|
| |
|
(a) | persons who are qualified to audit accounts under the law of a |
| |
specified country or territory outside the United Kingdom; |
| |
(b) | persons who hold a specified professional qualification in |
| |
accountancy obtained in a specified country or territory outside |
| |
| 5 |
(1A) | Approval of a qualification under subsection (1)(b) may be expressed |
| |
to be subject to any specified requirement or requirements being |
| |
| |
(2) | A qualification must not be approved under subsection (1) unless the |
| |
Secretary of State is satisfied that the qualification, taken with any |
| 10 |
requirement or requirements to be specified under subsection (1A), |
| |
affords an assurance of professional competence equivalent to that |
| |
afforded by a recognised professional qualification.” |
| |
(3) | For subsection (6) substitute— |
| |
“(6) | The Secretary of State may if he thinks fit, having regard to the |
| 15 |
considerations mentioned in subsections (2) and (3)— |
| |
(a) | withdraw his approval of an overseas qualification in relation to |
| |
persons becoming qualified as mentioned in subsection (1)(a), |
| |
or obtaining such a qualification as is mentioned in subsection |
| |
(1)(b), after such date as he may specify; or |
| 20 |
(b) | vary or revoke a requirement mentioned in subsection (1A) |
| |
from such date as he may specify.” |
| |
Services provided by auditors |
| |
7 | Disclosure of services provided by auditors and related remuneration |
| |
(1) | For section 390B of the Companies Act 1985 (c. 6) substitute— |
| 25 |
| “390B Disclosure of services provided by auditors or associates and related |
| |
| |
(1) | The Secretary of State may make provision by regulations for securing |
| |
| |
(a) | the nature of any services provided for a company by the |
| 30 |
company’s auditors (whether in their capacity as such or |
| |
otherwise) or by their associates; |
| |
(b) | the amount of any remuneration received or receivable by a |
| |
company’s auditors, or their associates, in respect of any |
| |
services within paragraph (a). |
| 35 |
(2) | The regulations may provide— |
| |
(a) | for disclosure of the nature of any services provided to be made |
| |
by reference to any class or description of services specified in |
| |
the regulations (or any combination of services, however |
| |
| 40 |
(b) | for the disclosure of amounts of remuneration received or |
| |
receivable in respect of services of any class or description |
| |
specified in the regulations (or any combination of services, |
| |
| |
|
| |
|
| |
|
(c) | for the disclosure of separate amounts so received or receivable |
| |
by the company’s auditors or any of their associates, or of |
| |
aggregate amounts so received or receivable by all or any of |
| |
| |
| 5 |
(a) | provide that “remuneration” includes sums paid in respect of |
| |
| |
(b) | apply to benefits in kind as well as to payments of money, and |
| |
require the disclosure of the nature of any such benefits and |
| |
their estimated money value; |
| 10 |
(c) | apply to services provided for associates of a company as well |
| |
as to those provided for a company; |
| |
(d) | define “associate” in relation to an auditor and a company |
| |
| |
(4) | The regulations may provide that any disclosure required by the |
| 15 |
regulations is to be made— |
| |
(a) | in a note to the company’s annual accounts (in the case of its |
| |
individual accounts) or in such manner as is specified in the |
| |
regulations (in the case of group accounts), |
| |
(b) | in the directors’ report required by section 234, or |
| 20 |
(c) | in the auditors’ report under section 235. |
| |
(5) | If the regulations provide that any such disclosure is to be made as |
| |
mentioned in subsection (4)(a) or (b), the regulations may— |
| |
(a) | require the auditors to supply the directors of the company with |
| |
any information necessary to enable the disclosure to be made; |
| 25 |
(b) | provide for any provision within subsection (6) to apply in |
| |
relation to a failure to make the disclosure as it applies in |
| |
relation to a failure to comply with a requirement of this Act or |
| |
(as the case may be) a provision of Part 7. |
| |
| 30 |
(a) | sections 233(5) and 234(5); and |
| |
(b) | any provision of sections 245 to 245C. |
| |
(7) | The regulations may make different provision for different cases. |
| |
(8) | Nothing in subsections (2) to (7) affects the generality of subsection (1). |
| |
(9) | Regulations under this section shall be made by statutory instrument |
| 35 |
