Statutory Instruments
PARTNERSHIP
Made
31st March 2002
Coming into force
2nd April 2002
The Secretary of State, in exercise of the powers conferred on her by sections 723B to F of the Companies Act 1985(1), as applied to limited liability partnerships, and of all other powers enabling her in that behalf, hereby makes the following Regulations, of which a draft has been laid before Parliament in accordance with section 723F(5) of that Act and approved by a resolution of each House of Parliament:
1.—(1) These Regulations may be cited as the Limited Liability Partnerships (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002.
(2) These Regulations shall come into force on 2nd April 2002.
(3) In these Regulations—
“the 1985 Act” means the Companies Act 1985 as applied to limited liability partnerships by the Limited Liability Partnerships Regulations 2001(2) and by the Limited Liability Partnerships (No. 2) Regulations 2002(3);
“the 2000 Act” means the Limited Liability Partnerships Act 2000(4);
“beneficiary of an order” means an individual in relation to whom a confidentiality order is in force;
“Companies (Particulars of Usual Residential Address) Regulations” means the Companies (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002(5);
“competent authority” means any authority specified in Schedule 1 to these Regulations;
“police force” means a police force within the meaning of section 101(1) of the Police Act 1996(6) or section 50 of the Police (Scotland) Act 1967(7);
“member” includes “designated member”;
“principal Regulations” means the Limited Liability Partnerships Regulations 2001(8);
“service address” means the address specified pursuant to regulation 2(2)(b) in an application made under section 723B(1) of the 1985 Act or, if another address has been substituted under regulation 7, the address most recently substituted under that regulation; and
“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in any part of England or Wales under or by virtue of the Banking and Financial Dealings Act 1971(9).
(4) In these Regulations unless the contrary intention appears, expressions which are also used in the 2000 Act or in the principal Regulations shall have the same meanings as in that Act or in those Regulations.
2.—(1) An application for a confidentiality order shall be made to the Secretary of State.
(2) An application for a confidentiality order shall:
(a)be in such form and contain such information and be accompanied by such evidence as the Secretary of State may from time to time direct;
(b)specify each limited liability partnership of which the applicant is or proposes to become a member and shall specify an address complying with regulation 9.
(3) The Secretary of State may from time to time direct different information or evidence be provided for different cases or categories of application.
(4) The Secretary of State may require any information or evidence delivered by an applicant to be verified in such manner as she may direct.
(5) The Secretary of State may require any application to be supported by a statement by any limited liability partnership to which the application relates that the limited liability partnership wishes a confidentiality order to be made in respect of the applicant together with the statement of the reasons for that wish.
(6) At any time after receiving an application and before determining it, the Secretary of State may require that any applicant deliver additional information or evidence including the delivery by a limited liability partnership of a statement complying with paragraph (5).
(7) Subject to paragraph (8) each application shall be accompanied by a fee of £100, and the Secretary of State may reject any application without considering it unless it is accompanied by such fee.
(8) No fee shall be payable where an application is made by an applicant—
(a)who at the same time has made an application for a confidentiality order under the Companies (Particulars of Usual Residence Address) Regulations, and where a fee has been paid in respect of that application; or
(b)in respect of whom, at the time of the application, a confidentiality order made under the Companies (Particulars of Usual Residential Address) Regulations is in force.
(9) An applicant may withdraw his application, by notice delivered to the Secretary of State, at any time before the Secretary of State makes a decision on the application, and the Secretary of State may retain the fee paid in respect of that application.
3.—(1) The Secretary of State may, in respect of any application or category of applications, refer to a relevant body any question relating to an assessment, in the case of such application or category of applications, of the nature and extent of any risk of violence or intimidation considered by the applicant as likely to be created in relation to the applicant, or any person living with him, by virtue of the availability for inspection by members of the public of particulars of his usual residential address.
(2) The Secretary of State may also refer to a relevant body any question as to the nature or extent of any risk of violence or intimidation likely to be created in relation to any applicant or category of applicants or persons living with them as a result of their involvement in the activities of a particular limited liability partnership or category of limited liability partnerships, of a particular sector of commerce or industry or of a particular type of business activity.
