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The Scotland Act 1998 (Insolvency Functions) Order 2018

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Citation, commencement, extent and interpretation

1.—(1) This Order may be cited as the Scotland Act 1998 (Insolvency Functions) Order 2018 and comes into force on the day after the day on which it is made.

(2) This Order does not extend to Northern Ireland.

(3) In this Order—

“the 1986 Act” means the Insolvency Act 1986(1);

“the 1992 Act” means the Friendly Societies Act 1992(2);

“the 1998 Act” means the Scotland Act 1998(3);

“the 2000 Act” means the Limited Liability Partnerships Act 2000(4);

“the 2010 Act” means the Interpretation and Legislative Reform (Scotland) Act 2010(5);

“incorporated friendly society” has the same meaning as in section 116 of the 1992 Act;

“limited liability partnership” has the same meaning as section 1(2) of the 2000 Act;

“oversea limited liability partnership” has the same meaning as in section 14(3) of the 2000 Act(6);

“the EU Regulation” has the same meaning as in section 436(1) of the 1986 Act(7); and

“winding up” in relation to companies, incorporated friendly societies and limited liability partnerships, includes winding up of solvent, as well as insolvent companies, incorporated friendly societies and limited liability partnerships.

Reserved functions shared by a Minister of the Crown and the Scottish Ministers

2.—(1) Subject to paragraph (2), the functions described in paragraph (3) are exercisable by the Scottish Ministers concurrently with a Minister of the Crown, so far as they are exercisable by the Minister of the Crown in or as regards Scotland.

(2) The Scottish Ministers may exercise a function under paragraph (1) only with the agreement of a Minister of the Crown.

(3) The functions are those conferred by—

(a)section 411(1)(b) and (2) of the 1986 Act(8) (company insolvency rules) for the purpose of making rules which give effect to any provision about winding up in the Parts of the 1986 Act described in paragraph (4) or the EU Regulation;

(b)section 411(1)(b) and (2) of the 1986 Act as applied by section 23, paragraph 69(1)(a) of Schedule 10 to the 1992 Act(9) (insolvency rules and fees) for the purpose of making rules, in relation to incorporated friendly societies, which give effect to any provision about winding up in the Parts of the 1986 Act described in paragraph (5);

(c)sections 14(2)(a), 16 and 17(1), (2) and (3) of the 2000 Act (insolvency and winding up) for the purpose of making provision by regulations about the winding up of—

(i)limited liability partnerships; and

(ii)oversea limited liability partnerships,

by applying or incorporating, with such modifications as appear appropriate, rules made under section 411(1)(b) and (2) of the 1986 Act which give effect to any provision about winding up in the Parts of the 1986 Act described in paragraph (5)(10) or the EU Regulation.

(4) The Parts of the 1986 Act are—

(a)Part 4 (winding up of companies registered under the Companies Acts);

(b)Part 5 (winding up of unregistered companies);

(c)Part 6 (miscellaneous provisions applying to companies which are insolvent or in liquidation); and

(d)Part 7 (interpretation for First Group of Parts), so far as it relates to Parts 4, 5 or 6.

(5) The Parts of the 1986 Act are—

(a)Part 4 (winding up of companies registered under the Companies Acts);

(b)Part 6 (miscellaneous provisions applying to companies which are insolvent or in liquidation); and

(c)Part 7 (interpretation for First Group of Parts), so far as it relates to Part 4 or Part 6.

General modifications of enactments

3.—(1) Section 117 of the 1998 Act(11) (general modification of enactments: Ministers of the Crown) applies in relation to the exercise of functions by the Scottish Ministers by virtue of article 2 as it applies in relation to the exercise of functions by the Scottish Ministers within devolved competence.

(2) In the application of that section by virtue of this article, the reference in it to any pre-commencement enactment is to be read as if it were a reference to any enactment.

Rules and regulations made by the Scottish Ministers

4.—(1) Section 411(4) of the 1986 Act does not apply in relation to rules made by the Scottish Ministers by virtue of article 2(3)(a) or (b).

