I move amendment No. 73:
In page 49, subsection (9), line 7, after "directors", where it secondly occurs, to insert ", but the making of a notification by a person under this section shall not, in itself, be proof that the person making the notification is a shadow director".
The aim of amendment No. 73 is to try to introduce some element of certainty into section 48 (9) which I feel needs clarification. The difficulty is that section 48 (9) of the Bill requires shadow directors to declare their interest in a company and section 53 (5) requires the company in turn to enter any information received on their register of directors' interests. However, any other provision of the Bill which applies to shadow directors generally involves prohibitions of one sort or another; for example, restrictions on loans to directors under Part III or actions which can be taken against such people, for example, fraudulent trading under section 116. They do not place duties on shadow directors as section 48 does. In the other cases I have mentioned, however, the prosecution or plaintiff would have to prove on the facts of the case that a person was a shadow director.
When we come to a duty being placed on a shadow director, however, as in section 48, what we are effectively doing is asking a person to come forward and say that he is a shadow director. That might be seen as inequitable in that to cover themselves many people might unnecessarily have to declare an interest just to be on the safe side. If people had to state that they were such shadow directors this might be seen as amounting to an admission by them that they were such directors for all the purposes of the Bill. What I am thinking of with amendment No. 73, therefore, is that a notification by a shadow director of an interest under section 48 may be made without prejudice to whether he is, in fact, such a director. In other words, it is not to be taken as an admission by the person concerned that he is such a director. I think it is worth-while introducing this kind of clarification to the section and I commend it to the committee accordingly.
