The Small Business, Enterprise and Employment Act 2015 (“SBEEA 2015”) is a key piece of legislation that will have a major impact on corporate clients and users of notarial services.
Notarisation of PSC Registers
As of 6th April 2016, all limited companies, LLPs and SEs are required to maintain a register of persons with significant control (known as the PSC Register). The Secretary of State is in the process of drawing up guidance to help companies understand what constitutes a person exercising “significant control”. However, it is generally expected that this will be someone holding more than 25% of the voting rights or share capital.
Given the increasing regulatory effort to encourage transparency in international transactions, it seems likely that notaries will be asked to notarise the PSC Register of a company to comply with anti-money laundering and KYC due diligence. There are a number of ways the PSC Register can be notarised:
- Certification by a director, secretary or other officer of the company that the contents of the register are correct and current – This person is then identified by the notary, their signature notarised and their authority to issue such a confirmation is verified by the notary.
- Inspection and certification directly by the notary – Since the PSC Register is publicly available for inspection, the notary can apply to the company to view it to enable him or her to produce a notarised copy of the PSC Register.
- Certification by the notary based on Companies House filings – In a similar way to the notarisation of other company documents, the notary can certify the copies of the documents that a company is obliged by law to deliver to the Registrar of Companies.
Changes to the Annual Return
We are frequently asked by clients to notarise a company’s annual return. However, s. 92 SBEEA 2015, which comes into force in June this year, envisages the replacement of the annual return with a confirmation statement. This will contain similar information to the annual return, but essentially it is a confirmation that no details have changed since the date of the last statement. From a notarial perspective, however, the notary will still be able to notarise the confirmation statement in the same way as previously for the annual return.
Election to Maintain Statutory Registers Online
One of the key changes brought about by SBEEA 2015 is the ability for companies to elect to keep their statutory registers (e.g. register of members, register of directors, register of charges) online at Companies House, rather than at their registered office. This will ease the burden for many companies, as there will no longer be a requirement to maintain two sets of registers with the same information! In terms of notarising an online register of members or directors, the process will also become easier – the notary will be able to download an extract directly from Companies House, which can then be certified and apostilled.
Removal of Corporate Directors
Although no commencement date has yet been specified, users of notarial services should be aware that s. 87 SBEEA 2015 will amend the Companies Act 2006 to the extent that only natural persons may be appointed as directors of limited companies. Given that many international companies use corporate directors as part of their group operating structure, details of which will be registered with different commercial registries around the world, it makes sense to speak to us now about notarisation requirements for updating these filings.