Serious Crime Bill
Delegated Powers – Supplementary Memorandum by the Home Office
The Government has tabled further amendments to the Serious Crime Bill for Lords
Committee stage; these include new delegated powers. This supplementary
memorandum explains why the powers have been taken and the reason for the
procedure selected. In each case, the new delegated powers replicate for Scotland
existing such powers in Part 1 of the Serious Crime Act 2007 (“the 2007 Act”).
New paragraph to be inserted after paragraph 19 of Schedule 1 – new section
27A(7) of the Serious Crime Act 2007: Power to apply the Insolvency Act 1986
with modifications to the winding up of a relevant body
Power conferred on:
The Treasury or the Scottish Ministers
Power exercisable by:
Order made by statutory
statutory instrument
Parliamentary procedure:
Negative resolution
instrument/Scottish
2.
Schedule 1 to the Bill modifies the provisions in Part 1 of the 2007 Act in
respect of Serious Crime Prevention Orders (“SCPOs”) so as to extend those
provisions to Scotland. Paragraph 19 of Schedule 1 amends section 27 of the 2007
Act, which makes provisions for the winding up of companies, partnerships or
relevant bodies in England and Wales and in Scotland, so as to limit its application to
England and Wales. A Government amendment will insert a new paragraph into
Schedule 1 which will, in turn, insert a new section 27A into the 2007 Act so as to
make bespoke provision for the winding up of companies etc in Scotland.
3.
Section 27 of the 2007 Act allows a relevant applicant authority (the Director
of Public Prosecutions or the Director of the Serious Fraud Office) to present a
petition for the winding up of a company, partnership or relevant body (as defined in
section 27(12)) if that company etc has been convicted of a breach of an SCPO and
the authority considers it to be in the public interest for the company to be wound up.
Section 27(6) allows the Treasury (in relation to a building society, friendly society or
industrial and provident society) or the Secretary of State (in the case of any other
relevant body) to make an order applying the provisions of the Insolvency Act 1986,
with necessary modifications, to the winding up of a relevant body. Section 27(7)
limits the power in subsection (6) by providing that an order made by virtue of that
subsection must only allow a court to wind up a relevant body if the relevant body
has been convicted of an offence under section 25 of the 2007 Act and the court
considers that it is just and equitable for the relevant body to be wound up. Section
28(6) contains identical provision in relation to Northern Ireland. These order-making
powers have not been exercised. New section 27A(7) and (8), inserted by the
amendment, confers identical provisions in relation to Scotland. The power in section
27(6) and 28(6) of the 2007 Act is subject to the negative resolution procedure (by
virtue of section 89(6)) and it is not considered necessary to change that position
insofar as an order relates to the winding up of a relevant body for breach of an
SCPO in Scotland.
New paragraph to be inserted after paragraph 19 of Schedule 1 – new section
27A(12) of the 2007 Act: Power to add list of relevant bodies
Power conferred on:
Scottish Ministers
Power exercisable by:
Order made by Scottish statutory instrument
Parliamentary procedure:
Negative resolution
4.
Section 27 of the 2007 Act allows a relevant applicant authority (the Director
of Public Prosecutions or the Director of the Serious Fraud Office) to present a
petition for the winding up of a company, partnership or relevant body if that
company etc has been convicted of a breach of an SCPO and the authority
considers it to be in the public interest for the company to be wound up. The term
“relevant body” is defined in section 27(11). Paragraphs (a) to (d) of the definition list
a number of specific bodies. Paragraph (e) allows the Secretary of State to add other
bodies to the list of relevant bodies. This allows the Secretary of State to provide for
the winding up of bodies that he or she considers ought to be capable of being
wound up under these provisions. Section 28(11) provides a corresponding power to
allow the Northern Ireland Department of Justice to add to the list of Northern Ireland
relevant bodies. New section 27A(12), inserted by the amendment, confers an
identical provision in relation to Scotland. The power in section 27(12) and 28(11) of
the 2007 Act is subject to the negative resolution procedure (by virtue of section
89(6)) and it is not considered necessary to change that position insofar as an order
relates to the definition of a relevant body in Scotland.
New paragraph to be inserted after paragraph 19 of Schedule 1 – new section
29(1ZA) and (3ZA) of the Serious Crime Act 2007: Power to make further
modifications to the Insolvency Act 1986 in its application to the winding up of
a company under section 27A
Power conferred on:
The Scottish Ministers
Power exercisable by:
Order made by Scottish statutory instrument
Parliamentary procedure:
Negative resolution
5.
Section 27 of the 2007 Act allows a relevant applicant authority (the Director
of Public Prosecutions or the Director of the Serious Fraud Office) to present a
petition for the winding up of a company, partnership or relevant body (as defined in
section 27(12)) if that company etc has been convicted of a breach of an SCPO and
the authority considers it to be in the public interest for the company to be wound up.
6.
New section 27A makes similar provision for the Scottish Ministers to petition
a court for the winding up of a company or relevant body. New section 27A(2)
applies the provisions of the Insolvency Act 1986 to such petitions and the winding
up of a company registered under the Companies Act 2006 in Scotland as it applies
to a petition under section 124A of the Insolvency Act 1986.
7.
Section 29 of the 2007 Act makes supplementary provision for the winding up
of companies under sections 27 and 28 of that Act. Section 29 contains two ordermaking powers. The first power in section 29(1) enables the Secretary of State to
make an order making such modifications as he considers appropriate to the
application of the Insolvency Act 1986, or as the case maybe, the Insolvency
(Northern Ireland) Order 1989, by virtue of sections 27(2) and 28(2). Those sections
already make some modifications to the application of that Act or Order but this
power allows the Secretary of State to make any further modifications that may be
needed. The second power in section 29(3) enables the Secretary of State to make
an order to apply, with any necessary modifications, any other enactment in
connection with the provisions in section 27(2) to (4) and 28(2) to (4).
8.
Section 29(4) enables the Secretary of State to make supplementary and
consequential application of enactments in connection with the exercise of the ordermaking powers in sections 27(5) and 28(5) (winding up of partnerships), 27(6) and
28(6) (winding up of a relevant body) and section 29(1) (winding up of a company).
9.
New section 29(1ZA) and (3ZA), and section 29(4) as amended, confer
similar order-making powers on the Scottish Ministers to those in section 29(1), (3)
and (4). The powers in section 29(1) and (3) of the 2007 Act are subject to the
negative resolution procedure (see section 89(6) of the 2007 Act) and it is not
considered necessary to change that position in respect of the new powers in section
29(1ZA) and (3ZA) (see the amendment to paragraph 27(b) of Schedule 1 to the Bill
which, in turn, amends new section 89(6B) of the 2007 Act).
Home Office
2 July 2014