LORDS AMENDMENT TO COMMONS AMENDMENT No. 231 (Hansard, 27 March 1980)

§ Lord MISHCON
My Lords, I am going to ask the House to bear with me yet once again—I promise it will be for only a short time—to listen to an example of the manner in which this serious Bill has come before the House from the Commons, and of the rush and the unpreparedness with which this Bill is drawn. Your Lordships may or may not agree with me, but this is a clause which imposes for the first time, so far as I am 1160 aware, a duty upon directors to select a person who is defined as "a qualified person "as a secretary of the company—a very important administrative position because the secretary is the officer who, as a rule, has to carry out many of the formal requirements of the Companies Act.
I asked for your Lordships' patience because the new clause starts in this way: It shall be the duty of the directors of a public company to take all reasonable steps to secure that the secretary or each joint secretary of the company is a person who appears to them to have the requisite knowledge and experience to discharge the functions of secretary of the company and who…". Your Lordships will have gathered so far, since I have ended the quotation, that the person who is to be considered as secretary must, prior to appointment, have had the sort of experience and knowledge that appears to the directors to be suitable. On top of that the clause provides, from paragraphs (a) to (d), certain additional qualifications.
Then, at the Report stage, only a few weeks ago, something was thrown into this clause. It was paragraph (e). You will remember what I quoted of the first part: that he has to have had experience and the sort of qualifications the directors think suitable. Then there is an "and" —and your Lordships may think that you will hear something very different from the first part of the clause. Your Lordships will not do so because (e) reads: [and who] is a person who, by virtue of his holding or having held any other position or his being a member of any other body, appears to the directors to be capable of discharging those functions. I have tried hard to be as tolerant and understanding as I can; but I fail to see the difference between the first part of the qualifications and the additional qualifications. There is none. In that circumstance, I put this before the House purely as yet another example of something thrown into the Bill at Report stage (only a few weeks ago) which comes to this House in a half-baked condition and which, in my respectful submission would make your Lordships ashamed when a clause like this comes before any court of law and a judge as trenchant as some of our learned judges can be comments on the wording of the clause and the sense of those who passed it. I beg to move.

§ Lord MACKAY of CLASHFERN
My Lords, it appears clear that the intention of this clause is to give some guidance on persons who will be qualified to hold the office of company secretary. I think I may have misheard the noble Lord. He said that (e) was preceded by "and". I think it is "or" in the version before the House.

§ Lord MISHCON
My Lords, if the noble and learned Lord will read from the beginning of the new clause, he will see that the words are "and who" has any of these qualifications. The or is at the end of (d). My reference was to the "and" at the beginning. I pointed out that the beginning is precisely the same as the end. I do not know why both are there.

§ Lord MACKAY of CLASHFERN
My Lords, at least it makes for consistency. I am obliged to the noble Lord for pointing out the "and" to which he was referring. I think that (e) is somewhat different from the first part, the opening part, of the clause because it gives an indication of the way in which the requisite knowledge and experience is to be had—that is, by virtue of his holding or having held any other position or his being a member of any other body and so on. These are types of qualifications by reference to which the directors would be entitled to take the view that the requisite knowledge and experience was possessed.

§ Lord MISHCON
My Lords, if the noble and learned Lord is content to allow (e) to stand, having read it once again; and if the House feels at this time of night that it does not want to debate the matter further, I shall understand; but at least the protest will be on record. I ask leave of the House to withdraw my amendment.