Lord Mitchell
Main Page: Lord Mitchell (Labour - Life peer)(9 years, 11 months ago)
Grand CommitteeMy Lords, I am in sympathy with my noble friend Lord Flight’s amendment, but maybe not with the details, for the reason that the noble Lord, Lord Phillips, indicated. I declare an interest in that I am the director of a small company. This is the company that manages the house in which I live, which is divided into four flats. We have four shareholders, who are those who live in the four flats, and it is convenient for us to organise the cleaning of the common parts and that sort of thing through a company. It is controlled by the four of us. It has very small sums of money, but we would still have to have a register saying that nobody else controlled the company —at least I suppose we would. There are numerous companies, both trading companies and those like the one that I refer to, which would be caught by this legislation and in my view should not be. It may be that my noble friend’s amendment requires refinement and elaboration, but he has a good point in principle.
My Lords, as a champion of small companies half of me has a lot of sympathy with this amendment but the other half is worried. We define a small company as one that has a turnover of less than £6.5 million, a balance sheet of less than £3.26 million and fewer than 50 employees. The questions that have been raised today are: what is to prevent such companies from getting up to the activities we are seeking to prevent, and is size really the sole determinant of illegal activities? Maybe we should have a definition of a micro-company—a small, start-up company that has criteria much below the numbers I have given. We need to keep bureaucracy and red tape out of it, but it is quite clear that in the right hands a coach and horses can be driven through this and we need to have some degree of protection.
My Lords, I reiterate what the noble Lord, Lord Mitchell, has said. I spent the best part of my very long legal career acting for small businesses and start-ups, and nobody could be more in favour of them from virtually every point of view. However, we absolutely cannot leave a gap through which coaches and horses will ride with impunity. I am sure that the noble Lord, Lord Flight, does not need reminding of the fact that shell companies are a vehicle of choice for huge fraud. It is reckoned now internationally that fraud amounts to £27 trillion to £35 trillion, while our own fraud figures are rising at a startling rate. The amount of tax evasion—I shall not use the word “avoidance”, because it is discredited—is staggering and rising exponentially. The principal vehicle by which fraud, evasion, irresponsibility and immorality are effected in our country is the shell company. I am sure that I do not need to tell your Lordships that Barclays, I think it was the year before last, paid some derisory proportion of tax on its profits by using over 100 shell companies, in a huge chain, switching through virtually every tax haven on the globe.
If there is one thing that we really must do, and which I believe everybody in this House is determined to try to do, it is to prevent the evasion of the intention of us as legislators over a whole raft of measures—particularly tax but not by any means confined to tax. At present, because of such companies largely using the considerable wits of thousands of lawyers and accountants in the City, with the aid of the tax havens throughout the globe that sit with open mouths looking for funds to pass through them, we are in a parlous state. The highly beneficent intention of this legislation is to do something about that, and I hope that we will not be engaged in yet another legislative self-delusion, of which I have sat through so many. I hope that the noble Lord, Lord Flight, does not misunderstand me—I totally go with his basic proposition—but we cannot leave this Bill in a state that facilitates the very thing that all of us are determined to try to deal with.
Even if we got the legislation right, for us to rely on the proper implementation of the law that leaves this place would be another self-delusion. Our implementation agencies are so terribly underresourced that it is not David and Goliath in this country—it is so often David without his sling and Goliath. To my mind that means that, when we are in doubt, we should screw the template tighter to the intention that we have for this legislation. I am afraid that that leads me to be unhappy with the amendment.
I, too, shall speak to Amendments 48 and 49, as they are grouped together, and express the same reservations as my noble friend Lord Flight about not wishing to have the two connected. The reason for my amendment is principally to ensure that the policy objectives of the Bill are met. I seek to manage and mitigate unintended consequences as much as possible, in this case by making sure that only individuals who meet the criteria set out are disclosed and not many others by dint of legislative accident.
It is worth noting here that the Bill has already been improved in this regard. The original draft would have missed out partnerships entirely, because they have no legal personality, and forced the disclosure of hundreds of investors, none of whom owned 25% of the business, but all of whom would have been deemed to have owned that amount through their investment vehicle.
