Small Business, Enterprise and Employment Bill (HL Bill 103)

(3) Until section 94 (option to keep information on central register) comes into
force, the section 1032A inserted by sub-paragraph (1) has effect as if, in
subsection (8), paragraph (b) (and the “or” preceding it) were omitted.

Section 94

SCHEDULE 5 5Option to keep information on central register

Part 1 Creation of the option

Register of members

1 Part 8 of the Companies Act 2006 (a company’s members) is amended as
10follows.

2 In Chapter 2 (register of members), before section 113 insert—

“112A Alternative method of record-keeping

This Chapter must be read with Chapter 2A (which allows for an
alternative method of record-keeping in the case of private
15companies).”

3 After Chapter 2 insert—

“CHAPTER 2A Option to keep information on central register

128A Introduction

(1) This Chapter sets out rules allowing private companies to keep
20information on the register kept by the registrar instead of entering
it in their register of members.

(2) The register kept by the registrar (see section 1080) is referred to in
this Chapter as “the central register”.

128B Right to make an election

(1) 25An election may be made under this section—

(a) by the subscribers wishing to form a private company under
this Act, or

(b) by the private company itself once it is formed and
registered.

(2) 30In the latter case, the election is of no effect unless, before it is made—

(a) all the members of the company have assented to the making
of the election, and

(b) any overseas branch registers that the company was keeping
under Chapter 3 have been discontinued and all the entries in
35those registers transferred to the company’s register of
members in accordance with section 135.

(3) An election under this section is made by giving notice of election to
the registrar.

(4) If the notice is given by subscribers wishing to form a private
company—

(a) 5it must be given when the documents required to be
delivered under section 9 are delivered to the registrar, and

(b) it must be accompanied by a statement containing all the
information that—

(i) would be required (in the absence of the notice) to be
10entered in the company’s register of members on
incorporation of the company, and

(ii) is not otherwise included in the documents delivered
under section 9.

(5) If the notice is given by the company, it must be accompanied by—

(a) 15a statement by the company—

(i) that all the members of the company have assented to
the making of the election, and

(ii) if the company was keeping any overseas branch
registers, that all such registers have been
20discontinued and all the entries in them transferred to
the company’s register of members in accordance
with section 135, and

(b) a statement containing all the information that is required to
be contained in the company’s register of members as at the
25date of the notice in respect of matters that are current as at
that date.

(6) The company must where necessary update the statement sent
under subsection (5)(b) to ensure that the final version delivered to
the registrar contains all the information that is required to be
30contained in the company’s register of members as at the time
immediately before the election takes effect (see section 128C) in
respect of matters that are current as at that time.

(7) The obligation in subsection (6) to update the statement includes an
obligation to rectify it (where necessary) in consequence of the
35company’s register of members being rectified (whether before or
after the election takes effect).

(8) If default is made in complying with subsection (6), an offence is
committed by—

(a) the company, and

(b) 40every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the
company.

(9) A person guilty of an offence under this section is liable on summary
conviction to a fine not exceeding level 3 on the standard scale and,
45for continued contravention, a daily default fine not exceeding one-
tenth of level 3 on the standard scale.

(10) A reference in this Chapter to matters that are current as at a given
date or time is a reference to—

(a) persons who are members of the company as at that date or
time, and

(b) any other matters that are current as at that date or time.

128C Effective date of election

(1) 5An election made under section 128B takes effect when the notice of
election is registered by the registrar.

(2) The election remains in force until either—

(a) the company ceases to be a private company, or

(b) a notice of withdrawal sent by the company under section
10128J is registered by the registrar,

whichever occurs first.

128D Effect of election on obligations under Chapter 2

(1) The effect of an election under section 128B on a company’s
obligations under Chapter 2 is as follows.

(2) 15The company’s obligation to maintain a register of members does
not apply with respect to the period when the election is in force.

(3) This means that, during that period—

(a) the company must continue to keep a register of members in
accordance with Chapter 2 (a “historic” register) containing
20all the information that was required to be stated in that
register as at the time immediately before the election took
effect, but

(b) the company does not have to update that register to reflect
any changes that occur after that time.

(4) 25Subsections (2) and (3) apply to the index of members (if the
company is obliged to keep an index of members) as they apply to
the register of members.

