My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Sainsbury of Turville.)
My Lords, when we first met in Grand Committee on this Bill on
If that was the right quotation for then, the appropriate one for today must be:
"Once more unto the breach, dear friends".
And what a breach it is: we have a Bill now with three volumes instead of two and 1,264 clauses instead of 885, and it still requires us to consider 1,029 amendments in a single sitting.
I readily accept that in part the increase, and some 600 of the amendments, are as a result of the Government taking on board our advice on consolidation when the Bill first passed through this House. I thank the Minister for that and for his helpful letter of
As a final piece in the jigsaw, for which I am sure that this House will be grateful, perhaps the Minister could explain what will be left behind in the 1985, 1989 and 2004 Acts. What is planned to happen to those areas? When does he hope that we will finally complete the repeal of those three Acts?
So much for what the Bill consists of: the next question worrying industry, commerce and practitioners is when it will all happen. The Minister's colleague in the other place, Margaret Hodge, sent us all a letter dated
"In both Houses, Committee members examining the Company Law Reform Bill ... asked a number of questions about how the Bill will apply to existing companies. I intend to publish the enclosed paper this week, which sets out both our general approach to transitional issues and a possible timetable for commencement of the bill's provisions ... We have sought views on these issues by mid-September so that we are able to inform Parliament in October of the outcome at Report stage in the Commons.
I should emphasise that this will be the first opportunity for interested parties to comment on transitional issues. We shall consult further formally on the full range of transitional arrangements after Royal Assent. We shall do this well before commencement of the bill's provisions. We hope it will be possible to commence the majority of the Bill's provisions on
At some time today, it would be helpful to the House and the country if the noble Lord could update us on progress on that proposal. To be specific: first, what has been the general reaction to consultation? Secondly, since inevitably much of this is an enabling Bill, when does he expect to publish draft regulations? Thirdly, and most importantly, are the Government still sticking to their implementation target of
Finally, and unfortunately, much as I would like to stand here and make a wholly positive speech, I regret that I have to say that despite the enormous number of constructive and very welcome amendments that we are considering today, there are some which quite frankly should not be there. After such a long consultation period with so many days in Committee both in this House and in another place, it is extraordinary that the Government have attempted at a very late stage to bounce through an amendment without proper scrutiny or debate. This would be regrettable but perhaps not serious if it was an issue on which there was a large measure of consensus, but that is not the case. The reporting on the supply chain in the business review is a controversial issue that has sparked huge controversy and debate in the media over the past couple of weeks.
At the opening meeting of the Grand Committee on
"Before I turn to the first amendment, I had hoped that we could debate this Bill on a relatively non-partisan basis. We all share a common objective of updating and modernising company law, and wherever possible deregulating. This Bill has been drafted on the basis of a great deal of expert advice and the widest possible consultation. Large sections of the Bill are highly technical. I had the hope that we could all work together to produce a Bill that provides the best possible conditions for the success of British industry ... I do not believe in politics-free politics, but I do believe that politicians should keep their attention firmly fixed on what is best for the economy and for the country".—[Official Report, 30/1/06; cols. GC 1-2.]
I hope he will forgive me if I say that the way he and his colleagues have dealt with the supply chain matter runs counter to everything he said then.
My honourable friends in the other place have had it far worse than we have. We at least have had two and a half weeks in which to consult interested parties before tabling amendments; our colleagues did not even have two and a half days. This Government have become renowned for their dismissive attitude towards Parliament and the principles of well considered and well written legislation. For this to be so clearly illustrated in such a flagrant way is extraordinary.
It is hard to accept that having to consider 1,029 amendments in a single day will lead to a Bill which, in the Minister's words, will,
"provide the best possible conditions for the success of British industry".—[Hansard, 23/5/06; col. 794.]
This helter-skelter finish to our proceedings will, I fear, inevitably lead to unforeseen problems. The issues identified in the report from the Delegated Powers and Regulatory Reform Committee are probably only the beginning. The Government will have much to answer for. We on this side approach this final stage of the Bill as we have approached all the stages. We ask of each amendment: is it deregulatory, is it comprehensible, does it think small first, and does it provide the right balance between risk and reward to encourage men and women of the highest quality to work in British industry and commerce? We look forward to seeing how this latest set of amendments measures up to these yardsticks.
My Lords, before we go on to the substance of the amendments, perhaps I may follow the remarks of the noble Lord, Lord Hodgson. While listening to him I was struck by the phrase, "Methinks he protests too much". From his speech one would have assumed that we were going to be faced with 100 amendments from the Conservative Benches stating the reasons against the government amendments made in another place. I shall deal with the one matter of specific detail he referred to, which is Amendment No. 245. I had assumed from his remarks that the Conservative Party would have put down an amendment to Amendment No. 245 indicating that it did not wish that particular clause to be carried, but it has not done so. A quite specific amendment has been tabled and we will support it. But, having listened to the words of the noble Lord on it, I assume that the Tory party will simply oppose the government amendment when it comes to a vote.
That issue was an extremely difficult one, of course, and if the Government are not to be congratulated on putting it in at a late stage, they are to be congratulated on having dealt with an issue dear to the hearts of many of the NGOs which have extensively lobbied all political parties and the Government. A satisfactory compromise subject to the various amendments we are going to discuss will have been arrived at. However, in the light of the speech of the noble Lord, Lord Hodgson, I look forward to the Tory party presumably opposing the introduction of Amendment No. 245.
I shall make one general point in the presence of the right reverend Prelate: there is nothing better than a sinner who repenteth. One of the reasons why we have such a large number of amendments today is that the Government eventually did repent on the views we expressed at Second Reading that this should be a consolidation Bill. I think it was slightly churlish of the noble Lord, Lord Hodgson, not to thank the Minister for having forced that requirement through his colleagues, albeit at a very late stage.
My Lords, if the noble Lord listened to my remarks, he will remember that I said that I was extremely grateful not only to the Minister, but to the Bill team for the efforts which have been made in that regard.
My Lords, I look forward to reading the noble Lord's remarks in Hansard. While listening to him speak I found myself worrying that we would be here until at least two o'clock in the morning listening to the endless opposition which, judging from his speech, the Tories are going to produce for the Bill.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 to 4. I shall speak also to Amendments Nos. 40, 45, 46, 49, 50 to 55, 57 to 59, 67, 69, 71 to 73, 79, 81 to 83, 108, 119, 175, 176, 209 to 211, 213, 215, 216, 218, 530, 531, 643 to 645, 758, 833 to 837, 839, 844, 846, 862 to 865, 867 to 870, 873, 874, 877, 878, 881 to 883, 885, 886, 889 to 893, 898, 900, 946, 953, 955, 956, 958, 969, 993, and 1018 to 1022. Before turning to the amendments before us, it may be useful if I say a few words about the amendments we will consider today, particularly in the light of the remarks of the noble Lord, Lord Hodgson; it would be appropriate. Clearly we are considering a lot of amendments. They cover 319 pages, which is surely a record, and the amendments themselves are lengthier than the Financial Services and Markets Act 2000. On the other hand, it has to be said that this Bill is not least a consolidation measure and is probably the largest Bill that has ever come to Parliament.
It is important to remember the genesis of these amendments. The great bulk are due to the restatement exercise which was undertaken at the prompting of this House. It will mean that the Bill as amended will in effect be a complete code of company law. All the company law provisions of the 1985, 1989 and 2004 Acts have been brought into the Bill, other than the self-standing provisions on community enterprise companies and the provisions on investigations which go wider than companies. This I feel sure makes the Bill very much more useful to practitioners and that, after all, has been the common aim of both sides of the House. We are grateful to parliamentary counsel for the considerable work involved over the few months since the Bill left this House, and to the Law Society in particular for carefully checking that the restatement does not make unintended changes to the law. Our intention in this exercise has been to restate the old law in more modern terms, but not to change its substantive effect except for two reasons: to ensure consistency with other provisions in the Bill and to ensure that we comply with our EC obligations.
As we go through the amendments I will not try to list which ones are restatements as there are over 400 of them, but I can assure the House that parliamentary counsel will produce a full destination and derivations table so that practitioners can see exactly which these clauses are. Most of the remaining amendments we are considering today are indeed technical improvements suggested during the parliamentary passage through this House or another place, and many of them have come from professional bodies such as the Law Society and others, all of which were consulted in great detail before the Bill ever came to the House. It is not surprising that on further reflection and detailed scrutiny they have come up with further improvements, and I think it would have been utterly ridiculous for us to say to those professionals that where they raised points of detail which improved the Bill we would not accept them. On the contrary, we have taken a totally different approach because we think the value of this Bill lies in the fact that it provides a good framework for practitioners, lawyers, accountants and other professionals to conduct their business. We have therefore made it a matter of policy to give them the very greatest scrutiny and accept every amendment where it makes sense to do so. I am not in any way ashamed of having done that, nor do I think it is wrong. This is what this kind of Bill should be about.
There is a small handful of contentious issues on which I expect we will have a lively debate today, but let us be clear that what we are talking about is some 13 amendments, a couple of which are government amendments. If we conduct our business in a sensible way, that is not too great a burden for this House. If we do not go over endlessly the many technical points, we should be able to tackle this within a reasonable time. That is against the background that there is now consensus on the Bill, which is very important for the competitiveness of the UK.
My right honourable friend the Minister of State for Industry and the Regions said in another place that we would announce our timetable for implementation before the Bill completed its passage, and I am happy to take this opportunity to do so. We have, of course, discussed this important issue with business and others and recognise that we will need to allow some time after the necessary regulations are in place for the business community to gear up to using the new law. On this basis we intend to produce for consultation further details of how the Bill will be applied to existing companies by early next year. We will follow this with further consultation on other aspects.
However, we will implement the provisions on company communications to shareholders and others in January 2007. This will include provisions facilitating electronic communication. We are doing this because, more than any other measure in the Bill, it will bring many millions of pounds of savings to business. It is the aspect of the Bill which business is most keen to see brought forward. I appreciate that many groups will have their own priorities for implementation. Unfortunately, we cannot accommodate all of those, but we thought it right to make an exception in the case of electronic communications because it will bring significant and tangible benefits very quickly.
We will consult in February on our detailed implementation plans. Our intention is to commence all parts of the Bill by October 2008. We will continue to work with stakeholders in implementing the Bill. In particular, we will work with the business community to ensure widespread and effective communication of the Bill's provisions so that all parties fully understand the new provisions and are in a position to take advantage of the benefits.
The noble Lord, Lord Hodgson, asked what was left behind in the 1985, 1989 and 2004 Acts. As I have explained, all the company law provisions of those Acts have been brought into the Bill, other than the self-standing provisions on community enterprise companies and the provisions on investigations which go wider than companies. The non-company-law parts of those Acts which will remain relate to some Scots law provisions, which are now devolved to and have been replaced by the Scottish Parliament; provisions about the Financial Reporting Council and the operation of that body and its subsidiaries, but not about how companies generally conduct themselves; and provisions about assisting overseas regulatory authorities in relation to the financial markets, the Financial Reporting Review Panel and insolvency, all of which relate more to financial services than to company law.
Finally, I stand by the words that I used at the beginning of the Grand Committee—which, as I remember it, were provoked by a rather angry letter from the noble Lord to the Times to which I thought we should give careful consideration. I hope that in this debate, in which we have to consider 1,029 amendments, the same spirit will prevail as in many of our Committee sittings. We have only a limited number of contentious amendments to get through.
The amendments in the first group are mainly technical. They have the effect of tidying up the drafting of the Bill, largely as a result of the restatement exercise. I therefore suggest that we do not spend a long time examining them. They make changes to the drafting where needed—for example, to amend references to the former Companies Act which are no longer needed as a result of restatement; to amend references to the name of the Bill, which is now the Companies Bill and not the Company Law Reform Bill; or to ensure the clarification of terms and a smoother reading of the Bill as a whole.
Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 4.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
At Report stage we replaced the requirement for subscribers' names and addresses in the statement of capital and initial shareholdings with a power to prescribe in regulations made under the Bill the information that must be provided for the purpose of identifying the subscribers to the memorandum where a company is to have a share capital on formation. Amendment No. 5 simply carries forward this approach for the purpose of identifying the subscribers where it is proposed that a company will be formed as a company limited by guarantee.
At Report stage we removed the requirement for a statement of capital to be provided where an unlimited company that has not previously had a share capital re-registers as a company limited by shares. Such a requirement is unnecessary in these circumstances as the company will in any event have to include such a statement when it makes a return of allotments to the registrar under Clause 545 following re-registration.
However, some unlimited companies are formed with or acquire a share capital and, in such cases, there would be no need to make a return of allotments on re-registration as a limited company until such time as the company allotted new shares. We think this is a loophole and Amendment No. 78 therefore requires such companies to deliver a statement of capital to the registrar within 15 days of re-registering as limited. The company will, however, be exempt from this requirement if it has already provided this information; for example, in the statement of capital and initial shareholdings provided on formation or in a statement of capital contained in the company's last annual return.
Amendment No. 8 contributes to a larger tidying-up exercise that we carried out in another place. As a result of the restatement exercise, there is now only one Companies Act, and clauses in the Bill which refer in general terms to the Companies Acts can now be made more precise.
Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 6 and 7.
This group of amendments provides that private company and public company secretaries will be treated in exactly the same way under the Bill save in a number of specific respects. The main distinction is that there will not be a statutory requirement for a private company to have a secretary. In particular, these amendments provide that the authority of a private company secretary will be the same as that of a public company secretary. Accordingly, the appointment of a secretary to a private company must be notified to the registrar of companies and be recorded in the company's register of secretaries.
There are a large number of consequential and related changes, in particular relating to the formalities of doing business. These are largelyin response to the helpful comments made in Committee, both here and in another place. In particular, we have amended Clause 44 so that for execution of documents by a company the alternative to affixing its seal is signature either by two persons who are either directors or secretaries of the company, or a single director if witnessed and attested.
We have taken a power to apply Clauses 43 to 53 to overseas companies. This power is based on that in Section 130(6) of the Companies Act 1989, which is being repealed.
Moved, That the House do agree with the Commons in their Amendments Nos. 6 and 7.—(Lord Sainsbury of Turville.)
My Lords, in response to the Minister's appeal for a mood of harmony, let me say that we appreciate these amendments. We always felt it was counter-intuitive for it to be impossible for a private company to have a company secretary and for that person to have no powers. We are very grateful for what the Government have done here.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 8 and 9.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.
This is a group of miscellaneous amendments relating to company constitutions. Perhaps the most noteworthy are Amendments Nos. 35 to 37. Amendment No. 37 was first moved by my noble friend Lord Wedderburn in Grand Committee. I am sorry to say that it was not until a later stage that we finally saw the wisdom of his suggestion.
Clause 34 describes the way in which the provisions of a company's constitution bind the company and its members. My noble friend's modest proposal was that this clause should say what it means, by making it clear that the provisions of a company's constitution have effect as if there were covenants on the part of the company and each of its members to observe them. We are extremely grateful to my noble friend Lord Wedderburn and to those who pressed his cause in the other place for urging us to correct the Victorian drafting anomaly of not referring to the company in the context of the covenants. We are not changing the law here: we are just making it clear that it means what it has been recognised as meaning since at least 1915 and the celebrated Hickman case. So we are slightly ashamed of the fact that it took so long to make the adjustment but, given that this is something that needed correcting for more than 90 years, we do not think that a few months will make much difference.
Amendments Nos. 35 and 36 tidy up some loose ends in the same clause.
Amendments Nos. 12, 15, 25 to 27, 56, 77, 107, 200, 201 and 205 are designed to make the use of "alter" and "amend", in relation to companies' articles, consistent across the Bill. AmendmentsNos. 10, 11, 22, 23, 24, 28 to 34, 38, 39, 559 and 1011 tidy up references to companies' constitutional documents and related cross-references between different bits of the Bill.
Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 and 12.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 and 14.
The subject of entrenchment, which is the basis of this group of amendments, has rather unexpectedly stirred deep passions during the passage of this Bill. It may help if I begin by summarising how we got to where we are now.
The principle set out in Clause 22 is not in any sense something new. It is just that it stands out a little more clearly in the Bill than in the 1985 Act. Under the 1985 Act, a company can provide that certain provisions of its constitution either cannot be altered at all—what we call "absolute entrenchment"—or can be altered only if conditions more onerous than the passing of a special resolution are met, which we refer to as conditional entrenchment.
The Bill as introduced preserved the ability of companies to adopt absolute or conditional entrenchment for specified provisions of their articles. The only changes from the 1985 Act in the Bill as introduced as regards entrenchment were procedural. In future, in keeping with the reduced role of the memorandum, provision for entrenchment will need to be made in the articles rather than the memorandum. The Bill also provides for a special form of notification to the registrar when "provisions for entrenchment" are inserted into or removed from a company's articles. The aim of this is to help to ensure the accuracy of the public register.
In our earlier debates, the noble Lord, Lord Hodgson, said that the Bill went too far as regards entrenchment. As a result, we moved a number of amendmentsin the other place. The most important change is Amendment No. 14, which removes "absolute entrenchment". In future, companies will not be able to say that specified provisions of their articles can never be amended or repealed. However, they will be able to set conditions which are more onerous than the passing of a special resolution for amending or repealing them. We did this because it seemed to us that absolute entrenchment was not only very rarely used, but that it was sometimes used unwisely. Companies may find themselves trapped with rules that are inappropriate, but very hard to get rid of.
Amendment No. 17 makes it clear that, whatever the terms of a provision for entrenchment, it will always be capable of being removed or changed by the unanimous consent of the company's members, or by order of a court or other competent authority. Amendments Nos. 18 to 21 provide new and clearer drafting of Clauses 23 and 24. In the process, they slightly reduce the administrative burdens on companies with provisions for entrenchment and take account, like Amendment No. 17, of the possible involvement of courts or other authorities.
