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Personal Insolvency Bil 2012: From the Seanad (Resumed) (Continued)

Wednesday, 19 December 2012

Dáil Éireann Debate
Vol. 787 No. 4

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  Seanad amendment No. 203:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
148.—(1) A person shall not—

(a) act as a personal insolvency practitioner,

(b) hold himself or herself out as available to act as a personal insolvency practitioner, or

(c) represent himself or herself by advertisement as available to act as a personal insolvency practitioner, unless that person is authorised to so act by virtue of this Act.
(2) A person who acts in contravention of subsection (1) is guilty of an offence.”.

  Seanad amendment agreed to.

  Seanad amendment No. 204:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
149.—The Insolvency Service, with the consent of the Minister, may and, if directed by the Minister to do so and in accordance with the terms of the direction, shall, following consultation with the Minister for Finance and with any other person or body as the Insolvency Service deems appropriate or as the Minister directs, by regulations provide for any of the following, for the purposes of the control and supervision of personal insolvency practitioners and the protection of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements:

(a) the procedures governing—
(i) the authorisation of persons to carry on practice as personal insolvency practitioners; and

(ii) the termination, at a person’s request, of his or her authorisation to carry on practice as a personal insolvency practitioner;
(b) the standards to be observed in the performance of their functions by personal insolvency practitioners with particular reference to—
(i) the public interest;

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

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

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

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

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

(e) the records to be maintained and the information and returns to be provided to the Insolvency Service by personal insolvency practitioners; and

(f) the circumstances and purposes for which a personal insolvency practitioner may charge fees or costs or seek to recover outlays.”.

  Seanad amendment agreed to.

  Seanad amendment No. 205:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
150.—(1) The Insolvency Service shall establish and maintain a register to be known as the Register of Personal Insolvency Practitioners.

(2) The Register shall be in such form as the Insolvency Service deems appropriate and shall—
(a) contain the names of personal insolvency practitioners and such other identifying particulars as the Insolvency Service considers appropriate, and

(b) contain such other entries in respect of personal insolvency practitioners (including personal insolvency practitioners whose authorisation is suspended) as the Insolvency Service considers appropriate.
(3) The Insolvency Service shall make the Register available for inspection by members of the public on its website.

4) A copy of an entry in the Register shall, on request, be issued by the Insolvency Service on payment of such fee (if any) as may be prescribed.

(5) In any legal proceedings, a certificate signed by the Director, or a member of the staff of the Insolvency Service authorised by the Director to give a certificate under this subsection, stating that a person—
(a) is registered in the Register,

(b) is not registered in the Register,

(c) was at a specified date or during a specified period registered in the Register,

(d) was not, at a specified date or during a specified period, registered in the Register or was suspended from the Register at that time, or

(e) has never been registered in the Register, shall, without proof of the signature of the person purporting to sign the certificate or that the person was the Director or a member of the staff of the Insolvency Service so authorised, as the case may be, be evidence, unless the contrary is proved, of the matters stated in the certificate.
(6) The Insolvency Service shall ensure that the Register is accurate and, for that purpose, the Insolvency Service shall make any alteration requiring to be made in the information contained in an entry.

(7) The Insolvency Service shall, as soon as is practicable after doing anything under subsection (6), give notice in writing of that fact to the personal insolvency practitioner to whom the alteration relates.

(8) A personal insolvency practitioner to whom an entry in the Register relates shall give notice in writing to the Insolvency Service of—
(a) any error that the person knows of in the entry, and

(b) any change in circumstances that is likely to have a bearing on the accuracy of the entry, as soon as may be after the person becomes aware of that error or change in circumstances, as the case may be.”.

  Seanad amendment agreed to.

  Seanad amendment No. 206:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
151.—(1) An individual may make an application in the prescribed form to the Insolvency Service for authorisation to carry on practice as a personal insolvency practitioner unless the individual is prohibited from making such an application by virtue of the imposition on the individual of a major sanction which falls within paragraph (a) or (b) of the definition of “major sanction” in section 147 or where an order under section 167(2) is in force suspending that individual from carrying on practice as a personal insolvency practitioner.

