|
| |
|
(3) | The Secretary of State may require information given under this section to be |
| |
given in a specified form or verified in a specified manner. |
| |
(4) | Any notice or information required to be given under this section must be |
| |
given in writing unless the Secretary of State specifies or approves some other |
| |
| 5 |
1208 | The Secretary of State’s power to call for information |
| |
(1) | The Secretary of State may by notice in writing require a registered third |
| |
country auditor to give him such information as he may reasonably require for |
| |
the exercise of his functions under this Part. |
| |
(2) | The Secretary of State may require that any information which he requires |
| 10 |
under this section is to be given within such reasonable time and verified in |
| |
such manner as he may specify. |
| |
| |
| |
(1) | If at any time it appears to the Secretary of State that a registered third country |
| 15 |
auditor has failed to comply with an obligation imposed on him by or by virtue |
| |
of this Part, the Secretary of State may make an application to the court under |
| |
| |
(2) | If on an application under this section the court decides that the auditor has |
| |
failed to comply with the obligation in question, it may order the auditor to |
| 20 |
take such steps as the court directs for securing that the obligation is complied |
| |
| |
(3) | In this section “the court” means the High Court or, in Scotland, the Court of |
| |
| |
1210 | Removal of third country auditors from the register of auditors |
| 25 |
(1) | The Secretary of State may, by regulations, confer on the person keeping the |
| |
register in accordance with regulations under section 1203(1) power to remove |
| |
a third country auditor from the register. |
| |
(2) | Regulations under this section must require the person keeping the register, in |
| |
determining whether to remove a third country auditor from the register, to |
| 30 |
have regard to the auditor’s compliance with obligations imposed on him by |
| |
or by virtue of this Part. |
| |
(3) | Where provision is made under section 1203(4) (different parts of the register |
| |
to be kept by different persons), references in this section to the person keeping |
| |
the register are to the person keeping that part of the register which relates to |
| 35 |
| |
(4) | Regulations under this section are subject to negative resolution procedure. |
| |
1211 | Grants to bodies concerned with arrangements under Schedule 12 |
| |
In section 16 of the Companies (Audit, Investigations and Community |
| |
Enterprise) Act 2004 (c. 27) (grants to bodies concerned with accounting |
| 40 |
|
| |
|
| |
|
standards etc), after subsection (2)(ka) (inserted by section 1202) insert— |
| |
“(kb) | establishing, maintaining or carrying out arrangements within |
| |
paragraph 1 or 2 of Schedule 12 to the Company Law Reform |
| |
| |
| 5 |
Supplementary and general |
| |
Power to require second company audit |
| |
1212 | Secretary of State’s power to require second audit of a company |
| |
(1) | This section applies where a person appointed as statutory auditor of a |
| |
company was not an appropriate person for any part of the period during |
| 10 |
which the audit was conducted. |
| |
(2) | The Secretary of State may direct the company concerned to retain an |
| |
| |
(a) | to conduct a second audit of the relevant accounts, or |
| |
(b) | to review the first audit and to report (giving his reasons) whether a |
| 15 |
| |
(3) | For the purposes of subsections (1) and (2) a person is “appropriate” if he— |
| |
(a) | is eligible for appointment as a statutory auditor or, if the person is an |
| |
Auditor General, for appointment as statutory auditor of the company, |
| |
| 20 |
(b) | is not prohibited by section 1178(1) from acting as statutory auditor of |
| |
| |
(4) | The Secretary of State must send a copy of a direction under subsection (2) to |
| |
the registrar of companies. |
| |
(5) | The company is guilty of an offence if— |
| 25 |
(a) | it fails to comply with a direction under subsection (2) within the period |
| |
of 21 days beginning with the date on which it is given, or |
| |
(b) | it has been convicted of a previous offence under this subsection and |
| |
the failure to comply with the direction which led to the conviction |
| |
continues after the conviction. |
| 30 |
| |
(a) | send a copy of a report under subsection (2)(b) to the registrar of |
| |
| |
(b) | if the report states that a second audit is needed, take such steps as are |
| |
necessary for the carrying out of that audit. |
| 35 |
(7) | The company is guilty of an offence if— |
| |
(a) | it fails to send a copy of a report under subsection (2)(b) to the registrar |
| |