A particular concern is private equity, as my noble friend Lord Flight said. Funds raise money from many investors of different types and different geographies, but normally none of their investments as individuals would be anywhere near 25% of the fund. The private equity fund, typically known as the general partner, takes responsibility for investing that fund in a portfolio of businesses and managing those businesses. It is the fund run by the general partner and not any individual investor who exercises significant control. It is right that the public and, indeed, Governments know who that is. It is not necessary for them to know who the individual investors are behind it.
The merits of this point were accepted in the other place and there is an exemption for English limited partnerships. This amendment seeks to apply that to other limited partnerships that are similar to English limited partnerships in structure but are governed by other laws. I am thinking in particular of partnerships structured in the Crown dependencies. It is very important that we offer a level playing field in this context. Funds structured particularly in the Channel Islands and elsewhere are direct drivers of inward investment into the UK. To be clear, we are not talking about tax avoidance or tax evasion. It is simply a mechanism for investment. It is typically used by pension funds, which would not pay tax in any circumstances. My amendment would allow any partnership deemed similar in structure to an English limited partnership to be treated the same as one and not have to disclose the hundreds of investors underneath it.
In his excellent Budget in 2013, the Chancellor commendably launched a new initiative to make our asset management industry as competitive as possible. It was about encouraging our financial services industry to be drivers and attractors of inward investment in the real economy. These partnerships are great channels for such investment and must be encouraged. That is why they should be treated the same as English limited partnerships. If the amendment in my name and that of my noble friend Lord Flight is accepted, investors in partnerships, which are of huge benefit to the UK economy, will be treated as if they had invested in an English limited partnership or one that is similar in spirit.
My Lords, I shall speak to Amendments 37ZA, 37B, 37C, 47B and 50A.
I congratulate the Government on coming forward with these provisions that provide for a register of beneficial interests in companies that are not listed on the Stock Exchange. Transparency in the governance of companies is essential, as is fair taxation. They are essential for providing a level playing field on which all businesses are able to compete. Anything else undermines the kind of entrepreneurship and creativity that we want to see driving growth throughout our economy. However, transparency goes beyond the issue of business competition. It also matters from the point of view of knowing who owns a company. Who owns whom is vital to know and we will return to this issue as today’s discussions continue.
The Lough Erne declaration was signed in 2013 and reflects a good understanding of the importance of the above and I am glad to see some of the thoughts reaching fruition in the Bill. The third point from that declaration is perhaps the most relevant to our proceedings and I think it came from the Prime Minister. It reads:
“Companies should know who really owns them and tax collectors and law enforcers should be able to obtain this information easily”.
That is a sound principle with which I am sure the whole Committee will agree. Parts 7 and 8 of, and Schedule 3 to, the Bill reflect this. Today we will be testing the provisions within the Bill to try to ensure that its provisions match these principles and that they are drawn tightly enough to deliver them. I hope the Minister appreciates that our intention is to support the proposals and to contribute to their effective working.
The main mechanism through which the principles are to be put in place is the PSC register—that is, “people with significant control”—which has our backing. The briefing that Christian Aid has provided—I wish to place on record my thanks to it for having done so—points out that only 9% of the British public believe that company ownership should be allowed to remain a secret. Given the reputation this country has for respecting the value of fair play, I can readily believe that.
The Government have also helpfully published and concluded a consultation on the regulations which will be issued governing the PSC register, which will aid us as we scrutinise the provisions in Committee. As the preamble to that document makes clear, PSCs—individuals with more than 25% of the company’s shares or voting rights—will have to be on the register and there will be a statutory obligation to update that. I struggled to find a proper definition of PSC. I think I found it in the wording but it should be clearly defined and positioned in the Bill so that there is no ambiguity on this.
Turning to Amendment 37ZA, I am sure noble Lords will appreciate that what we are doing here is to test the boundaries of Schedule 3, specifically the exclusions. It is right that the Secretary of State should be able to leave out certain companies that may already have more comprehensive disclosure requirements like those that are publicly listed. However, that is the underlying principle. Only companies that already disclose the information that this part of the Bill requires should be subject to exclusion. Otherwise a Secretary of State could, by order, essentially produce a definition that excludes companies that should in the spirit of the legislation be covered. I welcome the fact that doing so would require the affirmative procedure, but the fact that it would still have to be limited in that way would be a useful instruction to put into primary legislation. It would also create the kind of certainty that the playing field will remain level, as it were, and that would be helpful to businesses.
