UK: DBERR consultation on the creation of a UK wide companies registry

DBERR has published a consultation paper concerning its proposal to integrate the Northern Ireland Registry of Companies with Companies House to create a single UK Registry of Companies. According to the consultation paper:

In practical terms the merger would mean that customers would be able to refer to one Register only for registration and information relating to UK companies. It would also mean that all UK customers had access to the same products and services at the same price. The system would operate in much the same way as Companies House currently works with Scotland. The Registrar for Northern Ireland would be retained, and would be an appointee of the Secretary of State for BERR, as is the case for England and Wales and for Scotland; in practice the Northern Ireland Registrar would report to the Chief Executive of Companies House. The office in Belfast would remain, but would use systems, hardware, processes and have corporate standards in common with Companies House. Registry operations in Northern Ireland would be maintained with no detrimental impact upon customers, but the existing company data would be migrated to give customers full UK information on companies. There would be a common fee structure, and customers would have the benefit of common filing and search services covering the whole of the UK. There would be an exercise to value and transfer (if applicable) relevant assets and liabilities".

UK: Limited Liability Partnership Accounts Regulations published

The following Regulations have been published on the OPSI website and come into force on 1 October 2008. Their purpose is to apply to limited liability partnerships the accounting provisions of the Companies Act (2006). For further information see these FAQs prepared by BERR. 

[1] The Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008 - see here for the explanatory memorandum.

[2] The Small Limited Liability Partnerships (Accounts) Regulations 2008 - see here for the explanatory memorandum.

[3] The Large and Medium-sized Limited Liability Partnerships (Accounts) Regulations 2008 - see here for the explanatory memorandum.

UK: Companies Act (2006) - The Companies (Reduction of Share Capital) Order 2008

The Companies (Reduction of Share Capital) Order 2008 has been published on the OPSI website, together with an explanatory memorandum. The Order was made on 17th July and comes into force on 1 October 2008. It sets out the form of the solvency statement for private companies wishing to reduce their share capital in accordance with Sections 642 to 644 of the Companies Act (2006). For background information see these FAQs provided by BERR. 

UK: BERR annual report published

The UK Government department responsible for company law - BERR, or the Department for Business, Enterprise and Regulatory Reform - has published its annual report. Click here to view the entire report (be warned: it contains 267 pages) or here to view separate sections. For those interested in the Government's perception of its role in corporate governance there are some interesting insights. For example, the report notes (on page 55) that one of BERR's roles is to "create fair and flexible labour markets and to ensure that confident and informed shareholders and consumers drive markets".

UK: Companies Act (2006) implementation - BERR update

Yesterday BERR published an update on its Companies Act (2006) website concerning (a) statutory instruments with a 1 October 2008 commencement date, (b) the restoration to the register of companies dissolved prior to 1969, (c) the amendment of Tables A to F of the Companies Act (1985), (d) the draft Overseas Companies Regulations and (e) accounts and reports guidance.

For further information see: 

BERR update | Regulations made or before Parliament | Application of the Companies Act (2006) to Limited Liability Partnerships | Frequently Asked Questions | Companies Act (2006) |

UK: Companies Act (2006) - BERR publishes guidance on accounting and reporting provisions

BERR has published guidance on the accounting and reporting provisions within the Companies Act (2006) and associated Regulations. The guidance summarises changes introduced by the Act and Regulations and explains the relevance of the Act's provisions for companies required (or opting) to prepare accounts using international accounting standards.

The Accounting Standards Board has already referred to the guidance: in a press release published today, the ASB comments on the meaning of "off-balance sheet arrangements" in Section 410A of the 2006 Act. Section 410A was inserted by Section 8 of the Companies Act 2006 (Amendment) (Accounts and Reports) Regulations 2008 and requires the disclosure of off balance sheet arrangements by companies other than small companies. However, no definition of "off balance sheet arrangement" is provided - hence the ASB's guidance.

UK: BERR business plan for 2008-2011 published

The UK's Department for Business, Enterprise and Regulatory Reform (BERR) has published its business plan for 2008-2011. One of BERR's strategic objectives is "free and fair markets" and in this regard a number of specific proposals are made including:

• Implement the EU Services Directive by the end of 2009, to make it easier for service providers to set up business, or provide services, in another Member State
• Implement the Companies Act 2006 by October 2009, to ensure that company law reflects the modern business world
• Reduce the administrative burdens of regulations imposed by BERR, mainly from employment, company and consumer law, by 25% by May 2010 

In one important respect the business plan is disappointing: there is little discussion of the concepts of the free and fair market. What does fairness mean in this context?