(5) The provisions of Chapter 2 (including the rights to inspect or
require copies of the register and to inspect the index) continue to
30apply to the historic register and, if applicable, the historic index
during the period when the election is in force.

(6) The company must place a note in its historic register—

(a) stating that an election under section 128B is in force,

(b) recording when that election took effect, and

(c) 35indicating that up-to-date information about its members is
available for public inspection on the central register.

(7) Subsections (7) and (8) of section 113 apply if a company makes
default in complying with subsection (6) as they apply if a company
makes default in complying with that section.

(8) 40The obligations under this section with respect to a historic register
and historic index do not apply in a case where the election was
made by subscribers wishing to form a private company.

128E Duty to notify registrar of changes

(1) The duty under subsection (2) applies during the period when an
election under section 128B is in force.

(2) The company must deliver to the registrar any relevant information
5that the company would during that period have been obliged under
this Act to enter in its register of members, had the election not been
in force.

(3) “Relevant information” means information other than—

(a) the date mentioned in section 113(2)(b) (date when person
10registered as member),

(b) the date mentioned in section 123(3)(b) (date when
membership of limited company increases from one to two or
more members), and

(c) the dates mentioned in the following provisions, but only in
15cases where the date to be recorded in the central register is
to be the date on which the document containing information
of the relevant change is registered by the registrar—

(i) section 113(2)(c) (date when person ceases to be
member),

(ii) 20section 123(2)(b) (date when company becomes single
member company).

(4) The relevant information must be delivered as soon as reasonably
practicable after the company becomes aware of it and, in any event,
no later than the time by which the company would have been
25required to enter the information in its register of members.

(5) In a case of the kind described in subsection (3)(c), the company
must, when it delivers information under subsection (2) of the
relevant change, indicate to the registrar that, in accordance with
section 1081(1A), the date to be recorded in the central register is to
30be the date on which the document containing that information is
registered by the registrar.

(6) If default is made in complying with this section, an offence is
committed by—

(a) the company, and

(b) 35every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the
company.

(7) A person guilty of an offence under this section is liable on summary
conviction to a fine not exceeding level 3 on the standard scale and,
40for continued contravention, a daily default fine not exceeding one-
tenth of level 3 on the standard scale.

128F Information as to state of central register

(1) When a person inspects or requests a copy of material on the central
register relating to a company in respect of which an election under
45section 128B is in force, the person may ask the company to confirm
that all information that the company is required to deliver to the
registrar under this Chapter has been delivered.

(2) If a company fails to respond to a request under subsection (1), an
offence is committed by—

(a) the company, and

(b) every officer of the company who is in default.

(3) 5A person guilty of an offence under this section is liable on summary
conviction to a fine not exceeding level 3 on the standard scale.

128G Power of court to order company to remedy default or delay

(1) This section applies if—

(a) the name of a person is without sufficient cause included in,
10or omitted from, information that a company delivers to the
registrar under this Chapter concerning its members, or

(b) default is made or unnecessary delay takes place in
informing the registrar under this Chapter of—

(i) the name of a person who is to be a member of the
15company, or

(ii) the fact that a person has ceased or is to cease to be a
member of the company.

(2) The person aggrieved, or any member of the company, or the
company, may apply to the court for an order—

(a) 20requiring the company to deliver to the registrar the
information (or statements) necessary to rectify the position,
and

(b) where applicable, requiring the registrar to record under
section 1081(1A) the date determined by the court.

(3) 25The court may either refuse the application or may make the order
and order the company to pay any damages sustained by any party
aggrieved.

(4) On such an application the court may decide—

(a) any question relating to the title of a person who is a party to
30the application to have the person’s name included in or
omitted from information delivered to the registrar under
this Chapter about the company’s members, whether the
question arises between members or alleged members, or
between members or alleged members on the one hand and
35the company on the other hand, and

(b) any question necessary or expedient to be decided for
rectifying the position.

(5) Nothing in this section affects a person’s rights under section 1095 or
1096 (rectification of register on application to registrar or under
40court order).

128H Central register to be evidence

(1) The central register is prima facie evidence of any matters about
which a company is required to deliver information to the registrar
under this Chapter.

(2) 45Subsection (1) does not apply to information to be included in a
statement under section 128B(5)(b) or in any updated statement
under section 128B(6).

