Order for Second Reading read.
4.59 pm
The Parliamentary Under-Secretary of State for Trade and Industry
(Dr. Kim Howells): I
beg to move, That the Bill be now read a Second time.
The creation of limited liability partnerships adds to the variety of
business entities available to
those wishing to set up in business in Great Britain. Firms can usually
choose between being a
company--which is good if one wants a split between ownership and management--and
being a
partnership, which is good if one wants greater flexibility in arranging
the internal affairs of the
business and does not mind unlimited liability. However, firms will
now have the option of
becoming a limited liability entity with the internal flexibility of
a partnership.
Limited liability partnerships, or llps, were first proposed by the
previous Administration, and
responses to a consultation on the general principles were clearly
in favour of their introduction.
The Government agreed that the concept had merit and published a draft
Bill in September 1998.
That, too, was well received, and consultees provided feedback on the
detail of the legislation. I
should add that consultees represented a wide range of interests, including
accountants, lawyers,
actuaries, architects, surveyors, academics, trade associations and
those representing the potential
clients of an llp. The measure has wide support across the professional
business community.
The Bill was subject to pre-legislative scrutiny by the Select Committee
on Trade and Industry.
The Committee's comments were a valuable contribution to the development
of the Bill.
To explain the way in which we have chosen to construct the llp, I need
to say something about
where the idea of limited liability partnerships comes from. In 1996,
the Department of Trade and
Industry published for consultation an authoritative investigation
by the common law team of the
Law Commission into the law of joint and several liability, a complex
area of common law.
The report examined the problems that resulted from joint and several
liability for professional
defendants. For example, defendants might find themselves liable for
the whole amount of the
damage caused to the plaintiff, even where other wrongdoers were involved.
However, the report
concluded strongly against any reform of the law of joint and several
liability. The main reason
was that a change towards a system of proportional liability would
favour the wrongdoer at the
expense of the plaintiff. This is a simplified summary of the report's
detailed conclusions.
The common law team's remit did not extend to looking at joint and several
liability in
partnerships, but the Department of Trade and Industry at the time
took the opportunity to consult
on the question whether to allow for llps in Great Britain.
Llps were already a well-known concept in the United States of America,
and Jersey--not New
Jersey, but Jersey in the Channel islands--was also planning to introduce
them. As a result of the
process of consultation,
23 May 2000 : Column 889
we concluded against any reform to the law of joint and several liability,
but gave our commitment
to the introduction of limited liability partnerships.
Surprisingly, there has been no fundamental change to business entities
in Great Britain since
1907, when the Limited Partnerships Act was introduced. Only a company
offers all its members
limited liability, which perhaps seems a little odd in the 21st century.
The creation of llps
demonstrates the Government's commitment to ensuring that Britain maintains
its competitive and
up-to-date legal framework for business.
The development of llps takes account of the changing business environment,
which has become
increasingly litigious in recent years. The structure of an llp means
that some firms may find it an
advantage over a company, as it offers the freedom for members to arrange
their internal
relationship to each other and to the llp as they wish, while having
the benefit of limited liability.
That is likely to be popular with those who already have partnerships,
but it may also prove to be
of some benefit to start-up businesses.
Mr. John Burnett (Torridge and West Devon): I am grateful to the Minister
for giving way. I
shall refer to this in my speech, if I am fortunate enough to catch
your eye, Mr. Deputy Speaker.
The Minister says that the limited liability partnership will be useful
for other businesses. Will it be
useful for other incorporated businesses? If so, it would be a lot
more useful for incorporated
businesses--that is, limited companies--if the tax penalties on disincorporation
were eased.
Dr. Howells: I hope that the hon. Gentleman will bear with me. I shall
deal with tax separately and
in some detail, as it is a crucial component of the Bill.
In November 1999, the Bill was introduced in another place, where there
was wide support for the
concept. That is not to say that the Bill's passage through the other
place was uneventful. A lively
and useful debate took place, and the Government made a number of amendments,
with which I
shall deal later.
I am pleased to say that the Bill is in very good shape, and I thank
Members of the other place for
their contribution to bringing that about. We believe that the right
balance has been struck between
the interests of those who will want to be llps and of those who will
do business with them.
Although the new entity is called a limited liability partnership, in
many ways it is neither fish nor
fowl. In some respects, it is closer to a partnership, while in others
it is closer to a company. That
hybrid quality has been at the root of most debates on the measure,
with some wanting the entity
to be allied more closely to a partnership and others wanting it to
be allied more closely to a
company.
We had to strike a balance. While members will be free to agree among
themselves, their
relationship being rather like that of members of other kinds of partnership,
the llp itself will be a
separate legal entity, owned by the members. That means that it will
be able to enter into contracts,
hold property and continue to exist independent of changes in membership.
In that sense, llps will
be closer to companies than to partnerships. We will
23 May 2000 : Column 890
therefore apply to llps, by way regulation, appropriately modified companies
legislation--for
example, the Companies Act 1985, the Insolvency Act 1986 and the Company
Directors
Disqualification Act 1986.
The limited liability of the members is also clearly more closely akin
to the position of a company
than to that of a partnership. Limited liability is a privilege, and
we need to ensure that it is not
abused. The companies and insolvency legislation will help to do that.
Clause 6 makes it plain that a third party dealing with an llp will
be entitled to rely on the fact that
the member is an agent of the llp, but because the llp is a separate
legal entity, we expect the
third-party contract to be with the llp rather than with the member.
That mirrors what happens in
the case of companies. It is anticipated that, in the event of a claim
for negligence, the claim would
be against the llp rather than the member.
Mr. Burnett: I thought that an overriding principle of the Bill was
that a member who conducted
work for an individual client would be liable to the extent of the
entirety of his assets, if he was
found to be negligent.
Dr. Howells: That is absolutely true. If he is found to be negligent,
he will be liable to exactly the
same punishments, and to be pursued in the same way, as the director
of a company; there is no
doubt about that. The llp, however, is the first port of call when
there is deemed to be a problem.
The llp would be liable to the full extent of its assets, but--I think
that this is what the hon.
Gentleman is getting at--that does not rule out the option of the third
party's pursuing the negligent
member as well. The third party, however, would only be able to sue
the negligent member in tort,
as the contract would have to be with the llp. Tort liability may be
much more difficult to prove.
Clients of the llp will need to be made aware of the nature of the entity
with which they are dealing.
To help ensure that, firms using the abbreviation "llp" after their
names will have to mention on
their business letters and order forms that the letters stand for "limited
liability partnership".
The Bill also requires that two or more people must be associated for
the carrying on of a lawful
business with a view to profit, and that their names must be on the
incorporation document. The
limited liability partnership and its members must be registered at
Companies House. Its records
must be kept up to date. The llp must also have two designated members
whose responsibilities
include filing the annual return, notifying Companies House of changes
in membership and of any
change to the address of the registered office.
Taxation is the other main subject of the Bill. The hon. Member for
Torridge and West Devon
(Mr. Burnett) asked about that. The Bill expressly provides for llps
to be taxed as though they
were partnerships. Without such provisions, they would be taxed as
companies because,
elsewhere, the Bill provides that they are corporate bodies. Although
llps will be corporate bodies,
they will retain the partnership ethos at their core. Like partnerships,
llps will consist of members
who are involved in running the firm. We anticipate that they will
continue to be an important
source of working capital. It was therefore agreed that it was more
appropriate for an llp to be
taxed as a partnership than as a company.
23 May 2000 : Column 891
Several amendments were tabled to the tax provisions in another place.
They were technical
amendments, which were intended to ensure that the legislation achieved
our objectives more
effectively. One amendment was intended to apply sections 117 and 118
of the Income and
Corporation Taxes Act 1988, with appropriate modifications, to llps.
The purpose was to ensure
that they could not be exploited for specific forms of tax avoidance.
That would have involved
members of llps being able to obtain tax relief for a loss sustained
beyond their personal
obligation to meet it.
Amendments were also made to ensure that the transfer of partnership
assets from an existing
partnership to an llp would be tax neutral. We thus maintain our policy
of ensuring tax neutrality
when conventional partnerships transform themselves into llps.
Mr. Burnett: When the Minister considers tax neutrality, I hope that
he will refer to the possibility
of limited liability companies becoming llps. Will he also confirm
that, when he says that the
transfer of a business or partnership into an llp will be tax neutral,
it includes stamp duty?
Dr. Howells: I shall find out by the end of the debate. I believe that
the provision includes stamp
duty, but I shall confirm that later. Although I appreciate that the
hon. Gentleman understands the
purpose of the Bill, his initial and follow-up questions suggest a
misunderstanding. I do not expect
the Bill to be especially useful to incorporated businesses because
they already have limited
liability and have already organised themselves as a company. There
is no reason for them to
organise themselves into llps, which will be taxed as partnerships
while companies are taxed as
companies. I envisage no reason for, or easy way to make, the transformation
of a company into
an llp tax neutral.
Mr. Burnett: Members of a limited company might want to become an llp for good tax reasons.
Dr. Howells: That would be up to different companies. We hope to provide
a new vehicle for
companies and business; clearly, the decision would be up to them.
