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Explanatory Note Template for Word 8 These notes refer to the Co-operative and Community Benefit Societies and Credit Unions Bill as introduced in the House of Commons on 21 January 2009 [Bill 14] CO-OPERATIVE AND COMMUNITY BENEFIT SOCIETIES AND CREDIT UNIONS BILL EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Co-operative and Community Benefit Societies and Credit Unions Bill, as introduced in the House of Commons on 21 January 2009. They have been prepared by HM Treasury, with the consent of Malcolm Wicks MP, the Member sponsoring the Bill, in order to assist the reader of the Bill and to help inform debate on it. 2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. TERRITORIAL EXTENT AND APPLICATION 3. The Bill extends to Great Britain only, with a power to extend certain provisions by Order in Council to the Channel Islands. HM Treasury have sought the consent of the authorities in the Channel Islands to the extension provision and final confirmation of the position is awaited. 4. There are no devolution issues affecting the Scottish Executive because the Bill covers matters reserved to Westminster under the Scotland Act 1998. 5. Industrial and provident societies in Northern Ireland are governed by their own legislation and the Bill does not extend to Northern Ireland. However, the Bill does contain a power to make consequential amendments to enactments, including those that extend to Northern Ireland. Bill 14─EN 54/4 1 These notes refer to the Co-operative and Community Benefit Societies and Credit Unions Bill as introduced in the House of Commons on 21 January 2009 [Bill 14] SUMMARY AND BACKGROUND 6. The Bill was introduced by Malcolm Wicks MP as a Private Member’s Bill on 21 January 2009. The clauses were prepared by the Government on Mr Wicks’ behalf. 7. The purpose of the Bill is to introduce certain reforms to the law of industrial and provident societies. 8. Industrial and provident societies are mutual societies. The main statute on industrial and provident societies is the Industrial and Provident Societies Act 1965 (the “1965 Act”). There are also a number of other Acts relevant to industrial and provident societies (together with the 1965 Act, the “Industrial and Provident Societies Acts”)1. 9. The reforms introduced by the Bill are: to require new industrial and provident societies (other than credit unions) to be registered as co-operative or community benefit societies; to re-name the Industrial and Provident Societies Acts; to apply the Company Directors Disqualification Act 1986 to industrial and provident societies; to give the Treasury powers to apply to industrial and provident societies, with appropriate modifications, company law on investigation of companies, company names and dissolution and restoration to the register; and to give the Treasury powers to make provisions for credit unions corresponding to any provisions applying to building societies. 10. A number of these reforms were consulted upon in a public consultation “Review of the GB cooperative and credit union legislation”, carried out by the Government from 21 June to 12 September 2007. The proposals received the support of the sector. The consultation, together with a summary of responses and the Government’s response, are published on HM Treasury’s website (www.hm- treasury.gov.uk). 1 The Acts are the Industrial and Provident Societies Acts 1965, 1967, 1975, 1978 and 2002; the Friendly and Industrial and Provident Societies Act 1968, and the Co-operatives and Community Benefit Societies Act 2003. 2 These notes refer to the Co-operative and Community Benefit Societies and Credit Unions Bill as introduced in the House of Commons on 21 January 2009 [Bill 14] 11. The Bill will introduce certain changes that will lead to the replacement of the expression “industrial and provident society” with the expression “co-operative society” in various parts of the statute book. The reason for this change is that the expression “industrial and provident society” is now widely perceived as old- fashioned whilst the expression “co-operative society” is more modern and more widely used. 12. At present, there is no statutory requirement for an industrial and provident society to register with the FSA (which is the registrar of such societies.) The 1965 Act states that societies “may” be registered. It should be noted that there is to be no change to the provisions governing registration of credit unions. The Bill will amend the 1965 Act so that new societies will be required to register as either a co-operative society or a community benefit society. The 1965 Act gives only limited recognition to the concepts of “co-operative society” and “community benefit society”, which together with credit unions are now commonly used to describe relevant descriptions of societies. 