(3) The Secretary of State may accept any answer to a question referred in accordance with paragraph (1) or (2) as providing sufficient evidence of the nature and extent of any risk relevant to an applicant or any person living with him for the purposes of any determination under section 723B(3) or (4) of the 1985 Act.
(4) In this regulation, “relevant body” means any police force and any other person whom the Secretary of State considers may be able to assist in answering a question referred to that person under paragraph (1) or (2).
4. The Secretary of State shall send the applicant at his usual residential address, as stated in his application, notice of her decision under section 723B(3) or (4) of the 1985 Act and such notice shall be sent within five working days of the decision being made.
5.—(1) An applicant who has received notice under regulation 4 that his application for a confidentiality order has been unsuccessful may appeal to the High Court or the Court of Session on the grounds that the decision—
(a)is unlawful;
(b)is irrational or unreasonable; or
(c)has been made on the basis of procedural impropriety or otherwise contravenes the rules of natural justice.
(2) No appeal under this regulation may be brought unless the leave of the court has been obtained.
(3) An applicant must bring an appeal within 21 days of the sending of the notice under regulation 4 or, with the court’s permission, after the end of such period, but only if the court is satisfied—
(a)where permission is sought before the end of that period, that there is good reason for the applicant being unable to bring the appeal in time; or
(b)where permission is sought after that time, that there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.
(4) The court determining an appeal may—
(a)dismiss the appeal; or
(b)quash the decision,
and where the court quashes a decision it may refer the matter to the Secretary of State with a direction to reconsider it and to make a determination in accordance with the findings of the court.
6. Where an application for a confidentiality order is made by a member, that individual shall notify to each of the limited liability partnerships specified in the application the service address specified in the application pursuant to regulation 2(2)(b).
7. If a beneficiary of an order wishes to substitute another address, complying with regulation 9, for an address specified by him under regulation 2(2)(b) or previously notified by him under this regulation, he shall do so by notifying every limited liability partnership of which he is a member of the address to be substituted.
8. Where the beneficiary of an order—
(a)becomes a member of a limited liability partnership; or
(b)is to be named in an incorporation document delivered under sections 2 and 3 of the 2000 Act as a member of a limited liability partnership to be formed under the 2000 Act,
that beneficiary shall, in a case falling within (a) above notify to the limited liability partnership the service address, and in a case falling within (b) above notify the service address to be included in the statement as provided in section 2(2A) of the 2000 Act.
9.—(1) Where an applicant for a confidentiality order or a beneficiary of an order is, or proposes to become, a member of more than one limited liability partnership the service address specified by that applicant or beneficiary in relation to each such limited liability partnership must be the same, and that address shall have effect in all cases where the applicant is or proposes to become a member of a limited liability partnership.
(2) A service address must be at a place at which service of documents may be effected by physical delivery other than a PO or a DX Box Number and where that delivery is capable of being recorded by the obtaining of an acknowledgement of delivery by any person.
(3) A service address must be situated within a state within the European Economic Area, and “a state within the European Economic Area” means a state which is a member of the European Communities and the Republic of Iceland, the Kingdom of Norway and the Principality of Liechtenstein.
10.—(1) Subject to paragraphs (2), (3) and (4) a confidentiality order shall remain in force for the period of five years from the date on which it is made unless revoked earlier under regulation 11.
(2) Where the beneficiary of a confidentiality order (“the existing order”) delivers an application under section 723B(1) of the 1985 Act for a further confidentiality order (“the new order”) before the expiry of the existing order (“the expiry date”) and the Secretary of State decides before the expiry date to make a new order under section 723B(3) of the 1985 Act, the new order shall come into force on the expiry of the existing order.
(3) Where the beneficiary of an existing order delivers an application under section 723B(1) of the 1985 Act for a new order before the expiry date and the Secretary of State has not made a decision under section 723B(3) or (4) of the 1985 Act before that date, the existing order shall continue in force until—
(a)the Secretary of State makes a decision under section 723B(3) of the 1985 Act and the new order is made; or
(b)the application is dismissed under section 723B(4) of the 1985 Act.