Another amendment was made to ensure that members were treated for national
insurance
purposes as if they were partners in a partnership. Although we believe
that it is right to tax llps as
partnerships, we are aware that the tax treatment may allow scope for
llps to be used when the
primary or only attraction of llp status is tax treatment. I sense
that the hon. Member for Torridge
and West Devon was hinting at that when he spoke. Clearly, that is
not intended. We shall
consider that issue carefully with the Inland Revenue and, depending
on our conclusions,
measures may be introduced in the 2001 Finance Bill. The Revenue will
consult widely on its
intentions. It is important to emphasise that we do not intend to undermine
the commercial
certainty of llps' taxation treatment for those businesses for which
llp status was intended. That
will be at the forefront of our minds, whatever options are proposed.
Apart from those on tax, several amendments were made in the other place,
the most notable of
which included clarifying that an llp's members will not be its employees
and putting it beyond
doubt that, if an llp
23 May 2000 : Column 892
member were liable to a person for a wrongful act or omission in the
course of the llp's business,
it would be liable to the same extent as the member.
We intend to apply secondary legislation to llps, which will include
similar requirements to those
for companies; it may be useful if I touch on what that will mean.
The regulations will include a
requirement for financial disclosure equivalent to that required of
companies, provision that
members of an llp can be sued for wrongful or fraudulent trading and
provision that members can
be disqualified from being members of an llp and a company director.
The regulations will apply,
with appropriate modifications, the provisions of the Insolvency Act
1986. Those modifications
include a measure that will deter members from siphoning off funds
to the detriment of creditors.
We have published the draft regulations for consultation twice--in September
1998 and July 1999.
We shall amend the regulations to take account of the concerns expressed
by consultees and by
Members of another place about the disapplication of partnership law
to llps. That is part of
considering how far we treat llps as partnerships and how far we treat
them as companies. As a
result, we shall include a default provision that will apply if there
is no llp agreement or if the
agreement does not cover a particular issue. The draft proposals were
consulted on and generally
welcomed by those who responded.
It might be suggested that a significant weight of legislation will
be applied to such an entity and it
would be understandable if hon. Members asked whether a lighter touch
were preferable. The hon.
Member for Bognor Regis and Littlehampton (Mr. Gibb) knows full well
that I am very much in
favour of a lighter touch. However, I would argue strongly that we
shall provide for an entity that
will have the privilege of limited liability and we must ensure that
a balance is struck between the
interests of business and an llp's potential clients. Becoming an llp
will be a purely voluntary and
commercial decision. Any firm that chooses to become an llp and wants
limited liability will
compare the llp with a company. Anyone who makes that comparison will
find that the regulatory
requirements applied to an llp are not unreasonable.
The Bill has benefited from the careful and measured attention of learned
consultees, learned
Members of another place and the Trade and Industry Committee. As a
result, we have achieved
the right balance in creating a new entity that combines limited liability
with the organisational
flexibility of a partnership while ensuring that appropriate safeguards
are applied to protect those
who deal with the entity. I am pleased to commend the measure to the
House.
5.19 pm
Mr. Nick Gibb (Bognor Regis and Littlehampton): I declare an interest.
Actually, it is not
really an interest; it is more a confession: I am a chartered accountant.
Some of my best friends
are chartered accountants. Many of my friends work for chartered accountancy
partnerships. I
worked for such a partnership for 13 years before entering the House.
The Bill is welcome. It started life under the last Conservative Government
in response to
concerns, particularly from the accountancy and legal professions,
23 May 2000 : Column 893
about the difficulties of unlimited liability. The prospect of losing
one's house and savings because
of the negligence of a fellow partner whom one may not even have met
in a larger partnership was
becoming a huge impediment to recruiting and retaining key personnel.
Mr. Austin Mitchell (Great Grimsby): I am sure that the hon. Gentleman
will go on to paint the
tear-jerking spectacle of those in accountancy partnerships living
in terror in case their yachts,
farms, pubs and holiday retreats are suddenly confiscated, but has
it ever happened? We estimate
that the total revenue set aside from the fee income for contingency
claims was no higher than 2.7
per cent. Most of the things that are claimed to be a threat over accountancy
never materialised.
Mr. Gibb: It has happened in the United States. A number of medium-sized
firms have got into
severe difficulties and partners have lost their personal assets, but
it is the fear of losing assets for
which people have worked all their lives through no fault of their
own that is wrong. It also has an
unhealthy effect on the working method within the firms. People might
argue, as the hon.
Gentleman no doubt would, that the prospect of losing everything if
one does poor-quality work
for a client concentrates the mind wonderfully and so increases the
quality of work. My
experience is that the determination to keep clients is the driving
force behind doing good work.
The fear of negligence action acts as a dampener on the work.
Letters giving advice are packed full of caveats and disclaimers. Sometimes
it is barely possible to
discern the actual advice that the letter seeks to give. Huge resources
are pumped into ensuring
that terms of engagement are correctly documented and filed, not to
improve the quality of the
work, but to safeguard the firm in case of legal action. That is the
consequence of the ever-present
threat of legal action.
Even under the Bill, it will still be possible for partnerships to be
sued, but the prospect of
partners unconnected with the negligence losing everything will go.
It is wrong that, in
circumstances where--the Minister alluded to it--99 per cent. of the
blame for something going
wrong attaches to, say, the impecunious fraudulent director of a company,
and the audit firm or
solicitor can be shown to be just 1 per cent. to blame for what went
wrong, they can be sued for
100 per cent. of the loss. Because many of the partnerships have deep
pockets, it is to those firms
that aggrieved investors turn for recompense.
The general legal concept of joint and several liability will not be
changed by the Bill, but the
concept and joint and several liability within a partnership will.
The limited liability partnership will
be suable for breach of contract to the full extent of its assets.
The partner responsible for any
negligence will, as the Minister said, be liable under tort, but the
remaining partners will be able to
sleep easy at night knowing that their personal assets will be safe.
The Bill has been through an enormous number of stages. The last Conservative
Government
issued a consultative document in February 1997. A draft Bill was issued
by the present
Government in September 1998, which was scrutinised by the Select Committee
on Trade
23 May 2000 : Column 894
and Industry. The Government issued a new draft in July last year and
a final Bill came out in
November. Despite all that pre-legislative scrutiny, during which many
of the less attractive
options were dropped, the Bill that went to the other place still had
a number of problems.
Conservative Members were concerned that the Bill provided no default
mechanism to the existing
body of partnership law in circumstances where the partnership agreement
is silent: for example,
the right to share in capital and profits, the right of a member to
take part in the business,
procedures for retiring as a member and procedures for holding and
calling meetings. We believe
that there should be a default mechanism, so that those rules are covered.
We were concerned about the inherent ambiguities that could enable partners
or members to be
regarded by the Inland Revenue as employees of the llp. We were concerned
about the absence of
any definition of "designated member". There are plenty of subsections
about the appointment of
designated members and the requirement for two such members, but no
mention of what they are
meant to do.
We were concerned about the inadequacy of the taxation provisions. The
Bill is meant to be tax
neutral, as the Minister said, but, before it went to the other place,
there was no clarity over
whether transferring a partnership to an llp would trigger a tax charge
on the cessation of the old
partnership. There is no mention of stamp duty consequences. We had
enormous concerns about
the insolvency provisions, which appeared to apply much stricter tests
on trading while insolvent
than similar provisions applicable to companies. We were concerned
about the acquisition
accounting requirements that llps would automatically be required to
adopt. As hon. Members will
clearly understand, that method of accounting for the merger of two
llps would be absurd given
that they do not issue shares.
All those issues were raised in the other place by my noble Friend Baroness
Buscombe. Thanks
to her effort--and, one must acknowledge, to the reasonable approach
of the Minister, Lord
McIntosh--those concerns were largely taken on board and substantive
amendments were made in
Committee. We have always said that, as an Opposition, we will say
it as it is. If the Government
do the right thing, we will say so; if they do the wrong thing, we
will oppose them. This is a good
Bill--much better, it must be said, thanks to my noble Friend's scrutiny--but
one or two loose ends
and remaining criticisms need to be aired, to which we can return in
detail in Committee.
Far too many key provisions are hidden in secondary legislation. From
the now 19 clauses and
one schedule, one would have no idea of some of the Bill's basic tenets.
One would have no idea
that a member of an llp will remain liable to the full extension of
his personal assets,
notwithstanding the limited liability, for negligent work that he or
staff reporting to him had carried
out; no idea about a host of important issues relating to the legal
position of members if the llp
trades while insolvent; no idea about which company law and which partnership
rules will apply to
the llp. Those matters are in a host of regulations to be issued under
sections 14, 15 and 16.
23 May 2000 : Column 895
The Trade and Industry Committee was highly critical of the degree of
use of secondary
legislation in the Bill. Its report states:
There does not at first sight seem to be any over-riding reason why the Regulations and schedules should not be incorporated into the Bill . . . We would . . . far prefer that the detailed secondary legislation proposed be incorporated in the Bill.
The Committee recommended that revised drafts should be resubmitted
to it for re-examination.
Has that happened? Was the Committee asked to have a look at the revised
draft statutory
instruments?
