Small Business, Enterprise and Employment Act 2015

Shadow directors

89 Application of directors’ general duties to shadow directors

(1) In section 170 of the Companies Act 2006 (scope and nature of general duties of directors) for subsection (5) substitute—

“(5) The general duties apply to a shadow director of a company where and to the extent that they are capable of so applying.”

(2) The Secretary of State may by regulations make provision about the application of the general duties of directors to shadow directors.

(3) The regulations may, in particular, make provision—

(a) for prescribed general duties of directors to apply to shadow directors with such adaptations as may be prescribed;

(b) for prescribed general duties of directors not to apply to shadow directors.

(4) In this section—

• “director” and “shadow director” have the same meanings as in the Companies Act 2006;

• “general duties of directors” means the duties specified in sections 171 to 177 of that Act;

• “prescribed” means prescribed in regulations.

(5) Regulations under this section are subject to affirmative resolution procedure.

90 Shadow directors: definition

(1) In section 251 of the Insolvency Act 1986 (expressions used generally), in the definition of “shadow director”, for the words from “(but” to the end substitute “, but so that a person is not deemed a shadow director by reason only that the directors act—

(a) on advice given by that person in a professional capacity;

(b) in accordance with instructions, a direction, guidance or advice given by that person in the exercise of a function conferred by or under an enactment (within the meaning given by section 1293 of the Companies Act 2006);

(c) in accordance with guidance or advice given by that person in that person’s capacity as a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)”.

(2) In section 22(5) of the Company Directors Disqualification Act 1986 (definition of “shadow director”) for the words from “(but” to the end substitute “, but so that a person is not deemed a shadow director by reason only that the directors act—

(a) on advice given by that person in a professional capacity;

(b) in accordance with instructions, a direction, guidance or advice given by that person in the exercise of a function conferred by or under an enactment;

(c) in accordance with guidance or advice given by that person in that person’s capacity as a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)”.

(3) In section 251(2) of the Companies Act 2006 (definition of “shadow director”) for the words “on advice given by him in a professional capacity” substitute “—

(a) on advice given by that person in a professional capacity;

(b) in accordance with instructions, a direction, guidance or advice given by that person in the exercise of a function conferred by or under an enactment;

(c) in accordance with guidance or advice given by that person in that person’s capacity as a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)”.

(4) In section 1293 of the Companies Act 2006 (meaning of “enactment”) after paragraph (a) insert—

“(aa) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,”.

91 Shadow directors: provision for Northern Ireland

(1) In Article 5(1) of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) (interpretation), in the definition of “shadow director”, for the words from “(but” to the end substitute “, but so that a person is not deemed a shadow director by reason only that the directors act—

(a) on advice given by that person in a professional capacity;

(b) in accordance with instructions, a direction, guidance or advice given by that person in the exercise of a function conferred by or under a statutory provision;

(c) in accordance with guidance or advice given by that person in that person’s capacity as a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)”.

(2) In Article 2(2) of the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I. 4)) (interpretation), in the definition of “shadow director”, for the words from “(but” to the end substitute “, but so that a person is not deemed a shadow director by reason only that the directors act—

(a) on advice given by that person in a professional capacity;

(b) in accordance with instructions, a direction, guidance or advice given by that person in the exercise of a function conferred by or under a statutory provision;

(c) in accordance with guidance or advice given by that person in that person’s capacity as a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)”.