Seanad debates

Wednesday, 5 December 2012

Personal Insolvency Bill 2012: Committee Stage (Resumed)

 

SECTION 146

Debate resumed on amendment No. 135:In page 120, to delete lines 34 to 38 and substitute the following:?terminate with immediate effect after the bankrupt has been discharged from bankruptcy.?.? (Senator Sean D. Barrett).

3:00 pm

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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I was in possession. The Minister had answered the questions I had raised on the amendment, but I wonder if he has anything further to add.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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I have nothing further to add.

Photo of Sean BarrettSean Barrett (Independent)
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As I was also happy with the Minister's response last night, I will not reopen the issue.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Is the amendment being pressed?

Photo of Sean BarrettSean Barrett (Independent)
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The issue is still being considered by the Minister.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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I think the Senator indicated he might withdraw the amendment.

Photo of Sean BarrettSean Barrett (Independent)
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Yes, the broad thrust of the argument was the prospect that five would become three, something we had in common, and the Minister agreed that he would come back to us on it. He wanted to complete the process in three years, with which Senator Crown and I would be very happy. On that basis I am happy to agree that five should become three. I look forward to hearing from the Minister on Report Stage.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Essentially, it was about bringing clarity to when the process would end. I think that is what the Minister was reflecting on.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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Yes. As I dealt with the matter at some length yesterday, I do not want to revisit it. On the basis of the amendment being withdrawn, I will come back to it on Report Stage.

Amendment, by leave, withdrawn.

Section 146 agreed to.

NEW SECTIONS

Government amendment No.136:

Government amendment No. 136


In page 121, before section 147, but in Part 5, to insert the following new section:
?CHAPTER 1
General Provisions
147.?In this Part?
?accounting records?, in relation to a personal insolvency practitioner, mean the books of account and all other documents required to be kept by the personal insolvency practitioner in accordance with regulations made under section 161;
?complainant?, in relation to a complaint, means the person who made the complaint;
?complaint? means a complaint under section 166;
?improper conduct?, in relation to a personal insolvency practitioner, means?(a) the commission by the personal insolvency practitioner of an act which renders the personal insolvency practitioner no longer a fit and proper person to carry on practice as a personal insolvency practitioner,
(b) the commission by the personal insolvency practitioner of a material contravention of a provision of regulations made under section 149 or161;?inspector? means a person appointed under section 164 to be an inspector;
?investigation? means an investigation under section 168;
?investigation report?, in relation to an investigation, means a report in writing prepared, following the completion of the investigation, by the inspector appointed under section 168(1)(b) to carry out the investigation?(a) stating that the inspector?
(i) is satisfied that improper conduct by the personal insolvency practitioner to whom the investigation relates has occurred or is occurring, or
(ii) is not so satisfied,
as appropriate,
(b) if paragraph (a)(i) is applicable, stating the grounds on which the inspector is so satisfied, and
(c) if paragraph (a)(ii) is applicable, stating?
(i) the basis on which the inspector is not so satisfied, and
(ii) the inspector?s opinion, in view of such basis, on whether or not a further investigation of the personal insolvency practitioner is warranted and, if warranted, the inspector?s opinion on the principal matters to which the further investigation should relate;
?maintain?, in relation to a record, includes create and keep;
?major sanction?, in relation to a personal insolvency practitioner, means?(a) the revocation of his or her authorisation to carry on practice as a personal insolvency practitioner and a prohibition (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) against the former personal insolvency practitioner applying for a new authorisation,
(b) the suspension for a specified period of his or her authorisation to carry on practice as a personal insolvency practitioner or, in any case where the period of such suspension (in this paragraph referred to as ?the relevant period?) sought to be imposed is longer than the period of validity of the authorisation left to run, the suspension of the authorisation during that period and a prohibition for a specified period against the former personal insolvency practitioner applying for a new authorisation, which periods, added together, are equivalent to the relevant period,
(c) a direction to the personal insolvency practitioner that the personal insolvency practitioner pay a sum, as specified in the direction but not exceeding ¤30,000, to the Insolvency Service, being the whole or part of the cost to the Insolvency Service of an investigation of the personal insolvency practitioner, or
(d) any combination of any of the sanctions specified in paragraphs (a) to (c);?minor sanction?, in relation to a personal insolvency practitioner, means?(a) the issue, to the personal insolvency practitioner, of?
(i) advice,
(ii) a caution,
(iii) a warning, or
(iv) a reprimand,
or
(b) any combination of any of the sanctions specified in paragraph (a);
?moneys received from debtors? means moneys received from a debtor or from third parties in respect of the debtor under a Debt Settlement Arrangement or a Personal Insolvency Arrangement;
?professional indemnity insurance? means a policy of indemnity insurance against losses arising from claims in respect of any description of civil liability incurred by a person arising from his or her carrying on practice as a personal insolvency practitioner;
?Register? means the Register of Personal Insolvency Practitioners established under section 150;
?satisfied? means satisfied on reasonable grounds;
?specified??(a) in relation to a period, means a period which is reasonable in the circumstances concerned,
(b) in relation to a time, date or place, means a time, date or place, as the case may be, which is reasonable in the circumstances concerned;?terms? includes conditions.?.

Amendment agreed to.

Government amendment No.137: In page 121, before section 147, but in Part 5, to insert the following new section: 148.?(1) A person shall not?(a) act as a personal insolvency practitioner, (b) hold himself or herself out as available to act as a personal insolvency practitioner, or (c) represent himself or herself by advertisement as available to act as a personal insolvency practitioner,unless that person is authorised to so act by virtue of this Act. (2) A person who acts in contravention of subsection (1) is guilty of an offence.?.

Amendment agreed to.

Government amendment No. 138: In page 121, before section 147, but in Part 5, to insert the following new section:149.?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 or body as the Insolvency Service deems appropriate or as the Minister directs, by regulations provide for any of the following, for the purposes of the control 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:(a) the procedures governing?(i) the authorisation of persons to carry on practice as personal insolvency practitioners; and (ii) the termination, at a person?s request, of his or her authorisation to carry on practice as a personal insolvency practitioner;(b) the standards to be observed in the performance of their functions by personal insolvency practitioners with particular reference 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 confidentiality of the information of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements; and (v) conflicts of interest;(c) the qualifications (including levels of training, education 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 to be provided to the Insolvency Service by personal insolvency practitioners; and (f) the circumstances and purposes for which a personal insolvency practitioner may charge fees or costs or seek to recover outlays.?.

Amendment agreed to.

Government amendment No. 139: In page 121, before section 147, but in Part 5, to insert the following new section: 150.?(1) The Insolvency Service shall establish and maintain a register to be known as the Register of Personal Insolvency Practitioners. (2) The Register shall be in such form as the Insolvency Service deems appropriate and shall?(a) contain the names of personal insolvency practitioners and such other identifying particulars as the Insolvency Service considers appropriate, and (b) contain such other entries in respect of personal insolvency practitioners (including personal insolvency practitioners whose authorisation is suspended) as the Insolvency Service considers appropriate.(3) The Insolvency Service shall make the Register available for inspection by members of the public on its website. (4) A copy of an entry in the Register shall, on request, be issued by the Insolvency Service on payment of such fee (if any) as may be prescribed. (5) In any legal proceedings, a certificate signed by the Director, or a member of the staff of the Insolvency Service authorised by the Director to give a certificate under this subsection, stating that a person?(a) is registered in the Register, (b) is not registered in the Register, (c) was at a specified date or during a specified period registered in the Register, (d) was not, at a specified date or during a specified period, registered in the Register or was suspended from the Register at that time, or (e) has never been registered in the Register,shall, without proof of the signature of the person purporting to sign the certificate or that the person was the Director or a member of the staff of the Insolvency Service so authorised, as the case may be, be evidence, unless the contrary is proved, of the matters stated in the certificate. (6) The Insolvency Service shall ensure that the Register is accurate and, for that purpose, the Insolvency Service shall make any alteration requiring to be made in the information contained in an entry. (7) The Insolvency Service shall, as soon as is practicable after doing anything under subsection (6), give notice in writing of that fact to the personal insolvency practitioner to whom the alteration relates. (8) A personal insolvency practitioner to whom an entry in the Register relates shall give notice in writing to the Insolvency Service of?(a) any error that the person knows of in the entry, and (b) any change in circumstances that is likely to have a bearing on the accuracy of the entry,as soon as may be after the person becomes aware of that error or change in circumstances, as the case may be.?.

Amendment agreed to.

Government amendment No. 140: In page 121, before section 147, but in Part 5, to insert the following new section:151.?(1) An individual may make an application in the prescribed form to the Insolvency Service for authorisation to carry on practice as a personal insolvency practitioner unless the individual is prohibited from making such an application byvirtue of the imposition on the individual of a major sanction which falls within paragraph (a) or (b) of the definition of ?major sanction? in section 147 or where an order under section 167(2) is in force suspending that individual from carrying on practice as a personal insolvency practitioner. (2) An application under subsection (1) shall be accompanied by?(a) evidence of the applicant?s competence (including any levels of education, training and experience specified by the Insolvency Service, and in particular that the applicant has a satisfactory knowledge of?(i) the provisions of this Act, and (ii) the law generally as it applies in the State relating to the insolvency of individuals and in particular statutory provisions relating to such persons,(b) a report in the prescribed form by a duly qualified accountant that appropriate financial systems and controls are or will be in place for the protection of moneys received from debtors if the applicant is authorised to carry on practice as a personal insolvency practitioner, (c) evidence in writing of the availability to the applicant of the required level of professional indemnity insurance if the applicant is authorised to carry on practice as a personal insolvency practitioner, (d) such other documents as may be prescribed by the Insolvency Service in relation to applications for authorisation to carry on practice as a personal insolvency practitioner, and (e) the prescribed fee.(3) Without prejudice to section 156, the Insolvency Service may?(a) require an applicant to provide in the prescribed form, or by statutory declaration, such additional information in respect of the applicant?s character, competence and financial position, and it may make such inquiries and conduct such examinations in that regard, as it considers necessary, (b) require the applicant to provide a certificate in the prescribed form by a member of the Garda Síochána not below the rank of superintendent containing such particulars in respect of the applicant as are requisite for the due performance of the Insolvency Service?s functions in relation to the applicant.?.

Amendment agreed to.

3:10 pm

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Amendments Nos. 141 to 146, inclusive, are related and may be discussed together.

Government amendment No. 141: In page 121, before section 147, but in Part 5, to insert the following new section:152.?(1) Subject to subsections (3) and (5), the Insolvency Service may authorise an individual to carry on practice as a personal insolvency practitioner and shall furnish to that individual the registration number assigned to such person for the purposes of the Register. (2) When deciding whether to authorise an individual to carry on practice as a personal insolvency practitioner, the Insolvency Service shall take into account any information supplied to it under sections 151 and 156. (3) Subject to section 153, the Insolvency Service shall refuse to authorise an individual to carry on practice as a personal insolvency practitioner if?(a) section 151 has not been complied with as respects the individual, (b) the individual has not furnished sufficient evidence to show that there is available to him or her the required level of professional indemnity insurance, (c) the individual?(i) is under 18 years of age, or (ii) is an undischarged bankrupt,(d) the Insolvency Service is satisfied that the individual?(i) is not a fit and proper person to carry on practice as a personal insolvency practitioner, (ii) is not competent to carry on practice as a personal insolvency practitioner or does not meet the levels of education, training and experience specified by the Insolvency Service, or (iii) does not comply with any requirement (not being a requirement referred to in any of paragraphs (a) to (c) of this subsection) of this Act or of regulations made under this Act applicable to the person.(4) An authorisation to carry on practice as a personal insolvency practitioner, unless sooner surrendered or revoked or otherwise ceasing to be in force, shall remain in force for a period of one year from the date on which it is issued. (5) An authorisation to carry on practice as a personal insolvency practitioner is personal to the personal insolvency practitioner concerned. (6) An authorisation to carry on practice as a personal insolvency practitioner shall not authorise the person concerned to carry on any other form of financial advisory services subject to regulation by the Central Bank of Ireland.?.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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These amendments make provisions in the new Part 5 for matters relating to the authorisation of persons to carry on practice as personal insolvency practitioners. Amendment No. 141 proposes the insertion of section 152. This section makes provision for the authorisation by the insolvency service of persons to carry on practice as personal insolvency practitioners and refusal to so authorise. When deciding whether to issue an authorisation, the insolvency service will take into account the information provided by the applicant and, where appropriate, any information provided by the Garda Síochána and the Central Bank under section 156 which is to be inserted by a later amendment. In short, it will not issue an authorisation unless satisfied that the applicant is a fit and proper person to carry on business as a personal insolvency practitioner, competent to carry on practice as such a practitioner and that he or she complies with all relevant statutory requirements.