Lord Goodhart, a Liberal Democrat peer, said in the other place:
The Delegated Powers and Deregulation Committee in your Lordships' House, of which I am a member, accepted the Government's proposals to put these provisions in regulations. But it seems to me that this comes close to the borderline and the more I look at some aspects of this Bill the more doubtful I am whether the Delegated Powers Committee was not rather too lenient.--[Official Report, House of Lords, 9 December 1999; Vol. 607, c. 1438.]
He was right to express concern. The Committee's report draws attention
to the fact that what is
now clause 16 is a Henry VIII provision which allows regulations
to amend or repeal primary . . . legislation.
Dr. Howells: The hon. Gentleman's criticisms are well placed; he is
a well-known deregulator.
However, is he aware that the first set of regulations will be subject
to the affirmative procedure
and that affirmative resolutions will then apply to anything that we
introduce immediately
afterwards? That should be some defence.
Mr. Gibb: I am aware of that, but I am grateful to the Minister for
bringing it to the attention of
the House. However, affirmative secondary legislation is still a far
cry from primary legislation.
Many regulations in that pile of draft regulations amend primary legislation.
I have great concern,
shared by many Members of both Houses, about secondary legislation
amending primary
legislation.
That was not the Committee's main concern. Its main concern was that
the draft regulations
created offences punishable on summary conviction by a fine, but the
way in which those
instruments were drafted was wide enough to allow the regulations to
provide for imprisonment or
for trial on indictment. The Committee thought that the Government
intended to use those powers
only to provide for summary trial and fine, and wanted that limitation
to appear on the face of the
Bill. As Lord McIntosh admitted in the other place
it is our intention to apply to LLPs the same offences
as apply to companies . . . In some cases these offences are
triable on indictment and punishable with imprisonment.--[Official
Report, House of Lords, 9 December 1999;
Vol. 607, c. 1421.]
The Government wanted to see those powers to create offences which carry
a punishment of
imprisonment. Given that admission, and the fact that the Delegated
Powers and Deregulation
Committee had assumed in its conclusions that the delegated powers
would not be used for such
purposes, I urge the Committee's Chairman to look at the Bill again.
I shall be interested to hear
the Minister's response on that concern.
The over-use of delegated legislation is a serious matter, which should
be of concern to all hon.
Members. We shall seek to put it right, regardless of administrative
inconvenience or precedent.
23 May 2000 : Column 896
Our remaining concern over the drafting of the Bill relates to what
have become known as the
default provisions. The Minister also referred to them as such. Under
clause 1, the whole body of
partnership law is disapplied as regards llps except where it is explicitly
provided for in the Bill.
This is of concern because most of the firms that will want to convert
to llp status will simply use
their partnership agreement as the basis for the internal arrangements
within the llp. The agreement
may well be silent on a number of important issues, because well-established
partnership law
provides these details where they are not explicitly set out in the
agreement. Small partnerships in
particular will have relatively short agreements which may not include
details such as the rules for
the retirement of partners, the detailed rules about calling meetings
or rules giving all parties the
right to see the books and records. Those rights and rules are all
there in general partnership law.
To disapply that law may well cause difficulties for such smaller firms.
Dr. Howells: Presumably the hon. Gentleman is not arguing for over-prescription
in terms of
what a partnership should or should not be. One of the strengths of
partnerships is the flexibility
of arrangements. We are not seeking to take that away.
Mr. Gibb: I am grateful to the Minister for that intervention, but he
misses the point. Our
proposal in the other place was for a simple default provision where
there were no provisions in
an agreement about certain aspects of the partnership arrangement.
When a crisis arose, those
involved in a partnership could always fall back on those partnership
laws that had evolved since
1890 through the courts and in statute. The Bill explicitly removes
that default provision and could
therefore give rise to difficulties. That is why in the other place
my noble Friend Lady Buscombe
proposed a provision that, for the avoidance of doubt, partnership
law would apply if not
otherwise excluded by the Bill. The Government rejected it on the grounds
that, as the llp had a
separate legal identity and would need primarily to adhere to the Companies
Act rules, having a
default to the partnership law rules might result in confusion and
possible conflict.
Mr. Burnett: I agree with the central thrust of what the hon. Gentleman
is saying. Does he agree
that one of the great advantages of the Partnership Act 1890 is that
not only has it stood the test of
time, but there is a great deal of case law behind it which is intelligible
and easy to understand?
Mr. Gibb: The hon. Gentleman makes a very good point. We can never anticipate
all the
problems that will arise, but a hundred years of case law will probably
have covered almost every
likely contingency. We are rejecting that hundred years' experience
in having clause 1(5) disapply
all that body of partnership law.
We do not accept the Government's argument about why there should not
be a default provision,
because we are talking about the rules relating to the partnership
agreement and the relationship
between partners. The Law Society is also clear on that point. In its
briefing for this debate, it
states:
The Law Society has always considered there to be
the need for some default provisions that would operate in the
absence of agreement to the contrary within a limited
liability partnership and which would cover certain basic
matters relating to the mutual rights and duties
of the members of an LLP.
23 May 2000 : Column 897
In response to such concerns, the Government issued a consultation document
in February,
which proposed incorporating specific partnership law rules into delegated
legislation under clause
15(c) of the Bill. The Government amended the Bill in the other place
to enable that to happen. We
will no doubt debate the issue in detail in Committee, but key provisions
such as fundamental
partnership rules should appear in primary legislation. We stick to
our view that the Bill should
contain an overall default provision.
I would also be grateful if the Minister could address another important
concern raised by the Law
Society over whether the Administration of Justice Act 1960, as in
force, will permit firms of
solicitors to adopt the new form of incorporation. It understands that
the Act will need to be
amended, so I hope that the Minister will respond to that point.
The Bill is now a much improved and useful Bill that will assist professional
firms to recruit and
retain top-quality staff and partners who otherwise might be put off
by the prospect of perpetual
unlimited liability arising from the negligence of others. It should
also reduce the risk of such
partners fleeing to non-UK jurisdictions. Subject to our remaining
concerns, which we will address
in Committee and about which I trust the Minister will be as reasonable
as his colleague in the
other place, we remain supportive of an important and useful Bill.
5.37 pm
Mr. Austin Mitchell (Great Grimsby): I tend to get suspicious when I
hear bipartisan bleating
about how wonderful a Bill is, although that is not why I wished to
speak. I do not know whether
we will have a tripartisan bleat from the Liberals, although they put
in some good work in
opposition to the Bill in the House of Lords. I hope that that might
be followed up here.
The Bill is not the epoch-making measure that it has been portrayed
as, by both my hon. Friend
the Minister and the Opposition. It is a shabby measure. If not sordid,
it is at least suspect, and it
is interesting that the songs of praise for it have come largely--in
fact, overwhelmingly--from the
vested interests. It is regarded as a technical Bill, but it will have
enormous repercussions that
should be more widely discussed. Unfortunately, we cannot discuss them
in an atmosphere in
which everyone agrees that the Bill is wonderful.
The Bill will take the limited liability partnership--a device that
began as a vehicle for tax evasion in
Texas and Delaware, specifically to limit the tax obligations of partners
in firms--and turn it into a
new vehicle for corporate business. We do not know what the consequences
of doing that will be.
They could be substantial or they could be minimal. I fear that they
will be more substantial than
we think.
The change in company and partnership law is being done at the behest
of the mighty and the
greedy, and indeed the mighty greedy. The lobby for the Bill comes
overwhelmingly from the big
five--formerly big six, until they started eating each other--accountancy
houses. The fee revenue of
the big five was £4.5 billion in this country alone in 1999.
That makes them powerful
organisations, and I do not like the spectacle of the Government rushing
to serve their purposes,
their greed and their desire to
23 May 2000 : Column 898
protect their profits, revenues and incomes as partners. I can understand
the Conservatives doing
that, because that was the whole process of Conservative Government
for 18 years, and it is
fitting that they began the Bill. I am more doubtful when a Labour
Government pursue the
measure. After all, Labour is a new and pristine party that will not
make concessions to vested
interests. We must ask why the Bill is being introduced--and especially
why now?
We know that the legislative timetable is packed. We know that there
is a long queue of Bills.
Discussions at the meeting of the parliamentary Labour party last week
produced an enormous list
of proposals from Labour Members for the legislative programme next
year. These proposals
included measures to deal with hunting with dogs; housing, including
multiple occupancy;
pensioners and carers, especially action on long-term care; the regulation
of the private security
industry; regulation and reform of park homes; equality and employment
legislation; and consumer
protection measures.
Those proposals are only a part of the list. There is an enormous list
of socially responsible and
sensible legislation that needs to be introduced, but we are told that
that cannot happen because of
pressures on the legislative timetable. However, one of those pressures
is this sordid little Bill.
Why is it being introduced, and why now?
It is a concession to a major vested interest, that of the big five
accountancy houses.
Unfortunately, it is not matched by any balancing changes to afford
protection against any of the
powers that are being given through the Bill. The Bill includes no
protection for consumers of
accounts--they are pretty weak or impotent when it comes to dealing
with the big five or with
unreasonable audits. Stakeholders in companies have very few rights
to protect them from
negligent auditors, but we are rushing to strengthen the position of
those auditors. It is
unreasonable to proceed in that way.
