Draft Economic Crime and Corporate Transparency Act 2023 (Consequential, Supplementary and Incidental Provisions) Regulations 2024
Draft Economic Crime and Corporate Transparency Act 2023 (Financial Penalty) Regulations 2024
(7 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)
I beg to move,
That the Committee has considered the draft Economic Crime and Corporate Transparency Act 2023 (Consequential, Supplementary and Incidental Provisions) Regulations 2024.
The Chair
With this it will be convenient to consider the draft Economic Crime and Corporate Transparency Act 2023 (Financial Penalty) Regulations 2024.
Kevin Hollinrake
It is a pleasure to serve with you in the Chair, Ms Vaz.
The first set of regulations were laid before the House on 30 January 2024, the second on 19 February 2024. These regulations form part of a series of secondary legislation needed to effectively implement the Economic Crime and Corporate Transparency Act 2023, which I will refer to as “the 2023 Act”. The measures effectively form the basis of a civil penalty regime and offer data- sharing help to ensure that we can fight economic crime.
The 2023 Act is a landmark piece of legislation, which demonstrates the Government’s commitment to tackling economic crime. As I have stressed on many occasions, it will bear down on kleptocrats, criminals and terrorists who abuse our open economy, will significantly strengthen the UK’s reputation as a place where legitimate business can thrive, and will drive dirty money out of the UK.
Passing the 2023 Act was of course only the first step on the journey to make these reforms a reality. We now face the task of designing and implementing the many new processes and procedures at Companies House, underpinned by a substantial programme of secondary legislation that consists of some 50 statutory instruments.
The first of those instruments has been approved by both Houses, which means that I am glad to announce that the first of the 2023 Act’s reforms has already taken effect. Companies House has started to cleanse the register and quickly remove names and addresses that have been used without consent. Going forward, Companies House is turning its attention to register entries that it knows to be problematic and is beginning to remove what it has already identified as manifestly fraudulent filings.
For example, last week there were media reports of hundreds of rogue filings at Companies House, totalling approximately 800 “satisfaction of security” forms. I am pleased to say that, thanks to the registrar’s new powers, all of these fraudulent filings have been taken down swiftly by Companies House. That would not have been possible prior to 4 March.
Although that is already a major improvement, there is much more work to be done. That is why we are here today to debate the next set of regulations in the reform programme.
I will first address the financial penalty regulations. Currently, obligations in the Companies Act 2006, which I will refer to as “the 2006 Act”, relating to the functions of the registrar are enforced primarily through the criminal justice system. The only civil penalty regime that Companies House currently operates under the 2006 Act is the accounts late filing penalty regime, where a company automatically incurs a penalty for failing to file its accounts on time. That regime will remain unaffected by these regulations.
The 2023 Act sets out that the registrar may impose a financial penalty as an alternative to criminal prosecution where the registrar is satisfied beyond reasonable doubt that a person has engaged in conduct amounting to a relevant offence under the 2006 Act. In turn, this instrument sets out the procedure for the imposition and enforcement of financial penalties.
If the registrar suspects that a person has committed a relevant offence, she may issue a written warning giving them at least 28 days to make representations about their conduct. If the registrar is satisfied beyond reasonable doubt that the person has committed a relevant offence, she may issue a penalty notice in writing to that person, giving them 28 days’ notice to pay the penalty. The instrument sets out that financial penalties imposed by the registrar may be fixed, a daily rate or a combination of both. The penalties will be based on the severity of the offence, up to a maximum total of £10,000. In certain cases, more than one penalty can be imposed. This flexibility allows proportionate and effective targeting of those who commit an offence.
The instrument gives the registrar the power to vary or revoke financial penalties on a case-by-case basis —for example, if new information comes to light that aggravates or mitigates any offence. The instrument also sets out the grounds for appeal and the court’s powers in relation to the appeal. This adds to the tools available to the registrar to promote compliance and maintain the integrity of the UK companies register. It means that the registrar will now have the discretion to choose to pursue a financial penalty or to pass over to law enforcement to consider criminal sanction. It is important to note that the 2023 Act allows that, where a civil financial penalty is imposed on a person, it can contribute to that person being disqualified from acting as a UK director.