13. To reflect the new requirement to register as co-operative or community benefit societies, the Bill will change the name of the Industrial and Provident Societies Acts. The terms “co-operative and community benefit societies”, and where appropriate “credit unions”, will appear in the short titles of those Acts. 14. The Company Directors Disqualification Act 1986 provides for the disqualification of officers of companies and various other bodies when such officers have seriously mismanaged those bodies. Disqualification means being prohibited for a period of time from being a director or otherwise being involved in the management of a company or other body or from acting as an insolvency practitioner. 15. The Company Directors Disqualification Act 1986 does not currently apply to industrial and provident societies, although it applies to other mutuals, such as building societies and friendly societies, and to Northern Ireland industrial and provident societies. 16. The Bill will amend the Company Directors Disqualification Act 1986 to apply it to industrial and provident societies. The aim of this is to bring this aspect of the corporate governance of industrial and provident societies in line with companies and other mutual societies. 17. The Bill gives the Treasury powers to apply Parts 14 and 15 of the Companies Act 1985 and Parts 5 and 31 of the Companies Act 2006 to industrial and provident societies, with appropriate modifications. Those Parts concern investigations, company names, and dissolution and restoration to the register. The general aim of the application to industrial and provident societies of this company legislation is to modernise some aspects of the law of industrial and provident societies by bringing it in line with company law. This approach will enable the Treasury to consult 3 These notes refer to the Co-operative and Community Benefit Societies and Credit Unions Bill as introduced in the House of Commons on 21 January 2009 [Bill 14] industrial and provident societies and other interested parties on the detailed regulations that are likely to be required before making any substantive changes to the legislation. 18. The Bill gives the Treasury the power to apply to credit unions any enactment applying to building societies. This would allow changes to be made to bring credit union law in line with building society law on specific issues. A number of provisions of the Building Societies Act 1986 deal with issues specific to institutions which accept deposits and could be relevant to credit unions. These include requirements to provide a summary financial statement to members and depositors, audit and accounts requirements, rules on electronic voting, issues relating to directors and governance matters and duty to disclose interests, ownership of subsidiaries and prohibition on floating charges and restrictions on dealing in derivatives and certain other financial instruments. COMMENTARY ON CLAUSES Clause 1: Registration of societies as co-operative or community benefit societies 19. Subsection (1) replaces section 1 of the 1965 Act with revised provisions requiring all new societies registered under the Act, other than credit unions, to be registered by the Financial Services Authority (FSA) as co-operatives or community benefit societies. The FSA is the registrar for industrial and provident societies. Subsection (1) also sets out the basis on which societies may be registered, re- enacting the existing subsection (1). 20. Subsection (2) inserts into the 1965 Act a new section 4A, which deals with the treatment of those societies registered, or treated as registered, under the “old” section 1 of the 1965 Act (section 1 as it stands at present). These societies did not have to register as a particular type of society. 21. Subsections (3) and (4) amend section 16 of the 1965 Act, which deals with circumstances in which a society’s registration may be cancelled, so that it will reflect the registration provisions inserted into the 1965 Act by subsection (1). Subsection (4) inserts into Section 16 of the Act a new subsection (1A), permitting the FSA, as registrar, to cancel the registration of a society where it does not meet the statutory definitions set out in new section 1(2) and new 1(3) to be inserted by subsection (1). Again the status of societies registered, or treated as registered, under the “old” section 1 of the 1965 Act is dealt with, at new section 16(1A)(c). Pre-2009 Act societies are not to be affected by the definitions of “co-operative society” or “community benefit society” inserted by subsection (1) of this Bill. 4 These notes refer to the Co-operative and Community Benefit Societies and Credit Unions Bill as introduced in the House of Commons on 21 January 2009 [Bill 14] 22. Subsection (5) makes an additional amendment to the 1965 Act, ensuring that the definition of a “pre-2009 Act” society” reflects that inserted into the Act by clause 1(2).
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