If we are to make such a concession to the big accountancy houses--we
are giving them a special
privilege--let us also give some privileges to the consumers of accounts,
to stakeholders and to
those who suffer from negligent auditors. We should reverse the Caparo
judgment; we should
impose a duty of care on auditors; and we should stop auditors taking
on other business and thus
introducing dilution. Company law imposes liability. Directors are
responsible and liable if they
publish false and misleading accounts. However, if an auditor publishes
such accounts, there is no
responsibility. Nevertheless the Bill will give auditors increased
privileges.
The provisions that I have suggested could have been dealt with at the
same time as the Bill. There
is no reason for haste. That is why I have asked why the Bill is being
dealt with so quickly. The
Department of Trade and Industry company law review is continuing.
It may propose some of the
changes that I would like to see to redress the balance towards the
consumer. Why not make
these changes at the same time? That should be part of the deal.
If the big accountancy houses want to secure a special concession, in
return they should make
concessions to protect the consumer. However, they are not doing so,
and we are handing them a
concession on a plate. That is extremely unreasonable, especially for
small shareholders, along
with the stakeholders and employees who want to
23 May 2000 : Column 899
know what is going on in their company and want honest, objective and
effective audits. It is
unreasonable similarly for those who rely on accounts to make investments.
We are not giving
those people any concessions while the vested interest is getting all
that it wants. It seems that the
consumers of accounts were not consulted in that process.
What about Lord Paul and his experiences with the purchase of a Fidelity
radio? He found that if
he was to sue the auditors he had to buy the company and sue the directors,
who then had to sue
the auditors. That sort of experience gives me no faith in redress
against auditors, yet auditing is a
monopoly granted by the state to a particular class of people. Why
are we giving them a
concession when it is surely our job to regulate them?
The United Kingdom has public limited companies and 600,000 partnerships.
Now, we are
creating an intermediate breed, limited liability partnerships, which
might even be called a
corporate third way--although I do not think that such a development
was envisaged in Professor
Giddens's third way. This development could have severe consequences.
Such partnerships could
be established by fraudsters and by those who have been disqualified
as company directors. We
are diluting controls over those people, who could slough off their
responsibilities.
I know that new Labour is nice to business, and that it is right that
we should be nice to business.
All sections of the community have to get on. We are not in a class
war and we no longer feel
basic antagonism towards business. I also know that the accountancy
houses have been very nice
to Labour. When we were in opposition, they gave employment to people
who have subsequently
become Ministers. They have organised conferences for us, provided
advisers and advice, and
even attended our fund-raising dinners. They have done us good service.
I do not think that they
did that with any view of a return such as the Bill--they are averse
to such sordid motives--but they
are not averse to getting this legislation.
The legislation's origins are very murky indeed. I should like to detail
those origins because they
are not based solely on a process of consideration, as we have been
led to believe by the hon.
Member for Bognor Regis and Littlehampton (Mr. Gibb) and Ministers.
The fact is that the big
accountancy houses got into a panic--which was well detailed by the
hon. Gentleman--because, as
they have deep pockets, they felt vulnerable. They were afraid that
people would make huge
claims against auditors. They were afraid that people were thinking,
"If you cannot do anything
else, you can make a claim against the auditors." However, the panic
that possessed auditors bore
no relation to reality. It also took no account of their own involvement
in their own mistakes.
These days, the accountancy houses offer auditing services to the big
public limited companies
and essentially use those services as a market stall from which to
sell other accountancy services.
They get their foot in at the plcs by auditing them, and then use the
audit service as the basis for
selling other services to the company. That practice, however, dilutes
the auditing process.
Obviously, if they want to sell other services to the firm, they will
be complacent in auditing. Audit
problems in such situations are, therefore, of the auditors own making.
There may be audit problems and dodgy companies, but who made the auditors
take on those
companies as clients? Who made them take on Maxwell? What force
23 May 2000 : Column 900
was used to make auditors audit the Maxwell accounts or the Bank of
Credit and Commerce
International accounts? Auditors do not need to take on the accounts
of dodgy companies. They
should, therefore, face the consequences of dealing with such companies.
The accountancy
houses are in that position because of their own greed and their own
desire to maximise both fee
income and the sale of other services to audit clients.
The hon. Member for Bognor Regis and Littlehampton tried to hype up
the houses' panic and
alarm, but all the examples that he gave were from America. He could
not produce any evidence
of huge claims. The Select Committee on Trade and Industry also commented
on the lack of
evidence. Even the figures that have been mentioned are suspect, because
they are the claim
figures, not the settlement figures--which have not only been kept
very quiet, but are very small
indeed.
The hon. Gentleman also took no account of the fact that those who sue
auditors usually come
from other parts of the same big five accountancy house. Usually, the
insolvency arm of an
accountancy house sues to reclaim money from the audit arm at the same
or another big five
accountancy house. It is the worst type of incestuous suing. The terror
that auditors have
expressed is terror of themselves and of other parts of their own firm.
Mr. Gibb: Does not the small number of settlements and claims to which
the hon. Gentleman
referred rather contradict his lifetime's work in condemning audit
firms' ability to do their job well?
Mr. Mitchell: I do not condemn the ability of audit firms to do their
job well, but they are
influenced by a desire to sell other services, which might make them
more complacent than they
would otherwise be. Business needs good, honourable auditors of integrity
who provide a true
and fair account of the affairs of the company. I do not want any constraint
on that. If auditors do
not do that, they should suffer the consequences. The Bill does not
provide for that. We are
protecting them from suffering the consequences by allowing them to
escape the liability. We are
not giving them any discipline or sanction to force them to provide
that service.
Dr. Howells: I made it clear in my speech that limited liability partnerships
are subject to all the
same restrictions and controls as companies on fraudulent dealing or
any other form of
misdemeanour. I do not understand why my hon. Friend thinks that they
are suddenly above the
law.
Mr. Mitchell: I do not think that they are above the law, but no protection
has been offered to the
consumer. Admittedly, partnerships as they exist do not provide such
protection, but we need a
sanction against bad audits, fraudulent audits or misguided audits,
which at present we do not
have. The Bill will limit the liability of partners who might have
been responsible for such audits.
My figures suggest that only 2.7 per cent. of the total fee income
of the big five goes on
liability-related expenditure. Their huge terror about the grab at
their deep pockets is over 2.7 per
cent. of their fee income. It is difficult to get verifiable information
about that.
The accountancy firms tried to panic the Conservative Government, who
referred the issue to the
Law Commission. On the ground that proportionate liability
23 May 2000 : Column 901
did not fit in, the Law Commission said no go--it might have said it
in Latin, but it said that the
firms could not have that special concession.
The big audit firms then began another devious manoeuvre. They were
so anxious to secure
limited liability that they went to the Jersey legislature and tried
to buy legislation on their own
terms. It was drawn up by Slaughter and May and financed by what was
then Price Waterhouse
and by Ernst and Young at a cost of £1 million. The Jersey law
draftsmen found the legislation
very unsatisfactory, but it gave the big audit firms all that they
wanted. One of the senior partners
of Price Waterhouse said that they were promised that it would be nodded
through.
Unfortunately, the legislation that the firms wanted was not drawn up
properly and the Jersey
legislative draftsmen raised doubts. Attempts to rush it through caused
protests and the expulsion
of Senator Syvaret. It was delayed and the firms did not get the fast-track
procedure that they
wanted. When they got the legislation, they were warned by the Inland
Revenue that there would
be tax consequences if they set themselves up as limited liability
partnerships in Jersey--so, after
all that effort buying legislation in Jersey, no firm went there. They
were using the process as a
means of pressuring the Conservative Government. The hon. Member for
Bognor Regis and
Littlehampton has told us how proud he is of his accountant friends.
Some of my best friends are
accountants. A fear was created in the Conservative Government that
all those black-coated
accountants would don their black suits and trot off to Jersey to work
in the sun.
That threat produced action. The Conservative Government began to draw
up the legislation, we
have continued with that. They did so under pressure from the big five
and with a departmental
civil service that works in what I would call close collusion--but
let us say cahoots or a
relationship--with the big accountancy houses. They are anxious not
to offend them and are keen
to do what they want, as they did in this case.
I pay tribute to my hon. Friend the Minister for his willingness to
listen to the criticisms. The same
goes for his predecessor. Changes were made--for example, we warned
that if the concession was
given just to accountants, other professional groups would have a rights
case against the
Government that they should be able to set up limited liability partnerships,
so the original
intention had to be widened.
However, the pressure was too strong and the Bill is the result. I still
do not understand why it is
necessary. I sat on the Committee that considered the Companies Bill
in 1989--it was my last great
effort as a Front-Bench Labour spokesperson. I was fired just before
the Committee began its
proceedings, but I still took a close interest in it. That legislation
gave the accountancy houses the
right to set themselves up as plcs if they wanted. They had been pressing
for that, claiming that the
fate of the accountancy profession depended on being given plc status.
We gave them it, but only
one accountancy firm took it up, converting its audit arm into a plc.
That shows how they
panicked. That alternative is still available. Why do they not want
to be plcs? Why do they want
special limited liability partnership status?
