Companies (Audit, Investigations and Community Enterprise) Bill [HL]

House of Commons

Session 2002 - 03
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Companies (Audit, Investigations and Community Enterprise) Bill [HL]

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 5 — Official Property Holder for Community Interest Companies
71

(disqualifying offices), insert at the appropriate place—

“Appeal Officer for Community Interest Companies.”
Schedule 5
Section 29

Official Property Holder for Community Interest Companies
Status
5
1     (1)
The Official Property Holder is a corporation sole.
      (2)
A document purporting to be—
(a)
duly executed under the seal of the Official Property Holder, or
(b)
signed on behalf of the Official Property Holder,

shall be received in evidence and shall, unless the contrary is proved, be
10
taken to be so executed or signed.
Relationship with Regulator
2
The Regulator must make available to the Official Property Holder such
members of the Regulator’s staff as the Official Property Holder may require
in order to exercise the functions of the office.
15
Effect of vacancy
3
The Regulator must appoint a member of the Regulator’s staff who is to act
as Official Property Holder—
(a)
during any vacancy in the office, or
(b)
if the Official Property Holder is absent, subject to suspension or
20
unable to act.
Property
4     (1)
The Official Property Holder holds property vested in or transferred to him
as a trustee.
      (2)
The Official Property Holder may release or deal with the property—
25
(a)
to give effect to any interest in or right over the property of any
person (other than the community interest company by which, or in
trust for which, the property was held before it was vested or
transferred), or
(b)
at the request of a person appointed to act as administrative receiver,
30
administrator, provisional liquidator or liquidator of the company.
      (3)
Subject to sub-paragraph (2), the Official Property Holder may not release or
deal with the property except in accordance with directions given by the
Regulator.
Finance
35
5     (1)
The Official Property Holder may recover his expenses in respect of
property held by him from the property or from the community interest

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 6 — Community interest companies: names
72

company by which, or in trust for which, the property was held before it was
vested in or transferred to the Official Property Holder.
      (2)
Any expenses of the Official Property Holder not recovered under sub-
paragraph (1) are to be met by the Regulator.
Reports
5
6     (1)
As soon as possible after the end of each financial year, the Official Property
Holder must prepare a report on the exercise of the Official Property
Holder’s functions during the financial year.
      (2)
The Official Property Holder must send a copy of the report to the Regulator.
      (3)
“Financial year” means—
10
(a)
the period beginning with the date on which a person is first
appointed as the Official Property Holder and ending with the next
31st March, and
(b)
each successive period of 12 months beginning with 1st April.
Schedule 6
15
Section 33

Community interest companies: names
Companies Act 1985 (c. 6)
1
The Companies Act 1985 has effect subject to the following amendments.
2     (1)
Section 26 (prohibition on registration of certain names) is amended as
follows.
20
      (2)
In subsection (1)(a)—
(a)
for “or “public limited company”” substitute “, “public limited
company”, “community interest company” or “community interest
public limited company””, and
(b)
for “and “cwmni cyfyngedig cyhoeddus”” substitute “, “cwmni
25
cyfyngedig cyhoeddus”, “cwmni buddiant cymunedol” and “cwmni
buddiant cymunedol cyhoeddus cyfyngedig””.
      (3)
In subsection (3)(b), after the entry relating to “public limited company” or
its Welsh equivalent insert—

““community interest company” or its Welsh equivalent
30
(“cwmni buddiant cymunedol”);

“community interest public limited company” or its Welsh
equivalent (“cwmni buddiant cymunedol cyhoeddus
cyfyngedig”);”.
3
In section 27(4) (alternatives of statutory designations), after paragraph (d)
35
insert—
“(e)
the alternative of “community interest company” is “c.i.c.”;
(f)
the alternative of “cwmni buddiant cymunedol” is “c.b.c.”;
(g)
the alternative of “community interest public limited
company” is “community interest p.l.c.”; and
40
(h)
the alternative of “cwmni buddiant cymunedol cyhoeddus
cyfyngedig” is “cwmni buddiant cymunedol c.c.c.”.”