All of this means that we are striking the right balance between deterring non-compliance and not unduly burdening small business. Companies House’s new intelligence hub will also strengthen the registrar’s role in fighting organised crime. The hub will use data science to identify patterns and threats of economic crime on the register. Via new data-sharing powers, Companies House will proactively share its analysis and intelligence with law enforcement partners and supervisory bodies. That will ensure that evidence of organised crime can be pursued by the most appropriate agency.
This instrument makes minor changes to the Register of Overseas Entities (Penalties and Northern Ireland Dispositions) Regulations 2023. These technical changes ensure consistency between the two financial penalty regimes.
As of 11 March 2024, 30,614 overseas entities had registered with Companies House. A further 857 overseas entities had notified Companies House that they had disposed of all their interests in land before the register opened. That is a very good rate of compliance, as Companies House estimates that 10% of the entities originally in scope are dissolved or struck off. Many of these entities are in the process of being restored to their respective register, and Companies House has been working with overseas jurisdictions to ensure compliance with the requirements.
Companies House has taken robust action against the entities that have failed to comply with the requirements. As of 11 March, more than 400 penalty notices had been issued, with penalties totalling more than £20 million. That includes cases in which Companies House has received representations and appeals that are ongoing.
The next phase in the compliance process is imposing charges against land held by overseas entities where penalties remain unpaid. I will provide a progress update when we debate the next set of regulations relating to the register of overseas entities, which we will lay in Parliament in the coming months.
The other of the two instruments before us today is the Economic Crime and Corporate Transparency Act 2023 (Consequential, Supplementary and Incidental Provisions) Regulations 2024, which make minor consequential amendments to the 2006 Act and the Economic Crime (Transparency and Enforcement) Act 2022. They also introduce minor technical changes to eight pieces of secondary legislation. These regulations ensure that the changes made to the 2006 Act will also apply consistently to the law governing other business entities registered in the UK where that is possible. For example, this lifts restrictions on the use and disclosure of certain data by the registrar, allowing her to share that data more widely, and particularly with public authorities for purposes connected with the exercise of their functions.
In conclusion, I emphasise that the regulations are a further step towards effective implementation of the 2023 Act. I hope that Members will support them. I commend both sets of draft regulations to the Committee.
Rushanara Ali (Bethnal Green and Bow) (Lab)
It is a pleasure to serve under your chairmanship, Ms Vaz. I start by thanking the Minister for outlining the case for these regulations. I am sure those colleagues who worked long and hard on the Economic Crime and Corporate Transparency Act 2023 welcome its implementation and the ambition to stamp out economic crime.
I begin with the consequential, supplementary and incidental provisions instrument. This technical instrument will ensure that company law applies coherently by making amendments to other primary and secondary legislation and ensuring that the law operates effectively and consistently for all registrable business entities. It will help strengthen the role of Companies House. It is not forecast to have a material impact and amends various existing laws to enact the 2023 Act, effectively tidying up existing legislation. As such, we are content to support the regulations.
I turn to the financial penalty regulations, which will allow the registrar to impose fines on a person if satisfied beyond reasonable doubt that they have committed misconduct, as opposed to resorting to penalties via the criminal justice system. Thus far, the only civil penalty regime operated by Companies House is the late filing penalty regime. In that situation, a company faces an automatic penalty if it fails to submit its accounts within the designated timeframe.
This new regime will operate in conjunction with potential criminal sanctions and will allow the registrar to decide whether to pursue a pathway of financial penalty or criminal sanction. Compared with criminal prosecution, we recognise that civil financial penalties provide a less costly and time-consuming process to hold people to account and to punish wrongdoing. I am conscious that, when the 2023 Act was going through Parliament, this change in the implementation of penalties sparked some debate. However, we are content to support these regulations.