(2) An application under subsection (1) shall be accompanied by—
(a) evidence of the applicant’s competence (including any levels of education, training and experience specified by the Insolvency Service, and in particular that the applicant has a satisfactory knowledge of—
(i) the provisions of this Act, and

(ii) the law generally as it applies in the State relating to the insolvency of individuals and in particular statutory provisions relating to such persons,
(b) a report in the prescribed form by a duly qualified accountant that appropriate financial systems and controls are or will be in place for the protection of moneys received from debtors if the applicant is authorised to carry on practice as a personal insolvency practitioner,

(c) evidence in writing of the availability to the applicant of the required level of professional indemnity insurance if the applicant is authorised to carry on practice as a personal insolvency practitioner,

(d) such other documents as may be prescribed by the Insolvency Service in relation to applications for authorisation to carry on practice as a personal insolvency practitioner, and

(e) the prescribed fee.
(3) Without prejudice to section 156, the Insolvency Service may—
(a) require an applicant to provide in the prescribed form, or by statutory declaration, such additional information in respect of the applicant’s character, competence and financial position, and it may make such inquiries and conduct such examinations in that regard, as it considers necessary,

(b) require the applicant to provide a certificate in the prescribed form by a member of the Garda Síochána not below the rank of superintendent containing such particulars in respect of the applicant as are requisite for the due performance of the Insolvency Service’s functions in relation to the applicant.”.

  Seanad amendment agreed to.

  Seanad amendment No. 207:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
152.—(1) Subject to subsections (3) and (5), the Insolvency Service may authorise an individual to carry on practice as a personal insolvency practitioner and shall furnish to that individual the registration number assigned to such person for the purposes of the Register.

(2) When deciding whether to authorise an individual to carry on practice as a personal insolvency practitioner, the Insolvency Service shall take into account any information supplied to it under sections 151 and 156.

(3) Subject to section 153, the Insolvency Service shall refuse to authorise an individual to carry on practice as a personal insolvency practitioner if—
(a) section 151 has not been complied with as respects the individual,

(b) the individual has not furnished sufficient evidence to show that there is available to him or her the required level of professional indemnity insurance,

(c) the individual—
(i) is under 18 years of age, or

(ii) is an undischarged bankrupt,
(d) the Insolvency Service is satisfied that the individual—
(i) is not a fit and proper person to carry on practice as a personal insolvency practitioner,

(ii) is not competent to carry on practice as a personal insolvency practitioner or does not meet the levels of education, training and experience specified by the Insolvency Service, or

(iii) does not comply with any requirement (not being a requirement referred to in any of paragraphs (a) to (c) of this subsection) of this Act or of regulations made under this Act applicable to the person.
(4) An authorisation to carry on practice as a personal insolvency practitioner, unless sooner surrendered or revoked or otherwise ceasing to be in force, shall remain in force for a period of one year from the date on which it is issued.

(5) An authorisation to carry on practice as a personal insolvency practitioner is personal to the personal insolvency practitioner concerned.

(6) An authorisation to carry on practice as a personal insolvency practitioner shall not authorise the person concerned to carry on any other form of financial advisory services subject to regulation by the Central Bank of Ireland.”.

  Seanad amendment agreed to.

  Seanad amendment No. 208:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
153.—(1) Where the Insolvency Service proposes to refuse to authorise a person to carry on practice as a personal insolvency practitioner, it shall give notice in writing to the person—
(a) of the proposal and the reasons for the proposal, and

(b) stating that the person may make representations in writing to the Insolvency Service on the proposal—
(i) subject to subparagraph (ii), within 21 days from the date of the issue of that notice to the person,

(ii) within such longer period as the Insolvency Service deems appropriate in the circumstances of the case.
(2) Where the Insolvency Service has given a notice under subsection (1) to a person, it shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b)(i) or (ii), as the case requires, and the consideration of any representations referred to in subsection (1)(b) made to it—
(a) issue to the person the authorisation that is the subject of the notice, or

(b) refuse to issue the authorisation that is the subject of the notice and give the person—
(i) notice in writing of the refusal and the reasons for the refusal, and

(ii) a copy of section 157 if the ground, or one of the grounds, for the refusal falls within section 152(3)(d).”.

