Central Bank (Individual Accountability Framework) Act 2023

“33AR. (1) Subsection (2) applies if—

(a) the Bank—

(i) after considering the final report of an investigation, and any submissions, provided to it under section 33ANK(5), or

(ii) where there are undisputed facts that in the reasonable opinion of the Bank render an investigation unnecessary,

suspects on reasonable grounds that a person is committing or has committed a prescribed contravention, and

(b) the person acknowledges the commission of the contravention.

(2) Where this subsection applies, the Bank may—

(a) with the person’s consent, dispense with an inquiry and impose on the person any sanction that it is empowered to impose under section 33AQ(3), or

(b) hold an inquiry to determine what (if any) such sanction should be imposed on the person.

(3) Subsection (4) applies if—

(a) the Bank—

(i) after considering the final report of an investigation, and any submissions provided to it under section 33ANK(5), or

(ii) where there are undisputed facts that in the reasonable opinion of the Bank render an investigation unnecessary,

suspects on reasonable grounds that a person is participating or has participated, while performing a relevant controlled function, in the commission of a prescribed contravention, and

(b) the person acknowledges participation in the contravention.

(4) Where this subsection applies, the Bank may—

(a) with the person’s consent, dispense with an inquiry and impose on that person any sanction that it is empowered to impose under section 33AQ(5), or

(b) hold an inquiry to determine what (if any) such sanction should be imposed on the person.

(5) The imposition of a sanction under subsection (2)(a) or (4)(a) does not take effect unless confirmed by the High Court under section 33AWA.

(6) The imposition of a sanction under subsection (2)(b) or (4)(b) is subject to section 33AW(4).

(7) Section 33AP, except subsection (2), applies to an inquiry under subsection (2)(b) or (4)(b) of this section as it applies to an inquiry under section 33AO.

(8) At the conclusion of an inquiry held under subsection (2)(b) or (4)(b) the Bank shall notify the person concerned of its decision, which shall set out the sanctions (if any) imposed under that paragraph.

(9) A notification under subsection (8) must also state that the person may, under Part VIIA, appeal against the finding, and any decision to impose a sanction, in accordance with section 33AW.”.

48. Considerations relevant to imposition of sanctions

48. Part IIIC of the Act of 1942 is amended by the insertion of the following section after section 33AR:

“33ARA. (1) In determining under section 33AQ or 33AR whether to impose a sanction on a natural person, what sanction to impose on a natural person, or the level of any monetary penalty to be imposed on a natural person, the Bank shall have regard, together with any other relevant considerations, to any of the following that appear to it to be relevant:

(a) any consideration affecting the seriousness of the prescribed contravention concerned, including—

(i) the person’s seniority and level of responsibility, and the nature of any role performed by the person, at the time of the person’s commission of or participation in the prescribed contravention,

(ii) the extent to which the person’s conduct in committing or participating in the prescribed contravention departs from any standard to which the person is subject,

(iii) whether the person’s conduct was intentional, negligent, or dishonest,

(iv) whether the person’s conduct involved or facilitated the commission of an offence, and the nature and seriousness of any such offence,

(v) the duration of the period over which the person committed or participated in the prescribed contravention,

(vi) whether the sanction relates to more than one prescribed contravention, or to the repeated commission of or participation in a prescribed contravention, and

(vii) any benefit gained or loss avoided, by means of the prescribed contravention, by the person or a regulated financial service provider or any other person,

(b) the effect of the prescribed contravention, including—

(i) whether it has affected or may affect the orderliness of the financial markets, including public confidence in those markets,

(ii) any loss or detriment it has caused or may cause to a regulated financial service provider, or to customers, consumers, other market users or third parties, and

(iii) whether any loss or detriment has affected or may affect vulnerable persons,

(c) the conduct of the person during and after the person’s commission of or participation in the prescribed contravention, including—

(i) how quickly, effectively and completely the person brought the prescribed contravention to the attention of a regulated financial service provider, the Bank or any other relevant regulatory authority, agency or criminal investigative body, and

(ii) the degree of cooperation by the person with the Bank or any other relevant regulatory authority, agency or criminal investigative body provided during an investigation of the contravention,

(d) the previous record of the person, including—

(i) whether or not the Bank has previously imposed a sanction on the person or the Bank or the Governor has issued a prohibition notice to the person under section 43 of the Central Bank Reform Act 2010 , and

(ii) whether or not the person has previously been convicted of an offence relevant to the performance of a controlled function,

(e) any consideration relating to pending or possible criminal proceedings, including whether such proceedings may be prejudiced by the imposition of a sanction, and

(f) any matter relevant to the financial position of the person.

(2) In determining under section 33AQ or 33AR whether to impose a sanction, what sanction to impose, or the level of any monetary penalty, in the case of a contravention of section 53C of the Central Bank Reform Act 2010 , the Bank shall have regard to the importance of promoting a culture of compliance with the common conduct standards and additional conduct standards (within the meaning of Part 3A of that Act).”.

49. Amendment of section 33AS of Act of 1942

49. Section 33AS of the Act of 1942 is amended—

(a) in subsection (2), by the substitution of “a natural person” for “a person”, and

(b) by the substitution of the following subsection for subsection (3):

“(3) If conduct engaged in by a person constitutes—

(a) two or more prescribed contraventions by that person,

(b) participation by that person in two or more prescribed contraventions by a regulated financial service provider, or

(c) one or more prescribed contraventions by that person and participation by that person in one or more prescribed contraventions by a regulated financial service provider,

an inquiry may be held under section 33AO or 33AR in relation to one or more of the contraventions, but only one monetary penalty may be imposed on that person under section 33AQ or 33AR in respect of the same conduct.”.