Colleagues of the noble Lord, Lord Hodgson, and the noble Lords, Lords Sharman and Razzall, have variously attacked us both for removing absolute entrenchment and for retaining conditional entrenchment. In defending the changes we have made, let me begin by recalling one of the few points on which all sides in this debate can agree. The Bill may facilitate entrenchment, but it does not encourage it. The general rule is, and will remain, that a company's articles are a kind of contract between the company and its members, which, unlike most contracts, can be changed, and have parties added to or removed from it, without the agreement of all concerned. All that is required is a special resolution.
Entrenchment is an exception to that general rule: it is not something we are recommending, but it is something that companies sometimes want. Most companies will not want to make provision for entrenchment, and those that do should think carefully and take professional advice about the possible consequences before they do so. We do not think, as the Conservatives appear to do, that entrenchment of any kind is too dangerous to be allowed. We do not agree with the Liberal Democrats that the usefulness of absolute entrenchment outweighs the problems that it can cause. So we have removed what seemed to be the most dangerous element of the scheme—absolute entrenchment—and retained conditional entrenchment, but emphasised the escape routes from it. We see that as a third way on entrenchment. It is interesting that even with an obscure subject we can have a third way. We think this strikes the right balance.
Moved, That the House do agree with the Commons in their Amendments Nos. 13 and 14.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 15 and 16.
My Lords, my amendment concerns the reduction from unanimity to 90 per cent for the introduction of an entrenched article. Having heard what the Minister has had to say and taken further advice externally, I do not intend to move my amendment, although I realise that I run the risk of rousing the ire of the noble Lord, Lord Razzall, in so doing.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 59.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 60 to 66.
This group of amendments improves the parts of the Bill relating to names of UK and overseas companies and names used by anyone in the course of business in the UK. The changes are small and do not involve any significant change in policy; rather, in the main, they pick up various infelicities that have been pointed out during the progress of the Bill. The only substantive change is one also sought in this House imposing a requirement that the decisions of the company names adjudicator be published. That is Amendment No. 61.
Moved, That that the House do agree with the Commons in their Amendments Nos. 60 to 66.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 67.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 68. I shall also speak to AmendmentsNos. 113 to 118, 120 to 155, 157, 159 to 170, 172 and 174. We now come to amendments to Part 10. This is clearly one of the most important parts of the Bill. The amendments to this part, agreed in another place, are relatively minor. I believe they also have cross-party support.
I will look briefly at the main amendments, in amendment order. Amendments Nos. 68, 113, 115 and 118 ensure that a shadow director is treated as a director regarding potential liability for various offences, but not regarding their particulars being on the public record. Amendments Nos. 114, 116 and 117 to Clauses 150 and 152 ensure that the provisions for the protected record of directors' residential addresses are effective. Amendment No. 172 to Clause 226 provides powers to make regulations, providing greater protection for some directors' home addresses.
Amendment No. 120 extends the provisions of Clause 167 to Northern Ireland. The effect of Clause 167 is to reverse the various relaxations to the strict no-conflict rule made by the Bill. Charitable companies will still be able to take advantage of the various relaxations, where their constitutions allow. That is the benefit of transparency. It will be clear from the charity's constitution whether it is able to take advantage of a relaxation to the strict no-conflict rule.
Turning to the rules on substantial property transactions, Clause 176 implements a recommendation of the Law Commissions that has been widely welcomed, by allowing companies to enter into agreements that are conditional on the approval of the members of the company being obtained. Amendment No. 122 goes one step further by allowing the agreement to be conditional on approval from the members of its holding company as well, in those cases where the approval of the members of the holding company is required. The amendment responds to concerns that companies could be inconvenienced if they had to wait for member approvals before they could agree to a substantial property transaction.
The Bill makes a major deregulatory change to the regime applying to loans and other similar transactions by a company for its directors. At the moment these are prohibited unless certain exceptions apply. The Bill replaces that with a requirement for member approval. At the same time, the Bill was drafted to implement the recommendation of the Law Commissions that all the rules on loans, quasi-loans and credit transactions for directors should extend to all companies. For most private companies that would mean an increase in regulation, because at the moment many of the rules apply only to relevant companies. In broad terms, relevant companies are public companies and private companies that are on the same group as a public company. Although this recommendation was endorsed by the Company Law Review, we have carried out further informal discussions in light of the discussion in another place. There was clear support from stakeholders for the proposal that the requirement currently applying only to relevant companies should not be extended to all private companies. Under the amendments, the Bill would therefore no longer apply the rules on credit transactions or quasi-loans to private companies, unless they were associated with a public company, or apply the rules on loans, quasi-loans and credit transactions with persons connected to a director to private companies, unless they were associated with a public company.
Amendments Nos. 135 and 136 make it possible for a loan under the exceptions in Clauses 189 and 190 to be used by a director to fund their defence in proceedings relating not just to the company but for negligence relating to associated companies. This recognises that in a group situation it may be more convenient for the loan to be made by a different group in the company.
Companies legislation requires prior authorisation by the members for certain transactions; for example, loans or payments for loss of office between the company and a director. Section 66 of the Charities Act 1993 renders invalid prior authorisation by the members for transactions such as payments for loss of office unless the Charity Commissioners have given their prior written consent. That reflects concerns that in some cases the members of a charitable company are not independent of the directors, and that requiring their approval would not provide sufficient protection for the charity.
Chapter 4 of Part 10 makes various changes to the provisions on the requirements for prior shareholder authorisation. Amendment No. 157 inserts two new sections into the Charities Act 1993, in place of Section 66 of that Act, to reflect the changes made by the Bill.
I turn finally to the amendments relating to the indemnification of the director of a company acting as a trustee of an occupational pension scheme. The amendments address concerns raised in this House and in another place. The point was made that such directors perform a vital role, often for very little direct financial reward, and that directors' and officers' liability insurance policies currently available afford limited protection. We made clear that the Government attach great importance to the work of such directors and that we are aware it can sometimes be difficult to recruit high-quality directors for companies acting as a trustee of an occupational pension scheme. In view of that, and following consultation with key stakeholders, we tabled amendments to permit companies to indemnify the directors of associated companies acting as trustees of occupational pension schemes.
Moved, That the House do agree with the Commons in their Amendment No. 68.—(Lord Sainsbury of Turville.)
My Lords, I am grateful to the Minister for that full explanation of this group of amendments. Before we wave goodbye to Part 10, we on these Benches are concerned about whether we have managed to strike the right balance between risk and reward for directors, particularly non-executive directors, and whether overall there will not be a disincentive for men and women of quality to serve on boards. The Minister will be well aware of the concerns about the new provisions, especially those in Clause 158. At this stage, however, I can do nothing better than quote the noble Baroness, Lady Young of Old Scone, who said in the debate on the Legislative and Regulatory Reform Bill a few minutes ago that the proof of the pudding will be in the eating. I fear that the Government may have to accept some adverse consequences from these new provisions.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 69.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 70. I shall also speak to Amendments Nos. 315 to 512, 532 to 536, 560 to 612 and 646 to 671.
This group of amendments inserts a number of new clauses into the Bill. These restate various provisions, currently contained in Parts 4, 5 and 8 of the 1985 Act, which were brought into the Bill as part of the restatement exercise, and also replace and restate Clause 538 and Parts 18 and 19 in their entirety. The amendments in this group also insert new clauses into the Bill that contain powers to amend the restated provisions that are concerned with the maintenance of capital. I will come to that point shortly, but first I shall say something about the restatement exercise.
The restatement of the 1985 Act provisions was foreshadowed by various debates that we had in this House. As I said at the beginning of today's debates, I reassure noble Lords that while the new clauses may, in some cases, look rather different in structure from those of the 1985 Act that they restate, our intention has been to make no substantive changes to the law, other than those that have been necessary in order to ensure compatibility with other provisions in the Bill and to ensure compatibility with EU law.
The Bill as introduced included various provisions on share capital, which have been subsumed into the new clauses. The restated clauses have been made consistent with them. The new clauses inserted by Amendments Nos. 432, 512 and 671 contain three new powers. Those powers would enable the Secretary of State, in regulations made under the Bill, to amend respectively the rules on share capital, on purchase by a company of its own shares and on distributions. Together, those aspects of company law are commonly referred to as the "capital maintenance rules". There is some history to these proposals, and, as noble Lords will have seen, we now have the benefit of a report from the Select Committee on Delegated Powers and Regulatory Reform that comments on the proposals. The committee's recommendations always command the very greatest respect in this House when we are considering important and difficult issues.
The House will recall that the Bill as it was originally introduced to the House contained a proposal for a general company law reform power. That proposal was dropped as a result of concern about the breadth of the power. We explained that there a small number of areas where changes were expected to be needed in the short to medium term, one of which was capital maintenance.
It is important to understand the background. The capital maintenance rules are there to ensure that the company retains its subscribed capital as a protection for present and future creditors, and in particular to control the extent to which a company can give returns to its shareholders. Of course, profitable companies must be able to pay dividends to their shareholders. Indeed, this is a significant reason why we hold shares. But there must be rules to ensure that a company cannot pay money to its shareholders in a way that may jeopardise the legitimate interests of the creditors. As the Delegated Powers and Regulatory Reform Committee said, the rules are a mix of principles and very considerable detail. Much of our companies legislation dates back to Victorian times and the provisions are set out very largely in primary legislation, unlike, for example, the related area of financial services legislation where most of it is in secondary legislation. Part of the reason for retaining this approach in the present Bill is that business said to us that it wanted all the provisions together in one place.
We have looked very carefully at the concerns of the committee and discussed these with others. We recognise that the powers would be very wide and that an exceptional case would be needed. The parts of the Bill that deal with share capital and with purchase of own shares are mostly concerned with preventing companies finding ways round the rules on dividends by passing value to their shareholders in other ways; for example, by buying back their own shares with company funds, or by unilaterally reducing their capital so that the test of whether their net assets are greater than their capital becomes easier to meet. It is very important to have these rules as otherwise companies in difficulty and in the hands of unscrupulous or imprudent directors and members could circumvent the dividends rule, enrich themselves and leave creditors worse off than they should have been. But essentially they are technical and are not of the same nature as the central rules on dividends.
Experience shows that they can give rise to serious problems for companies that want to carry out entirely innocent transactions in circumstances where creditors are not at risk. As business practice changes, so these rules need to be adapted. There is a strong case that we need secondary powers to be able to do so. It is important for business that we have the powers in Amendments Nos. 432 and 512. We may well need to be able to make changes to meet legitimate needs. There is, therefore, a strong case for the powers in Amendments Nos. 432 and 512, even though I fully recognise that they are exceptional.
Amendment No. 671 covers the area of distributions. The committee rightly cited Amendments Nos. 647 and 648 as being general rules of particular significance. The existing rules are based on the second Company Law Directive. These rules have existed in much the same form since 1981. There have been criticisms of them. Recently, with the introduction of international financial reporting standards, a number of companies have found that it was difficult for them to pay dividends under these rules, even though they were profitable under UK generally accepted accounting principles (UK GAAP). A number of people have expressed concern about these rules on dividends, but there is as yet no consensus on how these should be improved. We are following with interest companies' experience with IFRS. One of the purposes of AmendmentNo. 671 was to enable us to amend rules if a generally acceptable improvement in the dividend rules was agreed. However, we recognise that significant aspects have not been debated. We are very mindful of the important considerations to which the Delegated Powers and Regulatory Reform Committee has drawn attention. Having considered the report of the committee, we have reached the view that it would be going too far and is not necessary to take a power to change the basic rules on dividends. We accept that if we decide to change these rules, we shall need to come back to Parliament with primary legislation unless other powers such as the European Communities Act are available. I have therefore indicated that I will recommend that we oppose Commons Amendment No. 671.
By asking the House to agree with Commons Amendments Nos. 432 and 512 but to disagree with Commons Amendment No. 671, we believe that we have found a way to meet the concerns of the Delegated Powers and Regulatory Reform Committee while enabling us to bring clarity to some important aspects of company law in a reasonable time frame.
A small number of the amendments in this group make technical changes to the Bill's provisions on capital maintenance and share capital. I do not propose to say much about these, save to reiterate that these changes have been necessary to ensure compatibility with EU law and other provisions in the Bill. Other amendments in this group take forward commitments we gave in another place: in particular, they enable the minimum share capital requirement for public companies to be satisfied in euro as well as sterling and clarify that the prohibition on public companies and their subsidiaries providing financial assistance for a purchase of own shares does not apply to the foreign subsidiaries of such companies.
Before I sit down, I mention an issue raised by the Law Society, which may have been drawn to the attention of noble Lords. There is a concern that, following the abolition of the prohibition on private companies giving financial assistance for a purchase of own shares, a private company might not be able to enter into the range of transactions that are currently permitted—that is, if it has availed itself of the current exemption for private companies commonly known as the "whitewash" procedure. Noble Lords may wonder how the removal of the prohibition on giving financial assistance could be seen to be more restrictive than the current exemptions.
The issue is that some interested parties—the Law Society included—consider that the "whitewash" procedure provides a statutory code that supplants the common law rules on the maintenance of capital. That being the case, there is a further issue as to the extent to which, if at all, the repeal of these provisions would resurrect the common law. The extent to which the current exemptions supplanted the common law is far from clear, but in any event, in our view, the repeal of the "whitewash" procedure does not resurrect the common law. In short, if there is a problem with the common law—we are not aware that there is—this already exists. None the less, we intend to put this matter beyond doubt by making it clear, in a saving provision made under Clause 921, that the removal of the prohibition on private companies giving financial assistance for a purchase of own shares will not prevent private companies entering into transactions which they can lawfully enter into now—that is, under the "whitewash" procedure. We have discussed this approach with the Law Society and trust that this addresses its concerns.
Moved, That the House do agree with the Commons in their Amendment No. 70.—(Lord Sainsbury of Turville.)
My Lords, I am extremely grateful to the Minister for his reassurance on the status of the new clauses that the Government are introducing. The fact that no new legal developments are intended, except in so far as he explained, is a critical reassurance to practitioners and to the country at large. I am also grateful for the Minister's remarks on a private company purchasing its own shares and on the fact that the abolition of the "whitewash" procedure will not resurrect the common law prohibitions, which has been a cause of much concern externally.
Generally, we share the Minister's view—indeed, we argued it in Grand Committee on
At an earlier stage the Minister listed three areas where it was believed that some mechanism for updating through secondary legislation would be needed, of which, as he said, capital maintenance was one. We accept the force of these arguments. Therefore, in these areas, which are covered by Amendments Nos. 432 and 512, we are prepared to accept the introduction of an affirmative procedure statutory-instrument-based system for interim reform. We do so, despite the misgivings expressed in the Delegated Powers and Regulatory Reform Committee's report because of the relatively technical, fast changing nature of this section of company law.
However, we share the view that the committee has a strong point with respect to the reform power in Amendment No. 671. That covers another area of the law—distributions—the implications of which, and the future policy principles for, have been much less discussed. Therefore, we are grateful to hear that the Government will not move Amendment No. 671.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 71 to 79.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 80.
Amendments Nos. 80, 109 to112, 158, 181 to184, 206, 207, 632 to 642 and 895 to 897 form a package of amendments requiring a company to make available for inspection various registers and records. This issue was raised in the context of the register of directors. Under the Companies Act, this must be made available for inspection at the company's registered office.
The amendments recognise both that any increased flexibility as to places of inspection should apply to other registers and records to which there is a statutory right of inspection, and that there need to be safeguards against abuse. This package of amendments meets those concerns by providing a power for regulations to specify alternatives to a company's registered office as the place where specified registers and records are to be made available for inspection. Amendments Nos. 86 to 93 combine provisions that have been in the Bill from the outset in relation to overseas branch registers with a restatement of relevant provisions from the 1985 Act. There is no change in substance. The other amendments in the group are minor and technical changes to improve the clarity and efficacy of the Bill.
Moved, That the House do agree with the Commons in their Amendment No. 80.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 81 to 96.
Moved, That the House do agree with the Commons in their Amendments Nos. 81 to 96.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 97 to 104. I am pleased to be able to return to the House with a new package of clauses in Part 9 of the Bill that enables indirect investors both to enjoy information rights and, via the registered member, to exercise voting and other governance rights.
As I made clear when we debated this part previously, the Government are firmly committed to promoting a long-term investment culture through the wide participation of shareholders and the responsible exercise of share ownership rights. That is one of the key themes consistent throughout the Companies Bill. It is right that everyone who invests in shares, whether directly in a company or through a nominee broker, should be able to enjoy and exercise much the same rights. If indirect investors—that is those holding shares through a nominee—wish to exercise shareholder governance rights, they should be able to do so. Our key concern has been that broader enfranchisement must be achieved in a way that is proportionate, offers flexibility and avoids imposing undue burdens on any parties involved, whether on issuers, investors or intermediaries.
That is why we resisted the amendments tabled by the noble Lord, Lord Hodgson, in Committee and on Report. As many business representatives will have told him, the amendments were burdensome, unworkable and created great uncertainties. However, we recognise that noble Lords reflected a view that we should go further in enfranchising indirect investors. I am pleased therefore that following a series of intense discussions in late spring and early summer with key interested parties, involving those both behind and against the original amendments, we were able to find consensus on a workable solution to strengthen the position of indirect investors in the Bill without imposing disproportionate burdens on business.
For the benefit of those who have not followed the debate on this part in the other place, let me just explain briefly how the new provisions will operate. Broadly, the new clauses provide that indirect investors can be nominated to receive company mailings. It is up to the registered member, typically a broker, to decide whether to nominate. The registered member will be able to appoint indirect investors as proxies under the provisions of Part 13 to exercise voting rights. Clauses at the end of the new Part 9 make it easier for registered members to exercise rights in different ways to reflect underlying holdings and allow indirect investors to participate in, for example, requests for resolutions at the AGM.
We think this is a balanced and fair package, which should lead to much greater involvement for the large proportion of small investors who hold shares through ISAs, PEPs or nominees. In short, the new Part 9 provisions are good news both for small investors and for quoted companies.