On the subject of delegated legislation, noble Lords will see that I have two recommendations from the Delegated Powers Committee in this group. The first concerns guidance about the meaning of “significant influence or control”, which is obviously a core part of the provisions. The committee stated:
“There is no provision however for Parliamentary scrutiny of the guidance. The reasons given in paragraph 285 of the memorandum for not making the guidance subject to scrutiny are the fact that it will be worked up in consultation with stakeholders and the fact that it will not conflict with the statutory provisions in Part 21A. We do not find these reasons convincing. Section 790F of the Companies Act 2006 will make it an offence if a company fails to comply with the duty to gather information about persons who exercise significant control. It seems to us that the existence of the offence will give greater importance to the guidance, since those involved are likely to see compliance with the guidance as necessary in order to avoid the risk of committing an offence. Accordingly, the guidance is liable to play a significant role in determining the meaning of ‘significant influence or control’ and therefore the range of persons who fall within the scope of the new Part 21A of the 2006 Act. In the light of this, we consider that guidance under paragraph 24(2) of Schedule 1A should be subject to Parliamentary scrutiny”.
We agree, and hence we have tabled this amendment.
My Lords, my name is on the amendments in this group, but I shall speak, if I may, to Amendment 37A in particular.
Amendment 37A defines “intermediaries”, which is the term used in Amendments 39, 41 and 43. As defined in Amendment 37A, “intermediaries” would catch, I think and hope, all the links in the chain of shell companies—as they usually are—that enable a fraudulent scheme to be effected. It may well be that the drafting of Amendment 37A is defective because, as I think we all know only too well, the combination of the details of the amendments in relation to this Bill and in relation to the Acts of Parliament that the Bill amends is pretty hair-raising even for a lawyer. Therefore, I apologise in advance if the Minister guns me down on the wording of Amendment 37A, but the purport of it is clear enough and I am convinced that it should be there.
It is no good allowing the many devices utilised by the people and corporations that use the very lax system of international control now prevailing, so we are trying here to do something really effective. I pay tribute to my noble friend the Minister and the Government for grappling with these issues at all, because, as the noble Lord, Lord Watson of Invergowrie, said, we are the first to try to get a grip on this. We all realise that we cannot effectively get a grip of the problem on our own, but at least we are in the field and showing our mettle. As the noble Lord, Lord Watson, mentioned, initiatives are being taken in consultation with some of these tax havens, but it is not a very happy tale: only one decision has been taken so far, by the Cayman Islands, which is to have nothing to do with all of this. I have a terrible suspicion that the others may come back with a similar response, because it is their bread and butter to be the handmaids of the world’s great fraudsters and shysters. But we are doing our best, and I hope that Amendment 37A will commend itself.
I will make just one more short point, on Amendment 37. As the noble Lord, Lord Watson, said, when a similar amendment was discussed in the other place, the Minister there said that the Bill includes a new power, amending the Companies Act, that will allow amendment of the frequency of the provision of the information, which is currently annual. Amendment 37 would allow ad-hoc inspections, so it would allow the person having the authority to make a lightning swoop, if you like, on the company or person concerned in order to extract up-to-date, current information on what they are up to. As I understand what the Minister in the other place said, it is not enough simply to have a general power to amend the timing of all this; we need an ad-hoc power to move against particular individual companies at any time. That would be one of the effects of Amendment 37.
My Lords, I rise to speak to Amendment 37, to which I have put my name. I pay tribute to my noble friend Lord Watson of Invergowrie for the work he has done in this area and for that very clear exposition of the relevant issues. He has made the important points, so I shall try not to repeat what he said.
Amendment 37 would give the Secretary of State power to make regulations ensuring that the PSC register is current and accurate. My noble friend Lord Watson explained the importance of that, but I shall echo his arguments. It is vital that the register be up to date if it is to do the job we expect of it and shine a light on some of the murkier examples of using anonymous shell companies to obscure the true ownership of an asset. I believe the Government see the register as providing something of a snapshot of the beneficial owners of a company, but in this day and age where technology has made instant communication the norm, rather than the exception, there is no reason why the PSC should not be kept up to date.
