about joint accounts, that is not related to this section but to a later section. I will speak to it at that stage, if that is okay.

Conor Murphy (Sinn Fein)
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I have not moved the amendment, but I would like to speak to it, if that is possible.

Maria Byrne (Fine Gael)
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The Senator can speak to the section.

Conor Murphy (Sinn Fein)
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Okay. The Bill in its totality relates to the Financial Services and Pensions Ombudsman and that is obviously hugely important. Having gone through its passage in the Dáil, there was a recognition that there had been a loophole in previous legislation whereby people who had their mortgages sold off, quite often without their consent, particularly to vulture funds, had not had the ability to have the protection of the ombudsman in this regard. The amendment that was secured in the Dáil and adopted by the Minister, which I am glad to hear, was aimed to close that loophole in the legislation. I do, therefore, welcome the inclusion of that. As the Minister of State will know, there are approximately 80,000 mortgages that are held by vulture funds and it was absolutely necessary to ensure these people were subject to the same protections as others.

The amendment I tabled, which I am happy to discuss with the Minister of State in the context of the section, calls on the Minister of the day to bring a report before the House on the extension of the remit of the Financial Services and Pensions Ombudsman to cover all mortgage holders. It is a fairly straightforward request and it was prudent given the fact that previous legislation covering the financial sector had not done what was intended, despite the best efforts of the Oireachtas. There is a chance and an opportunity to do so once this legislation has had some road testing and, perhaps, complaints have been launched with the FSPO and there are practical demonstrations of how the legislation is performing. While I do not intend to move the amendment, I would hope the Minister of State might be able to give an undertaking that the Government and the Department would come back to the Dáil or the Oireachtas at a further date to outline how the legislation is working and report back in that regard, especially given the experiences under previous circumstances.

Patricia Stephenson (Social Democrats)
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I want to speak on an element around domestic violence relating to the allocation for specialist training. I would like to see a percentage of expenses charged under subsection 2(a) to be ring-fenced for specialist training on financial abuse detection. TASC's financial abuse programme has successfully trained in excess of 500 professionals, but without dedicated resources, we risk the FSPO missing critical warning signs vis-à-vis domestic violence.

Robert Troy (Longford-Westmeath, Fianna Fail)
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I thank both Senators for their contributions, and Senator Murphy for submitting a particular amendment in this regard. He will be aware that my amendment, which was passed on Committee Stage in Dáil Éireann and extended the jurisdiction of the FSPO with regard to the activity of the credit servicing, was an important and comprehensive amendment that addresses the issue that was previously raised regarding the jurisdiction of the FSPO. I thank Senator Murphy's colleagues, in particular, Deputy Doherty, who was very forceful on this issue. It was a pleasure to work to get this amendment passed because it is critically important the people who had their mortgages sold to these regulated entities have the protection, and not just from now but is actually backdated. That is great peace of mind for the people who have had their mortgages sold on. We are all in unison that those people need to be protected. That is a welcome development.

In terms of the future updates of the FSPO and the legislation, as the Senator is aware, we undertake post-enactment scrutiny for all legislation. This includes the requirement under the Dáil Standing Orders that a post-enactment report is produced and laid in the parliamentary Library 12 months after the enactment of legislation. This 12-month post-enactment period provides a more appropriate timeframe to consider the operation of new legislation, in particular in this case with regard to extending the scope of the FSPO's jurisdiction. The FSPO is also accountable to the Committee of Public Accounts under section 22 of the 2017 Act and to other Oireachtas committees under section 23 of the principal 2017 Act. In recent years, the FSPO has also appeared regularly before the Committee on Public Petitions and before the Ombudsman. In addition, there are a range of parliamentary procedures available through which to seek updates on the FSPO, including parliamentary questions.

Under section 25 of the 2017 FSPO Act, the FSPO publishes a comprehensive annual overview of complaints. Under section 62 of the 2017 Act, it also published decisions with regard to complaints against financial services providers and case studies of decisions with regard to complaints against pension providers, subject to requirements of the Act.

Even with the current timeframe, if a person made a submission to the FSPO today, it would not be heard within the three months. I fully appreciate the sentiments of the amendment. I genuinely feel that three months is far too short. That is why we are not proposing to accept the amendment. I have outlined, however, that there are current procedures in place within the current Dáil procedures, such as parliamentary questions, the various Oireachtas committees and, even in 12 months' time, the publication of a post-enactment analysis. For that reason, therefore, we will not be accepting the amendment.

With regard to financial abuse and-----

Patricia Stephenson (Social Democrats)
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Domestic violence and training.

Robert Troy (Longford-Westmeath, Fianna Fail)
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We are all aware and very cognisant of the difficult issues involving financial abuse and coercive control. In many cases, the courts, not the FSPO, are the best place to deal with any situation in which one holder of a joint account is in dispute with the other. The role of the FSPO is to resolve complaints between the consumers and financial services or pension providers. The FSPO can make orders against regulated financial services providers but not against third parties or other consumers. Instances of potential criminal behaviour, for example, including coercive control, are a matter for An Garda Síochána.