Moved, That the House do agree with the Commons in their Amendments Nos. 97 to 104.—(Lord Sainsbury of Turville.)
My Lords, I have two amendments in this group, Amendments Nos. 105A and 106A, and it may be helpful if I address them. The general topic of the rights of indirect investors has concerned us greatly, as the Minister explained. The position of ISAs and the increasing pressure for private shareholders to hold their shares through nominees because of the short settlement dates means that private shareholders have increasingly become disfranchised. APCIMS, the trade association for private clients, now suggests that 80 per cent of private client share dealing is done through nominees. That sort of disfranchisement is not good for the investor or the company, and it is probably not good for the country as a whole. We are very grateful to the Government for having listened to those concerns and for having come up with a proposal that is agreeable to all the parties involved. Clearly, it was an important development.
The amendments are in essence a tidying-up issue, because it is clear from the Bill that the clauses on information rights—Amendments Nos. 99 to 104—apply to traded companies only. We understand that at meetings of the stakeholder group that the Minister referred to, it was assumed that Amendments Nos. 105 and 106 were also being discussed with reference to the listed company environment. We are quite happy with the thrust of Amendment No. 105, as it would allow nominees to split their holding, for example, in a rights issue, when there was a choice between cash and shares to reflect the wishes of their underlying clients. We also support Amendment No. 106, as it would allow the indirect investor to get together with others to force the company to do the four things listed in subsection (1)(a) to (d) of the new clause introduced by Amendment No. 106 though three of those are relevant only to public or quoted companies anyway.
However, the way that the Bill is drafted makes Amendments Nos. 105 and 106 appear to apply to all companies. We are not arguing that this is necessarily wrong, but we would like a reassurance from the Government that their application to private companies has been thought through. For example, we wonder how Amendment No. 105 would work alongside the pre-emption clauses that private companies often have in their articles. The pre-emption clause may well state that where a member wants to sell his shares, the shares have to be offered to other members in proportion to their holdings, but that each member has to take either all or none of the shares offered to him. We wonder, as an example, whether Amendment No. 105 could be used by a member to take only a proportion of the shares offered, and whether that might have unintended consequences. Some clarification and reassurance from the Minister would be most helpful.
My Lords, I am grateful to the noble Lord, Lord Hodgson, for tabling his amendments, because they give us an opportunity to discuss Amendments Nos. 105 and 106 in more detail. The new clause introduced by AmendmentNo. 105 gives the member the right to split his holding and exercise rights attaching to shares in different ways. This is to accommodate members who hold shares on behalf of more than one person, each of whom may want to exercise rights attaching to those shares in a different way. For example, the member could, on behalf of those for whom he is holding shares, put 50 per cent of his shareholding towards a requisitioning resolution.
The new clause introduced by Amendment No. 106 deals with four situations where the shareholder threshold required to trigger a right is 100 shareholders holding £100 each on average of paid-up capital. The clause allows indirect investors to count towards the total provided certain conditions are met. The condition is intended to ensure that only genuine indirect investors are allowed to count towards the total, but the same shares cannot be used twice, and that an indirect investor can use the procedure only if his contractual arrangements with the member allow the former to give voting instructions. The noble Lord's amendments would limit the types of company to which these two new clauses apply. This goes entirely against the principle of facilitating the exercise of shareholders' rights on behalf of others. We understand the concern that some private companies may have shareholder agreements containing provisions that are not consistent with the provisions of Amendment No. 105, but the clause applies to statutory rights and the rights attached to shares by the terms of allotment or the articles. Rights under shareholders agreements should not be affected, because they would not be transferred with the shares as a matter of law.
It has also been represented to us that some private companies' articles provide for pre-emption rights to operate on an all-or-nothing basis. When the company wants to issue new shares, it will offer the shares to existing members in proportion to their shareholding. The articles would stop a member taking just some of the shares. We agree that Amendment No. 105 would cut across articles like this where the member holds shares on behalf of more than one person. However, that is not sufficient ground for exempting private companies from the general requirement.
After fully reconsidering the policy in this area over the summer we want to go as far as we can towards recognising the rights of underlying shareholders. Unless the potential cost burdens are prohibitive, and we do not think that they are in this case, we do not see why a right that is available in relation to public companies should not be available in relation to private companies as well. After all, some companies that are taken as private are left with a number of nominee shareholders that hold shares on behalf of others. It is also possible, although rare, to have a private company that is quoted.
For that reason, we cannot agree to the noble Lord's amendment, but I hope that he realises that we have considered this matter thoroughly and have given it the attention that he was looking for. I hope that he will not press his amendment.
My Lords, I am extremely grateful for the Minister's explanation and for the clear analysis of the situation. I shall not move Amendments Nos. 105A and 106A.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 107 to 155.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 156.
In moving the Motion, I shall speak also to Amendments Nos. 171, 173, 192 to 199, 202 to 204, 208, 214, 248 and 309. These amendments are designed to help improve the operation of the resolutions and meetings provisions in Part 13 and related provisions. Some of the amendments result from queries raised by the Opposition in another place, and we are grateful to the Law Society for the issues that it has raised. Other amendments arise from parliamentary counsel's work to make the drafting of the Bill more consistent. I shall outline what these amendments achieve.
Amendment No. 192 to Clause 264, along with Amendments Nos. 156, 171, 173 214 and 309 to Clauses 208, 222, 230, 350 and 526, makes the drafting relating to requirements for a decision to be "by resolution" or "by ordinary resolution" consistent throughout the Bill. Where a resolution is required, but the type of resolution is not specified, the default will be an ordinary resolution unless the articles require a higher majority.
When a provision specifies that an ordinary resolution is required, the articles will not be able to specify a higher majority. That will apply in cases where, for example, we do not want the will of a simple majority to be frustrated by a blocking minority. This is especially important in the case of provisions, for example, to remove a director or an auditor.
Government Amendments Nos. 193 and 194 respond to concerns raised in another place about the admissibility of votes. The amendments replace Clause 270 with a new clause to preserve the right for a company to require objections to votes to be made in accordance with procedures in their articles. We took the point that the old clause was too ambitious, so we are just preserving the current law. If an objection is overruled, the decision will be final, except in cases of fraud and certain other kinds of misconduct detailed in the case law where a court may intervene.
The amendments are about, on the one hand, certainty for the company by enabling the chairman to settle matters relating to the admissibility of votes in accordance with the articles and, on the other, sufficient remedies for members to challenge a decision if it was not reached properly. I think that we have now achieved the right balance.
Government Amendment No. 195 to Clause 286 is a minor amendment to tidy up the drafting of provisions about member requests for general meetings, resolutions and so on. They make the drafting consistent throughout the Bill.
Government Amendment 196 to Clause 288 relates to a situation where a company fails to hold a general meeting in response to a member request. It makes sure that the cost of the meeting can be recouped from the directors, whether they are engaged directly or via a service company.
Government amendments to Clause 290 improve the drafting by clarifying how AGMs can be called on short notice. Government Amendments Nos. 199, 202 and 203 to Clauses 297, 321 and 325 add a cross-reference to ensure that companies are aware of their potential obligations under Part 9. Amendment No. 204 to Clause 333 corrects a drafting error.
Amendment No. 208 inserts a new clause to ensure clarity and consistency in the calculation of time periods in relation to meetings and resolutions. It responds to concerns raised in another place about whether, in calculating periods of notice, the date of the notice and the date of the meeting are supposed to be excluded. Amendment No. 248 to Clause 406 is a drafting improvement on a similar point.
Moved, That that the House do agree with the Commons in their Amendment No. 156.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 157 to 211.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 212.
The funding of political parties is important and rightly concerns noble Lords on both sides of the House. The company law interest in this area arises from the possibility that a director might put his personal interests or those of a political organisation ahead of the interests of the company. In other words, a director might have a conflict of interest when making a political donation or incurring political expenditure. These provisions, therefore, have an important but limited purpose. Company law would of course not be an appropriate vehicle for delivering wider policy objectives in relation to political funding.
Clause 353 provides that a trade union is not a political organisation for the purposes of Part 14. This means that funding from a company for a trade union, such as the provision of a meeting room or use of a company car, cannot be considered as a political donation requiring the authorisation of the company's shareholders.
However, concern was expressed in another place that this provision might allow companies to circumvent the Bill's requirements for authorisation by making donations to the political fund of a trade union in the expectation that the trade union would make a donation to a political party. In response to those concerns we propose to replace Clause 353 with a new clause that would require shareholder authorisation of donations made to the political fund of a trade union, but not of other donations made to the union. This will prevent companies circumventing the controls of the Bill.
There is no danger of donations other than to a political fund being redirected to political parties, because the Trade Union and Labour Relations (Consolidation) Act 1992 prevents trade unions making payments to political parties, except through their political fund. That Act also prohibits trade unions from redirecting money received from third parties into the political fund unless the money is given as a contribution to the political fund. I should make clear that we are not aware of any companies making donations to trade unions as a means of circumventing requirements applicable to political donations in that way. This amendment will ensure that it is not even a possibility in the future.
Amendments Nos. 219 to 223 address an issue that was raised in another place. Under Clause 353, the directors of both a subsidiary company and its "relevant holding company" may be liable if an unauthorised donation is made by a subsidiary. Clause 354 recognises the possibility that neither the holding company nor the subsidiary itself may bring an action against the directors who are liable in respect of the unauthorised donation. It therefore allows shareholders to bring legal proceedings to enforce that liability. In such cases, we agree that both shareholders of the subsidiary and shareholders of the holding company should be able to bring proceedings. This is particularly important if the directors of the holding company are effectively the shareholders of the subsidiary; for example, if it is a wholly owned subsidiary.
The clause as currently drafted would allow only shareholders of the subsidiary to bring proceedings, even against directors of the holding company. As I explained, we do not think that this will work in practice. These amendments address the problem and give the right to bring these proceedings to shareholders both of the subsidiary and of the holding company. This will ensure that directors of holding companies can be held to account by their shareholders if they use subsidiaries that they control to make unauthorised donations.
Amendments Nos. 212 and 217 make minor drafting amendments to Clauses 348 and 352. These amendments are consequential on AmendmentNo. 918, which inserts a new clause providing definitions of "subsidiary" and "holding company".
Amendments Nos. 226 and 227 provide greater clarity, and we are grateful to the Opposition for suggesting those changes.
Moved, That the House do agree with the Commons in their Amendment No. 212.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 228 to 244. I shall speak also to Amendments Nos. 247, 251 to 254, 258, 259, 261, 264, 266 to 272, 274 to 282, 285, 289 to 291, 293 to 295, 302 to 308, and 310 to 314. The 61 amendments in this group are mainly minor and technical improvements to the accounts and audit provisions of the Bill. I shall mention two of the more substantive changes that they make. If any noble Lord would like an explanation of the other amendments, I shall happily do my best to provide it.
The most substantive change made by this group is to the accounts and audit requirements for certain small financial service companies. Twenty-three of these amendments achieve this change: the two key ones are Amendment No. 231, which amends Clause 366, and Amendment No. 289, which amends Clause 462. These amendments are deregulatory in that they will allow more small financial companies not to have their accounts audited, and to take advantage of less onerous accounting and reporting requirements.
The noble Baroness, Lady Noakes, proposed an amendment in this area when we debated the Bill in Grand Committee. The Financial Services Authority has carried out a consultation and found strong support for deregulation. The Government are pleased to be making these amendments to reduce the reporting burden on small companies. Some 4,690 small companies—all those where the requirement to have an audit is not based on a European Union requirement—will be able to benefit, saving them some £15 million a year in total. In order to enable companies to benefit from these relaxations in accounting and auditing requirements as soon as possible, we have made regulations to make parallel amendments to the Companies Act 1985. These will allow companies to benefit from the exemptions for financial years ending on or after
I want to focus particularly on preliminary statements. Five of these amendments—Amendments Nos. 251 to 254 and 277—remove what would have been a new requirement for quoted companies to disclose on a website the preliminary statements that they are required to produce. Those amendments were prompted by a recent consultation by the Financial Services Authority on whether to change the regime for preliminary statements of annual results from a mandatory to a permissive one. We have concluded that the requirements on publication of preliminary statements are more properly a matter for securities law—just as what those statements must contain is—and those requirements should not be unnecessarily duplicated in company law.
FSA disclosure rules require an issuer to keep for one year on its websites all price-sensitive information published through a regulated information provider. In the FSA's experience, it would be unusual for a company to come to the conclusion that there was no price-sensitive information contained in any future preliminary statements that it produced. Consequently, the FSA expects that companies will put their preliminary statements on their websites anyway.
As I have said, the remaining 33 amendments are more minor and technical, though I shall be happy to seek to explain them if that would be helpful.
Moved, That the House do agree with the Commons in their Amendments Nos. 228 to 244.—(Lord McKenzie of Luton.)
moved, That this House do disagree with the Commons in their Amendment No. 245, but do propose Amendments Nos. 245A and 245B in lieu—
245A Page 183, line 35, at end insert "; and subject to subsection (11), information about persons with whom the company has contractual or other arrangements which are essential to the business of the company."
245B Page 184, line 16, at end insert-
Nothing in subsection (5)(c) requires the disclosure of information about a person if the disclosure would, in the opinion of the directors, be seriously prejudicial to that person and contrary to the public interest."
My Lords, we come to Amendment No. 245 and the other amendments in this group—Amendments Nos. 245A, 245B, 245C, 245D and 246—on the business review, on which there has recently been much press coverage. In my view, this issue has not been debated with quite the degree of clarity for which one might have hoped. It is right therefore that this House should be able to debate the issue. I am also glad of the opportunity to provide further clarification about the Government's intent and about the revised amendment that we now propose in its place.
Let me remind noble Lords of our policy and overall aims. The Government are committed to improving both company reporting and transparency. We believe that one of the most important ways in which directors will be accountable is through improved corporate reporting. It is important to stress that we have made great progress to bring together commercial success with sustainability in the Bill. The business review goes hand in hand with directors' duties and is key to encouraging directors to provide meaningful, forward-looking information for shareholders, without imposing disproportionate burdens on business. On Report in another place, the Government introduced Amendment No. 245A to Clause 399, to require quoted companies to disclose information on contractual and other arrangements essential to the business. The Government now propose to elaborate on the new provision in order to ensure that such information cannot be misused by animal rights extremists. That is the purpose of Amendment No. 245B.
Some may accuse us of watering down the amendment that we originally tabled in another place, which is not the case at all. Clearly, we do not want the new requirement to disclose information on contractual and other arrangements to be exploited by animal rights extremists. But it is also important that narrative reporting from business is meaningful and shows the risks as well as the opportunities facing a company. The revised amendment strengthens the provisions by allowing directors to omit information about a person if, in the directors' view, it would be,
"seriously prejudicial to that person and contrary to the public interest".
We believe that that is the right way forward.
Let me explain how we arrived at that point. Throughout the passage of the Bill, Ministers have continued to consult and listen carefully to representations from all parties. We tabled amendments to the Bill in another place to reflect business views on the position of company secretaries, the liability regime, and a raft of technical amendments suggested by business groups. As regards the business review, a number of interests were also lobbying consistently to strengthen the provisions for a higher level of audit requirement and for reporting standards with statutory backing—we will be debating that again when we come to the amendment tabled by the noble Lord, Lord Razzall. They were also lobbying to extend the explicit requirements for quoted companies to all large and medium-sized companies, to remove exemptions for medium-sized companies from reporting non-financial key performance indicators and to disclose information on the supply chain.
Adding an explicit requirement for quoted companies to report information on contractual and other arrangements essential to the business is one change that we believe will add value to the quality of the reporting without imposing disproportionate or onerous burdens on business. That is entirely in line with the Government's key agenda on better regulation and sustainability.
Let me provide some clarity on what the Government expect to be reported in the business review. This is not a requirement on companies to list their suppliers and customers, or to provide detail about contracts. The provision is about reporting significant relationships, such as with major suppliers or key customers critical to the business, which are likely to influence, directly or indirectly, the performance of the business and its value. It is for the directors to exercise judgment on what is necessary to report. They need only include information to the extent necessary for an understanding of the development, performance or position of the business.
Let me illustrate that with some simple examples. Where a company provides the vast majority of its products or services to one customer, the arrangements might well be essential and therefore disclosable, particularly if the company could not be sure of finding an alternative buyer for its product. Similarly, where a company relies on a single supplier for a key component, so that, if that supplier went bust, that would have a serious impact on the company's business, then that too would be disclosable. But where a company is buying products or services from a number of suppliers, or could switch suppliers, then it is much less likely that it would be necessary to disclose details of a particular supplier to give an understanding of the development, performance or position of the business. Similarly, if a company has a wide market of customers, then the directors might judge it unnecessary to disclose information about any particular customer.
Some have complained at the disproportionate burdens that this provision imposes on companies. We disagree. The provision is identical to a similar one in the original OFR legislation, which was discussed widely at the time. As I said, this is about reporting key relationships—for example, with customers, suppliers, key employees and regulators for companies in regulated sectors—not exhaustive lists. The cost implications are minimal, based on cost estimates provided by the CBI and others at an earlier stage.
Furthermore, when my right honourable friend the Minister for Industry and the Regions and I met representatives of the CBI and other business organisations on Monday and Tuesday this week, they were reassured that this requirement was not about imposing big reporting burdens on companies. As Miles Templeman, director-general of the Institute of Directors, was quoted in the Financial Times the next day as saying:
"We've now had a period of consultation which we weren't able to have before this clause. We believe that the intent is not to bring out a whole new raft of bureaucratic work and regulatory burden".
While business groups were seeking clarity behind the Government's intent, they were certain that they did not want statutory standards. However, there were concerns about animal rights extremists.
The intention behind the revised government Amendments Nos. 245A and 245B is to deal with legitimate concerns over animal rights terrorism, although the amendments are not confined to that and could deal with other similar cases. The concern was that, if a quoted company engaged in animal testing disclosed, for example, who its key customers or suppliers were, that could seriously prejudice the interests of those customers or suppliers, who could then be targeted by animal rights activists.
