The Public Services Reform (Insolvency) (Scotland) Order 2016

JurisdictionScotland
CitationSSI 2016/141

2016No. 141

REGULATORY REFORM

INSOLVENCY

COMPANIES

The Public Services Reform (Insolvency) (Scotland) Order 2016

2ndMarch2016

Coming into force in accordance with article 1(2) and (3)

1stApril2016

otherwise in accordance with article 1(4)

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 2010( 1) and 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 Parliament( 2).

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) rules under section 411 of the Act; or

(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 Scotland( 3).

(5) In this Order—

(a) ‘the Act’ means the Insolvency Act 1986( 4); and

(b) ‘the 2015 Act’ means the Small Business, Enterprise and Employment Act 2015( 5).

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) in subsection (1) repeal ‘where the company is registered in England and Wales’; and

(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) in subsection (1), for ‘Where the company in registered in England and Wales the’ substitute ‘The’; and

(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 2001( 12)

(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) in Schedule 3 (modifications to provisions of the Act) omit the entries for sections 93 and 105.

(3) In the Limited Liability Partnerships Regulations 2001( 13)

(a) in Schedule 3 (modifications to provisions of the Act) omit the entries for sections 93 and 105; and

(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...

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