23 May 2000 : Column 902
In 1991, the Institute of Chartered Accountants in England and Wales
said
the obligation . . . to publish their accounts is perceived as a considerable drawback.
In other words, the firms want to keep their business to themselves.
They do not want the partners
to have to reveal their income. They do not want to reveal anything
beyond the firm's total fee
income. That is why they did not want to take up the offer of plc status.
We are giving those firms what they wanted. I am not sure of the tax
position. As partnerships,
they have advantages over plcs. The Bill does not create a new tax
regime for llps. The Bill says
that the tax effects are neutral. I am not sure. I hope that my hon.
Friend will deal with that. Large
numbers of plcs might see the benefits and convert themselves into
llps. What is to stop them?
There could be a mass exodus, not from partnerships to limited liability
partnerships, but from
plcs to llps. Do the Government anticipate that? Has there been an
estimate of the possible scale
of that? What are the restrictions?
Such a move would minimise corporation tax obligations. Indeed, the
firms would escape the
corporation tax regime and move on to schedule case 1 and 2. That requires
them to be taxed on
a cash basis, not an accrual basis. They can stagger their payments
over a far longer period than
plcs can. That is the advantage. Any account can be shifted from one
year to another.
Expenditure on entertainment--or whatever--for plcs has to be wholly,
exclusively and necessarily
required. That is three obligations. For partnerships, the word "necessarily"
is dropped. That is a
much laxer tax regime on entertainment spending. Companies pay corporation
tax nine months
after the end of the year; llp partners have up to 21 months to pay
their tax. That gives much more
scope and must offer tax savings. As legal entities, plcs have a liability
to pay tax and llps do not.
The partners, not the organisation, are liable. The organisation can
have no assets and be only a
shell.
It is quite possible that there will be a loss of tax. We estimate that
the shift from partnerships to
limited liability partnerships will result in a tax loss of about £200
million a year. I can think of a lot
better uses for £200 million, if our estimate is correct, than
giving it to accountants, such as
spending it on social purposes.
Dr. Howells: Will my hon. Friend tell me to whom he is referring when
he says that "we" estimate
that the measure will mean £200 million a year less in tax for
the Inland Revenue?
Mr. Mitchell: I am referring to my associated body of accountants. That
sounds like a massive
Oxford college. Two accountants, another Member of Parliament and I
have worked this out on
the basis of the existing liability. The figures are perfectly credible.
I am not a tax expert but the
accountants are, and that is their assessment.
The limited liability partnership in Jersey was pretty weak, but it
required the llps to post a bond of
5 million quid if they were going to operate. There was that to fall
back on. I see no similar
safeguard in this Bill, which leaves the way open for people to fiddle.
23 May 2000 : Column 903
If I laid a legal claim against a limited liability partnership, it
would take years to resolve. The
Maxwell case took nearly a decade. As for the Bank of Credit and Commerce
International case--
Dr. Howells: It is still running.
Mr. Mitchell: My hon. Friend is quite right. Let us suppose that my
claim against the limited
liability partnership is for £50 million. However, the partnership
has no assets--it does not exist.
There is nothing that can be seized or given to me when I win my case.
What is there to stop the
partners siphoning off the dosh over the years--the case will take
several years to reach the
courts--and turning the llp into a shell company with no brass at all?
The Bill allows for the recouping of payments for the previous two years.
That is too short a
period, considering that law cases go on for years. All credit to the
Government for providing for
a two-year period, but why not make it five? Otherwise, anyone winning
litigation against a limited
liability partnership could end up with nothing because there is nothing
to be had. The money
could have been siphoned off by the partners, whose liability has been
limited.
We are all in favour of greater openness from companies, plcs, business
in general and the
Government. We all want to see disclosure. Some--not enough--is provided
for by law in relation
to plcs but not for limited liability partnerships, which will operate
in a fashion akin to plcs. How
much the partners are paid should be public knowledge. We need to know
what their interest is
and what their incomes are. Surely there is nothing to hide. One of
the partners in an accountancy
firm declared in the House of Lords that he had nothing to hide. He
was quite happy for his
income to be published. We need to extend the obligation to publish.
Indeed, there is much less
of an obligation on llps to publish than there is on plcs.
I hope that there will be new legislation on companies soon. When we
use it to extend the
obligations on companies to publish in their accounts factors such
as low pay or their
environmental record, will the same proposals extend to limited liability
partnerships? Why are we
creating a third category of corporate entity to which the obligations
imposed on plcs do not
apply? There is not enough information.
My final point is about regulation. Companies are regulated by the market,
competition, the
takeover panel and the Competition Commission. There is regulation
of plcs, but who will regulate
the llps? In accountancy, regulation is provided by professional bodies
such as the Institute of
Chartered Accountants and the Association of Chartered Certified Accountants.
They are small
compared with the huge might of the big five. The big five provide
most of the staff when it
comes to regulation--[Interruption.] It is good to know that my speech
is exciting such interest. I
am delighted that so many supporters of restricting llp status are
gathering, muttering, "My
heavens, he's right. This is true--we must take action."
There is no effective regulation. We do not have the sort of independent
regulation that the
Securities and Exchange Commission provides in the United States. It
is reasonable for llps to
have a proper framework of regulation.
23 May 2000 : Column 904
Those are my worries about the Bill. I know that my hon. Friend has
listened to our criticisms and
I am grateful to him. I hope to make more points in Committee. They
have to be taken into
account, because the Bill gives privileges to a very wealthy and powerful
body, and in particular
the big five accountancy institutions. We are disturbing the existing
structure of corporate
governance and partnership governance to do that, without giving any
concessions to the
consumers of accounts. I question whether, at this stage, we should
be doing that in this way.
6.7 pm
Mr. John Burnett (Torridge and West Devon): I should disclose at the
outset that I am a
solicitor, although I do not practise as such at the moment.
The Bill creates an entirely new and separate business entity which
will be a legal person itself,
similar to a limited company, called a limited liability partnership.
It is open to any business to
become an llp, provided that more than one individual or company is
conducting the business. I
shall lead on to the position of overseas partners, corporate partners
and other matters. In an
llp--unlike like a partnership--the liability of members will be limited.
However, each member will
owe a duty of care to his or her clients or customers in tort. In the
event that an individual member
is negligent, that member will be liable to the full extent of his
or her own personal assets.
Other members--innocent members, for want of a better expression--will
have no such personal
liability. Claims, however, can be made against the llp to the full
extent of its, rather than its
members', assets.
Mr. Mitchell: The partnership is selling itself on its reputation and
its work as a partnership, as a
team of people. It might be 600-strong. It is the collective body and
it is its reputation that is being
sold. Why should not the other partners, whom the hon. Member for Torridge
and West Devon
(Mr. Burnett) described as innocent, have a liability too?
Mr. Burnett: Because a limited liability partnership is a new entity
and reflects the facts of life
today. Joint and several liability is very unfair in certain circumstances.
The Bill requires the initials llp or the words "limited liability partnership"
to follow the name of the
business. That will advertise its status. The llp will be obliged to
be registered at Companies
House, along with a list of its members, and records must be kept up
to date. I shall come back to
that point later in my speech, although I understand that there will
be a further tier of creditor
protection in the requirement for financial disclosure similar to that
required in respect of limited
companies. I believe that the Government will in due course publish
regulations to deal with
insolvency and the winding up of llps, and to deter avoidance of liability
by members, which
would jeopardise the position of creditors. I believe that the Government
intend to apply to llps
the same offences that apply to companies under the Companies and Insolvency
Acts. I shall refer
later to tax treatment of llps.
There has been much pressure on the Government from large, international
legal and accounting
firms for the introduction of this new business entity. I understand
the reasons for that. One must
question whether it is fair for a partner in London to be liable for
all his or her assets
23 May 2000 : Column 905
as a result of the negligence of a partner in some far-off country whom
he or she has probably
never met--indeed, given the size of some firms, some UK partners have
probably not met some
others.
The Bill requires the most careful scrutiny in order to protect the
public and the position of
creditors of llps. I shall concentrate on the pool of cash and assets
available to creditors and the
general provisions for protection. The Minister will be aware that
if llps make rapid or premature
distributions to members, they can run on a deficit basis to ensure
that there will be few or no
assets to which creditors may have recourse. Professional firms, such
as firms of accountants or
solicitors, will have professional rules that impose obligations to
have what one hopes will be
adequate indemnity insurance cover, but the public should realise that
that covers clients, not other
creditors. It does not cover employees, except in so far as they are
clients of the firm.
The position of creditors could be somewhat shaky under the arrangements.
I emphasise the need
for full and adequate disclosure at Companies House of the assets and
liabilities of the llp. I
should welcome the Minister's comments on vicarious liability. In large
professional firms, many
partners--members, as they will be called in llps--do little fee-earning
work. A great deal of such
work is done by employees, who will not be members. Is that a means
by which members may
shield their personal assets from liability? In other words, do direct
contact and direct instruction
to employees mean that there will be no recourse to any member's private
assets? Members,
particularly of large firms, can perfectly legitimately argue that
their involvement in a practice or
firm is managerial only. In cases of direct instruction to employees,
what will be the member's
personal position, and will employees be personally liable?
