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| Companies (Audit, Investigations And Community Enterprise) Bill [HL] |
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These notes refer to the Companies (Audit, Investigations and Community Enterprise) Bill [HL] as brought from the House of Lords on 14 July 2004 [Bill 142] COMPANIES (AUDIT, INVESTIGATIONS AND COMMUNITY ENTERPRISE) BILL [HL]EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes refer to the Companies (Audit, Investigations and Community Enterprise) Bill [HL] as brought from the House of Lords on 14 July 2004. They have been prepared by the Department of Trade and Industry (DTI) in order to assist the reader in understanding the Bill and help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given SUMMARY AND BACKGROUND 3. The Companies (Audit, Investigations and Community Enterprise) Bill forms part of the Government's strategy to help restore investor confidence in companies and financial markets following recent major corporate failures. These legislative changes, amending relevant provisions of the Companies Acts 1985 and 1989, are intended to complement a package of non-legislative measures designed to strengthen corporate governance and audit practice: for example, changes to the Combined Code on Corporate Governance in July 2003 following a review by Derek Higgs on the role and effectiveness of non-executive directors and Sir Robert Smith's guidance on audit committees in January 2003; and the Financial Reporting Council taking over the functions of the former Accountancy Foundation. In addition, the Bill is intended to assist social enterprise by creating a new type of company, the "community interest company" (CIC). [Bill 142—EN] 53/3 4. The measures in the Bill have emerged from a number of consultation documents and reports. These include: the Final Report of the Co-ordinating Group on Audit and Accounting Issues to the Secretary of State for Trade and Industry and the Chancellor of the Exchequer (January 2003); Review of the Regulatory Regime of the Accountancy Profession: Legislative Proposals (March 2003) and the Report on the public consultation and the Government's conclusions (February 2004); Company Investigations: Powers for the 21st Century (consultation document, October 2001); Enterprise for Communities: proposals for a Community Interest Company (consultation document, March 2003); followed by a Report on the public consultation and the Government's intentions (October 2003). OVERVIEW OF THE BILL 5. The Bill is divided into three parts and has 65 clauses and eight Schedules. 6. Part 1 is intended to strengthen the independence of the system of supervising auditors, the enforcement of accounting and reporting requirements, the rights of auditors to information and the company investigations regime. 7. Part 2 makes provision for the establishment of a new corporate vehicle, the "community interest company", intended to make it simpler and more convenient to establish a business whose profits and assets are to be used for the benefit of the community. The regime for community interest companies will include a statutory "lock" on the profits and financial assets of CICs and, where a CIC is limited by shares, power to impose a "cap" on any dividend. Companies wishing to become a CIC will be required to pass a community interest test and to produce an annual report showing that they have contributed to community interest aims. A new, independent regulator will be responsible for approving the registration of CICs and ensuring they comply with their legal requirements, with powers to obtain information from CICs, appoint, suspend or remove CIC directors, make orders in respect of the property of CICs, apply to the court for a CIC to be wound up and set the dividend cap. 8. Part 3 contains supplementary provisions concerning repeals, revocations, commencement, extent and the Bill's short title. TERRITORIAL APPLICATION 9. Company law matters relating to Scotland are reserved to the UK Parliament under the Scotland Act 1998. Those relating to Wales have not been transferred to the National Assembly for Wales under the Government of Wales Act 1998. Company law in Northern Ireland is a transferred matter under the Northern Ireland Act 1998. Most of the provisions in the Bill therefore extend to England and Wales and to Scotland, but not to Northern Ireland. However, provisions in the Bill which amend existing legislation have the same territorial application as the legislation they are amending and this affects Northern Ireland. For example:
10. Clause 14 (which provides for a body - likely to be the Review Panel of the Financial Reporting Review Panel Ltd - to be appointed to look at aspects of periodic accounts and reports under Listing Rules) extends to Northern Ireland because financial services and markets legislation covers the whole of the UK. Clause 15(1)(b) and (3) extend to Northern Ireland. These subsections make provisions of Northern Ireland legislation (allowing the Inland Revenue to disclose information) apply in relation to the prescribed body appointed under clause 14. In the case of audit regulation, clause 17, which gives the Secretary of State the power to make regulations imposing a levy for meeting the costs of any body to whom the Secretary of State is proposing to make a grant under clause 16, will extend to Northern Ireland because it is efficient for the levy provisions to apply on a UK basis, given the small number of persons who would be the subject of a separate Northern Ireland levy. In the case of community interest companies, clause 38 has an impact on Scottish charity law, which is a devolved matter. A Sewel motion was passed in respect of this clause on 4 March 2004. COMMENTARY ON CLAUSES 11. The commentary on clauses is set out by Part. The commentary on the Schedules is included within the clauses that introduce them. In these notes, the following abbreviations are used: AIDB Accountancy Investigation and Discipline Board APB Auditing Practices Board ASB Accounting Standards Board