Amendment No. 142 proposes the insertion of section 153. This section provides that before refusing to authorise a person to carry on business as a personal insolvency practitioner, the insolvency service must give the applicant an opportunity to make representations. Where the insolvency service, having considered such representations, refuses to issue an authorisation, it must give the person notice in writing of the reasons for the refusal.

Amendments Nos. 143 and 144 propose the insertion of sections 154 and 155. These sections contain corresponding provisions which will apply to applications for the renewal of authorisation to carry on practice as a personal insolvency practitioner.

Amendment No. 145 proposes the insertion of section 156 to provide that the insolvency service may request the Garda Síochána or the Central Bank to provide information on a personal insolvency practitioner or an applicant for an authorisation to carry on practice as a personal insolvency practitioner.

Amendment No. 146 proposes the insertion of section 157 which provides that a decision of the insolvency service to refuse to authorise a person to carry on practice as a personal insolvency practitioner or decline to investigate a complaint made may be appealed to the Circuit Court. The decision of the Circuit Court is final, save where there is an appeal to the High Court on a point of law.

Amendment agreed to.

Government amendment No. 142: In page 121, before section 147, but in Part 5, to insert the following new section:153.?(1) Where the Insolvency Service proposes to refuse to authorise a person to carry on practice as a personal insolvency practitioner, it shall give notice in writing to the person?(a) of the proposal and the reasons for the proposal, and (b) stating that the person may make representations in writing to the Insolvency Service on the proposal?(i) subject to subparagraph (ii), within 21 days from the date of the issue of that notice to the person, (ii) within such longer period as the Insolvency Service deems appropriate in the circumstances of the case.(2) Where the Insolvency Service has given a notice under subsection (1) to a person, it shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b)(i) or (ii), as the case requires, and the consideration of any representations referred to in subsection (1)(b) made to it?(a) issue to the person the authorisation that is the subject of the notice, or (b) refuse to issue the authorisation that is the subject of the notice and give the person?(i) notice in writing of the refusal and the reasons for the refusal, and (ii) a copy of section 157 if the ground, or one of the grounds, for the refusal falls within section 152(3)(d)?.

Amendment agreed to.

Government amendment No. 143: In page 121, before section 147, but in Part 5, to insert the following new section:154.?(1) An authorisation to carry on practice as a personal insolvency practitioner, unless it has been revoked, may, subject to subsection (4), be renewed by the Insolvency Service. (2) An application for the renewal of an authorisation to carry on practice as a personal insolvency practitioner shall be?(a) in the prescribed form, (b) made at least 6 weeks before the expiration of the authorisation, and (c) accompanied by?(i) such documents as may be prescribed, and (ii) the prescribed fee.(3) Subject to subsection (4), where an application under subsection (2) for the renewal of an authorisation is not determined by the Insolvency Service before the authorisation expires, and the application was made in accordance with paragraph (b) of that subsection, the authorisation shall continue in force until the application has been so determined. (4) Subject to section 155, the Insolvency Service shall refuse to renew an authorisation to carry on practice as a personal insolvency practitioner if?(a) subsection (2) has not been complied with in respect of the person, (b) the application is not accompanied by a report in the prescribed form by a duly qualified accountant that appropriate financial systems and controls are still in place for the protection of moneys received from debtors by the applicant, (c) the applicant does not satisfy the Insolvency Service that there is available to the person the required level of professional indemnity insurance in respect of the authorisation to carry on practice as a personal insolvency practitioner, (d) in the case of an individual, the person is an undischarged bankrupt.(5) Where an authorisation to carry on practice as a personal insolvency practitioner is renewed under this Act, the period of validity of the authorisation as so renewed shall be deemed to start to run on the day that the authorisation would have expired if no application under subsection (2) for its renewal had been made, and irrespective of whether the authorisation is renewed before, on or after that day.?.

Amendment agreed to.

Government amendment No. 144: In page 121, before section 147, but in Part 5, to insert the following new section: 155.?(1) Where the Insolvency Service proposes to refuse to renew an authorisation to carry on practice as a personal insolvency practitioner, it shall give a notice in writing to the person concerned?(a) of the proposal and the reasons for the proposal, and (b) stating that the person may make representations in writing to the Insolvency Service on the proposal?(i) subject to subparagraph (ii), within 21 days from the date of the issue of that notice to the person, or (ii) within such longer period as the Insolvency Service deems appropriate in the circumstances of the case.(2) Where the Insolvency Service has given a notice under subsection (1) to a person, it shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b)(i) or (ii), as the case requires, and the consideration of any representations referred to in subsection (1)(b) made to it?(a) issue to the person the renewal of the authorisation that is the subject of the notice, or (b) refuse to renew the authorisation that is the subject of the notice and give the person notice in writing of the refusal and the reasons for the refusal.?.

Amendment agreed to.

Government amendment No. 145: In page 121, before section 147, but in Part 5, to insert the following new section:156.?(1) The Insolvency Service may request the Commissioner of the Garda Síochána or the Central Bank of Ireland to provide any information requisite for the due performance of its functions in relation to any applicant for authorisation to carry on practice as a personal insolvency practitioner or any personal insolvency practitioner. (2) The Commissioner of the Garda Síochána and the Central Bank of Ireland shall comply with a request under subsection (1) notwithstanding anything contained in any statutory provision or rule of law.?.

Amendment agreed to.

Government amendment No. 146: In page 121, before section 147, but in Part 5, to insert the following new section:157.?(1) A person aggrieved by a decision of the Insolvency Service?(a) refusing under section 152(3)(d) to issue an authorisation to carry on practice as a personal insolvency practitioner, or (b) declining under section 166(2) to cause to be carried out an investigation of the matter the subject of a complaint,may, within 21 days from the date of receipt of notice of the decision, appeal to the Circuit Court against the decision. (2) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the appellant ordinarily resides or carries on any profession, business or occupation. (3) The appeal shall be determined by the Circuit Court?(a) by confirming the decision of the Insolvency Service to which the appeal relates, or (b) by substituting its determination for that decision.(4) A decision of the Circuit Court under this section shall be final, save that, by leave of that Court, an appeal shall lie to the High Court on a point of law.?.

Amendment agreed to.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Amendments Nos. 147 to 152, inclusive are related and may be discussed together.

Government amendment No. 147: In page 121, before section 147, but in Part 5, to insert the following new section:?CHAPTER 2 General Obligations of Personal Insolvency Practitioners158.?Where a personal insolvency practitioner is appointed by a debtor under Chapter 2 of Part 3, the personal insolvency practitioner shall retain such records as may be prescribed and in such form and manner as may be prescribed of his or her activities in relation to the debtor for a period of not less than 6 years after the completion of the activity to which the record relates.?.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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These amendments make provision for certain obligations to which personal insolvency practitioners will be subject under Part 5. Chapter 2, comprising sections 158 to 160, sets out a number of general obligations that will apply to personal insolvency practitioners. Amendment No. 147 proposes the insertion of section 158. This section imposes an obligation on personal insolvency practitioners to keep records of their activities with debtors for a period of not less than six years after the completion of the activity to which the record relates. The types of records to be retained will be prescribed by legislation.

Amendment No. 148 proposes the insertion of section 159. Under this section, the personal insolvency practitioner will be required to have a policy of professional indemnity insurance which meets requirements that may be prescribed in regulations made by the insolvency service.

Amendment No. 149 proposes the insertion of section 160 to provide that a personal insolvency practitioners will not be permitted to charge fees or costs which are not incurred either in accordance with regulations made under section 149 or a debt settlement arrangement. A personal insolvency arrangement comes into effect in accordance with the terms of the relevant arrangement.

Chapter 3, comprising sections 161 to 163, contains important provisions dealing with accounts and related matters. Amendment No. 150 proposes the insertion of section 161. This section empowers the insolvency service to make regulations regarding bank accounts which may be opened by personal insolvency practitioners for the keeping of moneys received from debtors; the rights, duties and responsibilities of a personal insolvency practitioner in respect of moneys received from debtors; the accounting records which must be maintained and also verification and enforcement of compliance with regulations. In making regulations under this section, the insolvency service must have regard to the need to protect debtors and creditors who are or may become parties to debt settlement arrangements or personal insolvency arrangements.

Amendment No. 151 proposes the insertion of section 162 to provide that the insolvency service may, where necessary for the protection of debtors and creditors who are parties to a debt settlement arrangement or personal insolvency arrangement in relation to which a personal insolvency practitioner is or has been acting, apply to the High Court for certain orders in relation to the banking accounts kept by the personal insolvency practitioner in his or her company as such or in relation to the assets of the personal insolvency practitioner.

Amendment No. 152 proposes the insertion of section 162 which aims to address situations where a personal insolvency practitioner is no longer authorised to carry on practice as such and the insolvency service is of the opinion that the person has not made adequate arrangements for handing over documents relating to his or her practice as a personal insolvency practitioner. In such a case, the insolvency service may issue a notice requiring the production of the documents to it. Where the person fails to comply with such a requirement, the service may apply to the Circuit Court for an order requiring compliance with the requirement within a specified period of time.

Amendment agreed to.

Government amendment No. 148: In page 121, before section 147, but in Part 5, to insert the following new section:159.?(1) A personal insolvency practitioner shall not carry on practice as a personal insolvency practitioner unless there is in force, at the time he or she so acts, a policy of professional indemnity insurance which meets such requirements as may be prescribed from time to time pursuant to subsection (2). (2) The Insolvency Service may prescribe such matters as it considers necessary in relation to policies of professional indemnity insurance including the minimum amount of cover which shall apply in relation to each and every claim made against a personal insolvency practitioner.?.

Amendment agreed to.

Government amendment No. 149: In page 121, before section 147, but in Part 5, to insert the following new section:160.?A personal insolvency practitioner shall not charge fees or costs or seek to recover outlays which are not incurred?(a) in accordance with regulations made under section 149(f), and (b) in a case where a Debt Settlement Arrangement or a Personal Insolvency Arrangement comes into effect, in accordance with the terms of such an arrangement.?.

Amendment agreed to.

