Courts and Civil Law (Miscellaneous Provisions) Bill 2013: Committee and Remaining Stages

I apologise but the schedule of business I have states the Child and Family Agency Bill is to be taken after the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 and I do not have my documentation on the Courts and Civil Law (Miscellaneous Provisions) Bill 2013 with me. I presume it must have changed. I apologise again.

I propose the House adjourns for five minutes to allow Deputy Mac Lochlainn an opportunity to get his papers.

I thank the Minister.

Is that agreed? Agreed.

Amendments Nos. 1 and 2 are related and may be discussed together by agreement.

I move amendment No. 1:

In page 9, between lines 28 and 29, to insert the following:

“(b) Subject to paragraph (b), no more than one bona fide representative of the Press shall attend proceedings to which the relevant enactment relates.

(c) The court will retain discretion as to the relevant and appropriate bona fide representative of the press to where more than one applies to attend.”.

The schedule was changed and the Sinn Féin Whip's office does not appear to have been aware of it. Therefore, I am at a little disadvantage in trying to get my papers together at the last minute. I thank the Minister for agreeing to the suspension.

Amendment No. 1 reflects the concern expressed by the Ombudsman for Children. She outlined the concern that one might have a number of bona fide representatives of the media present at a family court hearing and although all media representatives would aim to comply with the requirements, the combination of the separate reportage of the case might serve to identify the parties to the court hearing. The amendment proposes that there would be just one bona fide representative of the press at any family court hearing.

I think we have resolved the confusion at this stage. On Second Stage in this House last week, I explained that the provisions in Part 2 provide for a careful balancing of the need for privacy in child care and family law proceedings with the need for public access to important information on the operation of this very sensitive and difficult area of law. In that respect, Part 2 will retain protections for the privacy of the parties, including the privacy of any child to whom the proceedings relate, in respect of such court proceedings while providing that bona fide members of the press can be admitted to the proceedings.

Amendment No. 1 provides for restrictions on the number of press members who can attend such proceedings. I agree it is important that the courts can impose appropriate restrictions on press attendance where it is necessary to do so. The power to do so is already provided for in the Bill. I refer the Deputy in particular to sections 5 and 8. These sections provide the court with a power to exclude or restrict the attendance of bona fide members of the press at family law and child care proceedings, in particular where it is necessary to do so to preserve the anonymity of a party to the proceedings or any child to whom the proceedings relate. Indeed, the provisions go even further and give the court the power to prohibit or restrict the publication or broadcasting of any evidence given or referred to during such proceedings.

It is important to understand that my proposals in this Bill have been carefully drafted to ensure that the courts, in deciding on the issue of press access or publication of evidence, must have regard to the privacy rights of persons, including children, involved in any individual case. I believe that the approach in the Bill provides the right balance to ensure that information is made available to the public on the operation of family law and child care law in our courts while at the same time safeguarding the important privacy needs of the parties and of any children to whom the proceedings relate.

In amendment No. 2 the Deputy is proposing a system of accreditation for the attendance of members of the press at family law and child care proceedings. The Bill does not propose to regulate the members of the media who may or may not be permitted access to relevant child care, family law and adoption proceedings. The Bill leaves it to the court to allow bona fide members of the media to be present in certain circumstances. It is a matter for the individual court to be satisfied as to the bona fide nature of a press representative in this respect.

The same approach is used in many legislative provisions, including those relating to criminal proceedings in serious sexual offence cases. Those legislative provisions also use the term “bona fide representatives of the Press”. The experience to date is that the approach works well and I am happy it is the correct approach in the circumstances of these provisions also.

It is consistent with the existing legislation applicable to other areas of the law.

As I said on Second Stage, I agree with the Deputy that we must have very careful rules with regard to publishing material about family law and child care cases. It would be very useful if, following enactment of the legislation, there could be some agreed protocol with media outlets as to how they would report family cases to ensure there was a degree of consistency in the non-disclosure of sensitive information or any other information that could result in individuals being identified.

My view is that the concerns of the Deputy are indeed valid, but the amendments he proposes are not appropriate. The concerns are, I believe, fully and properly provided for in the very carefully drafted provisions of Part 2. I do not, therefore, propose to accept these amendments.

In general, court reporting is of a high standard, although I would be interested in the Minister's opinion in this regard. Obviously, there have been a number of high-profile transgressions and issues, but the majority of court reporting is factual concerning the evidence and findings and, as such, cannot be disputed.

The Minister referred to maintaining the protection of privacy for people involved in the family law courts. While we all ascribe to this suggestion, are we in danger under this legislation of moving away from a general prohibition on naming those involved? Will the Minister elaborate in this regard? The custom is a general prohibition on naming parties.

The Minister stated that it would be for the court to decide on the bona fides of the press members who were allowed to report. What is the definition of a "bona fide representative"? Does it mean a member of the National Union of Journalists, NUJ, or a local, well known stringer who attends the courts and is known to the local Judiciary?

It is absolutely clear that the anonymity of individuals who are engaged in family law litigation, be it adoption, marital breakdown, civil partnership issues or issues relating to children, has to continue to be preserved. That remains part of our law. The provisions that will allow for members of the press to attend are designed and intended to ensure that individuals' anonymity is preserved, not just in the context of names not being published, but also in that any information that could result in individuals being identified cannot be published. That is clearly set out in the context of the provisions contained in the Bill and in the connectivity between this Bill and original provisions in the Civil Liability and Courts Act 2004.

The "bona fide representatives of the Press" term is a term that is used in different legislative Acts. In the context of reporting serious sexual offences, for example, rape offences, reporters can and have been able to attend court. They are required to comply with anonymity provisions. I do not believe that there is a need to define further what is meant by "bona fide representatives of the Press". It does not have to be that an individual is a member of the NUJ if he or she is a press reporter. In practice to date, this has not given rise to difficulty in any other area of the law. There is no reason it should bring some additional difficulty in this area of the law.

I expect that the way this will work ultimately in practice will largely reflect the way that court reporting currently works, where there is an identified group of reporters who generally attend at our courts, be they local Circuit or District courts throughout the country or the High Court or Supreme Court, to report cases. Of course, people come and go. New members of the press take up that sort of reportage and others may move on to other areas of work, but they can readily identify themselves to court registrars. This has worked informally extremely well for many years and has not given rise to any difficulty. The judges dealing with family law cases will be familiar with dealing with members of the press in other areas in which they have worked and I do not envisage any particular difficulty arising.

Clearly, if a family law case was to be heard and if the judge had any doubt about an individual who was sitting in court as to whether he or she was a bona fide member of the press or if the parties to the court case or their lawyers had concerns if, for example, someone turned up sitting at the back of the court who happened to be a next door neighbour and claimed to be a bona fide member of the press, I do not think that it requires much ingenuity or imagination as to how a court or a judge would approach that issue. I think that this is a practical, common sense measure using a description with which we are all already familiar.

May I clarify a point?

Can the judge taking a family law hearing or either of the parties to the hearing object to the press being present? Is it the judge's decision or must it be done if an objection is raised?

No, it is the decision of the court. I refer the Deputy to section 5. There are various provisions in it. The new subsection (3A)(b) reads:

Subject to paragraphs (c) and (d), where, in proceedings under a relevant enactment, a court is satisfied that it is necessary to do so--

(i) in order to preserve the anonymity of a party to the proceedings or any child to whom the proceedings relate,

(ii) by reason of the nature or circumstances of the case, or

(iii) as it is otherwise necessary in the interests of justice,

the court may, on its own motion, or on application to it by a party to the proceedings or by a person on behalf of a child to whom the proceedings relate, by order--

(I) exclude, or otherwise restrict the attendance of, bona fide representatives of the Press from the court during the hearing or particular parts of it, or

(II) prohibit or restrict the publication or broadcasting of any evidence given or referred to during the proceedings or any part of such evidence,

and any such order may, with regard to any restriction, contain such conditions as the court considers appropriate.

Remember that the position remains that the public is not admitted to family court proceedings. The only persons who could be present in a court other than the parties, their lawyers and perhaps a witness who is called to give evidence would be the court officials and the judge. If someone else is in the back or front of the court looking as if he or she is taking notes, a member of the public is not allowed and if that person is there under the continuing law, he or she could be excluded. If he or she is a bona fide member of the press and there are still concerns by application of the factors that I just mentioned, it is open to the judge on his or her own initiative or to legal representatives or, indeed, the parties to the proceedings to draw their concerns to the attention of the judge. The judge would be able to exclude an individual.

