Corporate Insolvency and Governance Bill (HC Bill 128)
Contents page 1-16 17-19 20-37 38-39 40-49 50-59 60-69 70-79 80-89 90-99 100-109 110-119 120-129 130-139 140-149 150-169 169-170 170-179 180-189 190-199 Last page
Corporate Insolvency and Governance BillPage 90
(4) For the purposes of this section —
(a) "regulations that are subject to the affirmative resolution procedure"
means regulations that may not be made unless a draft of the statutory
instrument containing them has been laid before and approved by a
5resolution of Senedd Cymru;
(b) "regulations that are subject to the negative resolution procedure"
means regulations contained in a statutory instrument that is subject to
annulment in pursuance of a resolution of Senedd Cymru.
43 Modified procedure for regulations of the Scottish Ministers
(1) 10During the period of six months beginning with the day on which this section
comes into force, any relevant provision that may be made by the Scottish
Ministers by regulations that are subject to the affirmative procedure may be
made by regulations that are subject to the negative procedure (see sections 28
and 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp
1510)).
(2) In subsection (1) "relevant provision" means—
(a) provision under section A49(3) of the Insolvency Act 1986 (power to
modify moratorium provisions in relation to certain companies);
(b) provision under paragraph 22 of Schedule ZA1 to the Insolvency Act
201986 (exclusion of registered social landlords from eligibility under Part
A1 of that Act).
44 Power to make consequential provision
(1) The Secretary of State or the Treasury may by regulations make provision that
25is consequential on this Act.
(2) The power in subsection (1) may, in particular, be used to amend, repeal,
revoke or otherwise modify any provision of this Act or any provision made
by or under primary legislation passed or made—
(a) before this Act, or
(b) 30later in the same session of Parliament as this Act.
(3) But the power to amend or repeal any provision made by this Act may not be
used after the period of 3 years beginning with the day on which it is passed.
(4) Regulations under this section—
(a) may make different provision for different purposes;
(b) 35may include transitional or transitory provision or savings.
(5) Regulations under this section are to be made by statutory instrument.
(6) A statutory instrument containing regulations under this section that amend or
repeal provision made by primary legislation (whether alone or with other
provision) may not be made unless a draft of the instrument has been laid
40before and approved by a resolution of each House of Parliament.
(7) Any other statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
Parliament.
(8) In this section "primary legislation" means—
(a) an Act,
(b) an Act or Measure of Senedd Cymru,
(c) an Act of the Scottish Parliament, or
(d) 5Northern Ireland legislation.
45 Extent
(1) An amendment, repeal or revocation made by this Act has the same extent
within the United Kingdom as the provision amended, repealed or revoked.
(2) The following provisions extend to England and Wales and Scotland only—
(a) 10section 3 and Parts 1 and 2 of Schedule 4;
(b) section 8 and Schedule 10;
(c) section 10;
(d) section 13;
(e) sections 18 to 22;
(f) 15section 39.
(3) The following provisions extend to England and Wales only—
(a) section 42;
(b) Part 3 of Schedule 4
(4) The following provisions extend to Scotland only—
(a) 20section 43;
(b) Part 4 of Schedule 4.
(5) The following provisions extend to Northern Ireland only—
(a) section 6 and Schedule 8;
(c) 25section 11;
(f) section 40.
(6) Subject to the above, this Act extends to England and Wales, Scotland and
30Northern Ireland.
46 Commencement
(1) This Act comes into force on the day after that on which it is passed, subject to
(2) Paragraph 51 of Schedule 3 comes into force on such day as the Secretary of
35State may by regulations appoint.
(3) Different days may be appointed for different purposes.
(4) The Secretary of State may by regulations make transitional or saving
provision in connection with the coming into force of any provision of this Act.
(5) The power to make regulations under subsection (4) includes power to make
40different provision for different purposes.
47 Short title
This Act may be cited as the Corporate Insolvency and Governance Act 2020.
