Small Business, Enterprise and Employment Bill (HL Bill 57)

10 Omit paragraph 10 of Schedule 9 (exercise by official receiver of functions
under section 287).

11 In paragraph 30 of Schedule 9 omit “, of the official receiver while acting as
a receiver or manager under section 287”.

5Enterprise and Regulatory Reform Act 2013 (c. 24)2013 (c. 24)

12 In Schedule 19 to the Enterprise and Regulatory Reform Act 2013, omit
paragraphs 20 to 22.

Section 141

SCHEDULE 11 Single regulator of insolvency practitioners: supplementary provision

10Operation of this Schedule

1 (1) This Schedule has effect in relation to regulations under section 141
designating a body (referred to in this Schedule as “the Regulations”) as
follows—

(a) paragraphs 2 to 13 have effect where the Regulations establish the
15body;

(b) paragraphs 6, 7 and 9 to 13 have effect where the Regulations
designate an existing body (see section 141(2)(b));

(c) paragraph 14 also has effect where the Regulations designate an
existing body that is an unincorporated association.

(2) 20Provision made in the Regulations by virtue of paragraph 6 or 12, where that
paragraph has effect as mentioned in sub-paragraph (1)(b), may only apply
in relation to—

(a) things done by or in relation to the body in or in connection with the
exercise of functions conferred on it by the Regulations, and

(b) 25functions of the body which are functions so conferred.

Name, members and chair

2 (1) The Regulations must prescribe the name by which the body is to be known.

(2) The Regulations must provide that the members of the body must be
appointed by the Secretary of State after such consultation as the Secretary
30of State thinks appropriate.

(3) The Regulations must provide that the Secretary of State must appoint one
of the members as the chair of the body.

(4) The Regulations may include provision about—

(a) the terms on which the members of the body hold and vacate office;

(b) 35the terms on which the person appointed as the chair holds and
vacates that office.

Remuneration etc.

3 (1) The Regulations must provide that the body must pay to its chair and
members such remuneration and allowances in respect of expenses properly

incurred by them in the exercise of their functions as the Secretary of State
may determine.

(2) The Regulations must provide that, as regards any member (including the
chair) in whose case the Secretary of State so determines, the body must pay
5or make provision for the payment of—

(a) such pension, allowance or gratuity to or in respect of that person on
retirement or death as the Secretary of State may determine, or

(b) such contributions or other payment towards the provision of such a
pension, allowance or gratuity as the Secretary of State may
10determine.

(3) The Regulations must provide that where—

(a) a person ceases to be a member of the body otherwise than on the
expiry of the term of office, and

(b) it appears to the Secretary of State that there are special
15circumstances which make it right for that person to be
compensated,

the body must make a payment to the person by way of compensation of
such amount as the Secretary of State may determine.

Staff

4 20The Regulations must provide that—

(a) the body may appoint such persons to be its employees as the body
considers appropriate, and

(b) the employees are to be appointed on such terms and conditions as
the body may determine.

25Proceedings

5 (1) The Regulations may make provision about the proceedings of the body.

(2) The Regulations may, in particular—

(a) authorise the body to exercise any function by means of committees
consisting wholly or partly of members of the body;

(b) 30provide that the validity of proceedings of the body, or of any such
committee, is not affected by any vacancy among the members or
any defect in the appointment of a member.

Fees

6 (1) The Regulations may make provision—

(a) 35about the setting and charging of fees by the body in connection with
the exercise of its functions;

(b) for the retention by the body of any such fees payable to it;

(c) about the application by the body of such fees.

(2) The Regulations may, in particular, make provision—

(a) 40for the body to be able to set such fees as appear to it to be sufficient
to defray the expenses of the body exercising its functions, taking one
year with another;

(b) for the setting of fees by the body to be subject to the approval of the
Secretary of State.

(3) The expenses referred to in sub-paragraph (2)(a) include any expenses
incurred by the body on such staff, accommodation, services and other
facilities as appear to it to be necessary or expedient for the proper exercise
of its functions.

5Consultation

7 The Regulations may make provision as to the circumstances and manner in
which the body must consult others before exercising any function
conferred on it by the Regulations.

Training and other services

8 (1) 10The Regulations may make provision authorising the body to provide
training or other services to any person.

(2) The Regulations may make provision authorising the body—

(a) to charge for the provision of any such training or other services, and

(b) to calculate any such charge on the basis that it considers to be the
15appropriate commercial basis.