I have one question for the Minister about the support being provided to Companies House. Could he provide some assurances that it is getting the back-up and resources to make sure that it can fulfil its very important role?
I thank everyone for their time in helping to implement these regulations. I know we all want to achieve the shared goal of improving the effectiveness of the way that we tackle and punish economic crime.
Peter Grant (Glenrothes) (SNP)
I will also be supporting these regulations. The Minister and I have often worked together trying to deal with a great deal of the wreckage that has been caused in the past by either inadequate legislation or, all too often, inadequate or non-existent enforcement. I look forward to these and other new regulations’ having the very quick impact they are designed to.
I am pleased to hear the Minister mention that one batch of fraudulent filings has been cut off very quickly under Companies House’s new powers. I do not know if he is allowed to tell us whether any criminal action is being considered, because it is a criminal offence to submit false information to the register of companies. It raises the question, again, about how we implement these measures if the documents have been filed online from overseas, often from a country that is not particularly friendly to the UK and is quite happy to see the UK’s business environment corrupted.
While we celebrate that success, the Minister may be aware that the wonderful Graham Barrow has identified within the last couple of days that a domestic address in South Lanarkshire is a company director and a sole shareholder of a company. Clearly, there is something false in that filing but, again, it got on to the Companies House register. I hope it will be reviewed quite quickly. Given that it was filed electronically, it should not be too hard to identify who was responsible for that particular piece of false filing.
I welcome the financial penalties regulations, but I have some concerns that this might become a “get out of jail cheap” card for persistent offenders. I hope that, when Companies House publishes the guidance for how it will use these new powers, it recognises that there will be times when financial penalties are appropriate and also times when it is clearly more appropriate to go through the longer and more costly process of criminal prosecutions.
Are there implications for the resourcing of the Courts and Tribunals Service, for appeals, for example? It is under pressure just now. I expect that the resource implications for Companies House have already been identified, because I know there has been an increase in its resources recently.
I have some questions about the penalty notices. Will the Minister explain why he referred to them as civil rather than criminal penalties? There is precedent in, for example, road traffic offences and some public order offences, in respect of which a criminal fixed penalty is applied and that can appear on somebody’s criminal record. If a number of the penalties are applied to somebody, first, is a formal totting-up process specified, so that at some point, as a matter of law rather than the judgment of Companies House, that person can no longer go down that road and will be prosecuted? Secondly, will the penalties appear on a person’s criminal record, so that, if need be, that shows up if they go into sensitive employment? I think the Minister mentioned something about the relevance to possible director disqualification proceedings, but will he confirm that the penalties will be a relevant factor in considering whether a director is fit to continue in post?
I have a few questions about the provisions on offences concerned with the audit of a company. The Minister will know that some of the companies that I have been most concerned about have, by various means, managed to avoid having to produce audited sets of accounts. For example, if the whole Blackmore Bond group had had to be audited to professional standards, the problems would have been identified several years earlier. There are massive questions about the one part of the group that was supposed to get audited. There were glaring mis-statements in some of the accounts that the auditors signed off on. We cannot allow that to happen. One of Blackmore Bond’s annual reports almost said, in so many words, “We are a Ponzi scheme,” but neither Companies House nor the auditors seemed to pick that up.
All that is relevant, of course, only if a company is required to publish detailed accounts and certainly have them audited, which does not usually include companies that are regarded as small companies for the purposes of the legislation, but which also have the capacity, and occasionally the willingness, to take substantial amounts of money, often running into the tens of millions of pounds, from innocent members of the public. Are there any plans to allow the registrar, in exceptional circumstances, to require, in the public interest, an audit, or the publication, of full sets of accounts for companies for which that otherwise would not be required? For example, we sometimes see whole sets of associated companies that are incorporated, trade for a few years and are wound up, never having produced a set of accounts, and everything then transfers to a different company that trades for a few years. It is possible for rogue directors to run a business empire for 10 or 15 years without ever having to submit a set of audited accounts. Are there any plans for legislation to close that loophole? Again, a provision of that kind would have stopped a lot of the Blackmore Bonds of this world. It would not have stopped Blackmore Bond completely, but it would have identified it sooner and at least restricted the damage inflicted on all our constituents.