within the period of 21 days beginning with the date on which it |
| |
| |
(b) | in a case within subsection (6)(b), it fails to take the steps mentioned |
| 40 |
immediately it receives the report, or |
| |
|
| |
|
| |
|
(c) | it has been convicted of a previous offence under this subsection and |
| |
the failure to send a copy of the report, or take the steps, which led to |
| |
the conviction continues after the conviction. |
| |
(8) | A company guilty of an offence under this section is liable on summary |
| |
| 5 |
(a) | in a case within subsection (5)(a) or (7)(a) or (b), to a fine not exceeding |
| |
level 5 on the standard scale, and |
| |
(b) | in a case within subsection (5)(b) or (7)(c), to a fine not exceeding one- |
| |
tenth of level 5 on the standard scale for each day on which the failure |
| |
| 10 |
(9) | In this section “registrar of companies” has the meaning given by section 1026. |
| |
1213 | Supplementary provision about second audits |
| |
(1) | If a person accepts an appointment, or continues to act, as statutory auditor of |
| |
a company at a time when he knows he is not an appropriate person, the |
| |
company may recover from him any costs incurred by it in complying with the |
| 15 |
requirements of section 1212. |
| |
For this purpose “appropriate” is to be construed in accordance with |
| |
subsection (3) of that section. |
| |
(2) | Where a second audit is carried out under section 1212, any statutory or other |
| |
provision applying in relation to the first audit applies also, in so far as |
| 20 |
practicable, in relation to the second audit. |
| |
(3) | A direction under section 1212(2) is, on the application of the Secretary of State, |
| |
enforceable by injunction or, in Scotland, by an order under section 45 of the |
| |
Court of Session Act 1988 (c. 36). |
| |
False and misleading statements |
| 25 |
1214 | Misleading, false and deceptive statements |
| |
(1) | A person is guilty of an offence if— |
| |
(a) | for the purposes of or in connection with any application under this |
| |
| |
(b) | in purported compliance with any requirement imposed on him by or |
| 30 |
| |
| he knowingly or recklessly furnishes information which is misleading, false or |
| |
deceptive in a material particular. |
| |
(2) | It is an offence for a person whose name does not appear on the register of |
| |
auditors kept under regulations under section 1203 in an entry made under |
| 35 |
subsection (1)(a) of that section to describe himself as a registered auditor or so |
| |
to hold himself out as to indicate, or be reasonably understood to indicate, that |
| |
he is a registered auditor. |
| |
(3) | It is an offence for a person whose name does not appear on the register of |
| |
auditors kept under regulations under that section in an entry made under |
| 40 |
subsection (1)(b) of that section to describe himself as a registered third country |
| |
auditor or so to hold himself out as to indicate, or be reasonably understood to |
| |
indicate, that he is a registered third country auditor. |
| |
|
| |
|
| |
|
(4) | It is an offence for a body which is not a recognised supervisory body or a |
| |
recognised qualifying body to describe itself as so recognised or so to describe |
| |
itself or hold itself out as to indicate, or be reasonably understood to indicate, |
| |
that it is so recognised. |
| |
(5) | A person guilty of an offence under subsection (1) is liable— |
| 5 |
(a) | on conviction on indictment, to imprisonment for a term not exceeding |
| |
two years or to a fine (or both); |
| |
(b) | on summary conviction— |
| |
(i) | in England and Wales, to imprisonment for a term not |
| |
exceeding twelve months or to a fine not exceeding the |
| 10 |
statutory maximum (or both), |
| |
(ii) | in Scotland or Northern Ireland, to imprisonment for a term not |
| |
exceeding six months or to a fine not exceeding the statutory |
| |
| |
| In relation to an offence committed before the commencement of section 154(1) |
| 15 |
of the Criminal Justice Act 2003 (c. 44), for “twelve months” in paragraph (b)(i) |
| |
| |
(6) | Subject to subsection (7), a person guilty of an offence under subsection (2), (3) |
| |
or (4) is liable on summary conviction— |
| |
(a) | in England and Wales, to imprisonment for a term not exceeding 51 |
| 20 |
weeks or to a fine not exceeding level 5 on the standard scale (or both), |
| |
(b) | in Scotland or Northern Ireland, to imprisonment for a term not |
| |
exceeding six months or to a fine not exceeding level 5 on the standard |
| |
| |
| In relation to an offence committed before the commencement of section 281(5) |
| 25 |
of the Criminal Justice Act 2003, for “51 weeks” in paragraph (a) substitute “six |
| |
| |
(7) | Where a contravention of subsection (2), (3) or (4) involves a public display of |
