HL Deb 02 July 1979 vol 401 cc17-33

3.16 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—Viscount Trenchard.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord GREENWOOD of ROSSENDALE in the Chair.]


It may be helpful if, before we begin considering the many amendments before us, I explain the attitude which the Government intend to take towards those amendments which seek to extend the scope of the Bill beyond that necessary to accommodate the EEC Second Directive in a sensible way into our existing body of law. I recognise that, as the noble and learned Lord, Lord Elwyn-Jones, pointed out during the Second Reading debate, the Long Title of the Bill is widely drawn and therefore might be thought to encourage wide-ranging amendments. I also recognise that some of the amendments which have been put down represent useful and, indeed, overdue measures of company law reform which are not controversial, either in substance or, indeed, in method. In that category I would put the improvement of the position of minority shareholders and the revision of penalties, neither of which subjects, incidentally, was discussed in Standing Committee in another place during consideration of the previous Administration's Bill. But the matters which were covered in Parts IV and V of the 1978 Bill, and which were debated at length in another place, require further study before the Government will be ready to bring forward their own proposals on these important matters.

The Government gave careful consideration to the scope and timing of this Bill before they introduced it, and concluded that it was better to introduce quickly a shortened Bill, confined to the EEC Second Directive and related provisions, rather than delay the Bill while we reconsidered our detailed approach to the duties and conduct of company directors and to insider dealing. When the noble and learned Lord, Lord Elwyn-Jones, said on 25th June that he doubted whether, without the compulsion of the EEC Second Directive, there would be a Companies Bill before us now, he was—


I ventured to say that there would not be a Companies Bill before us now were it not for the Second Directive.


I stand corrected. He was, in the sense of timing, absolutely right. The whole raison d'être of this Bill at this time is to implement that Directive. But he and other noble Lords opposite surely recognise also that a similar timing requirement will operate in 1980, when the Fourth Directive must be implemented. There can, therefore, be no question of the indefinite postponement of a further Bill, as he might have been thought to have implied.

Noble Lords also have on record my statement on Second Reading that it was not the Government's intention to drop these important but complicated matters. We cannot, therefore, accept amendments which take the Bill into new areas or into those areas where, as I have just indicated, further study and consultation is necessary. As I have explained, the Government are not yet ready to bring forward legislation on insider dealings or the duties and conduct of directors. Is it inappropriate of me to hope, after what has already been said on Second Reading on these matters, that we may perhaps not spend too long on their consideration? After all, there will he another opportunity when the 1980 Bill is before us.

It may help the Committee to know that, since the Government recognise that there is genuine concern that desirable reforms which do not require further study and are already agreed in principle should not be needlessly postponed, I shall be recommending that the Committee accept those amendments from Part VI of the previous Administration's Bill which deal with the protection of minority shareholders, the power of a company to provide for employees on cessation or transfer of business and the revision of penalties. These amendments can, I believe, be agreed to quickly without delaying the Bill; but, for the reasons I have outlined earlier, I shall ask the Committee to reject other amendments which extend the scope of the Bill.


My Lords, if it is proper for me to do so, I should like to make a few observations following the helpful statement, if he will permit me to say so, of the noble Viscount, Lord Trenchard. We are grateful to him for indicating how the Government propose to deal with this complex and, no doubt, difficult Companies Bill today. As your Lordships will have seen from the somewhat untidy condition of the Marshalled List—for which I apologise but for which I have no direct responsibility—the Opposition have brought forward a number of proposals by way of amendment which we think ought to be introduced into the Bill. We would have appreciated rather longer time in which to prepare for this, the Committee stage.

However, we appreciate, as the noble Viscount has said, that from the point of view of our EEC obligations the sooner we can properly implement the EEC Directive the better. I can assure the noble Viscount and the Committee that we on this side will not engage in mere obstruction and delay. However, we have put down a series of amendments which bring into the Bill what we deem to be the important and urgently-needed reforms to company law which were included in the Labour Government's 1978 Bill but are not included in the present Bill.

