PUBLIC COMPANY SECRETARIES

Role
A company secretary, being an officer of a company along with the director(s), is responsible for various 'housekeeping' duties in relation to the company. The company secretary takes directions from the director(s) and gives effect to the resolutions of the director(s) by, for example, ensuring appropriate lodgement of statutory forms at Companies House, maintaining the company's statutory registers, preparing and sending notice of meetings of members/shareholders, keeping or arranging for the keeping of minutes of meetings of the directors' and the members/shareholders etc. In addition a company secretary may have a range of other duties and responsibilities depending upon his/her (or its) terms of employment.

Number
All companies are required to have at least one company secretary - section 283 of the Companies Act 1985. For practical reasons, UKcorporator allows no more than 5 company secretaries. If more than one company secretary is appointed, such company secretaries are appointed as 'joint' company secretaries - section 10(2) of the Companies Act 1985. By way of example, all of the partners in a firm of, say accountants, may be appointed as the joint company secretaries of a company - this is recognised by section 290(2) of the Companies Act 1985.

Qualifications needed
The law imposes a general obligation upon the directors of a public company to take all reasonable steps to 'secure that the secretary (or each joint secretary) of the company is a person who appears to them to have the requisite knowledge and experience to discharge the functions of the secretary of the company' - section 286 of the Companies Act 1985. Furthermore, the directors of a public company (which is being newly formed) are required to take all reasonable steps to secure that the company secretary (or each joint company secretary) of the company falls into at least one of the following four categories:


(1)
for at least 3 of the 5 years immediately preceding the person's appointment as company secretary, the person held the office of company secretary of a company other than a private company; or


(2)
the person is a member of any of the following bodies:


(a)
the Institute of Chartered Accountants in England and Wales;


(b)
the Institute of Chartered Accountants in Scotland;


(c)
the Institute of Certified Accountants;


(d)
the Institute of Chartered Accountants in Ireland;


(e)
the Institute of Chartered Secretaries and Administrators;


(f)
the Institute of Cost and Management Accountants;


(g)
the Chartered Institute of Public Finance and Accountancy; or


(3)
the person is a barrister, advocate or solicitor called or admitted in any part of the United Kingdom; or


(4)
the person is someone who, by virtue of his / her holding or having held any other position or his / her being a member of any other body, appears to the directors to be capable of discharging the functions of secretary of the company.

Technically, a company secretary of a public company need not be a natural person - a Scottish firm or a company (indeed even a foreign company i.e. a company incorporated elsewhere than in the United Kingdom) may be appointed as company secretary (this is implicit in various provisions of the Companies Act 1985 such as section 290(1)(b)). Such entities, however, may be precluded in practice as they may not be able to satisfy any of the four requirements mentioned above. (They certainly could never satisfy the third requirement and it is doubtful whether they could ever satisfy the second one).

Other relevant factors in choosing
The company secretary of a public company:



may (but need not be) one of the directors;



may be the member/shareholder of the company (or one of them if there is more than one);



in the case of a company proposed to be registered in Scotland (as opposed to 'England and Wales') - must not be under the age of 16 - Age of Legal Capacity (Scotland) Act 1991;



in the case of a company proposed to be registered in 'England and Wales' (as opposed to 'Scotland') - need not be of any particular minimum age, however, careful consideration should be given as to whether a proposed company secretary who is a minor, has the legal capacity to consent to act as a company secretary and to carry out the duties of a company secretary;



need not be younger than a particular age (i.e. there is no maximum age limit);



may be a non-British national - however, it is possible that UK immigration laws may restrict the work activities which such a company secretary may undertake whilst in the UK; If in doubt, advice may be sought from the Home Office Immigration and Nationality Directorate; and



may, under the Companies Act 1985, be from an overseas country (i.e. outside of England, Wales or Scotland in terms of residency, domicile, citizenship, place of incorporation, or all or any of those concepts). Nevertheless this general proposition may be subject to any applicable foreign investment rules which may apply from time to time.

Assistant or deputy company secretaries
In addition to the appointment of a company secretary (or joint company secretaries) a company may appoint one or more assistant or deputy company secretaries. (This is implicit in section 283(3) of the Companies Act 1985). If the office of company secretary is vacant or if there is for any reason no company secretary capable of acting (e.g. if he or she is sick or overseas or on holiday) anything which is required or authorised to be done by or to the company secretary, may be done by or to the assistant or deputy company secretary (or secretaries) or, if there is no assistant or deputy company secretary capable of acting, by or to any officer of the company authorised generally or specifically in that behalf by the directors - section 283(3) of the Companies Act 1985. There is no requirement (or facility) to nominate any proposed assistant or deputy company secretary in the relevant forms to be lodged at Companies House when registering a company. Such appointment, however, may be made by the directors once the company is registered. (The articles of association implied by law if articles are not lodged at Companies House (e.g. Table A) and the articles of association which UKcorporator will produce, define 'secretary' as including an assistant or deputy secretary and give ample power to appoint such persons.)


RESOURCES

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