Report and accounts

9 (1) The Regulations must require the body, at least once in each 12 month
period, to report to the Secretary of State on—

(a) the exercise of the functions conferred on it by the Regulations, and

(b) 20such other matters as may be prescribed in the Regulations.

(2) The Regulations must require the Secretary of State to lay before Parliament
a copy of each report received under this paragraph.

(3) Unless section 394 of the Companies Act 2006 applies to the body (duty on
every company to prepare individual accounts), the Regulations must
25provide that the Secretary of State may give directions to the body with
respect to the preparation of its accounts.

(4) Unless the body falls within sub-paragraph (5), the Regulations must
provide that the Secretary of State may give directions to the body with
respect to the audit of its accounts.

(5) 30The body falls within this sub-paragraph if it is a company whose
accounts—

(a) are required to be audited in accordance with Part 16 of the
Companies Act 2006 (see section 475 of that Act), or

(b) are exempt from the requirements of that Part under section 482 of
35that Act (non-profit making companies subject to public sector
audit).

(6) The Regulations may provide that, whether or not section 394 of the
Companies Act 2006 applies to the body, the Secretary of State may direct
that any provisions of that Act specified in the directions are to apply to the
40body with or without modifications.

Funding

10 The Regulations may provide that the Secretary of State may make grants to
the body.

Financial penalties

11 (1) 5This paragraph applies where the Regulations include provision enabling
the body to impose a financial penalty on a person who is, or has been,
authorised to act as an insolvency practitioner (see section 141(5)).

(2) The Regulations—

(a) must include provision about how the body is to determine the
10amount of a penalty, and

(b) may, in particular, prescribe a minimum or maximum amount.

(3) The Regulations must provide that, unless the Secretary of State (with the
consent of the Treasury) otherwise directs, income from penalties imposed
by the body is to be paid into the Consolidated Fund.

(4) 15The Regulations may also, in particular—

(a) include provision for a penalty imposed by the body to be enforced
as a debt;

(b) prescribe conditions that must be met before any action to enforce a
penalty may be taken.

20Status etc.

12 The Regulations must provide that—

(a) the body is not to be regarded as acting on behalf of the Crown, and

(b) its members, officers and employees are not to be regarded as Crown
servants.

25Transfer schemes

13 (1) This paragraph applies if the Regulations make provision designating a
body (whether one established by the Regulations or one already in
existence) in place of a body designated by earlier regulations under section
141; and those bodies are referred to as the “new body” and the “former
30body” respectively.

(2) The Regulations may make provision authorising the Secretary of State to
make a scheme (a “transfer scheme”) for the transfer of property, rights and
liabilities from the former body to the new body.

(3) The Regulations may provide that a transfer scheme may include
35provision—

(a) about the transfer of property, rights and liabilities that could not
otherwise be transferred;

(b) about the transfer of property acquired, and rights and liabilities
arising, after the making of the scheme.

(4) 40The Regulations may provide that a transfer scheme may make
consequential, supplementary, incidental or transitional provision and may
in particular—

(a) create rights, or impose liabilities, in relation to property or rights
transferred;

(b) make provision about the continuing effect of things done by the
former body in respect of anything transferred;

(c) 5make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in
relation to the former body in respect of anything transferred;

(d) make provision for references to the former body in an instrument or
other document in respect of anything transferred to be treated as
10references to the new body;

(e) make provision for the shared ownership or use of property;

(f) if the TUPE regulations do not apply to in relation to the transfer,
make provision which is the same or similar.

(5) The Regulations must provide that, where the former body is an existing
15body, a transfer scheme may only make provision in relation to—

(a) things done by or in relation to the former body in or in connection
with the exercise of functions conferred on it by previous regulations
under section 141, and

(b) functions of the body which are functions so conferred.

(6) 20In sub-paragraph (4)(f), “TUPE regulations” means the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246S.I. 2006/246).

(7) In this paragraph—

(a) references to rights and liabilities include rights and liabilities
relating to a contract of employment;

(b) 25references to the transfer of property include the grant of a lease.

Additional provision where body is unincorporated association

14 (1) This paragraph applies where the body is an unincorporated association.

(2) The Regulations must provide that any relevant proceedings may be
brought by or against the body in the name of any body corporate whose
30constitution provides for the establishment of the body.

(3) In sub-paragraph (2) “relevant proceedings” means proceedings brought in
or in connection with the exercise of any function conferred on the body by
the Regulations.