128I Time limits for claims arising from delivery to registrar

(1) Liability incurred by a company—

(a) from the delivery to the registrar of information under this
Chapter, or

(b) 5from a failure to deliver any such information,

is not enforceable more than 10 years after the date on which the
information was delivered or, as the case may be, the failure first
occurred.

(2) This is without prejudice to any lesser period of limitation (and, in
10Scotland, to any rule that the obligation giving rise to the liability
prescribes before the expiry of that period).

128J Withdrawing the election

(1) A company may withdraw an election made by or in respect of it
under section 128B.

(2) 15Withdrawal is achieved by giving notice of withdrawal to the
registrar.

(3) The withdrawal takes effect when the notice is registered by the
registrar.

(4) The effect of withdrawal is that the company’s obligation under
20Chapter 2 to maintain a register of members applies from then on
with respect to the period going forward.

(5) This means that, when the withdrawal takes effect—

(a) the company must enter in its register of members all the
information that is required to be contained in that register in
25respect of matters that are current as at that time,

(b) the company must also retain in its register all the
information that it was required under section 128D(3)(a) to
keep in a historic register while the election was in force, but

(c) the company is not required to enter in its register
30information relating to the period when the election was in
force that is no longer current.

(6) The company must place a note in its register of members—

(a) stating that the election under section 128B has been
withdrawn,

(b) 35recording when that withdrawal took effect, and

(c) indicating that information about its members relating to the
period when the election was in force that is no longer
current is available for public inspection on the central
register.

(7) 40Subsections (7) and (8) of section 113 apply if a company makes
default in complying with subsection (6) as they apply if a company
makes default in complying with that section.

128K Power to extend option to public companies

(1) The Secretary of State may by regulations amend this Act—

(a) to extend sections 128A to 128J (with or without
modification) to public companies or public companies of a
class specified in the regulations, and

(b) to make such other amendments as the Secretary of State
5thinks fit in consequence of that extension.

(2) Regulations under this section are subject to affirmative resolution
procedure.”

Register of overseas members

4 In Chapter 3 of Part 8 of the Companies Act 2006 (overseas branch registers),
10in section 129 (overseas branch registers), at the end insert—

“(6) A company’s right under subsection (1) to keep an overseas branch
register does not apply during or with respect to any period when an
election is in force in respect of the company under section 128B.”

Register of directors and register of directors’ residential addresses

5 15Chapter 2 of Part 10 of the Companies Act 2006 (appointment and removal
of directors) is amended as follows.

6 Under the heading “Register of directors, etc”, before section 162 insert—

“161A Alternative method of record-keeping

Sections 162 to 167 must be read with sections 167A to 167E (which
20allow for an alternative method of record-keeping in the case of
private companies).”

7 After section 167 insert—

“Option to keep information on the central register

167A Right to make an election

(1) An election may be made under this section in respect of a register of
25directors or a register of directors’ residential addresses (or both).

(2) The election may be made—

(a) by the subscribers wishing to form a private company under
this Act, or

(b) by the private company itself once it is formed and
30registered.

(3) The election is made by giving notice of election to the registrar.

(4) If the notice is given by subscribers wishing to form a private
company, it must be given when the documents required to be
delivered under section 9 are delivered to the registrar.

167B 35Effective date of election

(1) An election made under section 167A takes effect when the notice of
election is registered by the registrar.

(2) The election remains in force until either—

(a) the company ceases to be a private company, or

(b) a notice of withdrawal sent by the company under section
167E is registered by the registrar,

whichever occurs first.

167C Effect of election on obligations under sections 162 to 167

(1) 5If an election is in force under section 167A with respect to a
company, the company’s obligations under sections 162 to 167—

(a) to keep and maintain a register of the relevant kind, and

(b) to notify the registrar of changes to it,

do not apply with respect to the period when the election is in force.

(2) 10The reference in subsection (1) to a register “of the relevant kind” is
to a register (whether a register of directors or a register of directors’
residential addresses) of the kind in respect of which the election is
made.

167D Duty to notify registrar of changes

(1) 15The duty under subsection (2) applies during the period when an
election under section 167A is in force.