50. Amendment of section 33AT of Act of 1942

50. Section 33AT of the Act of 1942 is amended—

(a) in subsection (1)—

(i) by the insertion of “on a person” after “penalty”, and

(ii) by the substitution of “person” for “financial service provider or other person concerned”,

and

(b) in subsection (2)—

(i) in the words before paragraph (a), by the substitution of “person” for “financial service provider, or on a person concerned in the management of the financial service provider”, and

(ii) in paragraph (a), by the deletion of “financial service provider or other”.

51. Observance of directions imposing disqualification or conditions

51. The Act of 1942 is amended by the substitution of the following section for section 33AU:

“33AU. A regulated financial service provider shall ensure that a person is not permitted to perform a controlled function in relation to the financial service provider in circumstances, or in a manner, that would contravene a direction which is imposed under section 33AQ or 33AR by virtue of subsection (3)(d) or (da) or (5)(c) or (ca) of section 33AQ.”.

52. Amendment of section 33AV of Act of 1942

52. Section 33AV of the Act of 1942 is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) If the Bank suspects on reasonable grounds that—

(a) a person is committing or has committed a prescribed contravention, or

(b) a person is participating or has participated, while performing a relevant controlled function, in the commission of a prescribed contravention by a regulated financial service provider,

it may, except where the person acknowledges the commission of or participation in the prescribed contravention, enter into an agreement under this section in writing with the person to resolve the matter.”,

(b) in subsection (2)—

(i) by the substitution of “the person” for “the financial service provider or person”, and

(ii) by the substitution of “the person” for “that financial service provider or person”,

(c) in paragraph (a) of subsection (3), by the deletion of “or 33AR”,

(d) in subsection (3A), by the substitution of “the person” for “the regulated financial service provider or person concerned in the management of the financial service provider”, and

(e) in subsection (3B)—

(i) by the substitution of “the person” for “the regulated financial service provider or person”, and

(ii) by the substitution of “the person” for “that regulated financial service provider or person”.

53. Appeal, confirmation and taking effect of decisions under this Part

53. The Act of 1942 is amended by the substitution of the following section for section 33AW:

“33AW. (1) In this section—

(a) an ‘inquiry decision’ means any of the following:

(i) a finding made by the Bank under section 33AQ(1) or (2);

(ii) a decision of the Bank imposing a sanction under section 33AQ;

(iii) a decision of the Bank imposing a sanction under section 33AR(2)(b) or (4)(b),

and

(b) an ‘appeal decision’ means a decision of the Appeals Tribunal affirming or varying, or made in substitution for, an inquiry decision.

(2) An inquiry decision is an appealable decision for the purposes of Part VIIA.

(3) An appeal under Part VIIA against an inquiry decision may be made only on one or more of the following grounds:

(a) any ground that could, but for section 33BF, be relied on in an application seeking judicial review of the inquiry decision;

(b) so far as it is not within paragraph (a), the ground that any sanction imposed is not proportionate.

(4) An inquiry decision and an appeal decision do not take effect unless confirmed by the High Court on an application under this section.

(5) Where—

(a) a person who is the subject of an inquiry decision does not, under Part VIIA, appeal against that decision within the period required by that Part,

(b) an appeal under Part VIIA against an inquiry decision is withdrawn, or

(c) the Appeals Tribunal makes an appeal decision,

the Bank shall, as soon as practicable, make an application to the High Court for confirmation of the inquiry decision or appeal decision, as the case may be.

(6) On an application under subsection (5), the High Court shall confirm the decision unless it is satisfied, on the basis of the evidence that was before the Bank or the Appeals Tribunal when making the decision—

(a) that the Bank or the Appeals Tribunal made an error of law which is—

(i) manifest from the record of the decision, and

(ii) fundamental so as to deprive the decision of its basis,

or

(b) that any sanction imposed is manifestly disproportionate.

(7) Where, on an application under subsection (5), the High Court does not confirm the decision, the Court may—

(a) substitute for the decision any appropriate decision that the Bank or the Appeals Tribunal, as the case may be, could have lawfully made in relation to the matter, or

(b) set aside the decision and remit the matter for reconsideration by the Bank or the Appeals Tribunal, as the case may be, together with any recommendation or direction of the Court as to what aspects of the matter should be reconsidered.

(8) An application under subsection (5) may be made on an ex parte basis provided that the person who is the subject of the decision informs the Bank in writing that the person agrees to the application being made ex parte.

(9) A decision confirmed by the High Court under this section, and a decision of the High Court made under subsection (7)(a) in substitution for a decision—

(a) takes effect on the day on which the Court’s decision is given or such later date as the Court may specify in its decision, and

(b) has effect as an order of the Court and may be enforced accordingly.”.

54. Confirmation of sanctions imposed by consent

54. The Act of 1942 is amended by the insertion of the following section after section 33AW:

“33AWA. (1) Where the Bank by consent imposes a sanction under section 33AR(2)(a) or (4)(a), the Bank shall, as soon as practicable, make an application to the High Court for confirmation of the imposition of the sanction.

(2) On an application under this section the High Court shall confirm the imposition of the sanction unless it is satisfied that the sanction imposed is manifestly disproportionate.

(3) Where on an application under this section the High Court does not confirm the sanction, the Court shall remit the matter for reconsideration by the parties, together with any recommendation of the Court as to what aspects of the matter should be reconsidered.

(4) An application under subsection (1) may be made on an ex parte basis provided that the person on whom the sanction is imposed informs the Bank in writing that the person agrees to the application being made ex parte.