As with another statutory instrument on economic crime that we debated not so long ago, I welcome these regulations. The Minister will know that I did not think the economic crime Act itself went far enough, and I hope that action will be taken soon to strengthen it. I am always impatient about action to clamp down on economic crime, because too many people have been getting away with it for far too long. One thing I like about the provisions is that they allow rogue directors and their companies to take a financial hit much more quickly. Most of the enforcement action available up until now has been long-winded and can be very expensive, and it is quite possible for the villains to delay it so much that, in effect, when justice is delayed, it is seen to be completely denied.
I welcome the change and, as I said, will certainly support the two sets of regulations. I look forward to an opportunity for either me or one of my colleagues to consider a number of the other statutory instruments that the Minister is working hard to bring before us.
Kevin Hollinrake
I thank Committee members for their valuable contributions to the debate. The shadow Minister asked about resources; the Government provided £63 million to start the work at Companies House on the change from having a dumb register to having a proactive registrar who maintains the integrity of the register. Also, £20 million was provided last year through the economic crime levy, which will be one of the future sources of funding. The key area for funding is the uplift in the registration fees and annual filing fees at Companies House. It used to be £12 to register a company; it is now £50. It used to be £13 to lodge an annual return; it is now £34. We think that provides Companies House and the Insolvency Service, which is the enforcement body for such matters, with the extra resources needed, and hundreds more people will come as a result. It will also fund things such as the intelligence hub, which is hugely important.
The hon. Member for Glenrothes might want to alert Companies House about the address that has been used improperly. Companies House should then deal with that, and can do so much more quickly as a result of the new powers.
Peter Grant
I am sure it will come as no surprise to the Minister to hear that Mr Barrow has already done that. We look forward to that company being removed from the register quite soon. One of the things that I found interesting is that the address used is not the company’s registered address.
Kevin Hollinrake
I am happy to talk to the hon. Gentleman offline about that particular case, but any Member of this House or member of the public can alert Companies House about incorrect filings. As I say, as a result of what we have already done, that can be acted on much more quickly.
The hon. Gentleman talked about disqualification, and yes, absolutely, penalties can, as I said in my opening speech, contribute to a decision on disqualification. The penalties are civil penalties, but where the registrar feels that the conduct or offences are sufficiently serious, they can pass that on to the relevant prosecution body —the Insolvency Service, the police, the National Crime Agency or others. That is the kind of approach that Companies House typically takes.
The hon. Gentleman raised Blackmore Bond again, and has done a fantastic job of raising that on so many occasions. We have finally seen the FCA actually do something about it, as a result of much work. I remind the hon. Gentleman that what underpins the whole regime is the recognition that it is impossible, given the number of records, for Companies House to be a policeman of every single record and everything that happens. Five million companies are on the register, and 800,000 were registered last year alone, so it is not practical to look at every single one, but there are serious consequences if people improperly or falsely file information, particularly if they do so maliciously. They can be sentenced to up to two years in prison. That underpins the regime as well.
I thank you, Ms Vaz. The debate has highlighted the need for a robust financial penalty regime at Companies House, as well as consistency in the law that governs business entities. I commend both sets of draft regulations to the Committee.
Question put and agreed to.
Draft Economic Crime and Corporate Transparency Act 2023 (Financial Penalty) Regulations 2024
Resolved,
That the Committee has considered the draft Economic Crime and Corporate Transparency Act 2023 (Financial Penalty) Regulations 2024.—(Kevin Hollinrake.)