(4) Where a confidentiality order is made in relation to an application in respect of which no fee has been paid pursuant to paragraph (8) of regulation 2 that order shall remain in force for a period equal to the period for which the confidentiality order referred to in paragraph (8) of regulation 2, made under the Companies (Particulars of Usual Residential Address) Regulations, is to remain in force.
11.—(1) The Secretary of State may revoke a confidentiality order at any time if she is satisfied that—
(a)the beneficiary of the order, or any other person, in purported compliance with any provision of these Regulations, has furnished the Secretary of State with false, misleading or inaccurate information; or
(b)the registrar has not received, within the period of 28 days beginning with the date on which the beneficiary of the order was sent notice under regulation 4 of the Secretary of State’s decision, in relation to each limited liability partnership of which that beneficiary is a member, the information in respect of the service address required to be delivered to the registrar under section 9 of the 2000 Act, by virtue of the making of the order; or
(c)the registrar has not received, within the period of 28 days from—
(i)any change or alteration among, or to, the members by virtue of the appointment of a beneficiary of an order; or
(ii)any change in the particulars of the usual residential address or the service address of the beneficiary of an order, in relation to each limited liability partnership of which that beneficiary is a member,
the information required to be delivered to the registrar under section 9 of the 2000 Act or sections 288 or 288A of the 1985 Act, of any such change or alteration, whether that change or alteration occurred before or after the making of the confidentiality order; or
(d)any statement delivered to the registrar under sections 2 and 3 of the 2000 Act naming as a member an individual in respect of whom a confidentiality order under the 1985 Act has been made did not contain the service address of the beneficiary or was not accompanied by a statement under the 2000 Act containing the usual residential address of the beneficiary; or
(e)any address purporting to be the service address of a beneficiary of an order which has been notified to the registrar under any provision of the 1985 Act or of the 2000 Act which does not comply with all the requirements of regulation 9.
(2) Where a beneficiary is also the beneficiary of a confidentiality order made under the Companies (Particulars of Usual Residential Address) Regulations which is revoked, any confidentiality order made in respect of that beneficiary as a member of a limited liability partnership is also revoked.
(3) If the Secretary of State proposes to revoke an order under this regulation, other than one revoked under paragraph (2), she shall send the beneficiary of the order notice.
(4) The notice must—
(a)state the grounds on which it is proposed to revoke the order;
(b)inform the beneficiary that he may, within a period of 21 days beginning with the date of the notice, deliver representations to the Secretary of State; and
(c)state that if representations are not received by the Secretary of State within that period, the order will be revoked at the expiry of that period.
(5) If the beneficiary delivers representations as to why the order should not be revoked within the period specified in paragraph (4), the Secretary of State shall have regard to the representations in determining whether to revoke the order, and shall send the beneficiary notice of her decision, and such notice shall be sent within five working days of the decision being made.
(6) Any communication by the Secretary of State in respect of the revocation or proposed revocation of a confidentiality order shall be sent to the beneficiary at his usual residential address.
12. On a confidentiality order ceasing to have effect, for whatever reason, the beneficiary of that order shall notify every relevant limited liability partnership within the meaning of section 723D(1)(a) of the 1985 Act of which he is a member, of that order ceasing to have effect within five days of its so ceasing to have effect.
13.—(1) Subject to paragraph (2), a competent authority is entitled to inspect, and take copies of, confidential records.
(2) The circumstances in which a competent authority may inspect, and take copies of, confidential records are that the registrar has made a determination, in respect of that competent authority, as to the manner in which that competent authority and its officers, servants and representatives may inspect, and take copies of, confidential records.
(3) The registrar may from time to time vary or revoke any determination with the consent of the competent authority in respect of whom it has been made.
14.—(1) Subject to regulation 13 the disclosure of relevant information by any person is prohibited in the following circumstances—
(a)where the information disclosed was delivered to the registrar, after the making of a confidentiality order in relation to the beneficiary of an order to whom the information relates, in the course the performance of the duties of the registrar under the 1985 Act or the 2000 Act in respect of that information and the information was obtained by the person disclosing it from the registrar;
(b)where the information disclosed was provided to a limited liability partnership, of which the beneficiary of the order to which the information relates was a member, after the making of that order, for the purpose of enabling the limited liability partnership to comply with the requirements of the 2000 Act and of the 1985 Act, as the case may be, and the information was obtained by the person disclosing it from the limited liability partnership.
