Publicly accessible registers have come under fire in France and the country's public trust register has been ruled unconstitutional in a decision of the Constitutional Council published on October 23 2016. This may lead to other European countries (and possibly countries outside Europe, where relevant) making similar determinations.
A similar case for withholding public access to such registers could be made in the United Kingdom, in this case as a breach of the right to respect for private and family life under the Human Rights Act 1998.
This could have important implications for those wishing to maintain the privacy of settlors, beneficiaries, trustees, protectors and others connected to trusts.
'Transparency' is the new buzzword in private wealth circles. New transparency initiatives are regularly announced by the Organisation for Economic Cooperation and Development, the European Union and the UK government. However, while the drivers in favour of financial and tax transparency are clear and understandable in order to prevent money laundering, other crimes and tax evasion, the unfortunate corollary is a loss of privacy and confidentiality for everyone – including those who comply scrupulously with their tax and other obligations.
One way in which transparency of information is being sought is by the creation, or proposed creation, of publicly accessible registers – whether of companies, trusts or other wealth-holding entities. In the United Kingdom, the Persons with Significant Control Register of UK companies held by Companies House became open to the public with effect from June 30. The UK government is considering establishing a similar register for foreign companies that own land in the United Kingdom, as well as one for foreign companies that wish to take on public contracts, although these proposals are still at a relatively early stage.
Proposals for other publicly accessible registers of trusts have also begun to appear. Proposed amendments to the EU Fourth Anti-money Laundering Directive were published on July 5 2016 that, among other things, would expand the scope of trusts for which registers would need to be kept beyond the provisions of the original directive to include all express trusts, rather than taxable trusts only. In addition, new rules would be introduced requiring the beneficial ownership of companies and business-related trusts to be recorded in publicly accessible registers, which appear potentially to extend to any trust with a corporate trustee.
In July, French lawyers obtained the suspension of the public registry, arguing that the public character of the registry is unconstitutional, as it disproportionately infringes the right to privacy guaranteed by Article 2 of the Déclaration des droits de l'homme et du citoyen de 1789. In its decision, the Constitutional Council not only declared the publicly accessible nature of the register to be unconstitutional, but effectively the existence of the trust register itself by declaring unconstitutional the second paragraph of Article 1649AB of the General Tax Code, which provided for the establishment of a public register of trusts.
The attitude to the right to privacy in the United Kingdom has traditionally not been as stringent as in France, partly because there used to be no specific law guarding the privacy of individuals, despite such laws having been suggested at intervals over the years. Another factor has been differences in prevailing cultural attitudes: the UK public is accustomed to a press which, in parts at least, has had scant regard for the privacy of individuals, whether they are in the public eye or otherwise. Admittedly, with the relatively recent phone hacking scandals, attitudes may have begun to change a little and court decisions over recent years have further developed the law in this area.
Furthermore, the United Kingdom is now subject to the Human Rights Act 1998, although there have been suggestions following the Brexit vote that this could be replaced in due course by a 'British Bill of Rights'.
The Human Rights Act did not introduce specific rights for individuals, but requires public authorities – including courts and tribunals – to act in accordance with rights set out in the European Convention on Human Rights 1950. Article 8 of the ECHR relates to the right to respect for private and family life, and provides as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Due to the possibility of a clash between Article 8 and Article 10, which concerns the right to freedom of expression, the United Kingdom introduced an amendment to the Human Rights Act (Section 12(1)), which sets a higher bar for injunctions being considered by a court that may affect the exercise of the convention right to freedom of expression. This could mean that an attempt to argue that a publicly accessible register of trusts or any other entities infringed the privacy rights of individuals in the United Kingdom might face a harder test than in some other jurisdictions, if it was considered that the right to freedom of expression could be affected in some way.
Perhaps more likely, it could also be argued that one of the exceptions in Article 8(2) is relevant to permit interference with an individual's right to privacy – perhaps for the economic wellbeing of the country or for the prevention of crime. However, in the case of company or trust registers such as those proposed, there would not appear to be a need for public access in order to promote such interests, provided that the relevant authorities have access to the information.
Now that the French court has confirmed that a public register of trusts is unconstitutional, it may lead to other European countries (and possibly countries outside Europe, where relevant) making similar determinations. At the very least, such a movement might result in a pushback against the move to require publicly accessible registers under the Fourth Money Laundering Directive. If such a movement towards upholding individuals' rights to privacy prevails in other jurisdictions, it is possible that the case for withholding public access to such registers could also be made in the United Kingdom.
For those who are concerned about maintaining the privacy of settlors, beneficiaries, trustees, protectors and others connected to trusts, the French decision is an interesting development.