  Seanad amendment agreed to.

  Seanad amendment No. 209:

 Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
154.—(1) An authorisation to carry on practice as a personal insolvency practitioner, unless it has been revoked, may, subject to subsection (4), be renewed by the Insolvency Service.

(2) An application for the renewal of an authorisation to carry on practice as a personal insolvency practitioner shall be—
(a) in the prescribed form,

(b) made at least 6 weeks before the expiration of the authorisation, and

(c) accompanied by—
(i) such documents as may be prescribed, and

(ii) the prescribed fee.
(3) Subject to subsection (4), where an application under subsection (2) for the renewal of an authorisation is not determined by the Insolvency Service before the authorisation expires, and the application was made in accordance with paragraph (b) of that subsection, the authorisation shall continue in force until the application has been so determined.

(4) Subject to section 155, the Insolvency Service shall refuse to renew an authorisation to carry on practice as a personal insolvency practitioner if—
(a) subsection (2) has not been complied with in respect of the person,

(b) the application is not accompanied by a report in the prescribed form by a duly qualified accountant that appropriate financial systems and controls are still in place for the protection of moneys received from debtors by the applicant,

(c) the applicant does not satisfy the Insolvency Service that there is available to the person the required level of professional indemnity insurance in respect of the authorisation to carry on practice as a personal insolvency practitioner,

(d) in the case of an individual, the person is an undischarged bankrupt.
(5) Where an authorisation to carry on practice as a personal insolvency practitioner is renewed under this Act, the period of validity of the authorisation as so renewed shall be deemed to start to run on the day that the authorisation would have expired if no application under subsection (2) for its renewal had been made, and irrespective of whether the authorisation is renewed before, on or after that day.”.

  Seanad amendment agreed to.

  Seanad amendment No. 210:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
155.—(1) Where the Insolvency Service proposes to refuse to renew an authorisation to carry on practice as a personal insolvency practitioner, it shall give a notice in writing to the person concerned—
(a) of the proposal and the reasons for the proposal, and

(b) stating that the person may make representations in writing to the Insolvency Service on the proposal—
 (i) subject to subparagraph (ii), within 21 days from the date of the issue of that notice to the person, or

(ii) within such longer period as the Insolvency Service deems appropriate in the circumstances of the case.
(2) Where the Insolvency Service has given a notice under subsection (1) to a person, it shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b)(i) or (ii), as the case requires, and the consideration of any representations referred to in subsection (1)(b) made to it—
(a) issue to the person the renewal of the authorisation that is the subject of the notice, or

(b) refuse to renew the authorisation that is the subject of the notice and give the person notice in writing of the refusal and the reasons for the refusal.”.

  Seanad amendment agreed to.

  Seanad amendment No. 211:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
156.—(1) The Insolvency Service may request the Commissioner of the Garda Síochána or the Central Bank of Ireland to provide any information requisite for the due performance of its functions in relation to any applicant for authorisation to carry on practice as a personal insolvency practitioner or any personal insolvency practitioner.

(2) The Commissioner of the Garda Síochána and the Central Bank of Ireland shall comply with a request under subsection (1) notwithstanding anything contained in any statutory provision or rule of law.”.

  Seanad amendment agreed to.

  Seanad amendment No. 212:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
157.—(1) A person aggrieved by a decision of the Insolvency Service—
(a) refusing under section 152(3)(d) to issue an authorisation to carry on practice as a personal insolvency practitioner, or

(b) declining under section 166(2) to cause to be carried out an investigation of the matter the subject of a complaint, may, within 21 days from the date of receipt of notice of the decision, appeal to the Circuit Court against the decision.
(2) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the appellant ordinarily resides or carries on any profession, business or occupation.

