Fourth Report Contents

Appendix 5

S.I. 2017/369

Insolvency (England and Wales) Rules 2016 (Consequential Amendments and Savings) Rules 2017

1.The Committee has requested a memorandum from the Department in relation to the following questions concerning the above Rules:

(1) Explain the source of the power to include amendments of primary legislation.

(2) Explain the reasons for the following apparent errors:

a) in rule 3(a) the omission of “Rules” before 2001;

b)the reference in paragraph 1 of Schedule 2 to regulation 1(1) of the Cross-Border Insolvency Regulations 2006 (which does not appear to include a reference to Insolvency Rules);

c)“Solicitor’s”, rather than “Solicitors’” in paragraph 2 of Schedule 2;

d)“12.62”, rather than 12.61”, in paragraph 3(3)(a) of Schedule 2;

e)“of” rather than “as” in the heading above paragraph 9 of Schedule 2;

f)“2.12”, rather than “2.132” in paragraph 11 of Schedule 2; and

g)“12.49” rather than “12.59” in paragraph 12(3) of Schedule 2.

2.On the Committee’s first question, the powers in sections 411(2)(b) and 412(2)(b) of the Insolvency Act 1986 enable the making of incidental and supplemental provisions to the Rules. The Act does not limit the exercise of these powers to provisions which amend secondary legislation: unlike current practice where Acts clearly delimit powers to amend primary legislation (if any) from powers to amend secondary legislation. In this case, where there were three references to the Insolvency Rules 1986 in primary legislation, the Department considered that it would be legitimate to make these very small changes under the powers in ss. 411 and 412 as being incidental on the making of the new Rules. The alternative would have been to leave users to rely on section 17(2) of the Interpretation Act 1978 (repeal and re-enactment). This would have been less clear from the perspective of users of the legislation.

3.The Department accepts that all the matters raised in the Committee’s second question are indeed drafting errors and apologises for these. The Department will ensure these errors are corrected and will take steps to ensure its processes for quality control of secondary legislation (which clearly should have prevented these errors) are more rigorously applied.

Department for Business, Energy and Industrial Strategy

21 November 2017

30 November 2017