Courts and Civil Law (Miscellaneous Provisions) Bill 2013: [Seanad Bill amended by the Dáil] Report and Final Stages

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 118, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration," the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. Senators may speak only once on Report Stage.

Question proposed: "That the Bill be received for final consideration."

I am taking the Bill on behalf of the Minister for Justice and Equality who is away on EU business.

A total of 29 amendments, all of which were Government amendments, were proposed and approved on Committee and Report Stages in the Dáil. All of them are technical or refinements of the provisions of the Bankruptcy Act 1988 or the Personal Insolvency Act 2012 to facilitate the Insolvency Service of Ireland and the courts in dealing with insolvency cases as quickly as possible.

Amendment No. 1 is a drafting amendment to delete the reference to the Courts (Supplemental Provisions) Act 1961 which is no longer required. Its acceptance will mean the deletion of section 26.

Amendment No. 2 is a technical amendment which improves the text of section 8 of the Bankruptcy Act 1988 in regard to the prescription of certain notices that may be issued by a creditor and is necessary in the preparation of draft rules of the superior courts to facilitate the amendments to the Bankruptcy Act effected by the Personal Insolvency Act 2012. The second change aligns the required notice period in the old section 8 of the 1988 Act, which was only a four day notice to the debtor, with a 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. 3 corrects an error in the text of new section 60A(2) in regard to the transfer of staff from the Courts Service to the Insolvency Service of Ireland. The reference in subsection (2) should be to the whole of the section, not just to subsection (2) alone.

Amendment No. 4 is a technical amendment to improve the text of subsection (5)(c) of section 60A 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. 5 inserts a new subsection (2A) in section 85B of the Bankruptcy Act of 1988 which was inserted by section 157 of the Personal Insolvency Act 2012. It 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, it would only arise when all of the necessary conditions of the bankruptcy, including satisfaction to the fullest extent possible of the claims of the creditors, had been fulfilled. Any remaining surplus property would then be returned to the former bankrupt.

Group 2 concerns amendments to the Personal Insolvency Act 2012 in regard to court jurisdiction. Amendment No. 6 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. 27 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), which relates to appeals to the Circuit Court against certain decisions of the Insolvency Service of Ireland regarding the regulation of personal insolvency practitioners.

Group 3 concerns amendments to the Personal Insolvency Act 2012 in regard to approved intermediaries who process applications for debt relief notices. Amendment No. 7 amends section 9(1)(g) of the Personal Insolvency Act 2012 to ensure the Insolvency Service of Ireland has sufficient powers in regard to the ongoing supervision of approved intermediaries. The original provision had effectively concentrated on the initial authorisation process only.

Amendment No. 13 inserts a new subsection (5) into section 47 of Personal Insolvency Act 2012 to extend the powers of the Insolvency Service of Ireland beyond making regulations for the criteria for authorisation of persons as approved intermediaries to the ongoing supervision and regulation of these approved intermediaries.

Amendment No. 13 inserts a new subsection (5) into section 47 of the Personal Insolvency Act 2012 to extend the powers of the insolvency service beyond making regulations for the criteria for authorisation of persons as approved intermediaries to the ongoing supervision and regulation of those approved intermediaries. The proposed new subsection 5A is designed to ensure that the insolvency service can monitor compliance with any regulations made pursuant to this section.

The second amendment to section 47 is a drafting amendment to improve the text by relocating the current provisions of subsections (9) to (12), inclusive, of section 27, concerning situations where the approved intermediary can no longer perform that function, to section 47, in subsections (8) to (11), inclusive, where they would seem to be more appropriately located.

I ask the Minister of State to speak on the amendments in group 4.

Group 4 concerns miscellaneous provisions of the Personal Insolvency Act 2012. There are two amendments, Nos. 8 and 20. Amendment No. 8 inserts a new section 21A in the Personal Insolvency Act 2012 regarding the 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. For example, the Personal Insolvency Act does not permit repeat applications for each debt resolution process. Thus, the insolvency service must be in a position to detect such applications.

Amendment No. 20 corrects a typographical error in the referencing of a subsection in the text of section 91(3) the Personal Insolvency Act 2012.

If everybody is happy, we will move to the amendments in group 5. I ask the Minister of State to speak to these amendments.

Group 5 concerns amendments to the Personal Insolvency Act 2012 in regard to debt relief notices. There are two amendments, Nos. 9 and 12. Amendment No. 9 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 previous 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 enquiry. Such enquiries 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), inclusive, in section 27 and 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.

Amendment No. 12 corrects a typographical error in the text of the new subsection (3) of section 37 of the Personal Insolvency Act 2012, contained in section 49 of the Bill as passed by the Seanad. The section concerns possible payments by the debtor to end a debt relief notice supervision period earlier than after three years.

We now move to the amendments in group 6. I invite the Minister of State to speak to these amendments.