In this context, it is worth considering the evidence put before the Committee in the other place by the Institute of Directors, which said that the PSC,
“will be updated once a year and a fair number of people said in our consultations, ‘It’s going to be out of date within minutes of being published.’”—[Official Report, Commons, Small Business, Enterprise and Employment Bill Committee, 14/10/14; col. 19]
In your Lordships’ House there is an obligation on each of us to maintain our register of interests, which is not allowed to be more than one month out of date. Why should companies have an annual requirement? It simply does not make sense in this electronic age. In their response to the consultation, the Government said that they will continue to work through the principle that information will be provided to the central registry to ensure that there are no loopholes or unintended consequences. My concern is that this could be a loophole, so I would like the Minister to address it.
My second point is about accountability. As my noble friend Lord Watson said, this amendment requires the Secretary of State to ensure that the right regulations are in place so that what is on the PSC register is accurate and complete. Parliament will be able to scrutinise these regulations to check that they are capable of delivering an accurate register.
I shall pick up a remaining point from the debate about this group, and I hope the Minister will be able to put our minds at rest. Too little progress has been made in encouraging Overseas Territories and Crown dependencies to have public registers. If we return to the original Lough Erne agreement, it is clear that making progress on this issue is an integral part of fulfilling its spirit. I hope the Minister can update us on whether the Government will consider making such registers obligatory.
My Lords, I share the sentiment expressed by the noble Lord, Lord Mitchell, about the contribution that the noble Lord, Lord Watson, has made to this debate. I thank other noble Lords for this group of amendments which are in the spirit of ensuring that the register is effective and informative, which is what we all want. I hope I have understood noble Lords’ various concerns correctly.
I fully support the objectives expressed. We must have a single source of easily accessible information on the individuals who exercise significant control over our companies. However, reform has to be proportionate. It should not come at the cost of imposing unnecessary burdens on business. We have heard very persuasively, particularly from the Government Benches, how important this is. As I will explain with concrete figures, some of these amendments would impose additional costs which I am not sure we could justify because I am not convinced that there would be corresponding additional benefits. I shall explain that.
The noble Lord, Lord Watson, asked about when the outcome of our consultation on corporate directors will be known. We will try to write to the noble Lord before Report with the key findings.
On Amendment 37, the Government agree that information in the PSC register must be accurate, but I do not think we need an extra regulation-making power to ensure that that is the case. I am confident that the existing measures we have in place, and those we will introduce through the Bill, can already deliver noble Lords’ intentions. These measures include: criminal penalties for the provision of false information; public scrutiny of the information; and multiple checks pre and post registration at Companies House. To give just one example, in 2013-14, 9 million submissions underwent multiple checks by Companies House, resulting in nearly 400,000 being rejected. If we were to go further—for example, by requiring companies to use third parties to verify data before their annual filings at Companies House—our provisional estimates for the first year would be in the region of £400 million to over £1 billion, with a further cost of £300 million to £900 million per year thereafter. It is potentially a big bill.
My Lords, in moving Amendment 37D, I shall speak also to Amendments 44HA, 47A and 44 and will be returning to the central themes that I marked out when speaking to the amendments in the previous two groups: the need to ensure that the boundaries and scope of the provisions that we are talking about are adequately drawn so as to ensure that no loopholes remain and the need for appropriate transparency to make sure that the register serves the purpose that it was intended to serve. As before, I will often be probing rather than criticising the measures, which have our support.
Our Amendment 37D, the first in this group, would provide for the explicit circumstances when it will be necessary to exclude otherwise necessary information from the register. Clearly, it is understandable that, where there is a danger either to an individual or to national security, companies can be exempted from providing information. However, it is important that those circumstances are explicitly in the Bill, otherwise there may be exemptions for less important reasons in the future. The amendment also provides for any such decision to be challengeable through judicial review. Despite the fact that this Government have recently set about attempting to damage and degrade judicial review, it remains an important mechanism for holding the Government to account—hence its provision here.
I have also added my name to Amendment 44. My noble friend Lord Watson will no doubt be able to give a more complete explanation of it in a moment, but the essential point is that the Bill as drafted appears to preclude the possibility of a journalist using the register to investigate a potential impropriety. New Section 790O(4)(d) says that any request for information should include whether or not the information is going to be passed on to another person. In an age where open data are providing insight in a variety of fields, appearing to want to prevent them being passed from one person to another seems—to me, at least—to be a rather odd decision. I am keen to hear the Minister’s explanation for that subsection.
