FIG Top 5 At 5 - 23/02/2023

• Jurisdiction: European Union
• Law Firm: Matheson
• Subject Matter: Finance and Banking, Technology, Financial Services, Fin Tech
• Author: Matheson Asset Management And Investment Funds Group
• Published date: 08 March 2023

1. Central Bank (Individual Accountability Framework) Bill 2022: Seanad Committee Stage and Report Stage

Committee Stage:

On 16 February 2023, the Central Bank (Individual Accountability Framework) Bill 2022Opens in new window (the "Bill")was taken at Committee Stage, Seanad Éireann (the "Seanad").

Government amendments

As signalled by the Minister at Second Stage of the Seanad, the Government proposed two amendments at Committee Stage. The Minister noted that these amendments are transitional provisions and determine the extent to which an inquiry, that is already under way at the time the relevant provisions of the Bill are commenced, shall be affected by the provisions. Both amendments were accepted.

Senator McDowell's amendments

At the outset of the discussion, Senator Michael McDowell proposed amendments to Part 2 of the Bill to include

• a general duty of disclosure on the Central Bank of Ireland (the "Central Bank") where an investigation has been initiated against a natural person; and
• to provide for legal assistance for individuals under investigation, where the interests of natural justice require it.

The amendments were discussed in detail but were not accepted. The responses from the Minister of State at the Department of Finance, Deputy Jennifer Carroll MacNeill, (the "Minister of State") are however, worth noting.

Duty of Disclosure

In response to Senator McDowell's proposed amendment, the Minister of State advised that "irrespective of this legislation, the Central Bank, as a public body, is obliged to act in a manner consistent with its obligations under administrative law and with the constitutional rights of individuals to fair procedure, including the right to be heard and to mount a defence, in the context of any investigation or inquiry".

In addition, she advised that the duty of disclosure "has already been built into the Bill throughout each set of processes" and outlined a number of areas which include such provisions. She noted that there will be "new obligations on the bank, partly informed by the Supreme Court in the Zalewski case, to ensure a person who is subject to investigation by the bank, whether under the administrative sanctions procedures or the fitness and probity regime, will have access to all the information on the basis of which an enforcement decision may be based".

Discontinuation of an investigation

Responding to Senator McDowell's questions on the discontinuation of an investigation and the possible impact on an individual's professional reputation, the Minister of State noted that the reason for the discontinuation "will have to be provided as a matter of fairness to the individual". In relation to discontinuation for reasons of resources, she noted that although the Bill refers to "reasons of resources", the decision to discontinue may also be prompted by the availability of specialist investigators and not just by financial resources. She explained that the Central Bank may wish to divert those resources to a more important or urgent issue and the should have the discretion to do so.

Legal assistance

Regarding the proposed amendment on legal...