Does company director privacy apply in licensing?

Section 243 of the Companies Act 2006 allows for a company director to nominate a “service address” to be named on the company books instead of his own personal address, generally for reasons of privacy or confidentiality.

The service address option, if used, typically means the company registered address (perhaps their solicitor’s office) or their own head office address. But licensing law requires applicants to declare the full home address, and other personal details, of company directors.

Which is the trump card?

The privacy afforded under s.243 only goes so far. It does not necessarily apply where the information is requested by prescribed “public authorities”. These are prescribed under the Companies (Discloure of Addresses) Regulations 2009 (SI 2009/214), which came into force on 1 October 2009. This instrument provides a comprehensive list of bodies treated as “public authorities” which includes the Gambling Commission, the Scottish Ministers, the SIA and many more. It also includes “a local authority within the meaning of s.54(2) of the Act” (that is the Companies Act). Section 54(2), in turn, describes a local authority in the Scottish context as “a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994″.

It seems that there is a subtle difference between providing the information at the time of application, or where it is requested further down the chain.

For civic licensing matters anyway, requesting the company director home address is a power the council enjoys*. It might be that one uses the service address at the time of application, but the council can in turn request the home addresses from Companies House. What about alcohol licensing or gambling applications? They are dealt with not by the local authority but by the Licensing Board, a separate beast from the council. Could one then also argue that an applicant need not provide company director home addresses and stick with a service address?

A licensing board is not a public authority under the 2006 Act so, at first blush,  it would seem that using a service address may be without rebuke. However, it is not that easy!

Included on the list of prescribed “public authorities” is “a police force”. Any licensing or gambling applications which go to the Licensing Board are also served upon the relevant Scottish police force – so even if indirectly, the home address may be requested by them, and it is the police who will be most interested in the home address in order to verify identity – and the presence or otherwise of relevant or foreign offences.

There is a practical dimension to consider. Does it benefit the applicant to simply provide the home address from the outset in order to short circuit the process? It may be that the application is time sensitive and it may be that something like a police report will appear all the faster if they have all the information at hand without resorting to following procedures to request the information be extracted from Companies House.

To fall back on a famous licensing mantra, “each case on its own merits!”

SJM

*Postscript:- the 1982 Act was actually amended by the Criminal Justice and Licensing (Scotland) Act 1982 in order to specifically request the “home address” of company directors – with no regard to the 2006 Act provisions on service addresses.

My thanks to my old boss Jack Cummins for taking the time to chew these issues over with me.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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