Last week, I attended the launch of the Central Bank's revised consumer protection code. One of the enhancements to the revised code, which I was pleased to see, were the new measures on financial abuse, including the definition of financial abuse. The introduction of the definition of financial abuse within the code is an important step forward in ensuring consumers of regulated financial services have the necessary protection against financial abuse. These measures are part of an important wider financial consumer protection framework, which may help to address at an earlier stage some of the issues the Senators have referenced today and, indeed, on Second Stage relating to consumers who are in vulnerable circumstances as a result of financial abuse, coercive control or in vulnerable circumstances as joint account holders.

Patricia Stephenson (Social Democrats)
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I thank the Minister of State for the response. Really what I am talking about here is specifically how it relates to detection when we talk about an holistic response to domestic violence. I know it might fall traditionally for the Garda to respond to instances of domestic violence, but there is an onus on all different types of State-funded institutions to play a part in detection of that, whether that is vulnerable adults in terms of elder abuse or whether that is victims of domestic violence. There is a role to be played in respect of that training component, and that is what I was referring to specifically as opposed to the code of conduct.

Robert Troy (Longford-Westmeath, Fianna Fail)
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The work plan update in terms of the Financial Services and Pensions Ombudsman was published a number of years ago. Extra resources and extra staff have been allocated to try to deal with cases in a much more timely and efficient manner. The consumer protection code I referred to, which I launched last week, is to try to deal with instances before they ever get to the Financial Services and Pensions Ombudsman to ensure financial institutions honour their responsibility, first and foremost, in the protection of the customer. An enhanced consumer code gives the financial institutions clear guidelines on what they have to do. There are measures in the code for training when it comes to dealing with vulnerable people. This is why I referred to the code. We are trying to get these issues dealt with in a much more timely way. I do not know whether Senator Stephenson heard the ombudsman on "Morning Ireland" last week, on the day the annual report was launched. What that office is trying to do is work with the financial institutions to educate them on their responsibilities. The FSPO does not really want to see cases ending up on its desk. They should be dealt with far more effectively and efficiently and they can be dealt with far more effectively in the institutions themselves. We have seen a new consumer code published, and training on vulnerable people is part of this. We have seen additional resources and staff given to the FSPO so people will have their rights vindicated in a timely fashion.

Patricia Stephenson (Social Democrats)
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The Minister of State was going to respond to my first intervention when we reached section 9. I had spoken at the incorrect time.

Robert Troy (Longford-Westmeath, Fianna Fail)
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I have just double-checked and it is for section 12.

Conor Murphy (Sinn Fein)
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I will not move my amendment and will speak to the section.

Conor Murphy (Sinn Fein)
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This speaks to the point Senator Stephenson was making on joint ownership of an account. I listened carefully to what the Minister of State said in his earlier response which touched on this area. I am not 100% certain that it contains enough protection for people. Quite often the ability to escape from coercive behaviour is very much wrapped up in financial matters relating to the home. While we have said this is a matter for the Garda Síochána to investigate, there is an argument for the involvement of the FSPO and financial services institutions generally to have a much stronger role in protecting people who find themselves in a vulnerable situation where they are locked into this.

The Minister of State said there is no option with regard to existing situations but this is where the problem arises. It is only when people have been in an arrangement together for some time and it breaks down for whatever reason that these situations arise. While I do not intend to press the amendment, there is an opportunity to look at this again. There is an opportunity for the institutions themselves and for the FSPO when they find there is cause to allow people to review joint arrangements. They have the authority and a role to be able to do this. We are now much more aware of how coercive behaviour and domestic abuse manifest over time. The ability of people to escape from them can be very much tied up in the arrangements in the home, and financial arrangements are a key part of this. I hope the Minister of State and the Government will look at this again and will have conversations with the financial authorities and the FSPO to see what more can be done to protect people in vulnerable situations.

Patricia Stephenson (Social Democrats)
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I agree with what Senator Murphy has said about fear, coercive control and people being trapped in these cycles, and the importance of us having institutions that recognise, spot, detect and respond to this. We have options. We have protection orders, which exist in the Domestic Violence Act. Is there something that can be done in terms of using these protection order mechanisms and using exemptions already in money laundering legislation to address the issue of joint consent? The onus is on us. I know the Minister of State agrees because I was following the previous discussion. We need to find the systems and mechanisms we have in existing legislation to see how we can make them work in this new legislation. The onus is on us to support survivors in every way we can.

Robert Troy (Longford-Westmeath, Fianna Fail)
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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.

Patricia Stephenson (Social Democrats)
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The Minister of State will be sick of me. There is also a component with this whereby the new cross-examination powers lack the safeguards for vulnerable witnesses. Re-traumatisation is a really common thing for survivors of domestic violence during financial proceedings. Perhaps we could consider the option of having examinations conducted through written submissions unless the complainant requests otherwise. The Minister of State might review this. This procedural protection would remove a significant barrier to justice without compromising the investigative powers of the ombudsman. That is something that might be considered.

