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Company Law Reform Bill [HL] (602-608)


Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 44 — Miscellaneous provisions

602

 

and Community Enterprise) Act 2004 after this section comes into force,

regardless of when the expenses to be met by the levy in respect of which the

regulations are made were incurred.

(7)   

In Schedule 3 to the Pensions Act 2004 (c. 35) (disclosure of information held

by the Pensions Regulator), in the entry relating to the Secretary of State, in the

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second column, for “or” at the end of paragraph (g) substitute—

“(ga)   

Section 17 of the Companies (Audit, Investigations and

Community Enterprise) Act 2004 (levy to pay expenses of

bodies concerned with accounting standards, actuarial

standards etc), or”.

10

1240    

Application of provisions to Scotland and Northern Ireland

(1)   

Section 16 of the Companies (Audit, Investigations and Community

Enterprise) Act 2004 (grants to bodies concerned with accounting standards

etc) is amended as follows.

(2)   

For subsection (6) (application of section to Scotland) substitute—

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“(6)   

In their application to Scotland, subsection (2)(a) to (t) are to be read as

referring only to matters provision relating to which would be outside

the legislative competence of the Scottish Parliament.”.

(3)   

In subsection (2) in paragraph (c), after “1985 (c. 6)” insert “or the 1986 Order”.

(4)   

In subsection (5)—

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(a)   

in the definition of “company” after “1985 (c. 6)” insert “or the 1986

Order”,

(b)   

in the definition of “subsidiary” after “1985” insert “or Article 4 of the

1986 Order”, and

(c)   

after that definition insert—

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““the 1986 Order” means the Companies (Northern

Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)).”.

(5)   

In section 66 of that Act (extent), in subsection (2) (provisions extending to

Northern Ireland, as well as England and Wales and Scotland) for “17”

substitute “16 to 18”.

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Information as to exercise of voting rights by institutional investors

1241    

Power to require information about exercise of voting rights

(1)   

The Treasury or the Secretary of State may make provision by regulations

requiring institutions to which this section applies to provide information

about the exercise of voting rights attached to shares to which this section

35

applies.

(2)   

This power is exercisable in accordance with—

section 1242 (institutions to which information provisions apply),

section 1243 (shares to which information provisions apply), and

section 1244 (obligations with respect to provision of information).

40

(3)   

In this section and the sections mentioned above—

(a)   

references to a person acting on behalf of an institution include—

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 44 — Miscellaneous provisions

603

 

(i)   

any person to whom authority has been delegated by the

institution to take decisions as to any matter relevant to the

subject matter of the regulations, and

(ii)   

such other persons as may be specified; and

(b)   

“specified” means specified in the regulations.

5

(4)   

The obligation imposed by regulations under this section is enforceable by civil

proceedings brought by—

(a)   

any person to whom the information should have been provided, or

(b)   

a specified regulatory authority.

(5)   

Regulations under this section may make different provision for different

10

descriptions of institution, different descriptions of shares and for other

different circumstances.

(6)   

Regulations under this section are subject to affirmative resolution procedure.

1242    

Institutions to which information provisions apply

(1)   

The institutions to which section 1241 applies are—

15

(a)   

unit trust schemes within the meaning of the Financial Services and

Markets Act 2000 (c. 8) in respect of which an order is in force under

section 243 of that Act;

(b)   

open-ended investment companies incorporated by virtue of

regulations under section 262 of that Act;

20

(c)   

companies approved for the purposes of section 842 of the Income and

Corporation Taxes Act 1988 (c. 1) (investment trusts);

(d)   

pension schemes as defined in section 1(5) of the Pension Schemes Act

1993 (c. 48) or the Pension Schemes (Northern Ireland) Act 1993 (c. 49);

(e)   

undertakings authorised under the Financial Services and Markets Act

25

2000 to carry on long-term insurance business (that is, the activity of

effecting or carrying out contracts of long term insurance within the

meaning of the Financial Services and Markets (Regulated Activities)

Order 2001);

(f)   

collective investment schemes that are recognised by virtue of section

30

270 of that Act (schemes authorised in designated countries or

territories).

(2)   

Regulations under that section may—

(a)   

provide that the section applies to other descriptions of institution;

(b)   

provide that the section does not apply to a specified description of

35

institution.

(3)   

The regulations must specify by whom, in the case of any description of

institution, the duty imposed by the regulations is to be fulfilled.

1243    

Shares to which information provisions apply

(1)   

The shares to which section 1241 applies are shares—

40

(a)   

of a description traded on a specified market, and

(b)   

in which the institution has, or is taken to have, an interest.

   

Regulations under that section may provide that the section does not apply to

shares of a specified description.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 44 — Miscellaneous provisions

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(2)   

For this purpose an institution has an interest in shares if the shares, or a

depositary certificate in respect of them, are held by it, or on its behalf.

   

A “depositary certificate” means an instrument conferring rights (other than

options)—

(a)   

in respect of shares held by another person, and

5

(b)   

the transfer of which may be effected without the consent of that

person.