That is why the Government's amendment is framed in the way that it is—to exempt directors from disclosing information about a person if disclosure would, in their opinion, be seriously prejudicial to the interests of that person. Disclosure must also be contrary to the public interest. The intention of the requirement is to ensure that the exclusion is not used to cover up wrongdoing on the part of suppliers. For example, if a supplier supplies dangerous goods and may be negligent in doing so, it is clearly not in the public interest to conceal his identity.
We are not seeking to exempt the directors from reporting information that would be prejudicial merely to the company. Our view is that that would create an unjustifiable let-out and that it is not necessary to do so to ensure that the interests that we are concerned to protect are covered.
We have considered a number of scenarios. If a contract with company B is essential to company A and there is a clear risk that company B will be unable to continue to meet its obligation, we think it right for the shareholders of company A to be made aware of the risk, whether that risk is from animal rights extremism or otherwise. However, in most cases, there will be no reason to explain why the risk arose. It is the effect on the reporting company that is important. If it were necessary to disclose, then it would almost certainly be prejudicial to the supplier.
We are also conscious that it could be damaging to a reporting company if it were known that it was in a relationship with a company engaged in animal testing. In very many cases, that will not need to be disclosed as it will not be essential to the reporting company's business. But if it were essential, we think that the prejudice would be not only to the reporting company but to the other company, because it would lose the business if the reporting company had to withdraw. Alternatively, the threat might be that the other company would be boycotted if it continued in the relationship. Again, that would prejudice the other company. In effect, it would force the other company to choose between the reporting company and its other customers.
Therefore, after considering the matter carefully, we believe that all the cases that we want to cover are covered by an exclusion for prejudice to persons other than the reporting company. As I said, we believe that an exclusion for prejudice to the reporting company itself would go too far and enable things which should be properly disclosed to be concealed.
Moved, That the House do disagree with the Commons in their Amendment No. 245, but do propose Amendments Nos. 245A and 245B in lieu.—(Lord Sainsbury of Turville.)
My Lords, we could see no reason for the haste to put this amendment into the Bill in the dying days of its consideration in another place. During the Bill's passage through your Lordships' House, we inserted Clause 452, which gives the Government power to amend financial reporting requirements by order—an entirely sensible power that could have been used with a more seemly timetable and could have allowed for proper consultation and focused discussion.
Noble Lords will be aware that many voices in the business community have urged us to delete Amendment No. 245. Instead, we have sought to work constructively with them to achieve an amendment which does least harm to the businesses that it will affect. The Minister explained the nature of reporting only contractual or other arrangements that are essential, and of course a disclosure is required only if it is necessary for an understanding of the business.
The Government's Back Benches in another place, and indeed the lobby groups, might like to reflect on whether these words will require any disclosure at all by the highly complex and diverse businesses found at the top end of the FTSE. The Minister himself made the case that it is very unlikely that significant, or any, amounts will be disclosed by such businesses in the FTSE—for example, Sainsbury's, Tesco and HSBC. It is extremely unlikely that essential contracts will be necessary for an understanding of the business. Although it is very unlikely that these large companies will end up reporting nothing, that does not mean that the amendment is benign, because it is very likely to affect the smaller quoted companies, of which there are up to 2,000.
One problem with the amendment that has been pointed out by the Stock Exchange, the Quoted Companies Alliance and the CBI is that every company will have to go through the process of considering what it has to disclose, and for many that will be an onerous task. However, the real burden will be borne not by the companies in the FTSE that have large departments that deal with this sort of thing but by the smaller quoted companies which are less diverse and may well have essential contracts that need to be disclosed for them. The Government have talked a lot about easing the regulatory burdens on business, and they made that one of their themes for the Bill. But with Amendment No. 245, they have in practice loaded the burdens on to the quoted companies least able to bear them.
The danger lies not in the administrative costs that will be borne and in the diversion from running the business that will occur but in the fact that some information could cause harm. The Minister referred to animal rights activists, but I do not think that we have to stop there. Perhaps one needs only to think about anti-nuclear protestors if the Government give the go-ahead for new nuclear build. If one looks across the Atlantic, one can see violent, unlawful protest against, for example, abortion clinics. God forbid that that would ever come to this country but it is not beyond the bounds of possibility. It is extremely important that we get any amendment right here.
We congratulate the Minister on AmendmentNo. 245B, in that it would allow non-disclosure where it would be seriously prejudicial to the interests of the other party to the contractual arrangements. We completely agree with that. But my AmendmentNo. 245C goes on to deal with two further issues.
First, it would allow non-disclosure if it were seriously prejudicial to the company. The Minister will be aware that the CBI has expressed continuing concerns about this aspect of the Government's own amendment. He sought to argue that the main problems would always be borne by the company on the other side of the contractual arrangements, but I do not believe that that would always be the case. For example, a quoted company could deal with an unquoted company which the animal rights activists know all about, but they might not know that it is dealing with a quoted company until the disclosure is forced—perhaps because there is one essential contract. The Minister's amendment would give no comfort to those companies, which would have to reveal the first time that they were dealing with a company, such as Huntingdon Life Sciences, which was itself unquoted.
The Minister has confined himself to trying to deal with the issue of animal rights activists and similar. Commercial considerations must also be protected. If, for example, a company has an essential supply contract with another company, revealing that could well reveal the source of that company's competitive advantage, which would thereby give commercial information to its competitors and possibly to its foreign competitors. The amendment gives no protection to that kind of company.
The Minister has pointed out that his amendment also allows non-disclosure only if the second test of public interest is met. I am not sure that it is reasonable to expect directors to weigh public interest in deciding whether to disclose. I can think of no other instance in company reporting that is qualified in this way. It is far from clear what public interest means in this context and perhaps the amendment tabled by the noble Lord, Lord Razzall, becomes more important as regards understanding the words in these amendments. It is not clear whether public interest applies only where potential criminal activity is involved or whether it could also apply where there was some commercial interest and, if so, whether that could be calibrated only at the level of UK plc or whether there is some public interest in the commercial health of other companies. It is very unclear. The Minister has offered some explanation, but I do not think it has gone far enough to give a clear understanding of what is involved to anyone in the reporting community.
My amendment leaves the public interest wording there. I do not know what it means but it is there as an alternative and not as an essential test. Through my amendment, I do not wish to open the doorway to those who unlawfully wish to disregard the legitimate disclosure requirements that the Government now wish to create. However, we need to weigh in the balance the very real need to protect British companies against possibly harmful effects from disclosure and against the benefits that others certainly see. It is not clear-cut and it is a balance.
Moved, as an amendment to AmendmentNo. 245B in lieu, Amendment No. 245C.—(Baroness Noakes.)
My Lords, I wish to speak to this amendment and to Amendment No. 245D in my name. The two are interrelated, as the noble Baroness has indicated. Noble Lords who have followed the debate through the pages of the financial press over the past two or three weeks will realise that considerable heat has been engendered, not so much on the issue but on the timing of the Government introducing this amendment at a late stage.
These issues are not new. For many months, a number of NGOs have argued for such an amendment. It is easy to complain about process when in reality people are against the substance. I am pleased to hear that, notwithstanding the extravagant remarks of the noble Lord, Lord Hodgson, in opening this debate, it appears that the Conservative Opposition have seen sense and will not oppose the issue that Commons Amendment No. 245 should be disagreed with—whether that is grandstanding for the benefit of his Back-Benchers, many of whom are no longer in their places, I do not know. In the presence of the right reverend Prelate, I am always pleased to see the sinner that hath repented.
What has been lost in this debate in the media is that the often lamented OFR contained similar provisions. When industry was preparing itself forthe introduction of the OFR, sadly denied them at the last minute by the instigation of the Chancellor of the Exchequer, I do not remember that there was much agitation about a similar provision. I believe that significant heat has been engendered into the process from people who really are against the substance, which does not include the Liberal Democrats because we support the principle being introduced by the Government.
In the course of the debate, a number of NGOs have felt that it would be appropriate for this element of the business review to be both subject to audit and subject to reporting standards. We on these Benches do not go that far but we accept the arguments that to impose an audit obligation would be potentially extremely expensive for companies and quite difficult to perform. However, we support the NGOs in believing that the Government—not only for the reasons indicated by the noble Baroness, Lady Noakes—ought to give some indication of what the standard reporting practice should be, which they have the power to do by regulation. The whole purpose of this is not only to obtain the disclosure of information itself, but also to provide a measure by which a number of ethical investors, or those who wish to invest within an ethical framework, can obtain comparisons between different companies. It would be difficult for those ethical comparisons to be made without some element of standard reporting practice which I feel can come only from the Government.
My Lords, I have three points to make in support of my noble friend Lady Noakes. First, I do not believe that it is right to let this moment slip by with the Minister purporting to give the impression to your Lordships that he is very happy to be in the position of bringing forward these amendments to this legislation. The DTI did not want these provisions put on the face of the Bill at all. I believe that the DTI has been bounced into this position—it was not its original intent. The DTI has shown legislative fatigue on this issue—
My Lords, as this Motion was proposed in the Commons by my colleague in the DTI, I hardly think it is correct to say that it was not supported by the DTI.
My Lords, I believe that the noble Lord's colleague in the House of Commons was very firmly bounced by NGOs and others into making these provisions. It was not something that the Government had toyed with bringing forward until the lobbying gained pace at a later stage. My point about legislative fatigue is the way in which the Government rolled over to the lobbying and that is why I think the DTI has shown a certain amount of mettle fatigue as well. That is doubtless why the Secretary of State for Trade and Industry, in his appearance in another place before the Select Committee on Trade and Industry on
My second point is in strong support of what my noble friend said about the effect of these provisions on smaller companies with just one, two or three suppliers. I believe that this will be a very onerous burden. She has set the point out very clearly and I shall not attempt to be a little Lord Echo to what she has said so forcefully.
Thirdly, I believe that we should all be aware of legislative creep, of regulatory creep and of compliance creep in this legislation. My noble friend on the Front Bench said that big companies can handle the extra regulatory box-ticking through which they will have to go, but I predict that a whole new industry will emerge and companies will have to be very stalwart in resisting it in order to give gainful employment to professional services, firms and others, coming forward with seminars, breakfast meetings and new undertakings that they feel companies should fulfil. I think that some companies, innocent though they may sometimes be, will fall for this. We will see a great deal more regulation, self-imposed by companies, thanks to compliance creep urged forward by professional services firms.
I do not believe that the purposes of industry, business and commerce have been particularly well served in respect of these provisions by the CBI and, in particular, by the Institute of Directors. The words of Mr Templeman, the director-general of the Institute of Directors, which have already been quoted in your Lordships' House, will come back to haunt him in future years after having had a cup of tea with Mrs Hodge, who told him that everything was going to be all right. She does not have that effect on me, my Lords.
My Lords, I agree with what the noble Lord, Lord Razzall, had to say on this subject. We ought to focus on the substance or merits of the amendment rather than complaints made about the behaviour of the Minister in another place or elsewhere over cups of tea. If I may say so, I took the opening remarks of the noble Lord, Lord Hodgson, on this matter as an uncharacteristic expression of irritation.
The amendments tabled by the Government are entirely logical and consistent with the rest of Clause 399. The clause already provides, in a non-controversial sense, for the fact that the business review must contain,
"a fair review of the company's business" and
"a description of the principal risks and uncertainties facing the company".
The review is required to provide a balanced and comprehensive analysis of various things and the main trends and factors likely to affect the future development, performance and position of the company's business.
What is proposed here is entirely consistent with that logical structure; the idea that it would be possible or practical consistently with those provisions not to have the provisions that are being suggested strikes me as absurd. The matters it is now proposed should be incorporated are consistent with the philosophy that one finds elsewhere in that provision.
The proposal for protecting the position of the individual in proposed subsection (11) is again logical and consistent. The proposed paragraph (c) is designed to require the production of the information from the individual. Proposed subsection (11) will protect that individual in the circumstances there described. The point made by the noble Baroness, Lady Noakes, might already be covered by—or at least, in very large part—subsection (10) which is designed, albeit in different language, to protect the interests of the company rather than the individual.
My Lords, as the Minister will remember, there was considerable discussion of the role of companies in the developing world when the Bill went through your Lordships' House, and those issues were picked up in the Commons. I give a guarded welcome to the Government's Amendment No. 245A, which acknowledges that there are issues relating to labour standards and environmental, social and human rights impacts down companies' supply chains which need to be addressed. However, the amendment is still pretty weak; it does not go as far as the OFR, which the DTI had proposed and the industry had accepted but which the Chancellor then knocked out last year. As the Minister emphasised, under the amendment it will remain the directors' judgment of what is relevant in the supply chain for them to report on. It will not require companies to list their suppliers. It also affects a limited number of suppliers, so it is a limited amendment.
On Amendment No. 245B, I would like to know more about the circumstances in which directors could withhold information. I would not want this to be a Trojan horse in the middle of the legislation.
I believe that Amendment No. 245C should be opposed. It is significantly weaker than the Government's amendment and would undermine the provision of information to shareholders about risks down company supply chains. Meanwhile, the amendment of my noble friend Lord Razzall would ensure a much more independent framework for the Government's proposals. It would mean, for example, that companies could be compared across years or between themselves; less would depend on the judgment of the directors and more on outside standards, which is vital. It should help companies see what they need to do, as the noble Baroness pointed out.
It strikes me as ironic that this week, with enormous acclaim, the Stern report was launched in the presence of the Prime Minister and the Chancellor. All agree that there has to be a sea change, as it were, in public, government and international thinking about what we are doing to our planet, how the poorest countries in particular will cope and what the consequences will be for all of us. Yet when I look at these very limited proposals, there seems to be a gulf between what is here and what the Government said earlier in the week.
This is an opportunity, and it surely should not be missed. Responsible British companies are rightly proud of what they contribute in developing countries. Why should we not now ensure that others, too, meet those standards and that their presence in developing countries, as represented down their supply chain, has the beneficial effects we all wish to see rather than negative effects?
I disagree strongly with the noble Baroness, Lady Noakes, that we should not rush into things in the dying days of the Bill. These issues have been debated throughout our proceedings. This is a rare opportunity; this massive Bill has been a very long time in coming, and we should do what we can now. I therefore commend Amendment No. 245D and point out to the Government that there is still a long way to go, to judge by their proposals.
My Lords, I too support the Government's amendment. I am glad that I let the noble Baroness, Lady Northover, speak before me because I affirm everything she said and everything she denied. I share her anxiety and hope that we shall have more debate on AmendmentNo. 245B to ensure that it is not a Trojan horse and does not weaken the main amendment. I share the noble Baroness's considerable anxieties about the amendment of the noble Baroness, Lady Noakes.
In the comments of the noble Lord, Lord Patten, there was a sense that lobbying by NGOs was a less proper or worthy activity than lobbying by anybody else. That seems extraordinary. I am glad to be in part briefed by a range of NGOs, among them Traidcraft, which offers its views to the public, and has done for months, if not years, from its experience as a medium-sized company.
My Lords, either the right reverend Prelate misunderstood what I said or I did not express myself clearly. Of course NGOs have every right to lobby. The whole nature of what goes on in the Palace of Westminster is about lobbying—it is one great lobbying fair in many ways. I was regretting that some of those who should be representing the sensible voices of industry and commerce, such as the CBI and the Institute of Directors, have not been as effective as some of the NGOs in carrying out their lobbying. I regret the corporatist approach of the organisations to which I have referred, but lobbying is what we all do.
My Lords, I regret that I clearly misunderstood the noble Lord, although I said what I thought I had heard him say.
What we have here is essential. It is of great importance that business management and company decision-makers not only gather information to understand and improve the impacts of their operation in all the fields in which they work but that their thinking and decision-making, and the evidence on which they make their judgments, should be available to those whose proper responsibility it is to scrutinise those decisions in company reports and similar places.
The effect of the amendment should be—and this is my concern about Amendment No. 245B and still more about Amendment No. 245C—that shareholders and others will have access to the important information about impacts and risks down the supply chains of the companies they invest in. It is most important that this kind of reporting is not an option—not something that directors should have regard to but which is required of them.
Since supply chain management is essentially about relationships, it is important that the reporting in a business review demonstrates that companies hear and respond to their suppliers' perspectives. It is especially important—granted it is my own sense—that a responsible company is one which really takes as much interest in, for instance, the health and safety questions that surround its operations in countries outside the legislative framework of this provision, as it is by law bound to do in relation to its operations of this company. I think, for instance, of the range of operations carried out by UK and international companies in conflict or post-conflict countries like the Democratic Republic of Congo.
It is of enormous importance that UK companies should be transparent and give their shareholders and others an opportunity to understand the character of their operations in such countries. That is especially important when—not just in my judgment but in the judgment of the All-Party Parliamentary Group on the Great Lakes Region and Genocide Prevention, of which I am a member, and of other organisations such as RAID—the Government are slow on the vital question of strengthening the activities of the UK contact point under the OECD guidelines. It is of great importance that the public interest, for instance, includes that kind of a public interest. That is why I am glad those words are in Amendment No. 245B. But I do not want them to be whittled away. So, as regards Amendment No. 245, it is most important that this provision should be in the Bill.
I am concerned, as was the noble Baroness, about the implications of Amendment No. 245B and some of the first line of Amendment No. 245A. I want to be assured that that is not—as the noble Baroness asked—a Trojan horse. I do not want that to be a weakening of the provision—and it is important that it should not be. I share the noble Baroness's concerns about Amendment No. 245C, which I also wish to oppose. I welcome Amendment No. 245D because it would give the opportunity to set out a proper framework within which this reporting should take place. I am grateful to the noble Lord, Lord Razzall, for tabling it.
In conclusion, it seemed to me that perhaps I or one of my colleagues ought to have a conversation with the noble Lord in order to add to his bank of biblical quotations because we have heard the same one twice today.
