Yesterday, the States of Guernsey voted to bring in a private, central register of beneficial ownership of legal entities. This was an important decision for us to make although it was tacked on to a long day talking about rubbish! Before you start thinking I was being derogatory of my colleagues, I am referring to the debate on the Implementation of the Waste Strategy.
As I feel it is important that Guernsey is seen to give due consideration to other important matters especially those that affect our international reputation, I proceeded to give my speech despite the fact I stood up at 5.45pm. For those of you who are interested below is the text of my speech.
“Sir, I will be supporting the proposition to establish a register containing beneficial ownership information for all forms of legal person. We need this because it is essential that our law enforcement is provided with the tools to access this information as quickly as possible so that we can comply with international standards, fight crime and support our finance and business services industries. I stand to give my support but also to give the subject the weight it deserves. This is such an important move to take in the times we live in.
The proposal is for the Register to be open to those who need it and not publicly accessible. This is, in my view, a sensible proposal. Whilst there are calls for such registers to be open to the public, this is not based on a need to follow international standards but because of calls from pressure groups and the media.
From my involvement with industry, it is clear that they want us to follow international standards but not excessively which would put Guernsey at a competitive disadvantage. I do not think the proposals do so. In fact, I think they are a positive move supporting our commitment to law enforcement.
The widely accepted international standard on the recording of beneficial ownership is the one developed by the Financial Action Task Force or FATF which was first published in 2003 and further strengthened in 2012. It does not require a publicly accessible register only that countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities.
This international standard has also been incorporated into the Global Forum on Transparency and Exchange of Information for Tax Purposes and is also followed in principle under the 4th Money Laundering Directive coming into force on the 26th June 2017. I say in principle because, whilst the EU are seeking a central register, it requires a more extensive list of those who can access it than the FATF recommendation although, interestingly, it does not require the register to be public it merely suggests it as an option.
Whilst we are obviously not in the EU, not complying with the Directive may affect our ability to work with EU countries in the future. This is not addressed in this Policy Letter and I would like reassurance that this aspect will be considered.
It is also important to remember that there are, already, extensive regulations in place which require all local trust and company service providers and other prescribed businesses and individuals to know the identity of the beneficial owners of Guernsey entities. Those regulations also require the same information to be obtained for owners of entities incorporated in any jurisdiction in the world.
The recent 2015 MoneyVal report was most complimentary about the regulatory regime here but indicated they felt there were insufficient measures in place where no such provider was involved and the proposals in this Policy Letter are intended to improve these measures.
We also have, under Company Law, the role of Resident Agent whose responsibility, amongst other things, is to collect the information about beneficial owners albeit they do not need to establish the underlying natural person unlike under the Anti Money Laundering and Countering the Financing of Terrorism or AML/CFT requirements although both have a percentage ownership value below which identification is not required. Propositions 7 and 9 will strengthen their role and accordingly I support these Propositions.
With all these ways of collating the information on beneficial ownership, why should we consider a public register? Some say this is the way forward and point at the UK who have established a register last year. But they’d be wrong. The UK MPs calling for us to have such a public register of beneficial ownership probably don’t realise that the new UK legislation has not created such a register.
According to FATF, a beneficial ownership register should identify the natural persons who ultimately have a controlling ownership interest in a legal person but the UK register does not do that. It does not even create a register of those who have ultimate control. It merely creates an unverified register of those who have immediate control of a particular entity. In my view this doesn’t even comply with the international standards so, as I have said before, why should we follow the UK down yet another path going in the wrong direction?
As well as not being required internationally, there are good reasons for keeping the details of beneficial ownership private. These include a fear of kidnap or commercial sensitivity. Some investment strategies made public could be impaired if this information was made public. And who will prevent abuse of the information?
Most importantly, we all are entitled to a basic human right – the respect for private and family life – this is not secrecy but privacy: confidentiality. As we said in the debate on the P&R Plan, regulation should be appropriate and proportional and this is an occasion when regulation should be no more and no less than what the international standard requires. The papers by the FATF and the OECD to the G20 Finance Ministers late last year made it clear that the focus is not on revising the standard but on implementation of the existing standard. So I say let the ones who need to have the information, the Bailiwick’s law enforcement, have that information as speedily as possible.
