Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I move amendment No. 14:

In page 35, after line 33, to insert the following:

“Amendment of section 31 of Act of 2012

46. Section 31 of the Act of 2012 is amended--

(a) in subsection (1), by substituting the following for paragraph (a)(ii):

“(ii) furnish that certificate together with a copy of the application and the supporting documentation (other than the documents referred to in section 29(2)(e) and (f)) to the appropriate court, and”,

and

(b) by deleting subsection (4).”.

The first part of amendment No. 14 concerns an amendment to section 31 of the Personal Insolvency Act 2012 in respect of the debt relief notice. The insolvency service, when making the application for a debt relief notice, must furnish to the appropriate court the supporting documentation which has been received by it from the approved intermediary. That requirement is now refined to not require the inclusion of the documents referred to in section 29(2)(e) and (f) which relate essentially to the debtor's consent to the processing of his or her documents and the making of inquiries to verify information by the insolvency service. The amendment is supported by both the Courts Service and the insolvency service, particularly from a capacity and information technology perspective, to ensure the efficient and smooth transfer of documents to the appropriate court.

The remaining part of amendment No. 14 and amendments Nos. 19, 20, 23 and 24 have the same intention, namely, to delete the similar subsection (4) in sections 31, 61, 95, 78 and 115 of the Personal Insolvency Act 2012. That subsection provides that a court may hear additional evidence or information in a hearing of an application under an insolvency process, otherwise than in public.

In the preparation of revised rules of the Circuit Court in advance of the new debt resolution processes provided by the Personal Insolvency Act 2012, our attention was drawn to an issue of concern in regard this provision. Discussion with the Office of the Attorney General led to the conclusion that it would be desirable to repeal the respective subsections and to remove the exceptional provision that, where a court requires additional information or evidence, it could hear it other than in public. The repeal will also avoid any aspersions on the legality of the primary court sitting process in insolvency applications being in public.

The outcome of the repeal is that no special protection is provided for any particular element of the debtor's application being considered by the judge. It has not been possible to devise a legally safe provision to allow the judge a discretion to hold back disclosure of any part of an insolvency application from public view during the sitting, for example, orally, by way of a court television screen or otherwise. The insolvency sitting would have to be no different from any other court sitting. This position reflects the wider issues and tensions involved in ensuring that justice be done and be seen to be done in public in the context of our constitutional provisions.

Section 65(3) of the Courts and Courts Officers Act 1926 may, however, provide some protection through judicial control of documents from the disclosure of documents filed in applications from general public access. This provision could be helpful in insolvency applications.

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