(2) The company must deliver to the registrar—

(a) any information of which the company would during that
period have been obliged to give notice under section 167,
20had the election not been in force, and

(b) any statement that would have had to accompany such a
notice.

(3) The information (and any accompanying statement) must be
delivered as soon as reasonably practicable after the company
25becomes aware of the information and, in any event, no later than the
time by which the company would have been required under section
167 to give notice of the information.

(4) If default is made in complying with this section, an offence is
committed by—

(a) 30the company, and

(b) every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the
company.

(5) A person guilty of an offence under this section is liable on summary
35conviction—

(a) in England and Wales, to a fine and, for continued
contravention, a daily default fine not exceeding the greater
of £500 and one-tenth of level 4 on the standard scale;

(b) in Scotland or Northern Ireland, to a fine not exceeding level
405 on the standard scale and, for continued contravention, a
daily default fine not exceeding one-tenth of level 5 on the
standard scale.

167E Withdrawing the election

(1) A company may withdraw an election made by or in respect of it
45under section 167A.

(2) Withdrawal is achieved by giving notice of withdrawal to the
registrar.

(3) The withdrawal takes effect when the notice is registered by the
registrar.

(4) 5The effect of withdrawal is that the company’s obligation under
section 162 or (as the case may be) 165 to keep and maintain a register
of the relevant kind, and its obligation under section 167 to notify the
registrar of changes to that register, apply from then on with respect
to the period going forward.

(5) 10This means that, when the withdrawal takes effect—

(a) the company must enter in that register all the information
that is required to be contained in that register in respect of
matters that are current as at that time, but

(b) the company is not required to enter in its register
15information relating to the period when the election was in
force that is no longer current.

167F Power to extend option to public companies

(1) The Secretary of State may by regulations amend this Act—

(a) to extend sections 167A to 167E (with or without
20modification) to public companies or public companies of a
class specified in the regulations, and

(b) to make such other amendments as the Secretary of State
thinks fit in consequence of that extension.

(2) Regulations under this section are subject to affirmative resolution
25procedure.”

Register of secretaries

8 Part 12 of the Companies Act 2006 (company secretaries) is amended as
follows.

9 After section 274 insert—

“274A 30 Alternative method of record-keeping

Sections 275 and 276 must be read with sections 279A to 279E (which
allow for an alternative method of record-keeping in the case of
private companies).”

10 After section 279 insert—

“Option to keep information on the central register

279A 35Right to make an election

(1) An election may be made under this section—

(a) by the subscribers wishing to form a private company under
this Act, or

(b) by the private company itself once it is formed and
40registered.

(2) The election is made by giving notice of election to the registrar.

(3) If the notice is given by subscribers wishing to form a private
company, it must be given when the documents required to be
delivered under section 9 are delivered to the registrar.

279B Effective date of election

(1) 5An election made under section 279A takes effect when the notice of
election is registered by the registrar.

(2) The election remains in force until either—

(a) the company ceases to be a private company, or

(b) a notice of withdrawal sent by the company under section
10279E is registered by the registrar,

whichever occurs first.

279C Effect of election on obligations under sections 275 and 276

If an election is in force under section 279A in respect of a company,
the company’s obligations—

(a) 15to keep and maintain a register of secretaries under section
275, and

(b) to notify the registrar of changes to it under section 276,

do not apply with respect to the period when the election is in force.

279D Duty to notify registrar of changes

(1) 20The duty under subsection (2) applies during the period when an
election under section 279A is in force.

(2) The company must deliver to the registrar—

(a) any information of which the company would during that
period have been obliged to give notice under section 276,
25had the election not been in force, and

(b) any statement that would have had to accompany such a
notice.

(3) The information (and any accompanying statement) must be
delivered as soon as reasonably practicable after the company
30becomes aware of the information and, in any event, no later than the
time by which the company would have been obliged under section
276 to give notice of the information.

(4) If default is made in complying with this section, an offence is
committed by—

(a) 35the company, and

(b) every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the
company.

(5) A person guilty of an offence under this section is liable on summary
40conviction—

(a) in England and Wales, to a fine and, for continued
contravention, a daily default fine not exceeding the greater
of £500 and one-tenth of level 4 on the standard scale;

(b) in Scotland or Northern Ireland, to a fine not exceeding level
455 on the standard scale and, for continued contravention, a