which shall be subject to annulment in pursuance of a resolution of |
| |
either House of Parliament.” |
| |
(2) | In section 390A of the Companies Act 1985 (c. 6) (remuneration of auditors)— |
| |
(a) | subsection (3) (auditors’ remuneration to be disclosed in note to |
| |
accounts) accordingly ceases to have effect, and |
| 40 |
(b) | in subsection (5) (application to benefits in kind), for the words from |
| |
“payments in cash” onwards substitute “payments of money.” |
| |
(3) | In paragraph 1(1) of Schedule 4A to that Act (form and contents of group |
| |
accounts), omit “section 390A(3) (amount of auditors’ remuneration) and”. |
| |
|
| |
|
| |
|
| |
| |
| |
8 | Auditors’ rights to information |
| |
For section 389A of the Companies Act 1985 (c. 6) substitute— |
| 5 |
| “389A Rights to information |
| |
(1) | An auditor of a company— |
| |
(a) | has a right of access at all times to the company’s books, |
| |
accounts and vouchers (in whatever form they are held), and |
| |
(b) | may require any of the persons mentioned in subsection (2) to |
| 10 |
provide him with such information or explanations as he thinks |
| |
necessary for the performance of his duties as auditor. |
| |
| |
(a) | any officer or employee of the company; |
| |
(b) | any person holding or accountable for any of the company’s |
| 15 |
books, accounts or vouchers; |
| |
(c) | any subsidiary undertaking of the company which is a body |
| |
corporate incorporated in Great Britain; |
| |
(d) | any officer, employee or auditor of any such subsidiary |
| |
undertaking or any person holding or accountable for any |
| 20 |
books, accounts or vouchers of any such subsidiary |
| |
| |
(e) | any person who fell within any of paragraphs (a) to (d) at a time |
| |
to which the information or explanations required by the |
| |
auditor relates or relate. |
| 25 |
(3) | Where a parent company has a subsidiary undertaking which is not a |
| |
body corporate incorporated in Great Britain, the auditor of the parent |
| |
company may require it to obtain from any of the persons mentioned |
| |
in subsection (4) such information or explanations as he may |
| |
reasonably require for the purposes of his duties as auditor. |
| 30 |
| |
| |
(b) | any officer, employee or auditor of the undertaking; |
| |
(c) | any person holding or accountable for any of the undertaking’s |
| |
books, accounts or vouchers; |
| 35 |
(d) | any person who fell within paragraph (b) or (c) at a time to |
| |
which the information or explanations relates or relate. |
| |
(5) | If so required, the parent company must take all such steps as are |
| |
reasonably open to it to obtain the information or explanations from the |
| |
person within subsection (4) from whom the auditor has required the |
| 40 |
company to obtain the information or explanations. |
| |
(6) | A statement made by a person in response to a requirement under |
| |
subsection (1)(b) or (3) may not be used in evidence against him in any |
| |
|
| |
|
| |
|
criminal proceedings except proceedings for an offence under section |
| |
| |
(7) | Nothing in this section or section 389B compels any person to disclose |
| |
information in respect of which in an action in the High Court a claim |
| |
to legal professional privilege, or in an action in the Court of Session a |
| 5 |
claim to confidentiality of communications, could be maintained. |
| |
| 389B Offences relating to the provision of information to auditors |
| |
(1) | If a person knowingly or recklessly makes to an auditor of a company |
| |
a statement (oral or written) that— |
| |
(a) | conveys or purports to convey any information or explanations |
| 10 |
which the auditor requires, or is entitled to require, under |
| |
| |
(b) | is misleading, false or deceptive in a material particular, |
| |
| the person is guilty of an offence and liable to imprisonment or a fine, |
| |
| 15 |
(2) | A person who fails to comply with a requirement under section |
| |
389A(1)(b) without delay is guilty of an offence and is liable to a fine. |
| |
(3) | However, it is a defence for a person charged with an offence under |
| |
subsection (2) to prove that it was not reasonably practicable for him to |
| |
provide the required information or explanations. |
| 20 |
(4) | If a company fails to comply with section 389A(5), the company and |
| |
every officer of it who is in default is guilty of an offence and liable to a |
| |
| |
(5) | Nothing in this section affects any right of an auditor to apply for an |
| |
injunction to enforce any of his rights under section 389A.” |