ACCA Association of Chartered Certified Accountants CIB Companies Investigation Branch CIC community interest company CLG company limited by guarantee CLS company limited by shares DTI Department of Trade and Industry FiSMA Financial Services and Markets Act 2000 FRC Financial Reporting Council FRRP Financial Reporting Review Panel Ltd FSA Financial Services Authority ICAEW Institute of Chartered Accountants in England and Wales ICAI Institute of Chartered Accountants in Ireland ICAS Institute of Chartered Accountants of Scotland IPS Industrial and Provident Society IR Inland Revenue POBA Professional Oversight Board for Accountancy RIA Regulatory Impact Assessment SME small or medium-sized enterprise PART 1: AUDITORS, ACCOUNTS AND INVESTIGATIONS Chapter 1: Auditors Summary and Background 12. The provisions in this Chapter amend the current framework for the regulation of the statutory auditor, as provided for in the Companies Act 1989. Under this framework, a company auditor must be a member of a recognised supervisory body and hold a recognised professional qualification. A professional accountancy body may act as a recognised supervisory body and/or offer a recognised professional qualification where it has been so recognised by the Secretary of State. The Secretary of State also has the power to recognise appropriate overseas qualifications as equivalent to a UK recognised professional qualification. 13. Five bodies are currently recognised by the Secretary of State as recognised supervisory bodies: the Institute of Chartered Accountants in England and Wales (ICAEW); the Institute of Chartered Accountants of Scotland (ICAS); the Association of Chartered Certified Accountants (ACCA); the Institute of Chartered Accountants in Ireland (ICAI); and the Association of Authorised Public Accountants. 14. Five bodies are currently recognised by the Secretary of State as offering recognised professional qualifications: the ICAEW; ICAS; ACCA; ICAI; and the Association of International Accountants. 15. The recognised supervisory bodies have day to day responsibility for ensuring the appropriate supervision of auditors and audit firms. The detailed requirements which they must observe in carrying out this supervision role are set out in Part 2 of Schedule 11 to the Companies Act 1989. 16. The proposed statutory provisions amend that Schedule by placing new requirements on the recognised supervisory bodies. The new requirements are designed principally to ensure the independence of the regulation of major public interest audit work, and to permit delegation of the Secretary of State's powers under Part 2 of the Companies Act 1989 (principally the power to recognise accountancy bodies as recognised supervisory bodies for auditors) to a wider category of persons than at present. 17. The proposed provisions also replace the Secretary of State's existing grant making power in section 256 of the Companies Act 1985 with a new power which would enable the Secretary of State to make grants in respect of a wider range of activities relating to financial reporting and administration. At present, section 256 enables the Secretary of State to make grants for the issuing or enforcement of accounting standards or for overseeing or directing such activity. This power is currently used to fund in part the activities of the FRC (Financial Reporting Council) and its two associated Boards, the ASB (Accounting Standards Board) and the FRRP (Financial Reporting Review Panel). The proposed extension to the power would enable grants to be made for the new activities that the FRC is taking on. 18. In accordance with the recommendations contained in the Government's report on its review of the regulatory regime of the accountancy profession, published in January 2003, the FRC has taken on the functions of the Accountancy Foundation Ltd (which was set up to provide non-statutory independent regulation of the accountancy profession in the UK). The new FRC includes five Boards formed by subsidiary companies of the FRC. These Boards have three areas of responsibility:
19. The provisions would also enable the Secretary of State to impose a levy on bodies or persons, towards the costs of a designated body (which the Government envisages will be the FRC). Currently, the FRC's costs are met by voluntary contributions divided equally between listed companies (collected alongside their listing fees), the accountancy profession and the Government. The levy is expected to be applied to those who currently contribute, should it prove necessary in order to ensure security of funding for the body concerned. 20. The provisions would also exempt a body receiving a grant under clause 16, its subsidiary bodies and their individual members, officers and staff from liability in damages for things done or not done for the purposes of, or in connection with, the activities listed in clause 16. Currently, the Companies Acts provide for exemptions from liability for a person authorised by the Secretary of State to apply to court in respect of defective accounts (currently the FRRP), recognised supervisory bodies and any body to which the Secretary of State delegates her statutory functions in respect of auditors. Recognised supervisory bodies Clauses 1 and 2 - Additional requirements for recognition of supervisory bodies; arrangements to which additional requirements for recognition relate 21. Clause 1 amends Part 2 of Schedule 11 to the Companies Act 1989, which sets out the requirements that accountancy bodies must meet in order to be recognised as supervisory bodies for auditors. Specifically, the clause places new requirements on the recognised supervisory bodies by making it a condition of recognition that they participate in independent arrangements for:
