The Public Services Reform (Insolvency) (Scotland) Order 2016
2016 No. 141
Regulatory Reform
InsolvencyCompanies
The Public Services Reform (Insolvency) (Scotland) Order 2016
Made 2nd March 2016
The Scottish Ministers make the following Order in exercise of the powers conferred by section 17(1) and (9) of the Public Services Reform (Scotland) Act 20101and all other powers enabling them to do so.
The Scottish Ministers consider that the conditions in section 18(2) of that Act are satisfied.
The Scottish Ministers have consulted in accordance with section 26 of that Act.
The Scottish Ministers have laid a draft of this Order and an explanatory document before the Scottish Parliament in accordance with section 25(2)(b) of that Act.
In accordance with section 25(2)(c) of that Act, a draft of this Order has been approved by resolution of the Scottish Parliament2.
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Public Services Reform (Insolvency) (Scotland) Order 2016.
(2) Subject to paragraphs (3) and (4), this Order comes into force on 1st April 2016.
(3) Articles 4 to 13 come into force on 1st April 2016 insofar as they enable the making of—
(a)
(a) rules under section 411 of the Act; or
(b)
(b) any other subordinate legislation under the Act.
(4) Insofar as not already in force, articles 4 to 13 come into force on the day appointed for the coming into force, for all remaining purposes, of section 122(2) of the 2015 Act in Scotland3.
(5) In this Order—
(a)
(a) “the Act” means the Insolvency Act 19864; and
(b)
(b) “the 2015 Act” means the Small Business, Enterprise and Employment Act 20155.
Receivership
Removal of restriction on appointment of receiver to property in Scotland
2. In section 51 of the Act (power to appoint receiver) repeal subsection (2ZA)6.
Receiver as agent of company - treatment of liabilities relating to contracts of employment
3. In section 57 of the Act (agency and liability of receiver for contracts) repeal subsection (2D)7.
Verification of company’s statement of affairs
4. In section 66(2) of the Act (company’s statement of affairs) for “be verified by affidavit” substitute “contain a statutory declaration”.
Winding up
Members’ voluntary winding up: progress report to company
5.—(1) In section 92A of the Act (progress report to company (England and Wales))8—
(a)
(a) in subsection (1) repeal “where the company is registered in England and Wales”; and
(b)
(b) in the section title repeal “(England and Wales)”.
(2) Repeal section 93 of the Act (general company meeting at each year’s end (Scotland))9.
(3) In Schedule 10 of the Act (punishment of offences), repeal the entry relating to section 93(3).
Creditors’ voluntary winding up: progress report to company and creditors
6.—(1) In section 104A of the Act (progress report to company and creditors (England and Wales))10—
(a)
(a) in subsection (1), for “Where the company in registered in England and Wales the” substitute “The”; and
(b)
(b) in the section title repeal “(England and Wales)”.
(2) Repeal section 105 of the Act (meetings of company and creditors at each year’s end (Scotland))11.
(3) In Schedule 10 of the Act, repeal the entry relating to section 105(3).
Consequential amendments and repeals
7.—(1) In the 2015 Act, repeal paragraphs 17 and 28 of Schedule 9.
(2) In the Limited Liability Partnerships (Scotland) Regulations 200112—
(a)
(a) in Schedule 2 (provisions of the Act which apply to limited liability partnerships as they apply to companies)—
(i) for “93” substitute “92A”; and
(ii) for “105” substitute “104A”; and
(b)
(b) in Schedule 3 (modifications to provisions of the Act) omit the entries for sections 93 and 105.
(3) In the Limited Liability Partnerships Regulations 200113—
(a)
(a) in Schedule 3 (modifications to provisions of the Act) omit the entries for sections 93 and 105; and
(b)
(b) in Schedule 4 (provisions of the Act not applied in Scotland because they are applied by the Limited Liability Partnerships (Scotland) Regulations 2001)—
(i) for “93” substitute “92A”; and
(ii) for “105” substitute “104A”.
