The Companies (Disclosure of Address) Regulations 2008
Comments from ACCA
4 July 2008
ACCA has the following comments on the draft regulations issued by BERR to govern the circumstances in which the Registrar of Companies may make disclosure of directors' home addresses to third parties even after the introduction of the director's statutory right to keep such information off the public record.
Regulation 5(3)(b)
It is suggested that, when making an application under section 243 of the Act, an individual should produce 'evidence in the form of documents' to support his claim that he or others are exposed to a serious risk of violence or intimidation. We question whether this is likely to be practical in most cases. Where threats are made against individuals, they are not likely to be made in writing or in any form which can be recorded in written documents. If this is to be a pre-condition of obtaining protection under section 243, then we fear that it is a test that few individuals will be able to satisfy. It would be more realistic, in our view, to provide either for a simple subjective statement on the part of the applicant or for the application to be supported by any documentary evidence that may be available (and which may be taken into account by the Registrar, thus giving credibility to the applicant's case).
The same comments apply to the corresponding provisions in regulation 6(3)(b) - applications by companies -, regulation 7(3)(b) - applications by subscribers and regulations 9, 10 and 11 - applications under section 1088.
Schedule 2
Paragraph 1 provides that protected information may be disclosed to a 'specified public authority' even when the recipient proposes to process the information concerned outside the UK. We understand that the inclusion of this permission may be considered necessary because of the business practices of some public authorities. But we suggest that it would at least be appropriate for the authorities concerned to specify, in the statement they are to deposit with the Registrar, whether they intend to process the information outside the UK.
In paragraph 2(b), a condition for divulging protected information to a credit reference agency is that the agency intends to use the protected information only in the UK or in another EAA state. The wording here appears to give the impression that the agency would be entitled to use the information wholly outside the UK. If this is the Department's intention we query whether this should be permitted: if it is not the intention, we suggest some re-drafting is in order.
In paragraph 2(d), a credit reference agency would be entitled to access protected information for the purpose of complying with obligations imposed under the UK or EU anti-money laundering legislation. It should be acknowledged that this ground for accessing personal information on directors is not to be afforded to other persons, including practising accountants and lawyers, who have the same obligations and, arguably, a more legitimate need to access information regarding the identity of clients and beneficial owners of companies than credit reference agencies. In this light, we suggest that this particular ground be deleted.
In paragraph 2(e), given that credit reference agencies would, it seems, be able to access protected information even if they operated wholly outside the UK, we suggest that the references in the draft regulations to applicants having breached UK laws on fraud and data protection should be extended to cover breaches of equivalent laws in other EEA states. As it stands, the breach of UK laws on these matters would deny an applicant agency access to protected information, while an agency based in or operating in another EEA state could gain access even if it had breached similar legislation abroad. This needs to be addressed.
In paragraph 3, we query whether it is correct to refer, with regard to the first item, to the 'competent authority'.