(3) The appeal shall be determined by the Circuit Court—
(a) by confirming the decision of the Insolvency Service to which the appeal relates, or

(b) by substituting its determination for that decision.
(4) A decision of the Circuit Court under this section shall be final, save that, by leave of that Court, an appeal shall lie to the High Court on a point of law.”.

  Seanad amendment agreed to.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett Seanad amendments Nos. 213 to 218, inclusive, are related and will be discussed together.

  Seanad amendment No. 213:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
“CHAPTER 2

General Obligations of Personal Insolvency Practitioners
158.—Where a personal insolvency practitioner is appointed by a debtor under Chapter 2 of Part 3, the personal insolvency practitioner shall retain such records as may be prescribed and in such form and manner as may be prescribed of his or her activities in relation to the debtor for a period of not less than 6 years after the completion of the activity to which the record relates.”.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter These amendments deal with the new Part 5, which makes provision for the regulation, supervision and discipline of personal insolvency practitioners. The insolvency service will be responsible for the direct regulation of personal insolvency practitioners. We will not impose any particular restrictions as to the types of professions of persons who will be licensed to perform this function. Normally, looking at experience in other jurisdictions, such insolvency practitioners tend to be accountants or lawyers but can be also other professionals in the broad financial services sector. Individuals trained as mediators who have financial experience may well prove to be very effective personal insolvency practitioners. In the context of existing professionals, many of these will be already regulated, as appropriate, by the Central Bank, where they are financial intermediaries for the provision of other financial services. This is the approach I intend to take. Suitable persons meeting the normal fitness to practise and competence criteria, who have indemnity insurance, which is important, and meet the other requirements in the legislation will be able to apply for registration on an individual rather than corporate basis.

I will now address the detail of the new Part 5. Amendment No. 202 proposes the insertion of section 147, which provides for the interpretation of certain items used in the new Part.

Amendment No. 203 proposes the insertion of section 148. This new section provides that it will be an offence for a person to act as a personal insolvency practitioner who is not entitled to do so by virtue of this legislation.

Amendment No. 204 proposes the insertion of section 149. This section gives the insolvency service the power to make regulations to provide for matters such as procedures governing the authorisation of persons to carry on practice as personal insolvency practitioners, the standards to be observed by personal insolvency practitioners, qualifications and requirements as to competence, information to be provided to the insolvency service by personal insolvency practitioners and the circumstances and purpose for which a personal insolvency practitioner may charge fees or costs.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett We are discussing amendment No. 213.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter I did not think we had reached amendment No. 202 yet.

Deputy Pádraig Mac Lochlainn: Information on Pádraig MacLochlainn Zoom on Pádraig MacLochlainn We flew over that amendment to be kind to the Minister.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter The Deputies opposite must have nodded it through for me. I was anxious to place on record the background to the provisions but I will be happy, if need be, to proceed to amendment No. 213. Chapter 2, comprising sections 158 to 160, sets out a number of general obligations that will apply to personal insolvency practitioners. Amendment No. 213 proposes the insertion of section 158. This section imposes an obligation on personal insolvency practitioners to keep records of their activities with debtors for a period of not less than six years after the completion of the activity to which the record relates.

Amendment No. 214 proposes the insertion of section 159. Under this section, a personal insolvency practitioner will be required to have a policy of professional indemnity insurance which meets requirements that may be prescribed in regulations.

Amendment No. 215 proposes the insertion of section 160 to provide that a personal insolvency practitioners will not be permitted to charge fees or costs which are not incurred either in accordance with regulations made under section 149 or in accordance with the terms of a debt settlement arrangement or personal insolvency arrangement.

Chapter 3, comprising sections 161 to 163, inclusive, contains important provisions dealing with accounts and related matters. Amendment No. 216 proposes the insertion of section 161. This section empowers the insolvency service to make regulations regarding financial matters, including the rights, duties and responsibilities of a personal insolvency practitioner in respect of moneys received from debtors, the accounting records which must be maintained by a personal insolvency practitioner and verification and enforcement of compliance with regulations.