I did not get a chance to speak to the second amendment directly. The Minister will appreciate that we support the objective of the Bill. One of the initial objectives was to ensure accountability in judgments in family law courts and to have a reporting system to ensure same. The Minister has tried to provide a counterbalance in the Bill of protecting the privacy of the parties, in particular where children are involved.

There is more work to do on the "bona fide" issue. It is too much to ask the parties in the court and their legal representatives to ascertain the position. I have not tabled an amendment on local media, but I am concerned about the issue. The Minister is aware that the media are present in the District and Circuit courts and family courts are held in the Circuit Court. The journalists represent a newspaper and according to the Bill are bona fide. If they report different aspects of a case in a local newspaper, it does not take much of a stretch of the imagination for people to work out basic details and identify people even when the parties are not named. In a city, one might not be aware of a divorce or separation across the street, but in rural areas one is, particularly where children are involved and families are in dispute. In the case of large, extended families, narratives could be put out by either side. Sadly, that occurs all too often.

If we do not have a fairly tight restriction with one bona fide representative and with these checks and balances in place, I am concerned that we would be on dangerous ground.

We also discussed the issue of contemporaneous reporting. A reporter could go online or on radio to report a case that, unfortunately, somehow manages to identify families. People may even wrongly assume which family is involved, in which case children could face teasing or other difficulties. I appeal, therefore, for more caution concerning the bona fide representatives. I appreciate that the Bill gives a judge a fair degree of discretion, but I am not sure if it is tight enough around these issues. I ask the Minister to consider the matter further.

In the context of section 5 and the new subsection (3A), which will be inserted in section 40 of the Civil Liability and Courts Act 2004, I am satisfied that we have appropriately addressed all the issues to which Deputy Mac Lochlainn has referred. In particular, paragraph (c) fully and adequately addresses those issues.

Amendment put and declared lost.
Section 5 agreed to.
Sections 6 and 7 agreed to.
SECTION 8

I move amendment No. 2:

In page 12, to delete lines 36 to 39, and in page 13, to delete line 1 and substitute the following:

“ “(5A) (a) Bona fide representatives of the Press, in order to be permitted to attend proceedings referred to in subsection (1), shall be required to provide accreditation of the form prescribed in paragraph (b).

(b) Accreditation for the purposes of paragraph (a) shall be provided by the Court Reporting Accreditation Committee, which shall consist of the following ordinary members:

(i) a representative of the Press Council,

(ii) a representative of the Press Ombudsman’s Office,

(iii) a representative of the Department of Justice and Equality, and

(iv) a representative of the Children’s Ombudsman’s office,

and the Minister for Justice and Equality shall also appoint a judge of the High Court as the chair of the Courts Reporting Accreditation Committee. The Courts Reporting Accreditation Committee shall operate on the basis of majority decision, and in the event of a tied decision among the ordinary members, the chair of the committee shall have the casting vote.

(c) Bona fide representatives of the Press, without accreditation as provided for in paragraphs (a) and (b) shall be prohibited from attending proceedings referred to in subsection (1).

(d) Subject to paragraph (c), nothing contained in this section shall operate to prohibit bona fide representatives of the Press from attending proceedings referred to in subsection (1).

(e) Subject to paragraphs (f) and (g), where, in proceedings referred to in subsection (1), a court is satisfied that it is necessary to do so —”.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Section 8 agreed to.
Sections 9 to 21, inclusive, agreed to.
NEW SECTION

I move amendment No. 3:

In page 20, between lines 2 and 3, to insert the following:

“PART 4

INADMISSIBILITY OF SEXUAL ASSAULT COMMUNICATIONS

Amendment of the Criminal Evidence Act 1992

22. The Criminal Evidence Act 1992 is amended by the insertion of the following sections after section 30:

“31. (1) Where a person under the age of 18 gives evidence as a witness in any criminal proceedings, evidence disclosing the content of communications made by that witness in confidence in the course of sexual assault counselling shall not be permissible save by order of the trial court.

(2) In determining an application for an order admitting such evidence, the court shall have regard to the following requirements:

(a) the evidence must have substantial probative value;

(b) there must be no other evidence which could prove the disputed facts;

(c) the public interest in disclosure outweighs the potential harm to the complainant.

32. For the purpose of section 31, sexual assault counselling shall mean communications or notes thereof, whether made contemporaneously or subsequently, made between the relevant wings, being the victim of a sexual assault, and a person—

(a) who has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and

(b) who—

(i) listens to and gives verbal or other support or encouragement to the other person, or

(ii) advises, gives therapy to or treats the other person,

whether or not for fee or reward.”.”.

I understand this amendment was tabled in the Seanad by Senator Jillian van Turnhout. Given the miscellaneous nature of this Bill, she wants to take this opportunity to deal with some issues concerning the protection of children giving evidence in cases. The amendment pretty much speaks for itself. I know the Minister has engaged with this proposal in the Seanad, but I have resubmitted it for further engagement on this Stage, as I support what Senator van Turnhout is trying to achieve.

When this important issue was raised in the Seanad, I lent my support to the view that this matter should be dealt with as speedily as possible. I pointed out, however, that the issue is complex and requires careful consideration to ensure any proposal in this regard correctly balances the constitutional right of the accused to due process with the privacy rights of the complainant. The Attorney General has advised me that a detailed examination is required to identify and provide precisely for the rights concerned.

It is intended to complete passage of the Courts and Civil Law (Miscellaneous Provisions) Bill before the House rises for the summer recess. I have decided that in such circumstances, there is not enough time to address this issue comprehensively with the careful consideration required in the timeframe available. I have come to this conclusion because I believe that further consultation is necessary with interested parties to bring forward a robust and workable solution. In particular, I want to allow time for full consultation with the Director of Public Prosecutions to ensure any proposal put forward will work in practice to protect the rights concerned, ensure the effectiveness of the prosecution process and, in the future, not jeopardise in any way the efficacy of prosecutions taken. I am also concerned that any proposal in this regard should be comprehensive and should address the rights of adult as well as child complainants. It could create a particular anomaly if it were confined to children alone.

The examination and consultation on this subject proposed by the Law Reform Commission would be a suitable way of examining such a complex issue. However, I am conscious that the timeframe for such an examination is not appropriate and that more immediate action is required. I have therefore decided that this issue will be addressed in the forthcoming sexual offences Bill, which is at an advanced stage of preparation in my Department. I believe this is the correct approach to ensure a suitable legislative solution is found as soon as possible to resolve this issue.

I hope the House will understand that I cannot accept this amendment, not because I reject its purpose or value but because this subject demands a fuller and very careful examination than is possible in the context of an amendment to this Bill. I am particularly concerned that it is confined to children and does not extend to adults. The same area of difficulty can also arise in respect of adults.

In addition to the reasons I have just given, there are a number of difficulties with the actual drafting of the amendment. For example, the proposed section states where a person under the age of 18 gives evidence as a witness in any criminal proceedings, evidence disclosing the content of communications made by the witness in confidence in the course of sexual assault counselling should not be admissible save by order of the court. The section is based on an assumption that the person who is the victim will either already have given evidence or be in the course of giving evidence, because it mentions a person who gives evidence and does not refer to the victim or the alleged victim. There is no provision for pre-trial procedures. It would be very unsatisfactory in the context of a criminal trial that this issue would only be addressed during the course of someone giving evidence, except in exceptional circumstances.

If there were to be an issue as to whether this type of report would be disclosed, it would preferably be dealt with in a pre-trial procedure, whereby the case is made in a pre-trial application as to why it should be disclosed and why it should not be disclosed. It may well be that in determining whether it should or should not be disclosed, a judge would have access on a preliminary basis to the documentation concerned and would himself or herself determine its relevance, or not, to any issues in dispute, or likely to be in dispute, in the criminal proceedings.

The manner in which this amendment is framed could create a very real problem and could result in a trial being unnecessarily prolonged or adjourned, to the detriment of the victim who, having gone through the trauma of attending court, could find the hearing is adjourned for a period of days or weeks while an issue is addressed in this context. This is a problem not only of a merely technical nature, but of a substantive nature as to how it could effectively impact on trials.

