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

I move amendment No. 27:

In page 46, between lines 28 and 29, to insert the following:

“Amendment of section 161 of Act of 2012

83. The Act of 2012 is amended by the substitution of the following for section 161:

“Regulations that may be made by Insolvency Service regarding personal insolvency practitioners

161. (1) The Insolvency Service, with the consent of the Minister, may and, if directed by the Minister to do so and in accordance with the terms of the direction, shall, following consultation with the Minister for Finance and with any other person as the Insolvency Service deems appropriate or as the Minister directs, by regulations provide for any of the following, for the purposes of the authorisation, regulation and supervision of personal insolvency practitioners and the protection of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements and the maintenance of public confidence in the operation of Debt Settlement Arrangements and Personal Insolvency Arrangements under this Act:

(a) the requirements applicable to--

(i) the authorisation of persons to carry on practice as personal insolvency practitioners;

(ii) the supervision and regulation of persons authorised to carry on practice as personal insolvency practitioners in the performance of their functions under this Act;

(iii) the dealings of a person authorised to carry on practice as a personal insolvency practitioner with the Insolvency Service;

and

(iv) the cessation or transfer of practice by persons authorised to carry on practice as personal insolvency practitioners;

(b) the requirements to be met in the performance of their functions under this Act by personal insolvency practitioners including, without limiting the generality of the foregoing, in relation to:

(i) the public interest;

(ii) the duties owed to debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements;

(iii) the professional and ethical conduct of personal insolvency practitioners;

(iv) the maintenance of the confidentiality of the information of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements;

(v) case management in respect of debtors by whom a personal insolvency practitioner is appointed; and

(vi) conflicts of interest;

(c) the qualifications (including levels of training, education, expertise and experience) or any other requirements (including required standards of competence, fitness and probity, and required minimum levels of professional indemnity insurance) for the authorisation of persons to carry on practice as personal insolvency practitioners;

(d) the terms on which indemnity against losses is to be available to personal insolvency practitioners under any policy of indemnity insurance and the circumstances in which the right to such indemnity is to be excluded or modified;

(e) the records to be maintained and the information and returns, including in electronic form, to be provided to the Insolvency Service by personal insolvency practitioners;

(f) the requirements to be met by a personal insolvency practitioner when handling complaints against that personal insolvency practitioner;

(g) the standards to be adhered to by personal insolvency practitioners in regard to advertising under this Act;

(h) the circumstances and purposes for which a personal insolvency practitioner may charge fees or costs or seek to recover outlay in respect of work done following engagement by a debtor at any time in performing his or her functions--

(i) under this Act,

(ii) under regulations made under this Act,

(iii) under rules of court,

and the requirements to be met by a personal insolvency practitioner when charging fees or costs or seeking to recover outlays, and

(i) any other matter relating to the authorisation, supervision or regulation of personal insolvency practitioners which is incidental to or is considered by the Insolvency Service to be necessary or expedient for the said

Amendment No. 27 provides for the replacement of the current section 161 with regard to the making of regulations in respect of the activities of persons authorised to be personal insolvency practitioners.

The changes to section 161, while not extensive, are designed to address concerns that the original text may not be sufficiently broad in regard to certain aspects of the regulation of personal insolvency practitioners.

The proposed section 161(1) now includes a reference to maintaining public confidence in debt settlement arrangements and personal insolvency arrangements as a broad additional policy criterion. It also provides for the ongoing supervision of personal insolvency practitioners, which is a significant requirement for the Insolvency Service of Ireland. In the proposed section 161(1)(a) the requirements in regard to authorisation, supervision and cessation of practice for personal insolvency practitioners are restated in a clear fashion as is a new requirement in regard to the personal insolvency practitioner's dealings with the Insolvency Service of Ireland. In the proposed section 161(1)(b)(v), there is now a new requirement in regard to the case management of debtor's files by the personal insolvency practitioner. The proposed section 161(1)(f) would allow for the setting out of the requirements to be met by a personal insolvency practitioner when handling complaints against him or her. The proposed section 161(1)(g) would allow the Insolvency Service of Ireland to set standards to be adhered to in regard to advertising by personal insolvency practitioners. The previous section 161(1)(f), which dealt with the charging of fees etc. by a personal insolvency practitioner, is reinstated as the proposed section 161(1)(h) with additional clarifications. The proposed section 161(1)(i) would allow the Insolvency Service of Ireland to make regulations for anything which is incidental to that detailed in the section but which is not specifically provided for.

The proposed section 161(2) would extend the monitoring by the Insolvency Service of Ireland of compliance by personal insolvency practitioners of their obligations to the whole Act and not only in regard to Part 5.

Amendment No. 28 has the objective of facilitating the orderly regulation of personal insolvency practitioners and the effective use of resources by the Insolvency Service of Ireland by amending section 164(4) of the 2012 Act to permit an authorisation to act as a personal insolvency practitioner to remain in force for a period not exceeding five years rather than one year. This is essentially a provision to assist administrative efficiency and to provide greater certainty for those persons who become personal insolvency practitioners.

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