Amendment No. 217 proposes the insertion of section 162 to provide that the insolvency service may, where necessary, apply to the High Court for certain orders in relation to the banking accounts kept by the personal insolvency practitioner in his or her capacity as such or in relation to the assets of the personal insolvency practitioner.

Amendment No. 218 proposes the insertion of section 162 which aims to address circumstances where a personal insolvency practitioner is no longer authorised to carry on practice as such and the person has not made adequate arrangements for handing over documents relating to his or her practice as a personal insolvency practitioner. In such a case, the insolvency service may issue a notice requiring the production of the documents to the service. Where the person fails to comply with such a requirement, the service may apply to the Circuit Court for an order requiring compliance with the requirement.

  Seanad amendment agreed to.

  Seanad amendment No. 214:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
159.—(1) A personal insolvency practitioner shall not carry on practice as a personal insolvency practitioner unless there is in force, at the time he or she so acts, a policy of professional indemnity insurance which meets such requirements as may be prescribed from time to time pursuant to subsection (2).

(2) The Insolvency Service may prescribe such matters as it considers necessary in relation to policies of professional indemnity insurance including the minimum

amount of cover which shall apply in relation to each and every claim made against a personal insolvency practitioner.”.

  Seanad amendment agreed to.

  Seanad amendment No. 215:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
160.—A personal insolvency practitioner shall not charge fees or costs or seek to recover outlays which are not incurred—
(a) in accordance with regulations made under section 149(f), and

(b) in a case where a Debt Settlement Arrangement or a Personal Insolvency Arrangement comes into effect, in accordance with the terms of such an

arrangement.”.

  Seanad amendment agreed to.

  Seanad amendment No. 216:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
“CHAPTER 3

Accounts and Related Matters
161.—(1) Subject to subsection (2), the Insolvency Service may make regulations providing for any of the following matters:
(a) the kind or kinds of accounts at banks authorised to carry on business in the State which may be opened and kept by a personal insolvency practitioner for the keeping of moneys received from debtors;

(b) the opening and keeping of such accounts by a personal insolvency practitioner and in particular the keeping of moneys received from or for the credit of or on behalf of debtors in a client account maintained specifically for that purpose;

(c) the rights, duties and responsibilities of a personal insolvency practitioner in respect of moneys received from debtors, including the transmission of such moneys to creditors and the deduction of fees, charges and outlays due to the personal insolvency practitioner;

(d) the receipts or statements to be issued by a personal insolvency practitioner in respect of moneys received from debtors;

(e) the accounting records to be maintained by a personal insolvency practitioner, including the minimum period or periods for which accounting records shall be retained by a personal insolvency practitioner during the period of, and following the conclusion of, Debt Settlement Arrangements or Personal Insolvency Arrangements and the manner in which the lodgement into bank accounts of any moneys received from debtors shall be recorded in the accounting records;

(f) the accounting records to be maintained by a personal insolvency practitioner containing particulars of and information as to moneys received, held, controlled or paid by the personal insolvency practitioner in connection with Debt Settlement Arrangements or Personal Insolvency Arrangements;

(g) the circumstances and manner in which a personal insolvency practitioner (or a duly qualified accountant on behalf of the personal insolvency practitioner) verifies compliance with the regulations, including the frequency of doing so;

(h) the examination by an auditor or an accountant who is a member of a body prescribed for the purposes of this section, at intervals prescribed by the

regulations, of accounting records maintained by a personal insolvency practitioner under regulations made under paragraphs (e) and (f) and for the making of reports to the Insolvency Service of such matters relating to the keeping of accounts and holding of moneys received from debtors as may be prescribed and such reports shall be in such form as may be prescribed;

(i) the enforcement by the Insolvency Service of compliance with the regulations;

(j) the imposition of fees on a personal insolvency practitioner in cases of non-compliance where the Insolvency Service, by reason of such noncompliance

has determined that further enquiries should be carried out (such fees not exceeding the cost of conducting such enquiries);

(k) the examination, by or on behalf of the Insolvency Service, of the financial circumstances of a personal insolvency practitioner in so far as such circumstances could affect his or her capacity to carry out the functions of a personal insolvency practitioner.
(2) The Insolvency Service shall, in making regulations under this section, have regard to the need to protect debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements.”.