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 6 — Community interest companies: names
73

4
In section 30(7) (further exemptions for company exempt from using
“limited” as part of its name), after “which” insert “under this section”.
5
In section 33(1) (person who is not a public company prohibited from
trading under a name ending with the words “public limited company” or
their equivalent in Welsh), insert at the end “; and a community interest
5
company which is not a public company is guilty of an offence if it does so
under a name which includes, as its last part, the words “cwmni buddiant
cymunedol cyhoeddus cyfyngedig”.”
6
After section 34 insert—
“34A
Penalty for improper use of “community interest company” etc.
10
(1)
A company which is not a community interest company is guilty of
an offence if it carries on any trade, profession or business under a
name which includes any of the expressions specified in subsection
(3).
(2)
A person other than a company is guilty of an offence if it carries on
15
any trade, profession or business under a name which includes any
of those expressions (or any contraction of them) as its last part.
(3)
The expressions are—
(a)
“community interest company” or its Welsh equivalent
(“cwmni buddiant cymunedol”), and
20
(b)
“community interest public limited company” or its Welsh
equivalent (“cwmni buddiant cymunedol cyhoeddus
cyfyngedig”).
(4)
Subsections (1) and (2) do not apply—
(a)
to a person who was carrying on a trade, profession or
25
business under the name in question at any time during the
period beginning with 1st September 2003 and ending with
4th December 2003, or
(b)
if the name in question was on 4th December 2003 a
registered trade mark or Community trade mark (within the
30
meaning of the Trade Marks Act 1994 (c. 26)), to a person who
was on that date a proprietor or licensee of that trade mark.
(5)
A person guilty of an offence under subsection (1) or (2) and, if that
person is a company, any officer of the company who is in default, is
liable to a fine and, for continued contravention, to a daily default
35
fine.”
7
In section 43(2)(b) (re-registration of private company as public: alteration of
name), after “section 25(1)” insert “, or section 33 of the Companies (Audit,
Investigations and Community Enterprise) Act 2004,”.
8
In section 351(1)(d) (particulars in correspondence to indicate that a
40
company exempt from obligation to use “limited” as part of name is limited
company), after “name” insert “under section 30 or a community interest
company which is not a public company”.
9     (1)
Schedule 24 (punishment of offences) is amended as follows.
      (2)
In the second column of the entry relating to section 33, after “equivalent”
45
insert “etc.”.

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 7 — Community interest companies: investigations
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      (3)
After the entry relating to section 34 insert—

“34A
Trading with improper use of
Summary
Level 3 on the
One-tenth of

“community interest company”

standard scale
level 3 on the

etc.

standard scale.”

Limited Liability Partnerships Act 2000 (c. 12)
5
10
In paragraph 8(2) of the Schedule to the Limited Liability Partnerships Act
2000 (similarity of names), after the entry relating to “public limited
company” insert—

““community interest company”,

“community interest public limited company”,”.
10
Schedule 7
Section 42

Community interest companies: investigations
Power to require documents and information
1     (1)
The investigator of a community interest company may require the
company or any other person—
15
(a)
to produce such documents (or documents of such description) as
the investigator may specify;
(b)
to provide such information (or information of such description) as
the investigator may specify.
      (2)
A person on whom a requirement is imposed under sub-paragraph (1) may
20
require the investigator to produce evidence of his authority.
      (3)
A requirement under sub-paragraph (1) must be complied with at such time
and place as may be specified by the investigator.
      (4)
The production of a document in pursuance of this paragraph does not affect
any lien which a person has on the document.
25
      (5)
The investigator may take copies of or extracts from a document produced
in pursuance of this paragraph.
      (6)
In relation to information recorded otherwise than in legible form, the power
to require production of it includes power to require the production of a
copy of it in legible form or in a form from which it can readily be produced
30
in visible and legible form.
      (7)
In this Schedule—
(a)
“the investigator of a community interest company” means a person
investigating the company’s affairs under section 42, and
(b)
“document” includes information recorded in any form.
35
Privileged information
2     (1)
Nothing in paragraph 1 requires a person to produce a document or provide
information in respect of which a claim could be maintained—
(a)
in an action in the High Court, to legal professional privilege, or

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 7 — Community interest companies: investigations
75