| |
the offending description, the maximum fine that may be imposed is an |
| |
amount equal to level 5 on the standard scale multiplied by the number of days |
| 30 |
for which the display has continued. |
| |
(8) | It is a defence for a person charged with an offence under subsection (2), (3) or |
| |
(4) to show that he took all reasonable precautions and exercised all due |
| |
diligence to avoid the commission of the offence. |
| |
| 35 |
| |
(1) | An applicant for a recognition order under this Part must pay such fee in |
| |
respect of his application as the Secretary of State may by regulations prescribe; |
| |
and no application is to be regarded as duly made unless this subsection is |
| |
| 40 |
(2) | The Secretary of State may by regulations prescribe periodical fees to be paid |
| |
| |
(a) | every recognised supervisory body, |
| |
(b) | every recognised qualifying body, |
| |
(c) | every Auditor General, and |
| 45 |
(d) | every registered third country auditor. |
| |
|
| |
|
| |
|
(3) | Fees received by the Secretary of State by virtue of this Part are to be paid into |
| |
| |
(4) | Regulations under this section are subject to negative resolution procedure. |
| |
Delegation of Secretary of State’s functions |
| |
1216 | Delegation of the Secretary of State’s functions |
| 5 |
(1) | The Secretary of State may make an order under this section (a “delegation |
| |
order”) for the purpose of enabling functions of the Secretary of State under |
| |
this Part to be exercised by a body designated by the order. |
| |
(2) | The body designated by a delegation order may be either— |
| |
(a) | a body corporate which is established by the order, or |
| 10 |
(b) | subject to section 1217, a body (whether a body corporate or an |
| |
unincorporated association) which is already in existence (“an existing |
| |
| |
(3) | A delegation order has the effect of transferring to the body designated by it all |
| |
functions of the Secretary of State under this Part— |
| 15 |
(a) | subject to such exceptions and reservations as may be specified in the |
| |
| |
| |
(i) | his functions in relation to the body itself, and |
| |
(ii) | his functions under section 1192 (appointment of Independent |
| 20 |
| |
(4) | A delegation order may confer on the body designated by it such other |
| |
functions supplementary or incidental to those transferred as appear to the |
| |
Secretary of State to be appropriate. |
| |
(5) | Any transfer of functions under the following provisions must be subject to the |
| 25 |
reservation that the functions remain exercisable concurrently by the Secretary |
| |
| |
(a) | section 1188 (power to call for information from recognised bodies etc); |
| |
(b) | section 1208 (power to call for information from registered third |
| |
| 30 |
(c) | section 1218 (directions to comply with international obligations). |
| |
| |
(a) | the function of refusing to make a declaration under section 1185(1) on |
| |
the grounds referred to in section 1185(4) (lack of comparable |
| |
| 35 |
(b) | the function of withdrawing such a declaration under section 1185(7) |
| |
| |
| must be subject to the reservation that the function is exercisable only with the |
| |
consent of the Secretary of State. |
| |
(7) | A delegation order may be amended or, if it appears to the Secretary of State |
| 40 |
that it is no longer in the public interest that the order should remain in force, |
| |
revoked by a further order under this section. |
| |
(8) | Where functions are transferred or resumed, the Secretary of State may by |
| |
order confer or, as the case may be, take away such other functions |
| |
|
| |
|
| |
|
supplementary or incidental to those transferred or resumed as appear to him |
| |
| |
(9) | Where a delegation order is made, Schedule 13 has effect with respect to— |
| |
(a) | the status of the body designated by the order in exercising functions of |
| |
the Secretary of State under this Part, |
| 5 |
(b) | the constitution and proceedings of the body where it is established by |
| |
| |
(c) | the exercise by the body of certain functions transferred to it, and |
| |
(d) | other supplementary matters. |
| |
(10) | An order under this section which has the effect of transferring or resuming |
| 10 |
any functions is subject to affirmative resolution procedure. |
| |
(11) | Any other order under this section is subject to negative resolution procedure. |
| |
1217 | Delegation of functions to an existing body |
| |
(1) | The Secretary of State’s power to make a delegation order under section 1216 |
| |
which designates an existing body is exercisable in accordance with this |
| 15 |
| |
(2) | The Secretary of State may make such a delegation order if it appears to him |
| |