Government amendment No. 150: In page 121, before section 147, but in Part 5, to insert the following new section:?CHAPTER 3 Accounts and Related Matters161.?(1) Subject to subsection (2), the Insolvency Service may make regulations providing for any of the following matters:(a) the kind or kinds of accounts at banks authorised to carry on business in the State which may be opened and kept by a personal insolvency practitioner for the keeping of moneys received from debtors; (b) the opening and keeping of such accounts by a personal insolvency practitioner and in particular the keeping of moneys received from or for the credit of or on behalf of debtors in a client account maintained specifically for that purpose; (c) the rights, duties and responsibilities of a personal insolvency practitioner in respect of moneys received from debtors, including the transmission of such moneys to creditors and the deduction of fees, charges and outlays due to the personal insolvency practitioner; (d) the receipts or statements to be issued by a personal insolvency practitioner in respect of moneys received from debtors; (e) the accounting records to be maintained by a personal insolvency practitioner, including the minimum period or periods for which accounting records shall be retained by a personal insolvency practitioner during the period of, and following the conclusion of, Debt Settlement Arrangements or Personal Insolvency Arrangements and the manner in which the lodgement into bank accounts of any moneys received from debtors shall be recorded in the accounting records; (f) the accounting records to be maintained by a personal insolvency practitioner containing particulars of and information as to moneys received, held, controlled or paid by the personal insolvency practitioner in connection with Debt Settlement Arrangements or Personal Insolvency Arrangements; (g) the circumstances and manner in which a personal insolvency practitioner (or a duly qualified accountant on behalf of the personal insolvency practitioner) verifies compliance with the regulations, including the frequency of doing so; (h) the examination by an auditor or an accountant who is a member of a body prescribed for the purposes of this section, at intervals prescribed by the regulations, of accounting records maintained by a personal insolvency practitioner under regulations made under paragraphs (e) and (f) and for the making of reports to the Insolvency Service of such matters relating to the keeping of accounts and holding of moneys received from debtors as may be prescribed and such reports shall be in such form as may be prescribed; (i) the enforcement by the Insolvency Service of compliance with the regulations; (j) the imposition of fees on a personal insolvency practitioner in cases of non-compliance where the Insolvency Service, by reason of such noncompliance has determined that further enquiries should be carried out (such fees not exceeding the cost of conducting such enquiries); (k) the examination, by or on behalf of the Insolvency Service, of the financial circumstances of a personal insolvency practitioner in so far as such circumstances could affect his or her capacity to carry out the functions of a personal insolvency practitioner.(2) The Insolvency Service shall, in making regulations under this section, have regard to the need to protect debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements.?.

Amendment agreed to.

Government amendment No. 151: In page 121, before section 147, to insert the following new section:162.?(1) Where, as respects a person who is a personal insolvency practitioner, the Insolvency Service determines that it is necessary to do so for the protection of debtors and creditors who are parties to Debt Settlement Arrangements or Personal Insolvency Arrangements in relation to which the personal insolvency practitioner concerned is performing or has performed functions performable by a personal insolvency practitioner under this Act, the Insolvency Service may apply to the High Court in a summary manner for an order directing one or more of the following:(a) that no bank shall, without leave of the High Court, make any payment out of an account in the name of the personal insolvency practitioner concerned in his or her capacity as a personal insolvency practitioner; (b) that a specified bank shall not, without leave of the High Court, make any payment out of an account kept at such bank by the personal insolvency practitioner or former personal insolvency practitioner in such capacity or former capacity, as the case may be; (c) that the personal insolvency practitioner or former personal insolvency practitioner shall not, without leave of the High Court, dispose of or direct or facilitate the disposal of any assets within his or her possession or control or within his or her procurement; (d) that the personal insolvency practitioner or former personal insolvency practitioner shall not, without leave of the High Court, reduce his or her assets below a specified amount or value.(2) The High Court may hear an application for an order under subsection (1) otherwise than in public. (3) Where the High Court makes an order under subsection (1) in relation to a personal insolvency practitioner, the Court may make one or more of the following further orders:(a) directing a specified bank to furnish any information in its possession that the Insolvency Service requires relating to any aspect of the financial affairs of the personal insolvency practitioner in his or her capacity as a personal insolvency practitioner; (b) directing the personal insolvency practitioner to swear an affidavit disclosing all information relating to or contained in any account with any bank held in his or her own name, or in the name of his or her business or former business as a personal insolvency practitioner, or jointly with third parties, within a specified duration of time to be fixed by the Court; (c) directing the personal insolvency practitioner to swear an affidavit disclosing all information relating to his or her assets, either then in his or her possession or control or within his or her procurement or which had been but are no longer in his or her possession or control or within his or her procurement, within a specified duration of time to be fixed by the Court, and, if no longer in his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets; (d) directing the personal insolvency practitioner to make himself or herself available before the Court on a specified date and at a specified time for oral examination under oath in relation to the contents of any affidavit of assets sworn by him or her pursuant to paragraph (c).(4) Where the High Court makes an order under subsection (1) in relation to a personal insolvency practitioner, the personal insolvency practitioner shall forthwith lodge (or cause to be lodged) any moneys subsequently received by him or her to the appropriate account or accounts, unless otherwise ordered by the Court. (5) Where the High Court is satisfied, on an application being made to it by the Insolvency Service, that there is reason to believe that any person holds or has held assets on behalf of a personal insolvency practitioner or on behalf of his or her practice or former practice as a personal insolvency practitioner to whom subsection (1) applies, the Court may order that person to disclose to the Insolvency Service all information as to such assets, either then in his or her possession or control or within his or her procurement or which had been but are no longer in his or her possession or control or within his or her procurement, and, if no longer within his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets. (6) A reference in this section to a personal insolvency practitioner includes a reference to a person who is no longer a personal insolvency practitioner.?.

Amendment agreed to.

Government amendment No. 152: In page 121, before section 147, but in Part 5, to insert the following new section:163.?(1) Where?(a) either?(i) the Insolvency Service refuses to renew an authorisation to carry on practice as a personal insolvency practitioner, or (ii) an authorisation to carry on practice as a personal insolvency practitioner is revoked or suspended under this Act, and(b) the Insolvency Service is of the opinion that adequate arrangements have not been made for handing over to another personal insolvency practitioner of any documents within the possession or in the control, or within the procurement, of the personal insolvency practitioner or former personal insolvency practitioner, as the case may be,the Insolvency Service may, by notice in writing given to the personal insolvency practitioner or former personal insolvency practitioner, as the case may be, require the personal insolvency practitioner or former personal insolvency practitioner, as the case may be, or any other person in possession or control of such documents, to produce the documents, to a person appointed by the Insolvency Service for the purpose, at a time and place specified by the Insolvency Service in the notice. (2) Where a person the subject of a requirement under subsection (1) does not comply or fully comply with that requirement, the Insolvency Service may apply in a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply or comply fully, as the case may be, with the requirement within a period to be specified by the Court and the Court may make the order applied for or such other order as it deems appropriate. (3) Where the Insolvency Service takes possession of documents produced under this section?(a) it shall serve on the person by whom the documents were produced, a notice giving particulars of the documents and the date of taking possession thereof, and (b) it may make such enquiries as may be reasonably necessary to ascertain the person or persons entitled to the possession or custody of such documents, or any of them, and may thereafter deal with such documents, or any of them, in accordance with the directions of such person or persons so entitled.(4) Within 14 days from the service of a notice under subsection (3) on a person, the person may apply in a summary manner to the Circuit Court for an order directing the Insolvency Service to return the documents taken by the Insolvency Service to him or her or to such other person or persons as the applicant may require and the Court may make the order applied for or such other order as it deems appropriate. (5) An application under subsection (2) to the Circuit Court shall be made to a judge of that Court for the circuit in which the personal insolvency practitioner the subject of the application resides or ordinarily carried on within the previous 3 years practice as a personal insolvency practitioner.?.

Amendment agreed to.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Amendments Nos. 153 to 163, inclusive, and related amendments Nos. 179 and 180 may be discussed together.

Government amendment No. 153: In page 121, before section 147, but in Part 5, to insert the following new section:?CHAPTER 4 Complaints, Investigations and Sanctions164.?(1) For the purposes of this Act?(a) the Director of the Insolvency Service may appoint such members of the staff of the Insolvency Service as he or she deems appropriate to be inspectors for such period and subject to such terms as the Director may determine, (b) the Director of the Insolvency Service may appoint such other persons as he or she deems appropriate to be inspectors for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Director, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, may determine.(2) Each inspector shall be given a warrant of appointment and, when performing any function imposed under this Act, shall, on request by any person affected, produce the warrant or a copy thereof, together with a form of personal identification.?.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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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.

Amendment agreed to.

Government amendment No. 154: In page 121, before section 147, to insert the following new section: "165.?(1) The Minister shall establish a panel of persons to act on a committee to be known as the Personal Insolvency Practitioners Complaints Committee (in this Part referred to as ?the Complaints Committee?). (2) Schedule 3 shall apply in relation to the panel and the Complaints Committee. (3) Where the Insolvency Service appoints an inspector under section 168(1)(b) to carry out an investigation, it shall thereafter request the Minister to appoint a Complaints Committee from the panel of persons appointed in accordance with subsection (1) and Schedule 3, to perform the functions of the Complaints Committee under this Part as respects the inspector?s investigation of the personal insolvency practitioner concerned.?.

Amendment agreed to.

Government amendment No. 155: In page 121, before section 147, but in Part 5, to insert the following new section: "166.?(1) A person may make a complaint in writing to the Insolvency Service alleging that improper conduct by a personal insolvency practitioner has occurred or is occurring. (2) Where the Insolvency Service receives a complaint it shall?(a) notify the personal insolvency practitioner concerned in writing of the receipt of the complaint, (b) provide the personal insolvency practitioner with a copy of the complaint and a copy of any documents furnished to the Insolvency Service by the complainant, (c) refer the personal insolvency practitioner to any regulations made under sections 149 and 161 and to any guidelines or codes of practice issued under section 132, and (d) request the personal insolvency practitioner to provide a response in relation to the complaint within a time specified in the notification.(3) Where the Insolvency Service receives a response to the request referred to in subsection (1)(d) it shall consider the response and having considered the response it may, where?(a) it is satisfied that the complaint is not made in good faith, (b) it is satisfied that the complaint is frivolous or vexatious or without substance or foundation, or (c) subject to subsection (6), it is satisfied that the complaint is likely to be resolved by mediation or other informal means between the parties concerned,determine the complaint accordingly and in that case it shall give notice in writing to the complainant and the personal insolvency practitioner to whom the complaint relates of the decision and the reasons for the decision. (4) Where the Insolvency Service does not receive a response to the request referred to in subsection (1)(d), or having received a response it considers that none of paragraphs (a) to (c) of subsection (3) apply, it shall cause an investigation of the matter the subject of the complaint to be carried out. (5) Where a complaint is withdrawn by a complainant before the investigation report which relates to the complaint has been furnished by the inspector concerned pursuant to section 170(2), the Insolvency Service may proceed as if the complaint had not been withdrawn if it is satisfied that there is good and sufficient reason for so doing. (6) Where, pursuant to subsection (5), the Insolvency Service proceeds as if a complaint had not been withdrawn, the investigation concerned shall thereupon be treated as an investigation initiated by the Insolvency Service, and the other provisions of this Act shall be construed accordingly. (7) Where a complaint is not resolved by mediation or other informal means referred to in subsection (3)(c), the complainant may, at his or her discretion, make a fresh complaint in respect of the matter the subject of the first-mentioned complaint.?.

Amendment agreed to.