Section 1(2)
SCHEDULE 1 Moratoriums in Great Britain: eligible companies
In the Insolvency Act 1986, before Schedule A1 (which is repealed by
5Schedule 3 to this Act) insert—
Section A2
""Schedule ZA1 Moratorium: Eligible companies
Eligible companies
1 A company is "eligible" for the purposes of this Part unless it is
excluded from being eligible by any of the following—
10paragraph 2 (current or recent insolvency procedure);
paragraph 3 (insurance companies);
paragraph 4 (banks);
paragraph 5 (electronic money institutions);
paragraph 6 (investment banks and investment firms);
15paragraph 7 (market contracts, market charges, etc);
paragraph 8 (participants in designated systems);
paragraph 9 (payment institutions);
paragraph 10 (operators of payment systems, infrastructure
providers etc);
20paragraph 11 (recognised investment exchanges, clearing
houses and CSDs);
paragraph 12 (securitisation companies);
paragraph 13 (parties to capital market arrangements);
paragraph 15 (public-private partnership project companies);
25paragraph 18 (certain overseas companies).
Companies subject to, or recently subject to, moratorium or an insolvency procedure
2 (1) A company is excluded from being eligible if—
(a) on the filing date, a moratorium for the company is in
force, or
(b) 30at any time during the period of 12 months ending with the
filing date, a moratorium for the company was in force
(but see section A42(6) for power of the court to modify the
effect of this paragraph).
(2) A company is excluded from being eligible if—
(a) on the filing date, the company is subject to an insolvency
procedure, or
(b) at any time during the period of 12 months ending with the
filing date, the company was subject to an insolvency
5procedure within sub-paragraph (3)(a) or (b).
(3) For the purposes of sub-paragraph (2), a company is subject to an
insolvency procedure at any time if at that time—
(a) a voluntary arrangement has effect in relation to the
company,
(b) 10the company is in administration,
(c) paragraph 44 of Schedule B1 applies in relation to the
company (administration: interim moratorium),
(d) there is an administrative receiver of the company,
(e) there is a provisional liquidator of the company,
(f) 15the company is being wound up, or
(g) a relevant petition for the winding up of the company has
been presented and has not been withdrawn or
determined.
(4) In sub-paragraph (3)(g) "relevant petition" means a petition
20under—
(a) section 124A (winding up on grounds of public interest),
(b) section 124B (winding up of SE), or
(c) section 124C (winding up of SCE).
3 (1) 25A company is excluded from being eligible if—
(a) it carries on the regulated activity of effecting or carrying
out contracts of insurance, and
(b) it is not an exempt person in relation to that activity.
(2) In this paragraph—
30"exempt person", in relation to a regulated activity, has the
meaning given by section 417 of the Financial Services and
Markets Act 2000;
"regulated activity" has the meaning given by section 22 of
that Act, taken with Schedule 2 to that Act and any order
35under that section.
(a) it has permission under Part 4A of the Financial Services
and Markets Act 2000 to carry on the regulated activity of
40accepting deposits,
(b) it is a banking group company within the meaning of Part
1 of the Banking Act 2009 (see section 81D of that Act), or
(c) it has a liability in respect of a deposit which it accepted in
accordance with the Banking Act 1979 or the Banking Act
(2) In sub-paragraph (1)(a) "regulated activity" has the meaning
given by section 22 of the Financial Services and Markets Act 2000,
taken with Schedule 2 to that Act and any order under that section.
5 5A company is excluded from being eligible if it is an electronic
money institution within the meaning of the Electronic Money
Regulations 2011 (S.I. 2011/99S.I. 2011/99) (see regulation 2 of those
Regulations).
Investment banks and investment firms
6 (1) 10A company is excluded from being eligible if it is an investment
bank or an investment firm.
"investment bank" means a company that has permission
under Part 4A of the Financial Services and Markets Act
152000 to carry on the regulated activity of—
safeguarding and administering investments,
managing an AIF or a UCITS,
acting as trustee or depositary of an AIF or a UCITS,
dealing in investments as principal, or
20dealing in investments as agent,
but does not include a company that has permission to
arrange for one or more others to carry on the activity
mentioned in paragraph (a) if it does not otherwise have
permission to carry on any of the activities mentioned in
25paragraphs (a) to (e);
"investment firm" has the same meaning as in the Banking
Act 2009 (see section 258A of that Act), disregarding any
order made under section 258A(2)(b) of that Act;
30the Financial Services and Markets Act 2000, taken with
Schedule 2 to that Act and any order under that section.