(5) The imposition of a sanction confirmed by the High Court under this section—

(a) takes effect on the day on which the Court’s decision is given or such later date as the Court may specify in its decision, and

(b) has effect as an order of the Court and may be enforced accordingly.”.

55. Repeal of section 33AX of Act of 1942

55. Section 33AX of the Act of 1942 is repealed.

56. Interpretation (Chapter 3)

56. Chapter 3 of Part IIIC of the Act of 1942 is amended by the insertion of the following section before section 33AY:

“33AXA. In this Chapter—

‘inquiry members’ has the meaning given by section 33BE(7);

‘person presiding’ in relation to an inquiry means the inquiry member appointed to chair the inquiry.”.

57. Amendment of section 33AY of Act of 1942

57. Section 33AY of the Act of 1942 is amended—

(a) in subsection (2), by the insertion of “(without prejudice to section 33BAA)” after “but”,

(b) by the insertion of the following subsection after subsection (2):

“(2A) At an inquiry the functions of the Bank include the making of submissions, leading of evidence and examination of witnesses on behalf of the Bank and any other function required for conducting the inquiry.”,

and

(c) by the substitution of the following subsection for subsection (3):

“(3) Subject to section 33BE, the Bank may be assisted by a legal practitioner for the purpose of performing any of the functions referred to in subsection (2A).”.

58. Amendment of section 33AZ of Act of 1942

58. Section 33AZ of the Act of 1942 is amended—

(a) in subsection (2), by the deletion of “financial service provider or other”, and

(b) by the insertion of the following subsection after subsection (3):

“(4) Subject to section 33AZA, the Bank may, where it is satisfied that in doing so a person’s reputation would not be unfairly prejudiced, publish a record of any procedural matter relating to an inquiry or a transcript of all or any part of the proceedings of an inquiry, whether with or without any information which would enable the persons taking part in the proceedings, or any one or more than one of them, to be identified, as it thinks appropriate.”.

59. Power to order information about proceedings not to be disclosed

59. The Act of 1942 is amended by the insertion of the following section after section 33AZ:

“33AZA. (1) Subject to subsections (2) and (3), where the person presiding at an inquiry is satisfied that there are reasonable grounds for doing so, that person may direct that specified information relating to specified proceedings before the inquiry, so far as it is held in public, shall not be disclosed.

(2) A direction under subsection (1) does not prohibit the disclosure of information in such form as to prevent particulars relating to the identity of the following persons from being ascertained from the information:

(a) a person to whom the inquiry relates;

(b) in the case of an inquiry held under section 33AO(2) or section 33AR(4)(b), the regulated financial service provider concerned;

(c) a person taking part in the specified proceedings;

(d) any other specified person.

(3) In subsections (1) and (2), ‘specified’, in relation to a direction under subsection (1), means specified in the direction.

(4) Nothing in this section or a direction under subsection (1) shall be construed as prohibiting the disclosure of any information pursuant to a court order.

(5) A person who contravenes a direction under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.”.

60. Confidential information provided for purposes of inquiry not to be disclosed

60. The Act of 1942 is amended by the insertion of the following section after section 33AZA (inserted by section 59):

“33AZB. (1) Where confidential information is provided to a person for the purposes of an inquiry, that person shall not, subject to section 33AK, disclose that information unless authorised to do so by the Bank in writing or required to do so by law.

(2) A person who contravenes subsection (1) shall be guilty of an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.

(3) Nothing in subsection (1) prevents a person who is the subject of an inquiry, or who is required to attend before an inquiry, from disclosing information to his or her legal representative.

(4) In this section ‘confidential information’ includes information given to a person for the purposes of an inquiry where—

(a) the person has been notified by the person presiding at the inquiry that the information is confidential, or

(b) the information is of a class or description in relation to which the person has been notified by the person presiding at the inquiry that information of that class or description is confidential.”.

61. Amendment of section 33BA of Act of 1942

61. Section 33BA of the Act of 1942 is amended by the insertion of the following subsections after subsection (9):

“(10) The Bank may apply to the High Court for an order referred to in subsection (11) in respect of any person who, at an inquiry—

(a) behaves in a manner referred to in paragraphs (a) to (d) of subsection (9),

(b) without reasonable excuse, fails to comply or refuses to comply with a requirement or request made by the person presiding at the inquiry,

(c) threatens or insults any person presiding at the inquiry or any witness or other person summoned or authorised to attend before the inquiry,

(d) interrupts the proceedings of the inquiry,

(e) discloses, or authorises the disclosure of, evidence given before the inquiry or any of the contents of a document produced at a hearing that the person presiding at an inquiry has directed not to be published,

(f) discloses, or authorises the disclosure of, evidence given before the inquiry at a hearing held in private or any of the contents of a document produced at a hearing held in private (except to a member of staff of that inquiry or as permitted by that inquiry), or

(g) does any other thing that, if the inquiry were a court of law having power to commit for contempt, would be contempt of that court.

(11) Where the Bank makes an application under subsection (10), the High Court may, if satisfied that there was no reasonable excuse for the act or omission concerned, make an order requiring the person concerned—

(a) to comply with any request or requirement under this Act, and

(b) not to repeat the conduct the subject of the application,

and if the person fails to comply with such order, may deal with the matter as if it were a contempt of that Court.”.

62. Documentary evidence

62. The Act of 1942 is amended by the insertion of the following section after section 33BA:

“33BAA. (1) Subject to this section, information contained in a document shall be admissible in an inquiry under this Part, on or after the submission date, as evidence of any fact in the document of which direct oral evidence would be admissible.