With regard to the provision in the proposed new section, there would have to be clarity as to the persons with whom communications should be regarded as confidential. In the context of this particular provision, reference is made to a person who has undertaken training or study. This does not mean the person is actually qualified, for example, to provide counselling to an individual - be they a child or an adult who has been the victim of a sexual assault. What if someone begins training or study, but does not obtain a professional qualification? Does this make the person an individual with whom one can have a privileged conversation? This raises a very important issue. It also refers to a person who has experience which is relevant to the process of counselling persons. This wording is extremely wide and therefore it is not clear what it means.

I will withdraw the amendment on the basis of the Minister having indicated that he proposes to look at the issue again. I appreciate his advice on the matter.

Amendments Nos. 4 to 8, inclusive, are related and may be discussed together by agreement.

I move amendment No. 4:

In page 26, between lines 7 and 8, to insert the following:

"Interpretation ( Part 7 )

26. In this Part "Act of 1988" means the Bankruptcy Act 1988.".

Amendment No. 4 is a drafting amendment recommended by the Office of the Attorney General. There is no requirement to include a reference to the Courts (Supplemental Provisions) Act 1961. Acceptance of the amendment will mean the deletion of the current section 26 of the Bill.

Amendment No. 5 is a technical amendment which provides for improvements to the text of section 8 of the Bankruptcy Act 1988. The first change is in regard to the prescription of certain notices that may be issued by a creditor. The change is required in the context of the preparation of draft rules of the superior courts to facilitate the amendments to the Bankruptcy Act effected by the Personal Insolvency Act 2012. Failure to classify the required notice under section 8(1) as a prescribed document may call into question the power of the rules committee to specify a form for same, as it is a pre-proceedings document.

The second change aligns the required notice period in the old section 8 of the 1988 Act, which required only a four day notice to the debtor, with the new 14 day notice period in the revised subsection (1)(c) inserted by the 2012 Act as a precondition of a creditor being granted a bankruptcy summons.

Amendment No. 6 is a drafting amendment to correct an error in the text of new section 60A(2) made in the Seanad in regard to the transfer of staff from the Courts Service to the Insolvency Service of Ireland. The correct reference in subsection (2) should be to the whole of the section and not just to subsection (2).

Amendment No. 7 is a technical amendment to improve the text of section 60A(5)(c) by including a specific reference to the superannuation benefits of the staff concerned who may transfer from the Courts Service to the Insolvency Service of Ireland.

Amendment No. 8 proposes a new subsection (2A) in section 85B of the Bankruptcy Act 1988, which was inserted by section 157 of the Personal Insolvency Act 2012, which concerns the entitlement to discharge from bankruptcy. The new subsection provides that an order of discharge from bankruptcy shall provide that any property of the bankrupt then vested in the official assignee shall be returned to the bankrupt. This provision was inadvertently omitted from the 2012 Act. Of course, this would only arise when all the necessary conditions of the bankruptcy, including satisfaction to the fullest extent possible of the claims of the creditors, had been made. This would permit any surplus which remained to be returned to the former bankrupt.

I move amendment No. 5:

In page 26, after line 36, to insert the following:

"Amendment of section 8 of Act of 1988

28. Section 8 of the Act of 1988 is amended—

(a) in subsection (1) (substituted by section 144 of the Personal Insolvency Act 2012), by the substitution in paragraph (c) of "notice in the prescribed form to the debtor" for "notice to the debtor", and

(b) in subsection (3), by the substitution of "within 14 days" for "within four days".".

I move amendment No. 6:

In page 28, line 11, to delete "to whom this subsection applies" and substitute "to whom this section applies".

I move amendment No. 7:

In page 28, to delete lines 27 to 32 and substitute the following:

"shall not, except in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, receive a lesser scale of pay or less favourable superannuation benefits than the scale of pay and superannuation benefits to which he was entitled immediately before the secondment, transfer or return concerned.".

I move amendment No. 8:

In page 32, between lines 27 and 28, to insert the following:

"Amendment of section 85B of Act of 1988

33. Section 85B of the Act of 1988 (inserted by section 157 of the Personal Insolvency Act 2012) is amended by the insertion, after subsection (2), of the following:

"(2A) An order of discharge shall provide that any property of the bankrupt then vested in the Official Assignee shall be revested in or returned to the bankrupt, and that order shall for all purposes be deemed to be a conveyance, assignment or transfer of that property to the bankrupt and, where appropriate, may be registered accordingly.".".

Amendments Nos. 9 and 29 are related and may be discussed together by agreement.

I move amendment No. 9:

In page 35, between lines 4 and 5, to insert the following:

“Amendment of section 5 of Act of 2012

41. Section 5 of the Act of 2012 is amended by substituting the following for subsection (2):

“(2) An application to the Circuit Court under this Act shall be made in the circuit in which—

(a) the debtor to whom the application relates is residing at the time of the making of the application or has resided within one year of the time of the making of the application, or

(b) the debtor to whom the application relates has a place of business at the time of the making of the application or has had a place of business within one year of the time of the making of the application.”.”.

Amendment No. 9 is a technical drafting amendment recommended by the Office of the Attorney General to better refer to the particular Circuit Court to which an application is made for one of the debt resolution processes under the Personal Insolvency Act 2012.

Amendment No. 29 is also a technical drafting amendment recommended by the Office of the Attorney General to make it clear that an appeal against a decision of the Circuit Court under the Personal Insolvency Act shall lie to the High Court sitting in Dublin, with the exception of the situation under section 169(4) of that Act, which relates to appeals to the Circuit Court against certain decisions of the Insolvency Service of Ireland regarding the regulation of personal insolvency practitioners. This technical amendment will allow any such appeals to be heard in Dublin by a judge nominated by the President of the High Court for that purpose, which is desirable given the specialised nature of the legislation and the need to ensure that appeals can be dealt with in a timely manner. This is already the case for most appeals which will, as far as possible, be heard and disposed of on affidavit and this proposed amendment extends this to any case in which a hearing may be conducted on oral evidence. Without amendment of the 1936 Act, appeals from determinations of the Circuit Court made on oral evidence would in the ordinary course be held before the High Court on Circuit sitting in the appeal town designated for the appeal, which could give rise to delays in dealing with appeals. We are anxious to ensure no such delays occur.

Amendments Nos. 10 and 16 are related and will be discussed together by agreement.

I move amendment No. 10:

In page 35, between lines 7 and 8, to insert the following:

"Amendment of section 9 of Act of 2012

42. Section 9(1) of the Act of 2012 is amended by the substitution of the following for paragraph (g):

"(g) in accordance with section 47—

(i) authorise a person or class of persons to perform the functions of an approved intermediary,

(ii) supervise and regulate persons or classes of persons authorised to perform the functions of an approved intermediary,".".

Amendments Nos. 10 and 16 deal with approved intermediaries who will process debtor applications for debt relief notices. Amendment No. 10 provides for an amendment to section 9(1)(g) of the Personal Insolvency Act 2012 designed to address concerns that the powers of the Insolvency Service of Ireland may not be sufficiently developed in the existing provisions in regard to the ongoing supervision of approved intermediaries. The original provision effectively concentrated on the initial authorisation process only. The amendment makes it clear that the Insolvency Service of Ireland is also concerned with ongoing supervision of approved intermediaries.

I move amendment No. 11:

In page 35, between lines 10 and 11, to insert the following:

"New section 21A in Act of 2012

43. The following section is inserted after section 21 of the Act of 2012:

"Retention of information by Insolvency Service

21A. Notwithstanding the Data Protection Act 1988, the Insolvency Service

shall retain such information or data obtained by it under this Act as is

necessary for the performance of its functions under this Act.".".

This amendment provides for a new section 21A in the Personal Insolvency Act 2012 regarding retention of information by the insolvency service to the effect that, notwithstanding the Data Protection Act 1988, the insolvency service shall retain such information or data obtained by it under this Act as is necessary for the performance of its functions. The information that may be publicly inspected in the relevant registers concerning the various debt resolution processes is removed three months after the completion of those processes. However, the Personal Insolvency Act 2012 does not permit repeat applications for each process. Thus, the insolvency service must be in a position to detect such applications. This new provision will remove any doubt that they have the power to retain the relevant debtor information for that purpose.