Companies that are party to market contracts or subject to market charges, etc
7 (1) A company is excluded from being eligible if it is a party to a
market contract for the purposes of Part 7 of the Companies Act
351989 (see section 155 of that Act).
(2) A company is excluded from being eligible if any of its property is
subject to a market charge for the purposes of Part 7 of the
Companies Act 1989 (see section 173 of that Act).
40subject to a charge that is a system-charge, within the meaning of
the Financial Markets and Insolvency Regulations 1996 (S.I. 1996/
1469) (see regulation 2 of those Regulations).
Participants in designated systems
8 A company is excluded from being eligible if—
(a) it is a participant in a designated system, within the
meaning of the Financial Markets and Insolvency
(Settlement Finality) Regulations 1999 (S.I. 1999/2979S.I. 1999/2979) (see
regulation 2 of those Regulations), or
(b) 5any of its property is subject to a collateral security charge
within the meaning of those Regulations (see regulation 2
of those Regulations).
9 A company is excluded from being eligible if it is an authorised
10payment institution, a small payment institution or a registered
account information service provider within the meaning of the
Payment Services Regulations 2017 (S.I. 2017/752S.I. 2017/752) (see regulation
2 of those Regulations).
Operators of payment systems, infrastructure providers etc
10 15A company is excluded from being eligible if—
(a) it is the operator of a payment system or an infrastructure
provider within the meaning of Part 5 of the Financial
Services (Banking Reform) Act 2013 (see section 42 of that
Act), or
(b) 20it is an infrastructure company, within the meaning of Part
6 of that Act (see section 112 of that Act).
Recognised investment exchanges, clearing houses and CSDs
11 A company is excluded from being eligible if it is a recognised
investment exchange, a recognised clearing house or a recognised
25CSD within the meaning of the Financial Services and Markets Act
2000 (see section 285 of that Act).
Securitisation companies
12 A company is excluded from being eligible if it is a securitisation
company within the meaning of the Taxation of Securitisation
30Companies Regulations 2006 (S.I. 2006/3296S.I. 2006/3296) (see regulation 4 of
those Regulations).
Parties to capital market arrangements
13 (1) A company is excluded from being eligible if, on the filing date—
(a) it is a party to an agreement which is or forms part of a
35capital market arrangement (see sub-paragraph (2)),
(b) a party has incurred, or when the agreement was entered
into was expected to incur, a debt of at least £10 million
under the arrangement (at any time during the life of the
capital market arrangement), and
(c) 40the arrangement involves the issue of a capital market
investment (see paragraph 14).
(2) For the purposes of this paragraph, an arrangement is a "capital
market arrangement" if any of the following applies—
(a) it involves a grant of security to a person holding it as
trustee for a person who holds a capital market investment
issued by a party to the arrangement;
(b) at least one party guarantees the performance of
5obligations of another party;
(c) at least one party provides security in respect of the
performance of obligations of another party;
(d) the arrangement involves an investment of a kind
described in articles 83 to 85 of the Financial Services and
10Markets Act 2000 (Regulated Activities) Order 2001
(S.I. 2001/544S.I. 2001/544) (options, futures and contracts for
differences).
(3) For the purposes of sub-paragraph (2)—
(a) a reference to holding a security as trustee includes a
15reference to holding it as nominee or agent,
(b) a reference to holding for a person who holds a capital
market investment includes a reference to holding for a
number of persons at least one of whom holds a capital
market investment, and
(c) 20a reference to holding a capital market investment is to
holding a legal or beneficial interest in it.
(4) For the purposes of sub-paragraph (1)(b), where a debt is
denominated wholly or partly in a foreign currency, the sterling
equivalent is to be calculated as at the time when the arrangement
25is entered into.
14 (1) For the purposes of paragraph 13 an investment is a "capital
market investment" if condition A or B is met.
(2) Condition A is that the investment—
(a) is within article 77 or 77A of the Financial Services and
(S.I. 2001/544S.I. 2001/544) (debt instruments), and
(b) is rated, listed or traded or designed to be rated, listed or
traded.