Inspectors' reports in recent cases have, we believe, given a new urgency to the need for reforms in company law and to the necessity to remedy defects in it which have enabled dishonest and unscrupulous men to "milk" their companies, to inflict severe losses on their companies, on the shareholders and on the public alike. We believe that the package of amendments which we have put down would, if carried and implemented, greatly reduce the recurrence of these evils.

Our wish is to enable this House, through its Committee at this stage, to fulfil what we regard as a vital function of this Chamber; namely, that of being a revising Chamber. We on this side of the Committee propose to take a constructive part in the consideration of this Bill. As I have said, we should have liked far more time to prepare for the Committee stage; but here we are and we must proceed to deal with these important matters. Naturally, we on this side of the Committee are glad to hear that there is already a somewhat limited response, useful as it is, from the Government side, to three of our proposals. We have about half a dozen equally as good and some better. It may be that at this stage, on whatever road it is, there will be a late conversion of noble Lords to what we have in mind. We must wait and see.

I must repeat what I said at Second Reading stage: that further delay in dealing with the scandalous wrong of insider dealings would be unacceptable to business interests, to the wellbeing of the City and to the wellbeing of the people of this country who are concerned that our companies should be operated honestly and effectively. I can visualise that we will indeed have to engage in very serious controversy on that matter, but I greatly hope that time can be saved by an early agreement by the Government to accept what emerged after a great deal of consultation with the interested parties after hours of discussion in another place. We hope, in respect of insider dealings as in respect to other matters which I do not think it right for me to embark upon now, that we shall see acceptance of the reasonableness of what we have proposed.

In conclusion, may I say this. I indicated on Second Reading that it appeared that in so far as the Bill carried forward—with only drafting amendments, as the noble Viscount, Lord Trenchard, assured us, and no changes of substance—that Part of the Labour Government Bill of 1978 we shall not be proposing amendments to the provisions in the Bill necessary to implement the EEC Directive. We shall not, therefore, be disposed to quarrel with the Government on what they acknowledge in effect to be, if not a carbon copy, a very close relation, indeed, of what we, ourselves, put down in the 1978 Bill.

3.29 p.m.

On Question, Whether Clause 1 shall stand part of the Bill?


This, I assure my noble friends on the Front Bench, is raised in clarification. It seems to me that, with the new definitions, it is not entirely clear from the Bill what is the position of wholly-owned subsidiaries of large companies and of companies limited by guarantee without share capital. It seemed to me on reading the Bill that these would be private companies, that they would retain the sub-title "Limited" as in the past; and, in fact, that in respect to their name there would be no change for them. I should be grateful if my noble friend could confirm this to me.


We are grateful for the brief way in which my noble friend Lord Mottistone has outlined his first amendment and has asked these two particular questions. As we understand the position, it is that each company will stand entirely on its own merits according to the legislation in the Bill and according to Clause 1 under the definition. As we understand it, it will be the case that wholly-owned overseas subsidiaries will not be public limited companies under the definition of the Bill unless these companies fall within the ambit of public limited companies as defined in other parts of the Bill. Regarding the second case mentioned by my noble friend, the Government's position is that companies which are limited by guarantee but without a share capital would not meet the criteria of public limited companies as set out in the Bill, and therefore these would not be public limited companies within the scope of the Bill. I hope that this will satisfy the noble Lord.


My noble friend mentioned overseas wholly-owned subsidiaries; I was inquiring about the wholly-owned subsidiaries of the United Kingdom public limited companies. What is their status?


I am sorry if I mentioned overseas subsidiaries, but the wholly-owned subsidiary of a United Kingdom public limited company, if that subsidiary fulfils the requirements in the Bill of a public limited company, could be a public limited company of its own accord. But if the subsidiary does not fulfil all the requirements, as set out in the Bill, then the subsidiary company will not be a public limited company.

Clause 1 agreed to.

Clauses 2 to 7 agreed to.

Clause 8 [Old public companies]:

3.33 p.m.

Lord MOTTISTONE moved Amendment No. 1: Page 10, line 19, leave out from ("company") to ("company)") in line 21.