Group 6 concerns provisions in regard to the prescribed financial statement, which is a critical requirement in the new debt resolution processes in the Personal Insolvency Act 2012. Amendment No. 10 contains technical amendments to section 29(2) of the Personal Insolvency Act 2012. The new paragraph (c) in subsection (2) in regard to the prescribed financial statement completed by the debtor 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), paragraph (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. 24 amends section 136(1) of the Personal Insolvency Act 2012 in regard to the prescription of a prescribed financial statement by now referring to part 2 in total of the Act rather than referencing the individual debt resolution processes.

We will move to the amendments in group 7. I ask the Minister of State to speak to these amendments.

The subject matter of amendments Nos. 11, 17, 18, 21 and 22 relates to court consideration of applications for the new debt resolution processes.

Amendment No. 11 amends section 31 of the Personal Insolvency Act 2012, which concerns the supporting documentation that the insolvency service must furnish to the appropriate court when making the application for a debt relief notice. The requirement to include the documents referred to in section 29(2), paragraphs (e) and (f), which relate to the debtor's consent to the processing of their documents and the making of inquiries to verify information by the insolvency service, is deleted.

The other change in amendment No. 11 and the same changes in amendments Nos. 17, 18, 21 and 22 have the same intention, which is to repeal the same subsection (4) in each of 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.

Further discussion with the Office of the Attorney General has led to the conclusion that it would be desirable to repeal these 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 avoid any aspersions on the legality of the primary court sitting process in insolvency applications being in public. 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 discretion to hold back the disclosure of any part of an insolvency application from public view during the sitting - for example, orally, by way of a court TV screen, or by some other means. The insolvency sitting would have to be no different to any other court sitting. This position reflects the wider issues and, indeed, tensions associated with ensuring that justice be done and be seen to be done in public.

If everybody is happy, we will move on to the amendments in group 8. I ask the Minister of State to speak to these amendments.

Group 8 concerns amendments to the Personal Insolvency Act 2012 in regard to personal insolvency practitioners. There are three amendments, Nos. 14, 15 and 16, in this group. Amendment No. 14 limits the scope of section 49 of the Personal Insolvency Act 2012 to the initial appointment by a debtor of a personal insolvency practitioner to represent him or her and to noting the termination or ceasing of that appointment either by the debtor or by the personal insolvency practitioner. The previous subsections (6) to (9), inclusive, of section 49 are deleted. Their provisions are recreated in the proposed new sections 49A, 49B and 49C.

Amendment No. 15 inserts three new sections, 49A, 49B and 49C, into the Personal Insolvency Act 2012. The sections are designed around the previous text of subsections (6) to (9), inclusive, of section 49, which were deleted by Amendment No. 14. The new section 49A deals with the situation whereby the debtor terminates the appointment of the personal insolvency practitioner to represent him or her, 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. New section 49B deals with a situation in which 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 new section 49C essentially recreates the provisions of section 48, subsections (7) to (9), inclusive, 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 a 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.

Amendment No. 16 involves the deletion of section 55 of the Bill, 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. It arises as a consequence of Amendment No. 14, which has been discussed. That amendment provided for a change in section 49(2) of the Personal Insolvency Act 2012 to refer better to the more specific instance in which an employee of the personal insolvency practitioner could hold a meeting with a debtor in the context of preparing the possible application for a debt settlement arrangement or personal insolvency arrangement.

That amendment will permit better management of the potential caseload of a personal insolvency practitioner. With the acceptance of amendment No. 14, there is no longer a need for the retention of section 55.

Before moving on, I welcome the ladies of the Erne from Cavan to the Visitors Gallery and hope they enjoy their visit to the Oireachtas. We will move on to the amendments in group 9. I ask the Minister of State to speak to these amendments.

Group 9 concerns amendments to the Personal Insolvency Act 2012 in regard to the process and procedures governing those situations where a variation of the terms of a debt settlement arrangement or personal insolvency arrangement is requested. We are dealing with amendments Nos. 19 and 23 in that regard.

Amendment No. 19 concerns section 82, variation of a debt settlement arrangement, and the similar amendment No. 23 concerns section 119, variation of a personal insolvency arrangement, of the Personal Insolvency Act 2012. Following further consultation with the Attorney General's Office 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 mechanisms 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.

Before moving to group 10, I welcome the Gleeson family from Limerick who are in the Visitors Gallery. I invite the Minister of State to speak to the amendments in group 10.

This is the final group of amendments. It concerns amendments Nos. 25 and 26 which relate to regulation of personal insolvency practitioners.

Amendment No. 25 replaces the current section 161 of the Personal Insolvency Act with regard to the making of regulations relating to the activities of persons authorised to be personal insolvency practitioners. The changes to the section, while not extensive, are designed to address concerns that the original text may not be sufficiently broad enough in regard to certain aspects of the regulation of personal insolvency practitioners. Subsection (1) now includes a reference to maintaining public confidence in debt settlement arrangements and personal insolvency arrangements as a broad additional policy criterion. It also provides for the ongoing supervision of personal insolvency practitioners. In paragraph (a) of subsection (1), the requirements in regard to authorisation, supervision and cessation of practice for personal insolvency practitioners are restated in a clear fashion, as is a new requirement in regard to the personal insolvency practitioner's dealings with the insolvency service.