I appreciate that the llp will be liable in such cases, but there are
compelling reasons for concern
that some llps may legitimately run on a deficit basis, to the detriment
of clients, customers or
creditors. My advice to professional clients in practice was always
to avoid being a salaried
partner: there are none of the advantages, and all the liabilities.
We all know what partnership liability is about. I was an equity partner
in a law firm for many
years. Such liability is joint and several, and it embraces all the
assets of all equity partners and all
salaried partners of the firm. That is certainly the case so as far
as outside creditors are
concerned. A client of a major firm who is successful in an action
against that firm may therefore
have recourse to all the assets of all the partners, whether or not
they are equity or salaried
partners.
I should be grateful if the Minister would say whether consideration
has been given to the
consequences in the case of an individual who became a salaried member
of an llp. Presumably,
that individual would have no share in the profits of the firm and
no say in its management. If the
salaried member does the work for the client, will he or she be responsible
to the extent of all his
or her assets? If so, presumably the same may be said for employees.
Those points emphasise the
importance of creditor, client and customer protection.
The Bill envisages disclosure provisions similar to those applying to
limited companies. Will the
Minister elaborate on that form of disclosure? Will full accounts
23 May 2000 : Column 906
have to be rendered annually of the financial affairs of the llp, including
details of all shares of
profits and salaries, especially those of the higher-earning members
or the higher-earning
employees? Will details of assets of the llp have to be included? I
hope that details of all
mortgages and charges, and of the amounts thereof, will be included
in the information available to
the public.
Dr. Howells: I may be able to help the hon. Gentleman. Only those firms
in which the amount of
profit before member remuneration and profit share exceeds £200,000
will have to state the
amount of profit attributable to the member with the largest share.
Mr. Burnett: I am grateful to the Minister, but he mentions the member
with the largest share
when he surely means all the members. I shall leave it to the hon.
Gentleman to return to that when
he winds up the debate.
Presumably, on disclosure, all changes in membership of the firm will
have to be notified to
Companies House within a short period. I realise that, for tax purposes,
all firms are going on to a
full earnings basis. Nevertheless, the valuations for Inland Revenue
purposes of work in progress
or good will are pretty fluid and do not reflect the true value of
such items. It may be that
disclosure should be made of those items to show them as a true and
fair valuation. That would
make further assets of the firm or llp more apparent.
From a tax and administrative point of view, it will be easier to make
distributions or allocations to
members of an llp in their personal capacities than it is to make them
to shareholders or directors
of companies. Will there be rules on a sufficiency of distributable
assets before distribution can be
made to members? Will the company law offence of trading while insolvent
be imported into the
affairs of an llp? The last thing that the House will want to create
is a business entity that opens up
easy opportunities for fleecing the public.
It will be possible to start an llp by oral agreement, and I join the
hon. Member for Bognor Regis
and Littlehampton (Mr. Gibb) in saying that it is a shame that the
provisions of the Partnership Act
1890--an excellent piece of legislation--will not apply. Heaven knows
what chaos there will be in
the circumstances in which an oral agreement forms the basis of an
llp. The courts will be asked
time and again to interpret the intentions of members where they have
not been recorded in
writing. Sometimes, I admit, written records may be even more misleading,
but I hope that the
Government will think again. The matter has been raised in the other
place, and those of us who
have worked for a long time with the 1890 Act know that it is excellent.
Significant tranches of the Bill have yet to see the light of day, and
will be introduced by
regulation. I noted what the Minister said about that, but I hope that
important regulations will be
subject to full scrutiny by both Houses. I have already mentioned legislation
on insolvency and
administration, but other regulations are to come. I understand that
discussions are still proceeding
with the Minister's Department in relation to clause 7(2) and the position
of former members of an
llp.
The main question is whether the DTI will relent on that clause and
allow members to agree
alternative arrangements to the fixed statutory arrangements. I remind
the House of my earlier
comments as to the flexibility of the 1890 Act.
23 May 2000 : Column 907
Members of the public and, indeed, professional individuals would be
most unwise to enter an llp
without full and comprehensive advice from an expert. Presumably, the
DTI has considered the
foreign law implications of setting up an llp. At first sight, the
matter would seem reasonably
straightforward--individuals from any jurisdiction can form a UK-based
llp. There will obviously
be tax considerations, but such an arrangement would not seem inimical
to the law of any
overseas country, although I should welcome the Minister's comments
on that point. Similarly, it
would seem to be possible for a person to be a member of an llp that
was a limited company that
could be registered in any jurisdiction in the world.
I want to address the impact of revenue law on limited liability partnerships.
The Minister has
confirmed my understanding that the setting up of an llp is intended
to be genuinely tax
neutral--for all taxes, including stamp duty. Ministers have made statements
to that effect, although
they are not wholly correct. The matter depends on the medium in which
the trade or profession is
carried on immediately before the entity becomes an llp; if two individuals,
who are conducting
separate trades, decide to combine to form an llp or if an existing
partnership or partnerships do
so, the arrangement will probably be tax neutral.
I hope that the converse will apply--that, if an llp decides to dissolve
itself into a series of
businesses carried on by sole proprietors, a series of partnerships
or a partnership, that process,
too, will be tax neutral. As I pointed out, since the Finance Act 1998,
transitional provisions have
brought all firms on to a full earnings basis, rather than their staying
on a cash basis. Presumably,
such arrangements could be carried over one way or another--I should
welcome the Minister's
confirmation of that point.
As I pointed out in interventions on the Minister, a problem will arise
when shareholders of a
limited company want to form an llp. For about 20 years, Ministers
and Inland Revenue officials
have been pressed to ease the tax problems--especially those on capital
gains--associated with
disincorporation. Will the Minister hold consultations with his Treasury
colleagues, dust off the
disincorporation material and re-examine it? That would add to the
flexibility of the UK economy,
especially with the formation of this new business entity. There should
be few problems in going
from sole trader, partnership or llp into a limited company, but to
go the other way would pose
severe problems.
Subject to the caveats I have entered, the Bill should put the UK on
an equal footing with many of
our competitors--most notably the United States and areas of continental
Europe where similar
provisions already apply. Nevertheless, it is vital to secure proper
protection for customers,
clients and creditors. The Bill should contain nothing that would relieve
individuals of personal
responsibility for their actions and for the full extent of their assets.
Finally, a fundamental principle of the Bill should be that the price
for the limitation of liability is
full disclosure of the financial affairs of a business and that such
information should be readily
available to the public.
23 May 2000 : Column 908
6.24 pm
Mr. Stephen O'Brien (Eddisbury): I apologise to the House for arriving
slightly late. For the
first time, I discovered the perils of having an office at 7 Millbank--when
I read the annunciator
screen and had to run to the Chamber.
I declare an interest as recorded in the Register of Members' Interests.
Since last month, I have
been parliamentary adviser to the Institute of Chartered Secretaries
and Administrators--I have
been a member of the institute since 1988 and a fellow since 1997.
Before I became a Member,
among various roles in management and manufacturing industry, I was
assistant company
secretary from 1988, and group company secretary from 1991 to 1998,
of Redland plc, then a
multinational UK FTSE 100 building materials company. Furthermore,
between 1983 and 1988, I
practised as a solicitor in a City of London firm. Although I remain
on the roll of solicitors, I have
no declarable interest, as I am non-practising. That qualification
enabled me to hold the post of
company secretary of a public limited company under the Companies Acts.
I welcome the Bill and congratulate my hon. Friend the Member for Bognor
Regis and
Littlehampton (Mr. Gibb) on a positive and supportive speech and on
his identification of issues
that remain to be addressed by the Government. That will ensure that
the House improves the Bill
so that it is of the quality that our professional and business community
has a right to expect from
us.
I pay tribute to the calibre of debate on the Bill in another place.
I studied the proceedings in detail
in Hansard. Their lordships dealt responsibly and forensically with
a range of issues. I am happy
to offer my support from the Opposition Benches. As has been mentioned,
the previous
Conservative Government proposed such a measure.
From my business experience in this country and abroad, I see the Bill
as an important step in
acknowledging the reality of the professional and commercial world--in
the context of today's
multinational companies and partnerships. The Bill is necessary not
only to retain competitiveness,
but to maintain and increase confidence in the corporate and legal
structures for professional and
commercial enterprises in the UK--whether large, medium or small--so
that they can continue to
take on all comers.
In response to the hon. Member for Great Grimsby (Mr. Mitchell), plc
status is not the answer.
Llp status best enables the retention and enhancement of the special
culture of partnerships which
is not a hallmark of plcs. It is important to understand the essential
business ingredient that such a
culture represents.
Mr. Mitchell: In that case, there will be a rush to give us maximum
disclosure--as would be
appropriate for a plc. If llps want to retain a special culture, the
Government are allowing them to
do so. There would thus be no objection to further disclosure on, for
example, remuneration or
internal company accounts--all the information that plcs have to provide.
Mr. O'Brien: I know that the hon. Gentleman has a long track record
in favour of that argument.
However, it is based on the false premise that disclosure goes hand
in hand with the genuine
interest of those who need the
23 May 2000 : Column 909
information. The whole point about partnerships and about llps is that
they are a collection of
members--they will hold that information among themselves. A plc has
many shareholders who
have a right to the information. The analogy is not a proper one.
