COMMONS AMENDMENTS (Hansard, 7 November 1989)

§ Lord Strathclyde
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 147 to 151 inclusive. The purpose of the amendments is to ensure beyond doubt that the provisions in the Bill setting out a formal process for substituting unanimous written resolutions for resolutions at meetings do not cast doubt on informal procedures which the courts have previously recognised.

§ Lord Wedderburn of Charlton
My Lords, I believe that there is something to be said about this; namely, to ask the Government for their opinions about this clause as it goes on to the statute book. This is the last time we shall see it. Rather without precedence in a Companies Bill, it is part of what is called the deregulation provisions of the private company that allows it to operate without the normal company law procedures by signed resolutions.
I direct the Minister's attention to Amendment No. 151, a matter already in the Bill but not put as well or as prominently. An informal unanimous agreement is one measure that the courts have already accepted over a very wide area. In 1980 the High Court in the English jurisdiction accepted that a 100 per cent. agreement informally among shareholders was sufficient to change the articles even without a special resolution.
There has been some doubt as to the extent of that doctrine. The new prominence of Section 381D (2) in Amendment No. 151 will give greater credence—I have no objection to this—to the idea that resolutions are treated as having been passed by unanimous agreement informally. That is what is obviously referred to. If that is right it appears to apply to anything that falls within the Government's new Section 381C. In fact, it might apply to anything within their rather long Schedule 15A. It appears to apply to a very number of matters put into about eight pages of the Bill.
If that is right then a great deal of parliamentary time, and even some government money—Ministers will have to be careful on this—has been wasted because perhaps all that the Government want done could have been achieved by a unanimous, 100 per cent. informal assent by the shareholders even without the written resolution on which the Government and my noble friend Lord Williams and I at one time exchanged different views.
This delphic Section 381D may well contain the nub of the thought that perhaps all this could have been done in private companies without these long and laborious sessions of Parliament. Is that perhaps the effect of the government prominence now for 696 Section 381D (2)? I suspect it may be, and it may be a very good way of ending the evening by realising that some of these matters are not necessary.

§ Lord Hacking
My Lords, before the noble and learned Lord puts the question to the House, as we are considering the last group of amendments perhaps I may say that having listened very carefully to much of the argument I believe that the House has been placed in a most unsatisfactory position in considering the amendments.
It has been put in this position not because the Government have not yet tuned into their new role as a listening government. They certainly have not listened to the arguments presented by noble Lords on the Opposition Front Benches. They have not listened to the arguments presented by the Law Society or the Institute of Arbitrators. A large number of amendments has been taken without proper debate and without proper consideration in another place.
We are in an unsatisfactory position, not because the Government are not in tune with their new listening posture but because they are not in control at this stage of their own legislation. This has produced a highly unsatisfactory state of affairs. We should be dealing with these amendments as if we were in Committee. The Government should have given themselves an opportunity to consider the points raised by noble Lords and to deal with them in an orderly fashion. They could have done so if these amendments had been considered properly in Committee in another place and properly in Committee in this Chamber, and not with the straps of the legislative programme, with the Government being quite unable to manoeuvre.

§ Lord Strathclyde
My Lords, I am amazed by the noble Lord's words. First, those are the kind of comments which he could easily have made when we opened the proceedings this afternoon. They could have been made far better there than at this stage of the evening. Secondly, to say that the Government have not listened is simply to ignore all the amendments before the House. It is purely because there has been so much consultation and so much acceptance of arguments from noble Lords on both sides of the House and from Members in another place that we are bringing back so many amendments. It is no good saying that we have not been listening. Part of the problem is that we have been listening too much and therefore we have made some changes.
The noble Lord, Lord Wedderburn, made a mountain out of a molehill on this amendment. The point of the provisions is to have a statutory procedure which less sophisticated directors can follow instead of relying on common law. Therefore all we are doing is making sure that the provisions are not put beyond doubt.