Companies House and Transgender Persons

Baroness Morgan of Cotes Excerpts

Monday 20th November 2017 Commons Chamber

[Nicky Morgan (Loughborough) (Con)]

I am grateful to be granted this Adjournment debate, which is particularly appropriate as today is the annual Trans Day of Remembrance, remembering those who have lost their life to anti-trans violence and those who continue to face anti-trans rhetoric and abuse.

During my time as Minister for Equalities, I was able to engage with the transgender community on a national level and to learn more about the inequalities they face and how those inequalities affect their daily lives. I was therefore pleased to publish the Government’s response to the report of the House of Commons Women and Equalities Committee on transgender equality in July 2016, which was another step towards acknowledging that, although we have the Gender Recognition Act 2004 and although the coalition Government published the world’s first transgender action plan in 2011, the Government, among others, could do more to address the remaining inequalities, unfairness, violence and discrimination faced by transgender people.

Since July 2016, I have welcomed the work in this area by my successors, my right hon. Friend the Member for Putney (Justine Greening) and the Minister for Equalities, my right hon. Friend the Member for Bognor Regis and Littlehampton (Nick Gibb). I was particularly pleased to learn that the vast majority of commitments made in the Government’s 2011 action plan have now been met, and I look forward to reading the Government’s new action plan on transgender issues when it is published.

I also welcome the Government’s national lesbian, gay, bisexual and transgender survey on experiences of using public services in the UK, which will no doubt help guide future policy on improving public services for LGBT users. Finally, I support the Government’s plans to consult on the Gender Recognition Act, which will look to improve the recognition process and reduce the stigma faced by the transgender community. I understand that the proposals will include removing the need for a medical diagnosis of gender dysphoria before a person is able to apply for gender recognition, as well as options for reducing the length and intrusiveness of the gender recognition system.

[Mims Davies (Eastleigh) (Con)]

I thank my right hon. Friend for her work when she was Minister for Equalities.

This is, of course, the annual Trans Day of Remembrance. The inequalities that trans people face are extraordinarily great, and the violence and discrimination they face are really concerning. Does my right hon. Friend agree that, as the first Parliament in the world to consider these issues and given the amount of work that still needs to be done, what we are discussing this evening is easily rectifiable for this important community?

[Nicky Morgan]

I thank my hon. Friend very much for that. I am going on to show that we are dealing with a simple loophole, which is completely unintended, and closing it would be another step that Government and Ministers could take to show a continued commitment to the transgender equality plan. Some of these very simple steps can make a great deal of difference to people, both those who are watching tonight and those who find out about this debate later.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I commend the right hon. Lady for securing this Adjournment debate. I met one of my local trans support groups in Cardiff and they shared with me many of their concerns. Steps such as the one we are discussing can go a long way in reducing stigma. Does she agree that there have been some unpleasant headlines in certain media outlets in recent weeks and that many trans people feel very stigmatised because of some of the ill-educated and ill-informed debate that goes on in the media?

[Nicky Morgan]

I agree very much with what the hon. Gentleman says, and I know that he is a great campaigner on these issues. As he says, and as we all know, prejudice often comes from fear, and we need to talk about these issues. During my time as Equalities Minister, I met trans young people and their families, some of whom struggled to accept what was happening to their families, but with the right support a huge amount of difference was made. All of us can benefit, not just on this issue, but on many others facing us a country at the moment, from standing back, listening to other points of view, trying to understand, even though that is not always easy, and not rushing to judgment.

As I was saying, the Government have committed to consulting on the Gender Recognition Act 2004, and I welcome the words of Ruth Hunt, the chief executive of Stonewall, who said:

“We need a simple process which isn’t medicalised, intrusive or demeaning.”

These are complex issues here that do challenge many people, but let us have a properly informed debate about them, rather than somehow thinking it is best not to discuss these difficult issues.

I would like to take this opportunity to again raise another aspect of the Gender Recognition Act that needs to be reviewed. In September last year, I received a letter from Alex, who wrote:

“I am the sole director of a company I set up some years back to manage a small property portfolio.. .When I changed my name and title the process to inform Companies House was actually very easy and my name was updated quickly...I noticed afterwards however, that this change of name and title was recorded in the company filings that are freely available for public inspection on the Companies House website. The document in question is a...Change of Particulars for Director form and clearly states my original name and title and subsequently my new name and title. This very obviously discloses my change of gender to anyone who happens to look at the filing history of my company, publicly outing me without my consent. The main issue I take with this is that of safety. In future there will be many people I meet and interact with who will have no idea of my transgender status because I simply will not tell them. If someone later finds out, this could potentially lead to violence, which is a reality that you are already aware the trans community faces.”