(2) Paragraph (1) does not prohibit the disclosure of relevant information by a competent authority which is made for the purpose of facilitating the carrying out of a public function and “public function” includes—
(a)any function conferred by or in accordance with any provision contained in any enactment or subordinate legislation;
(b)any function conferred by or in accordance with any provision contained in the Community Treaties or any Community instrument;
(c)any similar function conferred on persons by or under provisions having effect as part of the law of a country or territory outside the United Kingdom;
(d)any function exercisable in relation to the investigation of any criminal offence or for the purposes of any criminal proceedings,
and disclosure for the purpose of facilitating the carrying out of a public function includes disclosure in relation to, and for the purpose of, any proceedings whether civil, criminal or disciplinary in which the competent authority engages while carrying out its public functions.
(3) Paragraph (1) does not prohibit the disclosure of relevant information where the disclosure—
(a)facilitates the creation and maintenance of confidential records of a limited liability partnership, and the provision of facilities for the inspection and copying of confidential records; or
(b)is by the registrar, or any person performing functions on his behalf, of any relevant information obtained in the circumstances described in sub-paragraph (1)(a), included in any document delivered to the registrar under any provision of the 1985 Act or of the 2000 Act where that document is prescribed or approved by the registrar in respect of the delivery to the registrar of any information which is not relevant information and that document is made available for inspection and copying as if that were required by section 709(1) of the 1985 Act; or
(c)is by any person of any relevant information obtain by that person from any document as is referred to in sub-paragraph (b).
(4) Paragraph (1) does not prohibit the disclosure by any person of relevant information obtained in the course of the performance of their duties or functions, where that disclosure occurred notwithstanding the exercise by that person of the due care and diligence in maintaining the confidentiality, required by the 1985 Act and these Regulations, of that information, that could reasonably by expected of a person performing those duties and functions.
(5) In this regulation—
“enactment” includes—
an Act of the Scottish Parliament;
Northern Ireland legislation;
“subordinate legislation” has the meaning given in the Interpretation Act 1978(10) and also includes an instrument made under an Act of the Scottish Parliament or under Northern Ireland legislation.
15.—(1) Any notice—
(a)by the Secretary of State under regulation 4, 11(3) or 11(5); or
(b)to the Secretary of State under regulation 2(9);
and any representations made to the Secretary of State under regulation 11 shall be legible form.
(2) Where any notice is required to be sent by the Secretary of State to the usual residential address of any person, that notice is validly sent if sent to the address of that person, shown in the records of the registrar available for inspection or copying under section 709 of the 1985 Act or the confidential records as the case may be when the notice is sent.
16. The enactments mentioned in Schedule 2 to these Regulations shall have effect with the amendments specified being amendments supplemental to, and consequential upon, the making of these Regulations.
17.—(1) Any person who, in an application under 723B of the 1985 Act, makes a statement which he knows to be false in a material particular, or recklessly makes a statement which is false in a material particular, shall be guilty of an offence.
(2) Any person who discloses information in contravention of regulation 14 shall be guilty of an offence.
(3) A person guilty of an offence under paragraph (1) or (2) shall be liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both; and
(b)on summary conviction, to imprisonment not exceeding six months, or to a fine not exceeding the statutory maximum or to both.
