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Companies Bill [Lords]

As the Minister implied, we are considering something of a hotch-potch of new provisions to finish off the day. Just in case we end up with a problem with time, I shall start by speaking to amendment No. 355, which we believe to be the most important element of the group. Amendment No. 355 originated from the Law Society. It would enable a company to make provision in its articles on the passing of unanimous written resolutions that were not subject to the procedures laid down in chapter 2 of part 14. The provisions in chapter 2 are less flexible than those in section 381C of the Companies Act 1985, which permits a company’s articles to make provision for written resolutions to be passed pursuant to the articles as an alternative to following the statutory procedure. The amendment would preserve that flexibility when the written resolution is agreed unanimously by members. That reflects a principle of common law, as expounded in the case of re Duomatic, 1969, which hon. Members will remember was mentioned in Committee. Such flexibility was incorporated in clause D18 in the White Paper of March 2005. Subsection (2) provided:"““This section does not affect any power of a company to make provision in its articles for its members to pass resolutions without a meeting other than in accordance with this Chapter.““" We think that the flexibility needs to be retained, but only for written resolutions that are passed unanimously. We do not consider that clause 288(3) achieves that flexibility. Such flexibility is needed for not only private companies, but public companies that cannot avail themselves of the statutory written resolution procedure that exists in the Bill. It is not uncommon for newly incorporated public companies to pass written resolutions pursuant to a provision of their articles, and if that ceased to be possible it would create extra work and cost. Two examples come to mind in relation to the provision. First, following the formation of a public company, it is common to adopt new articles. That can be done by a written resolution pursuant to regulation 53 of table A when that is incorporated in the articles of a company on its formation. Secondly, when a public company is a wholly owned subsidiary of another company, it is common to pass written resolutions in accordance with the outcomes. However, the Bill does not allow that practice to continue. The consequence will be that a resolution of a public company will require a meeting of members in all circumstances. That would involve additional expense, but it would give no benefit in the circumstances that I have mentioned. We welcome Government amendment No. 301 and new clause 13. We tabled amendments to clause 294 in Committee and my hon. Friend the Member for Hornchurch (James Brokenshire) expressed his justifiable concerns about the effect of the clause as drafted. It allowed that if a person was not entitled to vote, but did so, and if the articles of association of that company provided a mechanism for objecting to an improper vote, and if an objection was made and rejected, or if no objection was made in the relevant time period, the unauthorised voter would be deemed to have been entitled to vote. My hon. Friend stated that that would unfairly prejudice shareholders who could not challenge a decision that was irrational, unreasonable or even unlawful. The Government amendments return us to the existing common-law position. If the result of a poll is declared, a court should now be able to question it, rather than having no power to change it. That is sensible and to be welcomed. New clause 14 is the Government’s welcome response to amendments that we tabled in Committee. Currently, companies insert into their articles a provision that when giving a notice period for meetings, no account will be taken of the day of sending of the notice, or the following day, or the date of the meeting itself. However, that can be drafted as two extra days or three extra days, which can cause confusion. In the worst instances, circulars have been sent out illegally to members, causing great embarrassment to all concerned. The point might be slightly technical and one that only practitioners and company secretaries will be happy to see made, but we thank the Government for reconsidering that grey area, which we highlighted, tabling new clause 14 and thus providing clarity to all concerned. In amendment No. 682, the hon. Member for Newcastle upon Tyne, Central (Jim Cousins) suggests that directors should be ineligible to cast proxy votes. I would look forward to hearing his reasons were he here to state them, but he is not. However, most proxy forms give power of proxy to the chairman or such other person as the shareholder nominates. No one is forcing shareholders to support the chairman in order to cast their vote; it is simply convenient for many shareholders. For that reason, we cannot support the amendment. The amendment stands in the name of the hon. Member for Great Grimsby (Mr. Mitchell) as well, so perhaps he will speak to it in due course. Amendments Nos. 348 and 349 would reserve the original position in the Bill, such that an AGM of a public company will be capable of being called on short notice where all shareholders consent. That will make public company AGMs—mainly where there is a handful of shareholders—provide the formality that shareholders normally require. It is a deregulatory measure and, as such, we support it. The purpose of amendment No. 418 is to clarify how a company should notify its members of the publication on a website of the notice of the meeting. Clause 316 makes provision in that respect, and subsection (2) states that the company has a duty to notify its members of the existence of the notice on its website, but it is not made clear how such notification is to be given. We agree with the Law Society that it is important that companies notify their members directly when they have published a notice. How that should be effected requires clarification. We would be concerned if it was sufficient merely to put the notice of the meeting on the website. Amendment No. 419 is a probing amendment that we received