(2) Subsection (1) applies only if the information—

(a) was compiled in the ordinary course of a business,

(b) was supplied by a person (whether or not the person who compiled it, and whether or not identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and

(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

(3) Information contained in a document is not admissible in evidence by virtue of subsection (1) unless the participant proposing to give it in evidence serves on each of the other participants a notice in writing which—

(a) states the intention of the participant giving the notice to give the information in evidence by virtue of subsection (1),

(b) specifies as the submission date a date not less than 21 days after the date on which the notice is served, and

(c) is accompanied by a copy of the document.

(4) If a participant on whom a notice has been served under subsection (3) serves on each of the other participants, not later than 7 days before the submission date, a notice in writing objecting to the admission in evidence of the whole or any specified part of the information concerned, the person presiding at the inquiry shall determine the matter.

(5) In making a determination under subsection (4), the person presiding at the inquiry shall consider whether in the interests of justice all or any part of the information ought not to be admitted in evidence having regard to all the circumstances, including—

(a) whether or not, having regard to the contents and source of the information and the circumstances in which it was compiled, it is a reasonable inference that the information is reliable,

(b) whether or not, having regard to the nature and source of the document containing the information and to any other circumstances that appear to the person presiding at the inquiry to be relevant, it is a reasonable inference that the document is authentic, and

(c) any risk that its admission or exclusion will result in unfairness to any participant, having regard in particular to whether it is likely to be possible to controvert the information where the person who supplied it does not attend to give oral evidence in the proceedings.

(6) In estimating the weight, if any, to be attached to information given in evidence by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(7) Subsection (1) applies to information compiled in the ordinary course of a business—

(a) notwithstanding that the business may have ceased to exist, and

(b) in the case of a business carried on outside the State, notwithstanding that any director, manager or other similar officer who may act on behalf of the business is not compellable to give evidence in a court in the State.

(8) Subsection (1) applies where the document is a copy, if the copy is authenticated in such manner as the person presiding at the inquiry may approve.

(9) Where information is admissible in evidence by virtue of this section but is expressed in terms that are not intelligible to the average person without explanation, an explanation of the information shall also be admissible in evidence if either—

(a) it is given orally by a person who is competent to do so, or

(b) it is contained in a document and the document purports to be signed by such a person.

(10) Nothing in this section prevents information contained in a document from being admitted in evidence with leave of the person presiding at the inquiry.

(11) In this section—

‘participant’ means the Bank or a person to whom the inquiry relates;

‘submission date’ means the date specified in accordance with subsection (3)(b).”.

63. Amendment of section 33BB of Act of 1942

63. Section 33BB of the Act of 1942 is amended—

(a) in subsection (1), by the deletion of “financial service provider or other”, and

(b) by the substitution of “the High Court” for “the Court” in each place where it occurs.

64. Amendment of section 33BC of Act of 1942

64. Section 33BC of the Act of 1942 is amended—

(a) by the substitution of the following subsections for subsections (1) to (3):

“(1) If, under section 33AQ(1) or (2), the Bank has found that—

(a) a person is committing or has committed a prescribed contravention, or

(b) a person is participating or has participated, while performing a relevant controlled function, in the commission of a prescribed contravention by a regulated financial service provider,

it shall, subject to subsection (4), after complying with section 33AQ(7) or (8), as the case may be, publish in such form and manner as it thinks appropriate the finding and such (if any) of the particulars specified in subsection (3) as it thinks appropriate.

(2) If the Bank has imposed a sanction under section 33AQ(3) or (5) or 33AR, it shall, subject to subsection (4), after complying with section 33AQ(7) or (8) or 33AR(8), as the case may be, publish in such form and manner as it thinks appropriate, such (if any) of the particulars specified in subsection (3) as it thinks appropriate.

(3) The particulars referred to in subsections (1) and (2) are:

(a) the name of the person to whom the finding relates or on whom the sanction is imposed;

(b) the grounds on which the finding is based;

(c) details of the prescribed contravention in respect of which the sanction has been imposed;

(d) details of the sanction imposed.”,

(b) by the insertion of the following subsection after subsection (3):

“(3A) If the Bank has entered into an agreement with a person under section 33AV, it may publish, subject to subsection (4), in such form and manner as it thinks appropriate, such (if any) of the following particulars as it thinks appropriate:

(a) the name of the person;

(b) details of the prescribed contravention which the Bank suspects is being or has been committed or participated in;

(c) details of any sanction whose imposition is accepted under the agreement.”,

and

(c) in subsection (4), by the substitution of the following for paragraph (a) and the words before it:

“(4) Subsections (1), (2) and (3A) do not apply to a finding or particulars—

(a) if publication of the finding or particulars involves a disclosure of confidential information which the Rome Treaty, the ESCB Statute or any of the supervisory EU legal acts (within the meaning of section 33AK) prohibits or requires to be prohibited, or”.

65. Amendment of section 33BD of Act of 1942

65. Section 33BD of the Act of 1942 is amended by the insertion of the following subsection after subsection (1):

“(1A) Without prejudice to the generality of subsection (1), the Bank may prescribe guidelines with respect to the determination of appropriate sanctions and the level of any monetary penalty to be imposed under this Part.”.

66. Amendment of section 33BE of Act of 1942

66. Section 33BE of the Act of 1942 is amended by the insertion of the following subsections after subsection (2):

“(3) In relation to an inquiry that the Bank holds or considers holding, the following functions or powers are restricted for the purposes of subsections (4) and (6):

(a) functions or powers under section 33AO(1) or (2) of deciding whether to hold the inquiry;

(b) functions or powers of the person presiding at the inquiry;

(c) functions or powers under subsection (1), (2), (3) or (5) of section 33AQ;

(d) functions or powers under subsection (2)(b) or (4)(b) of section 33AR of determining whether to impose a sanction or what sanction to impose.