I move amendment No. 12:

In page 35, between lines 14 and 15, to insert the following:

"Amendment of section 27 of Act of 2012

44. Section 27 of the Act of 2012 is amended—

(a) by substituting the following for subsection (4):

"(4) The debtor, as soon as practicable after he or she has made the confirmation referred to in subsection (3), shall—

(a) provide information that fully discloses his or her financial affairs to the approved intermediary, and

(b) give his or her written consent to the—

(i) making by the approved intermediary of an enquiry under subsection (9), and

(ii) disclosure by the approved intermediary of personal data of the debtor, to the extent necessary for such an enquiry.",

and

(b) by substituting the following for subsections (9) to (12):

"(9) The approved intermediary may, for the purposes of subsections (5) and (6), make such enquiries as he or she considers appropriate to verify the value of a debt or other liability disclosed by the debtor under this section.

(10) Where a creditor who receives an enquiry from the approved intermediary pursuant to this section does not furnish the information requested within 21 days of the making of the enquiry, the approved intermediary shall be entitled for the purposes of subsection (6) to presume that the value of the debt or liability concerned is that disclosed by the debtor.".".

This amendment makes two changes to section 27 of the Personal Insolvency Act 2012 which deals with the initiation of a debt relief notice process by a debtor. A new subsection (4) extends the provisions of the existing text of that subsection by now adding that where the debtor has provided information in regard to his or her application for a debt relief notice, he or she must also give written consent to the making by the approved intermediary of an inquiry under subsection (9), and to the disclosure by the approved intermediary of personal data of the debtor to the extent necessary for such an inquiry. Such inquires would be made to creditors or perhaps to a relevant State authority such as the Revenue Commissioners.

New subsections (9) and (10) replace the previous subsections (9) to (12) in section 27. These latter subsections were relocated to section 47 by amendment No. 16 which we discussed. They provide an explicit power to the approved intermediary to verify the value of a debt or other liability of the debtor with the creditor concerned in regard to the application for a debt relief notice. The creditor is required to respond to the request for information from the approved intermediary within 21 days. Otherwise, the approved intermediary is entitled to presume that the amount of the debt owed is that claimed by the debtor.

A period of 21 days is not unreasonable and is similar to that required say of the Revenue Commissioners or Department of Social Protection in regard to a request for the inclusion of certain debts in the new debt resolution process.

Amendments Nos. 13 and 26 are related and may be discussed together.

I move amendment No. 13:

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

"Amendment of section 29 of Act of 2012

45. Section 29(2) of the Act of 2012 is amended—

(a) by substituting the following for paragraph (c):

“(c) the Prescribed Financial Statement completed under section 27, in relation to which the statement referred to in paragraph (a) was made, and a statutory declaration made by the debtor confirming that the Prescribed Financial Statement is a complete and accurate statement of the debtor’s assets, liabilities, income and expenditure;”,

and

(b) in paragraph (d), by substituting “debts concerned, as specified in the Prescribed Financial Statement referred to in paragraph (c)” for “debts concerned”.”.

These amendments relate to prescribed financial statements. Amendment No. 13 is essentially a technical amendment to section 29 of the Personal Insolvency Act 2012. The new paragraph (c) in subsection (2) in regard to the prescribed financial statement completed under section 27 now includes a reference to the statement required of the approved intermediary under section 27(6) in paragraph (a) of subsection (2). The amendment to section 29(2)(d) is a drafting improvement to make it clear that the debts concerned are those as specified in the prescribed financial statement submitted by the debtor.

Amendment No. 26 provides for an amendment to section 136 of the Personal Insolvency Act 2012 in regard to the prescription of a prescribed financial statement. The amendment is essentially a technical one and is designed to improve the text of the subsection by referring to Part 2 in total of the Act rather than referencing the individual processes.

Amendments Nos. 14, 19, 20, 23 and 24 are related and may be discussed together.

I move amendment No. 14:

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

“Amendment of section 31 of Act of 2012

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

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

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

and

(b) by deleting subsection (4).”.

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

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

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

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

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

I move amendment No. 15:

In page 37, line 9, to delete “in respect of” and substitute “in it in respect of” .

This is a drafting amendment to correct a typographical error in the text of new subsection (3) of section 37 of the Personal Insolvency Act 2012 which was made by section 49 of this Bill in the Seanad.

I move amendment No. 16:

In page 37, after line 34, to insert the following:

“Amendment of section 47 of Act of 2012

54. Section 47 of the Act of 2012 is amended—

(a) by substituting the following for subsection (5):

“(5) 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 any other person as the Insolvency Service deems appropriate or as the Minister directs, by regulations provide for any of the following for the purposes of the authorisation, regulation and supervision of approved intermediaries and the protection of debtors and creditors who are or may become specified debtors or specified creditors:

(a) the requirements applicable to—

(i) the authorisation of persons as approved intermediaries under this section, and

(ii) the dealings of an approved intermediary with the Insolvency Service;

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

(i) the public interest;

(ii) the duties owed to debtors and creditors who are or may become specified debtors or specified creditors;

(iii) the professional and ethical conduct of approved intermediaries;

(iv) the maintenance of the confidentiality of the information of debtors and creditors who are or may become specified debtors or specified creditors;

(v) case management in respect of debtors who are or may become specified debtors;

(vi) conflicts of interest;

(c) the qualifications (including levels of training, education, expertise and experience) or any other requirements (including required standards of competence) for the authorisation of persons as approved intermediaries under this section;

(d) the records, including files and accounts, to be maintained, including in electronic form, by an approved intermediary;

(e) the requirements to be met by an approved intermediary when handling complaints against that approved intermediary;

(f) any other matter relating to the authorisation, supervision, or regulation of approved intermediaries which is incidental to or is considered by the Insolvency Service to be necessary or expedient for the said purposes or all or any of the matters referred to in this subsection.

(5A) The Insolvency Service may do any thing which is necessary or expedient to monitor an approved intermediary’s compliance with his or her obligations under this Act and regulations made under this Act.”,

and

(b) by inserting the following after subsection (7):

“(8) Where an approved intermediary resigns from the role of approved intermediary as respects a debtor, he or she shall notify the Insolvency Service of that fact, which notification shall be accompanied by a statement of the reasons for his or her resignation.

(9) Where, at any time after the debtor has made the confirmation referred to in section 27(3) but before the Debt Relief Notice is issued under section 31, the approved intermediary concerned (‘original approved intermediary’)—

(a) dies,

(b) becomes incapable, through ill-health or otherwise, of performing the functions of an approved intermediary as respects the debtor,

(c) resigns from the role of approved intermediary as respects the debtor, or

(d) is no longer entitled to perform the functions of an approved intermediary under this Act,

the debtor shall, as soon as practicable after becoming aware of that fact, appoint another approved intermediary to act as his or her approved intermediary for the purposes of this Chapter.

(10) (a) Where paragraph (a), (b) or (c) of subsection (9) applies, the debtor concerned shall, as soon as practicable, inform the Insolvency Service of that fact.

(b) Where an approved intermediary has been appointed under subsection (9), the approved intermediary shall, as soon as practicable, inform the Insolvency Service and, where applicable, a creditor to whom a notification under section 28(2) has been sent, where the period referred to in section 28(3) has not expired, of that fact.

(11) Where an approved intermediary is appointed under subsection (9)—

(a) that appointment shall not affect the validity of anything previously done under this Chapter by the original approved intermediary, and

(b) references in this Act to an approved intermediary, in relation to the debtor concerned, shall be construed as including references to the approved intermediary so appointed.”.”.

Amendments Nos. 17 and 18 are related and may be discussed together.

I move amendment No. 17:

In page 37, after line 34, to insert the following:

“Amendment of section 49 of Act of 2012

55. Section 49 of the Act of 2012 is amended—

(a) in subsection (2), by the substitution of “the personal insolvency practitioner, or an employee of that personal insolvency practitioner acting under his or her direction and control, shall hold a meeting” for “the personal insolvency practitioner shall hold a meeting”,

(b) by the substitution of the following for subsection (5):

“(5) Where a personal insolvency practitioner is appointed under subsection (3), he or she shall stand appointed, and the debtor concerned shall not appoint another personal insolvency practitioner under that subsection, until such time as—

(a) where the debtor concerned terminates the appointment of the personal insolvency practitioner as respects the debtor, such termination takes effect in accordance with section 49A,

(b) where the personal insolvency practitioner resigns from that role as respects the debtor, such resignation takes effect in accordance with section 49B,

(c) where the personal insolvency practitioner is replaced by reason of being no longer capable of performing, through ill-health or otherwise, or is no longer authorised to perform, the functions of a personal insolvency practitioner as respects the debtor, such replacement takes effect in accordance with section 49C.”,

and

(c) by the deletion of subsections (6) to (9).”.