Amendment 44A is a probing amendment. New Section 790P sets out the process through which a company, upon receiving a request for information, can either provide it or go to court. However, subsection (4), which sets out when a company does not have to comply with a request, appears to have no time limit attached. Our amendment requires it to be reviewed annually.
Amendment 47A follows on from Amendment 37D in marking out the extent of the exclusions. Circumstances where a person’s details could be suppressed from a register are to be laid out in regulations by the Secretary of State. Amendment 47A would make it possible to challenge any such decisions. Taken together, these amendments would improve the clarity of these provisions and improve their ability to increase transparency about ownership of companies. I beg to move.
My Lords, I declare my interests as in the register. My various amendments in this group are all part of the same process and seek to change the proposed arrangements so that, although there would still be a register and companies would still need to know their shareholders, there would be no requirement to send details to Companies House. If the company in question did not wish to give access to the register, access would be by way of an application to the court, which would then be limited to security, taxation and law enforcement reasons—implicitly by those three categories of bodies. The Bill thus amended would comply with the G8 commitment, which I was pleased that the noble Lord, Lord Mitchell, read out. It specifically did not commit to a public register but committed to making the information on share ownership able to be accessed by security, taxation and law enforcement authorities.
As I argued at Second Reading, the Bill’s proposals for a public register as they stand are, in my view, flawed on several counts. I think we all agree on the need to address the issue of anonymously owned companies having connections with terrorist groups or evading tax—I might add that the same goes for charities, where the record of involvement is under some question. My amendment addresses this by allowing security, tax and criminal law enforcement bodies access. Indeed, the provisions in my amendments could be adapted to simply obliging companies to provide the information on controlling interests to those three bodies.
My point is that there is really no need for public access, which is potentially open to abuse. The Bill as it stands overturns 200 years of the right to privacy under UK company law without really debating it. Transparency of ownership relates to whether a company is public or private under British law. As has been pointed out, publicly listed companies have to make an announcement that goes right down to a 3% shareholder, but for a private, family business, privacy has generally been accepted.
The categories of privacy that are protected are contemplated in the BIS October 2014 consultation, and the Government have since responded further to that. Those categories relate to people who are at risk of intimidation or violence, but there are many other areas in which protection of ownership should be justly considered. The measures, as they are likely to evolve, would be expensive to operate and, at the end of the day, decisions about where people need protection are relatively subjective. The Government’s recent advice on secondary legislation suggested that they would confine protection to situations risking violence or intimidation. I suggest that that would be far too narrow to be just. There are a number of situations where families would be open to press vendetta, for example, should they be thus exposed.
I thank my noble friends for their amendments and for the wide-ranging debate. It is good that the noble Baroness, Lady Wheatcroft, and the noble Lord, Lord Borwick, added their voices to the Committee’s discussions, which I found very interesting and illuminating. Of course, the common thread in this group is that of access to information in the PSC register, albeit from very different perspectives.
I start by responding on a couple of general points. The noble Lord, Lord Watson, asked about the response to our discussion paper on PSC rights. Last week, I laid a Statement before the House setting out how we will take the policies and discussion paper forward. We intend to publish draft regulations this summer. This sort of consultation, which we have applied throughout the Bill, helps to limit unintended consequences. The noble Lord also asked why a person needs to tell the company how they are using the information. This is essential to ensure that data are used for a proper purpose. It is important to remember that the full date of birth will be publicly available from the company, even though this will not usually be on the public register at Companies House, and we do not want people passing these data on to fraudsters or identity thieves, for example.
There was also a question about the inspection provisions. Concern was expressed that the PSC register would not necessarily be available for use by journalists and NGOs. Any person may inspect the PSC register for a proper purpose. The purpose of the PSC register is to provide transparency of company ownership and control, so a person may inspect the register in the interests of finding out that information, including in the context of journalism, for example. Someone working with a journalist could pass on the information, provided that they had stated the purpose. I agree with my noble friend Lady Wheatcroft that, once things are made public, they are public, but I think that we will reflect on the debate that we have had this afternoon on this point.