However, that information must be kept securely; an important consideration for all of us in this age of cyber insecurity as highlighted by Deputy Lowe yesterday morning. I am pleased with the choice of the Guernsey Registry as it will not only have the appropriate mechanisms in place to ensure the information is kept securely but, unlike the Guernsey Financial Services Commission, it will not be subject to a potential conflict of interest.
We do also need to ensure there are suitable legal gateways for the sharing of that information with domestic and foreign authorities for specified purposes. Part II of the Disclosure Law which was brought into force on the 17th December 2007 and updated in 2014 sets out these various purposes and include criminal investigations and proceedings in the Bailiwick and elsewhere. Again I support this approach.
We then have Proposition 5 – to agree that P&R and Economic Development can appoint the Registrar. As there is no mention in the Propositions that the appointment will be the Registrar of Companies as indicated in the Policy Letter, please can I have the reassurance that the Committees will not change their mind and, say, appoint the Commission instead?
The remaining Propositions are sensible recommendations especially in respect of the Resident Agents and bearer instruments. The introduction of a statutory definition of beneficial owner will also be useful as is the alignment, after suitable consultation, with the anti-money laundering regime. Similarly, the introduction of the right of directors to ask the Resident Agent to provide the beneficial ownership information on request but this could be enhanced if the Agent also has to provide the verification of such information. I also note there is no provision to deal with the record keeping requirements when Resident Agents change – should the previous Agent keep the records to show they had fulfilled their role or should the documents belong to the company but accessible to the Agent?
Then there is the continuation of the ability for a statement being made that no beneficial owner has been identified. This is necessary due to the complicated nature of ownership but I would ask for consideration that an explanation of why the owner cannot be identified to also be provided.
I am also concerned about the funding of the Registry. Why does it have to come from the Bond? We heard earlier that the implementation of the waste strategy would be better funded by the Bond as otherwise it would be paid for by the taxpayer and it would be more expensive if a commercial loan obtained but the Registry is a success story with more than £9 million transferred to General Revenue in 2015 so why can’t the costs be paid from their profits rather than the Bond with the inherent costs associated with such a loan? In fact, why can’t the £214,000 loan outstanding at the end of 2015 be repaid too? Whilst the Policy Letter seems to justify this I am not satisfied that this is commercially sound and an explanation would be appreciated.
However, I have also raised several times through the consultations, my concern as to why we are not being innovative in this field. Why we are not being ahead of the curve for what is already a FATF standard and will also be a requirement in the future? That is the register of trusts and other legal arrangements.
Pascal Saint-Amans, head of tax at the Organisation for Economic Cooperation and Development or the OECD, has said existing efforts to improve the sharing of information between countries – championed by David Cameron – needs to go further. In particular, he said countries should look again at new registers of company ownership as these registers should also show similar information for trusts.
The FATF Recommendations state that the information available for legal entities should also be available in a similar way for legal arrangements – including trusts – with a view to achieving appropriate levels of transparency.
The 4th Money Laundering Directive states that “In order to ensure a level playing field among the different types of legal forms, trustees should also be required to obtain, hold and provide beneficial ownership information”.
Although David Cameron championed the public beneficial ownership register for legal entities, he acknowledged the important differences between companies and trusts indicating his reservations on such a register. I am sure there are some in industry who may be fearful of my suggestion however, we need to be realistic and acknowledge that FATF, MoneyVal, and the OECD will get their way so let’s be proactive and design a register that is fit for our purposes and not wait to be told what we should do. Be told by those who understand our finance and business services industries least.
I also note that two days ago New Zealand approved the recommendations of a report to introduce a private register of foreign trusts – trusts without a New Zealand resident settlor. However, they are implementing it by using a manual spreadsheet database – we of course could be more sophisticated than that.
I should add that we do most of the work already under the AML/CFT regime so it would not be a stretch to start giving due consideration now to the question of whether to provide beneficial information on trusts to a private central register. I believe that there are opportunities for our businesses if we lead the way so let’s grasp them.
So, Sir, despite recording my concern that that the Registrar is not stated in the Policy Letter to be the Registrar of Guernsey Companies and my disappointment that we are not being more progressive, I ask members to support these propositions. By doing so, we can fulfil the promises we have made to follow international standards and show our finance and business services industries that we support them by introducing regulation that is proportionate and appropriate.”