Amendment No. 17 provides that section 49 of the Act is now amended to be limited in scope to the initial appointment by a debtor of a personal insolvency practitioner to represent them and to noting the termination or ceasing of that appointment either by the debtor or by the personal insolvency practitioner regarding that debtor or in a more general sense.

Section 49(6) to (9) are deleted and their provisions are essentially recreated in proposed new sections 49A, 49B and 49C.

Amendment No. 18 inserts three new sections 49A, 49B and 49C into the Personal Insolvency Act 2012. The sections are designed around previous subsections section 49(6) to (9), which were deleted by amendment No. 17, in regard to the termination of appointment of, or the ceasing to operate in that role, of a personal insolvency practitioner.

The proposed new section 49A deals with the situation whereby the debtor terminates the appointment of the personal insolvency practitioner to represent them and its consequences. The debtor would have to give one month’s notice of termination to the personal insolvency practitioner and also notify the insolvency service. The debtor would have no longer than two months from the date of termination to find a replacement personal insolvency practitioner.

The proposed new section 49B deals with the situation where a personal insolvency practitioner terminates his or her appointment on behalf of a debtor and its consequences. The personal insolvency practitioner would have to give one month’s notice to the debtor and notify the insolvency service. The debtor would have no longer than two months from the date of termination to find a replacement personal insolvency practitioner.

The proposed new section 49C essentially recreates, in a separate section, the provisions of section 48(7) to (9) in regard to the involuntary termination or ceasing of the appointment by the personal insolvency practitioner in a general sense and not relating to a specific debtor as such, or the ending of the practitioner’s authorisation by the insolvency service or court to act as a personal insolvency practitioner. The debtor is allowed a maximum of three months, from the time of becoming aware of the involuntary termination, to find a replacement personal insolvency practitioner.

In any eventuality arising under new sections 49A to 49C, the validity of anything done under the respective arrangements is not affected.

I move amendment No. 18:

In page 37, after line 34, to insert the following:

“Insertion of sections 49A, 49B and 49C in Act of 2012

56. The Act of 2012 is amended by the insertion, after section 49, of the following sections:

“Termination by a debtor of his or her appointment of a personal insolvency practitioner

49A. (1) A debtor who has appointed a personal insolvency practitioner under section 49(3) may terminate that appointment by giving notice in writing to the personal insolvency practitioner, which notice shall specify the date of the termination and which date shall not be less than one month after the giving of the notice to the personal insolvency practitioner.

(2) A debtor who terminates an appointment under subsection (1) shall notify the Insolvency Service of that termination as soon as is practicable thereafter.

(3) A debtor who has terminated the appointment of a personal insolvency practitioner under subsection (1) shall, no later than two months from the date of termination, appoint a personal insolvency practitioner to replace the original personal insolvency practitioner (in this section referred to as a ‘replacement personal insolvency practitioner’) and shall as soon as practicable thereafter notify the Insolvency Service of that appointment.

(4) Where a replacement personal insolvency practitioner has been appointed under subsection (3), he or she, as soon as practicable thereafter, shall inform the Insolvency Service and the creditors concerned of that fact.

(5) Where a replacement personal insolvency practitioner is appointed under subsection (3)—

(a) that appointment shall not affect the validity of anything previously done under this Chapter, Chapter 3 or Chapter 4, as the case may be, by the original personal insolvency practitioner,

(b) a protective certificate, Debt Settlement Arrangement or a Personal Insolvency Arrangement that is in effect as regards the debtor shall continue to have effect, and

(c) references in this Act to a personal insolvency practitioner, in relation to the debtor concerned, shall be construed as including references to the replacement personal insolvency practitioner so appointed.

Termination by a personal insolvency practitioner of his or her appointment by a debtor

49B. (1) A personal insolvency practitioner who has been appointed by a debtor in accordance with section 49(3) may terminate that appointment by giving notice in writing to the debtor, which notice shall specify the date of the termination and which date shall not be less than one month after the giving of the notice to the debtor.

(2) A personal insolvency practitioner who terminates an appointment under subsection (1) shall notify the Insolvency Service of that termination as soon as is practicable thereafter.

(3) A debtor who receives notice from a personal insolvency practitioner of the termination of his or her appointment under subsection (1) shall, no later than 2 months from the date of termination, appoint a replacement personal insolvency practitioner (in this section referred to as a ‘replacement personal insolvency practitioner’) and, as soon as practicable thereafter, notify the Insolvency Service of that appointment.

(4) Where a replacement personal insolvency practitioner has been appointed under subsection (3), he or she, as soon as practicable thereafter, shall inform the Insolvency Service and the creditors concerned of that fact.

(5) Where a replacement personal insolvency practitioner is appointed under subsection (3)—

(a) that appointment shall not affect the validity of anything previously done under this Chapter, Chapter 3 or Chapter 4, as the case may be, by the original personal insolvency practitioner,

(b) a protective certificate, Debt Settlement Arrangement or a Personal Insolvency Arrangement that is in effect as regards the debtor shall continue to have effect, and

(c) references in this Act to a personal insolvency practitioner, in relation to the debtor concerned, shall be construed as including references to the replacement personal insolvency practitioner so appointed.

Termination of appointment of a personal insolvency practitioner due to death, incapacity or withdrawal of authorisation

49C. (1) Where a personal insolvency practitioner appointed under section 49(3) (‘the original personal insolvency practitioner’)—

(a) dies,

(b) becomes incapable, through ill-health or otherwise, of performing the functions of a personal insolvency practitioner, or

(c) is no longer authorised to perform the functions of a personal insolvency practitioner under this Act,

the debtor shall, as soon as practicable after becoming aware of that fact, or of being informed of such by the Insolvency Service, and in any event no later than three months thereafter, appoint a replacement personal insolvency practitioner (in this section referred to as a ‘replacement personal insolvency practitioner’) to act as his or her personal insolvency practitioner for the purposes of Chapter 3 or 4, as the case may be.

(2) Where the debtor appoints a replacement personal insolvency practitioner under subsection (1), he or she shall, as soon as practicable thereafter, inform the Insolvency Service of that fact.

(3) Where a replacement personal insolvency practitioner has been appointed under subsection (1), he or she, as soon as practicable thereafter, shall inform the Insolvency Service and the creditors concerned of that fact.

(4) Where a replacement personal insolvency practitioner is appointed by the debtor—

(a) that appointment shall not affect the validity of anything previously done under this Chapter, Chapter 3 or Chapter 4, as the case may be, by the original personal insolvency practitioner,

(b) a protective certificate, Debt Settlement Arrangement or a Personal Insolvency Arrangement that is in effect as regards the debtor shall continue to have effect, and

(c) references in this Act to a personal insolvency practitioner, in relation to the debtor concerned, shall be construed as including references to the replacement personal insolvency practitioner so appointed.”.”.

The deletion of section 55 of the Bill arises as a consequence of amendment No. 17 which has been discussed previously. That amendment provided a change in section 49(2) of the Personal Insolvency Act 2012 to better refer to the more specific instance where an employee of the personal insolvency practitioner could hold a meeting with the debtor in the context of preparing the possible application for a debt settlement arrangement or a personal insolvency arrangement. That amendment will continue to permit better management of the potential caseload of a personal insolvency practitioner.

With the acceptance of Amendment No. 17, there is no longer a need for retaining section 55 which had inserted a new section 54A in the Personal Insolvency Act 2012 with regard to some delegation of administrative functions by a personal insolvency practitioner.

I move amendment No. 19:

In page 38, to delete line 22 and substitute the following:

“(b) by deleting subsection (4), and”.

I move amendment No. 20:

In page 41, to delete line 9 and substitute the following:

“(c) by deleting subsection (4), and”.

Amendments Nos. 21 and 25 are related and may be discussed together.