Mr. Burnett: Does the hon. Gentleman agree that it is in the interests
of the public, creditors and
clients that, when they deal with a firm with limited liability--because
there will be some limited
liability--full disclosure should be made?
Mr. O'Brien: Of course. The hon. Gentleman makes a valid point. However,
that matter is
covered by general rules, regulations and laws that will apply as well
as the specific provisions of
the Bill.
I shall focus my remarks on one aspect of the Bill, for the very good
reason that all the other
points have been fully covered in our debate and in the debate in another
place, and I do not want
to take up the time of the House by rehearsing those arguments. First,
however, I offer a mild,
general warning. As has been said, the drive for the Bill came mainly
from firms or partnerships of
accountants, solicitors and other professional services firms--especially
larger, often international,
firms. This country can rightly boast of our track record of global,
competitive success in those
fields. However, in our increasingly litigious and insurance-focused
society, the pressures and
inappropriateness of partners being responsible--down to the shirt
on their backs--for liabilities,
acts and omissions of other parties are neither competitive nor sensible.
It is increasingly
unrealistic and unreasonable for partners to have sufficient knowledge
to be held personally
responsible. I understand that and thus support the Bill.
However, I draw the House's attention to experience in the United States,
where llps have existed
for some time. The equivalent corporate structures apply under Californian
legislation, as well as
under Texas and Delaware law--a point not lost on the hon. Member for
Great Grimsby. In large
part, they are similar to the structure promulgated under the Bill.
I have personal knowledge and experience of how rapidly the llp structure
came to be widely used
for joint ventures such as those between manufacturing companies. There
were many advantages,
especially when non-US international companies came together in a joint
enterprise for no
premium. The structure offered relatively favourable tax advantages,
as compared with the
traditional company.
The Government should take advice on the matter from their specialist
advisers, to ensure that the
Bill has been reviewed in the light of the American experience. There
must be no unexpected
consequences flowing from the Bill if the llp structure is applied
beyond the professional
partnerships that the Government appear to have had in mind throughout
their approach to its
drafting and introduction.
I shall restrict my remaining remarks to matters of which I have experience
and know a little about.
Clause 8
23 May 2000 : Column 910
deals with designated members. On Second Reading in another place, my
noble Friend Baroness
Buscombe questioned
the provisions for service as a designated member
of the partnership given, we believe, that the provisions, as
drafted, could be open to abuse; for example, as
we understand it, an llp could assume as partners one or more
offshore companies and register them as designated
members, thus making it difficult for the regulatory authorities
to ensure compliance or impose penalties.
I do not agree with my noble Friend's suggestion that
the concept of designated members be removed from
the Bill, making all the partners equally responsible for the
llp's conduct, including compliance with the registers.--[Official
Report, House of Lords, 9 December 1999; Vol.
607, c. 1424.]
Lord McIntosh of Haringey replied that
the noble Baroness was afraid of the role of the
designated member. That is very specific and similar to the role of
the company secretary. It includes a number of the
powers placed on the company secretary under the 1985 Act
such as the signing and filing of the annual return
. . . It is desirable to keep the concept of a designated member for
those purposes so that the authorities know who
to approach.--[Official Report, House of Lords, 9 December
199; Vol. 607, c. 1443.]
He added that it was equivalent to the provisions in the Companies Act 1985.
I understand my noble Friend's concern. I agree with Lord McIntosh's
response in terms of the
desirability of keeping the requirement, but the matter was developed
in Committee in another
place, when my noble Friend Baroness Buscombe tabled an amendment to
clarify the role of the
designated member. She said that the Bill did not appear to explain
what a designated member
was. Lord McIntosh answered that he understood the difficulty with
clause 8:
It sets up all the conditions under which designated
members are to be appointed and changed and how notification
is to be given, but it does not state what they
will do. I apologise for that . . . but it would be wrong to limit his
role
in that way.--[Official Report, House of Lords,
24 January 1999; Vol. 608, c. 1387-88.]
I believe that that problem has been overcome. The House must ensure
that all the terms of good
corporate governance that have been learned and applied over the past
15 years are imported into
the Bill. One solution, given the broad scale of business most likely
to take advantage of llp status,
would be to look at the role of secretary for limited companies, as
defined under the Companies
Acts, and to consider whether those provisions could be imported helpfully
and efficiently into the
Bill.
The role of the company secretary is under consideration as part of
the Department of Trade and
Industry's company law review, and is a matter for consultation. I
acknowledge that parallel
thinking is going on about the matter.
I suggest that a designated secretary need not be a member of an llp,
just as the Cadbury reforms
of corporate governance mean that a company secretary need not be a
director of a company.
That designated secretary could be appointed--and removed--by all the
members.
I hope that the Minister will consider providing that every llp and
its members should have
recourse to the advice and support of a named, UK-resident llp secretary.
That might meet the
concerns expressed by Baroness Buscombe in another place. That llp
secretary should be
suitably qualified to assist members in safeguarding the llp's rights,
advancing its interests and
meeting its obligations. The secretary should be able to provide the
23 May 2000 : Column 911
necessary advice and guidance to members about their obligations and
responsibilities under
relevant laws and regulations.
The company secretary is often said to act as the conscience of a limited
liability company. Under
current company law, company secretaries do not have to be chartered
secretaries or members of
the Institute of Chartered Secretaries and Administrators. The secretary
of a small company can
be any person. The secretary of a plc can be a qualified lawyer or
accountant, as well as a
chartered secretary, so I am not making an exclusive or special plea
for chartered secretaries--and
in any case the rules of the House would prevent me from doing so,
given the interests that I listed
at the beginning of my remarks.
I hope that the Government will consider the proposal that an llp must
have a secretary. That
would help meet the concerns expressed by the hon. Member for Great
Grimsby. More
important, it would enable the members of the llp to give proper regard
to the interests of the
company as a whole. They would be able to monitor the internal activities
of the llp, safeguard the
interests of all members and ensure that the interests of employees,
creditors and other
stakeholders were properly taken into account.
Llp members, in addition, could be confident that the members were being
properly informed,
advised and supported, individually and collectively. They would be
able to avoid some of the
potential for factionalism that can develop in such firms, and be satisfied
that there was someone
available to take responsibility for internal disclosure in the llp.
The proposal could also ensure that the llp's decisions were properly
made, recorded and
implemented throughout the organisation, and that the decisions of
the llp executive were properly
interpreted and disseminated. Above all, it would ensure proper compliance
with all statutory
requirements.
I have listed my caveat, request and recommendation with regard to the
Bill, but I am very happy
to support what is a very welcome measure.
6.37 pm
Dr. Howells: With the leave of the House, I shall respond to the debate.
We have had a good and valuable debate. I am pleased that the Bill has
aroused so much interest,
after an inauspicious start when the hon. Member for Torridge and West
Devon (Mr. Burnett)
seemed to be on his way out of the Chamber. I was glad that he did
a U-turn and came back in.
The debates in Committee should be interesting, and I shall try to
deal with some of the many
questions that have been raised this evening.
First, however, I want to thank the hon. Member for Bognor Regis and
Littlehampton (Mr. Gibb).
His criticisms were constructive and he made some kind remarks about
the way in which the
Government have taken the Bill forward.
The hon. Member for Bognor Regis and Littlehampton asked about the imposition
of fines and
the power to imprison people for offences. The treatment applied to
llps in that regard will be the
same as that which applies to companies. The offences in the Companies
Act 1985 were agreed to
be appropriate for corporate entities such as companies. The Government
intend only to apply the
same offences and penalties to llps.
23 May 2000 : Column 912
There is no reason why a member of an llp should suffer a lesser penalty
than the director of a
company for the same offence. I hope that that answer goes some way
to satisfying some of the
criticisms raised by my hon. Friend the Member for Great Grimsby (Mr.
Mitchell), to which I shall
turn in more detail in a moment.
The hon. Member for Bognor Regis and Littlehampton also said that the
Law Society wanted the
Administration of Justice Act 1960 to be amended to enable solicitors
to become llps.
Departmental officials have been discussing the matter with the Law
Society and the Lord
Chancellor's Department, but the hon. Gentleman will know that the
legislation governing solicitors
is very complex. Further consideration is being given to the necessary
changes and to how they
could be given legislative effect.
The hon. Member for Bognor Regis and Littlehampton asked about default
provisions, which will
be set out in regulation, as clause 5(1)(b) makes clear. I see no strong
reason to put the regulations
on the face of the Bill. They will apply in default, where there is
no agreement, or where an
agreement is inadequate. It is not usual for default provisions to
appear in primary legislation.
My hon. Friend the Member for Great Grimsby made some vehement criticisms.
I very much
welcome his contribution which was infused with the crusading spirit
that he deployed on behalf
of the victims of a number of prominent and disgraceful scams in which,
I am afraid, accountancy
firms played a shoddy and collusive role. In a sense, he asked a question:
why should businesses
have to organise themselves as a company to gain limited liability,
provided that appropriate
safeguards are in place to protect clients and third parties? I wonder
what harm there is in that
choice if the safeguards are there.
Creation of limited liability partnerships will allow our businesses
to compete internationally with
those already organised as llps overseas. That is an important issue.