| 25 |
9 | Statement in directors’ report as to disclosure of information to auditors |
| |
(1) | Part 7 of the Companies Act 1985 (c. 6) (accounts and audit) is amended as |
| |
| |
(2) | In section 234 (duty to prepare directors’ report), after subsection (2) insert— |
| |
“(2A) | If section 234ZA applies to the report, it shall contain the statement |
| 30 |
required by subsection (2) of that section.” |
| |
(3) | After section 234 insert— |
| |
“234ZA | Statement as to disclosure of information to auditors |
| |
(1) | This section applies to a directors’ report unless the directors have |
| |
taken advantage of the exemption conferred by section 249A(1) or |
| 35 |
| |
(2) | The report must contain a statement to the effect that, in the case of each |
| |
of the persons who are directors at the time when the report is |
| |
approved under section 234A, the following applies— |
| |
(a) | so far as the director is aware, there is no relevant audit |
| 40 |
information of which the company’s auditors are unaware, and |
| |
(b) | he has taken all the steps that he ought to have taken as a |
| |
director in order to make himself aware of any relevant audit |
| |
|
| |
|
| |
|
information and to establish that the company’s auditors are |
| |
aware of that information. |
| |
(3) | In subsection (2) “relevant audit information” means information |
| |
needed by the company’s auditors in connection with preparing their |
| |
| 5 |
(4) | For the purposes of subsection (2) a director has taken all the steps that |
| |
he ought to have taken as a director in order to do the things mentioned |
| |
in paragraph (b) of that subsection if he has— |
| |
(a) | made such enquiries of his fellow directors and of the |
| |
company’s auditors for that purpose, and |
| 10 |
(b) | taken such other steps (if any) for that purpose, |
| |
| as were required by his duty as a director of the company to exercise |
| |
due care, skill and diligence. |
| |
(5) | In determining for the purposes of subsection (2) the extent of that duty |
| |
in the case of a particular director, the following considerations (in |
| 15 |
particular) are relevant— |
| |
(a) | the knowledge, skill and experience that may reasonably be |
| |
expected of a person carrying out the same functions as are |
| |
carried out by the director in relation to the company, and |
| |
(b) | (so far as they exceed what may reasonably be so expected) the |
| 20 |
knowledge, skill and experience that the director in fact has. |
| |
(6) | Where a directors’ report containing the statement required by |
| |
subsection (2) is approved under section 234A but the statement is |
| |
false, every director of the company who— |
| |
(a) | knew that the statement was false, or was reckless as to whether |
| 25 |
| |
(b) | failed to take reasonable steps to prevent the report from being |
| |
| |
| is guilty of an offence and liable to imprisonment or a fine, or both.” |
| |
| 30 |
10 | Persons authorised to apply to court in connection with defective accounts |
| |
(1) | Section 245C of the Companies Act 1985 (c. 6) (other persons authorised to |
| |
apply to court) is amended as follows. |
| |
(2) | After subsection (1) insert— |
| |
“(1A) | But where the order giving authorisation (see subsection (4)) is to |
| 35 |
contain any requirements or other provisions specified under |
| |
subsection (4A), the Secretary of State may not authorise a person |
| |
unless, in addition, it appears to him that the person would, if |
| |
authorised, exercise his functions as an authorised person in |
| |
accordance with any such requirements or provisions.” |
| 40 |
(3) | After subsection (4) insert— |
| |
“(4A) | An order under subsection (4) may contain such requirements or other |
| |
provisions relating to the exercise of functions by the authorised person |
| |
as appear to the Secretary of State to be appropriate. |
| |
|
| |
|
| |
|
(4B) | If the authorised person is an unincorporated association, any relevant |
| |
proceedings may be brought by or against that association in the name |
| |
of any body corporate whose constitution provides for the |
| |
establishment of the association. |
| |
| For this purpose “relevant proceedings” means proceedings brought |
| 5 |
in, or in connection with, the exercise of any function by the association |
| |
as an authorised person.” |
| |
11 | Disclosure of tax information by Inland Revenue to facilitate application for |
| |
declaration that accounts are defective |
| |
(1) | After section 245C of the Companies Act 1985 (c. 6) insert— |
| 10 |