  Seanad amendment agreed to.

  Seanad amendment No. 217:

Section 147: In page 121, before section 147, to insert the following new section:
162.—(1) Where, as respects a person who is a personal insolvency practitioner, the Insolvency Service determines that it is necessary to do so for the protection of debtors and creditors who are parties to Debt Settlement Arrangements or Personal Insolvency Arrangements in relation to which the personal insolvency practitioner concerned is performing or has performed functions performable by a personal insolvency practitioner under this Act, the Insolvency Service may apply to the High Court in a summary manner for an order directing one or more of the following:
(a) that no bank shall, without leave of the High Court, make any payment out of an account in the name of the personal insolvency practitioner concerned in his or her capacity as a personal insolvency practitioner;

(b) that a specified bank shall not, without leave of the High Court, make any payment out of an account kept at such bank by the personal insolvency practitioner or former personal insolvency practitioner in such capacity or former capacity, as the case may be;

(c) that the personal insolvency practitioner or former personal insolvency practitioner shall not, without leave of the High Court, dispose of or direct or facilitate the disposal of any assets within his or her possession or control or within his or her procurement;

(d) that the personal insolvency practitioner or former personal insolvency practitioner shall not, without leave of the High Court, reduce his or her assets below a specified amount or value.
(2) The High Court may hear an application for an order under subsection (1) otherwise than in public.

(3) Where the High Court makes an order under subsection (1) in relation to a personal insolvency practitioner, the Court may make one or more of the following

further orders:
(a) directing a specified bank to furnish any information in its possession that the Insolvency Service requires relating to any aspect of the financial affairs of the personal insolvency practitioner in his or her capacity as a personal insolvency practitioner;

(b) directing the personal insolvency practitioner to swear an affidavit disclosing all information relating to or contained in any account with any bank held in his or her own name, or in the name of his or her business or former business as a personal insolvency practitioner, or jointly with third parties, within a specified duration of time to be fixed by the Court;

(c) directing the personal insolvency practitioner to swear an affidavit disclosing all information relating to his or her assets, either then in his or her possession or control or within his or her procurement or which had been but are no longer in his or her possession or control or within his or her procurement, within a specified duration of time to be fixed by the Court, and, if no longer in his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets;

(d) directing the personal insolvency practitioner to make himself or herself available before the Court on a specified date and at a specified time for oral examination under oath in relation to the contents of any affidavit of assets sworn by him or her pursuant to paragraph (c).
(4) Where the High Court makes an order under subsection (1) in relation to a personal insolvency practitioner, the personal insolvency practitioner shall forthwith lodge (or cause to be lodged) any moneys subsequently received by him or her to the appropriate account or accounts, unless otherwise ordered by the Court.

(5) Where the High Court is satisfied, on an application being made to it by the Insolvency Service, that there is reason to believe that any person holds or has held assets on behalf of a personal insolvency practitioner or on behalf of his or her practice or former practice as a personal insolvency practitioner to whom subsection (1) applies, the Court may order that person to disclose to the Insolvency Service all information as to such assets, either then in his or her possession or control or within his or her procurement or which had been but are no longer in his or her possession or control or within his or her procurement, and, if no longer within his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets.

(6) A reference in this section to a personal insolvency practitioner includes a reference to a person who is no longer a personal insolvency practitioner.”.

  Seanad amendment agreed to.

  Seanad amendment No. 218:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:
163.—(1) Where—
(a) either—
(i) the Insolvency Service refuses to renew an authorisation to carry on practice as a personal insolvency practitioner, or

(ii) an authorisation to carry on practice as a personal insolvency practitioner is revoked or suspended under this Act,

and
(b) the Insolvency Service is of the opinion that adequate arrangements have not been made for handing over to another personal insolvency practitioner of any documents within the possession or in the control, or within the procurement, of the personal insolvency practitioner or former personal insolvency practitioner, as the case may be,
the Insolvency Service may, by notice in writing given to the personal insolvency practitioner or former personal insolvency practitioner, as the case may be, require the personal insolvency practitioner or former personal insolvency practitioner, as the case may be, or any other person in possession or control of such documents, to produce the documents, to a person appointed by the Insolvency Service for the purpose, at a time and place specified by the Insolvency Service in the notice.