Melanie J. Johnson,
Parliamentary Under Secretary of State for Competition, Consumers and Markets,
Department of Trade and Industry
31st March 2002
Regulation 1
the Secretary of State;
the registrar and the registrar of companies for Northern Ireland;
an inspector appointed under Part XIV of the Companies Act 1985 or regulation 30 of the Open-Ended Investment Companies Regulations 2001(11);
any person authorised to exercise powers under section 447 of the Companies Act 1985 or section 84 of the Companies Act 1989(12);
any person exercising functions conferred by Part VI of the Financial Services and Markets Act 2000(13) or the competent authority under that Part;
a person appointed to make a report under section 166 of the Financial Services and Markets Act 2000;
a person appointed to conduct an investigation under section 167 or 168(3) or (5) of the Financial Services and Markets Act 2000;
an inspector appointed under section 284 of the Financial Services and Markets Act 2000;
the Department of Enterprise, Trade and Investment in Northern Ireland;
the Scottish Executive;
the Scotland Office;
the National Assembly for Wales;
the Wales Office (Office of the Secretary of State for Wales);
the Treasury;
the Commissioners of HM Customs and Excise;
the Commissioners of Inland Revenue;
the Bank of England;
the Director of Public Prosecutions and the Director of Public Prosecutions in Northern Ireland;
the Serious Fraud Office;
the Secret Intelligence Service;
the Security Service;
the Financial Services Authority;
the Competition Commission;
the Occupational Pensions Regulatory Authority;
the Panel on Takeovers and Mergers;
the Chief Registrar of Friendly Societies and the Registrar for Credit Unions and Industrial and Provident Societies for Northern Ireland;
the Director General of Fair Trading;
the Office of the Information Commissioner;
the Friendly Societies Commission;
a local weights and measures authority;
the Charity Commission;
an official receiver appointed under section 399 of the Insolvency Act 1986(14);
a person acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986;
an inspector appointed under Part XV of the Companies (Northern Ireland) Order 1986(15) or Regulation 22 of the Open-Ended Investment Companies (Companies with Variable Capital) Regulations (Northern Ireland) 1997(16);
any person authorised to exercise powers under Article 440 of the Companies (Northern Ireland) Order 1986;
the Official Receiver for Northern Ireland;
a police force;
any procurator fiscal;
an overseas regulatory authority within the meaning of section 82 of the Companies Act 1989.
Regulation 15
1. In section 2 of the 2000 Act, insert after subsection (2)—
“(2A) Where a confidentiality order, made under section 723B of the Companies Act 1985 as applied to a limited liability partnerships, is in force in respect of any individual named as a member of a limited liability partnership under subsection (2) that subsection shall have effect as if the reference to the address of the individual were a reference to the address for the time being notified by him under the Limited Liability Partnerships (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002 to any limited liability partnership of which he is a member or if he is not such a member either the address specified in his application for a confidentiality order or the address last notified by him under such a confidentiality order as the case may be.
(2B) Where the incorporation document or a copy of such delivered under this section includes an address specified in reliance on subsection (2A) there shall be delivered with it or the copy of it a statement in a form approved by the registrar containing particulars of the usual residential address of the member whose address is so specified.”
2. After section 288 of the 1985 Act, insert—
“288A If an individual in respect of whom a confidentiality order under section 723B as applied to limited liability partnerships becomes a member of a limited liability partnership—
the notice to be delivered to the registrar under section 9(1) of the Limited Liability Partnerships Act 2000 shall contain the address for the time being notified by the member to the limited liability partnership under the Limited Liability Partnerships (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002 but shall not contain his usual residential address; and
with that notice the limited liability partnership shall deliver to the registrar a notice in the prescribed form containing the usual residential address of that member.”
3. After section 9(3) of the 2000 Act, insert—
“(3A) Where a confidentiality order under section 723B of the Companies Act 1985 as applied to limited liability partnerships is made in respect of an existing member, the limited liability partnership must ensure that there is delivered within 28 days to the registrar notice in a form approved by the registrar containing the address for the time being notified to it by the member under the Limited Liability Partnerships (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002.
(3B) Where such a confidentiality order is in force in respect of a member the requirement in subsection (1)(b) to notify a change in the address of a member shall be read in relation to that member as a requirement to deliver to the registrar, within 28 days, notice of—
(a)any change in the usual residential address of that member; and
(b)any change in the address for the time being notified to the limited liability partnership by the member under the Limited Liability Partnerships (Particulars of Usual Residential Address) (Confidentiality Orders) Regulations 2002,
and the registrar may approve different forms for the notification of each kind of address.”