Further information is available here:

Directive 2006/123/EC (the Services Directive) | BERR Services Directive implementation information | BERR business plan | 

UK: Companies Act (2006) - final Commencement Order published

The Department for Business, Enterprise and Regulatory Reform (BERR) has today published in draft form the Companies Act 2006 (Commencement No. 8, Transitional Provisions and Savings) Order 2008. This is the eighth (and final) Companies Act (2006) Commencement Order, the purpose of which is to bring into force on 1 October 2009 the remaining provisions of the 2006 Act. Click here to view the draft Order and associated consultative document. The latter contains a summary of the provisions being brought into force on 1 October 2009 and an annex identifying those provisions of the Companies Act (1985), Companies Act (1989) and Companies (Audit, Investigations and Community Enterprise) Act (2004) which will remain in force after 1 October 2009.

UK: The Companies Act 2006 (Commencement No. 7 and Transitional Provisions) Order - revised draft published

Today a revised draft of the Companies Act 2006 (Commencement No. 7 and Transitional Provisions) Order was published by BERR (available here as a Word document).  This replaces the draft published on 2 May. In the explanatory text (see this Word document) the Government explained the new provisions within the Order:

The new provisions in this revised draft are to commence the repeal of the bar, contained in the current legislation, on restoration of companies which were dissolved before 16 November 1969 (11 March 1971 in Northern Ireland). The bar could be retained using separate powers under the 2006 Act. However, the Government do not propose to retain the bar. Further, as it is proposed not to retain the current bar, the Government proposes to remove it without waiting for the commencement of the restoration provisions in Part 31 of the 2006 Act in October 2009. The Government therefore proposes to commence the relevant repeals together with the other commencements contained in the Seventh Commencement Order, to take effect as from 1 October 2008. These repeals are therefore provided for in Article 2 of the revised draft Order"

The following explanation was provided by the Government for repealing the bar:

The current bar means that some ex-employees or their estates are unable to press claims for compensation in respect of personal injury or fatal accident, either against the employing company, its insurers or the Financial Services Compensation Scheme, simply because the company was dissolved prior to 1969 (or 1971 in Northern Ireland). Removing the bar may therefore enable such ex-employees or their estates to receive compensation which they are currently unable to obtain. This may be relevant in particular to sufferers of so-called long-tail diseases, such as mesothelioma.

In 1998 the Law Commission and the Scottish Law Commission sought views in their consultation on the reform of the Third Parties (Rights against Insurers) Act 1930 on the case for removing the bar on restoration of companies dissolved before 1969. In publishing their recommendations (Law Commission Report No. 272, Scottish Law Commission Report No. 184) they reported that most respondents to the consultation agreed that section 651 and section 141 should be amended.

The Government further take the view that, as it is proposed not to retain the current bar, it would be desirable to remove it without waiting for the commencement of Part 31 of the 2006 Act in October 2009. "

UK: Companies Act (2006): Draft Regulations published

Earlier this month, BERR published the following draft regulations:

(a) The Companies (Reduction of Share Capital) Order.
(b) The Companies Act 2006 (Commencement No. 7 and Transitional Provisions) Order.
(c) The Company Names Adjudicator Rules.
(d) The Companies (Disclosure of Address) Regulations.

Copies of the above, along with explanatory notes and impact assessments, are available here.

In addition, the following draft Regulations have been published concerning the application of the Companies Act (2006) to limited liability partnerships (these are due to come into effect for LLPs on 1 October 2008 for financial years beginning on or after that date):

(a) The Large and Medium -sized Limited Liability Partnerships (Accounts) Regulations 2008.
(b) The Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006 ) Regulations 2008.
(c) The Small Limited Liability partnerships (Accounts) Regulations 2008.
(d) The Limited Liability Partnerships (Late Filing Penalties) Regulations 2008.

For copies and further information click here.