(3)   

Where an institution has an interest—

(a)   

in a specified description of collective investment scheme (within the

meaning of the Financial Services and Markets Act 2000 (c. 8)), or

10

(b)   

in any other specified description of scheme or collective investment

vehicle,

   

it is taken to have an interest in any shares in which that scheme or vehicle has

or is taken to have an interest.

(4)   

For this purpose a scheme or vehicle is taken to have an interest in shares if it

15

would be regarded as having such an interest in accordance with subsection (2)

if it was an institution to which section 1241 applied.

1244    

Obligations with respect to provision of information

(1)   

Regulations under section 1241 may require the provision of specified

information about—

20

(a)   

the exercise or non-exercise of voting rights by the institution or any

person acting on its behalf,

(b)   

any instructions given by the institution or any person acting on its

behalf as to the exercise or non-exercise of voting rights, and

(c)   

any delegation by the institution or any person acting on its behalf of

25

any functions in relation to the exercise or non-exercise of voting rights

or the giving of such instructions.

(2)   

The regulations may require information to be provided in respect of specified

occasions or specified periods.

(3)   

Where instructions are given to act on the recommendations or advice of

30

another person, the regulations may require the provision of information about

what recommendations or advice were given.

(4)   

The regulations may require information to be provided—

(a)   

in such manner as may be specified, and

(b)   

to such persons as may be specified, or to the public, or both.

35

(5)   

The regulations may provide—

(a)   

that an institution may discharge its obligations under the regulations

by referring to information disclosed by a person acting on its behalf,

and

(b)   

that in such a case it is sufficient, where that other person acts on behalf

40

of more than one institution, that the reference is to information given

in aggregated form, that is—

(i)   

relating to the exercise or non-exercise by that person of voting

rights on behalf of more than one institution, or

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 44 — Miscellaneous provisions

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(ii)   

relating to the instructions given by that person in respect of the

exercise or non-exercise of voting rights on behalf of more than

one institution, or

(iii)   

relating to the delegation by that person of functions in relation

to the exercise or non-exercise of voting rights, or the giving of

5

instructions in respect of the exercise or non-exercise of voting

rights, on behalf of more than one institution.

(6)   

References in this section to instructions are to instructions of any description,

whether general or specific, whether binding or not and whether or not acted

upon.

10

Disclosure of information under the Enterprise Act 2002

1245    

Disclosure of information under the Enterprise Act 2002

   

In Part 9 of the Enterprise Act 2002 (c. 40) (information), after section 241

insert—

“241A   

Civil proceedings

15

(1)   

A public authority which holds prescribed information to which

section 237 applies may disclose that information to any person—

(a)   

for the purposes of, or in connection with, prescribed civil

proceedings (including prospective proceedings) in the United

Kingdom, or

20

(b)   

for the purposes of obtaining legal advice in relation to such

proceedings, or

(c)   

otherwise for the purposes of establishing, enforcing or

defending legal rights that are or may be the subject of such

proceedings.

25

(2)   

Subsection (1) does not apply to—

(a)   

information which comes to a public authority in connection

with an investigation under Part 4, 5 or 6 of the 1973 Act or

under section 11 of the Competition Act 1980;

(b)   

competition information within the meaning of section 351 of

30

the Financial Services and Markets Act 2000;

(c)   

information which comes to a public authority in connection

with an investigation under Part 3 or 4 or section 174 of this Act;

(d)   

information which comes to a public authority in connection

with an investigation under the Competition Act 1998 (c. 41).

35

(3)   

In subsection (1) “prescribed” means prescribed by order of the

Secretary of State.

(4)   

An order under this section—

(a)   

may prescribe information, or civil proceedings, for the

purposes of this section by reference to such factors as appear to

40

the Secretary of State to be appropriate;

(b)   

may prescribe for the purposes of this section all information, or

civil proceedings, or all information or civil proceedings not

falling within one or more specified exceptions;

(c)   

must be made by statutory instrument subject to annulment in

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pursuance of a resolution of either House of Parliament.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 44 — Miscellaneous provisions

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(5)   

Information disclosed under this section must not be used by the

person to whom it is disclosed for any purpose other than those

specified in subsection (1).”.

Expenses of winding up

1246    

Payment of expenses of winding up

5

(1)   

In Chapter 8 of Part 4 of the Insolvency Act 1986 (c. 45) (winding up of

companies: provisions of general application), before section 176A (under the

heading “Property subject to floating charge”) insert—

“176ZA  

   Payment of expenses of winding up (England and Wales)

(1)   

The expenses of winding up in England and Wales, so far as the assets

10

of the company available for payment of general creditors are

insufficient to meet them, have priority over any claims to property

comprised in or subject to any floating charge created by the company

and shall be paid out of any such property accordingly.

(2)   

In subsection (1)—

15

(a)   

the reference to assets of the company available for payment of

general creditors does not include any amount made available

under section 176A(2)(a);

(b)   

the reference to claims to property comprised in or subject to a

floating charge is to the claims of—

20

(i)   

the holders of debentures secured by, or holders of, the

floating charge, and

(ii)   

any preferential creditors entitled to be paid out of that

property in priority to them.