Robert Troy (Longford-Westmeath, Fianna Fail)
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Section 13 provides that the ombudsman may require any person to attend before him and be examined and cross-examined on oath or affirmation. This updates the 2017 FSPO Act to include a provision for cross-examination and also provides for a person to make an affirmation in place of taking an oath. Senators may be aware that many of the amendments in this Bill arise from the Supreme Court ruling in the case of Zalewski v. an adjudication officer, the Workplace Relations Commission, Ireland and the Attorney General. In that ruling, the Supreme Court held that in respect of the exercise of powers by the adjudication officers, pursuant to Part 2 of the Workplace Relations Act 2015 and the administration of justice under Article 34 of the Constitution, the administration of justice in accordance with Article 34 is normally the preserve of the courts. The court also found, however, that the administration of justice as carried out by the adjudication service is permissible within the meaning of Article 37 of the Constitution because the administration of justice is limited.

The proposed amendment seeks to give effect to the Zalewski case. The Supreme Court found that the cross-examination of witnesses for the opposing party is a fundamental element of fair procedures as guaranteed under Article 40.3 of the Constitution. The proposed amendment in section 13 also seeks to ensure that section 47(3)(b) of the principal Act is consistent with the FSPO's oral hearing guidelines and existing practice. The FSPO's current oral hearing guidelines state that witnesses will be required to give evidence under oath affirmation and that each party will be entitled to cross-examine the witnesses. During FINPERT committee public hearings with FSPO officials on 10 May 2023, the then ombudsman indicated that the cross-examination of witnesses had always been a feature of oral hearings before the FSPO. This amendment is simply to clarify the process and underpin it with a legislative basis. I thank the former FINPERT committee for its recommendation on the inclusion of affirmation in addition to oath in the pre-legislative scrutiny report, which is an improvement on the wording set out in the general scheme of the Bill.

My officials tell me that in this instance, it is notable that since mediation was introduced in early 2016 as the primary initial process for resolving complaints, this has led to a reduction in the overall number of oral hearings required. In that context, by way of comparison with the 12 oral hearings scheduled in 2016, there were only three in 2021, four in 2022, one in 2023 and two in 2024. Most of this is resolved by mediation where there is no public display in overt hearings or cross-examinations. This amendment is just arising as a requirement of the Supreme Court ruling in the Zalewski case.

Patricia Stephenson (Social Democrats)
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What this amendment is not in line with is the Istanbul Convention on Violence Against Women and Girls and our obligation as a State to protect survivors of violence. That is my one comment on that. I do not think it is in the spirit of the case that there is not fairness when it comes to survivors being forced to sit in a room with their abuser. It is something to be cognisant of.

Robert Troy (Longford-Westmeath, Fianna Fail)
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I am just confirming with my officials that my understanding is right. This is not one party against the other. I cannot bring my wife, or my wife cannot bring an argument with me to the financial services ombudsman. It would be me and her bringing a complaint to the ombudsman where the financial services provider failed in its duty in terms of a pension we had taken out, for example, or a financial product. It is the financial institution that will be cross-examined, not one of the parties. The amendment Senator Murphy put down, and the one Deputy Doherty proposed and on which there was a comprehensive debate in the Dáil, related to where, because of martial breakdown or domestic abuse, one person wanted to proceed with a complaint against the financial institution, and currently this requires the two signatures. That is where we are all at one and I have written to the Minister for Justice to see if there is a way around it. It is never going to be that either party is cross-examined. It will be the financial institution being cross-examined. In terms of domestic abuse as an issue, this will never be dealt with by the financial services ombudsman.

Cathal Byrne (Fine Gael)
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I speak in support of this amendment to the principal Act. It is important where a member of the public has experienced and been a victim of financial wrongdoing, the mis-selling of financial products or financial fraud at the behest of somebody who is regulated under the provisions of this Act, that there be the opportunity for an individual complainant or two complainants, whatever the case may be, for evidence to be taken under oath in the course of those proceedings, with the penalties that go with that to apply. It is important that those provisions remain part of this Bill. If there is a question mark over what exactly happened in the context of an investigation, it is only right and proper that the evidence presented in the course of that investigation can be scrutinised under oath.

Patricia Stephenson (Social Democrats)
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I understood what the Minister of State was saying but to sit in a room with your abuser, not being cross-examined by them but sitting an a room with them and being obligated to be cross-examined by the ombudsman, could be a very re-traumatising incident, especially in cases with an active protection order, of which there might be very few. We might not be seeing many on an annual or five-year basis but it is really about having that protection built in to how the process works. If someone has a protection order against another person and they are going into this procedure, it would be an incredibly re-traumatising experience. That is why I suggested this.

Maria Byrne (Fine Gael)
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When is it proposed to take Report Stage?

Linda Nelson Murray (Fine Gael)
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Next Tuesday.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Maria Byrne (Fine Gael)
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When is it proposed to sit again?

Cathal Byrne (Fine Gael)
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Tomorrow at 10.30 a.m.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.