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The Scotland Act 1998 (Insolvency Functions) Order 2018

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EXPLANATORY NOTE

(This note is not part of the Order)

This Order is made under section 63 and section 108 of the Scotland Act 1998 (c.46) (“the 1998 Act”).

Article 2 of this Order provides that specific insolvency functions which relate to reserved matters under Schedule 5 to the 1998 Act, that are exercised by a Minister of the Crown in or as regards Scotland, are to be exercisable by both the Scottish Ministers and a Minister of the Crown. The specific insolvency functions to which this article applies are the making of winding up rules for Scotland in relation to companies under section 411(1)(b) and (2) of the Insolvency Act 1986 (c.45) (“the 1986 Act”), the making of winding up rules for Scotland which apply to incorporated friendly societies under section 411(1)(b) and (2) of the 1986 Act (as applied by paragraph 69 of Schedule 10 to the Friendly Societies Act 1992 (c.40) (“the 1992 Act”)) and the making of regulations for Scotland under section 14(2)(a), 16 and 17(1), (2) and (3) of the Limited Liability Partnerships Act 2000 (c.12) (“the 2000 Act”) for the purpose of applying winding up rules made under section 411(1)(b) and (2) of the 1986 Act in relation to winding up of limited liability partnerships and oversea limited liability partnerships. The agreement of a Minister of the Crown is required for the exercise of the concurrent powers so conferred on the Scottish Ministers.

Article 3 provides for the general modification of enactments in connection with article 2 of this Order.

Article 4 provides for the parliamentary procedure or laying arrangements which apply to any rules or regulations made by the Scottish Ministers under the powers conferred by article 2. The effect of section 27(2)(a) of the Interpretation and Legislative Reform (Scotland) Act 2010 is that any instrument which is made by the Scottish Ministers by virtue of the powers conferred on them under article 2 will be a Scottish statutory instrument (as opposed to a statutory instrument).

Article 5 of this Order provides for specific insolvency functions within the devolved competence of the Scottish Ministers to be exercised by both the Scottish Ministers and a Minister of the Crown. The specific insolvency functions to which this article applies are the making of winding up rules for Scotland in relation to companies under section 411(1)(b) and (2) of the 1986 Act, the making of winding up rules for Scotland which apply to incorporated friendly societies under section 411(1)(b) and (2) of the 1986 Act (as applied by paragraph 69 of Schedule 10 to the 1992 Act) and the making of regulations for Scotland under section 14(2)(a), 16 and 17(1), (2) and (3) of the 2000 Act for the purpose of applying winding up rules made under section 411(1)(b) and (2) of the 1986 Act in relation to winding up of limited liability partnerships and oversea limited liability partnerships. The agreement of the Scottish Ministers is required for the exercise of the concurrent powers so conferred on a Minister of the Crown.

Article 6 makes transitional provision in relation to the transfer of functions under articles 2 and 5.

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