March 1998

51.04 Practical application to the parent Act

Subordinate legislation takes effect and has authority as if it were part of the enabling (parent) Act, ie it has statutory force. It is a means by which experts in the subject covered by an Act can formulate an authoritative set of measures which allow for practical application of the parent Act. The Insolvency Rules Committee, established by section 10 of the Insolvency Act 1976 and continued by section 413 of the Insolvency Act 1986, is an example of a body of expert knowledge which meets to consider proposals for insolvency rules which have useful, practical effect and implement the provisions of the Insolvency Act 1986. This is done without the need for Parliament itself to consider the detail of a technical matter on which it may not have any specific expertise although either House can ‘pray against’ the rules which have been made (see paragraphs 51.13-51.16).

51.05 Updating/amending legislation

Parliament cannot foresee every eventuality which needs to be covered by a piece of legislation when it is originally enacted. Provided that the authority conferred by the parent Act is sufficient, subordinate legislation can deal with problems, loopholes or necessity for updated information as and when they arise by addressing them in rules, regulations and orders (see 51.32 for transitional provisions). Generally speaking, it is possible to make subordinate legislation more quickly than to enact primary legislation.

51.06 Amendments

(amended August 2012)

Subordinate legislation itself may be withdrawn or amended if it proves impracticable or circumstances change. So the Insolvency Rules 1986 have been amended, and each amendment is a new piece of subordinate legislation described as the Insolvency (Amendment) Rules 19XX or 20XX. For example, the Insolvency (Amendment) Rules 1987 amended rule 4.8 (6) of the 1986 Rules concerning service of a petition to wind up a company. The statement “the petition may be served in such other manner as the court may direct” became “as the court may approve or direct”. From time to time, the original legislation may be consolidated together with any amendments to be produced as a piece of replacement legislation. The Companies Act 1985 (now largely replaced by the Companies Act 2006) was an example of consolidated primary legislation. The Insolvency Regulations 1994 was an example of consolidated subordinate legislation, the regulations have since been amended.

51.07 Avoids duplication

A statutory instrument may be made under several powers rather than several statutory instruments having to be made under the individual powers. For example, the Insolvent Partnerships Order 1994 is made under powers in the Insolvency Act 1986 and those in the Company Directors Disqualification Act 1986 and these powers are cited in the introduction to the instrument. It is not necessary to indicate in the instrument the enabling power under which each of the provisions is made but it is necessary for the powers, either alone or taken together, to be sufficient to enable such provision to be made.

51.08 Provisions in Insolvency Act 1986

For the purposes of the Insolvency Act 1986, the power to make subordinate legislation is outlined in a whole part, Part XV, sections 411 to 422 and incorporating schedules 8 and 9. The Part confers power to make rules and orders including Fees orders and orders relating to specific areas such as the Insolvent Partnerships Order and the Administration of Insolvent Estates of Deceased Persons Order. Schedules 8 and 9 give examples of provisions capable of inclusion in company and bankruptcy insolvency rules but are not exhaustive lists of what may be covered in such rules. For specific application to the insolvency legislation see 51.18-51.26.

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