(This note is not part of the Regulations)
Section 45 of the Criminal Justice and Police Act 2001 inserted sections 723B to 723F into the Companies Act 1985 (“the 1985 Act”). Those sections provide for a system of granting confidentiality orders to directors and secretaries of companies formed under the 1985 Act and directors, secretaries and permanent representatives of oversea companies with a place of business, or a branch, in Great Britain in the meaning of the 1985 Act. The Limited Liability Partnerships (No.2) Regulations 2002 have applied sections 723B to 723F to limited liability partnerships with appropriate modifications.
Confidentiality orders are granted to individuals on application to the Secretary of State when she is satisfied that the availability for inspection of the usual residential address of that individual in the records of the registrar of companies creates, or is likely to create, a serious risk that the individual, or a person who lives with him, will be subjected to violence or intimidation. The effect of the order is that all notifications to the registrar of companies subsequent to the granting of the order in respect of the usual residential address of the beneficiary of an order are kept in confidential records by the registrar which do not form part of his records available for public inspection. These Regulations make further provision for the implementation of the system and for supplemental and consequential amendments to the 1985 Act as applied to limited liability partnerships.
Part I of the Regulations makes provision for the application process. Regulation 2 provides for the manner of making applications and for the evidence to be delivered to the Secretary of State in support of the application. Regulation 3 empowers the Secretary of State to refer questions to other bodies for the purpose of deciding upon applications. Regulation 4 prescribes the manner in which the Secretary of State notifies the outcome of an application. Regulation 5 provides for appeals to the Court against the decision of the Secretary of State rejecting an application.
Part II of the Regulations makes provision for the address which is to appear on the public record of the registrar of companies on the granting of a confidentiality order in place of the usual residential address of the beneficiary of an order. Regulations 6, 7 and 8 specify how and by whom that address and any changes in it are to be notified in the circumstances set out in those Regulations. Regulation 9 requires such an address to be the same in respect of all limited liability partnerships of which the beneficiary of an order is a member. It also defines the nature of a place that can be such an address and requires the address to be situated within the European Economic Area.
Part III of the Regulations makes provision for the duration, renewal and revocation of confidentiality orders. Regulation 10 determines the time for which confidentiality orders are to remain in force and makes provision for the operation of confidentiality orders when they are sought to be renewed. Regulation 11 describes the circumstances in which the Secretary of State may revoke confidentiality orders; when orders have been obtained on the basis of false, misleading or inaccurate information, when certain information related to the beneficiary required by the 1985 Act or 2000 Act has not been delivered to the registrar within the prescribed period and where a service address does not comply with the requirements of Regulation 9. It also prescribes the procedure to be followed on the revocation of an order.
Part IV of the Regulations makes provision for granting access to the confidential records of the registrar and imposes a prohibition on the disclosure of relevant information as defined in section 723C(5) of the 1985 Act. Regulation 13 grants access to the confidential records to the competent authorities listed in Schedule 1. Regulation 14 prohibits disclosure of relevant information by persons requiring such information in the circumstances set out in paragraph (1) of that regulation, while the remaining paragraphs of the regulation provide exemptions from that prohibition.
Part V of the Regulations contains provisions on the manner and form of certain notices to be given to and by the Secretary of State under these Regulations (Regulation 15). Breach of the prohibition in Regulation 14 and knowingly or recklessly making statements, false in a material particular, in an application under section 723B constitutes an offence. Regulation 16 makes the modifications in Schedule 2 to the enactments specified in that Schedule. The amendments seek to ensure that the enactments under which limited liability partnerships are required to notify the usual residential address of members are modified to require notification of the service address of a beneficiary of an order to the registrar for the public record and the continued notification of changes in the particulars of the usual residential address of a beneficiary to the registrar for the confidential record defined in section 723D of the 1985 Act.
1985 c. 6; sections 723B to E were inserted by section 45 of the Criminal Justice and Police Act 2001 (c. 16) and applied to limited liability partnerships by the Limited Liability Partnerships (No. 2) Regulations 2002/913.
S.I. 2001/1090.
S.I. 2002/913.
S.I. 2002/912.
S.I. 2001/1090.
S.I. 2001/1228.
S.R.N.I. 1997/251.