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

These amendments make provision for the complaints investigation and disciplinary procedures that will apply where there is an allegation of improper conduct by a personal insolvency practitioner under the new Part 5 of the Bill. Chapter 4, comprising sections 164 to 174, provides for a comprehensive system of complaints and investigations where improper conduct by a personal insolvency practitioner is alleged and for the imposition of appropriate sanctions. Amendment No. 153 proposes the insertion of section 164 which empowers the director of the insolvency service to appoint members of the staff of the service or other appropriate persons to act as inspectors for the purpose of the Bill.

Amendment No. 154 proposes the insertion of section 165. This section provides for the establishment of a panel of persons to act on a committee to be known as the personal insolvency practitioners complaints committee. The new Schedule 3, to be inserted by amendment No. 180, will make detailed provision for the complaints committee. When the insolvency service appoints an inspector to carry out an investigation into a personal insolvency practitioner's conduct, it must request the Minister to appoint a complaints committee from the panel to act in relation to the investigation.

Amendment No. 155 proposes the insertion of section 166. This section provides for the making of written complaints to the insolvency service alleging improper conduct by a personal insolvency practitioner and sets out the procedure for the handling of such complaints by the service. The service must investigate if the complaint provided is made in good faith, is not frivolous or vexatious or without substance or foundation, is not likely to be resolved by mediation or other informal means between the parties.

Amendment No. 156 proposes the insertion of section 167. This section provides that where the insolvency service considers that immediate suspension of an authorisation to carry on practice as a personal insolvency practitioner is necessary to protect debtors and creditors who are or may become parties to a debt settlement arrangement or a personal insolvency arrangement, it may make an application to the High Court for an order to suspend the personal insolvency practitioner's authorisation.

In exceptional circumstances where there is an immediate risk of financial harm to debtors and creditors who are or may become parties to debt settlement arrangements or personal insolvency arrangements, the service is empowered to apply to the High Court on an ex parte basis for interim suspension of a PIP's authorisation. An interim order can ask for a maximum of 14 days and an application for such order must be held otherwise than in public unless the High Court considers it appropriate to hear the application in public.

Amendment No. 157 proposes the insertion of section 168 which provides that an investigation may be carried out by the insolvency service on foot of a complaint or on the service's own initiative. It provides for the appointment of an inspector or inspectors to carry out such an investigation to prepare an investigation report. The terms of appointment of an inspector may define the scope of the investigation to be carried out by the inspector. The inspector will be required to give notice of the investigation to the PIP concerned. Where the investigation takes place on foot of a complaint to the insolvency service the inspector must also keep the complainant informed of progress on the investigation.

Amendment No. 158 proposes the insertion of section 169. The section gives inspectors comprehensive powers to assist them in carrying out investigations, including powers to enter and search premises, carry out examinations and inquiries and conduct oral hearings.

Amendment No. 159 proposes the insertion of section 170. The section sets out the actions to be taken by inspectors and the complaints committee on the completion of an investigation that includes provisions to ensure that fair procedures are applied. On completion of an investigation the inspector must submit an investigation report to the complaints committee. Before doing so, a draft of the report must be sent for comment to the PIP, the insolvency service, and where relevant, the complainant. After receiving the investigation report the complaints committee must invite the PIP, the insolvency service and complainant to the investigation that arose from a complaint to make submissions on the report. The complaints committee may conduct an oral hearing if appropriate for the purposes of observing fair procedures. The complaints committee will be required to make a determination as to whether the PIP's conduct constitutes improper conduct. If the PIP's conduct is found to constitute improper conduct, the complaints committee must make a determination as to the appropriate sanction and may, if appropriate, impose a minor sanction on the PIP. A minor sanction is defined in section 147 as advice, a caution, a warning or a reprimand while a major sanction is defined as a revocation or suspension of a PIP's authorisation or payment to the insolvency service of up to ¤30,000 towards the costs of the investigation. Where the complaints committee determines that the appropriate sanction is a major sanction it has to refer the matter to the High Court and make a recommendation as to the appropriate sanction. The court having given all the parties an opportunity to make submissions then imposes the sanction it considers appropriate in the circumstances of a particular case.

Amendment No. 160 proposes the insertion of section 171 which provides that the PIP may appeal to the High Court against a decision of the complaints committee to impose a minor sanction. Amendment No. 161 proposes the insertion of section 172. The section sets out the matters to be considered by the complaints committee or the High Court, in considering whether a sanction ought or ought not to be imposed on a PIP or the appropriate sanction to be imposed. These matters include: the need to ensure that the sanction is appropriate and proportionate to the improper conduct; the need to ensure the sanction will act as a sufficient deterrent to discourage improper conduct of that or a similar nature in the future; the seriousness of the improper conduct and any gain made by the PIP as a result of the improper conduct; and the amount of any loss suffered or costs incurred as a result of the improper conduct.

Amendment No. 162 proposes the insertion of section 173 which provides for the publication by the insolvency service of particulars of convictions and sanctions imposed under this Part.

Amendment No. 163 proposes the insertion of section 174 which provides that the right of access to personal data under section 4 of the Data Protection Act 1988 does not apply to data processed by the insolvency service, an inspector or the complaints committee in the performance of their functions relating to investigations under this Part of the Bill.

Amendment No. 179 proposes the insertion of a new Schedule 2. The Schedule sets out the provisions applicable to oral hearings conducted in accordance with sections 169 and 170. Part 1 sets out the provisions in regard to an oral hearing conducted by an inspector under section 169 while Part 2 provides for hearings conducted by the complaints committee under section 170.

As I mentioned earlier, amendment No. 180 proposes to insert a new Schedule 3. It contains detailed provision for the establishment and membership of the complaints panel and complaints committee. The complaints panel must contain at least seven persons, all of whom must have relevant experience or knowledge to enable them to carry out their functions under the legislation. The complaints committee will be composed of at least three persons, at least one of whom must be a barrister or a solicitor. The complaints committee must be independent in the discharge of its functions and that is so provided for.