Trust and transparency. Small Business, Enterprise and Employment Bill: Trust and transparency

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1 Small Business, Enterprise and Employment Bill: 1

2 Government proposals to increase transparency of ownership and control of UK businesses came a step closer on 25 June 2014 with the publication of the Small Business, Enterprise and Employment Bill. The Bill potentially makes the most far-reaching changes to company compliance since the Companies Act 2006 but the transparency requirements will add a significant amount of new, complex regulation for companies to cope with in an already challenging economic climate. The transparency proposals are intended to make it more difficult for UK incorporated businesses to be used as a cover for criminal activities, terrorist financing and tax evasion. However, there are concerns that the new measures attack individuals rights of privacy in their business dealings, will unduly increase the burden and cost of compliance for law-abiding businesses, thus making the UK an unattractive place for legitimate businesses to set up, and ultimately will be ineffective against those who are determined to use companies for illicit activities. Part 7 of the Bill focuses on certain situations where the identity of the persons who actually own or control a business may be hidden: 1. Where the person who is registered in the statutory registers and on the public file as a member of a company is acting on behalf of someone else. To address this concern, the Government is introducing a new statutory register to be known as the register of people with significant control or PSC register. 2. Where the shares of a company are held in the form of share warrants to bearer. The Bill includes measures to prohibit the issue of new share warrants and to require to conversion of existing warrants into registered shares. 3. Where a director of a company is another company. Use of corporate directors will be prohibited except in certain defined situations. 4. Where directors of a company exercise their powers on the instructions of someone else (known as a shadow director ). Here the Bill proposes to extend the directors general duties to shadow directors. The proposals will take the form of amendments to the Companies Act 2006 to deal with each of the above. Supporting provisions will be brought in under separate statutory instruments. The Government hopes that the Bill will complete its passage through Parliament by March Some of the new requirements will come into force as soon as the Bill becomes law. However, some depend on the development of new Companies House systems, and government consultations are still ongoing on a number of other aspects of the Bill. It is therefore anticipated that the provisions of Part 7 will be implemented in stages over a period of at least two to three years. Helen Goose Corporate Law Manager +44 (0) Jordans Corporate Law Limited 3

3 So how will these changes affect UK businesses? Register of People with Significant Control The Bill proposes a new Part 21A of the Companies Act 2006 under which a company will be obliged to investigate and obtain information on persons (individuals and legal entities) that: (a) hold, directly or indirectly, more than 25% of the shares (in nominal value) in that company; or (b) in the case of a company not having a share capital, hold a right or rights to share in more than 25% of the capital or profits of that company; or (c) are entitled to exercise, directly or indirectly, or to control the exercise of, more than 25% of the voting rights in that company; or (d) are entitled, directly or indirectly, to appoint or remove, or to control the right to appoint or remove, a majority of the board of directors; or (e) have the right to exercise, or actually exercise, significant influence or control over the company; or (f) in the case of shares held by trustees of a trust or by members of a partnership, have the right to exercise, or actually exercise, significant influence or control over that trust or firm. This means that a settlor, beneficiary or protector may need to be registered, if they exercise significant influence or control over the trust s activities. The Part 21A obligations will apply to all types of companies, including companies limited by guarantee and unlimited companies, but with the exception of companies which disclose information about ownership of shares under Chapter 5 of the FCA s Disclosure and Transparency Rules ( DTR5 Issuers ). The Secretary of State will be given power to make regulations excluding other categories of company, these are likely to include companies whose securities are listed on a regulated market with equivalent disclosure requirements. Overseas companies that have registered a UK establishment will not be subject to Part 21A. If the person with significant control is a company or other legal entity which is itself subject to, or exempted from, the Part 21A obligations, no further investigation will be required. The information to be collected about registrable persons will be their full name, date of birth, nationality, country or state of usual residence, home address, service address, date on which the individual acquired the relevant interest and details of that interest and how it is held. The company will have power to request information from any person it knows or has reasonable cause to believe is a registrable person or relevant legal entity. It will also be allowed to request information from any person who the company believes knows the identity of a registrable person or relevant legal entity. Part 21A also requires a registrable person to notify the company whenever he obtains a relevant interest or there is a change in such interest requiring amendment of the PSC register. Interestingly, there is no obligation on the registered member of the company to make any disclosures, except in response to a direct request from the company. Failure to respond to a request from a company or to notify the company of the acquisition of, or change in, a relevant interest or who knowingly or recklessly gives false information will be a criminal offence. In addition, it is proposed that a company will be able to enforce a request for information by suspension of the voting, dividend, capital and transfer rights attached to the relevant shares or interest, subject to compliance with certain detailed procedures set out in new Schedule 1B of the Companies Act The information that is collected must be recorded in the PSC register. The register must be kept at the company s registered office or other permitted inspection location and will be open to public inspection with the exception of details of home addresses. Part 21A will also require this information to be filed with Companies House. Note that, in line with other proposals contained in the Bill, private companies will have the choice of maintaining their PSC register directly at Companies House instead of keeping their own PSC register. Part 21A includes provisions to protect the home addresses of individuals from disclosure, similar to those that currently apply to company directors. The company must obtain and update the necessary information about people with significant control both on implementation of the new rules and on an ongoing basis whenever it knows, or might reasonably be expected to know, that a change in control has occurred. Information will also need to be supplied as part of the formation of a new company after the new rules come into effect. A company will also be obliged to check and confirm or update the PSC information held at Companies House on an annual basis. There is no doubt that these new requirements are onerous and will substantially increase the burden and costs of compliance on UK companies. They mean that companies will need be constantly vigilant for signs of changes in control among their shareholders and take prompt investigatory steps. Their complexity also means that many companies will need professional assistance with understanding and implementing the new requirements. As they currently stand, the new provisions also do not recognise situations where confidentiality of control is necessary for legitimate business reasons. In these situations businesses are likely to look to different types of structures to achieve their aims. Use of trusts and partnerships may be an alternative, but there is also a risk that businesses will simply abandon the use of UK entities in favour of jurisdictions with less intrusive disclosure obligations. 4 5