UK: Section 644, Companies Act (2006): commencement date brought forward

The Department for Business, Enterprise and Regulatory Reform (BERR) has announced that Section 644 of the Companies Act (2006) will now come into force on 1 October 2008 and not 1 October 2009 as previously stated. According to BERR:

"Until 2 May 2008 the publicly stated position as regards the commencement of section 644 was that it would commence in October 2009, and that between October 2008 and October 2009 matters relating to the registration of documents at Companies House would be dealt with by amendments to section 138 of the Companies Act 1985, amendments that would have simply enabled suitable changes to be made to existing forms. This approach was agreed to provide sufficient time for Companies House to implement all necessary processes and procedures to ensure the proper operation of the solvency statement route for reducing share capital. Companies House, however, is confident that it can now have in place all necessary processes and procedures to ensure the proper operation of the solvency statement route by October 2008. That being the case there is now no barrier to commencing section 644 of the 2006 Act in October 2008, and that is what we now propose to do".

For further information see here.

UK: financial regulation - Conservative Party's reform proposals

The Conservative Party has published, at the start of its conference in Birmingham, a policy document titled "Reconstruction - our plan for a strong economy". The proposals are many and wide-ranging; they cover the tax system, consumer credit regulation, the housing market and the role of the Bank of England and Financial Services Authority. Amongst the proposals are the following (to quote directly from the report):

• Improve the system for regulating banks by asking the FSA to tackle irresponsible bonus structures. Institutions that use massive bonuses to encourage short-term reckless risk-taking will have to hold more capital to offset their higher risks. 
• Improve the quality of regulation by matching the FSA’s new responsibilities with new funding. Financial institutions will have to contribute more funds and skilled secondees to the FSA so that the regulator is more equal to the regulated.
• Introduce more transparency into the regulation of complex financial instruments and off balance sheet vehicles.
• Make DBERR the clearing house across Whitehall for all legislation which has a regulatory impact.

UK: England and Wales: stay of proceedings - the director/shareholder as employee

Earlier this year, in Neufeld v A & N Communications in Print Ltd & Secretary of State for BERR [2008] UKEAT 0177_07_1104, His Honour Judge McMullen QC held that a 90% majority shareholder was an employee for the purposes of Section 230 of the Employment Rights Act (1996). As such the shareholder qua employee was able to benefit from Section 182 of the 1996 Act following the company's insolvency in order to claim redundancy, notice and holiday pay from the Secretary of State (the payments coming from the National Insurance Fund).  

The Secretary of State appealed. The Court of Appeal will hear the appeal in early December. Meanwhile, a stay of all proceedings concerning "the circumstances in which a director and majority shareholder of a company may be regarded as an employee for the purpose of a claim against the Secretary of State pursuant to Section 182 of the Employment Rights 1996 as statutory guarantor for certain categories of debts owed to employees, but unsatisfied on the insolvency of an employer" has been announced pending the Court of Appeal's decision. Click here for further information.  

Note: HHJ McMullen QC relied upon the guidance provided by the President of the Employment Appeal Tribunal in Clark v Clark Construction Initiatives Ltd & Anor [2008] UKEAT 0225_07_2902 (noted here). 

UK: BERR consultation on proposed changes to the European Works Council Directive (94/45/EC)

Earlier this year the European Commission published proposed changes to the European Works Council Directive (94/45/EC). The Department for Business, Enterprise and Regulatory Reform has now published a consultation paper with regard to the Commission's proposals, the closing date for responses being 6 October 2008. This does not provide much time; the reasons for this short consultation period are explained in the consultation paper (p. 3):

The French Presidency and the European Commission are seeking political agreement from the Member States and the European Parliament on the revision of the EWC Directive by December 2008. The Commission's proposals will therefore be subject to early and detailed consideration by the Council this autumn, starting with Working Group meetings scheduled for mid-September".

UK: limited partnership reform - DBERR consultation paper published

In November 2003 a joint report (Law Com No 283; Scot Law Com No 192) concerning the reform of partnership law was published by the English and Scottish Law Commissions. Although the Government does not plan, at present, to implement the Commissions' recommendations with regard to general partnerships, changes to the law governing limited partnerships have been proposed by the Department for Business, Enterprise and Regulatory Reform in a consultation paper published last week. 

DBERR's aim is to remove doubts about the operation of limited partnerships and to produce a coherent body of law relating to them. The consultation paper contains recommendations falling within the following categories:

• The establishment, registration and de-registration of a limited partnership.
  
• The liability of limited partners to third parties.
  
• The rights and obligations of general and limited partners in a limited partnership.
  

The consultation paper contains a draft of the The Legislative Reform (Limited Partnerships) Order 2009 and The Companies Act 2006 (Index of Company Names and Consequential Provisions relating to Limited Partnerships Act (1907) Order 2008.