(4) Functions or powers which are restricted under subsection (3) in relation to an inquiry that the Bank holds or considers holding shall not be performed or exercised by—

(a) where subsection (1) or (2) of section 33AO applies, a person involved in carrying out the investigation referred to in that subsection,

(b) where subsection (2)(b) or (4)(b) of section 33AR applies, a person involved in carrying out the investigation referred to in that section, or

(c) a person exercising the Bank’s power to decide to carry out the investigation referred to in paragraph (a) or (b).

(5) A person performing or exercising functions or powers under section 33AO(1) or (2) of deciding whether to hold an inquiry shall not be involved in making submissions, leading evidence or examining witnesses on behalf of the Bank at the inquiry.

(6) Functions or powers which are restricted under any of paragraphs (b) to (d) of subsection (3) in relation to an inquiry shall not be performed or exercised by a person involved in making submissions, leading evidence or examining witnesses on behalf of the Bank at the inquiry.

(7) Subject to subsections (4) and (6), the persons responsible for performing and exercising the functions of the Bank to preside at an inquiry and make findings under subsection (1), (2), (3) or (5) of section 33AQ or determinations under subsection (2)(b) or (4)(b) of section 33AR at the conclusion of the inquiry (referred to in this Chapter as ‘inquiry members’) shall be appointed by the Bank from a panel established by the Minister under section 33BI.

(8) A person exercising the Bank’s power to decide to carry out an investigation referred to in section 33ANJ(1) shall not be involved in carrying out the investigation.

(9) Subsection (8) does not prevent the person referred to in that subsection from exercising functions, of management, advice or otherwise, that do not affect the independence of the investigation.”.

67. Limitation of judicial review

67. The Act of 1942 is amended by the substitution of the following section for section 33BF:

“33BF. (1) Leave shall not be granted for judicial review of any of the following:

(a) a finding made by the Bank under section 33AQ(1) or (2);

(b) a decision of the Bank imposing a sanction under section 33AQ;

(c) a decision of the Bank imposing a sanction under section 33AR(2)(b) or (4)(b).

(2) An application for leave to apply for judicial review of any other decision of the Bank under this Part must be made—

(a) within 2 months after the date on which notice of the decision was first notified to the person concerned, or

(b) if the High Court makes an order extending that period, within that extended period.”.

68. New Chapter 4 inserted into Part IIIC of Act of 1942

68. Part IIIC of the Act of 1942 is amended by the insertion of the following Chapter after section 33BF:

“Chapter 4

Supplementary

Documents privileged for purposes of law of defamation

33BG. For the purposes of the law of defamation, the following proceedings, reports and communications shall be absolutely privileged:

(a) proceedings of an investigation referred to in section 33ANJ(1), or an inquiry under this Part, including any statement or submission made by or on behalf of any person in the proceedings;

(b) communications of an authorised officer or an inquiry member, within the meaning of Chapter 3, in relation to proceedings referred to in paragraph (a);

(c) an investigation report, whether in draft or final form, prepared under section 33ANK.

Service of documents

33BH. Section 61G, and any provision of the regulations made in accordance with subsection (3) of that section, apply for the purposes of this Part, unless otherwise provided, as if references to the Bank included references to an authorised officer.”.

Chapter 2 Insertion of Part IIID in Act of 1942

69. Establishment of panel

69. The Act of 1942 is amended by the insertion of the following Part after section 33BH (inserted by section 68):

“PART IIID

Panel for purposes of certain decisions

Panel for purposes of certain decisions

33BI. (1) The Minister may establish a panel from which appointments may be made by the Bank—

(a) for the purposes of any provision of this Act, or any other enactment, requiring appointments to be made from a panel established under this section, or

(b) (in accordance with any agreement between the Minister and the Bank) for any other purpose involving the conduct of an inquiry, or the taking of a decision, on behalf of the Bank, the Governor or the Head of Financial Regulation.

(2) The members of a panel established under this section shall be appointed by the Minister following a process conducted by the Bank after consulting the Minister.

(3) The Minister shall not appoint a person to a panel established under this section unless the Minister, after consulting the Bank, is satisfied that the person has the skill, experience and knowledge necessary for the proper, effective and efficient performance of the functions that the person may be appointed by the Bank to perform in accordance with subsection (1).

(4) Appointment as a member of a panel established under this section shall be for a period specified by the Minister and on such other terms as the Minister considers appropriate.

(5) The expiry of a person’s term of appointment as a member of a panel established under this section does not affect the person’s capacity to complete any function that the person has been appointed by the Bank to perform in accordance with subsection (1).

(6) The Bank shall ensure the independence of any member of a panel established under this section in the performance of any function that the person is appointed by the Bank to perform in accordance with subsection (1).

(7) The Bank shall not, in reliance on a contract of service or contract for services with a member of a panel established under this section, act in any way that may affect the person’s independence in the exercise of a function that the person is appointed by the Bank to perform in accordance with subsection (1).”.

Chapter 3 Amendment of Part VIIA of Act of 1942

70. Amendment of section 57R of Act of 1942

70. Section 57R of the Act of 1942 is amended—

(a) in subsection (1), by the substitution of “The” for “Subject to this section, the”, and

(b) by the deletion of subsections (2) to (7).

71. Repeal of section 57S of Act of 1942

71. Section 57S of the Act of 1942 is repealed.

72. Amendment of section 57Z of Act of 1942

72. Subsection (2A) of section 57Z of the Act of 1942 is amended by the substitution of “a decision which is an appealable decision under section 33AW(2) of this Act or section 29 (7) of the Central Bank Reform Act 2010 ” for “an appealable decision made under Part IIIC”.