The noble Lord said: With permission, may I suggest that we take Amendment No. 41 with this amendment. These are purely technical points which came to light in trying to study the position of private companies. I noticed in relation to my Amendment No. 1 that there was a reference to Section 28 of the 1948 Act; then, when one turns to Schedule 3 of the Bill, one finds that Section 28 of the 1948 Act is to be repealed. It seems slightly illogical to quote a section and then repeal it. It may be that this is permissible; but I have always understood that if something is repealed it is effectively struck off forever. I have really put these amendments down to draw the Government's attention to this point, and for no other purpose. I beg to move.


The effect of these amendments would be to replace the new definition of public and private companies in Clause 1 with the present definition of private company in Section 28 of the Companies Act 1948. Clause 1 continues to be the cornerstone of the whole Bill and any tampering with this clause and the linked amendment to Clause 8, Schedule 3, would alter the Bill grievously.

The call for the continuation of Section 28 is totally unexpected. The then Government—of which the noble and learned Lord, Lord Elwyn-Jones, was a member—first announced their intention to repeal Section 28 and move to a new definition of public company with private companies forming a residual category in a consultative and explanatory note published in July 1977. The detailed proposal was contained in the draft Bill published as a White Paper in July 1978, and the clause was approved in Committee in another place without any doubts being raised on the new definition. Indeed, during the whole process of consultation, which has been long and thorough, the new approach has been accepted and indeed welcomed, by for example the Confederation of British Industries. So, the amendments under discussion go completely against the whole tide of comments so far, but we accept the reservation that my noble friend wanted clarification.

The definition of public and private companies is of course fundamental to this Bill. Now, if one maintains the present definition of private company contained in Section 28, the structure of the Bill breaks down. I hope the Committee will permit me to explain by giving two instances. First, Section 28 defines as a private company a company whose articles contain restrictions on three matters; first, the number of members; secondly, the offering of its shares or debentures to the public; and, thirdly, the transferability of its shares or debentures. The critical factor under Section 28 is whether the company's articles contain these three restrictions. If they do, the company is private; if they do not, it is "a company other than a private company" or a public company. Furthermore, if a private company changes its articles so that it removes one or more of these three restrictions, it automatically becomes public.

This is unacceptable now. The Bill contains provisions in Clauses 5 and 6 for the re-registration of private companies as public and these are there to meet the requirements of the Directive. The Directive sets minimum standards for public companies and Article 13 calls for control over companies converting into public companies. But Clauses 5 and 6 would be avoided, and the Directive would be breached, by the maintenance of Section 28, since conversion from private to public in that special case is subject to no controls and is entirely a matter for the company.

The second instance that I should like to quote is the case of companies of relatively minor substance which have necessarily a relatively large number of members. Examples of this are some housing and tenants' associations with each member being a shareholder in the company. If there are more than 50 of them they fall outside Section 28, since their articles do not restrict the maximum number of members to 50, and therefore they are, under the present legislation, public companies. They cannot become private companies under Section 28, but they will not be able to meet the minimum standards called for by the Directive for public companies. The amendments would put these associations and small companies in an impossible situation which could only be resolved by winding them up. The Bill, as drafted, allows them to become private companies easily, rapidly and smoothly.

I think your Lordships will agree that this has been a somewhat lengthy explanation, but I hope that my noble friend Lord Mottistone will see that his amendments are, in the context of the Bill and of what the Government are trying to do, unacceptable at this stage. I should like to make the point, to avoid any misunderstanding, that while the repeal of Section 28 of the 1948 Act would mean that private companies would no longer be compelled to maintain their articles containing the three restrictions I referred to, there is nothing at all to prevent their putting in these restrictions should they wish to do so, or indeed to continue to have them. These restrictions have always been something which the law has left the companies to decide upon. That remains the position at the moment. Private companies will be able to restrict the transferability of their shares if they wish and they will be able to limit the number of their members. I hope, in the light of all I have said, that the noble Lord will be reasonably satisfied with the explanation.