The potential for inadvertent disclosure comes about because of a conflict between section 22(4)(j) of the Gender Recognition Act 2004 and section 1087(1)(k) of the Companies Act 2006. The Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Stourbridge (Margot James), who is on the Treasury Bench this evening, will be aware that I wrote to her about this last year and that, in her response to me dated November 2016, she made it clear that the companies registrar must make available to the public all information held on the public register unless he is specifically forbidden to do so by section 1087 of the Companies Act.

Section 22 of the Gender Recognition Act generally prohibits the publication of protected information held on a transgender person. However, section 22(4) details the circumstances under which it is not an offence to disclose protected information, which are if

“the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.”

The Minister’s letter to me stated:

“The Government is satisfied that this applies to the disclosure of a director’s former name as this is required to be placed on the public record by enactments in the Companies Act. In conclusion the data is not considered to be material excluded from public inspection by the Gender Recognition Act for the purposes of section 1087 of the Companies Act.”

I do not disagree with this interpretation, but, as I have said, this is an unintended loophole that needs to be closed, which is why, before the general election, I introduced the Companies Documentation (Transgender Persons) Bill to the House. When I introduced that Bill, I referenced another part of Alex’s letter to me, which said:

“In 2004 the GRA came in to place with the clear main goal of protecting people who were at risk of being vulnerable, and it was a world-leading piece of legislation which frankly I’m proud to say came out of the UK. What is happening now with Companies House is an entirely accidental and unfortunate flaw in the way that the GRA 2004 and CA 2006 interact with each other. This flaw is entirely against the spirit of the GRA 2004, and I think that anyone would be hard pushed to argue against that...I’m currently able to protect myself when it comes to my credit profile, my tax profile at HMRC, the FCA register, Government Gateway. I just personally think it is the right thing to do to force Companies House to be held to the same standard.”

My Bill proposed that that loophole be closed by amending the 2004 Act in a way that would allow transgender persons to apply to Companies House to withhold from public inspection information about a director’s former name, and for that information to be treated as protected information under section 22 of the 2004 Act. The case for this small legislative change is compelling, as such a disclosure can have a profound effect on transgender people, particularly as transition and history are very personal and should be something that a person chooses to share, rather than being forced to do so by someone else. The legal mechanism for people to change their gender is also not a decision that anyone enters into lightly, and nor does it happen quickly. In my experience, once that decision is made, transgender people want to be able to move on with their lives, to be treated with respect, and to live without the fear of being inadvertently outed or subject to violence.

I am afraid to say that, as we have heard, violence and discrimination do still occur. Since my previous speech to the House, the Home Office has published updated statistics that show that in England and Wales in 2016-17, there were 1,248 transgender hate crimes, up from 858 in 2015-16. That is an increase of more than 45%, which is higher than the previous yearly increase of 41%. Living in fear because of who you are is unacceptable in the modern United Kingdom and no one should have to live in fear of violence because of official documents that they have filed in compliance with a particular Act of Parliament.

I again thank those who have contacted me to share their views in spite of such fear, including Alex. I remind the House that, in the course of preparing for the introduction of my Bill, I was contacted by other transgender persons, one of whom said to me:

“My current position is that I am unable to start my business without running the very real risk of outing myself as a transgender woman. Presently I want to start a business to provide technology and web development services. However, as I cannot yet transition, I am in the unfortunate position where if I started a business now and then transitioned this information would be publicly available.”

Another contact, an accountant, told me that the advice that they were given was to resign as an existing director and register a new director’s appointment in the new name, although clearly details such as their date of birth would be the same. Alternatively, they were told they could close the company down, have it struck off and then set up a new company, with all the administrative expenses entailed in that course of action.

I also received the following message:

“I used to do IT contracting and did so via a limited company. I changed my name and title by deed poll in 2012 and also need to change my details at Companies House as a director of my company. I’ve now had gender reassignment surgery and will be applying for my gender recognition certificate as soon as I receive the necessary report from the Gender Identity Clinic. Whilst this will give me a lot of protection in law it will still be possible for people to find out my dead name by interrogating the records of my company at Companies House which could possibly put me at risk if someone found out those details for malicious purposes.”

Altering the Gender Recognition Act would be a simple change to make, yet it would mean a great deal to the many transgender people who suffer this problem in silence. The Government have an opportunity to close this inadvertent loophole and to show that they are committed to protecting the transgender community and to allowing transgender people to choose what, if any, information about their transition is publicly available and in what way such information is disclosed. I should add that I very much hope that were this option to be taken up, there would be a way for Companies House to make sure that such information is available to the lawful authorities, such as the police or others investigating a crime—because, of course, they might need to access some of those details—after an appropriate request and their having passed a suitable hurdle, including on why they need the evidence. I hope that, given the Government’s commitment to transgender equality, the Minister will consider this issue and the views of those who have contacted me as part of the upcoming review of the Gender Recognition Act. I look forward to hearing her response.

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Margot James)]

I thank my right hon. Friend the Member for Loughborough (Nicky Morgan) for securing tonight’s debate on this very important subject and for the powerful and persuasive speech that she has made in support of her argument.