Government amendment No. 156: In page 121, before section 147, but in Part 5, to insert the following new section: "167.?(1) Without prejudice to subsection (4), where the Insolvency Service considers that the immediate suspension of an authorisation to carry on practice as a personal insolvency practitioner (whether or not the personal insolvency practitioner concerned is the subject of a complaint) is necessary to protect debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements, until steps or further steps are taken under this Part, the Insolvency Service may, on notice to the personal insolvency practitioner, make an application in a summary manner to the High Court for an order to suspend the personal insolvency practitioner?s authorisation to carry on practice as a personal insolvency practitioner. (2) The High Court may determine an application under subsection (1) by?(a) making any order that it considers appropriate, including an order suspending the authorisation of the personal insolvency practitioner the subject of the application for such period, or until the occurrence of such event, as is specified in the order, and (b) giving to the Insolvency Service any other direction that the court considers appropriate.(3) The Insolvency Service shall, on complying with a direction of the High Court under subsection (2)(b), give notice in writing to the personal insolvency practitioner concerned of the Insolvency Service?s compliance with the direction. (4) (a) Where the Insolvency Service considers that the immediate suspension of an authorisation to carry on practice as a personal insolvency practitioner (and whether or not the personal insolvency practitioner concerned is the subject of a complaint) is necessary because of the immediate risk of financial harm to debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements, the Insolvency Service may make an application in a summary manner ex parte to the High Court for an interim order to suspend the authorisation.(b) The application for such an order shall be grounded on an affidavit sworn on behalf of the Insolvency Service.(5) (a) The High Court may make an interim order to suspend an authorisation to carry on practice as a personal insolvency practitioner on an application under subsection (4) where, having regard to the circumstances of the case, the Court considers it necessary to do so for the protection of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements.(b) If an interim order is made, a copy of the order and the affidavit referred to in subsection (4)(b) shall be served on the personal insolvency practitioner as soon as is practicable. (c) The interim order shall have effect for a period, not exceeding 14 days, to be specified in the order, and shall cease to have effect on the determination by the High Court of an application under subsection (1) for an order to suspend the authorisation to carry on practice as a personal insolvency practitioner.(6) An application under subsection (4) shall be heard otherwise than in public unless the High Court considers it appropriate to hear the application in public.?.

Amendment agreed to.

Government amendment No. 157: In page 121, before section 147, but in Part 5, to insert the following new section: "168.?(1) Subject to section 166(2) and (4), the Insolvency Service?(a) shall, following the receipt of a complaint, or may of its own volition, cause such investigation as it deems appropriate to be carried out to identify any improper conduct, and (b) for the purposes of the investigation, shall appoint an inspector subject to such terms as it deems appropriate?(i) to carry out the investigation, and (ii) to prepare an investigation report following the completion of the investigation and to furnish it to the persons referred to in subsection (4).(2) The Insolvency Service may appoint more than one inspector to carry out an investigation but, in any such case, the investigation report concerned shall be prepared jointly by the inspectors so appointed. (3) The terms of appointment of an inspector may define the scope of the investigation to be carried out by the inspector, whether as respects the matters or the period to which it is to extend or otherwise, and in particular may limit the investigation to matters connected with particular circumstances. (4) Where the Insolvency Service has appointed an inspector to carry out an investigation, the inspector shall, as soon as is practicable after being so appointed?(a) if the investigation arises in consequence of the receipt of a complaint by the Insolvency Service?(i) give notice in writing to the personal insolvency practitioner to whom the complaint relates of the receipt of the complaint and setting out particulars of the complaint, and (ii) give the personal insolvency practitioner?(I) copies of any documents relevant to the investigation, and (II) a copy of this Part,(b) if the investigation arises on the volition of the Insolvency Service?(i) give notice in writing to the personal insolvency practitioner concerned of the matters to which the investigation relates, and (ii) give the personal insolvency practitioner?(I) copies of any documents relevant to the investigation, and (II) a copy of this Part, and(iii) without prejudice to the generality of section 169, afford the personal insolvency practitioner an opportunity to respond within 21 days from the day on which notice was given to the personal insolvency practitioner pursuant to subparagraph (i), or such further period not exceeding 30 days as the inspector allows, to the matter to which the investigation relates.(5) Where an investigation arises in consequence of the receipt of a complaint by the Insolvency Service, the inspector appointed to carry out the investigation?(a) shall, as soon as is practicable, give the complainant a copy of the notice referred to in subsection (4)(a)(i) given to the personal insolvencypractitioner to whom the complaint relates, and(b) shall make reasonable efforts to ensure that the complainant is kept informed of progress on the investigation.?.

Amendment agreed to.

Government amendment No. 158: In page 121, before section 147, to insert the following new section: "169.?(1) For the purposes of an investigation in relation to a personal insolvency practitioner, an inspector may?(a) subject to subsections (13) and (14), at all reasonable times enter, inspect, examine and search any premises at, or vehicles in or by means of, which any activity in connection with the practice of the personal insolvency practitioner is carried on, (b) subject to subsections (13) and (14), enter, inspect, examine and search any dwelling occupied by the personal insolvency practitioner, being a dwelling as respects which there are reasonable grounds to believe records relating to the practice of the personal insolvency practitioner are being kept in it, (c) without prejudice to any other power conferred by this subsection, require any person found in or on any premises, vehicle or dwelling referred to in any of the preceding paragraphs or any person in charge of or in control of such premises, vehicle or dwelling or directing any activity therein or thereto referred to in paragraph (a) to produce any records, books or accounts (whether kept in manual form or otherwise) or other documents which it is necessary for the inspector to see for the purposes of the investigation, and the inspector may inspect, examine, copy and take away any such records, books or accounts or other documents so produced or require a foregoing person to provide a copy of them or of any entries in them to the inspector, (d) require any person referred to in paragraph (c) to afford such facilities and assistance within the person?s control or responsibilities as are reasonably necessary to enable the inspector to exercise any of the powers conferred on the inspector under paragraph (a), (b) or (c), (e) require any person by or on whose behalf data equipment is or has been used in connection with an activity referred to in paragraph (a), or any person having charge of, or otherwise concerned with the operation of, such data equipment or any associated apparatus or material, to afford the inspector all reasonable assistance in respect of its use, (f) require the personal insolvency practitioner, the personal insolvency practitioner?s employee or the personal insolvency practitioner?s agent to give such authority in writing addressed to such bank or banks as the inspector requires for the purpose of enabling the inspection of any account or accounts opened, or caused to be opened, by the personal insolvency practitioner at such bank or banks (or any documents relating thereto) and to obtain from such bank or banks copies of such documents relating to such account or accounts for such period or periods as the inspector deems necessary to fulfil that purpose, and (g) be accompanied by a member of the Garda Síochána if there is reasonable cause to apprehend any serious obstruction in the performance of any of the inspector?s functions under this subsection.(2) A requirement under subsection (1)(c), (d), (e) or (f) shall specify a period within which, or a date and time on which, the person the subject of the requirement is to comply with it. (3) For the purposes of an investigation, an inspector?(a) may require a person who, in the inspector?s opinion?(i) possesses information that is relevant to the investigation, or (ii) has any records, books or accounts (whether kept in manual form or otherwise) or other documents within that person?s possession or control or within that person?s procurement that are relevant to the investigation,to provide that information or those records, books, accounts or other documents, as the case may be, to the inspector, and (b) where the inspector deems appropriate, may require that person to attend before the inspector for the purpose of so providing that information orthose records, books, accounts or other documents, as the case may be, and the person shall comply with the requirement. (4) A requirement under subsection (3) shall specify?(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and (b) as the inspector concerned deems appropriate?(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the records, books, accounts or other documents concerned, or (ii) the place to which the person shall send the information or the records, books, accounts or other documents concerned.(5) A person required to attend before an inspector under subsection (3)?(a) is also required to answer fully and truthfully any question put to the person by the inspector, and (b) if so required by the inspector, shall answer any such question under oath.(6) Where it appears to an inspector that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (5), the inspector may, on notice to that person and with the consent of the Insolvency Service, apply in a summary manner to the Circuit Court for an order under subsection (7). (7) Where satisfied after hearing the application about the person?s failure to comply or fully comply with the requirement in question, the Circuit Court may, subject to subsection (10), make an order requiring that person to comply or fully comply, as the case may be, with the requirement within a period specified by the Court. (8) An application under subsection (6) to the Circuit Court shall be made to a judge of that Court for the circuit in which the person the subject of the application resides or ordinarily carries on any profession, business or occupation. (9) The administration of an oath referred to in subsection (5)(b) by an inspector is hereby authorised. (10) A person the subject of a requirement under subsection (1), (3) or (5) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court. (11) Any statement or admission made by a person pursuant to a requirement under subsection (1), (3) or (5) is not admissible against that person in criminal proceedings other than criminal proceedings for an offence under subsection (17), and this shall be explained to the person in ordinary language by the inspector concerned. (12) Nothing in this section shall be taken to compel the production by any person of any records, books or accounts (whether kept in manual form or otherwise) or other documents which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege. (13) An inspector shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (14) authorising the entry. (14) A judge of the District Court, if satisfied on the sworn information of an inspector that?(a) (i) there are reasonable grounds for suspecting that any information is, or records, books or accounts (whether kept in manual form orotherwise) or other documents required by an inspector under this section are, held on any premises or any part of any premises, and(ii) an inspector, in the performance of functions under subsection (1), has been prevented from entering the premises or any part thereof, or(b) it is necessary that the inspector enter a private dwelling and exercise therein any of his or her powers under this section,may issue a warrant authorising the inspector, accompanied if necessary by other persons, at any time or times within 30 days from the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any such functions. (15) For the purposes of an investigation, an inspector may, if he or she thinks it proper to do so, of his or her own volition or at the request of the personal insolvency practitioner to whom the investigation relates, conduct an oral hearing. (16) Part 1 of Schedule 2# shall have effect for the purposes of an oral hearing referred to in subsection (15). (17) Subject to subsection (12), a person who?(a) withholds, destroys, conceals or refuses to provide any information or records, books or accounts (whether kept in manual form or otherwise) orother documents required for the purposes of an investigation,(b) fails or refuses to comply with any requirement of an inspector under this section, or (c) otherwise obstructs or hinders an inspector in the performance of functions imposed under this Act, is guilty of an offence.(18) Subject to subsection (19), where a personal insolvency practitioner is convicted of an offence under subsection (17), the court may, after having regard to the nature of the offence and the circumstances in which it was committed, order that his or her authorisation to carry on practice as a personal insolvency practitioner be revoked and that he or she be prohibited (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) from applying for any new authorisation to carry on practice as a personal insolvency practitioner. (19) An order under subsection (18) shall not take effect until?(a) the ordinary time for bringing an appeal against the conviction concerned or the order has expired without any such appeal having been brought, (b) such appeal has been withdrawn or abandoned, or (c) on any such appeal, the conviction or order, as the case may be, is upheld.(20) In this section, ?records, books or accounts? includes copies of records, books or accounts. (21) In this section where records, book or accounts are held or maintained in electronic form, the obligation to produce or provide records, books or accounts includes an obligation to produce or provide those records, books or accounts in a legible and comprehensible printed form.?.

Amendment agreed to.