73. Amendment of section 57AC of Act of 1942

73. Section 57AC of the Act of 1942 is amended by the insertion of the following subsection after subsection (2):

“(3) This section is subject to section 33AW(4) and (9).”.

Chapter 4 Miscellaneous amendments to Act of 1942

74. Amendment of section 2 of Act of 1942

74. Section 2 of the Act of 1942 is amended by the deletion of subsection (4).

75. Amendment of section 33AK of Act of 1942

75. Section 33AK of the Act of 1942 is amended—

(a) in subsection (1A)—

(i) in paragraph (a), by the substitution of “unincorporate” for “incorporate”, and

(ii) by the substitution of “if the Rome Treaty, the ESCB Statute or any of the supervisory EU legal acts prohibits the disclosure or requires it to be prohibited” for “if such disclosure is prohibited by the Rome Treaty, the ESCB Statute or the supervisory EU legal acts”,

(b) in subsection (5B), in paragraph (a), by the substitution of “unincorporate” for “incorporate”,

(c) by the substitution of the following subsection for subsection (6):

“(6) Any person or entity to whom confidential information is provided by the Bank under subsection (3)(a) or (5) shall hold and deal with that confidential information in a manner consistent with the provisions on professional secrecy in the supervisory EU legal acts and in the ESCB Statute.”,

and

(d) in subsection (6A), by the deletion of “the provisions of professional secrecy referred to in”.

76. Amendment of section 34 of Act of 1942

76. Section 34 of the Act of 1942 is amended, in subsection (1), by the substitution of “Schedule 4” for “the Third Schedule”.

77. Amendment of section 57G of Act of 1942

77. Section 57G of the Act of 1942 is amended by the deletion of subsection (1A).

78. Amendment of section 61G of Act of 1942

78. Section 61G of the Act of 1942 is amended, in subparagraph (ii) of subsection (1)(a), by the deletion of “or Regulatory Authority”.

79. Amendment of Schedule 2 to Act of 1942

79. Part 1 of Schedule 2 to the Act of 1942 is amended—

(a) by the substitution of the following for item 3:

“

”,

and

(b) by the substitution of the following for item 38:

“

“

PART 5 Privileged legal material

80. Repeal of section 33 of Act of 2013

80. Section 33 of the Act of 2013 is repealed.

81. Amendment of section 34 of Act of 2013

81. Section 34 of the Act of 2013 is amended by the insertion of “, other than information acquired under a disclosure agreement under section 34A,” after “legislation” in the first place where it occurs.

82. Insertion of Part 3A in Act of 2013

82. The Act of 2013 is amended by the insertion of the following Part after section 34:

“PART 3A

Voluntary disclosure of privileged legal material

Voluntary disclosure of privileged legal material

34A. (1) In this section—

‘disclosed material’ means information produced, or to which access is given, under a disclosure agreement;

‘disclosure agreement’ has the meaning given by subsection (2);

‘privileged legal material’ means information which a person is entitled to refuse to produce on the grounds of legal professional privilege;

‘specified person’ means a person specified in a disclosure agreement as a person to whom disclosed material is to be produced or to whom access to disclosed material is to be given under the agreement.

(2) This section applies if, for the purposes of the performance by the Bank of its functions under financial services legislation, the Bank enters into an agreement (referred to in this section as a ‘disclosure agreement’) with a person entitled to waive legal professional privilege in respect of privileged legal material, under which the person agrees to produce or give access to the material, to the Bank and any specified person, for the purposes specified in the agreement.

(3) Section 33AK of the Act of 1942 applies to disclosed material in the same manner as it applies to confidential information, and a reference in that section to confidential information shall, where the context admits, be construed as a reference to disclosed material.

(4) The production of or giving of access to information to the Bank or any specified person under a disclosure agreement, and the report or disclosure of disclosed material to any person under section 33AK(3)(a) or (5) of the Act of 1942—

(a) does not constitute a waiver of legal professional privilege in respect of information other than the disclosed material concerned, and

(b) does not constitute a waiver of legal professional privilege in respect of disclosed material to any person other than the Bank or a specified person, or for a purpose other than the purposes specified in the agreement.

(5) Where the Bank or a specified person proposes to give disclosed material in evidence in proceedings under financial services legislation, the proceedings or any part of the proceedings may be heard otherwise than in public in order to maintain the confidentiality of the disclosed material.

(6) The following do not apply to disclosed material:

(a) section 47 of the Central Bank Reform Act 2010 ;

(b) the Freedom of Information Act 2014.

(7) Where information is the subject of a disclosure agreement, nothing in the agreement or this section affects any power of the Bank to require a person to produce or give access to the information otherwise than under the agreement.

Determination by court as to whether legal professional privilege applies

34B. (1) In this section—

‘Court’ means the High Court;

‘privileged legal material’ means information which, in the opinion of the Court, a person is entitled to refuse to produce on the grounds of legal professional privilege;

‘relevant person’ means the Bank or an authorised officer.

(2) If a person refuses to produce information or give access to it, pursuant to a requirement imposed by a relevant person under financial services legislation, on the grounds that the information contains privileged legal material, the Bank may, at any time within 6 months (or such longer period as the Court may allow) of the date of such refusal, apply to the Court for a determination as to whether the information, or any part of the information, is privileged legal material where—

(a) in relation to the information concerned—

(i) the Bank has reasonable grounds for believing that it is not privileged legal material, or

(ii) due to the manner or extent to which such information is presented together with any other information, it is impossible or impractical to extract only such information,

and

(b) the Bank has reasonable grounds to suspect that the information contains evidence relating to the commission of a prescribed contravention or an offence under financial services legislation.