My Lords, I am favour of Amendment No. 245. I was another of those who was astonished at the outburst from the Conservative Front Bench at the beginning of the debate, which seemed to me to be quite out of proportion. I know that strong feelings have been aroused on both sides of the issue. My sympathies are with those NGOs in the Trade Justice Movement which deal directly with fair-trade sources in developing countries. They have done a lot of work on supply chain reporting. As much as anyone else, they know that it is quite reasonable for the Government to table this amendment now and for companies to make the minimal effort required to report on their contractual arrangements. I say "minimal" because this is, as the noble Baroness, Lady Northover, said, a far cry from the original version of the OFR regulations, which were welcomed by all except the Conservative Party and companies, but to which obviously the business community objected.
The Conservative Party is trying to bring itself up to date and get closer to non-governmental organisations in civil society and real people. It would be making a great mistake if it did not recognise the direction that many international companies—large and small—are taking towards ethical responsibility worldwide for their own economic as well as moral and public relations advantages. This amendment is only one detail in that process. Will the Minister confirm that there will be a full consultation on the reporting standards generally in two years' time, as I think a Minister in another place has suggested, and that there will be a full review of those arrangements?
My Lords, I need to make a declaration of interest before I offer my support to the government amendment. I am a director of the London Stock Exchange, which is a signatory to the letter sent to the Minister by the CBI, the QCA and the London Stock Exchange.
It is wrong to underestimate the anxiety that this clause causes among the business community. The purpose of this Companies Bill is, as has been stated many times, to give better information to shareholders and to increase, but not damage, the competitiveness of UK companies. Suddenly being asked to disclose all your suppliers is something that gives natural anxiety to quoted companies, particularly to smaller quoted companies which may well be dependent on only one or two suppliers. I speak as somebody with a long career as a director of the smaller quoted company. Nor, as the noble Lord, Lord Razzall, suggested, were we all on side and clearly enthusiastic about the OFR. Most smaller quoted companies were viewing it with real doubt and anxiety, and rather thankfully stopped having to think about it at the point it was suddenly withdrawn. Although I do not think it was withdrawn through any lobbying of ours, we had merely been anxious as opposed to lobbying.
However, having got over our shock at the requirement, I think that we can all accept Amendment No. 245 and can pull ourselves together to provide suitable disclosures about our suppliers. In this context, I welcome the assurance given by the Minister in his opening speech that the new clause was intended to require the disclosure of information at a high level. It was not intended to require companies to produce long lists of the names of their suppliers, but to illustrate the principal risks and uncertainties facing the company. We can indeed be asked to do that and should be, provided we are not risking our suppliers or our businesses by disclosing more than is commercially sensible. But it is entirely right to disclose the principal risks which the company faces and the loss of a small number of suppliers may well be one of the commercial risks which we face.
Against that background, I am able to support the amendment. However, I think that those who advocate the interests of the NGOs forget that small companies also have difficulties and interests that must be taken into account.
My Lords, I have spent most of my professional life dealing with the front-line issues of the Third World and deprived parts of the global community, and it is good to see the Government, having listened to argument, move in response to it. The Government often get criticised for not listening to informed argument. On this occasion they have. I agree, I must say, with the Liberal Democrat Benches that it would have been good to see them move further, but they have moved positively and they should be commended for that.
I make just one observation. This is not just about social responsibility in the way in which we normally think about it. Having been involved in the front line with social issues in the Third World, I know that that has a great deal to do with world security. The amount of animosity and alienation that derives from irresponsible business behaviour should not be underestimated. It can have a very detrimental effect on global security and play into the hands of extremists. On those grounds, as well, what the Government have been able to do needs to be strongly supported. In the spirit of goodwill and support which the Government are enjoying from so many people, I urge my noble friend seriously to consider the Liberal amendment which, it seems to me, puts a bit more beef into the methodology that will be available to fulfil the purpose.
My Lords, I support the government amendments and oppose Amendment No. 245C. I must declare an interest. I am the vice-chair of the Ethical Trading Initiative, but today I am speaking in a personal capacity. I welcome the government amendments as an acknowledgement that there are issues of labour standards, environmental, social and human rights that impact down company supply chains. I listened with interest to those who have expressed concern about that. In their annual reports, most companies declare themselves committed to corporate social responsibility. I welcome that. Of course, they should be judged by the level of commitment that they apply in practice. It is interesting that some companies declare quite a surprising amount of detail about their supply chain. Somehow they manage to survive the competitive risk.
It is a well known fact that in the global environment in which companies operate today, many of them share the same suppliers. They may not publicly admit that, but they do. I commend those who have said that what the Government are doing is a worthwhile but modest step in the right direction. I do not share the foreboding of Cassandra, alias the noble Lord, Lord Patten, on the terrible effects that the provision may have. It is important to note that this is a modest amendment. All it does is require 1,300 quoted companies to do what responsible companies were doing in the 1990s. According to the Minister's statement on Report, it will remain the directors' judgment what is relevant in the supply chain for them to report on and will not require companies to list their suppliers.
Some NGOs were calling for the Government to go a lot further. Like many others, I do not see anything wrong with that. I am struggling to get my head round a scenario where the Institute of Directors and the CBI are not being effective in their lobbying. Some of my trade union colleagues would say that they are far too effective. I leave the House to judge where the balance of evidence lies on that front. I cannot believe that they do not have the ear of the Government.
NGOs were calling for the Government to go a lot further in strengthening the rules in the Bill on companies' social and environmental impact, including stronger reporting requirements—several noble Lords, including the right reverend Prelate, referred to that—and a positive duty on directors to minimise negative impacts. Personally, I do not see a problem with allowing directors to withhold information that might present individuals with a risk to their privacy, safety or security from threats by animal rights or other extremist organisations. That is not a theoretical threat or risk; we know that it exists and I welcome the Government for acknowledging that.
However, I would welcome clarification about the circumstances where directors could legitimately withhold information about suppliers and examples of where that would be seriously prejudicial to a person or contrary to the public interest. I would welcome the Minister expanding on that. He gave some clarification, but it is important that that does not become a get-out clause. In particular, I am concerned that the amendment will be open to abuse by directors who want to withhold information about supply issues that should be in the public domain, as other noble Lords have said. I should like reassurance from the Government that the drafting of the provision does not leave it open to abuse in that way.
Also, I believe that the amendment could be improved by introducing a "comply or explain" principle, as under the combined code on corporate governance: that is, requiring directors to make a statement in their business review indicating that information about suppliers has been withheld under that provision.
I oppose the amendment tabled by the noble Baroness, Lady Noakes. Despite her assurances, I believe that it would seriously weaken the government amendments. With those caveats, I welcome what the Government have done.
My Lords, I must apologise for not having been in the House when the debate began. I was so busy struggling with the Bill and its surrounding papers that I lost track of the time. Because of that, I will not speak at such length as I originally planned. I speak in support of Amendments Nos. 245A, B and D and welcome the Government's introduction of the amendment.
The amendments must be read in the context of Clause 158, which deals with the duty to promote the success of the company. I underline Clause 158(1) (c), which states that one factor is the need to foster the company's business relationships with customers, suppliers and others and, perhaps even more important, Clause 158(1)(e), where it is the duty of the directors to consider the desirability of the company maintaining a reputation for high standards of business and conduct.
In the context of those requirements on directors, it is clear that the amendments partially give effect to those paragraphs. I have some difficulty understanding the opposition to the government amendment. What is proposed is very modest indeed. I do not understand what the big business lobby is afraid of. Are their supply problems so bad that the company's directors do not want even their own shareholders to find out about them? If so, surely it is only right and proper to ensure that there is sufficient transparency for investors, who demand improvements from the companies in which they are members.
It is well known that fine intentions are not sufficient. For that reason, it is important to pay careful attention and to support AmendmentNo. 245D, which ensures that the requirements of the Bill will have a much better chance of being implemented if companies are audited.
As I said, these are extremely modest steps forward and I support the government amendments.
My Lords, this has been a very interesting debate and I thank all noble Lords who have spoken. In view of the time and the large number—
In reply to those two amendments, I say to the noble Baroness, Lady Noakes, that one person's unseemly haste is another person's foot-dragging correction of an error. When we responded to the many queries from business, we were constantly told that this was a good thing. We were never told that this was unseemly haste. It is in keeping with what we have done in this Bill constantly to listen to what people are saying and to respond. The noble Baroness has similar concerns to us about the practicality of this but, if the amendment were accepted, companies would be excused from disclosing any information that the directors viewed as seriously prejudicial to the interests of the company, to the reporting company, or to the other company or person, or contrary to the public interest. This is going far too far towards giving companies a let-out from reporting information that would otherwise be required. It says in effect that any bad news should not have to be reported. That is not an accounting principle that I understand. Some bad news will be prejudicial to the reporting company, and it should be. That is not the problem with which we are trying to deal; we are trying to deal with extremist groups who want to use relationships between companies as a way of attacking them. The amendment would be a Trojan horse, which is why we oppose it.
Our Amendment No. 245B is not a Trojan horse. It is clear what it is; it is about prejudice to the other company, and there is a public interest test which it is perfectly reasonable and practical to have. It is not unusual for directors to have to waive public interest. The only alternative would be some authority having to do that, which is not a route we want to go down.
As I explained earlier, we are conscious that information could be damaging to a reporting company if it was known that it was in a relationship with a company engaged in animal testing. In very many cases, that will not need to be disclosed as it will not be essential to the reporting company's business, but if it were, the prejudice would be not only to the reporting company but to the company itself because it would lose the business if the reporting company had to withdraw. Alternatively, the threat might be that the other company would be boycotted if it continued a relationship. Again, that would prejudice the other company. In effect, it would force the other company to choose between the reporting company and its other companies.
For those reasons, we cannot agree to the noble Baroness's amendment. If Conservative noble Lords think that it is right to oppose this rather modest clause—it is modest because we must be realistic—they should not start making speeches either about corporate responsibility or a duty to shareholders, because this is a very clear example of a proposal that is in the interests of shareholders as well as sensible corporate responsibility.
I am grateful to the noble Lord, Lord Razzall, for tabling his amendment. As I mentioned in my opening speech, several interest groups have lobbied throughout the course of the Bill for a strengthening of the various provisions relating to the business review. One theme has been standards with statutory backing. It has been very clear—this was emphasised again in the meetings which the Minister and I had earlier this week with representatives of the CBI and others—that business groups do not want statutory standards. We agreed that they would not necessarily be helpful to what we are trying to achieve. We want to encourage directors to think about the issues on which they are reporting; we do not want to encourage a box-ticking culture. We think that Clause 399 provides a framework for reporting with sufficient flexibility to enable the directors to determine what information it is necessary to include. This will vary from company to company, depending on their size, the complexity of the businesses and their particular circumstances. A requirement that any part of the business review must comply with statutory standards would take away the directors' judgment about what information it is relevant to include. Companies would have to follow a statutory standard when reporting key relationships.
As we made clear, the Accounting Standards Board has said that it will update its existing reporting statement to cover the business review. This will provide helpful guidance to companies on the business review as a whole and will be useful to investors. The ASB's existing reporting statement covers the reporting of key relationships, and I am sure that it will continue to do so. It is also for a company's shareholders to hold the directors to account. If the shareholders want the review to be produced in accordance with particular guidance or standards, it is for them to challenge the directors.
I should say to those who have rather emphasised the modest quality of our proposal that we want something that is realistic to which directors can be held. We do not want something that simply sounds nice but is totally impractical. People should focus on the fact that many large businesses today will have 2,000 or 3,000 suppliers spread across the globe. The idea that it is sensible or practical to ask those companies to give definitive answers on all the social aspects of those suppliers' businesses is simply unrealistic. We can demand it, but no one should think that it is sensible and realistic and will further the cause of social responsibility.
I ask the noble Baroness and the noble Lord not to press their amendments. Both of them come from different angles and neither is helpful to Amendment No. 245, which we have proposed, or to Amendment No. 245B, which makes a sensible amendment to Amendment No. 245 to deal with extremist groups.
My Lords, I apologise to the Minister for seeking to deny him a response to the debate. That was not my intent: as I am sure he will be aware, we are as keen to get to the end of our consideration of Commons amendments as he is.
I think I was saying that I was not going to take too much of the time of the House to respond to individual points made in the debate, but I want to make our position clear. We are not against socially responsible disclosures, and I would not want anyone to seek to paint my amendment in that way. I do not believe that the Government's amendments will require very much disclosure on the part of the companies from whom most of the NGOs want disclosure. That is a consequence of the Government's wording. I do believe, however, as I tried to set out, that harm may well be done to smaller quoted companies by having to disclose matters that might involve either violent protesters or commercial harm. That was the basis on which I judged it right to table an amendment to narrow those disclosures for those smaller companies that could be seriously affected by this.
The Financial Reporting Review Panel is there to police any disclosures. Although people talk about a Trojan horse approach and companies trying to evade proper disclosure, arrangements are already in place to ensure that it takes place. There is also a power to amend the disclosure requirements should it become necessary later. We do not think that our amendments are unreasonable. Although they offer important protection to a relatively small number of companies, they are ones that deserve protection.
My Lords, the Minister made what I thought was an inadequate argument as to why this amendment should not be passed. So far as I could see, the only substantive point he made was that the CBI and the Institute of Directors do not want it. It may come as news to the Minister that there is quite a lot that the CBI and the Institute of Directors do not want, but that is not normally a reason for the Government not doing something. As I said when speaking to the previous amendment, the major purpose behind this amendment is to ensure that there are common standards so that investors in companies, particularly those who wish to invest on an ethical basis, have a community of standards that they can see from the reporting standards which can only be brought in by the Government. I do not accept the argument that the CBI does not want it as a reason for refuting the arguments which have been made by NGOs. I therefore should like to test the opinion of the House.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 246 to 254.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 255 to 257. I shall speak also to Amendments Nos. 260, 262, 273, 283, 284, 286 to 288, 292, 296 to 301, 916, 935 and 1017.
The first 19 of these amendments remove from the Bill the special rules on the audit of companies that are charities. The final two make similar changes to the Companies Act 1985. In future, the rules on the audit of charities will all be contained in charity law, whether the charity is a company or not. The Charities Bill was amended in another place on Wednesday evening to achieve the same result. We are making these changes to complete changes to the Bill begun on Report in May, on the basis of amendments put forward by the noble Lord, Lord Hodgson.
The result will be to complete the process that those amendments started of simplifying the law on scrutiny of the accounts of small charitable companies. These changes will reduce the complexity of this part of company law and make the rules on audit easier to understand for small charities.
The Office of the Third Sector carried out an informal consultation, which showed widespread support for the simplification. The changes to the existing Act will enable us to give effect to the simplification early next year, in co-ordination with changes to charity law. I hope the noble Lord will acknowledge that these are not only fine words but a veritable feast of buttered parsnips.
Moved, That the House do agree with the Commons in their Amendments Nos. 255 to 257.—(Lord McKenzie of Luton.)
My Lords, I am grateful to the Minister for that reassurance. Concern has been expressed, as he explained to the House, that since we made the changes in the Bill here, which were subsequently reversed, the Charities Bill has had a further airing and a power has been inserted in it. Amendment No. 80 to the Charities Bill inserts a new clause in that Bill before Clause 77.
We are not necessarily unhappy about these amendments because, as the Minister has pointed out, they take all the scrutiny of charity accounts into the charities regulations, which seems sensible. We need to be clear, though, that there is co-ordination between the DTI and the Cabinet Office, the department responsible for charities, on the timing of how this will all happen. I think I heard the Minister say it is all intended to be brought into effect early in the new year. Concern has been expressed that with the power being a power only in the Charities Bill, there may be some temptation, dare I say it, to backslide and say, "It's all frightfully difficult. We'll hold back and put it off for a bit longer". That, obviously, is undesirable. If we do not co-ordinate the two Bills properly, charities will end up subject either to no regulation or to two sets of regulations simultaneously. That is also undesirable. I am seeking a reassurance this afternoon that the Government are on the case on that and that there is no intention to delay the implementation of the new regime for charity regulation.
My Lords, I am happy to give the assurance that the Government are on the case. The co-ordination is important, and I reiterate that the changes will enable us to effect the simplification early next year. That is our intention.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 258 to 262.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 263. Amendments Nos. 263, 265 and 757 are the net result of a series of amendments that have been tabled in both Houses concerning the provisions in Parts 15 and 24 relating to disclosure of information by the Financial Reporting Review Panel and the Takeover Panel.
It is fair to say that we had not anticipated that these disclosure provisions would attract the degree of debate that they have. They were closely based on existing precedents in financial services and company law. Nevertheless, the debate has been extremely valuable. It has served to remind us of the sensitivities and conflicting priorities involved in any regulatory disclosure provisions such as these.
We view positively the discussion we have had. It has caused us to reflect on the whole scope of the disclosure provisions related to the Financial Reporting Review Panel and the Takeover Panel and look at them afresh. We have discussed in substance with both the respective panels whether the framework of disclosure provisions strikes the right balance, recognising the need properly to protect confidential information while facilitating the exchange of such information between regulators and others in certain circumstances. Both they and we have concluded that the disclosure framework properly achieves that balance.
Moved, That the House do agree with the Commons in their Amendment No. 263.—(Lord Sainsbury of Turville.)
My Lords, I thank the Minister for the amendment that brings the Data Protection Act into play in respect of the Financial Reporting Review Panel. However, we are disappointed that the Government have chosen to overturn the other amendments that we made to improve—as we saw it—the controls on disclosure. Today is not the right day to have a wide-ranging debate on the advantages and disadvantages of information gateways. However, we have warned in this House and in another place of the dangers to companies of inappropriate disclosure. We hope that the Government will keep the use of these powers under review and will be prepared to act if such inappropriate disclosure takes place.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 264 to 314.
My Lords, this is the moment that I have been looking forward to. I beg to move that the House do agree with the Commons in their Amendments Nos. 315 to 512. I spoke to these amendments with Amendment No. 70.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 513 to 529.