Government amendment No. 159: In page 121, before section 147, but in Part 5, to insert the following new section: "170.?(1) Subject to subsection (3), where an inspector has completed an investigation, the inspector shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records, books or accounts (whether kept in manual form or otherwise) or other documents provided to the inspector pursuant to any requirement under section 169, any statement or admission made by any person pursuant to any requirement under that section, any submissions made and any evidence presented (whether at an oral hearing referred to in section 169(15) or otherwise)?(a) prepare a draft of the investigation report, and (b) give a copy of the investigation report together with a copy of this section to?(i) the personal insolvency practitioner to whom the investigation relates, (ii) if the investigation arose in consequence of the receipt of a complaint, the complainant, and (iii) the Insolvency Service,and shall in writing invite those persons to each make submissions in writing to the inspector on the draft of the investigation report not later than 30 days from the date on which the notice was sent to them, or such further period not exceeding 30 days as the inspector allows. (2) An inspector who has complied with subsection (1) following the completion of an investigation shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b), and, having?(a) considered the submissions (if any) referred to in subsection (1)(b) made before the expiration of that period on the draft of the investigation report concerned, and (b) made any revisions to the draft of the investigation report which, in the opinion of the inspector, are warranted following such consideration, prepare the final form of the investigation report and submit it, together with any such submissions annexed to the report, to each of the parties referred to in subsection (1) and the Complaints Committee. (3) In a case where the investigation report states that the inspector is satisfied that improper conduct by the personal insolvency practitioner to whom the investigation relates has occurred or is occurring, the inspector shall not make any recommendation, or express any opinion, in the report as to the form of sanction (whether a minor sanction or a major sanction) that he or she thinks ought to be imposed on the personal insolvency practitioner in respect of such improper conduct. (4) Where the Complaints Committee receives an inspector?s report it shall invite ?(a) the personal insolvency practitioner concerned, (b) the Insolvency Service, and (c) where the investigation by the inspector arose in consequence of the receipt of a complaint, the complainant,to make submissions to it in writing regarding the matters the subject of the inspector?s report and the submissions furnished to those parties pursuant to subsection (2) within 30 days of the issue of the invitation or such further period as the Complaints Committee may allow. (5) Subject to subsection (6), the Complaints Committee may consider the matter on the basis of the inspector?s report and any submissions made to the inspector pursuant to subsection (1), and to the Complaints Committee pursuant to subsection (4), and may also have regard to any documents furnished to the inspector in the course of the inspection. (6) Where the Complaints Committee is of the opinion that for the purposes of observing fair procedures it is appropriate to do so, it may conduct an oral hearing. (7) Part 2 of Schedule 2 shall apply for the purposes of an oral hearing referred to in subsection (6). (8) Having completed its consideration of the matter the Complaints Committee shall make a determination as to whether the conduct of the personal insolvency practitioner the subject of the investigation constitutes improper conduct. (9) Where the Complaints Committee determines that the conduct of the personal insolvency practitioner does not constitute improper conduct it shall dismiss the complaint. (10) Where the Complaints Committee determines that the conduct of the personal insolvency practitioner the subject of the investigation does constitute improper conduct it shall determine whether the appropriate sanction is a minor sanction or a major sanction in the circumstances of the case. (11) Where the Complaints Committee determines that the appropriate sanction is a minor sanction it shall determine which of the sanctions specified in the definition of minor sanction is the appropriate sanction in the circumstances of the case and shall impose that sanction. (12) Where the Complaints Committee determines that the appropriate sanction is a major sanction it shall determine which of the sanctions specified in the definition of major sanction is the appropriate sanction in the circumstances of the case and in such a case it shall refer the matter to the High Court and make a recommendation as to the appropriate sanction. (13) In every case where a determination is made under subsections (8) to (12) the Complaints Committee shall furnish a copy of that determination to?(a) the personal insolvency practitioner concerned, (b) the Insolvency Service, and (c) where the investigation by the inspector arose in consequence of the receipt of a complaint, the complainant.(14) Where a matter is referred to the High Court it shall determine, having given all the parties an opportunity to make submissions, whether the appropriate sanction is a minor sanction or a major sanction in the circumstances of the case, and(a) where the Court determines that the appropriate sanction is a minor sanction it shall determine which of the sanctions specified in the definition of minor sanction in section 147 is the appropriate sanction in the circumstances of the case and shall impose that sanction, and (b) where the Court determines that the appropriate sanction is a major sanction it shall determine which of the sanctions specified in the definition of major sanction in section 147 is the appropriate sanction in the circumstances of the case and shall impose that sanction.".

Amendment agreed to.

Government amendment No. 160: In page 121, before section 147, but in Part 5, to insert the following new section: "171.?(1) A personal insolvency practitioner the subject of a determination under section 170 (other than subsection (12) of that section) by the Complaints Committee?(a) that the personal insolvency practitioner concerned has committed improper conduct, and (b) that a minor sanction be imposed in respect of improper conduct, may, not later than 30 days from the date the notice under section 170(13)# was issued to the personal insolvency practitioner, appeal to the High Court against the decision.(2) The High Court may, on the hearing of an appeal under subsection (1) by a personal insolvency practitioner, consider any evidence adduced or argument made, whether or not adduced or made to an inspector or the Complaints Committee. (3) Subject to subsection (4), the High Court may, on the hearing of an appeal under subsection (1) by a personal insolvency practitioner?(a) (i) confirm the decision the subject of the appeal,(ii) determine that the conduct concerned does not constitute improper conduct, or (iii) confirm the determination that the conduct concerned does constitute improper conduct and impose a different sanction on the personal insolvency practitioner,and(b) make such order as to costs as it deems appropriate in respect of the appeal.(4) The High Court shall, in considering an appropriate sanction, take into consideration the matters referred to in section 172.".

Amendment agreed to.

Government amendment No. 161: In page 121, before section 147, but in Part 5, to insert the following new section: "172.?The Complaints Committee and the High Court, as the case may be, in considering whether a sanction ought to be imposed or the appropriate sanction to be imposed shall take into account the circumstances of the improper conduct concerned (including the factors occasioning it) and, without prejudice to the generality of the foregoing, may have regard to?(a) the need to ensure that any sanction imposed?(i) is appropriate and proportionate to the improper conduct, and (ii) if applicable, will act as a sufficient deterrent to discourage improper conduct of that or a similar nature in the future,(b) the seriousness of the improper conduct, (c) the extent of any failure by the personal insolvency practitioner to cooperate with the investigation concerned of the personal insolvencypractitioner,(d) any excuse or explanation by the personal insolvency practitioner for the improper conduct or failure to co-operate with the investigationconcerned,(e) any gain (financial or otherwise) made by the personal insolvency practitioner or by any person in which the personal insolvency practitioner has a financial interest as a consequence of the improper conduct,(f) the amount of any loss suffered or costs incurred as a result of the improper conduct, (g) the duration of the improper conduct, (h) the repeated occurrence of improper conduct by the personal insolvency practitioner, (i) if applicable, the continuation of the improper conduct after the personal insolvency practitioner was notified of the investigation concerned, (j) if applicable, the absence, ineffectiveness or repeated failure of internal mechanisms or procedures of the personal insolvency practitionerintended to prevent improper conduct from occurring,(k) if applicable, the extent and timeliness of any steps taken to end the improper conduct and any steps taken for remedying the consequences ofthe improper conduct,(l) whether a sanction in respect of similar improper conduct has already been imposed on the personal insolvency practitioner by a court or theComplaints Committee, and(m) any precedents set by a court or the Complaints Committee in respect of previous improper conduct.".

Amendment agreed to.

Government amendment No. 162: In page 121, before section 147, but in Part 5, to insert the following new section: "173.?(1) The Insolvency Service shall publish particulars, in such form and manner and for such period as it deems appropriate, of?(a) the conviction of a person for an offence under section 148, (b) a decision of the Insolvency Service refusing to renew an authorisation to carry on practice as a personal insolvency practitioner, (c) the suspension under section 167(2) of an authorisation to carry on practice as a personal insolvency practitioner, and (d) the imposition of a major sanction on a personal insolvency practitioner under the Part.(2) The Insolvency Service may publish particulars, in such form and manner and for such period as it deems appropriate, of the imposition of a minor sanction on a personal insolvency practitioner under this Part.".

Amendment agreed to.

Government amendment No. 163: In page 121, before section 147, but in Part 5, to insert the following new section: "174.?Section 4 (as amended by section 5 of the Data Protection (Amendment) Act 2003) of the Data Protection Act 1988 shall not apply to data processed by?(a) the Insolvency Service, (b) an inspector appointed under section 164, or (c) the Complaints Committee,in the performance of functions assigned to those persons under this Act in so far as those functions relate to carrying out an investigation under this Part.".

Amendment agreed to.

3:20 pm

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Amendment No. 164 has been ruled out of order as it involves a potential charge on Revenue.

Amendments Nos. 164 and 165 not moved.

Section 147 deleted.

NEW SECTIONS

Photo of Michael MullinsMichael Mullins (Fine Gael)
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Government amendments Nos. 166 to 178, inclusive, and 181 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 166: In page 122, before the Schedule, to insert the following new section:"PART 6 SPECIALIST JUDGES OF CIRCUIT COURT148.?The Courts (Establishment and Constitution) Act 1961 is amended?(a) in section 4(2)?(i) in paragraph (a), by deleting ?and?, (ii) in paragraph (b), by deleting ?Oireachtas.? and substituting ?Oireachtas, and?, and (iii) by inserting the following paragraph after paragraph (b):?(c) such number of specialist judges (each of whom shall be styled ?Sainbhreitheamh den Chúirt Chuarda? (?SpecialistJudge of the Circuit Court?)) as may from time to time be fixed by Act of the Oireachtas.?,(b) in section 6(1)(a), by deleting ?President of the Circuit Court or ordinary judge of the Circuit Court? and substituting ?President of the CircuitCourt, ordinary judge of the Circuit Court or specialist judge of the Circuit Court?, and(c) in section 6A (inserted by section 12 of the Courts and Court Officers Act 2002), by substituting the following for subsection (1): ?(1) Where a judicial office within the meaning of section 6 of this Act is vacated by a person in accordance with subsection (3) of that section, the person shall complete the hearing of any case or cases that have been partly heard by the person in the Court in which the judicial office is vacated if, at the request of the President of that Court?(a) in case the person is appointed to the office of Chief Justice, President of the High Court or President of the Circuit Court,he or she considers it appropriate to do so, or(b) in case the person is appointed to the office of?(i) ordinary judge of the Supreme Court, the Chief Justice requests the person to do so, (ii) ordinary judge of the High Court, the President of the High Court requests the person to do so, or (iii) ordinary judge of the Circuit Court or specialist judge of the Circuit Court, the President of the Circuit Court requeststhe person to do so.".".

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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Amendments Nos. 166 to 178, inclusive, are grouped together. They propose to insert a Part 6 with new sections 148 to 160 into the Bill. These amendments together create a new cadre of judges of the Circuit Court and are necessary to facilitate the speedy consideration of insolvency applications by that court. As I have mentioned previously, the tentative estimate of applications is roughly 15,000 applications for the two main non-judicial debt resolution processes, the debt settlement arrangement and the personal insolvency arrangement, and 3,000 to 4,000 applications for debt relief notices.

The Bill sets out two applications which will be made to the Circuit Court by the insolvency service in respect of debtors. The Bill allows that a creditor may seek to object on specified grounds. Every effort is being made to design these court applications in a straightforward and streamlined manner. However, this work was to be added to the existing volume of work of the Circuit Court without increasing its capacity and there is little doubt the applications would suffer some delay. The Government therefore agreed to my proposal to create a small new cadre of specialty or specialist judges of the Circuit Court who will be dedicated to applications under this Bill and other similar work. They will, for example, be assigned the functions to be created also by the forthcoming mental capacity assisted decision-making Bill which I hope will shortly be published, and other suitable functions may be assigned by statute to them in due course. I expect that approximately six such judges will be required. Rather than seeking to appoint additional judges with associated extra salary and pension costs to the Exchequer, the Government has decided that eligibility for these new judgeships will be initially confined to serving county registrars with the necessary legal qualifications and practice experience.

The posts will be advertised via the Judicial Appointments Advisory Board, JAAB, which will forward a list of suitable applications to Government in the same manner that applies to other judicial appointments. The appointments of a country registrar as a specialist judge will be largely cost neutral as he or she will not be replaced. This will have the effect of creating the necessary additional judicial resources and maximising the contribution of existing officeholders at little additional cost.

The detailed technical amendments to the Courts Act to provide for these new judgeships are set out in amendments Nos. 166 to 179, inclusive, as follows. Amendment No. 166 proposes the insertion of a new section 148 amending the main Courts (Establishment and Constitution) Act 1961. Subsection (a) amends section 4(2) which provides that circuit judges be styled in their Irish language titles with English titles a second option. The appropriate term in designated in the amendment. Subsection (b) adds specialist judges to the list of judges that make up the Circuit Court. These judges will also be regarded as full judges of the Circuit Court. The effect of the amendment is that the term ?judges of the Circuit Court? will mean the President, "ordinary" judges and specialist judges of that court. Subsection (c) amends section 6A(1)(b) of the 1961 Act - inserted by section 12 of the Courts and Court Officers Act 2002 - to allow completion of partly heard cases by a judge, including a specialist judge, who is elevated to another judicial office.