It is no good having
companies if they cannot compete with similar companies overseas. We
shall lose jobs, services
and expertise in the long run. That point must be made, as it is a
very important one for
businesses that operate globally.
Many firms wish to maintain a partnership ethos, with every member having
a stake in the business
and a role in management as well as operating in good faith towards
fellow members. It is difficult,
particularly for a large firm, to sustain such an ethos in a company
structure. Several hon.
Members have made that point and it is important.
My hon. Friend asked with great energy whether the Bill was not just
a sop to the accountancy
profession. Indeed, much sniping has suggested that the Bill is a concession
to the profession.
That is not the case. As I have said, there is no reason why businesses
should have to organise
themselves as a company to obtain limited liability, provided that
appropriate safeguards are in
place to protect clients and third parties. The Bill, along with the
intended regulations, will achieve
an appropriate level of protection.
In addition, the llp will not be restricted to accountants nor even
to professionals. We took the
decision some time ago that the llp will be available to any firm of
two or more people. We expect
that it will prove attractive to start-up businesses that may or may
not be comprised of
professionals. Although the internal organisation of the llp
23 May 2000 : Column 913
will be for its members to agree--that agreement will remain confidential
to them--the intention is to
make regulations that will apply appropriately modified provisions
from company law. Clauses 14
and 15 provide powers to do that. That means that members and/or the
llp itself can be pursued,
for example, for wrongful or fraudulent trading--a point that was at
the heart of my hon. Friend's
criticisms. The llp can also be investigated and members can be disqualified
from being a member
of an llp and from being a director of a company. Specific provision
will be made to ensure that
members cannot siphon off funds in the event of insolvency. Regulations
will also require llps to
file financial information equivalent to that required of a company.
My hon. Friend's underlying criticism related to the regulation of professionals.
I want to be clear;
it is not the Bill's function to regulate professional activity. Where
regulation for a particular
activity is thought necessary, the activity--not the entity through
which it operates--will be
regulated. Regulation will be achieved through a mixture of statutory
and non-statutory regulation.
That means that it does not matter whether a professional chooses to
operate as a partnership, a
company, a sole trader or, in future, as an llp. If the activity is
regulated, it will continue to be
regulated regardless of what status the professional chooses for his
business.
That does not mean that I am unsympathetic to my hon. Friend's arguments
about the regulation
of professions. I am glad that the Office of Fair Trading has decided,
at long last, to take a good
look at the way in which some professions operate. However, that is
not what the Bill is about.
My hon. Friend raised the question of company law review and auditor
liability. The consultation
document published by the company law review steering group in March
invited comments on a
number of issues relating to the audit and the auditor. In particular,
the document expressed the
view that there was a need both to extend the range of the auditor's
duty of care and to ensure that
that extension is not abused. It was suggested that that should be
done by introducing effective
constraints on the circumstances in which claims can be made. I see
no need at this time to take
any more of the House's time on the issue of auditor liability, but
it is under discussion by the
company law review steering group, which has yet to reach any conclusions.
My hon. Friend and the hon. Member for Torridge and West Devon asked
about the disclosure of
members' earnings. Regulations will require that the earnings of the
highest paid members will have
to be disclosed, and total earnings will also be disclosed, as will
the total number of members. It
will therefore be possible for someone to work out the average earnings.
My hon. Friend asked whether it would not be wise to require some form
of capital maintenance
or a guarantee from members to ensure financial provision in the event
of difficulties. We have
considered carefully the concerns expressed about the lack of minimum
capital requirements,
which would be similar to those made of companies, or the lack of some
kind of financial
guarantee from members in the event of failure. In practice, private
companies are able to hold
capital worth as little as £1 and public companies are required
to hold at least £50,000. However,
as my hon. Friend pointed out, those sums seem
23 May 2000 : Column 914
irrelevant when creditors may be owed tens of millions of pounds or,
as in the case of the Bank of
Credit and Commerce International, billions of pounds.
A minimum capital requirement does not necessarily translate into the
availability of funds in the
event of insolvency. Even so, some have argued that there is a public
interest in protecting less
well informed consumers--who do not expect to become a creditor when
purchasing goods or
services from an llp--to a greater degree than the level to which they
are protected when they deal
with partnerships or companies. However, as I am sure that my hon.
Friend will acknowledge, the
difficulty is devising a regime that, while allowing for a reasonable
level of funding to protect
creditors, is not so burdensome as to prevent firms from setting up
in business or to discourage
them from trading through difficulties.
The hon. Member for Torridge and West Devon asked about the overseas
members of
partnerships. Some firms--for example, a professional firm with branches
in the United
States--may have members who operate overseas. For a partnership, if
the partner in London is
negligent, the partner in America is jointly and severally liable to
the full extent of his assets. In an
llp, the American partner would not run such a risk even if it were
possible for a claim to be made
successfully against the London partner.
Mr. Burnett: Will the Minister give way?
Dr. Howells: I may give way in a moment, but I would like to move on.
The hon. Gentleman asked about accounting requirements. Traditionally,
in United Kingdom
legislation, the quid pro quo for limited liability is seen to be financial
disclosure. It is right that
those dealing with a business that has limited liability should be
able to discover basic information
about its financial status. I agree with him entirely on that. Our
intention is thus to require
equivalent financial disclosure as between an llp and a company. Using
the power in clause 15, it
is intended to make regulations applying to llps under the accounts
and audit provisions of the
Companies Act 1985, but with appropriate modifications. They will achieve
financial disclosure
equivalent to that required of a company.
The hon. Gentleman asked about the ability to have salaried partners in an llp.
Mr. Burnett: Salaried members.
Dr. Howells: Salaried members, I am sorry. Anyone who wishes to become
a member of an llp
must be registered as such at Companies House and clause 6 will make
that person an agent of the
llp. As such, the llp will be liable for his actions. If a client can
prove that a member owed him a
duty of care and was liable for it, the member would be liable.
Mr. Burnett: What about an employee?
Dr. Howells: The partner would be liable: the employee would not be liable.
I shall move on, as the hon. Gentleman asked many questions, some of
which I shall try to
answer. He asked about clause 7 and queried the need to reconsider
the
23 May 2000 : Column 915
position of a former member. The Law Society raised concerns about the
Bill's drafting and we
are considering whether we agree that there is a potential problem.
I assure the hon. Gentleman
that that is receiving due attention.
The hon. Gentleman and other hon. Members asked wide, but vital, questions
about accounting
requirements. As I said, in UK legislation, the quid pro quo for limited
liability has traditionally
been seen to be financial disclosure. The hon. Gentleman and my hon.
Friend the Member for
Great Grimsby asked whether accounting requirements on llps will be
different from what is
currently in place for companies. Broadly speaking, the answer is no.
The accounting
requirements on llps will be comparable to those for companies. The
detail to be provided in llps'
accounts will be comparable to that provided by companies, but the
information given will reflect
their different structure. For example, llps will not have share capital
and will not pay dividends.
It is intended that all llps will provide information in the notes to
the accounts about the aggregate
amounts withdrawn or applied on behalf of members during the financial
year. That, along with the
requirement to disclose the earnings of the highest-paid member in
cases in which profit exceeds
£200,000, will help creditors to make an informed decision about
whether it is in their interest to
trade with a particular llp.
I believe that the hon. Member for Eddisbury (Mr. O'Brien) asked whether
the Bill should clarify
the role of a designated member by including a specific definition
of a designated member; or at
least he reflected concerns that were voiced in another place about
the matter. We do not believe
that a definition would make the role of a designated member any clearer
than current provisions in
the Bill and regulations. We followed the format adopted in the Companies
Act, which imposes
duties and powers on an officer of the company. There is no single
definition of an officer's role
in that Act. As an llp would be a legal entity separate from a limited
company, it was felt that it
would be more appropriate to have a different title to avoid confusion.
Several powers placed on a company secretary under the Companies Act,
such as the signing of
the annual return, will be transferred to a designated member. However,
the designated member's
responsibilities, such as appointing auditors, will go beyond those
of a company secretary.
The hon. Gentleman asked about designated members and offshore members.
An llp must have
two designated members and a registered office in England, Wales or
Scotland. We do not
believe, therefore, that we need to prevent an offshore member being
a designated member.
Indeed, an officer of a company can be based offshore. If
23 May 2000 : Column 916
there is a breach, the llp can be pursued, regardless of whether the
designated member is based
overseas or in this country.
I hope that I have attempted to answer all the questions that were raised
and I am pleased to
commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time, and committed to a Standing Committee,
pursuant to
Standing Order No. 63 (Committal of Bills).
LIMITED LIABILITY PARTNERSHIPS BILL [LORDS] [WAYS AND MEANS]
Motion made, and Question put forthwith, pursuant to Standing Order
No. 52(1)(a) (Money
resolutions and ways and means resolutions in connection with Bills),
That, for the purposes of any Act resulting from
the Limited Liability Partnerships Bill [Lords], it is expedient to
authorise--
(a) the making of provision about the taxation of limited liability
partnerships and their members, and
(b) the imposition by regulations under the Act of fees payable into
the Consolidated Fund.--[Mr. Pope.]
Question agreed to.