(b)
in an action in the Court of Session, to confidentiality of
communications,

but a person who is a lawyer may be required to provide the name and
address of his client.
      (2)
Nothing in paragraph 1 requires a person carrying on the business of
5
banking to produce a document, or provide information, relating to the
affairs of a customer unless a requirement to produce the document, or
provide the information, has been imposed on the customer under that
paragraph.
Use of information as evidence
10
3     (1)
A statement made by a person in compliance with a requirement imposed
under paragraph 1 may be used in evidence against the person.
      (2)
But in criminal proceedings—
(a)
no evidence relating to the statement may be adduced by or on
behalf of the prosecution, and
15
(b)
no question relating to it may be asked by or on behalf of the
prosecution,

unless evidence relating to it is adduced or a question relating to it is asked
in the proceedings by or on behalf of that person.
      (3)
However, sub-paragraph (2) does not apply to proceedings in which a
20
person is charged with an offence under—
(a)
paragraph 5,
(b)
section 5 of the Perjury Act 1911 (c. 6) (false statement made
otherwise than on oath), or
(c)
section 44(2) of the Criminal Law (Consolidation) (Scotland) Act
25
1995 (c. 39) (false statement made otherwise than on oath).
Failure to comply with requirement
4     (1)
This paragraph applies if a person fails to comply with a requirement
imposed under paragraph 1.
      (2)
The investigator may certify that fact in writing to the court.
30
      (3)
If, after hearing—
(a)
any witnesses who may be produced against or on behalf of the
alleged offender, and
(b)
any statement which may be offered in defence,

the court is satisfied that the offender failed without reasonable excuse to
35
comply with the requirement, it may deal with him as if he had been guilty
of contempt of the court.
False information
5     (1)
A person commits an offence if in purported compliance with a requirement
under paragraph 1 to provide information, the person—
40
(a)
provides information which the person knows to be false in a
material particular, or
(b)
recklessly provides information which is false in a material
particular,

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 8 — Repeals and revocations
76


but a prosecution may be instituted in England and Wales only with the
consent of the Director of Public Prosecutions.
      (2)
A person guilty of an offence under sub-paragraph (1) is liable—
(a)
on conviction on indictment to imprisonment for a term not
exceeding two years or a fine or to both,
5
(b)
on summary conviction in England and Wales, to imprisonment for
a term not exceeding twelve months or a fine of an amount not
exceeding the statutory maximum or to both, and
(c)
on summary conviction in Scotland, to imprisonment for a term not
exceeding six months or a fine of an amount not exceeding the
10
statutory maximum or to both.
      (3)
In relation to an offence committed before section 154(1) of the Criminal
Justice Act 2003 (c. 44) comes into force, sub-paragraph (2)(b) has effect as if
for “twelve” there were substituted “six”.
Schedule 8
15
Section 64

Repeals and revocations

Title and reference
Extent of repeal or revocation

Companies Act 1985 (c. 6)
In section 27(4), the word “and” at the end of

paragraph (c).

Section 245C(6).

20

Section 256(3).

In section 310, in subsection (1) the words “any

officer of the company or”, and in subsection

(3) the words “officer or” (in both places) and

the words from “section 144(3)” to “nominee)

25

or”.

Section 390A(3).

In section 734(1), the words “section 389A(3)

or”.

In Schedule 4A, in paragraph 1(1), the words

30

“section 390A(3) (amount of auditors’

remuneration) and”.

In Schedule 24, the entry relating to section

447(6).

Insolvency Act 1985 (c. 65)
In Schedule 6, paragraph 4.

35

Insolvency Act 1986 (c. 45)
In Schedule 13, in Part 1, the entry relating to

section 449(1) of the Companies Act 1985.

Companies Act 1989 (c. 40)
Section 48(3).

Section 63.

Section 65.

40

Section 67.

Section 69(2) and (4).

Section 120(2) and (3).

Companies (Northern Ireland)
Article 48(2)(a).

Order 1990 (S.I. 1990/593
Article 49.

45

(N.I. 5))
In Article 56, the entry relating to “Director (in

Schedule 14)”.

Schedule 14.

Companies (Audit, Investigations and Community Enterprise) Bill [HL]
Schedule 8 — Repeals and revocations
77

Title and reference
Extent of repeal or revocation

Friendly Societies Act 1992
In Schedule 21, paragraph 7.

(c. 40)

Pensions Act 1995 (c. 26)
In Schedule 3, paragraph 12.

Bank of England Act 1998 (c. 11)
In Schedule 5, paragraph 62.

5

Competition Act 1998 (c. 41)
In Schedule 2, paragraph 3.

Youth Justice and Criminal
In Schedule 3, paragraph 6.

Evidence Act 1999 (c. 23)

Competition Act 1998
Article 41.

(Competition Commission)

10

Transitional, Consequential

and Supplemental Provisions

Order 1999 (S.I. 1999/506)

Enterprise Act 2002 (c. 40)
In Schedule 25, paragraph 22.