I recognise that she is seeking to protect the interests of those in the transgender community by ensuring their right to have their private information remain private. I have considerable sympathy with the personal accounts that she has shared in her speech this evening, and I can only conclude that the examples that she gives are backed up by many other people who have not come forward.

This debate highlights a difficult tension between two important principles: the right of an individual to have their private details remain private and not to be exposed against the also important need for transparency of the public register of companies. These rights are not easy to reconcile, but I very much agree with my right hon. Friend that we should make every effort to improve the situation that she described in her speech.

There are some very important reasons why the records of companies must be transparent and available for anyone to inspect. Incorporating a company and getting it registered at Companies House brings with it the benefit of limited liability to the owners and directors charged with running the company. In return for that significant benefit, directors of companies must provide details relating to their identity, residential address information and annual accounts of the company. That process gives anyone the ability to check business records and the trading history of people and businesses that they are dealing with or proposing to enter into business with.

It is only right that anyone should be able to check a director’s previous trading history or directorships, or any past disqualifications and bankruptcies. People might also want to know of their involvement in previous failed or successful businesses as important facts to consider when entering into business agreements.

In many ways, the register of companies is not just a list of companies with directors’ names. Its real purpose is to support the functioning of limited liability and to enable business trading across the economy through the information that it provides. It is that transparency that underpins its value and contribution. The register of companies is one of the most searched and interrogated databases worldwide. There were more than 2 billion searches on the website in 2016. It is also widely used by professional organisations—for example, credit reference agencies in determining whether to loan to prospective businesses, or professional researchers such as those engaged in transparency initiatives.

My right hon. Friend raises important statutory provisions—in particular that section 22 of the Gender Recognition Act 2004 does indeed make it an offence for a person who has acquired protected information in an official capacity to disclose that information. However, as she says, section 22(4) provides a number of exemptions, including section 22(4)(j) which says that

“the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.”

Section 12, together with section 163 of the Companies Act 2006, require directors to disclose their name and any former name to the registrar of companies. Sections 1085 and 1086 of that Act then place a duty on the registrar to make that information and other information delivered to them in relation to companies’ registration and filings available for public inspection. This is about the need for transparency as I mentioned previously.

Section 1087(1)(k) of the Companies Act does prevent the registrar from making certain information available for public inspection if required by another enactment. However, because of the carve-out in the Gender Recognition Act, information such as any previous names of directors, whatever the reason for the change of name, are not included in these exemptions.

The Gender Recognition Act 2004 does not make it an offence, as my right hon. Friend explained, to disclose this information when that disclosure is in accordance with another enactment, which is the case in respect of the Companies Act 2006. This therefore applies where a transgender person who is a company director has changed their name.

My right hon. Friend will know that the current pressures for information relating to companies and their directors is, in many respects, for even more transparency, rather than less. However, I do recognise that the register of companies should look to strike the right balance between the need for transparency and the protection of individuals and their private information. The current legal provisions already allow for certain information to be withheld from public inspection—for example, a director’s private residential addresses, where it is demonstrated that there is a risk of violence or intimidation arising from the activities of the company.

Since the register of companies became freely available online in 2015, however, a number of hon. Members have written to me raising their concerns about the range of private information that is now publicly available and easily accessible. As a result, my Department is considering a number of potential measures related to the integrity of the register of companies and the personal information that is available on it. I will most certainly ensure that the issue raised by my right hon. Friend is considered within that work. Although I can commit to consider the issue further, I would stress that the position of company director carries with it statutory duties and accountabilities. We need to guard against the creation of loopholes that would allow people to evade their responsibilities or to conceal their previous trading history by changing their name on the register.

[Nicky Morgan]

I thank the Minister for the way in which she is responding to my debate. I welcome the fact that she has talked about the wider consultation, but may I urge and push her just a little further to say that the matters I have raised tonight should be a part of that consultation—at least, the gathering of views to find out the scale of the problem? Will she also consider, again perhaps as part of the consultation, Alex’s comment to me that she is able to protect herself when it comes to her credit profile, her tax profile with Her Majesty’s Revenue and Customs, the Financial Conduct Authority register and the Government Gateway, all of which presumably—certainly the credit profile and tax profile—help in building up the transparent profile of somebody that the Minister has been talking about?

[Margot James]

I will certainly consider what my right hon. Friend said; she certainly makes a powerful case. Transparency will remain a high priority for the register of companies, but we must consider her arguments and I will consider what she asked for as part of our review.

As my right hon. Friend mentioned, the Government have committed to publishing a consultation shortly on amendments to the gender recognition process in England and Wales. We also recently launched a national survey on the needs of the LGBT population, which has just completed, receiving more than 100,000 responses. Both these consultations will be of help in shedding light on the issues raised in this debate, and I will consider further what my right hon. Friend has argued for tonight in that process.

Question put and agreed to.