With the greatest possible respect to my noble friend, I think he was briefed to answer a question which had a different point from mine. Of course, I do not want to destroy the important parts of the Bill—it would be absolute nonsense, particularly with the EEC Directive behind it—and the particular bits that I sought to amend were identical to the ones in the earlier Labour Bill. The fact of the matter is that I am fearful that the Government are making a nonsense by repealing a section of an Act and quoting it: that is all. If my noble friend can assure me that his advisers will look at this and that, if necessary, the Government will come forward with an amendment at Report stage, I would be more than happy to withdraw the amendment.


I thank the noble Lord, Lord Mottistone. I am given to understand that the words of Section 28 are indeed written into this clause and are applied to this clause alone. Section 28 is to be repealed but for these transitional provisions for the companies and small associations that I mentioned. I understand that it is necessary to maintain a part of Section 28 which is written into the clause: I think there is a reference in the clause. Certainly, I am advised that Section 28 should be repealed but with the reservations that certain parts will remain in Clause 8 of the Bill.


I shall certainly not prolong this any further and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 8 shall stand part of the Bill?


I hope your Lordships will forgive me for being repeatedly on my feet during this part of the Bill. We feel that Clause 8 is a rather complicated clause, which makes it somewhat difficult for the uninitiated to see precisely what is intended. As we see it, there are three courses of action open to an old public company and if it does not follow one of them it is committing a criminal offence; and because it is committing a criminal offence we think that if it is at all possible it would be extremely helpful if the Government could either, at a later stage, re-word Clause 8 so as to make it clear that there are these three possible alternatives, one of which must be followed, or, if that is not possible because of drafting needs, perhaps they could make sure and assure your Lordships that they are going to produce guidance notes to make it quite clear to people what these options are and how they must take them.


I should like to assure my noble friend that there will indeed be guidance notes such as he is thinking of. That is very much part of the Government's plan and I can assure him that these notes will be issued.

Clause 8 agreed to.

Clauses 9 to 13 agreed to.

Clause 14 [Authority of company required for allotment of certain securities by directors]:

3.46 p.m.

Lord BRUCE of DONINGTON moved Amendment No. 2: Page 19, line 36, after ("liable") insert ("on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both, or")

The noble Lord said: Perhaps it would be for the convenience of your Lordships if we were able to discuss Amendments Nos. 2, 3, 4 and 5 together. The Amendments relate in the main to offences committed under Clause 14 of the Bill, which specifies the authority of the company required for the allotment of certain securities by directors, and also to Clause 34, which lays on directors in certain circumstances the duty of convening an extraordinary general meeting in the event of a serious loss of capital.

In both cases the amendments seek to bring the penalties more into line with the seriousness of the offence and in both clauses reference is made to the statutory maximum fine which is reproduced at Clause 54 of the Bill on page 61, from line 13 onwards and specifies: £1,000 or another sum fixed by order … and it varies in the case of Scotland to some small degree. The amendments seek to bring in the words, on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both, or". It is perhaps necessary to realise that in both cases, whether under Clause 14 or Clause 34, it is necessary, for any penalty to be incurred at all, for a director to contravene "knowingly and wilfully". Any director who acts inadvertently, or is perhaps subject to delegation or staff inefficiencies, quite clearly comes outside the ambit of the clause altogether.

The clause itself specifies "knowingly and wilfully", and it is our submission that in cases where this condition is proved to be satisfied—that is, "knowingly and wilfully"—the court should have a far greater discretion to award a more severe penalty where the circumstances warrant; of course, the gravity of the offence may vary from one case to another. What these Amendments seek to do is to enlarge the area within which the court may operate under these circumstances.

I am not sure whether I understood the noble Viscount, Lord Trenchard, correctly, but I believe he gave an indication to your Lordships that the Government were thinking of inserting clauses very similar to the ones which would be given effect if your Lordships agreed to these various penalty amendments. If that be the case, it is quite unnecessary for me to detain your Lordships further and I await the elucidation of the noble Viscount on that point.


