1.The Committee requested a memorandum from the Department on the following questions in connection with the above Rules:
(1) Explain whether the concern of the Committee relating to S.I. 2016/1024 set out in paragraphs 1.10 to 1.13 of the Sixteenth Report of Session 2016/17 has been addressed and, if not, why not.
(2) Explain the apparent inconsistency between paragraph 8.1 of the Explanatory Memorandum and the preamble and, if consultation has not taken place, why it was concluded the Department had power to approve the Rules.
2.On the first question, in its Sixteenth Report of the 2016/17 Session, the Committee drew the special attention of both Houses to the Insolvency (England and Wales) Rules 2016 on a number of grounds. These included the wording of rule 10.36 of those Rules, which is discussed in paragraphs 1.10 to 1.13 of the Report. The Committee was concerned that rule 10.36 did not allow a debtor to make a hard copy application for bankruptcy (as opposed to an electronic application) and expressed doubts that this approach was intra vires.
3.The Department maintains the view, expressed in its memorandum to the Committee at the time, that rule 10.36, as drafted, is intra vires. The Department respectfully acknowledges the concerns expressed by the Committee about the undesirability of assuming that all citizens have ready access to, or wish to use, electronic communication and about restricting the ability to use paper and post in such circumstances. The Insolvency Service has processes in place to assist those who do not have access to electronic communications. The Insolvency Service Enquiry Line provides an assisted digital service for such individuals. A member of the Enquiry Line team will work through the application over the phone with the applicant, record the answers on line, print off the completed form and send it to the applicant to print, sign and return. When the applicant returns the form the Enquiry Line official will submit the form online. The application is then dealt with by the Adjudicator who will write to the applicant if they do not have an email address.
4.Turning to the Committee’s second question, the Department acknowledges and apologises for an error in the Explanatory Memorandum. The Insolvency Rules Committee was consulted before these Rules were made. The reference in the Explanatory Memorandum was to the fact that a formal consultation of business stakeholders and other interested parties did not take place and the Department apologises for any confusion caused.
Department for Business, Energy and Industrial Strategy
21 November 2017
30 November 2017