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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: Citation, commencement and interpretation 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 -
(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. Applications for confidentiality orders under section 723B of the 1985 Act 2. - (1) An application for a confidentiality order shall be made to the Secretary of State. (2) An application for a confidentiality order shall:
(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.
(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.
(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.
(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 -
(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. Service addresses 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 -
(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. Duration and renewal of a confidentiality order 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 -
(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.
(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 -
(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
(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.
(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. Access to confidential records 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. Disclosure of relevant information 14. - (1) Subject to regulation 13 the disclosure of relevant information by any person is prohibited in the following circumstances -
(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 -
(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.
(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.
(b) 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. Form and delivery of notices etc. 15. - (1) Any notice -
(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.
(b) on summary conviction, to imprisonment not exceeding six months, or to a fine not exceeding the statutory maximum or to both.
1. In section 2 of the 2000 Act, insert after subsection (2) -
(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 -
(b) 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 -
(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 -
(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. Notes: [1] 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.back
ISBN 0 11 039775 4
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