(3)   

Provision may be made by rules restricting the application of

25

subsection (1), in such circumstances as may be prescribed, to expenses

authorised or approved—

(a)   

by the holders of debentures secured by, or holders of, the

floating charge and by any preferential creditors entitled to be

paid in priority to them, or

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(b)   

by the court.

(4)   

References in this section to the expenses of the winding up are to all

expenses properly incurred in the winding up, including the

remuneration of the liquidator.”.

(2)   

In Chapter 8 of Part 5 of the Insolvency (Northern Ireland) Order 1989 (S.I.

35

1989/2405 (N.I. 19)) (winding up of companies: provisions of general

application), before Article 150A (under the heading “Property subject to floating

charge”) insert—

“150ZA  

   Payment of expenses of winding up

(1)   

The expenses of winding up, so far as the assets of the company

40

available for payment of general creditors are insufficient to meet them,

have priority over any claims to property comprised in or subject to any

floating charge created by the company and shall be paid out of any

such property accordingly.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 45 — Northern Ireland

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(2)   

In paragraph (1)—

(a)   

the reference to assets of the company available for payment of

general creditors does not include any amount made available

under Article 150A(2)(a);

(b)   

the reference to claims to property comprised in or subject to a

5

floating charge is to the claims of—

(i)   

the holders of debentures secured by, or holders of, the

floating charge, and

(ii)   

any preferential creditors entitled to be paid out of that

property in priority to them.

10

(3)   

Provision may be made by rules restricting the application of

paragraph (1), in such circumstances as may be prescribed, to expenses

authorised or approved—

(a)   

by the holders of debentures secured by, or holders of, the

floating charge and by any preferential creditors entitled to be

15

paid in priority to them, or

(b)   

by the Court.

(4)   

References in this Article to the expenses of the winding up are to all

expenses properly incurred in the winding up, including the

remuneration of the liquidator.”.

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Commonhold associations

1247    

Amendment of memorandum or articles of commonhold association

In paragraph 3(1) of Schedule 3 to the Commonhold and Leasehold Reform Act

2002 (c. 15) (alteration of memorandum or articles by commonhold association

to be of no effect until altered version registered with Land Registry) for “An

25

alteration of the memorandum or articles of association” substitute “Where a

commonhold association alters its memorandum or articles at a time when the

land specified in its memorandum is commonhold land, the alteration”.

Part 45

Northern Ireland

30

1248    

Extension of Companies Acts to Northern Ireland

(1)   

The Companies Acts as defined by this Act (see section 2) extend to Northern

Ireland.

(2)   

The Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)), the

Companies Consolidation (Consequential Provisions) (Northern Ireland)

35

Order 1986 (S.I. 1986/1035 (N.I. 9)) and Part 3 of the Companies (Audit,

Investigations and Community Enterprise) Order 2005 (S.I. 2005/1967

(N.I. 17)) shall cease to have effect accordingly.

1249    

Extension of GB enactments relating to SEs

(1)   

The enactments in force in Great Britain relating to SEs extend to Northern

40

Ireland.

 
 

Company Law Reform Bill [HL] (changed to Companies Bill [HL])
Part 46 — General supplementary provisions

608

 

(2)   

The following enactments shall cease to have effect accordingly—

(a)   

the European Public Limited-Liability Company Regulations

(Northern Ireland) 2004 (SR 2004/417), and

(b)   

the European Public Limited-Liability Company (Fees) Regulations

(Northern Ireland) 2004 (SR 2004/418).

5

(3)   

In this section “SE” means a European Public Limited-Liability Company (or

Societas Europaea) within the meaning of Council Regulation 2157/2001/EC

of 8 October 2001 on the Statute for a European Company.

1250    

Extension of GB enactments relating to certain other forms of business

organisation

10

(1)   

The enactments in force in Great Britain relating to—

(a)   

limited liability partnerships,

(b)   

limited partnerships,

(c)   

open-ended investment companies, and

(d)   

European Economic Interest Groupings,

15

   

extend to Northern Ireland.

(2)   

The following enactments shall cease to have effect accordingly—

(a)   

the Limited Liability Partnerships Act (Northern Ireland) 2002 (c. 12 (N.

I.));

(b)   

the Limited Partnerships Act 1907 (c. 24) as it formerly had effect in

20

Northern Ireland;

(c)   

the Open-Ended Investment Companies Act (Northern Ireland) 2002

(c. 13 (N.I.));

(d)   

the European Economic Interest Groupings Regulations (Northern

Ireland) 1989 (SR 1989/216).

25

1251    

Extension of enactments relating to business names

(1)   

The provisions of Part 41 of this Act (business names) extend to Northern

Ireland.

(2)   

The Business Names (Northern Ireland) Order 1986 (S.I. 1986/1033 (N.I. 7))

shall cease to have effect accordingly.

30

Part 46

General supplementary provisions

Regulations and orders

1252    

Regulations and orders: statutory instrument

   

Except as otherwise provided, regulations and orders under this Act shall be

35

made by statutory instrument.

1253    

Regulations and orders: negative resolution procedure

   

Where regulations or orders under this Act are subject to “negative resolution

procedure” the statutory instrument containing the regulations or order shall

 
 

 
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