My noble friend Lord Flight said that he felt that the protection regime needed extending and that the current proposals were too limited. We are building on the existing directors’ protection regime, which we believe works well—that is, the current one for companies, to which there have been a number of references and of which I have had experience in my company life. It has improved over the years and generally works well. However, as I set out last week, we are considering whether we need to extend it further. The ultimate objective is transparency, so purely commercial reasons, for example, would not be valid.
I now turn to the amendments, starting with Amendment 37D. The noble Lord clearly appreciates the need for the Secretary of State to be able to grant exemptions from the PSC register in genuinely exceptional circumstances. The amendment provides some examples of such circumstances, such as in relation to national security, with which I agree. In these rare cases it would be damaging to require the fact of that exemption to be publicly stated. This could cause people to try to obtain the information in question by other means, which is not what we would want.
Turning to Amendment 44, I know that the noble Lord will want to ensure that civil society is able to obtain PSC information. As my honourable friend Jo Swinson made clear during Committee in the other place, these provisions will not prevent them doing so. The Bill already allows companies to apply to the court to refuse inspection when information is not sought for a proper purpose. This provision will help to prevent misuse of information in the register by fraudsters and those who simply wish to send people junk mail—whoever they are. If the company’s application were upheld by the court, access to the information would be denied.
In Amendments 44A to 44H and 44J, my noble friend Lord Flight obviously comes to the group from a different perspective, seeking to severely restrict the ability of people to inspect a company’s PSC register. I recognise the concerns raised around allowing public access to this information, including the points that my noble friend mentioned—notably the impact on UK competitiveness and personal privacy. However, I remind him that the Government consulted on the question of public access to PSC information and acted on the basis of the responses that we received. I do not think we will be able to agree to an entirely different approach today. It is not our policy to respond to any lobby but to make real and important changes to tackle the criminal use of UK companies, which is a significant problem, made worse in the international digital world. We want to lead in this area, as the Prime Minister has made clear. I hope that the sketch made by my noble friend Lord Leigh proves to be wrong.
Again on privacy, we have carefully considered the impact that this policy has on the privacy of individuals through the conduct of a full privacy impact assessment. That document has been published and is on the GOV.UK website. The assessments indicated that the proposed measures are necessary and proportionate. In reflecting further, it is important that we also revisit that assessment. We firmly believe that a central, public register is the most appropriate option for the UK, and allowing people to access the company’s own PSC register is an important part of that. I will not repeat what I said in opening today, but increased trust is good for business. Making sure that the UK maintains its reputation as a clean and reliable place to do business and invest is very important. We have taken clear steps to protect personal information wherever appropriate.
On effectiveness, which my noble friend Lord Flight raised, we are looking closely at how Companies House and law enforcement agencies can work together to enforce the regime. The criminal sanctions and public nature of the register will also help to deter criminal activity.
On the issue of compliance costs, a final stage impact assessment estimates a net cost to business per year of £97.5 million, which over 10 years is around £1 billion. Those costs are spread over a population of 3 million companies. Of course, some small businesses are not companies and are not covered by this particular provision. In addition, for companies with simple ownership structures that already know their PSCs—that is, the vast majority of companies—the costs will be minimal. For example, the final impact assessment found that there would be a cost of £10 to small, simple companies in updating beneficial ownership information annually, and a cost of £10 in providing information to a central register annually.
On Amendments 47 and 47A, I would have serious concerns about allowing third parties to ask the registrar of companies to review a person’s right to protection. It is important to remember that applications will only be granted in very limited circumstances, for example when someone is placed at serious risk of violence or intimidation as a result of a company’s activities. On that basis, I do not think it would ever be in the public interest to override that decision.
I hope that I have responded to the key questions raised. I have said that we are happy to reflect on the detail of the debate on Amendment 44. I am not sure what the conclusion of that will be, but I listened to what was said today. I hope my noble friend and noble Lords are reassured by this discussion and will agree to withdraw or not move their amendments.
I thank the Minister for her reply. In general, we are reassured. Many things have been discussed today and we will all go away and reflect before Report. There was one moment when the noble Lord opposite mentioned Huntingdon Life Sciences, which made my spine run cold. There was an occasion when a private company in which I was involved, of which I guess I was the PSC, was dealing with Huntingdon. We were leasing computers to it and the animal rights brigade suddenly parked outside my house. That lasted for only a day or two, but it was quite unnerving. However, that is by the by. I thank the Minister for what she said and I beg leave to withdraw the amendment.