| “245D Disclosure of information held by Inland Revenue to persons |
| |
authorised to apply to court |
| |
(1) | Information which is held by or on behalf of the Commissioners of |
| |
Inland Revenue may be disclosed to a person who is authorised under |
| |
section 245C of this Act, or under Article 253C of the Companies |
| 15 |
(Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)), if the |
| |
| |
(a) | is made for a permitted purpose, and |
| |
(b) | is made by the Commissioners or is authorised by them. |
| |
| 20 |
(a) | may be so disclosed despite any other restriction on the |
| |
disclosure of information whether imposed by any statutory |
| |
provision or otherwise, but |
| |
(b) | in the case of personal data (within the meaning of the Data |
| |
Protection Act 1998), may not be disclosed in contravention of |
| 25 |
| |
(3) | For the purposes of subsection (1), a disclosure is made for a permitted |
| |
purpose if it is made for the purpose of facilitating— |
| |
(a) | the taking of steps by the authorised person to discover whether |
| |
there are grounds for an application to the court under section |
| 30 |
245B of this Act or Article 253B of the Companies (Northern |
| |
| |
(b) | a determination by the authorised person as to whether or not |
| |
to make such an application. |
| |
(4) | The power of the Commissioners to authorise a disclosure under |
| 35 |
subsection (1)(b) may be delegated (either generally or for a specified |
| |
purpose) to an officer of the Board of Inland Revenue. |
| |
| 245E Restrictions on use and further disclosure of information disclosed |
| |
| |
(1) | Information that is disclosed to an authorised person under section |
| 40 |
245D may not be used except in or in connection with— |
| |
(a) | taking steps to discover whether there are grounds for an |
| |
application to the court as mentioned in section 245D(3)(a); |
| |
(b) | determining whether or not to make such an application; or |
| |
(c) | proceedings on any such application. |
| 45 |
|
| |
|
| |
|
(2) | Information that is disclosed to an authorised person under section |
| |
245D may not be further disclosed except— |
| |
(a) | to the person to whom the information relates; or |
| |
(b) | in or in connection with proceedings on any such application to |
| |
| 5 |
(3) | A person who contravenes subsection (1) or (2) is guilty of an offence |
| |
and liable to imprisonment or a fine, or both. |
| |
(4) | It is a defence for a person charged with an offence under subsection (3) |
| |
| |
(a) | that he did not know, and had no reason to suspect, that the |
| 10 |
information had been disclosed under section 245D; or |
| |
(b) | that he took all reasonable steps and exercised all due diligence |
| |
to avoid the commission of the offence. |
| |
(5) | Sections 732 (restriction on prosecutions), 733(2) and (3) (liability of |
| |
individuals for corporate default) and 734 (criminal proceedings |
| 15 |
against unincorporated bodies) apply to offences under this section.” |
| |
(2) | After Article 253C of the Companies (Northern Ireland) Order 1986 (S.I. 1986/ |
| |
| |
| “253D Disclosure of information held by Inland Revenue to persons |
| |
authorised to apply to court |
| 20 |
(1) | Information which is held by or on behalf of the Commissioners of |
| |
Inland Revenue may be disclosed to a person who is authorised under |
| |
Article 253C, or under section 245C of the Companies Act 1985, if the |
| |
| |
(a) | is made for a permitted purpose, and |
| 25 |
(b) | is made by the Commissioners or is authorised by them. |
| |
| |
(a) | may be so disclosed despite any other restriction on the |
| |
disclosure of information whether imposed by any statutory |
| |
provision or otherwise, but |
| 30 |
(b) | in the case of personal data (within the meaning of the Data |
| |
Protection Act 1998), may not be disclosed in contravention of |
| |
| |
(3) | For the purposes of paragraph (1), a disclosure is made for a permitted |
| |
purpose if it is made for the purpose of facilitating— |
| 35 |
(a) | the taking of steps by the authorised person to discover whether |
| |
there are grounds for an application to the court under Article |
| |
253B or section 245B of the Companies Act 1985; or |
| |
(b) | a determination by the authorised person as to whether or not |
| |
to make such an application. |
| 40 |
(4) | The power of the Commissioners to authorise a disclosure under |
| |
paragraph (1)(b) may be delegated (either generally or for a specified |
| |
purpose) to an officer of the Board of Inland Revenue. |
| |
|
| |
|