(2) Where a person the subject of a requirement under subsection (1) does not comply or fully comply with that requirement, the Insolvency Service may apply in

a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply or comply fully, as the case may be, with the requirement within a period to be specified by the Court and the Court may make the order applied for or such other order as it deems appropriate.

(3) Where the Insolvency Service takes possession of documents produced under this section—
(a) it shall serve on the person by whom the documents were produced, a notice giving particulars of the documents and the date of taking possession thereof, and

(b) it may make such enquiries as may be reasonably necessary to ascertain the person or persons entitled to the possession or custody of such documents, or any of them, and may thereafter deal with such documents, or any of them, in accordance with the directions of such person or persons so entitled.
(4) Within 14 days from the service of a notice under subsection (3) on a person, the person may apply in a summary manner to the Circuit Court for an order

directing the Insolvency Service to return the documents taken by the Insolvency Service to him or her or to such other person or persons as the applicant may require and the Court may make the order applied for or such other order as it deems appropriate.

(5) An application under subsection (2) to the Circuit Court shall be made to a judge of that Court for the circuit in which the personal insolvency practitioner the

subject of the application resides or ordinarily carried on within the previous 3 years practice as a personal insolvency practitioner.”.

  Seanad amendment agreed to.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett Seanad amendments Nos. 219 to 229, inclusive, and amendments Nos. 243 and 244 are related and will be discussed together.

  Seanad amendment No. 219:

Section 147: In page 121, before section 147, but in Part 5, to insert the following new section:

“CHAPTER 4

Complaints, Investigations and Sanctions
164.—(1) For the purposes of this Act—

(a) the Director of the Insolvency Service may appoint such members of the staff of the Insolvency Service as he or she deems appropriate to be inspectors for such period and subject to such terms as the Director may determine,

(b) the Director of the Insolvency Service may appoint such other persons as he or she deems appropriate to be inspectors for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Director, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, may determine.
(2) Each inspector shall be given a warrant of appointment and, when performing any function imposed under this Act, shall, on request by any person affected,

produce the warrant or a copy thereof, together with a form of personal identification.”.

Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter Chapter 4, comprising sections 164 to 174, provides for a comprehensive system of complaints and investigations where improper conduct by a personal insolvency practitioner is alleged and for the imposition of appropriate sanctions. Amendment No. 219 proposes the insertion of section 164 which empowers the director of the insolvency service to appoint members of the staff of the service or other appropriate persons to act as inspectors for the purpose of the Bill.

  Amendment No. 220 proposes the insertion of section 165. This section provides for the establishment of a panel of persons to act on a the personal insolvency practitioners complaints committee. When the insolvency service appoints an inspector to carry out an investigation into a personal insolvency practitioner's conduct, it must request the Minister to appoint a complaints committee from the panel to act in relation to the investigation.

  Amendment No. 221 proposes the insertion of section 166. This section provides for the making of written complaints to the insolvency service alleging improper conduct by a personal insolvency practitioner and sets out the procedure for the handling of such complaints by the service.

  Amendment No. 222 proposes the insertion of section 167. This section provides that where the insolvency service considers that immediate suspension of an authorisation to carry on practice as a personal insolvency practitioner is necessary, it may make an application to the High Court for an order to suspend the personal insolvency practitioner's authorisation.

  In exceptional circumstances where there is an immediate risk of financial harm, the insolvency service may apply to the High Court on an ex parte basis for interim suspension of a personal insolvency practitioner's authorisation for a maximum of 14 days.

  Amendment No. 223 proposes the insertion of section 168 which provides that an investigation may be carried out by the insolvency service on foot of a complaint or on the service's own initiative. It provides for the appointment of an inspector or inspectors to carry out such an investigation to prepare an investigation report.


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