Hampton Review published on the Insolvency Service - some "room for improvement"
The Hampton Review on the Insolvency Service (The Insolvency Service - A Hampton Implementation Review Report, BIS, July 2009) has been published by the Lord Mandelson's BIS. First, it should be noted that the Hampton reviews are: "...a series of reviews of regulatory bodies focusing on the assessment of regulatory performance against the Hampton principles and Macrory characteristics of effective inspection and enforcement. Aims to encourage best practice and continuous improvement among regulators. It was carried out by a review team drawn from the Better Regulation Executive, the Forestry Commission and Natural England. Published 23 July 2009."
The Hampton Review of the Insolvency Service has concluded that:
"The review team found that the Insolvency Service, while broadly compliant with Hampton in some areas, has room for improvement in other key areas in order to demonstrate full compliance.
Key findings were:
• Stakeholders highly value the role played by the Service in
relation to Insolvency Practitioner (IP) regulation. In
particular, stakeholders praised the close relationship with
the Service in policy consultations.
- The Service uses risk assessment to determine periods of
re-licensing for directly authorised IPs and is beginning to
base the frequency of monitoring visits to Recognised
Professional Bodies (RPBs) on risk. However, the
existence of risk frameworks and the criteria used to
determine periods of re-licensing and frequency of visits
are not transparent to stakeholders.
- The Service’s dual role as regulator of the RPBs and direct
authoriser of individual IPs is a potential barrier to the
efficient regulation of the sector.
- Current mechanisms which require the Service to
effectively reach agreement with the RPBs on new
guidance for IPs can be cumbersome and time consuming.
- The scope of sanctions available to the Insolvency Service
to deal with poor performance of IPs which it regulates
directly is narrow and inconsistent with the range of
sanctions available to the RPBs.
- There is a lack of clarity over the objectives of the Service
in relation to IP regulation and the outcomes for which it
exists to achieve.
Additionally, the review team questions whether the scope of
the review - regulation of insolvency practitioners - fully covers
the extent of the Service's business which should follow the
principles set out by Sir Philip Hampton in his review of
regulation and enforcement in the UK. Regulation of
insolvency practitioners is the only function of the Insolvency
Service covered by the Regulators' Compliance Code, under
the Legislative and Regulatory Reform Act 2006. This
reflects the fact that the Insolvency Service's other functions
relate to the conduct of civil or criminal proceedings which are
exempt under the Act. However, the Hampton principles are
arguably intended to be relevant to all aspects of regulators'
business-facing activities which are underpinned by
legislation. In this context, the Insolvency Service has an
important role to play in relation to the regulation of business.
For example, it is responsible for a wide range of guidance to
business on insolvency and bankruptcy regulation and the
Company Investigations Branch - itself moved into the Service
following a Hampton recommendation - has wide powers
under the Companies Act in relation to investigating
complaints against businesses based on risk assessment and
which can ultimately lead to the Service taking legal action to
seek the disqualification of individuals as company directors."
This is just a snapshot of a long report. It makes essential reading for anyone engaged in the area.
"BPIR is an excellent series, of interest to both corporate and personal insolvency lawyers,...