May I make clear, as my noble friend Lord Cullen was going to do in replying to the points on this amendment, that Amendments Nos. 34 and 40 are the two amendments which we plan to accept, with the leave of the Committee. But we shall wish to speak to the detail of Clause 14 and Clause 34 of the Bill.


I am obliged to the noble Viscount. I do not think there is any necessity for me to elaborate on what I have already said on these two matters. It is quite simple. It is merely a question of what judgment one sees fit to exercise in the matter. So it would be our wish, subject to a satisfactory reply being received from the Benches opposite, to give this matter favourable consideration, and we hope that the reply will enable us to withdraw this series of amendments. I beg to move.


The effect of Amendments Nos. 2 and 3 is to increase the maximum penalties for directors who knowingly and wilfully contravene, permit or authorise the contravention of Clause 14. The clause as drafted treats the offence as falling into the least serious category of offences, which does not permit trial on indictment and sets the maximum fine on summary conviction at £200. The amendment would substantially increase the maximum penalties. On conviction on indictment, the maximum would be two years imprisonment and/or an unlimited fine, and on summary conviction an unlimited fine.

The question of penalties in criminal offences frequently comes down to questions of judgment. I agree with the noble Lord who moved this Amendment, that the Bill as presently drafted imposes rather too light a penalty, but I think that the amendment goes rather too far. The penalties in this Bill fall into three categories, and these categories match those which would be introduced into the other Companies Acts by the amendment standing in the names of the noble Lords. The penalty presently proposed is the lowest. Then, in other cases—for example, Clause 30(1)—the next penalty is for an unlimited fine on indictment and a fine up to the statutory maximum of, presently, £1,000 on summary conviction. Then comes the more serious penalty of up to two years and/or an unlimited fine on conviction on indictment, with six months and/or a fine up to the statutory maximum on summary conviction. There is a fourth category, found not in this Bill but in the noble Lords' amendment, for cases of fraud where the maximum term of imprisonment would be seven years.

While I agree, therefore, that it is wrong that the penalty in Clause 14 should be the lowest, I incline to the view that the appropriate penalty should be an unlimited fine on indictment and the statutory maximum on summary conviction. In fact, it is the second category. It seems to me not to be a case where imprisonment is an appropriate sanction. In saying this, I also believe that the penalty I propose is in line with the penalties set out in the long amendment proposed by noble Lords opposite. For example, it is in line with the penalty that they propose for failure to hold a general meeting under part of Section 131 of the 1948 Act, or for failure to send to the registrar details of a registrable charge under Section 96. I hope, therefore, that noble Lords opposite will not press their amendment, in the light of an undertaking from me that an amendment on the lines that I have described will be moved by the Government on Report.


That seems to me, with respect, to be a reasonable suggestion. I can understand the desire of the Government to avoid proceedings by way of indictment, in regard to offences carrying penal penalties, and in view of the assurance of the noble Lord perhaps we can return to this matter when we see the colour of their amendment in the fullness of time.


Is it in order for me to ask the noble Lord who is speaking for the Government about a matter of general principle? In the course of his valuable remarks, he mentioned an absolute sum which the Government have in mind. May I inquire whether the Government propose, with year after year of inflation, to alter that absolute sum so as to keep it of equal real weight? If not, it will be of diminishing real weight and the penalty therefore, in so far as it has any disincentive, will be diminishing also. I hasten to assure your Lordships that I am not in favour of universal indexation, but it seems to me that the Government are laying on themselves or their successors the necessity, if justice is to be maintained, of introducing a series of yearly Acts while inflation, or conceivably deflation, takes place.


If the noble Lord, Lord Robbins, looks at Clause 54, he will see that the amount of £1,000 is alterable by order. I wanted to ask the Government if, when they reconsider the penalties imposed under Clause 14, they will consider whether even now they have it right. The noble Lord who spoke for the Government said that they have now got it wrong, because it is too light at one end of the scale, and that we have got it wrong in our amendment because it is too heavy. He suggested, in regard to the new penalties which will be imposed after the glad tidings of the noble Viscount that the Government will accept the amendments about penalties, that when that is done the higher penalty on indictment of imprisonment for two years and a fine, and the appropriate summary conviction and the penalties that follow, should be applied only to cases equivalent to fraud.