I move amendment No. 21:

21. In page 41, between lines 24 and 25, to insert the following:

“Amendment of section 82 of Act of 2012

67. The Act of 2012 is amended by substituting the following for section 82:

“Variation of Debt Settlement Arrangement

82. (1) Subject to this section, a Debt Settlement Arrangement may be varied in accordance with its terms.

(2) A personal insolvency practitioner, whether on his or her own initiative or on a request made in accordance with subsection (3), shall propose a variation of a Debt Settlement Arrangement (in this section referred to as a ‘variation’) where—

(a) it appears to the personal insolvency practitioner that there has been a material change in the debtor’s circumstances, and

(b) the personal insolvency practitioner is satisfied that there is a reasonable prospect that a variation that addresses such circumstances would be approved in accordance with this section.

(3) A debtor or creditor who is bound by a Debt Settlement Arrangement may request the personal insolvency practitioner to propose a variation of the Arrangement, which request shall be—

(a) in writing,

(b) accompanied by information or evidence to support the assertion that there has been a material change in the debtor’s circumstances, and

(c) accompanied by the written consent of the person making the request to the—

(i) making by the personal insolvency practitioner of an enquiry under subsection (4), and

(ii) disclosure by the personal insolvency practitioner of personal data of the person, to the extent necessary for such an enquiry.

(4) A personal insolvency practitioner shall, within 21 days of receipt of a request under subsection (3), decide whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned and, for that purpose—

(a) may request any further information he or she requires from the person who made the request, and

(b) may make such enquires as he or she considers necessary in order to arrive at his or her decision.

(5) For the purpose of deciding, whether under subsection (4) or otherwise, whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, the personal insolvency practitioner may require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement.

(6) Where the personal insolvency practitioner is satisfied that paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, he or she shall without delay:

(a) require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement, unless the debtor has completed a Prescribed Financial Statement under subsection (5) and the information contained in it remains complete and accurate,

(b) formulate a proposal for a variation,

(c) seek the written consent of the debtor to the proposal and to the calling of a meeting of the creditors of the debtor for the purpose of considering the proposal, and

(d) where the consent of the debtor referred to in paragraph (c) has been given, arrange for the holding of the meeting referred to in that paragraph.

(7) When calling a creditors’ meeting to be held under this section, the personal insolvency practitioner shall—

(a) give each creditor at least 14 days written notice of the meeting and the date on which, and the time and place at which, the meeting will be held;

(b) ensure that the notice referred to in paragraph (a) is accompanied by—

(i) a written proposal for the variation of the Debt Settlement Arrangement,

(ii) a report of the personal insolvency practitioner—

(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and

(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Debt Settlement Arrangement as varied in accordance with the proposal,

(iii) the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, and

(iv) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant;

(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service.

(8) The provisions of sections 65 to 69 and sections 72 to 78 (other than subsections (2) and (3) of section 67, sections 72(4), 72(7), 73(2), 75(1)(c)(i) (as amended by section 63 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013), 76(2), 77(3), 78(2)(a)(i) and 78(5)(a) (as amended by section 65 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013)) and section 87 shall apply in relation to a variation of a Debt Settlement Arrangement under this section, subject to the following modifications and any other necessary modifications—

(a) a reference to a Debt Settlement Arrangement shall be construed as a reference to a Debt Settlement Arrangement as varied in accordance with this Chapter,

(b) a reference to a proposal for a Debt Settlement Arrangement shall be construed as a reference to a proposal for the variation of a Debt Settlement Arrangement, and a reference to a proposed Debt Settlement Arrangement shall be construed as a reference to a proposed variation of a Debt Settlement Arrangement,

(c) a reference to a Prescribed Financial Statement shall be construed as a reference to the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be,

(d) the variation of a Debt Settlement Arrangement shall not have the effect of extending the duration of that Debt Settlement Arrangement beyond the maximum duration permitted under section 65(2)(a),

(e) a Debt Settlement Arrangement as varied under this section shall, in addition to containing the information referred to in section 65(2)(e), make provision for the costs and outlays of the personal insolvency practitioner which relate to this section,

(f) a reference to a creditors’ meeting shall be construed as a reference to a creditors’ meeting called under this section, and

(g) an adjournment pursuant to section 72(2) may occur once only in the course of a creditors’ meeting.

(9) The voting rights exercisable by a creditor at a creditors’ meeting under this section shall be proportionate to the amount of the debt due by the debtor to the creditor on the day on which the vote is held.

(10) Where—

(a) on the taking of a vote at a creditors’ meeting under this section, the proposal is not approved in accordance with section 73, or

(b) the appropriate court upholds the objection of a creditor to the variation of a Debt Settlement Arrangement coming into effect, the Debt Settlement Arrangement concerned shall, without prejudice to the other provisions of this Act, continue in effect without being subject to such variation.

(11) Subsection (10) shall be without prejudice to the entitlement of the personal insolvency practitioner to propose another variation of the Debt Settlement Arrangement in accordance with this section.

(12) Subject to subsection (13), an unreasonable refusal by the debtor to give his or her consent—

(a) under subsection (6) to a proposal for a variation or the calling of a creditors meeting, or

(b) under subsection (2) or (6) of section 72, shall be grounds for an application under section 83(1)(g).

(13) A debtor who refuses to give his or her consent under a provision referred to in subsection (12) shall be considered to be acting reasonably where the proposal in relation to which the consent is sought would require the debtor—

(a) where there has been an increase in the debtor’s income, to make additional payments in excess of 50 per cent of the increase in his or her income available to him or her after the following deductions (where applicable) are made:

(i) income tax;

(ii) social insurance contributions;

(iii) payments made by him or her in respect of excluded debts;

(iv) payments made by him or her in respect of excludable debts that are not permitted debts;

(v) such other levies and charges on income as may be prescribed,

or

(b) to make a payment amounting to more than 50 per cent of the value of any property acquired by the debtor after the coming into effect of the Debt Settlement Arrangement that is proposed to be varied, unless receipt of that property had been anticipated by the terms of that Arrangement.

(14) A reference in this Chapter to a Debt Settlement Arrangement shall be construed as including such an arrangement as proposed to be varied or, as varied in accordance with this section, unless the context otherwise requires.

(15) In this section, ‘material change in the debtor’s circumstances’ means a change in the debtor’s circumstances that would materially affect his or her ability to make payments, or otherwise perform his or her obligations, under the Debt Settlement Arrangement, and includes an increase or decrease in the extent of the debtor’s assets, liabilities or income.”.”.

These two similar amendments concern the process and procedures governing those situations where a variation of the terms of a debt settlement arrangement or personal insolvency arrangement is proposed. Amendment No. 21 concerns section 82, variation of a debt settlement arrangement, and amendment No. 25 concerns section 119, variation of a personal insolvency arrangement, of the Personal Insolvency Act 2012.

Following further consultation with the Office of the Attorney General and consideration by the insolvency service, it is proposed to replace the current provisions with regard to the variation of insolvency arrangements with clearer and more extensive provisions. The variation mechanism are now aligned in respect of a debt settlement arrangement and a personal insolvency arrangement with differences between them arising only where the structure or operation of the relevant arrangement so requires. This eliminates any unnecessary differences and inconsistencies between the two mechanisms.

The provisions of sections 82 and 119 now clearly set out the roles and responsibilities of the debtor, creditor and personal insolvency practitioner in requesting, processing and participating in a variation mechanism. A variation to an insolvency arrangement may be sought in regard to a change in the income of the debtor and also where an asset has been acquired.

I move amendment No. 22:

In page 42, between lines 17 and 18, to insert the following:

“Amendment of section 91 of Act of 2012

70. Section 91(3) of the Act of 2012 is amended by the substitution of “specified in subsection (1)(i)” for “specified in subsection (1)(h)”.”.

This amendment corrects a typographical error in a cross-reference contained in section 91(3) of the Personal Insolvency Act 2012.

I move amendment No. 23:

In page 42, to delete line 33 and substitute the following:

“(b) by deleting subsection (4), and”.

I move amendment No. 24:

In page 45, to delete line 15 and substitute the following:

“(c) by deleting subsection (4), and”.