22. Clause 2 inserts a new Part 3 into Schedule 11 to the Companies Act 1989. The new Part sets out the criteria which must be met by the independent standard setting, monitoring and disciplinary arrangements. The clause seeks to ensure the independence of these arrangements by providing (in new paragraph 21) that the recognised supervisory bodies cannot be involved in the selection and appointment of those who carry out the standard setting (new paragraphs 17 and 18), monitoring (new paragraph 19) and disciplinary (new paragraph 20) functions. New paragraph 20 also provides for transparency in the disciplinary arrangements by requiring that independent disciplinary hearings must be held in public, unless that would not be in the interests of justice. 23. The practical effect of these clauses is to make the recognised supervisory bodies subject to a more independent regulatory regime in respect of the setting, monitoring and enforcement of auditing standards. Delegation of Secretary of State's functions in relation to auditors Clauses 3 to 5 - Delegation of functions by Secretary of State to new or existing body; circumstances in which Secretary of State may delegate functions to existing body; supplementary provisions about delegation orders 24. Section 46 of the Companies Act 1989 empowers the Secretary of State to establish a body corporate to exercise her powers relating to company auditors and the recognition of bodies which supervise auditors and/or provide a professional qualification; and Schedule 13 sets out a number of supplementary provisions relating to the delegation of these functions. Section 46 does not allow the Secretary of State to delegate her functions to anyone other than a body corporate actually established by the delegation order. The policy of the Government is that the functions should be delegated to the POBA, set up under the FRC structure. To achieve this policy aim, these clauses therefore seek to enable the powers to be delegated to a body other than one created by the delegation order. 25. Clause 3 amends section 46 to allow the Secretary of State to delegate her functions not only to a body created by delegation order under section 46 but also to an existing body - which can be either a body corporate or an unincorporated association - provided certain requirements are satisfied. 26. Clause 4 inserts a new section 46A into the Companies Act 1989. The new section sets out the circumstances in which the Secretary of State may delegate functions to an existing body. Subsection (2) provides that the body to whom the functions are to be delegated must be willing and able to exercise the functions and must meet certain other conditions set out in subsection (3). The purpose of subsection (5) is to deal with the case of a body that has (non-statutory) functions relating to arrangements in which recognised supervisory bodies may participate in order to meet the new criteria for recognition introduced by clauses 1 and 2. Under this subsection, such a body may also exercise the delegated functions of the Secretary of State. The aim of this provision is to ensure that the POBA (which is expected to be the body to be designated by the first delegation order, provided it fulfils the requirements for designation) is not precluded from exercising any delegated function on the basis of its involvement with the arrangements set out in clause 2. 27. Clause 5 amends Schedule 13 to the Companies Act 1989 to reflect the extension of the delegation power at section 46. Essentially, this clause specifies which provisions in Schedule 13 apply to a body created by the delegation order and which apply to an existing body. Subsection (5) provides that where the body is an unincorporated association (as the POBA will be) any proceedings brought in connection with the exercise of the delegated functions by the body may be brought in the name of the body corporate whose constitution provides for the establishment of the association. Auditors' qualifications Clause 6 - Approval of overseas qualifications for auditors 28. This is a technical amendment of section 33 of the Companies Act 1989, designed to improve the operation of the Secretary of State's power to approve overseas qualifications. It is intended that this power, with other functions under Part 2 of the Companies Act 1989, will be delegated to an independent regulator (see clauses 3 to 5). 29. Section 33 of the Companies Act 1989 allows the Secretary of State to recognise overseas qualifications as equivalent in the UK. Under section 33, it is only possible to recognise either all or none of the people who hold a particular overseas qualification (for example, all those who hold a particular accounting diploma). However, there are circumstances where it would in fact only be appropriate to recognise some of those people. For example, where an overseas qualification originally fell below the criteria for approval in section 33 but was subsequently changed so that it met those criteria, the Secretary of State may wish to recognise the qualification, provided that it was gained after the date when the change was made. Similarly, where different combinations of learning modules and examinations offer alternative routes to the same qualification, the Secretary of State may wish to recognise the qualification provided that the audit-related modules and examinations have been undertaken. 30. At present, section 33 does not allow the Secretary of State to do either of these things and she therefore has to refuse recognition to the qualification as a whole. Clause 6 would amend section 33 to remedy this, by providing that persons who hold a specified professional qualification and meet other specific requirements may be regarded as holding an approved overseas qualification. Services provided by auditors Clause 7 - Disclosure of services provided by auditors and related remuneration 31. Clause 7 replaces sections 390A(3) and 390B of the Companies Act 1985 with a new section 390B and makes a number of related amendments to the Act. The purpose of this clause is to enable the Secretary of State, by regulations, to require companies to publish more information about the types of services they and their associates have purchased from their auditors and their associates. Under existing section 390B, the Secretary of State already has the power to require companies to disclose the total value of their non-audit services. Under section 390A(3) companies are required to disclose the amount of remuneration paid for audit services. The effect of this clause is to widen the Secretary of State's existing regulation-making power, so that regulations can also require disclosure differentiating between audit and non-audit service and different types of non-audit service, with a breakdown of the cost of each. Examples of non-audit services include taxation services, valuation services and other expert services including actuarial services, litigation support services, IT and legal services. 