(3) A person who refuses to produce information or give access to it, pursuant to a requirement imposed by a relevant person under financial services legislation, on the grounds that the information contains privileged legal material shall preserve the information and keep it in a safe and secure place and manner pending the determination of an application under subsection (2) and shall, if the information is so determined not to be privileged legal material, produce it in accordance with such order as the Court considers appropriate.

(4) A person shall be considered to have complied with the requirement under subsection (3) to preserve information, where the person has complied with such requirements as may be imposed by an authorised officer under paragraph (g) or (h) of section 27(1).

(5) Where an application is made by the Bank under subsection (2), the Court may give such interim or interlocutory directions as the Court considers appropriate including, without prejudice to the generality of the foregoing, directions as to the appointment of a person with suitable legal qualifications, possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the Court considers to be appropriate for the purpose of—

(a) examining the information, and

(b) preparing a report for the Court with a view to assisting or facilitating the Court in the making by the Court of its determination as to whether the information is privileged legal material.

(6) An application under subsection (2) shall be by motion and may, if the Court so directs, be heard otherwise than in public.”.

PART 6 Miscellaneous amendments

83. Amendment of section 3 of Act of 2010

83. Section 3 of the Act of 2010 is amended, in paragraph (c) of the definition of “financial services legislation”, by the substitution of “2013” for “2012”.

84. Amendment of European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011

84. The European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011 ) are amended, in Regulation 132A(4), by the deletion of “concerned in the management of a regulated financial service provider”.

85. Amendment of section 21 of Act of 2013

85. Section 21 of the Act of 2013 is amended—

(a) in subsection (1)—

(i) in paragraph (l), by the substitution of “company;” for “company.”, and

(ii) by the insertion of the following paragraph after paragraph (l):

“(m) subject to subsection (4), a holding company within the meaning of Part 3 of the Central Bank Reform Act 2010 .”,

and

(b) by the insertion of the following subsection after subsection (3):

“(4) In the case of a person referred to in paragraph (m) of subsection (1) (and not in any other paragraph of that subsection), this Part applies only for the purpose of the performance by the Bank of functions under Part 3 of the Central Bank Reform Act 2010 .”.

86. Amendment of section 22 of Act of 2013

86. Section 22 of the Act of 2013 is amended, in subsection (1)(a), by the insertion of “or, subject to section 21(4), any other holding company within the meaning of Part 3 of the Central Bank Reform Act 2010 ” after “mixed financial holding companies,”.

87. Amendment of section 24 of Act of 2013

87. Section 24 of the Act of 2013 is amended, in subsection (1), by the insertion of “or, subject to section 21(4), any other holding company within the meaning of Part 3 of the Central Bank Reform Act 2010 ” after “mixed financial holding companies,”.

PART 7 Savings and transitional provisions

88. Interpretation (Part 7)

88. A word or expression that is used in this Part and is also used in Part IIIC of the Act of 1942 has (unless the context otherwise requires) the same meaning in this Part as in Part IIIC of that Act.

89. Investigations and suspension notices under Chapter 3 of Part 3 of Act of 2010

89. (1) In relation to an investigation under Chapter 3 of Part 3 of the Act of 2010, notice of which was given to the person to whom the investigation relates before the commencement of section 15, that Chapter continues to apply, subject to subsections (2) and (3), as if Part 3 of this Act had not been commenced.

(2) Subsection (4) of section 25A of the Act of 2010 as inserted by section 15 applies in relation to an investigation referred to in subsection (1) which is discontinued on or after the commencement of section 15.

(3) Section 41 of the Act of 2010 as substituted by section 25 applies in relation to an investigation referred to in subsection (1) on and after the commencement of section 25—

(a) with the omission of paragraph (a) of subsection (1) of the said section 41, and

(b) with the substitution of the following paragraph for paragraph (c) of the said subsection (1):

“(c) any response or other submission by the person to whom the investigation relates that that person is entitled to make,”.

(4) In relation to a suspension notice issued under section 26 of the Act of 2010 before the commencement of a provision of sections 16 to 21 , Chapter 3 of Part 3 of that Act continues to apply as if that provision had not been commenced.

90. Prohibition notices under section 43 of Act of 2010

90. (1) A prohibition notice issued under section 43 of the Act of 2010 before the date of commencement of section 27, but which has not taken effect before that date, shall be treated on and after that date as if issued under section 43 of that Act as amended by section 27.

(2) In relation to a prohibition notice issued under section 43 of the Act of 2010 which has taken effect before the commencement of section 27, Chapter 4 of Part 3 of that Act continues to apply as if sections 27 to 29 and section 31, had not been commenced.

91. Continuing functions under section 52 of Act of 2010

91. In subsection (4) of section 52 of the Act of 2010 as amended by section 35—

(a) paragraph (a) does not apply where the person concerned formed the opinion referred to in that paragraph before the commencement of section 35,

(b) paragraph (b) does not apply where the person concerned performed the function under section 26 of the Act of 2010 referred to in that paragraph before the commencement of section 35, and

(c) paragraph (c) does not apply where the person concerned was involved in the investigation referred to in that paragraph before the commencement of section 35.

92. Application of Part IIIC of Act of 1942 to participation in prescribed contraventions before commencement of section 46

92. Part IIIC of the Act of 1942, as amended by this Act, applies as if references to participation, while performing a relevant controlled function, in the commission of a prescribed contravention by a regulated financial service provider were, in the case of participation or suspected participation before the commencement of section 46, references to participation, while concerned in the management of a regulated financial service provider, in the commission of a prescribed contravention by the regulated financial service provider.