Amendment No. 167 inserts a new section 149 to amend section 17 of the Courts (Supplemental Provisions) Act 1961 providing for eligibility for appointment as a Circuit Court judge. A specialist judge is a judge of the Circuit Court, but not what the legislation terms an ?ordinary judge of the Circuit Court?. This gave rise to the need to amend subsections (2), (2A) and (2B), all inserted by section 5 of the Court and Court Officers Act 2002, to make clear that these provisions apply to the appointment of ordinary judges only, and not to the appointment of specialty judges who are dealt with in the new subsection (4).

Subsection (1)(d) allows a specialist judge to apply to appointment as an ordinary judge of the Circuit Court. Subsection (1)(e) deals with the qualification for appointment as a specialist judge, by inserting new subsections (4) and (5) in section 17 of the 1961 Act. This is to provide that the first applicants are confined to serving, qualified county registrars. Subsection 4(b) also gives effect to this by providing that the standard eligibility criteria for practising solicitors and barristers who are qualified for appointment may not come into effect until 1 January 2014, that is, after the first round of appointments of specialist judges has finished. A key aim of this measure is to achieve the essential additional capacity in a largely cost neutral manner. If, however, insufficient numbers of county registrars apply or are deemed suitable by the JAAB, the wider eligibility provision may be triggered at an earlier date by ministerial order. Given that the provision deals with the appointment of a category of judge, it also specifies a safeguard that the ministerial power to commence the wider eligibility is "grandfathered" out and the eligibility automatically broadens out to the standard no later than 1 January 2014.

Amendment No. 168 inserts a new section 150 into the Bill amending the Courts (Supplemental Provisions) Act 1961 to insert a new section 26A setting out the extent of the functions, powers and jurisdiction of a specialist judge. Subsection 1 provides that a specialist judge may only perform the functions and exercise the powers and jurisdiction conferred by this statute. The other subsections then go on to detail those functions, powers and jurisdiction as follows. Subsection 2 relates to the functions of the Circuit Court which is the court granted jurisdiction in section 5 of this Bill for all applications other than those specified in section 5(1)(a) of this Bill. Subsection 3 also gives a parallel power to specialist judges to make any order that may be made by a County Registrar under section 34(1) of the Courts and Court Officers Act 1995. Subsection 3(b) means that such orders, if made by a specialist judge, will be appealable to the High Court rather than the Circuit Court. Subsections (4) to (9), inclusive, are provisions to ensure that a specialist judge may have powers to deal appropriately with any case before him or her, including, for example, a standard power to adjourn a case under subsection (7).

Amendment No. 169 inserts a new section 155, amending section 46 of the Courts (Supplemental Provisions) Act 1961 to provide for the salary of the specialist judge. This is set at the same rate as that applicable from 1 January last to ordinary judges of the Circuit Court, that is, ¤140,623. County registrars are paid between ¤123,000 and ¤145,000 thus where a serving county registrar is appointed, this will give rise to little or no additional cost to the Exchequer.

With regard to amendment No. 170, the new section 152 amends the Courts and Court Officers Act 1995 to set a maximum of eight specialist judges. As specialist judges may be appointed to more than one circuit, I anticipate that six may be appointed in the first instance. An increase to the maximum of eight will depend on the volume of work involved, which will only become apparent some months after the Bill has been in force.

Amendment No. 171 proposes to add the category of "specialist judges" to the existing provisions for the appointment of judges. It is intended that all the current requirements of the JAAB will be applied to the new cadre of judges. Applications will be invited by the board which will then forward a list of those deemed suitable to the Minister for the consideration of the Government. The Government will nominate persons for appointment by the President under the Constitution.

Amendment No.172 inserts a new section 154 dealing with assignment of specialist judges. This is achieved by inserting a new provision into the Courts Act 1977. A key provision here is section 154(2) which provides that a specialist judge may be assigned to more than one circuit. The volume of insolvency applications has been estimated at 15,000 for the two main non-judicial debt resolution processes ? DSA and PIA - and between 3,000 and 4,000 applications for debt relief notices. These provisions have been drafted with care to allow for sufficient flexibility to ensure that the judges can be diverted from circuits where fewer applications are lodged to circuits where the volume is greater. More than one judge can be assigned to a single circuit. The other provisions are standard to uphold the principles of judicial independence by ensuring that permanently assigned judges can only be reassigned with their consent.

Amendment No. 173 proposes a new section 155 to amend section 10 of the Courts of Justice Act 1947 to provide that the allocation and organisation of business, sittings and times of sittings of specialist judges is the responsibility of the President of the Circuit Court. Sections 155(9) to 155(12), inclusive, provide the powers for the President to organise the business of the court including the sittings, times during the year and hours between which the court might sit. These powers also allow him or her to consult, where necessary, with the relevant judges. The provisions are intended to ensure there will be sufficient availability of these judges to make sure applications can be dealt with by the court without delay and, therefore, for example, I envisage these judges will be available between Monday and Friday each week throughout the calendar year, rather than being restricted to the current legal terms. On a small technicality, as the original section 10(7) had been repealed, one might think the numbering of the new subsections being inserted should start at seven. However, I am advised by the Office of Parliamentary Counsel that the practice is not to replace repealed provisions in this way, as it would create confusion if there were any old cross-references to the repealed provision on the Statute Book and, therefore, the numbering starts at eight. I wish anyone luck who wants to debate that issue.

Amendment No. 174 proposes a new section 156 amending section 38 of the Courts of Justice Act 1924 to provide in subsection (1)(a) that the manner of address shall be fixed by rules of court and subsection (2) that no order of precedence shall apply to specialist judges.

Amendment No. 175 proposes that vacations may be set by the Minister of the day. This mirrors a long-standing provision applying to District Court judges. The District Court sits throughout the year, including regularly providing a service on Christmas Day, Sundays, etc., to deal with charges as they arise. The accessibility provided by the District Court will, I hope, not be required to quite the same extent in specialist judges but the general model of flexibility and accessibility is important and that is why we are copying it.

Amendment Nos. 176 and 177 propose sections 158 and 159, which update the relevant sections of the 1973 Court Act and the Law Reform Commission Act 1975 allowing that certain service as a judge or member of the Law Reform Commission is reckonable in calculating service as a barrister or solicitor for the purposes of section 17 of the 1961 Act, which sets out the service requirements for eligibility for appointment as a judge and will now include "specialist judge".

Finally, amendment 178 extends the new cadre of specialist judges. There are a number of standard provisions in the Courts Acts to ensure that no cases are affected by the introduction of the new provisions.

3:40 pm

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I thank the Minister and I call Senators Ó Clochartaigh, Mooney and Paul Coghlan.

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein)
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The Minister has said that appointing the six judges is cost neutral but I want to tease out his claim. These people, who are possibly county registrars at the moment, could be appointed judges. He mentioned that their current pay scale is ¤126,000 or between ¤123,000 and ¤140,000 and that the judge's pay scale would start at around ¤140,000. How does it benefit the registrar to accept a position with different responsibilities that also needs certain qualifications? Obviously he or she would become a full-time judge under the new system but who will replace them and become the new county registrar? Will a replacement mean that a person is bumped up the system? Does that involve a cost? Will there be replacements down the line? Will they be from within the system?

There have been quite a number of redundancies in the Courts Service and the organisation is quite stretched. The Minister said that he hoped that six registrars will apply for the positions. If that does not happen and he must invoke the other appointment mechanism, will the registrars then become additional staff in the judicial service? If so, and in the worst case scenario, the Department would have to employ the six of them incurring a large cost to the State. It would mean multiplying the basic pay of ¤140,000 by six plus their other earnings and the final cost could total almost ¤750,000. That is a potentially large cost to the Exchequer if the county registrars do not take up the offer.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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It is cost neutral in the context of the first six being appointed from the existing number of county registrars. That is quite clear. The County Registrars Association has made the case that it feels that the grade is underutilised. I would be very surprised if a number of county registrars, and exceeding six, did not apply for these positions. Let us assume that appropriate individuals do apply, and who are recommended by the Judicial Appointments Advisory Board, their appointment is cost neutral because it is not intended to replace them at present. We believe that the existing county registrars will be able to continue and maintain the work that is required by county registrars at the moment. Some of the tasks that county registrars used to undertake years ago are no longer undertaken by them. The new specialist judges will retain powers to do certain court work that county registrars currently do. To that extent it is cost neutral. Of course it is not cost neutral if no county registrar applies because then we will have to appoint additional individuals. If only three apply who are appropriate then clearly the position would have to be advertised and other individuals would be appointed.

It is important that the insolvency legislation is up and running and works efficiently. We must have the insolvency agency in place. We cannot expect that the anticipated volume of work that would arise would be coped with and dealt with by the existing court judges because they already have a very large amount of work. I am sure that they could cope with it after a fashion. That would be in the context of building up court lists of debt relief notices, debt settlement arrangements or personal insolvency arrangements awaiting either approval or, where a creditor raised a difficulty, some form of hearing would be needed to address the difficulty. The idea is that once a debt settlement is agreed and put in place it would be signed off and approved rapidly both in the interest of a debtor and a creditor. We cannot have a backlog of a year before the matter is dealt with. The only choice is to create an additional group of judges who have a specialist function in the area.

The objective and the manner in which the legislation has been crafted aims to ensure that we do not impose additional costs on the Exchequer. I must be realistic about it. As a result of the budget 2013 my Department will get an additional ¤7.5 million or ¤7.6 million to cover the cost of establishing the insolvency service, to pay salaries in the service, and for everything that comes with it, such as software and back-up facilities. Overall, in the context of the Department of Justice and Equality, for the same services in 2013 we will have ¤62.5 million less available than we had in 2012 and part of our funding allocation goes to the Courts Service. Therefore, it is important to see if we can set up the structure without incurring unnecessary expense both in the interests of taxpayers and to ensure that we maintain our budgetary position and comply with our Estimates during the course of the year. There are some really good qualified county registrars who can fill these positions if they apply for them. As I said, I would be surprised if there was not a surplus of applications. If it turns out that there are no appropriate people or not enough applications well so be it. We will then have to find the funding for a minimum number of six judges that we believe that we require.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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I compliment the Minister for introducing the amendments. As he will be aware, the honourable Mrs. Justice Susan Denham of the Supreme Court has publically called for more specialist judges to be appointed to alleviate the burden on the wider Judiciary. I appreciate that he could have gone down the road of taking staff from the existing pool. The commercial court judge, Mr. Justice Peter Kelly, is proof that appointing a specialist judge with a particular focus means that business will be dealt with efficiently and quickly. I assume that the same will happen with this provision. From that point of view I welcome the amendments and the new sections.

I am a little bemused by some of the amendments. Perhaps the Minister will clarify what is meant by amendment No. 174 which states: "The following judges shall be addressed in such manner as may be determined by the rules to be made under this Part." How will they be addressed in the courts? Will a particular term be used such as "the honourable", the "very honourable" or whatever? Can he clarify if the specialist judges will be permitted to operate in another judicial sphere other than on personal insolvency cases? I got the impression from the proposed new sections that they will be confined and exclusive to the personal insolvency courts even though they will be shifted around the circuit.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I call Senator Paul Coghlan, after which the Minister can respond to both Senators.

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
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I compliment the Minister and welcome the section which allows for the appointment of the new judges. I understand that six out of the eight positions will be confined to county registrars. What is the overall plan for county registrars? How many are there? If six county registrars apply how many will remain?

County registrars are returning officers and also have other functions. The Minister is right but I think that a lot of them are suitably qualified to fulfil the role of a Circuit Court judge or the equivalent. I also understand that they have other earnings. If six county registrars apply who will do their work if they are appointed? Will they be in a position to do some of their work? The Minister has said that they will be able to do some of their court work. He also outlined what will happen if they do not apply for the posts. If they are appointed who will act as county returning officers? How many are there? How many will remain? What is the overall plan for the county registrars?