In subsection (1)(b)(v ), there is now a requirement in regard to the case management of debtor's files by the personal insolvency practitioner.

The new subsection (1)(f) would allow for the setting out of the requirements to be met by a personal insolvency practitioner when handling complaints against him or her.

The new subsection (1)(g) would allow the insolvency service to set standards to be adhered to in regard to advertising by personal insolvency practitioners. The previous subsection (1)(f) which dealt with the charging of fees, etc. by a personal insolvency practitioner is reinstated as subsection (1)(h) with additional clarifications.

The new subsection (1)(i) would allow the insolvency service to make regulations for anything which is incidental to that set down in section 161 but which is not specifically provided for. The proposed new subsection (2) would extend the service's monitoring of compliance by personal insolvency practitioners of their obligations to the whole Act, not just in regard to Part 5.

Amendment No. 26 is designed to facilitate the orderly regulation of personal insolvency practitioners and the effective use of resources by the insolvency service, by amending section 164(4) to permit an authorisation to act as a personal insolvency practitioner to remain in force for a period not exceeding five years rather than one year.

We do not have a particular issue with any of the amendments put forward. A number of the amendments we tabled had been ruled out.

A long debate took place on Second and Committee Stages on the accreditation of journalists who would appear in a court. We have very good contributions from Senators Jillian van Turnhout and Ivana Bacik on the use of notes from people who had certain treatments, counselling etc. that they would be used very judiciously. The privacy of the relationship between the client and the practitioner in the counselling services would be sacrosanct. That those amendments have been ruled out of order is very disappointing. I am disappointed the Minister of State did not bring forward his own amendments on those issues because there are still flaws in the Bill that should have been rectified at this stage.

When this issue was raised in the House by Senator Jillian van Turnhout and others, the Minister lent his support to the view that the matter should be dealt with as speedily as possible. He pointed out that the issue was complex and did require careful consideration to ensure that any proposal, such as was canvassed at the time, would correctly balance the constitutional right of the accused to due process with the privacy rights of the complainant. The Attorney General has advised that a detailed examination is required to precisely identify and provide for the rights concerned. As it is intended to complete passage of the Bill before the House rises for the summer vacation, the Minister decided that there was not enough time to address comprehensively the issue with the careful consideration required in the time available. The Minister believes that further consultation with interested parties is necessary to bring forward a robust and workable solution. In particular, he wants to consult with the Director of Public Prosecutions to ensure that any proposal put forward will work in practice to protect the rights concerned and ensure the effectiveness of the prosecution process. He also believes that any proposal in this regard should be comprehensive and should address the rights of adult as well as child complainants.

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, the Minister considers that the timeframe for such examination is not appropriate and that more immediate action is required. He has, therefore, decided that this issue will be addressed in the forthcoming sexual offences Bill which is at an advanced stage of preparation in his Department. He believes that this is the correct approach to ensuring that that a suitable legislative solution is found as soon as possible to resolve the issue.

I support everything that has been said on this subject and I take the Minister of State at his word. As well as consulting the Director of Public Prosecutions, I reiterate my call that the Minister also consult the organisations that deal with victims in these situations in order that we also hear their perspective.

I thank the Minister of State for his comprehensive reply. The Minister, Deputy Shatter, had indicated it earlier. I commend Senator Jillian van Turnhout for raising the issue. To echo her words, I welcome the fact that the Minister will not leave it to the Law Reform Commission but will introduce it in a more timely manner in the new sexual offences Bill. I ask that the consultation be as wide as possible within a relatively expeditious timeframe.

I will not go over the ground that has been covered because the point was exceptionally well made. We have all been contacted separately. I have spoken to a couple of organisations on this issue. The points were well made to the Minister and he articulated where he was coming from his perspective. That is a very positive development and proves the importance of this House. Senator Jillian van Turnhout, through her own knowledge and experience, was able to construct amendments that, perhaps, were not accepted but the spirit of them was certainly taken on board. I welcome this. That is the type of co-operation and engagement that takes place here but few realise it and, unfortunately, the public and the media will not pick up on it.

I confirm that amendments Nos. 1 to 3, inclusive, have been ruled out of order as they are not relevant to the subject matter of the amendments made by the Dáil, in accordance with Standing Order 118(2).

Might I request approval from the House that two minor technical corrections be made to the Bill in addition to those that have been considered?

I appreciate that. I emphasise these are simply minor technical corrections to correct two typographical misprints in the Bill. The reference in section 14, to "column (3) of Part 1", should read, "column (4) of Part 1", and the reference to in section 15, to "column (3) of Part 2", should read, "column (4) of Part 2". I would request that these corrections be made.

The Clerk of the Seanad will correct them accordingly. I thank the Minister of State.

I have a question for the Minister of State. If the Seanad did not happen to be here, what would he do about the amendments he had to make?

It is a matter for another day.

I would like to hear the Minister of State's thoughts on the matter.

I will have to get back to the Senator on that issue.

Question put and agreed to.
Question, "That the Bill do now pass," put and agreed to.
Sitting suspended at 3.30 p.m. and resumed at 4 p.m.