Amendments Nos. 513 to 519 combine provisions that have been in the Bill from the outset in relation to debentures with a restatement of relevant provisions from the 1985 Act. There is no change of substance.
It may be helpful if I explain why there is there no equivalent for the register of debenture holders of the requirement, in Clause 119, for the company to advise those accessing the register of the date to which it has been made up. The Bill follows previous Companies Acts in that it does not regulate the content of the register of debentures in the way, in particular, that it does not require the register to include dates of becoming or ceasing to be a debenture holder. Therefore, it would be anomalous for companies to be required to provide for the register of debenture holders the sort of information which they have to provide under Clause 119 in relation to the register of members.
Furthermore, the relationship between the company, the holders of debentures and the holders of interests under any related trust deed is generally regulated by documents which are not part of the company law architecture. It would be excessively regulatory, and possibly wholly inappropriate, to impose an obligation for registers of debenture holders similar to Clause 119 for registers of members.
Moved, That the House do agree with the Commons in their Amendments Nos. 513 to 529.—(Lord McKenzie of Luton.)
My Lords, I asked for this group of amendments to be degrouped. I was forewarned of issues that would need to be discussed. The Bill team very kindly drew my attention to a letter from Vera Baird, dated
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 530 to 536.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 537 to 558.
Part 21 is concerned with the certification and transfer of shares and other securities. I am pleased that there has been a broad measure of agreement on these clauses, which both restate existing statutory provision in respect of the certification and transfer of securities and extend the existing power under Section 207 of the Companies Act 1989 to require, as well as to permit, the paper-free holding and transfer of company shares.
I remind noble Lords of the background to this part. The Government have welcomed the work of industry groups, which are looking at options for greater use of paper-free holding and transfer of shares. Responses to the Company Law Reform White Paper of March 2005 showed strong support for this initiative, but it is also clear that more information is needed on the costs and benefits of making a more extensive use of a paper-free approach. The Government do not wish to rule out any option at this stage and therefore propose to extend the existing power relating to evidencing and transferring securities without a written instrument under Section 207 of the Companies Act 1989, so that it could be used to require, as well as to permit, the paper-free holding and transfer of company shares. If the power were used in this way, the Government would wish to ensure that the new arrangements for paperless holding and transfer of securities did not deprive individual shareholders of existing rights which may be important to them.
As the Economic Secretary to the Treasury made clear last month in replying to the recent consultation on this subject by the Institute of Chartered Secretaries and Administrators, a number of issues remain to be resolved before any decision can be reached as to how, or whether, the extended power should be used. I will place a copy of my honourable friend's letter in the House Libraries. We are very grateful for the continuing work of the industry groups that are looking into the practical implications of greater use of paper-free holding and transfer of shares.
Amendments were tabled earlier with a view to clarifying the relationship between Section 207 of the Companies Act 1989 and the provisions in Part 21 that extend and make further provision in respect of the Section 207 power. We said that we would give serious thought to addressing those concerns by some form of "consolidating" amendment to Part 21. This is achieved through Amendments Nos. 537 to 558. We are satisfied that Section 207 can be repealed, and the new clauses introduced by these amendments brought into force, without in any way affecting existing regulations made under Section 207 and the systems that rely on them.
The new clauses introduced by AmendmentsNos. 537 to 551 restate provisions of Sections 183 to 189 of the 1985 Act relating to the certification and transfer of shares and other securities. The new clause introduced by Amendment No. 555 differs in two respects from the corresponding clause in the Bill as it left your Lordships' House earlier this year. The clause now makes clear that, where regulations under the clause enable companies to adopt new-style paperless holding and transfer of shares arrangements, companies need not make it obligatory both to hold and to transfer their shares in this way: the new system could relate just to holding or just to transfer. This increases the potential flexibility of the regulation-making power, which is sensible while the precise shape of the proposed new arrangements remains somewhat unclear.
Secondly, the new clause uses the language of "exercising rights" rather than "giving instructions" in respect of the preservation of existing rights. It is important to ensure that the existing rights of those who are beneficial, but not legal, owners of shares are not disturbed by the new arrangements; and the new wording achieves that better. We are grateful to the Law Society for making comments that have inspired these changes, and to noble Lords opposite who championed similar amendments in Grand Committee.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 559 to 623.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 624 to 631. These new clauses restate Part 15 of the 1985 Act in so far as these provisions apply in relation to Part 22 of this Bill. Part 22 enables public companies and, indirectly, members of the company to ascertain the underlying beneficial owners of shares. The company may apply to the court for an order under Clause 607 directing that the shares in question be subject to various restrictions under Part 15 of the Companies Act 1985, which include voiding any transfers of the shares and providing that voting rights are not exercisable in respect of the shares. The provisions of Part 15 are restated without substantive change in the new clauses. Part 15 will remain in the 1985 Act, because it applies also to Part 14 of that Act, which will remain in force. Nevertheless, we think that it would be helpful to restate that in these new clauses, so that the reader can find all the relevant provisions for Part 22 in one place.
We have consulted on these clauses and are grateful to the Law Society, in particular, for its comments and I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 624 to 631.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 672 to 674.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 675 to 709. I shall speak also to Amendment No. 845.
These amendments restate provisions in the 1985 Act relating to the registration of company charges and provide three new regulation-making powers, meeting the commitment that I gave when we withdrew our proposals for a general reform power. The new clauses inserted by Amendments Nos. 675 to 707 restate Part XII of the 1985 Act, which provides a system for the registration of charges created by a company. As I have already explained in relation to other amendments that restate the 1985 Act, while there has been an element of restructuring, no substantive changes have been made other than to ensure compatibility with the Bill. In that respect, I draw noble Lords' attention to one such change—our decision to remove defective provisions relating to overseas companies. Instead, we have provided a new power in Amendment No. 845 to address the problems created by those provisions. I shall return to that shortly.
The approach to restatement of the existing provisions means that the new provisions retain the imperfections of the existing system. AmendmentNo. 709 meets the commitment that I gave to the Grand Committee and provides power to amend this part by altering, adding or repealing provisions. I should emphasise that this is not a power to replace the current system. The purpose of the power is to make changes within the confines of the existing system. I note that the Delegated Powers and Regulatory Reform Committee considers that to be an appropriate delegation of power. We intend to use that power to address the many imperfections of the present system, particularly those noted by the Company Law Review in its final report.
In particular, we intend to use it to update the list of charges to which the provisions apply, to provide that a copy of the instrument, rather than the instrument itself, be delivered to the Registrar of Companies, and for other measures to improve the existing system to reduce the burdens on companies and on the Registrar of Companies. But we do not expect to use the power immediately. Rather, we intend to consult fully, building on the discussions that have been continuing for some time, and to take account of changes in the pipeline to enable electronic conveyancing in England and Wales and automated land transfer in Scotland.
The new clause inserted by Amendment No. 708 provides the power needed to ensure the operability of the new registration system for floating charges in Scotland. Without that provision, floating charges created under Scots law would have to be registered with the Registrar of Companies in addition to their registration on the new Scottish register of floating charges to be established under the Bankruptcy and Diligence etc. (Scotland) Bill. It is intended to use this power so that floating charges registered in the Scottish register of floating charges do not also have to be registered with the Registrar of Companies. This will be a deregulatory measure. However, the power will be used only if arrangements are in place, in particular those relating to information-sharing between the two registries, to ensure that third parties can still easily discover information about a company's registrable charges.
Amendment No. 845 addresses the significant defects in the current system for the registration of charges as it applies to charges over the UK property of overseas companies. It provides a new regulation-making power to require those overseas companies that are registered with Companies House under Clause 700 to register charges over property in the United Kingdom when they grant specified charges over their UK property. Where the charge has been created before registration takes place, we intend to use the power in Clause 700 so that, when an overseas company registers its UK presence, it is required to file details of specified existing charge over its property in the UK.
Moved, That the House do agree with the Commons in their Amendments Nos. 675 to 709.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 710 to 756. These provisions concern reorganisations, arrangements and reconstructions within a company, and allow some types of merger or demerger to take place. They restate Part XIII of and Schedule 15B to the 1985 Act with only two changes of substance.
First, there are amendments concerning orders amending company constitutions that must be filed with the registrar. These are included for consistency with provisions concerning other such orders. Secondly, in the new clause introduced by Amendment No. 751 concerning the independent requirement of experts and valuers, we have taken a power to specify a disallowed connection for the purpose of determining whether a person meetsthe independence requirement. That is consistent with the approach that we have taken in Clauses 327 and 843. We have consulted on the draft clauses and are particularly grateful to the Law Society for its comments.
Moved, That the House do agree with the Commons in their Amendments Nos. 710 to 756.—(Lord McKenzie of Luton.)
My Lords, before calling the next amendment, I must advise the House that due entirely to my inability to read the Clerk's handwriting, I misread the result of the vote on Amendment No. 245D. The results were, in fact, that the Contents were 48—as I read—but that the Not-Contents were 152, not 192 as I read out. I apologise to the House; it makes no difference to the result of the vote on that amendment.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 759 to 777. I speak also to Amendment No. 995. This group of amendments is a further part of the restatement exercise. Clause 675, Schedule 3, which it introduces, and the amendments that we are dealing with now are all concerned with what are known in jargon as squeeze-out and sell-out rights. Squeeze-out and sell-out are designed to address the problems of, and for, residual minority shareholders following a successful takeover bid. These concepts are not new; they have long been part of UK companies legislation. Provisions in respect of them are currently to be found in Part XIIIA of the Companies Act 1985.
This clause and Schedule 3 had two main purposes in seeking to amend Part XIIIA of the 1985 Act. The first was to bring existing squeeze-out and sell-out rights entirely into line with Articles 15 and 16 of the takeovers directive, which introduces EU-wide rules on these matters for the first time. Secondly, we wished to implement a number of recommendations from the Company Law Review relating to squeeze-out and sell-out.
The present amendments would restate Part XIIIA—on takeover offers—of the Companies Act 1985 in a clearer and simpler form. In doing so, the restated provisions would absorb those changes proposed to Part XIIIA now to be found at Clause 675 of and Schedule 3 to the Bill. I hope that these amendments will be supported.
Moved, That the House do agree with the Commons in their Amendments Nos. 759 to 777.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 778 to 784. This group also includes Amendments Nos. 894, 996 and 997.
The majority of these amendments form part of the overall restatement exercise. A number of them restate various provisions of the 1985 Act which in some way relate to offences or sanctions—for example, the provisions on fraudulent trading and unfair prejudice. No changes of substance have been made.
Amendments Nos. 996 and 997 remove a large number of paragraphs from Schedule 4. The paragraphs in question purport to make changes to offences provisions in the 1985 Act. However, as a result of the restatement exercise, the relevant provisions have now all been included within the Bill, with the necessary changes incorporated. The paragraphs are therefore now redundant.
Finally, Amendment No. 784 adds a new clause to the unfair prejudice provisions. If the court makes an order amending the company's articles, the new clause ensures that updated articles are registered and that a copy of the court order is supplied with any copies of the articles issued by the company, unless they already incorporate the amendments. This additional provision has been included to ensure consistency with Clauses 31 and 36 as they now stand and with the way in which they deal with resolutions and agreements which affect a company's articles.
Moved, That the House do agree with the Commons in their Amendments Nos. 778 to 784.—(Lord McKenzie of Luton.)
My Lords, I am grateful to the Minister for that explanation. I intervene briefly because fraudulent trading is an issue that particularly concerns directors of smaller companies. They are, by their very nature, more financially vulnerable. Such companies are a very important part of our growing economy, and the position of their directors needs to be clear at all times, not least because the offence carries a penalty of up to 10 years' imprisonment if they get it wrong.
I think that the Minister said "no changes of substance". I want to make it absolutely clear that a company director's position has not shifted. I want to ensure that this is a restatement and that we are not clawing back or changing the balance in any way. This is an important aspect for the generality of directors of Britain's companies as a whole.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 785 to 832.
These amendments essentially restate provisions of the current law. Noble Lords will remember that, at an earlier stage, we introduced into the Bill a new administrative procedure by which companies which have been erroneously struck off the register can be restored to life, so to speak. We also introduced new clauses to streamline the existing court procedures for restoration.
It is clearly illogical that the new provisions on restoration to the register should appear in the Bill but that the provisions on striking off from the register, to which they logically relate, should remain in the 1985 Act. These amendments therefore restate the relevant provisions of the 1985 Act, as amended by provisions introduced in this House, alongside the new provisions, so that the Bill will now set out the full regime governing both dissolution and restoration.
In undertaking the restatement, we have made no significant changes of policy but we have benefited from close scrutiny of the clauses by the Law Society and others. A number of drafting changes have been incorporated as a result.
Moved, That the House do agree with the Commons in their Amendments Nos. 785 to 832.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 847 to 861. This group also includes Amendments Nos. 866, 871, 872, 875, 879, 880, 884, 887 and 888.
Many of the amendments in this group are technical drafting changes—for example, correcting cross-references in the light of the restatement exercise—but a number of them make changes to the provisions on the delivery of documents to the registrar, and I want to say a few words about them.
Clause 725 already sets out very clearly what requirements a company must meet in order to have delivered a document properly under the Bill. But the Bill as it stands is not consistent in its treatment of a failure to comply with those requirements. For example, Clause 640 relates to the requirement for a company to submit an annual return. Clause 640(6) makes it clear that, for the annual return to be treated as delivered at all, it must have been properly delivered; in other words a company must have complied with all the requirements related to proper delivery set out in Clause 725.
However, there are other provisions in the Bill, relating to other types of document, which do not make the same explicit link to the requirements in Clause 725. This inconsistency seems unhelpful. It might be seen as implying that in certain cases only some, but not all, of the requirements for proper delivery need to be complied with, which would seem to beg the question of why they were requirements in the first place. It would also leave the status of documents which have been in some sense delivered, but which have not met all the requirements for proper delivery, rather ambiguous.
Amendment No. 852, therefore, now introduces consistency by setting out the general rule that, in order for a document to be considered as delivered, it must have been properly delivered in the terms of Cause 725. I think this avoids any potential ambiguity and will be useful both to companies themselves in providing certainty as to what they need to do, and to Companies House, and through them to users of the public register, in that it will encourage compliance and provide clarity as to when remedial action can and should be taken. Other amendments make changes consequential on this.
Moved, That the House do agree with the Commons in their Amendments Nos. 847 to 861.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 862 to 898.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 899. I shall also speak to Amendments Nos. 901 to 910, 998 to 1010, 1012 and 1013. These are essentially drafting improvements to the way in which the company communications provisions in the Bill operate. Government Amendment No. 1013 is the main one to note. It removes Schedule 7, which was inconsistent with the Financial Services Authority's draft transparency rules to implement the transparency directive. Instead, Schedule 6 will apply to all companies, subject to any additional requirements imposed on traded companies by the transparency rules. This simplifies the communications schedules.
I understand that there was no time to debate these amendments in another place. I therefore record our thanks to the Opposition for Amendments Nos. 999 and 1004 to Schedules 5 and 6, to which the Government put their name. It is clear that the requirement is for the person to post a prepaid envelope to the company. It is irrelevant whether that person or someone else pays the postage as long as it is not the company having to pay on receipt.
Moved, That the House do agree with the Commons in their Amendment No. 899.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 900 to 910.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 911 to 915. The new clauses inserted by the amendments restate the law on the independence of persons who are required to value non-cash assets; for example, in connection with an allotment of shares by a public company. The new clauses have the same effect as Section 108 of the 1985 Act, but for convenience they now spell out the full statutory auditor qualification requirements, rather than cross-referring to the statutory auditor provisions which are restated in Part 35 of the Bill.
Moved, That the House do agree with the Commons in their Amendments Nos. 911 to 915.—(Lord McKenzie of Luton).
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 917 to 934.
These amendments are consequential to the restatement exercise. Amendments Nos. 917 to 934 and 1014 to 1016 provide definitions of key terms used in the restated clauses and revise existing definitions where necessary. Amendments Nos. 1027 and 1028 replace the schedule of appeals.
Moved, That the House do agree with the Commons in their Amendments Nos. 917 to 934.—(Lord McKenzie of Luton.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 935, to which I have spoken with Amendment No. 255.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 936 to 945.
These provisions address a loophole in the present law. Persons who have been disqualified from being a director, holding an equivalent position or engaging in the management of a company in another state are currently able to form a company in the UK, appoint themselves a director of that company and then operate that company either in the UK or in the state where they have been disqualified. The provisions would give the Secretary of State a power to close the loophole by making regulations to disqualify from being a director of a UK company persons who have been disqualified in another state.
Moved, That the House do agree with the Commons in their Amendments Nos. 936 to 945.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 946 to 953, to which I have already spoken.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 954.
Amendments Nos. 954 and 957 delete provisions aimed at applying the Freedom of Information Act 2000 to the Professional Oversight Board of the Financial Reporting Council. When we last debated this, my noble friend Lord McKenzie explained that the Government understood the arguments in favour of greater public access to information held by bodies carrying out public functions and that the prospective review of the coverage of the Freedom of Information Act to be carried out by the Department for Constitutional Affairs was the best way of addressing which public functions of which bodies should be included. This will cover the various parts and functions of the FRC, some of which it may be appropriate to cover and some of which it maynot be.
At Third Reading, the House voted in favour of opposition amendments that would effectively exercise by statute an order-making power in the Freedom of Information Act to apply that Act to the body or bodies to which the Secretary of State delegates certain functions under the Companies Bill. In practice, this body is likely to be the Professional Oversight Board to which the equivalent functions under the existing law are delegated.
The Government remain of the view that it would be better to use the process provided by the Freedom of Information Act, and to take a consistent overall approach to bodies carrying out public functions, including the various parts of the FRC.
As I have said, we accept that there are good arguments for extending the Freedom of Information Act to many non-statutory bodies that carry out public functions, such as the POB or the private prisons and school academies. There are also arguments that the costs of applying the Freedom of Information Act to some bodies may outweigh the benefits. That is why Section 5 of the Freedom of Information Act provides a process and a power for adding such bodies if it is appropriate to do so.