I move amendment No. 25:

In page 45, between lines 33 and 34, to insert the following:

“Amendment of section 119 of Act of 2012

79. The Act of 2012 is amended by substituting the following for section 119:

“Variation of Personal Insolvency Arrangement

119. (1) Subject to this section, a Personal Insolvency Arrangement may be varied in accordance with its terms.

(2) A personal insolvency practitioner, whether on his or her own initiative or on a request made in accordance with subsection (3), shall propose a variation of a Personal Insolvency Arrangement (in this section referred to as a ‘variation’) where—

(a) it appears to the personal insolvency practitioner that there has been a material change in the debtor’s circumstances, and

(b) the personal insolvency practitioner is satisfied that there is a reasonable prospect that a variation that addresses such circumstances would be approved in accordance with this section.

(3) A debtor or creditor who is bound by a Personal Insolvency Arrangement may request the personal insolvency practitioner to propose a variation of the Arrangement, which request shall be—

(a) in writing,

(b) accompanied by information or evidence to support the assertion that there has been a material change in the debtor’s circumstances,

and

(c) accompanied by the written consent of the person making the request to the—

(i) making by the personal insolvency practitioner of an enquiry under subsection (4), and

(ii) disclosure by the personal insolvency practitioner of personal data of the person, to the extent necessary for such an enquiry.

(4) A personal insolvency practitioner shall, within 21 days of receipt of a request under subsection (3), decide whether paragraphs (a) and (b) of subsection (2) apply in relation to the Personal Insolvency Arrangement concerned, and, for that purpose—

(a) may request any further information he or she requires from the person who made the request, and

(b) may make such enquires as he or she considers necessary in order to arrive at his or her decision.

(5) For the purpose of deciding, whether under subsection (4) or otherwise, whether paragraphs (a) and (b) of subsection (2) apply in relation to the Personal Insolvency Arrangement concerned, the personal insolvency practitioner may require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement.

(6) Where the personal insolvency practitioner is satisfied that paragraphs (a) and (b) of subsection (2) apply in relation to the Personal Insolvency Arrangement concerned, he or she shall without delay:

(a) require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement, unless the debtor has completed a Prescribed Financial Statement under subsection (5) and the information contained in it remains complete and accurate,

(b) formulate a proposal for a variation,

(c) seek the written consent of the debtor to the proposal and to the calling of a meeting of the creditors of the debtor for the purpose of considering the proposal, and

(d) where the consent of the debtor referred to in paragraph (c) has been given, arrange for the holding of the meeting referred to in that paragraph.

(7) When calling a creditors’ meeting to be held under this section, the personal insolvency practitioner shall—

(a) give each creditor at least 14 days written notice of the meeting and the date on which, and the time and place at which, the meeting will be held;

(b) ensure that the notice referred to in paragraph (a) is accompanied by—

(i) a written proposal for the variation of the Personal Insolvency Arrangement,

(ii) a report of the personal insolvency practitioner—

(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and

(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Personal Insolvency Arrangement as varied in accordance with the proposal,

(iii) the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, and

(iv) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant;

and

(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service.

(8) The provisions of sections 99 to 105 and sections 108 to 115 (other than subsections (2) and (3) of section 101, sections 108(9), 109(6), 112(1)(c)(i) (as amended by section 75 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013), 113(2), 114(3), 115(2)(a)(i) and 115(5)(a) (as amended by section 77 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013)) and section 120 shall apply in relation to a variation of a Personal Insolvency Arrangement under this section, subject to the following modifications and any other necessary modifications—

(a) a reference to a Personal Insolvency Arrangement shall be construed as a reference to a Personal Insolvency Arrangement as varied in accordance with this Chapter,

(b) a reference to a proposal for a Personal Insolvency Arrangement shall be construed as a reference to a proposal for the variation of a Personal Insolvency Arrangement, and a reference to a proposed Personal Insolvency Arrangement shall be construed as a reference to a proposed variation of a Personal Insolvency Arrangement,

(c) a reference to a Prescribed Financial Statement shall be construed as a reference to the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be,

(d) the variation of a Personal Insolvency Arrangement shall not have the effect of extending the duration of that Personal Insolvency Arrangement beyond the maximum duration permitted under section 99(2)(b),

(e) a Personal Insolvency Arrangement as varied under this section shall, in addition to containing the information referred to in section 99(2)(f), make provision for the costs and outlays of the personal insolvency practitioner which relate to this section,

(f) a reference to a notification that a protective certificate has been issued shall be construed as a notice under subsection (7) of the calling of a creditors’ meeting,

(g) a reference to the day or date on which a protective certificate is issued, other than in section 102(7), shall be construed as a reference to the date on which a vote at the creditors’ meeting under this section is held,

(h) where section 103(3) applied to a Personal Insolvency Arrangement, the variation of that Arrangement shall not operate to alter the period referred to in section 103(11)(a),

(i) a reference to the market value attributed to security, or the market value of security determined, in accordance with section 105 shall be construed as the value attributed or determined in accordance with section 105 for the purpose of a variation under this section,

(j) a reference to a creditors’ meeting shall be construed as a reference to a creditors’ meeting under this section,

(k) where section 108(4) applied to a creditor, that subsection shall continue to apply to that creditor for the purpose of his or her voting rights at a creditors’ meeting under this section,

(l) a debt that is an unsecured debt on the date on which the vote at a creditors’ meeting under this section is held shall be treated as an unsecured debt, notwithstanding that the debt concerned was a secured debt when the vote on the proposal for the Personal Insolvency Arrangement concerned was held, and

(m) an adjournment pursuant to section 109(4) may occur once only in the course of a creditors’ meeting.

(9) Where—

(a) on the taking of a vote at a creditors’ meeting under this section, the proposal is not approved in accordance with section 110, or

(b) the appropriate court upholds the objection of a creditor to the variation of a Personal Insolvency Arrangement coming into effect, the Personal Insolvency Arrangement concerned shall, without prejudice to the other provisions of this Act, continue in effect without being subject to such variation.

(10) Subsection (9) shall be without prejudice to the entitlement of the personal insolvency practitioner to propose another variation of the Personal Insolvency Arrangement in accordance with this section.

(11) Subject to subsection (12), an unreasonable refusal by the debtor to give his or her consent—

(a) under subsection (6) to a proposal for a variation or the calling of a creditors meeting, or

(b) under subsection (3) or (4) of section 109, shall be grounds for an application under section 122(1)(g).

(12) A debtor who refuses to give his or her consent under a provision referred to in subsection (11) shall be considered to be acting reasonably where the proposal in relation to which the consent is sought would require the debtor—

(a) where there has been an increase in the debtor’s income, to make additional payments in excess of 50 per cent of the increase in his or her income available to him or her after the following deductions (where applicable) are made:

(i) income tax;

(ii) social insurance contributions;

(iii) payments made by him or her in respect of excluded debts;

(iv) payments made by him or her in respect of excludable debts that are not permitted debts;

(v) such other levies and charges on income as may be prescribed,

or

(b) to make a payment amounting to more than 50 per cent of the value of any property acquired by the debtor after the coming into effect of the Personal Insolvency Arrangement that is proposed to be varied, unless receipt of that property had been anticipated by the terms of that Arrangement.

(13) A reference in this Chapter to a Personal Insolvency Arrangement shall be construed as including such an arrangement as proposed to be varied or, as varied in accordance with this section, unless the context otherwise requires.

(14) In this section, ‘material change in the debtor’s circumstances’ means a change in the debtor’s circumstances that would materially affect his or her ability to make payments, or otherwise perform his or her obligations, under the Personal Insolvency Arrangement, and includes an increase or decrease in the extent of the debtor’s assets, liabilities or income.”.”.

I move amendment No. 26:

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

“Amendment of section 136 of Act of 2012

82. Section 136 of the Act of 2012 is amended by substituting the following for subsection (1):

“(1) The Insolvency Service, with the consent of the Minister, may by regulations prescribe a form (in this Act referred to as a ‘Prescribed Financial Statement’) to be used by persons where required under this Part to complete a Prescribed Financial Statement, which form shall provide for the provision of detailed information relating to the income, assets, liabilities and necessary household expenditure incurred by such persons.”.”.

Amendments Nos. 27 and 28 are related and may be discussed together.