| |
(a) | the body is able and willing to exercise the functions that would be |
| |
transferred by the order, and |
| 20 |
(b) | the body has arrangements in place relating to the exercise of those |
| |
functions which are such as to be likely to ensure that the conditions in |
| |
| |
| |
(a) | that the functions in question will be exercised effectively, and |
| 25 |
(b) | where the delegation order is to contain any requirements or other |
| |
provisions specified under subsection (4), that those functions will be |
| |
exercised in accordance with any such requirements or provisions. |
| |
(4) | The delegation order may contain such requirements or other provision |
| |
relating to the exercise of the functions by the designated body as appear to the |
| 30 |
Secretary of State to be appropriate. |
| |
| |
(a) | may be designated by a delegation order under section 1216, and |
| |
(b) | may accordingly exercise functions of the Secretary of State in |
| |
| 35 |
| despite any involvement of the body in the exercise of any functions under |
| |
arrangements within paragraph 21, 22, 23(1) or 24(1) of Schedule 10 or |
| |
paragraph 1 or 2 of Schedule 12. |
| |
International obligations |
| |
1218 | Directions to comply with international obligations |
| 40 |
(1) | If it appears to the Secretary of State— |
| |
(a) | that any action proposed to be taken by a recognised supervisory body |
| |
or a recognised qualifying body, or a body designated by order under |
| |
|
| |
|
| |
|
section 1216, would be incompatible with Community obligations or |
| |
any other international obligations of the United Kingdom, or |
| |
(b) | that any action which that body has power to take is required for the |
| |
purpose of implementing any such obligations, |
| |
| he may direct the body not to take or, as the case may be, to take the action in |
| 5 |
| |
(2) | A direction may include such supplementary or incidental requirements as the |
| |
Secretary of State thinks necessary or expedient. |
| |
(3) | A direction under this section given to a body designated by order under |
| |
section 1216 is enforceable on the application of the Secretary of State by |
| 10 |
injunction or, in Scotland, by an order under section 45 of the Court of Session |
| |
| |
General provision relating to offences |
| |
1219 | Offences by bodies corporate, partnerships and unincorporated associations |
| |
(1) | Where an offence under this Part committed by a body corporate is proved to |
| 15 |
have been committed with the consent or connivance of, or to be attributable |
| |
to any neglect on the part of, an officer of the body, or a person purporting to |
| |
act in any such capacity, he as well as the body corporate is guilty of the offence |
| |
and liable to be proceeded against and punished accordingly. |
| |
(2) | Where an offence under this Part committed by a partnership is proved to have |
| 20 |
been committed with the consent or connivance of, or to be attributable to any |
| |
neglect on the part of, a partner, he as well as the partnership is guilty of the |
| |
offence and liable to be proceeded against and punished accordingly. |
| |
(3) | Where an offence under this Part committed by an unincorporated association |
| |
(other than a partnership) is proved to have been committed with the consent |
| 25 |
or connivance of, or to be attributable to any neglect on the part of, any officer |
| |
of the association or any member of its governing body, he as well as the |
| |
association is guilty of the offence and liable to be proceeded against and |
| |
| |
1220 | Time limits for prosecution of offences |
| 30 |
(1) | An information relating to an offence under this Part which is triable by a |
| |
magistrates’ court in England and Wales may be so tried if it is laid at any time |
| |
within the period of twelve months beginning with the date on which evidence |
| |
sufficient in the opinion of the Director of Public Prosecutions or the Secretary |
| |
of State to justify the proceedings comes to his knowledge. |
| 35 |
(2) | Proceedings in Scotland for an offence under this Part may be commenced at |
| |
any time within the period of twelve months beginning with the date on which |
| |
evidence sufficient in the Lord Advocate’s opinion to justify proceedings came |
| |
to his knowledge or, where such evidence was reported to him by the Secretary |
| |
of State, within the period of twelve months beginning with the date on which |
| 40 |
it came to the knowledge of the Secretary of State. |
| |
(3) | For the purposes of subsection (2) proceedings are to be deemed to be |
| |
commenced on the date on which a warrant to apprehend or cite the accused |
| |
is granted, if the warrant is executed without undue delay. |
| |
|
| |
|