4 Abolition of bearer share warrants Bearer share warrants are not used extensively in the UK but one of their principal attractions is the anonymity they can give. Directors duties and shadow directors A shadow director is a person who has not been appointed as a director of a company but in accordance with whose instructions the directors of a company are accustomed to act. In light of concerns that they are particularly open to abuse, the Bill will introduce new provisions into the Companies Act 2006 which will: (a) prohibit the issue of bearer share warrants after the commencement date of the new rules; (b) require all existing share warrants to be surrendered to the issuing company and exchanged for registered shares within 9 months after the commencement date; (c) suspend all rights attaching to shares specified in a share warrant not surrendered within 7 months after the commencement date; and (d) require a company to cancel the shares comprised in a share warrant by obtaining a Court Order if the warrant is not surrendered within 9 months after the commencement date. Although these requirements are very onerous on both the company and the holder of the share warrant, the government estimates that they will only affect around 1200 companies. It is expected that these provisions will come into force as soon as the Bill becomes law. In view of the short timescales involved once the legislation comes into force and the considerable expense of court proceedings, it is recommended that companies with bearer share warrants in issue start communicating with their warrant-holders about the proposals as soon as possible. Prohibition on use of corporate directors Currently, all companies must have at least one director who is a natural person but, subject to that, a company may have another company (incorporated in the UK or overseas) as a director ( corporate director ). This can make it difficult to identify who the real controllers of the company are, particularly where the corporate director is an overseas company. Once enacted, the new statutory provisions will prohibit the appointment of corporate directors except where regulations made by the Secretary of State permit their use. BIS has indicated that such exemptions will allow the use of corporate directors within groups that include large listed or private companies, by charities and where the use of corporate trustees is appropriate. Further categories of exemption may be added and BIS is currently consulting on these with relevant organisations, including Jordans. Companies with existing corporate directors will need to remove them within 12 months after the new legislation comes into force unless they fall within one of the permitted exemptions. It covers the situation where, for example, a person who does not want to be identified as a director of a company on the public file appoints a nominee or front director. Under current law, the nominee director will be in breach of his general statutory duties to the company if, for instance, he does not exercise independent judgment in making decisions about the company or its business, does not exercise appropriate care and skill or does not act in a way that he considers will promote the success of the company. However, it is thought that a large proportion of directors do not understand these duties or the consequences of noncompliance. The Government therefore intends, as part of its general company reforms, to ensure that Companies House sends out information to all new directors explaining their directors duties and the potential liabilities they face if they do not comply with them. In this way, directors will be made more accountable for their actions. Conclusions Shadow directors are subject to fewer statutory duties and the general duties apply to them only to a limited extent. Whilst there may be legitimate circumstances justifying their use, shadow directorships are also vulnerable to abuse by criminals. In its initial consultation, BIS put forward proposals for registration of nominee directors and those who control them but most respondents were of the view that such proposals would be unworkable. BIS now proposes to amend the Companies Act 2006: The transparency proposals are unlikely to have a significant impact on large businesses, most of which will either be DTR5 Issuers and exempt from Part 21A or will at least have greater resource to devote to the time and cost of complying with the new rules. In contrast, the small business sector is justifiably concerned that the burden and cost of compliance will far outweigh any benefit to them in terms of encouraging business and growth. In addition, companies of all sizes could run into difficulties in transactions where disclosure of a controlling party s identity is commercially sensitive. Companies, directors, shadow directors, shareholders and people with significant control will all be potentially liable for non-compliance with the new rules and would be well-advised to keep up-to-date with the proposals as they develop. Once the new legislation is finalised, professional advice may well be necessary to ensure that appropriate systems, procedures and communications are put in place. (a) (b) by expressly applying the general statutory duties to shadow directors with such modifications or exclusions as may be imposed by regulations to be made by the Secretary of State; and by strengthening the Court s powers under the directors disqualification rules to disqualify persons who instruct unfit directors. 6 7

5 Find out how we can help you. For further information about any of our services, or to discuss your requirements in confidence: Call: +44 (0) jordansgroup.com 8

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