Members’ voluntary winding up: verification of statement as to company’s affairs
8. In section 95(4A) of the Act (liquidator’s verification of statement as to company’s affairs)14—
(a) repeal “be verified by the liquidator”;
(b) in paragraph (a), after “Wales,” insert “be verified by the liquidator”; and
(c) in paragraph (b), for “by affidavit” substitute “contain a statutory declaration by the liquidator”.
Creditors’ voluntary winding up: verification of statement of affairs
9. In section 99(2A) of the Act (directors’ verification of statement as to company’s affairs)15—
(a) repeal “be verified by some or all of the directors”;
(b) in paragraph (a), after “Wales,” insert “be verified by some or all of the directors”; and
(c) in paragraph (b), for “by affidavit” substitute “contain a statutory declaration by some or all of the directors”.
Court winding up: verification of statement of affairs on investigation
10. In section 131(2A) of the Act (company’s statement of affairs)16—
(a) repeal “be verified by the persons required to submit it”;
(b) in paragraph (a), after “Wales,” insert “be verified by the persons required to submit it”; and
(c) in paragraph (b), for “by affidavit” substitute “contain a statutory declaration by the persons required to submit it”.
Application for early dissolution of the company
11. In section 204(2) of the Act (early dissolution: Scotland)17for “he may apply” substitute “the liquidator may at any time apply”.
Miscellaneous
Use of websites
12. In section 246B of the Act (use of websites)18—
(a) repeal subsection (2); and
(b) in subsection (3)(a) after “administrator,” insert “receiver (appointed under section 51),”.
References to things in writing: receiver’s report and provisions of Companies Clauses Consolidation (Scotland) Act 1845
13. In section 436B(2) of the Act (references to things in writing)19repeal paragraphs (b) and (e).
Savings
Savings
14. Where a receiver is appointed in respect of a company under section 51 of the Act20before 1st April 2016, that section continues to have effect on and after 1st April 2016 as if the amendment made in article 2 had not been made.
15.—(1) Where this article applies, subject to article 1(3) the Act continues to have effect on and after the day mentioned in article 1(4) as if the amendments made by articles 4 to 6 and 7(2) to 13 had not been made.
(2) This article applies where, in a receivership, a receiver is appointed in respect of a company under section 51 of the Act before the day mentioned in article 1(4).
(3) This article applies where a company goes into liquidation upon a resolution for voluntary winding up passed before the day mentioned in article 1(4).
(4) This article applies where—
(a)
(a) there is an application for the appointment of a provisional liquidator under section 135 of the Act; or
(b)
(b) a company goes into liquidation on the making of a winding up order,
on a winding up petition presented before the day mentioned in article 1(4).
(5) This article applies where—
(a)
(a) there is an application for the appointment of a provisional liquidator under section 135 of the Act; or
(b)
(b) a company goes into liquidation on the making of a winding up order,
on a winding up petition presented on or after the day mentioned in article 1(4) if, at the time the winding up petition is presented, the company is in liquidation upon a resolution for voluntary winding up passed before the day mentioned in article 1(4).
(6) In this article—
“resolution for voluntary winding up” includes a resolution which is deemed to occur by virtue of—
(a) paragraph 83(6)(b) of Schedule B1 of the Act (administration); or
(b) an order made following conversion of administration or a voluntary arrangement into winding up by virtue of Article 37 of Council Regulation (EC) No. 1346/2000on insolvency proceedings21; and
“winding up petition” includes an administration application under paragraph 12 of Schedule B1 to the Act which the court treats as a winding up petition under paragraph 13(1)(e) of that Schedule.
FERGUS EWING
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
2nd March 2016
EXPLANATORY NOTE
(This note is not part of the Order)
This Order is made under section 17 of the Public Services Reform (Scotland) Act 2010. It amends the Insolvency Act 1986 (“the Act”) and the Small Business Enterprise and Employment Act 2015 (“the 2015 Act”). Articles 2 and 3 come into force on 1st April 2016, as do the other amendments for the limited purpose of allowing subordinate legislation to be made, including corporate Insolvency Rules under section 411 of the Act.
The amendments in articles 4 to 13 come fully into force on the day to be appointed for the coming into force, for all remaining purposes, of section 122(2) of the 2015 Act in Scotland (abolition of requirements to hold meetings –...
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