My noble and learned friend the Lord Chancellor and Secretary of State for Constitutional Affairs is considering the impact of the Freedom of Information Act 2000 on the public bodies that are already covered by the legislation. He recently published the results of an independent report he had commissioned to look into the impact of the Act on resources in handling freedom of information requests and is now considering the conclusions of the report.
He believes that we should ensure that the Act is operating effectively first, and only then should we consider extending the coverage to further bodies, such as the POB, using the power in Section 5 of the Act, ensuring that the application of the Act does not have a disproportionate impact on their ability to carry out their functions. We should not short-circuit that process by singling out the POB to be subjected to the Freedom of Information Act through this Bill. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 954.—(Lord Sainsbury of Turville.)
moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment 954, leave out "agree" and insert "disagree".
My Lords, in moving Amendment No. 954A to Amendment No. 954, I shall speak also to Amendment No. 957A, which deals similarly with Amendment No. 957.
The amendments made in your Lordships' House apply the Freedom of Information Act to two bodies to which certain audit functions of the Secretary of State will be delegated. Amendment No. 954 deals with the independent supervisor for audits carried out by the Auditors General. The more important amendment is Amendment No. 957, which deals with the Professional Oversight Board, which as the Minister has explained, deals on the Secretary of State's behalf with all other auditors of Companies Act companies.
The Professional Oversight Board, through its Audit Inspection Unit, examines the audits of listed companies and other important entities. The audit quality reports from these investigations remain private. Only the blandest summaries see the light of day. I explained this when we previously debated the matter in the House. The corporate governance rules which apply to listed companies positively require audit committees to make judgments about the effectiveness of their auditors every year, as part of the annual process of reappointing them, and of course from time to time companies put audits out to tender and consider new auditors.
I must say that a man from Mars would think it extraordinary that we have two completely separate systems—one where individual directors have to make quite difficult decisions about audit quality and effectiveness, and another system of appraisal of audit quality, but with absolutely no connection between the two systems. As the chairman or as a member of an audit committee I can get no information from the Professional Oversight Board that helps me to make the judgments on behalf of the companies in which I am a director. Indeed, I was told by the senior partner in one of my companies that if I ask him for the report from the Audit Inspection Unit, the Professional Oversight Board tells him that he cannot reveal it. So I and my fellow directors are being asked to fly blind.
The Freedom of Information Act may not be a perfect solution to getting more transparency, but I would feel much less passionate about the need to have this additional power if I thought the Professional Oversight Board was going to move voluntarily in the direction of transparency. In June it issued a consultation document, setting out some options for releasing more information. "Consultation" is a bit of a misnomer because no attempt was made to consult directly with individual companies or their audit committees.
A couple of months later, in late August, a letter was sent to some chief financial officers asking them to pass this so-called consultation on to their audit committees. I do not know how effective that was because I received one such communication, and I sit on the audit committees of four listed companies. The noble Lord, Lord Sharman, who is not here, has a similar story to tell on that.
Putting that on one side, the consultation proposals did not come close to giving the kind of information that I have explained that we need. Auditors are not hiding behind this. At least one of the big four would value its transparency and those in the second tier would positively welcome the greater credibility that they believe that the release of those reports would give them. In the context of a very restricted audit market, that should not be underestimated.
The Minister said again that we should wait for the Department for Constitutional Affairs to make up its mind about whether that should be extended. The right time to make a decision is when we are considering individual bodies to which Secretary of State functions are directed. That is what the Bill will do when enacted. The Secretary of State will pass his functions to those bodies. When he does so, the Freedom of Information Act stops applying to his functions. We should not let that continue. I beg to move.
Moved, as an amendment to the motion that this House do agree with the Commons in their Amendment 954, leave out "agree" and insert "disagree".
My Lords, I support the noble Baroness in her amendments. I acknowledge that I have come to this Bill somewhat late in the day, having been introduced to your Lordships' House only in mid-June—later than expected, I have to say, because, apparently, audit reports on certain prospective Peers were rather less than unqualified.
I must declare a number of interests, having been a chartered accountant for more than 40 years—albeit never in practice—and having been on the boards of a number of public companies of various sizes and the chairman and member of a number of audit committees. In recent years as a private investor I have focused on the smaller established public companies and write a regular monthly column on my portfolio activities for the Financial Times.
In preparation for this debate, I have looked back at the Hansards covering the passage of the Bill through both Houses and at the debates on the Freedom of Information Bill itself. In opening the first debate on the Freedom of Information Bill in December 1999, the then Home Secretary, Jack Straw, said:
"Moreover, the Bill will not only provide legal rights for the public and place legal duties on Ministers and public authorities, but will help to transform the culture of Government from one of secrecy to one of openness. It will transform the default setting from 'this should be kept quiet unless' to 'this should be published unless'.—[Hansard, Commons, 7/12/99; col. 714.]
We contend that the Professional Oversight Board for Accountancy—an operating body of the Financial Reporting Council—is the equivalent of a public authority. Hence, its reports on accountancy firms should be made public unless there are very good reasons to the contrary.
Having examined the record, I have not read any compelling reasons against the openness and disclosure that bringing the POBA within the provisions of the Freedom of Information Act would provide. We should be embracing ever-greater transparency.
There is an assumption that the amendments are solely about the standards and procedures of the big four accountancy firms. Although it is obviously true that they dominate the auditing landscape, especially for the larger capped stocks, in the world in which I operate, many smaller capped stocks are audited by a range of professional firms—obviously including the big four, but embracing many others. My role on audit committees, especially in the beauty parade of accountancy firms to which the noble Baroness alluded, would be considerably enhanced by independent assessment of their procedures and operations that I could access. We therefore support the amendments.
My Lords, this point has been fully debated at all stages in your Lordships' House, so I shall not retrace the whole argument. I will, however, make just three points.
First, the concern of the noble Baroness, Lady Noakes, is to protect the integrity of the people at the coalface—the men and women who sit on audit committees. The noble Lord, Lord Lee of Trafford, made a similar point. That might seem to be a persuasive one until one takes into account the fact that all audit committees are in exactly the same boat. As things stand, the content of any report produced by the Audit Inspection Unit cannot be accessed by any audit committee. It follows that no audit committee could reasonably be criticised for failing to take account of what the Audit Inspection Unit did or did not say about the qualities of one or other of the audit firms. This state of affairs could not conceivably give rise to a justifiable concern on the part of individual audit committees that they will be attacked or criticised for not having done a proper job.
Secondly, I very much doubt whether the form of any report produced by the AIU will be much use to any audit committee. A report tailor-made to the circumstances with which the audit committee is confronted might be more valuable, but there is no reason to suppose that reports take or will take any such form.
Thirdly, it is worth thinking through the consequences of the independent supervisor being designated under Section 5 of the Freedom of Information Act 2000, which would be the effect of the amendment. Sections 36(2)(b) and (c) of that Act exempt information if its disclosure,
"would, or would be likely to, inhibit ... the free and frank provision of advice, or ... the free and frank exchange of views for the purposes of deliberation, or ... would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs".
Section 43(2) also provides an exemption if disclosure of information,
"would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)".
The obvious implication of these provisions is that, for one reason or another, the requested information would simply not be forthcoming in any event, so there would be no practical purpose in making the designation.
There is some danger that crossing the wires between the regulatory structure that we are trying to put in place in these provisions and the possibility of aggressive requests made under the Freedom of Information Act may give some satisfaction to the legal profession but may not do much for the public interest or for better auditing standards with which we should be concerned. Apart from anything else, I fear that we will end up with anodyne reporting in an area that demands forthright honesty and absolute frankness. I respectfully urge the noble Baroness not to press her amendment to a vote.
My Lords, I strongly support what my noble friend Lady Noakes said from the Front Bench and what the noble Lord, Lord Lee of Trafford, said. I should declare that I regularly read his column in the Financial Times, although I do not think that the rules of transparency demand that I should reveal whether I have ever followed his investment advice or, indeed, profited or lost as a result of doing so.
I have only two points to make. First, my noble friend Lady Noakes is surely right that it is correct to try to help audit committee chairmen and members to fulfil a very difficult and demanding task, as anyone who has served on those committees will attest. It is therefore reasonable to request that the prognostications of the Professional Oversight Board for Accountancy be made available in the way that has been suggested. Of course I accept what the noble Lord, Lord Grabiner, said about no audit committee member being able to be held to have misdirected themselves or to have behaved incorrectly because they did not take into account something that they did not know existed. I fully understand that. Turning the argument on its head, the views of the Professional Oversight Board should be made available to audit committees so that members can be informed of its conclusions.
My second point—I have no commercial interest to declare; I was never clever enough to be a chartered accountant—is that business in this country is looking at an accountancy market that may well shrink. That will be very bad for commercial activity in this country. The big four are tip-top organisations, and I have benefited from their advice from time to time, but lots of companies in the second tier—for example, BDO Stoy Hayward, Grant Thornton or Robson Rhodes—would also benefit from the dissemination of information in widening the market so that we are no longer so over-reliant on the big four companies.
My Lords, further to what the noble Lord, Lord Grabiner, has said, it is by no means certain that applying the Freedom of Information Act to the POB would result in all Audit Inspection Unit reports being available. One of the reasons for doubt is that the AIU may have a strong argument that its reports fall within the exemptions in the FOI Act. For example, the inspection process relies on openness and candour on the part of the inspectors and audit firms, and the prospect of reports becoming public would reduce that candour, damaging the system to an extent that would outweigh the public interest in disclosure. We have heard that argument a lot of times in different contexts, and it seems totally applicable here.
The impact on how inspections are carried out is the main argument against disclosing the reports. The concern is that if the reports were published, audit firms would take a more defensive and legalistic approach to the disclosure of information to inspectors, and inspectors might feel that they had to be more circumspect in their criticism. The key objective of the inspection system is to improve audit quality through a constructive and collaborative process aimed at best practice rather than minimum standards. That could be undermined if the process became more formal and confrontational. Publication of results could encourage a rules-driven, litigious approach that would have the reverse of the desired effect of an inspection regime that improves audit quality through constructive dialogue.
As noble Lords may be aware, the Professional Oversight Board has consulted over the summer on disclosure by the AIU, and it is likely to report on the results soon. I understand that there was a good response from companies and members of audit committees, as well as from audit firms and professional bodies. The consultation document's main proposal was that the AIU's main report would include a section about a named audit firm if that firm had not made sufficient progress in addressing AIU recommendations. I understand that roughly three-quarters of respondents, including audit committee members, favoured either this proposal or no change from the current approach of never naming individual audit firms.
It is very doubtful whether the reports would be available. The arguments for not publishing them are remarkably persuasive. On that basis, I urge the noble Baroness not to press her amendment.
My Lords, I thank all noble Lords who have spoken in this debate. In response to the noble Lord, Lord Grabiner, it is not that audit committees want to avoid criticism for not knowing something; they want to make the right decision and to have auditors about whose quality they are comfortable. That is what drives the amendment.
I am aware that the Freedom of Information Act may not be the best mechanism, but the Information Commissioner is there to see that its exemptions are used correctly. He has been courageous in standing up to government departments that have sought inappropriately to hide behind exemptions, so I am happy to go with that approach. I wish to test the opinion of the House.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 955 and 956. I spoke to these amendments with Amendment No. 1.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 957. I spoke to this amendment with Amendment No. 954.
Moved, That the House do agree with the Commons in their Amendment No. 957.—(Lord Sainsbury of Turville.) moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment 957, leave out "agree" and insert "disagree".
The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 954A.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 957, leave out "agree" and insert "disagree".—(Baroness Noakes.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 958. I spoke to this amendment with Amendment No. 1.
My Lords, I beg to move that the House do agree with the Commons in their Amendment Nos. 959 to 968.
These amendments fall into two broad categories. Amendments Nos. 959 to 968, 970 to 979 and 1023 to 1025 seek to ensure that the transparency directive is implemented effectively and on time. The transparency directive will help to improve access to capital markets across the EU and ensure that investors have access to better information when they make investment decisions. Amendments Nos. 959 to 968, 971 to 979 and 1023 to 1025 amend the Financial Services and Markets Act to give the FSA the power to implement fully the transparency directive by making transparency rules.
While there is a general rule-making power, some of the particular provisions referred only to "voting" shares and not to obligations applying to other classes of issuers of traded securities required by the transparency directive. It was identified that this use of particular provisions for one class of security could lead to confusion as to how the clauses operate. To avoid any such confusion, these new amendments clarify the relationship between the general and particular provisions and make it clear that the particular provisions apply, as appropriate, to all the classes of issuer required by the directive. There are also some other minor adjustments to ensure that the wording of the clauses reflects clearly other particular provisions from the directive.
Amendment No. 970 deals with transitional arrangements and ensures that the Financial Services Authority consultation on transparency rules meets the requirements for consultations on proposed rules set out in Section 155 of the Financial Services and Markets Act. This is necessary to enable the Financial Services Authority to make transparency rulesthat come into force from the day on which the directive must be implemented into national law—
Amendments Nos. 980 to 987 and 1026 deal with liability for false or misleading statements in reports and statements publishedin response to a provision implementing the transparency directive, or otherwise. The background to these amendments is the Government's decision during the passage of this Bill, strongly supported by a wide range of stakeholder opinion, to introduce a statutory liability regime to cover disclosures required by the transparency directive and narrative reporting by UK companies. This was necessary to remove uncertainty about the liability regime, which risked constraining important disclosures by companies—for instance, in the narrative reports to be included in annual reports—thus reducing both their effectiveness and the accountability of directors. Accordingly, following discussion with stakeholders, liability provisions were introduced at the Report stage in this House.
Amendment No. 984 ensures that it is clear what liability regime would apply to potential as well as actual investors with regard to losses arising from reliance on periodic financial information disclosed under the transparency directive.
Amendments Nos. 980 to 983, 985 to 987 and Amendment No. 1026 address issues that were raised with the Government by consultation. It was suggested in another place that the liability regime should be clarified across a wider scope. The Government consulted on this over the summer and specifically asked whether liability should be clarified in respect of disclosures made under the FSA's disclosure rules, preliminary announcements of results, disclosures made by companies with securities quoted on the alternative investment market, and transparency disclosures by companies admitted to trading on an EEA-regulated market in situations where UK law is applicable.
When considering the issue of extending the liability regime to disclosures made under the FSA disclosure rules, the emerging consensus from consultation was that issuer liability is an extremely complex area in which it is vital that the Government get their policy right. Most responses said that an extension of the statutory regime was, in principle, desirable. However, there was no consensus on what the right policy would look like. Importantly, the consultation raised the point that, while the existing provisions in the Bill are there largely to produce certainty as to issuer liability for documents published in accordance with the transparency directive, these provisions, along with other provisions in the directive requiring disclosure of relevant information in all EEA-regulated markets and other developments in securities law, combined to make the existing common law position on issuer liability for other published financial documents increasingly uncertain.
The effect would be to restrict severely the content of issuers' annual reports and other regular publications to the market. Such a development would not be in the interests of a well functioning market. It is also necessary to consider the possible effects for the UK as a whole of any developments in common law that would increase the liability of issuers for any financial publications that they may make. It is necessary that very careful consideration be given to the consequences. This is a very complex area of law and public policy.
Amendments Nos. 987 and 1026 therefore give the Government the power to make further provision about liability for published information. This will enable us to make appropriate provision once further consideration has been given to the shape that such a liability regime should take. We recognise that this is a wide power, but stakeholders consider that it is important that provision should be made, and, subject only to what I am about to say about the review, the Government have already announced that we agree.
This power has also been subject to scrutiny by the Delegated Powers and Regulatory Reform Committee, whose consideration is that the subject matter of the power is sufficiently circumscribed to make the power acceptable in the light of the affirmative procedure provided.
The Government have announced that Professor Paul Davies QC, the Cassel Professor of Commercial Law at the London School of Economics, is to conduct a formal review of the liability of issuers in respect of damage or loss suffered as a consequence of inaccurate, false or misleading information disclosed by issuers or their managements to financial markets, including to their own shareholders or bondholders, or of failure to disclose relevant information. This will take into account both existing regulatory obligations and penalties, including criminal penalties, and the potential for liability in damages under existing common law jurisprudence. The review will also need to look at the position in other EU member states and more widely in the jurisdictions of other substantial financial services markets.
If Professor Davies's review recommends that the Government either implement a statutory liability regime for financial disclosures or make changes to the regime that we are putting in place to deal with financial publications required by the transparency directive, the Government will hold a full consultation on the Government's response to the review's proposals, with a full regulatory impact assessment of these proposals, and legislate for the new regime using the powers proposed.
Of course, it is possible that the review could recommend that no changes at all are required. Most responses to the Government's consultation also supported an extension of the liability regime to cover a preliminary announcement of results. It was argued that in practice these contain the same information as in annual and other reports required to be published by the transparency directive, and therefore captured by the statutory liability regime.
It was also argued that excluding the preliminary announcement of results from the scope of the liability regime would cause issuers to cease publishing them. Investors pointed out that they regard preliminary announcement as highly useful. Amendments Nos. 980 and 981 extend the liability regime to preliminary announcement of results. Nevertheless, in the light of the obvious existence of uncertainties surrounding an extension of the liability regime to disclosures made under the FSA disclosure rules, Amendments Nos. 980 and 981 ensure that any extension of the liability regime to preliminary announcements does not extend to all information contained within a document entitled "preliminary announcement", and is instead restricted to that information in the annual report, which the preliminary announcement properly presages. I should add that the extension is not set in stone. The power I have just discussed will enable the extension of the liability regime to preliminary announcements to be adjusted in the light of the outcome of Professor Davies's review.