32. The aim is to address concerns about possible conflicts of interest between the audit firm as statutory auditor and the audit firm as provider of other, non-statutory services to the company. More detailed disclosure requirements should allow stakeholders and others to identify particular features of the company/auditor relationship that may raise concerns over the auditor's independence. 33. Subsection (1) replaces existing section 390B of the Companies Act 1985. 34. Subsection (1) of new section 390B enables the Secretary of State to make regulations requiring disclosure by companies of (a) the nature of the services provided to a company by its auditors and their associates, and (b) the amount of remuneration to be paid for those services. The effect of subsection (1) is also to replace existing section 390A(3) which, under subsection (2)(a) of clause 7, ceases to have effect. 35. Subsection (2) of new section 390B enables regulations under subsection (1) to be flexible in how they classify the services provided by auditors and their associates for which disclosure is required. The effect, for example, is that the regulations could differentiate between a particular service which was considered so important that it should be disclosed separately (no matter how relatively small the amount paid for it) and other services considered less important from the perspective of ensuring auditor independence and which would thus not require separate identification at all, or not below a certain amount. It also enables the audit or non-audit fees to be broken down so that, for example, it will be possible to require separate disclosure of amounts paid in respect of tax advice by each company in a group or an aggregate figure for tax advice for the group as a whole. 36. Subsection (3) of new section 390B provides further powers to require disclosure of auditors' remuneration to include: "expenses"; benefits in kind; services provided to associates of the company; and to define what is meant by "associate" of an auditor or a company. 37. Subsection (3)(d) enables disclosure to be required in the case of services provided to "associates" of a company. This broadens the existing definition of an "associated undertaking" of a company contained in Regulation 2 of the Companies Act 1985 (Disclosure of Remuneration for Non-Audit Work) Regulations 1991 (SI 1991/2128). This will mean that services provided to, for example, pension funds (which are not "undertakings") may be included in the regulations, as part of any disclosure. 38. Subsection (4) of new section 390B is concerned with the location of the required disclosures. At present the disclosure of audit services required by section 390A(3) must be made in the notes to the company's individual or group accounts. Disclosures in respect of non-audit services required by regulations under existing section 390B may be required to be made in the auditors' report or in the notes to the company's individual or group accounts. Subsection (4) is drafted flexibly to allow the regulations to require the disclosure to be made in the notes to the company's individual or group accounts; in the director's report; or in the auditors' report. 39. Under subsection (5) of new section 390B, if directors are required by the regulations to make the disclosures in the notes to the accounts or the directors' report, the regulations may also require the auditors to supply the directors with any information necessary to enable them to make the disclosure. This re-enacts the latter part of existing section 390B(3). In addition, subsections (5)(b) and (6) enable the regulations to apply, as appropriate, the criminal penalties in sections 233(5) (approval of defective annual accounts) and 234(5) (preparation of defective directors' report) of the Companies Act 1985. They also enable the existing administrative arrangements under sections 245 to 245C of the Act on the voluntary revision, or compulsory revision through application to the court, of accounts and reports to be applied. Non-compliance by an auditor with the requirement to supply the directors with the information they need would be dealt with by the existing enforcement processes, through disciplinary action by the relevant supervisory body. 40. Subsection (7) of new section 390B re-enacts section 390B(4). It enables the regulations to differentiate, for example, between larger and smaller companies. It is intended that, as at present, the detailed disclosure requirements relating to non-audit services will not apply to companies qualifying as small or medium-sized (SMEs) under the Act. SMEs will, however, have to continue to disclose the audit fee itself where relevant. In January 2004 the Department increased the qualifying conditions for SMEs for company law purposes, to include satisfying two or more of the following requirements: turnover of not more than £22.8 million; balance sheet total of not more than £11.4 million; and no more than 250 employees. 41. Subsection (2)(a) and (3) of clause 7 repeal the provisions in section 390A and in Schedule 4A relating to disclosure of remuneration for audit services, so that all the requirements relating to disclosures about services provided by auditors are located in one place under the new section 390B. Subsection (2)(b) updates the reference in section 390A(5) to "payments in cash", to "payments of money". |
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