If that be so, then surely there is a case for suggesting, as my noble friend Lord Bruce did, that a director who contravenes subsection (7) of Clause 14 will be acting knowingly and wilfully or permitting or authorising in contravention of his obligations, which obligations relate to the allotment of new share capital. I should have thought that someone who knowingly and wilfully played tricks with the allotment of new capital deserved more than the middle penalty, and perhaps the Government could take that into consideration when they come back with their amendment on Report.

Lord CULLEN of ASHBOURNE Dealing first with the question asked by the noble Lord, Lord Robbins, there is power to amend the statutory maximum and no doubt that will be done, but I doubt whether it will be done annually. If I may reply to the noble Lord, Lord Wedderburn of Charlton, as I said originally this is a matter of judgment. I have given the Government's view upon this matter and I stand by it.


In view of the assurances given by the noble Lord, and without prejudice to our scrutiny of the amendment when it is brought forward by the Government, I beg leave to withdraw Amendments Nos. 2, 3, 4 and 5.

The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Lord Greenwood of Rossendale)

Technically speaking, one has to withdraw Amendment No. 2 and not move Amendments Nos. 3, 4 and 5. Is it your Lordships' pleasure that Amendment No. 2 be withdrawn?

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

On Question, Whether Clause 14 shall stand part of the Bill?


Can the noble Lord tell me exactly what subsection (8) means? To a lay reader of the Bill, it looks as though a fraudulent director can issue fraudulent shares. Nothing in this subsection will prevent the validity of those shares. That cannot be right, I am sure; I must have misread it.

Clause 14 agreed to.

Clauses 15 to 33 agreed to.

Clause 34 [Obligation to convene extraordinary general meeting in event of serious loss of capital]:

On Question, Whether Clause 34 shall stand part of the Bill?


Before Clause 34 is agreed to, may I raise a small question with the noble Viscount on the Government Front Bench. Clause 34 deals with the obligation of the directors to call an extraordinary general meeting when net assets of the company have fallen to half or less than half of the amount of the company's called up share capital. It has been put to me that there is a difficulty for the directors, upon which perhaps guidance could be given to them by means of a suitable amendment to be moved by the Government on Report. It relates to the question: How are the directors to value the net assets? One can envisage a case where the assets of a company have fallen to half or less than half of the share capital. Where they are plunging downwards, the right basis might be almost a break-up or a knock-down valuation. One can envisage another case where the assets are teetering on the brink of half and there is some kind of new stability in the company, which requires a tidying up operation at the annual general meeting. Would the Government care to give an indication as to whether any guidance will be given, either in the Bill or elsewhere, regarding the valuation process?


First, may say that if I have not met the point raised just now by my noble friend on the interpretation of Clause 14. We shall try to make it clear to him between now and Report stage.

To deal with the point raised by the noble Lord, Lord Wedderburn of Charlton, on this quite difficult Clause 34, in any event, where we have had arguments from more than one side as to whether or not calling an annual general meeting, when the assets of the company have fallen very materially indeed, could cause the collapse of the company—which was the point raised by the noble Lord, Lord Bruce of Donington, at Second Reading—I take on board the comment which the noble Lord, Lord Wedderburn of Charlton, has made. However, the precise definition of a huge drop in assets is, clearly, a very difficult point. Between now and the Report stage, I hope to take advice and see whether I can satisfy the noble Lord on this question.

It seems to me to be common sense that, if one has this clause, it is almost impossible, without enormous delays for expert valuation, to work out an exactly precise definition. So the choice before the noble Lord, and indeed the House, is whether or not to have this clause, which requires the attention of shareholders to be drawn to the matter if there is a major drop in the assets. I doubt whether we can make it very much clearer. However, I take the point which the noble Lord has raised. I shall let him know before Report stage whether there is any way in which the position can be made clearer as to what is meant by a huge drop, and whose judgment it is to be.

Clause 34 agreed to.

[Amendments Nos. 4 and 5 not moved.]


My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.