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I thank the Senator and I call on the Minister to respond to both Senators.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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First, I shall deal with the questions raised by Senator Mooney. There will be specialist judges. They are called "specialist judges" in the legislation but I am sure the term will not be used in court. They will be just addressed as "judge". It would be a bit odd to address them the other way.

As I have said, they will have additional functions. The initial functionality will relate to the insolvency legislation but they will continue to be able to deal with certain applications currently dealt with by country registrars. County registrars deal with certain court applications at the moment and they will still be able to do this.

I have referred to the forthcoming mental capacity Bill on assisted decision making and there will be a role for specialist judges in that regard. We will completely reform the wards of court structure that exists and replace it with a new format. There will be a role for the Circuit Court although this area is largely confined to the High Court at the moment. Other appropriate functions may be assigned to county registrars by legislation from time to time.

Senator Coghlan asked about the numbers. Currently, we have 23 country registrars. If six were appointed there would be 17 left. The prospective scenario is based on the work currently done by country registrars and we anticipate that 17 could cope fully with the work 23 do at present. The position at the moment is that they represent an under-utilised resource. I have moved throughout the country during the past 18 months and met some of our country registrars. They have complained to me that they could do more work and that they would like to have additional functions assigned to them. I believe they will welcome the new functions assigned here and the opportunity afforded to their role effectively as a specialist judge of the Circuit Court rather than a county registrar. This will have them engaged in different work and extricate some, who have been there for a long time, from the more administrative work they have had to do over the years.

3:50 pm

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Earlier I referred to Mrs. Justice Denham of the Supreme Court. Is the Minister considering extending other specialist courts? I understand Mrs. Justice Denham made particular reference to a permanent constitutional court because of the volume and burden placed on the Supreme Court at the moment with regard to constitutional matters before it. This is what I had in mind. In some of the documents publicised during recent months it seems that at the draft stage some consideration was given to establishing several specialist courts, in particular a constitutional court. That is what prompted the question.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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We cannot simply willy-nilly establish courts. Our court systems are prescribed in the Constitution. We have what are known as courts of local and limited jurisdiction, which the Oireachtas can create by legislation. These include the District and Circuit Courts. Then there are courts specified in the Constitution, in particular, the High Court and the Supreme Court. The Chief Justice remarked on something we are committed to under the programme for Government, that is, a court of civil appeal, which is badly needed. Many of the appeals that go from the High Court on the civil side are currently part of the backlog of the Supreme Court and could be dealt with more speedily if we had a court of civil appeal. This would mean only cases of major public importance or interest or cases involving a peculiarly difficult legal issue would have to go to the Supreme Court on appeal. Other specialist courts could be established.

The Senator might recall that last July I announced a decision made by the Government to establish a court of civil appeal and a special integrated family court structure. We have been considering other constitutional changes of relevance to the court system and we anticipate that a referendum will address these issues in 2013. The objective at present is to hold such a referendum in the autumn of 2013. The initial Government decision was announced but work must be progressed on this issue. It would require a referendum. We proposed a suggestion that would allow the Houses of the Oireachtas to create courts of unlimited jurisdiction by way of statute. This would mean any time one wished to create a specialist court, one would not of necessity have to hold a referendum. However, we would create a court of civil appeal by way of referendum. It is not envisaged that there would be a separate individualised constitutional court because within our constitutional framework the Supreme Court is the ultimate court of appeal on constitutional issues. It is the court of reference under Article 26. It is appropriate that the most important issues in the land relating to constitutional rights or the constitutional validity of legislation be determined by the Supreme Court. There is a broad range of possibilities with regard to the actual functioning of a court of civil appeal. For example, on the civil litigation or judicial review side it might be the appropriate court for all appeals. However, if the High Court made a decision on a constitutional issue, it might be appropriate to retain the provision whereby any appeals on a constitutional challenge would go directly from the High Court to the Supreme Court. We did not create a whole trilogy of applications in these areas. These issues are worth discussing and debating.

I wish to use this opportunity as an advertisement. My Department intends to hold a conference in March of next year to allow Members of the Houses, lawyers, legal academics and others who may be interested to give consideration to some of these issues. We anticipate the conference will be held on a Saturday. We hope to have some guest speakers with degrees of expertise in these areas and we hope to open up the debate on the floor of the conference as part of the consultative process leading in to the holding of a referendum next autumn.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I thank the Minister for that comprehensive response.

Amendment agreed to.

Government amendment No. 167: In page 122, before the Schedule, to insert the following new section: 149.?Section 17 of the Courts (Supplemental Provisions) Act 1961 is amended ?(a) in subsection (2) (as amended by section 5 of the Court and Court Officers Act 2002), by deleting ?A person? and substituting ?Subject to subsection (4), a person?, (b) in subsection (2A) (inserted by section 5 of the Court and Court Officers Act 2002), by deleting ?A judge? and substituting ?Subject to subsection (4), a judge?, (c) in subsection (2B) (inserted by section 5 of the Court and Court Officers Act 2002), by deleting ?A county registrar? and substituting ?Subject to subsection (4), a county registrar?, (d) by inserting the following after subsection (2B) (inserted by section 5 of the Court and Court Officers Act 2002): ?(2C) A specialist judge of the Circuit Court shall be qualified for appointment as an ordinary judge of the Circuit Court.?, and (e) by inserting the following after subsection (3): ?(4) Any of the following persons shall be qualified for appointment as a specialist judge of the Circuit Court:(a) a person who is for the time being a county registrar, having held such office for not less than 2 years continuously, and (b) subject to subsection (5)?(i) a person who is for the time being a practising barrister or a practising solicitor of not less than 10 years standing, and (ii) a judge of the District Court.(5) Subsection (4)(b) shall come into operation on such day, being not later than 1 January 2014, as the Minister may by order appoint.?.?.

Amendment agreed to.

Government amendment No. 168: In page 122, before the Schedule, to insert the following new section: 150.?The Courts (Supplemental Provisions) Act 1961 is amended by inserting the following after section 26:26A.?(1) Notwithstanding any other enactment conferring functions, powers and jurisdiction on a judge of the Circuit Court, a specialist judge of that court may only perform the functions and exercise the powers and jurisdiction that are conferred upon him or her by this section. (2) The functions, powers and jurisdiction conferred on the Circuit Court by the Personal Insolvency Act 2012 may, subject to this section, be performed and exercised by a specialist judge. (3) A specialist judge may make any order that may be made by a County Registrar under section 34(1) of, and the Second Schedule to, the Courts and Court Officers Act 1995, subject to the following modifications and any other necessary modifications ?(a) a reference in the Schedule to a County Registrar shall be construed as a reference to a specialist judge, (b) section 34(2) of the Act shall not apply to such an order, and (c) the deletion of paragraph 8 of the Schedule.(4) In performing the functions and exercising the jurisdiction conferred upon him or her by this section, a specialist judge shall have all powers ancillary to those functions or that jurisdiction. (5) A specialist judge may perform functions and exercise powers and jurisdiction in respect of proceedings to which subsections (2) and (3) apply that are before the Circuit Court only in a relevant circuit. (6) A specialist judge may, in any place in the State outside a relevant circuit, hear and determine any application which he or she has power to hear and determine within that circuit and which, in his or her opinion, should be dealt with as a matter of urgency. (7) A specialist judge may adjourn proceedings or any part of proceedings before him or her to any other judge of the Circuit Court within a relevant circuit. (8) A specialist judge may make out of court any orders which he or she may deem to be urgent. (9) In this section? ?enactment? means?(a) an Act of the Oireachtas, (b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or (c) an instrument made under?(i) an Act of the Oireachtas, or (ii) a statute referred to in paragraph (b);?relevant circuit? means, in relation to a specialist judge, a circuit to which he or she is assigned under section 10(3) of the Courts of Justice Act 1947 or section 2A (inserted by section 154 of the Personal Insolvency Act 2012) of the Courts Act 1977.?.?.

Amendment agreed to.

Government amendment No. 169: In page 122, before the Schedule, to insert the following new section: 151.?Subsection (9A) (inserted by section 10 of the Financial Emergency Measures in the Public Interest (Amendment) Act 2011) of section 46 of the Courts (Supplemental Provisions) Act 1961 is amended?(a) in paragraph (g), by deleting ?and?, and (b) by inserting the following after paragraph (g):?(gg) to each specialist judge of the Circuit Court, the sum of ¤140,623, and?.?.

Amendment agreed to.

Government amendment No. 170: In page 122, before the Schedule, to insert the following new section: 152.?The Courts and Court Officers Act 1995 is amended by inserting the following after section 10:10A.?The number of specialist judges of the Circuit Court shall not be more than 8.?.?.

Amendment agreed to.

Government amendment No. 171: In page 122, before the Schedule, to insert the following new section: 153.?The Courts and Court Officers Act 1995 is amended?(a) in section 12, in the definition of ?judicial office?, by inserting ?, specialist judge of the Circuit Court? after ?Circuit Court?, and (b) in section 16(7) (as amended by section 8 of the Courts and Court Officers Act 2002), by substituting the following paragraph for paragraph (a):?(a) When submitting the name of a person to the Minister under this section, the Board shall indicate whether the person satisfies the requirements of?(i) subsection (2) of section 5 (as amended by section 4 of the Courts and Court Officers Act 2002) of the Act of 1961 (in the case of an appointment to the office of ordinary judge of the Supreme Court or of ordinary judge of the High Court), (ii) subsection (2) or (2B) of section 17 (as amended by section 149 of the Personal Insolvency Act 2012) of the Act of 1961 (in the case of an appointment to the office of judge of the Circuit Court), (iii) subsection (4) (inserted by section 149 of the Personal Insolvency Act 2012) of section 17 of the Act of 1961 (in the case of an appointment to the office of specialist judge of the Circuit Court), or (iv) subsection (2) or (3) of section 29 of the Act of 1961 (in the case of an appointment to the office of judge of the District Court), in respect of appointment to the judicial office for which the person wishes to be considered and the Board shall not recommend a person to the Minister under this section unless the person satisfies those requirements.?.?.

Amendment agreed to.

Government amendment No. 172: In page 122, before the Schedule, to insert the following new section: 154.?The Courts Act 1977 is amended by inserting the following after section 2:2A.?(1) Section 2 shall not apply to the assignment to a circuit of a specialist judge of the Circuit Court. (2) Where a specialist judge of the Circuit Court is appointed, the Government shall permanently assign him or her to one or more than one circuit. (3) Any specialist judge of the Circuit Court who is permanently assigned to a particular circuit may at any time, if he or she so consents but not otherwise, be transferred by the Government to another circuit and shall upon such transfer become and be permanently assigned to that other circuit in lieu of the firstmentioned circuit. (4) Where a specialist judge of the Circuit Court is permanently assigned to a circuit, the Government, at his or her request, may, if they think fit, terminate his or her permanent assignment to that circuit and the judge may at any time thereafter be permanently assigned by the Government to any other circuit. (5) Where?(a) a specialist judge of the Circuit Court is permanently assigned to two or more circuits, and (b) his or her permanent assignment to one of those circuits ceases under subsection (3) or (4),nothing in those subsections shall terminate or affect his or her permanent assignment to the circuit or circuits not referred to in paragraph (b) or deprive or relieve him or her of any of the privileges, powers and duties vested in or imposed on him or her by virtue of such permanent assignment. (6) More than one specialist judge of the Circuit Court may be assigned to the same circuit, whether by operation of this section or section 10(3) of the Courts of Justice Act 1947, or both.?.?.

Amendment agreed to.