I move amendment No. 27:

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

“Amendment of section 161 of Act of 2012

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

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

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

(a) the requirements applicable to—

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

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

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

and

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

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

(i) the public interest;

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

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

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

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

(vi) conflicts of interest;

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

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

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

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

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

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

(i) under this Act,

(ii) under regulations made under this Act,

(iii) under rules of court,

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

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

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

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

Amendment No. 28 has already been discussed with amendment No. 27.

I move amendment No. 28:

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

Amendment of section 164 of Act of 2012

84. Section 164 of the Act of 2012 is amended by the substitution of the following for subsection (4):

“(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 to be determined by the Insolvency Service, but such period shall not exceed 5 years from the date on which the authorisation is issued.”.”.

Amendment No. 29 has already been discussed with amendment No. 9.

I move amendment No. 29:

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

Amendment of section 37 of Courts of Justice Act 1936

85. Section 37 of the Courts of Justice Act 1936 is amended by the insertion of the following after subsection (1):

“(1A) Notwithstanding subsection (1), an appeal shall lie to the High Court sitting in Dublin from every judgment given or order or decision made (other than a decision to which section 169(4) of the Personal Insolvency Act 2012 applies) by the Circuit Court in the performance of any function or exercise of any power or jurisdiction conferred on that court by that Act, whether or not oral evidence was given at the hearing or for the determination of the proceedings or matter concerned.”.”.

Will the Minister clarify a point in respect of the monetary jurisdiction levels which the Bill is setting? When does the Minister intend to make those operable within the Courts Service?

Will the Minister offer a comment on another matter? In recent days there has been some commentary and media interest in the Bill, especially from the insurance industry. Some have quoted Ms Dorothea Dowling, chairperson of the Injuries Board. The comments have flagged concerns of consequential knock-ons or potential increases in insurance premiums which would affect all of us, the public and consumers. I imagine the Minister has taken that on board. Has he any comment on it?

I will take the latter issue first. The Deputy may or may not recall, but I believe I mentioned on Second Stage that when the Courts and Court Officers Bill 2002 was enacted it envisaged increases in jurisdiction in the Circuit Court of up to €100,000. Similar objections were raised on the basis that claims would go up. The reality is that the jurisdiction of the courts has not changed since 1991. Far too much court business, including in the area of personal injuries, is now in the High Court and unnecessary legal costs are being incurred in that area. A substantial body of the work the High Court currently receives could be and will be properly dealt with in the Circuit Court under the Bill. The pressure on the Circuit Court will be relieved by the increased jurisdiction of the District Court resulting in some of the cases currently dealt with at circuit level being dealt with at district level. We will keep a watchful eye on the situation in so far as there are additional pressures on the District Court to ensure that it has the resources necessary.

There is no basis for the claim that because the court jurisdictions have increased higher awards will be made. There is no research to indicate that claim is correct. It is simply a claim that is made. On the basis of that claim being made we would freeze forevermore court jurisdictions to what they were in 1991. We cannot do that and it makes no sense.

There is no real body of evidence to support some of the concerns that have been expressed. There will be an increase in the Circuit Court jurisdiction in the area of personal injuries. Instead of being up to €75,000, as it is across a broad range of areas, personal injuries limits are being kept at €60,000, which is slightly below the inflationary increase that could have been made if our legislative approach had permitted it and, according to my calculations, if we had simply maintained 1991 values. The Circuit Court jurisdiction at the moment is a little over €38,000. Based on inflationary provisions or an increase in the consumer price index since 1991, personal injuries could be brought up to €65,000 and, therefore, we would be in exactly the place we were by way of value in 1991. I have paid some regard to this and perhaps the increase in the personal injuries award size has been less radical and more conservative.

The increase to €75,000 in other areas is borne based on the need to ensure that there is a degree of certainty about court jurisdictions for a reasonable period. In the past, the practice was that approximately every ten years court jurisdictions would change. Those particular issues were raised in 2002. This is not a party political criticism and it is not intended that way. However, once those issues were raised it seemed the whole system went into a paralysis and nothing happened with court jurisdictions. I have had regard to it. In fact, the claims are not based on any sound evidence that I could rely upon. No one has done research to determine whether if the jurisdiction is increased by a given amount it would produce higher orders made by the courts which, of themselves, would then produce higher insurance charges. I have absolutely no doubt that the Circuit Court Judiciary, which is well used to dealing with financial claims, will apply the same independent assessment of claims of €60,000 or less as were made in the High Court. The benefit is that if one is claiming €60,000 or less then legal costs are likely to be one third less as a result.

It seems that some of the claims made by those who have raised this issue do not stack up. The reduction applies both to the plaintiff and the defendant. Whether insurance companies are picking up legal costs for those who they are defending, their own legal costs or whether they are required to pay the legal costs of the claimant, there will be considerable savings where awards of €40,000 or €50,000 are made because the legal costs hit will be less. In fact, there may be a saving ultimately to insurance companies and if that occurs I hope it will be reflected in premiums.

I again thank Members opposite, who at all times have raised appropriate questions on this Bill. They have constructively tabled amendments to it and I thank them for their engagement with it. This is another important reforming measure with regard to the courts system. As I mentioned a moment ago in my exchange with Deputy Niall Collins, it will revise the financial jurisdictional base of the District and Circuit Courts for the first time in 22 years. It should reduce legal costs for litigants who must resort to the courts on the civil side in a broad range of areas in which District or Circuit Court jurisdiction is invoked and takes full account of the change in monetary values since this area was last implemented and addressed appropriately in 1991. Moreover, it will relieve some of the pressures on the High Court, where that court is asked to deal with issues relating to financial claims and values that would be more appropriately dealt with at Circuit Court level, and will take out of the Circuit Court claims relating in general terms to sums of €15,000 or less. The District Court is well able to deal with such claims across the broad range of judges within that court and consequently, the influx of work from the High Court into the Circuit Court will be offset by work being transferred down into the District Court.

While this is an important reform, the other important issue in respect of the courts is the provision in the Bill of some new transparency with regard to family cases. I believe Members have got the balance right in ensuring people's privacy and anonymity are protected and the welfare of children is protected, while providing some degree of visibility to the manner in which family cases are heard and determined. This is important in the context of the public having a greater understanding of how the courts work. It also is important for Members of this House as legislators, in that if something is not working well, they will get early notice of that and can then address issues or difficulties that may arise. The media have protected the anonymity of people appropriately in the criminal law area and in particular, I mention the areas of sexual offences and rape offences. However, there are other areas of law in which appropriate privacy also is maintained. I hope and expect the media will apply the same standards to family proceedings and will not report matters that could result in people's identities being revealed or their privacy being invaded. There are, of course, specific penalties and sanctions contained in the Bill as a deterrent to that occurring.

Another important reform is the facility to appoint two additional judges to the Supreme Court. Once they have been appointed, I hope this will contribute immediately to easing some of the pressures on the court. I dealt previously today with the court of appeal and it is a two-pronged process to both increase the numbers on the Supreme Court bench and hold the referendum on the court of appeal. Taken as a package, these measures are effecting radical change and reform within the court structure. I believe they are in the public interest and will be widely welcomed.

I also thank Members for their co-operation in dealing with various issues under the insolvency legislation. When it came to the work the Insolvency Service of Ireland was obliged to do, and to the drafting of the various rules and regulations, it became clear that some additional clarity was needed in some sections. I had always stated, in the context of what was a very comprehensive and detailed Bill, that I would revert to the House as rapidly as possible with whatever amendments were required and I thank the Deputies for their co-operation in this regard. The Insolvency Service of Ireland will be fully functioning within a matter of days. As Members are aware, the service was established in March and the rules and regulations relating to personal insolvency practitioners, PIPs, have been signed off and published for approximately three weeks. Other rules and regulations of relevance to the service have been made and I am told the information technology system that will ensure less paper is used and there is greater efficiency in communications between it and the courts is at a well-advanced stage.

Finally, I thank the officials in my Department and in the Office of the Attorney General for the substantial and speedy work undertaken on this Bill. We have managed to use this Bill to address a broad number of areas, as other reforms are contained in the Bill that fall under the civil law miscellaneous provisions title but to which I will not now refer. However, it was possible to use the Bill as a vehicle to address some issues that have required to be addressed for some time and I thank Members opposite for their co-operation in that regard, as well as my officials and those in the Office of the Attorney General for the substantial work undertaken by them.