Deregulation Act 2015 and Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) (Savings) Regulations 2017 — House of Lords, 2017-03-30
Topic: Domestic Commerce
Peta Buscombe (Conservative, Centre-right): My Lords, I hope I have the right speech. If I may, I will take a few moments of your Lordships’ time to set these regulations into context. They make consequential amendments and savings provisions to legislation that refers to the Insolvency Act 1986—as it will be amended by the Deregulation Act 2015 and the Small Business, Enterprise and Employment Act 2015 on 6 April 2017—and to the Insolvency Rules 1986, which have been repealed by the Insolvency (England and Wales) Rules 2016. These amendments will come into force on 6 April 2017 The insolvency reforms will initially be adopted by the mainstream insolvency processes and it is anticipated that departments responsible for special insolvency regimes will update their legislation in due course Regulation 4 is a savings provision. It provides that the Insolvency Act will not be amended and will continue to apply as it does now for certain purposes or certain insolvency regimes. This provision will ensure that these other insolvency regimes remain operational in the interim period These regulations make amendments to various pieces of primary and secondary legislation. The most significant changes by volume update the Administration of Insolvent Estates of Deceased Persons Order 1986, which is the procedural framework that deals with the administration of the insolvent estates of deceased debtors, and the Insolvent Partnerships Order 1994, which deals with insolvent partnerships Over the last two years, the Government have introduced a series of reforms to modernise and streamline the insolvency process. They have achieved this through the Deregulation Act 2015, the Small Business, Enterprise and Employment Act 2015 and the new Insolvency (England and Wales) Rules 2016. The policy impetus for these measures was to remove unnecessary burdens and enable greater use of technology to reduce the cost of administering insolvency proceedings. It was part of the Government’s Red Tape Challenge, which asked stakeholders for views on how unnecessary regulation could be reduced and how procedures could be modernised, simplified and made more efficient. The responses produced a package of measures aimed at reducing costs and improving returns to creditors. The changes, which commence in April 2017, will deliver a net benefit to business of £22 million per year The key policy changes to which these consequential amendments apply include, first, changes to the way in which decisions are made; secondly, the abolition of final meetings; thirdly, the ability for creditors to opt out of receiving correspondence; fourthly, measures to increase the use of electronic communication and websites; and, fifthly, the removal of a requirement to formally file claims for small debts With regard to changing the way in which decisions are made, in the past, to begin some insolvency proceedings and make decisions in all insolvency proceedings the officeholder was required to call a physical meeting of the creditors of the insolvent person. Feedback from stakeholders was that this process was more expensive and cumbersome than was really necessary. In response to that feedback, changes have been made to the way in which officeholders will engage with and seek decisions from creditors. Physical meetings will no longer be the default mechanism for making decisions in insolvency proceedings. In fact, an officeholder will not be allowed to hold a physical meeting unless 10% in value of the creditors, 10% of the creditors in number or 10 individual creditors request that a meeting is held. This puts control back into the hands of creditors, and it is anticipated that this move alone will result in savings of more than £6 million per year. In many cases, an officeholder will be able to use a process of "deemed consent", where they write to creditors with a proposal and, provided they do not receive objections from more than 10% in value of creditors, the proposal will be deemed to have been approved. Alternatively, officeholders can use an online virtual meeting, a telephone meeting or an electronic voting system, or seek decisions by way of correspondence With regard to the abolition of final meetings, currently an officeholder must hold a face-to-face meeting with creditors in order to lay his or her final report on the outcome of the case. These meetings were in fact rarely attended by creditors. Going forward, the officeholder will simply send a final account of the case to creditors, but this will not reduce the creditors’ rights to challenge any actions of the officeholder With regard to opting out of correspondence, previously in insolvency proceedings the officeholder was required to send all notices, all reports and all other documents and communications required by legislation to all known creditors, even where a creditor did not want to receive such information. It is inefficient for an officeholder to have to send such documents where they are not wanted. Under the new regime, creditors with no further interest in an insolvency process will be able to opt out of receiving further routine correspondence and reports from the officeholder. This will not include correspondence about the payment of a dividend, as the officeholder will still have to notify all creditors if a dividend is proposed With regard to the increased use of electronic communication, where, before the commencement of insolvency proceedings, parties have customarily corresponded electronically with one another, it is government policy that this should be allowed to continue without onerous regulatory burdens as to the means of communication. The reforms remove the need for the officeholder to obtain permission from each creditor to communicate electronically after the commencement of the insolvency proceedings. This will encourage e-communication, which is generally cheaper and speedier than traditional post. With regard to the use of websites, under the current rules an officeholder must obtain a court order if he or she wants to put all future communications with creditors on a website. This considerably restricts the use of technology. The requirement for a court order has therefore been removed With regard to no need to formally file claims for small debts, where a creditor is owed up to £1,000, new provisions will allow an officeholder to rely on information contained in a company’s or bankrupt’s records and to pay a dividend without the need for the creditor to submit a formal claim It is fair to say that as business practice has developed, particularly through new technologies, corresponding changes to insolvency law have been slow to follow. Users have not always been able to take advantage of the quickest, most cost-effective or most convenient methods of engaging with the insolvency process. The changes coming into force on 6 April modernise the insolvency process by encouraging the use of electronic communication and decision-making processes fit for the 21st century. These changes will increase creditor engagement through more convenient methods of interaction, as well as reducing the costs of seeking decisions. In particular, amendments enabling modern methods of communication and decision-making to be used in place of paper communications and physical meetings will be introduced. This will increase creditors’ engagement in insolvency cases by encouraging the use of decision-making processes fit for the 21st century The insolvency reforms have been informed by extensive consultation and engagement with a range of parties affected by insolvency, including the insolvency profession, creditor representatives, insolvency regulators and public bodies. I hope that gives a full explanation of these regulations and I commend them to the House. I beg to move.