Stakeholders also pointed to some confusion over how the liability regime as currently expressed in the Bill would apply to certain situations where either the issuer or the investor was situated in the EEA but outside the UK. In order to clarify that, Amendments Nos. 982, 983 and 986 change the territorial coverage of the statutory liability regime to ensure that the regime covers securities of all issuers for which the UK is the home member state, as well as to cover those issuers whose securities are traded on a regulated market situated in the UK and for whom the UK is the host member state. UK holders of security of other issuers—that is, those for whom the UK is neither a host nor a home state—will not be able to rely on the rights of action set out.
One further issue that was raised in response to the Government's consultation was that the wording of the Bill as it stands makes senior officials, not just directors, responsible for issuers' financial publications. Government policy is for only directors of companies and senior officials of issuers that are not companies to bear liability. Amendment No. 985 clarifies the wording of the Bill in that area.
Moved, That the House do agree with the Commons in their Amendments Nos. 959 to 968.—(Lord Sainsbury of Turville.)
My Lords, within this group I have two amendments, Amendments Nos. 984A and 984B, to disagree with Amendment No. 984 and insert different wording. Amendment No. 984B is not quite as draconian as it appears, because the latter half of the amendment is the same. It just has these words at the beginning,
"and provided that this subsection shall be without prejudice to the rights of any person which have accrued prior to this section being brought into force".
As I understand it, the Government's intention in subsection (2) is to confer the benefit of the new statutory compensation regime only on persons who, first, have acquired securities and, secondly, have suffered loss as a result of relying on a publication containing an untrue or misleading statement or omission made knowingly or recklessly.
Subsection (5) eliminates whatever common law other rights shareholders or any other persons may have, save as is provided for in subsection (7). As a result, subsection (5) will eliminate the rights of a much wider category of persons than will be protected by the new compensation regime in subsection (2). While that may be acceptable looking forward from the date the regime takes effect, it would not be appropriate for it to operate retrospectively so as to eliminate accrued rights of shareholders and other persons. The effect of the amendment is to preserve those accrued rights, including those of existing shareholders whose rights will be eliminated by the new regime. Although it is a principle of statutory construction that a statute should be presumed not to apply retrospectively unless the contrary intention appears, it is preferable to make the position clear in the statute in order to avoid any uncertainty.
The new liability clauses were originally in symmetry but, following an amendment introduced by Margaret Hodge in Committee in the other place on
My Lords, I rise to resist Amendment No. 984A. Clause 899, as amended by government Amendment No. 984, applies only in respect of reports or statements published in response to provisions implementing the obligations in the transparency directive. It cannot therefore apply to anything that is published before FSA rules come into force. FSA rules will not be able to come into force until the Bill achieves Royal Assent. The regime will then apply to all publications that are made in association with those rules. There is no question of this provision affecting any right of action that will have accrued before the Act achieves Royal Assent or before the provision itself comes into force. Therefore, I ask the noble Lord not to press his amendment.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 969 to 983.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 985 to 987. I have already spoken to these amendments.
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 988 to 991.
These clauses would confer a power on the Secretary of State and the Treasury to make regulations requiring certain categories of institutional investor to provide information about the exercise, or non-exercise, of their voting rights.
We welcome the valuable debate which this policy has attracted during the passage of the Bill, not least the detailed and thoughtful contributions from noble Lords opposite. I argue that two strong themes have emerged from this debate. The first is the near disappearance of those who oppose transparency of voting on principle. This is welcome: the case for transparency is a good one. It opens the way to a discussion of how best to achieve appropriate and cost-effective disclosures. It links also to the second theme: the strong support for an industry-led solution. This too I welcome. It is fully consistent with the Government's intentions in promoting this power. As I made clear, the Government intend to see how market practice evolves before considering a mandatory regime. This power is a reserve power, a back-up to be used if the voluntary approach does not deliver.
As I mentioned earlier, this debate has been marked by increased recognition that transparency of voting is right in principle. I think that this reflects more than just a belief that there is an entitlement to this information—it recognises the benefits of disclosure. First, greater transparency of voting can only increase the confidence of savers in the governance being exercised on their behalf by institutional investors. Secondly, disclosure will make institutional investors more accountable for the governance decisions they make on behalf of savers, providing stronger incentives to cast thoughtful votes.
It has been said that disclosures will distort voting decisions, either encouraging mindless voting or discouraging informed voting. It is hard to see how both can be right. If an institution is prepared to tell the company how it votes, as it should under the industry's best practice guidelines, I am not sure why wider disclosure would provoke such irrational behaviour. It is not obvious that the voting system in America has deteriorated in the years since it mandated disclosure. Thirdly, greater transparency helps institutional investors manage conflicts of interest from voting decisions, thus reducing the likelihood of votes that benefit the institutional investor, at the expense of the customer.
Fourthly, greater transparency will enhance shareholder engagement between institutions and investee companies. More accountability and stronger incentives to cast thoughtful votes promote more focused dialogue between companies and their owners' representatives. Again, some say that disclosure will actually harm engagement. If that is so, why are so many institutions—a dozen of the 35 largest at the last count, including major firms such as Standard Life and the Pru—moving to make voluntary disclosures? It is not just the voluntary trend. Major jurisdictions such as the US and Canada have adopted public disclosure rules, and other countries are thinking about it. Public support seems healthy; a recent survey among pension fund trustees found nine out of 10 agreeing that fund managers should publicly disclose their votes.
It seems to me that the case in principle for disclosure and for taking a power to make sure it happens has clearly been made. However, I am equally clear that the case for using the power is still to be made. Any disclosure regime must be workable and practicable, and it must be cost-effective. Accordingly, we have ensured that the power is so framed as to mitigate important concerns raised in these debates. The clauses that this House is now considering are not the same as those which were taken out of the Bill by this House at Third Reading. The amended provisions make clear that the Government have the power to include the following requirements in any mandatory disclosure regime—first, they can ensure disclosure of voting instructions, as opposed to disclosure of votes cast. Secondly, they can permit parties to meet their disclosure obligations by reference to other parties' disclosures in respect of the same investments. Finally, they can permit disclosures to be made at an aggregate level, for example, by a fund manager, where this does not conceal relevant decision-making at the level of the individual institutional investor. I agree that all those aspects may be elements of a proportionate and cost-effective disclosure regime, and they will need to be properly considered as it is being developed.
One issue that will need to be considered is public versus private disclosure. Some argue that there is a fundamental distinction between disclosure to members and disclosure to the wider public. However, I presume noble Lords opposite would support public disclosure where it was in the interests of the members, for example, if there were cost advantages in maintaining a public website, rather than writing to individual members; or through the greater scrutiny of potential conflicts of interest which might arise. Those will need to be weighed against any disadvantages of wider disclosure. However, in the absence of any further arguments, we should not prejudge this issue at this stage.
Another issue that will need to be considered is the risk of misuse of disclosures. In line with our approach elsewhere in the Bill, I make it clear that we do not intend regulations, should regulations be necessary, to become a vehicle for disclosure of information that would be used by, for example, animal rights activists, in a way that would harm companies' or investors' interests.
Let me turn now to the development of a proportionate and cost-effective regime. The Government are in no rush to regulate. This is not a concession to noble Lords opposite; it is a point of agreement on principle. There are good reasons why a voluntary industry-led regime may be the first best option to meet the Government's objectives. First, there is the evidence, ably brought out by noble Lords opposite, that a voluntary regime may be the lower cost option. A voluntary regime provides scope to build on the different mechanisms that already exist, drawing on the industry's best practice guidelines. Effort can be put into ensuring transparency, rather than box-ticking and rules-driven compliance. Secondly, it would be more flexible. Different organisations can adapt disclosure patterns to meet the needs of their constituencies. Good faith and transparency of practice will be key to making this credible. Thirdly, a voluntary regime is a chance for the industry to show ownership and commitment, as opposed to the Government imposing the requirements.
This ownership and commitment will be vital if a voluntary regime is to deliver the meaningful levels of disclosure needed to make this work. So I am greatly encouraged by the first steps that the industry is taking to put together a voluntary code. We support this and will want to talk to the industry.
Industry must have a fair time to deliver a workable solution and I repeat our earlier assurances: if the decision were to be made to exercise the power, the Government will ensure that there is full consultation and a cost-benefit analysis to make sure that any final regime was proportionate and properly targeted. Any final decision would, of course, be subject to this House's agreement through the affirmative resolution procedure, providing a further check on any precipitate rush to regulate.
The case for disclosure of voting is clear. The case of doing it in a way that maximises the benefit to investors in these collective enterprises and the public at large is equally clear. Noble Lords have our commitment that we will give the industry every opportunity to adopt a voluntary approach before we consider producing regulations. I beg to move.
My Lords, I beg to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 988, leave out "agree" and insert "disagree".
I shall speak also to Amendments Nos. 989A to 991A. We return to familiar ground and the case has been summarised by the Government that a reserve power is needed to compel financial institutions to disclose to the world at large, not their clients, how they have voted their shares. On these Benches, we argue that not only is this power unnecessary, it is undesirable on technical, practical and philosophical grounds, especially when it comes from a Government who keep stating and showing their deregulatory colours.
We debated this issue at some length in Grand Committee and it came to a head on Third Reading on
We note that financial institutions can now have the necessary information disclosed on their behalf by their agents and that disclosure can now be of voting intentions given. Finally, under Amendment No. 991 at subsection (5)(b), an institution will have to disclose only an aggregate of all its voting in respect of an individual company. But that destroys the value of the whole exercise.
Consider the position of a major fund manager who manages a series of unit trusts, investment trusts and pension funds for some of which he has responsibility in deciding how to vote and for others where the client has retained that right but has delegated the disclosure to the manager. We could then have a ludicrous situation where, for a major company, say, Marks and Spencer, a fund manager would have to report that in respect of a particular resolution at an AGM it voted, say, W shares in favour, X shares against, abstained on Y shares, while Z shares were not voted on at all. The fund manager would not even have taken the decision in respect of some of those shares.
In practice, this remains a valueless exercise but is also likely to give rise to our old friend the law of unintended consequences as outsiders and third parties seek to draw unwarranted conclusions from the figures disclosed. The House should be aware that there is already a trend towards greater public disclosure. The Investment Management Association, whose 35 members look after 62 per cent of all UK equities, reports a steady increase in the number of their members reporting publicly—three years ago it was seven, last year it was 10 and now it is 12. Hermes, which manages the huge British Telecom and Post Office pension funds is about to join, making 13 in all.
If the Government proceed with this clause, that momentum may well be stalled. Why spend money and resources on developing disclosure procedures that may well not fit with the regulations that are produced? It may be better to sit on one's hands and see what will be required by statute.
Disclosures, as, I think, the Minister accepts, are complex and do not fit with a one-size-fits-all requirement. The IMA's 2005 annual survey of fund managers' engagement analysed voting details that had been published on websites. The 12 managers that currently disclose publicly used a wide variety of ways of disclosing.
Some give narrative reasons as to how they voted in a contentious situation; some give narrative reasons for voting against, or consciously withholding their vote; some give no explanation at all. This wide variation in the matters reported indicates the complexity of the area and the difficulty of introducing a one-size-fits-all legislative requirement, which would only serve to undermine the progress made to date.
Furthermore, those that analyse the issues give narrative reasons to do so, in order to provide a clear picture to users. By contrast, legislative requirements would be likely to result in mechanistic, meaningless reporting. If regulations are made to require voting disclosure, there is a risk that managers could be discouraged from voting. Far from engaging with shareholders, as the Minister thought, the reverse could happen. That could in turn lead to some managers choosing to get round the disclosure requirement by not voting, which cannot be what the Government seek to achieve.
The killer blow to these amendments comes not from the City or, indeed, from the Opposition Benches. It comes from the Minister's colleague, the Chancellor of the Exchequer. He wrote in the FT on
"And it is this commitment to openness and internationalism, our light-touch and risk-based regulatory approach—combined with the great pool of talent gathered from across the planet—that underpins London's success as a modern international financial centre".
Clearly, the left hand of the Treasury has no idea what the right hand of the DTI is doing. We on the Opposition Benches are happy both to be the messenger between the two departments and—on this occasion, at least—to help the Chancellor of the Exchequer achieve his objective. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 988, leave out "agree" and insert "disagree".—(Lord Hodgson of Astley Abbotts.)
My Lords, this amendment provides one of the rare occasions in a Bill of this complexity—and, indeed, a quite rare occasion in this House—when how we would vote, were the House to be divided, would depend much on the quality both of the response from the Minister and of the speech by the noble Lord moving the amendment. That is because, as both the Minister and the noble Lord, Lord Hodgson, have indicated, this was debated strongly both in Committee and at Third Reading.
The noble Lord, Lord Hodgson, made an extremely powerful speech. I would have agreed with almost every word, had it been a speech on the regulations that the Government have announced they were about to implement. The real concern when we debated this, particularly at Third Reading, was that granting the Government this power would choke off the considerable activity by organisations to come up with proposals dealing with this issue voluntarily.
The first undertaking stated at some length by the Minister, with which I am sure the House agrees, is that it is primarily desirable to have a voluntary system here, if we can. If he was not going so far as to make this an undertaking, then I invite him to do so when he has the opportunity. However, I understood him to say that the Government will not exercise the power that they are taking under this section if they, and the City, are satisfied that an appropriate voluntary system has been put in place, and that the Government do not regard the existence of this power as providing any disincentive that would choke off the plans that many institutions already have in place to have a voluntary system. If he can firm up that undertaking, it will go a long way in persuading us to support the Government's taking this power.
The second point is extremely important, although the noble Lord, Lord Hodgson, did not touch on it. I understood the Minister to say that were he regretfully to have to exercise this power and bring in regulations, those regulations would not be implemented without extensive consultation with those who would be affected.
If I may say so, that would be the appropriate place for many of the points raised by the noble Lord, Lord Hodgson, to be reflected in the consultation. First, can the Minister confirm that this power will not be used unless, in extremis, the Government take the view that a voluntary system has not worked; and, secondly, can he repeat the undertaking that, were he to have to exercise the power, adequate consultation would take place to ensure that the points made by the noble Lord, Lord Hodgson, were taken into account in framing the regulations? If he can give those assurances, I am sure that he will be supported by these Benches.
My Lords, I shall respond to the two requests for reassurance from the noble Lord, Lord Razzall. First, I said at the end of my speech that we will give industry every opportunity to adopt a voluntary approach before we even consider producing regulations. That is absolutely clear. We will not impose a mandatory regime if industry comes up with an acceptable voluntary scheme.
I think that, in this case, we all agree what the objective is: we want to see more information about the exercise of institutions' voting rights. There is only one thing on which there seems to be any doubt. The noble Lord is arguing that the idea that there might be regulations in due course will totally turn industry off doing anything in this regard. I find that argument implausible and rather bizarre because it seems to me that the prospect of regulations would give industry every incentive to introduce a voluntary scheme. I think that the institutions will take a very sensible and mature view and get on with introducing further information about the exercise of their voting rights. In those circumstances, it seems to me that the prospect of regulation would be both a good incentive to the institutions and a sensible fallback if nothing happened. On that basis, I ask the noble Lord to withdraw his amendment.
My Lords, I am grateful for the Minister's further words. They may have comforted the noble Lord, Lord Razzall, but we have the following problems. The first is that there is a difference between the general public and members. Members are clearly entitled to know what is being done with their money on their behalf. The position of the general public being told is somewhat different. We do not like the idea of reserved powers.
I have no doubt that the Minister, with his long and experienced industrial record, does not wish to intervene in these things, but who knows what itchy fingers will follow him on the trigger of this particular gun? The voluntary system is working perfectly well at present and, frankly, the technical suggestions now made for cumulative disclosure, where a fund manager can reveal all his accumulated shareholdings, seem to us to destroy any value that might have been in the procedure in the first place.
The Government keep on talking about deregulation. They keep on saying how they want to keep the regulatory burden down, but they keep on ensuring that they pull powers. I am not referring to powers that are necessarily being used now but ones that are there for them to use at some date in the future should they feel they want to use them. I do not think that that is good enough and I wish to test the opinion of the House.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 989.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 990.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 991.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 992.
This amendment, which relates to disclosure of information under the Enterprise Act 2002, will permit disclosure to be made for civil proceedings overseas. When the clause was considered in this House, it allowed for disclosure for civil proceedings within the UK only. However, it was agreed in Committee in another place to consider a proposal put forward by the Opposition to allow disclosure for overseas civil proceedings for intellectual property rights holders only. It was also agreed to consult further with interested parties to determine whether the disclosure provisions for overseas proceedings should be extended to business and consumers as well as IP rights holders. That was because the disclosure provisions in this clause have been drawn up on the basis that business and consumers are treated equally. In general, the majority of those we spoke to agreed with this view, although I recognise that the CBI has concerns.
We have had a long debate on whether this gateway should be limited only to intellectual property rights holders. However, we support a more balanced approached in that consumers and business should have the information they need if they choose to seek cross-border redress. I stress that sensitive, competitive information will still be precluded from disclosure.
The reason we decided to make this amendment to the Enterprise Act was because stakeholders, business enforcers and consumer groups told us that there was a problem. We listened to those views and acted accordingly. I hope that I can reassure noble Lords that we are continuing to speak to interested parties about how the secondary legislation will look. My officials will be meeting representatives of the CBI shortly to take forward these discussions.
Moved, That the House do agree with the Commons in their Amendment No. 992.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 994. It removes subsection (3) of Clause 923. Subsection (3) was inserted in this House to declare that nothing in the Bill would involve a charge on public funds to avoid infringing the privilege of the other place to control charges on public funds.
The insertion of this wording is termed the "privilege amendment". The other place have now approved the charges on the public fund in the Bill and removed subsection (3) by Amendment No. 994.
In moving the amendment I claim three records—for the longest Bill to come before Parliament, the largest list of amendments from the Commons, and, finally, for the longest list of amendments moved en bloc.
Moved, That the House do agree with the Commons in their Amendment No. 994.—(Lord Sainsbury of Turville.)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 995 to 1029, to which I have already spoken.