(3) In sub-paragraph (2)—
35"listed" means admitted to the official list within the meaning
given by section 103(1) of the Financial Services and
Markets Act 2000 (interpretation);
"rated" means rated for the purposes of investment by an
internationally recognised rating agency;
40"traded" means admitted to trading on a market established
under the rules of a recognised investment exchange or on
a foreign market.
"foreign market" has the same meaning as "relevant market"
45in article 67(2) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 (S.I. 2005/1529S.I. 2005/1529)
(foreign markets);
"recognised investment exchange" has the meaning given by
section 285 of the Financial Services and Markets Act 2000
(recognised investment exchange).
(5) Condition B is that the investment consists of a bond or
5commercial paper issued to one or more of the following—
(a) an investment professional within the meaning of article
19(5) of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (S.I. 2005/1529S.I. 2005/1529);
(b) a person who, when the agreement mentioned in
10paragraph 13(1) is entered into, is a certified high net
worth individual in relation to a communication within
the meaning of article 48(2) of that Order;
(c) a person to whom article 49(2) of that Order applies (high
net worth company, etc);
(d) 15a person who, when the agreement mentioned in
paragraph 13(1) is entered into, is a certified sophisticated
investor in relation to a communication within the
meaning of article 50(1) of that Order;
(e) a person in a State other than the United Kingdom who
20under the law of that State is not prohibited from investing
in bonds or commercial paper.
(a) in applying article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005—
(i) 25in article 19(5)(b), ignore the words after "exempt
person",
(ii) in article 19(5)(c)(i), for the words from "the
controlled activity" to the end substitute "a
controlled activity", and
(iii) 30in article 19(5)(e), ignore the words from "where
the communication" to the end;
(b) in applying article 49(2) of that Order, ignore article
49(2)(e);
(c) "bond" means—
(i) 35a bond that is within article 77(1) of the Financial
Services and Markets Act 2000 (Regulated
Activities) Order 2001, or
(ii) an alternative finance investment bond within the
meaning of article 77A of that Order;
(d) 40"commercial paper" has the meaning given by article 9(3)
of that Order.
Public-private partnership project companies
15 (1) A company is excluded from being eligible if, on the filing date, it
is a project company of a project which—
(a) 45is a public-private partnership project (see paragraph 16),
(b) includes step-in rights (see paragraph 17).
(2) For the purposes of this paragraph a company is a "project
company" of a project if any of the following applies—
(a) it holds property for the purpose of the project;
(b) it has sole or principal responsibility under an agreement
5for carrying out all or part of the project;
(c) it is one of a number of companies which together carry
out the project;
(d) it has the purpose of supplying finance to enable the
project to be carried out;
(e) 10it is the holding company of a company within any of
paragraphs (a) to (d).
(3) But a company is not a "project company" of a project if—
(a) it performs a function within sub-paragraph (2)(a) to (d) or
is within sub-paragraph (2)(e), but
(b) 15it also performs a function which is not—
(i) within sub-paragraph (2)(a) to (d),
(ii) related to a function within sub-paragraph (2)(a) to
(d), or
(iii) related to the project.
(4) 20For the purposes of this paragraph a company carries out all or
part of a project whether or not it acts wholly or partly through
agents.
16 (1) For the purposes of paragraph 15 "public-private partnership
project" means a project—
(a) 25the resources for which are provided partly by one or more
public bodies and partly by one or more private persons,
(b) which is designed wholly or mainly for the purpose of
assisting a public body to discharge a function.
(2) 30In sub-paragraph (1) "public body" means—
(a) a body which exercises public functions,
(b) a body specified for the purposes of this paragraph by the
Secretary of State, or
(c) a body within a class specified for the purposes of this
35paragraph by the Secretary of State.
(3) In sub-paragraph (1)(a) "resources" includes—
(a) funds (including payment for the provision of services or
facilities);
(b) assets;
(c) 40professional skill;
(d) the grant of a concession or franchise;
(e) any other commercial resource.
(4) A specification under sub-paragraph (2) may be—
(a) general, or
(b) 45for the purpose of the application of paragraph 15 to a
specified case.