(2) Rules made by the Scottish Ministers by virtue of article 2(3)(a) or (b) are subject to the negative procedure (see section 28 of the 2010 Act).

(3) Section 411(5) of the 1986 Act does not apply in relation to regulations made under rules made by the Scottish Ministers by virtue of paragraph 27 of Schedule 8 to the 1986 Act(12) and article 2(3)(a) or (b) (but see section 30(2) of the 2010 Act(13)).

(4) Section 17(1), (4) and (6) of the 2000 Act do not apply in relation to regulations made by the Scottish Ministers by virtue of article 2(3)(c).

(5) Subject to paragraph (6), regulations made by the Scottish Ministers by virtue of article 2(3)(c) are subject to the negative procedure (see section 28 of the 2010 Act).

(6) Regulations made by the Scottish Ministers under section 14(2)(a) and 16 of the 2000 Act in the circumstances set out in section 17(5) of that 2000 Act(14) are subject to the affirmative procedure (see section 29 of the 2010 Act).

Devolved functions shared by the Scottish Ministers and a Minister of the Crown

5.—(1) Subject to paragraph (2), the functions of the Scottish Ministers described in paragraph (3) are exercisable by a Minister of the Crown concurrently with the Scottish Ministers.

(2) A Minister of the Crown may exercise a function mentioned in paragraph (1) only with the agreement of the Scottish Ministers.

(3) The functions are those conferred by—

(a)section 411(1)(b) and (2) of the 1986 Act(15) (company insolvency rules) for the purpose of making rules which give effect to any provision about winding up in the Parts of the 1986 Act described in paragraph (4) or the EU Regulation;

(b)section 411(1)(b) and (2) of the 1986 Act as applied by section 23, paragraph 69(1)(a) of Schedule 10 to the 1992 Act(16) (insolvency rules and fees) for the purpose of making rules, in relation to incorporated friendly societies, which give effect to any provision about winding up in the Parts of the 1986 Act described in paragraph (5);

(c)sections 14(2)(a), 16 and 17(1), (2) and (3) of the 2000 Act (insolvency and winding up) for the purpose of making provision by regulations about the winding up of—

(i)limited liability partnerships; and

(ii)oversea limited liability partnerships,

by applying or incorporating, with such modifications as appear appropriate, rules made under section 411(1)(b) and (2) of the 1986 Act which give effect to any provision about winding up in the Parts of the 1986 Act described in paragraph (5)(17) or the EU Regulation.

(4) The Parts of the 1986 Act are—

(a)Part 4 (winding up of companies registered under the Companies Acts);

(b)Part 5 (winding up of unregistered companies);

(c)Part 6 (miscellaneous provisions applying to companies which are insolvent or in liquidation); and

(d)Part 7 (interpretation for First Group of Parts), so far as it relates to Parts 4, 5 or 6.

(5) The Parts of the 1986 Act are—

(a)Part 4 (winding up of companies registered under the Companies Acts);

(b)Part 6 (miscellaneous provisions applying to companies which are insolvent or in liquidation); and

(c)Part 7 (interpretation for First Group of Parts), so far as it relates to Part 4 or Part 6.

Transitional provision for functions conferred on a Minister of the Crown and the Scottish Ministers

6.—(1) Anything done (or having effect as if done) by or in relation to a Minister of the Crown for the purposes of or in connection with the functions conferred on the Scottish Ministers by virtue of article 2, if in force at the time when that conferral takes effect, is to have effect as if done by or in relation to the Scottish Ministers (as well as the Minister of the Crown) in so far as that is required for continuing its effect after that time.

(2) Anything done (or having effect as if done) by or in relation to the Scottish Ministers for the purposes of or in connection with the functions conferred on a Minister of the Crown by virtue of article 5, if in force at the time when that conferral takes effect, is to have effect as if done by or in relation to a Minister of the Crown (as well as the Scottish Ministers) in so far as that is required for continuing its effect after that time.

Richard Tilbrook

Clerk of the Privy Council

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