from the Investment Management Association. In a previous debate, it was said that now is not the time to be proposing probing amendments, but I am sure that the Minister will forgive us on this occasion, given the nature of the Bill and the way in which everything seems to be crammed in at the last minute. Under regulation 46 of table A to the Companies (Tables A to F) Regulations 1985, a resolution voted on at a company meeting is decided on a show of hands—one vote per member for each shareholder actually present or represented in the case or a corporate shareholder, but not proxies unless the articles so provide—unless a poll is called. Common law clarified the chairman’s duty to"““ascertain the true sense of the meeting””." If the chairman as proxy is aware that if a poll was called the outcome would be different from that reached on a show of hands, he has a duty to demand a poll, if he is able to do so under the company’s articles of association. Guidance from the Institute of Chartered Secretaries and Administrators re-emphasises that duty. We were therefore concerned to learn that at the AGM in July of GoshawK Insurance Holdings, the reinsurer, an advisory resolution on the remuneration of the chairman was decided on a show of hands when a poll would have defeated it. We understand that GoshawK’s lawyers had advised that, because votes on remuneration are advisory and not binding on the company—that is certainly the case in relation to the combined code—the chairman was not obliged to call a poll. It is considered important by the Investment Management Association that the law in this area is clarified, and the Bill is an opportunity to do that. It would be helpful if the Minister set out the Government’s position in that regard. Amendment No. 420 deals with the related issue of votes at general meetings. On the question whether a chairman should be forced to call a poll, transparency would be a key issue. To that end, the amendment suggests that the chairman announce the number of proxy votes before the resolution is put, rather than after the resolution is put, as is usually the case with listed companies. In that way, members will know to call a poll in the usual way. Such transparency would make the IMA amendment unnecessary. The provision may be more suited to the compliant code for listed companies, but I shall be interested to hear the Minister’s views and whether she will look into the matter in more detail. Finally, on amendment No. 421, which would remove clauses 349 to 352, the CBI’s updated view is rather blunt. It believes that the provisions dealing with independent reports on a poll are"““excessive and unnecessary and will place increased burdens and costs on companies””" and that they are"““contrary to the Government’s aim for deregulation and the principles of better regulation.””" We debated the matter in Committee and it has been debated in another place. The Government have still not got the position right. The debate relates to clauses 349 and 350, which provide a mechanism for shareholders representing not less than 5 per cent. of the voting capital of a quoted company to demand an independent report on any poll taken or to be taken at a general meeting of the company. The request must be made no later than within one week of the poll being taken, and the directors must appoint an independent assessor within one week of the requirement to prepare a report for the company on the poll or polls. The Institute of Directors said of the arrangements:"““These provisions are onerous and unnecessary. The Government has provided no evidence of any abuse it is trying to redress. They will place increased costs and burdens on companies for no discernable gain. In addition, in spite of the statement that an adverse report on a poll will not affect the validity of a decision, it is likely that companies would delay the implementation of the decision until the time for a challenge has expired. In the case of decisions taken at EGMs this could have a seriously detrimental effect on companies’ ability to complete major transactions and would undermine the competitiveness of UK companies.""The procedure of calling for an independent report would be open to serious abuse from those who were opposed to a transaction, but knew that they would be defeated on a poll. They would hope to achieve their desired aim by the back door rather than through the legitimate democratic process of the poll.””" That was a quote from the IOD, and earlier I quoted the CBI, so there we have the views of a section of the business community. The provisions highlight some of the strong feelings that exist, and we believe that the Government could address those concerns in a more significant way than they have done to date. One of the points that has been raised is the impact of the delay. It has been pointed out to us that companies may seek to wait a week before implementing a change, for fear that a demand for some sort of report may be required. If that were the case, it would impose a considerable cost and burden on companies. In that regard, we could have a situation where companies are making a share offering and the longer that the share offering waits to be completed, the more the company may be required to pay in subscription costs or placement charges to agents or underwriters. That could increase the costs associated with companies’ placement of new shares, which is not desirable. Even if we do not take that point of view, there is another issue. What will be the sanction if a report is received that is unfavourable and says that something has not been done appropriately? As we have already discussed, the chairman’s ruling in relation to a particular matter is fairly conclusive, in much the same way as Mr. Speaker’s decision is conclusive. If a report is called for, there may be some further delay to enable it to be undertaken. If a report is called for after the general meeting has taken place, it may be difficult for the expert who has been appointed to provide the report to assess it and conclude whether matters were conducted appropriately. I have mentioned several issues in relation to these provisions and I would be grateful if the Minister would address them.