The expression “An Englishman’s home is his castle” is only too familiar. It captures the notion that one is entitled to privacy in their home, and that the state and others should not interfere in people’s private lives. Increasingly, this notion is giving way to the idea that there is a public interest in knowing enough about people’s private lives, including about their ownership of UK homes, to stem the flow of illicit funds into the British economy, and the real estate sector in particular.
Whether or not this legitimate objective can be achieved through law enforcement and government agencies alone having access to such information, or nothing short of public access can guarantee its fulfilment, is a more nuanced argument. The recently introduced UK Register of Overseas Entities attempts to strike a balance between the two viewpoints, by ensuring that relevant information concerning overseas entities that hold interests in UK property and their registrable beneficial owners is publicly available, but stopping short of requiring such public disclosure in relation to a trust’s connected persons where the registrable beneficial owner meets the beneficial ownership criteria as trustee. Some see this as a shortcoming of the new Register of Overseas Entities.
What few proponents of the unbridled variety of such transparency pause to consider, however, is that the use of the above simile (comparing a home to a castle) is also meant to convey the idea of protection that is inherent in both. A home should be a safe space. A castle was built to withstand attack from enemies.
Yet publicly available information about one’s UK home(s) can, and occasionally does, invite attack: not because of lack of legitimacy to the funds used for the property’s acquisition, but for the attacker’s own ulterior (and often criminal) purposes. High-profile public and political figures, including royalty, are particularly vulnerable to being targeted in such a way.
The Register of Overseas Entities regime recognises that situations may arise in which the making of relevant personal information publicly available can put individuals, or persons living with them, at serious risk of being subjected to violence or intimidation. It attempts to deal with this possibility through the ability to make an application for protection from public disclosure of the individual’s secured information. What it fails to recognise sufficiently, however, is that where one is able to substantiate the existence of such risks to the very strict standard envisaged by the legislation, one is probably too late to effectively protect their privacy and security as their personal information has already been compromised.
Even more concerningly, the legislation as currently enacted does not provide a mechanism for rectifying the register in a manner that removes relevant information from the public domain. The situations where this applies include where information has been disclosed without the individual’s authority, incorrectly or through inadvertence: for example, where public disclosure of an individual’s usual residential address could have been legitimately withheld through the provision of a service or correspondence address for them. Fortunately, this is about to change. On 15 March 2023, the government published draft regulations entitled Register of Overseas Entities (Definition of Foreign Limited Partner, Protection and Rectification) Regulations 2023. If enacted in its current form, the regulation will enable this most basic, yet fundamental, safeguard to one’s privacy to be restored. However, not before months of public access to this very personal information.
Transparency as a principle is commendable, but as with all measures of public policy, it needs to be considered for its proportionality and in the context of questions such as to whom, for what purpose and subject to what safeguards. This is if unintended and potentially highly damaging personal consequences are to be avoided.