Government amendment No. 173: In page 122, before the Schedule, to insert the following new section: 155.?Section 10 of the Courts of Justice Act 1947 is amended?(a) in subsection (1), by deleting ?by subsections (2), (3), (4), (5) and (6) of this section? and substituting ?by this section?, (b) in subsection (2), by deleting paragraph (e), and (c) by adding the following after subsection (6):?(8) Subsections (2), (4) and (5) shall not apply to the distribution of the work, or the despatch of the business, of the Circuit Court that is required to be done by or transacted before a specialist judge of the Circuit Court. (9) The President of the Circuit Court may, from time to time, by order fix, in respect of any circuit the?(a) places therein at which sittings before specialist judges are to be held, (b) times during the year and the hours between which (which may include times and hours other than the times and hours of the sittings of the Circuit Court fixed under subsection (2)) such sittings are to be held,and, whenever such an order is in force, such sittings within that circuit shall be held?(i) at the place fixed by the order and not elsewhere, and (ii) at the times during the year and between the hours fixed by the order.(10) The President of the Circuit Court may, before exercising his or her powers under subsection (9)(a) in respect of a circuit, consult the specialist judge permanently assigned to that circuit. (11) Every order made under subsection (2) or (9) shall, as soon as may be after it is made, be published in such manner as the President of the Circuit Court may direct. (12) Where 2 or more specialist judges are for the time being assigned (whether permanently or temporarily) to a particular circuit, the President of the Circuit Court, after consultation with those specialist judges, may, from time to time, allocate the business of the Circuit Court in that circuit that is required to be transacted before a specialist judge amongst those specialist judges.?.?.

Amendment agreed to.

Government amendment No. 174: In page 122, before the Schedule, to insert the following new section: 156.?The Courts of Justice Act 1924 is amended by substituting the following section for section 38:?38.?(1) The following judges shall be addressed in such manner as may be determined by the rules to be made under this Part:(a) all the circuit judges, other than the specialist judges, and (b) all the specialist judges.(2) All the circuit judges, other than the specialist judges, shall rank amongst themselves according to priority of appointment.?.?.

Amendment agreed to.

Government amendment No. 175: In page 122, before the Schedule, to insert the following new section: 157.?The Courts of Justice Act 1924 is amended in section 66?(a) by designating the section as subsection (1), and (b) by inserting the following after subsection (1):?(2) Notwithstanding subsection (1), the times at which specialist judges of the Circuit Court may take vacations shall be such times as may be approved of by the Minister.?.?.

Amendment agreed to.

Government amendment No. 176: In page 122, before the Schedule, to insert the following new section: 158.?Section 2(2) of the Courts Act 1973 is amended by substituting the following paragraphs for paragraph (a):?(a) under subsection (2) or (2B) of section 17 of the Courts (Supplemental Provisions) Act 1961, as a judge of the Circuit Court, (aa) under section (4)(b) (inserted by section 149 of the Personal Insolvency Act 2012) of section 17 of the Courts (Supplemental Provisions) Act 1961, as a specialist judge of the Circuit Court, or?.?.

Amendment agreed to.

Government amendment No. 177: In page 122, before the Schedule, to insert the following new section: 159.?Section 14(2) of the Law Reform Commission Act 1975 is amended by substituting the following paragraphs for paragraph (d):?(d) under subsection (2) or (2B) of section 17 of the Courts (Supplemental Provisions) Act 1961, as a judge of the Circuit Court, (dd) under section (4)(b) (inserted by section 149 of the Personal Insolvency Act 2012) of section 17 of the Courts (Supplemental Provisions) Act 1961, as a specialist judge of the Circuit Court,?.?.

Amendment agreed to.

Government amendment No. 178: In page 122, before the Schedule, to insert the following new section:160.?(1) The continuity of the administration of justice shall not be interrupted by?(a) the coming into operation of any provision of this Part, or (b) the assignment of a specialist judge of the Circuit Court to a circuit, whether permanently or temporarily, under section 10(3) of the Courts of Justice Act 1947 or section 2A (inserted by section 154 of the Personal Insolvency Act 2012) of the Courts Act 1977.(2) A specialist judge of the Circuit Court may perform the functions and exercise the powers and jurisdiction conferred on him or her by section 150 in proceedings before the Circuit Court, notwithstanding that those proceedings may have been pending at the date of coming into operation of that section.?.

Amendment agreed to.

Schedule 1 agreed to.

NEW SCHEDULES

Government amendment No. 179: In page 122, after line 3, to insert the following new Schedule:SCHEDULE 2PROVISIONS APPLICABLE TO ORAL HEARINGS CONDUCTED PURSUANT TO SECTIONS 169 AND 170

PART 1ORAL HEARING CONDUCTED BY INSPECTOR PURSUANT TO SECTION 169(15) 1. The inspector conducting the oral hearing for the purposes of an investigation may take evidence on oath, and the administration of such an oath by the inspector is hereby authorised. 2. The inspector may by notice in writing require any person to attend the oral hearing at such time and place as is specified in the notice to give evidence in respect of any matter in issue in the investigation or to produce any relevant documents within his or her possession or control or within his or her procurement. 3. Subject to paragraph 4, a person referred to in paragraph 2 may be examined and cross-examined at the oral hearing. 4. A person referred to in paragraph 2 shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in that paragraph as if the person were a witness before the High Court. 5. Where a person referred to in paragraph 2 does not comply or fully comply with a requirement referred to in that paragraph, the inspector may apply in a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply or fully comply, as the case may be, with the requirement within a period to be specified by the Court, and the Court may make the order sought or such other order as it deems appropriate or refuse to make any order. 6. The jurisdiction conferred on the Circuit Court by paragraph 5 may be exercised by the judge of that Court for the circuit in which the person concerned ordinarily resides or carries on any profession, business or occupation. 7. The oral hearing shall be held otherwise than in public.PART 2ORAL HEARING CONDUCTED BY COMPLAINTS COMMITTEE PURSUANT TO SECTION 170(6) 1. The Complaints Committee, in conducting the oral hearing for the purposes of assisting it to make a determination under section 170 or for the purposes of observing fair procedures, may take evidence on oath, and the administration of such an oath by any member of the Complaints Committee is hereby authorised. 2. The Complaints Committee may by notice in writing require any person to attend the oral hearing at such time and place as is specified in the notice to give evidence in respect of any matter in issue in the making of the decision under section 170 or to produce any relevant documents within his or her possession or control or within his or her procurement. 3. Subject to paragraph 4, a person referred to in paragraph 2 may be examined and cross-examined at the oral hearing. 4. A person referred to in paragraph 2 shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in that paragraph as if the person were a witness before the High Court. 5. Where a person referred to in paragraph 2 does not comply or fully comply with a requirement referred to in that paragraph, the Insolvency Service may apply in a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply or fully comply, as the case may be, with the requirement within a period to be specified by the Court, and the Court may make the order sought or such other order as it deems appropriate or refuse to make any order. 6. The jurisdiction conferred on the Circuit Court by paragraph 5 may be exercised by the judge of that Court for the circuit in which the person concerned ordinarily resides or carries on any profession, business or occupation. 7. The oral hearing shall be held otherwise than in public unless? (a) the personal insolvency practitioner to whom the investigation concerned relates or, if the investigation arose in consequence of the receipt of a complaint, the complainant, makes a request in writing to the Insolvency Service that the hearing (or a part thereof) be held in public and states in the request the reasons for the request, and (b) the Insolvency Service, after considering the request (in particular, the reasons for the request), is satisfied that it would be appropriate to comply with the request.?.

Amendment agreed to.

Government amendment No. 180: In page 122, after line 3, to insert the following new Schedule:?SCHEDULE 3 COMPLAINTS PANEL AND COMPLAINTS COMMITTEES1. Subject to paragraphs 2 and 3 of this Schedule, on the coming into operation of section 165 of this Act, the Minister shall, with the consent of the Ministers for Finance and Public Expenditure and Reform, establish and maintain a panel which shall be composed of at least 7 persons. 2. Each of the persons appointed to the panel referred to in paragraph 1 of this Schedule shall be a person whom the Minister considers to have relevant experience or special knowledge which will enable the persons appointed to carry out their functions under this Act. 3. At least two of the persons appointed to the panel referred to in paragraph 1 of this Schedule shall be a solicitor or a barrister. 4. Subject to paragraph 6 of this Schedule, a person shall remain on the panel established under this section for such period as may be specified on appointment unless he or she sooner dies or requests the Minister that his or her appointment be revoked, but unless he or she has died shall be eligible to be appointed to the panel for a further period or periods. 5. A vacancy in the membership of the panel may be filled by the Minister in the same manner as is specified in paragraphs 1 and 2 as respects the appointment of persons to be members of the panel. 6. A person who has been appointed to be a member of a Complaints Committee as respects a particular investigation shall continue as a member of the panel and of that Complaints Committee until the conclusion of the deliberations of that Complaints Committee as respects the matter concerned notwithstanding that the period for which the panel was appointed has expired. 7. A member of the panel appointed to a Complaints Committee shall be paid such remuneration and allowances for expenses as the Minister may determine with the consent of the Minister for Public Expenditure and Reform. 8. A Complaints Committee shall be composed of no less than three persons at least one of whom shall be a barrister or solicitor. 9. The Minister, with the consent of the Minister for Finance, may at any time remove a member from the panel for stated misbehaviour. 10. A Complaints Committee shall be independent in the discharge of its functions. 11. The Minister shall make available to a Complaints Committee such services, including staff, as may be reasonably required by that Committee.?.

Amendment agreed to.

Government amendment No. 181: In page 9, line 39, before ?AND? to insert the following: ?TO PROVIDE FOR THE APPOINTMENT, FUNCTIONS, POWERS AND JURISDICTION OF NEW JUDGES OF THE CIRCUIT COURT TO BE STYLED SPECIALIST JUDGES OF THE CIRCUIT COURT AND, FOR THAT PURPOSE, TO AMEND THE COURTS (ESTABLISHMENT AND CONSTITUTION) ACT 1961 AND THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 AND CERTAIN OTHER ENACTMENTS, TO PROVIDE FOR THE REGULATION, SUPERVISION AND DISCIPLINE OF PERSONAL INSOLVENCY PRACTITIONERS,?.

Amendment agreed to.

Question proposed: "That the Title, as amended, be the Title to the Bill."

4:00 pm

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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Before the Title is agreed, I wish to make a comment. I would like to conclude by thanking Senators for their co-operation and assistance, both last Friday and tonight and for their attention to the debate. A very significant number of amendments were discussed and we have had some very interesting exchanges in the House, which were very valuable. We had an exchange of views on various provisions in the Bill and while I was obviously not able to take on board all amendments that were proposed, they did give us an opportunity to discuss issues of concern. I will examine any additional amendments that might be appropriate to ensure that we have the best possible legislation in place following the coming into force of this Bill, prior to us taking on Report Stage.

I wish to advise the House that I will be introducing some further amendments to the Bill on Report Stage. These will include some further definitions that I believe will be of assistance if added to section 2 of the Bill, to provide for further clarity, some further refinement of the functions of the Insolvency Service and also some necessary improvements to the text designed to improve the workability of the new debt resolution arrangements. In particular, I have promised to address certain issues regarding the asset exemption limits in the debt relief notice. Senators will remember that we had long discussions on that matter, particularly regarding items of a "ceremonial" nature. I do not wish to reopen that debate now. I refuse to go any further but those who were present will know what I mean. Additional amendments will also include any necessary technical and legal adjustments in areas such as taxation or pensions that are consequent on this very comprehensive and complex reform of our insolvency law. There will also be some further refinements to bankruptcy law. It is important, before concluding today, that I so advise Members of the House. I look forward to being back here next week to deal with Report Stage and once again, I thank the Senators for their very constructive and helpful participation in the discussion on the Bill.

Question put and agreed to.

Bill reported with amendments.

Photo of Michael MullinsMichael Mullins (Fine Gael)
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When is it proposed to take Report Stage?

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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It is proposed to take Report Stage next Tuesday, 11 December, by agreement.

Report Stage ordered for Tuesday, 11 December 2012.