93. Investigations under Part IIIC of Act of 1942

93. (1) In this section, “investigation” means an investigation by the Bank as to—

(a) whether a person is committing or has committed one or more prescribed contraventions, or

(b) whether a person is participating or has participated in the commission of one or more prescribed contraventions.

(2) In relation to an investigation where the decision by the Bank to carry out the investigation was made before the date of commencement of section 43, Chapter 2 of Part IIIC of the Act of 1942, as amended by that section, has effect on and after that date—

(a) with the omission of section 33ANJ, and

(b) in subsection (1) of section 33ANK—

(i) with the omission of paragraph (a), and

(ii) with the substitution of the following paragraph for paragraph (c):

“(c) any response or other submission by the person to whom the investigation relates that that person is entitled to make,”.

(3) Subsections (1) and (2) of section 33AO of the Act of 1942 as substituted by section 44, subsection (2A) of section 33AQ of that Act as amended by section 46, and subsections (1)(a) and (3)(a) of section 33AR of that Act as substituted by section 47, where they apply in relation to an investigation completed before the commencement of section 43, have effect as if references to the final report of an investigation provided under section 33ANK(5) of that Act were references to the findings of the investigation, and as if references to any submissions provided with the report were references to any submissions made to the Bank at the conclusion of the investigation.

94. Inquiries under Part IIIC of Act of 1942

94. (1) In this section, “inquiry decision” has the same meaning as it has in section 33AW of the Act of 1942 as substituted by section 53.

(2) In relation to an inquiry, notice of which was given by the Bank before the commencement of a provision of Part 4, the Act of 1942 continues to apply, subject to subsection (3), as if the provision had not been commenced.

(3) In relation to an inquiry, notice of which was given by the Bank before the commencement of section 53, the Act of 1942, as amended by sections 53 and 55 and Chapter 3 of Part 4, applies in relation to the following:

(a) an inquiry decision made before the commencement of section 53 if the decision has not, before that commencement, been notified by the Bank to the regulated financial service provider or person concerned;

(b) an inquiry decision made after the commencement of section 53.

(4) In subsection (1)(a)(iii) of section 33AW of the Act of 1942 as substituted by section 53, the reference to a decision imposing a sanction under subsection (2)(b) or (4)(b) of section 33AR includes a reference to a decision imposing a sanction under subsection (1)(b) or (2)(b) of the said section 33AR as it had effect before the commencement of section 47.

95. Disqualification under section 33AQ of Act of 1942 in case where contravention or participation occurred before commencement of section 46

95. (1) For the purposes of the imposition of a sanction in respect of the commission, before the commencement of section 46, of a prescribed contravention, paragraph (d) of subsection (3) of section 33AQ of the Act of 1942 continues to apply as if paragraph (b)(iv) of section 46 had not been commenced.

(2) For the purposes of the imposition of a sanction in respect of participation, before the commencement of section 46, in the commission of a prescribed contravention, paragraph (c) of subsection (5) of section 33AQ of the Act of 1942 continues to apply as if paragraph (d)(ii) of section 46 had not been commenced.

(3) In relation to—

(a) a direction imposed under paragraph (d) of section 33AQ(3) of the Act of 1942 as it applied before the commencement of paragraph (b)(iv) of section 46, or as it applies by virtue of subsection (1), or

(b) a direction imposed under paragraph (c) of section 33AQ(5) of the Act of 1942 as it applied before the commencement of paragraph (d)(ii) of section 46, or as it applies by virtue of subsection (2),

section 33AU of the Act of 1942 continues to apply as if section 51 had not been commenced.

96. Continuing functions under section 33BE of Act of 1942

96. (1) A person who, before the commencement of section 66, has taken any action referred to in any of the paragraphs of subsection (4) of section 33BE of the Act of 1942, as amended by section 66, as the said subsection (4) applies in relation to an inquiry, is not, by reason of having taken that action, or by reason of taking any action referred to in any of those paragraphs after the commencement of section 66, prevented by the said subsection (4) from performing or exercising a function or power which, in relation to the inquiry, is restricted under paragraph (a) of subsection (3) of the said section 33BE.

(2) A person who, before the commencement of section 66, was involved in making submissions, leading evidence or examining witnesses on behalf of the Bank at an inquiry is not, by reason of that involvement, or by reason of any such involvement after the commencement of section 66, prevented by subsection (6) of section 33BE of the Act of 1942, as amended by section 66, from performing or exercising functions or powers which, in relation to the inquiry, are restricted under any of paragraphs (b) to (d) of subsection (3) of the said section 33BE.

(3) A person who, before the commencement of section 66, has exercised the power referred to in subsection (8) of section 33BE, as amended by section 66, in relation to an investigation, is not prevented by the said subsection (8) from being involved in carrying out the investigation.

97. Application of section 33BI of Act of 1942 to existing panel

97. (1) A panel established by the Bank before the commencement of section 69 and which is designated in writing by the Minister under this section shall be treated on and after that commencement, for the purposes of section 33BI of the Act of 1942, as a panel established by the Minister.

(2) An appointment made before the commencement of section 69 to a panel designated under this section shall be treated on and after that commencement, for the purposes of section 33BI of the Act of 1942, as an appointment made by the Minister in accordance with that section, but that does not affect the terms of the appointment.

(3) Where a panel is designated under this section, nothing in this section or section 69 affects the making of appointments from the panel otherwise than for the purposes mentioned in paragraph (a), or in accordance with an agreement mentioned in paragraph (b), of section 33BI(1) of the Act of 1942.

98. Section 33 of Act of 2013

98. The repeal of section 33 of the Act of 2013 does not affect any application made or other thing done under that section before the commencement of section 80.