Corporate Governance | Key legal developments | July 2023

This article provides a summary of key corporate governance updates since 11 April 2023, including:

  • 3 May 2023 - the Financial Conduct Authority ("FCA") proposes a revolutionary restructuring of the UK listing regime
  • 24 May 2023 - UK Government publishes its plan to ease non-financial reporting regulation for businesses
  • 24 May 2023 - Publication of a new Minimum Standard for FTSE 350 Audit Committees by the Financial Reporting Council ("FRC") regarding external audits
  • 24 May 2023 - the FRC consults on changes to the UK Corporate Governance Code
  • 1 June 2023 - European Parliament announces that it has adopted its position for negotiations with EU Member States on rules to integrate human rights and environmental impact into companies’ governance
  • 1 June 2023 - adoption by the Organisation for Economic Cooperation and Development ("OECD") Ministers of the revised G20/OECD Principles of Corporate Governance
  • 15 June 2023 – Government publishes proposal to reform identification doctrine
  • 15 June 2023 - scope of the UK Criminal Insider Dealing Regime is extended

Proposed Changes to the UK Listing Regime (3 May 2023)

The FCA published a consultation paper in which it proposed a restructuring of the UK listing regime. As part of this, the FCA proposed to merge the current premium and standard listing segments into a single listing category for “equity shares in commercial companies” (“ESCC“). Companies which fall into this category will have one set of eligibility requirements and one set of continuing obligations, which will amalgamate the existing requirements for both premium and standard listed companies. Consequently, there will be some relaxation for premium listed companies and some tightening of regulation for standard listed companies.

What does this mean?

Under the proposed scheme, standard listed companies will be required to comply with the UK Corporate Governance Code (the “Code“), whereas under the current provisions, such companies can voluntarily comply with the Code if they choose to do so. This proposed change therefore represents a tightening of the corporate governance regime for standard listed companies.

Easing Existing Non-Financial Reporting Regulations on Businesses (24 May 2023)

Non-financial reporting provides investors with information that extends beyond the financials of a company and provides important information to include future strategy, diversity and its impact on the environment, providing a deeper insight into businesses and their culture.

The Department for Business and Trade ("DBT") and the FRC invited stakeholders to give their views on the following:

  1. costs and benefits of current non-financial reporting requirements and opportunities to streamline existing reporting requirements.
  2. thresholds and definitions used to determine whether companies and LLPs must comply with certain requirements.
  3. the future of the UK’s non-financial reporting framework.

The objectives of this review and call for evidence which will close on the 16 August 2023 include:

  1. saving time and money for businesses by streamlining the corporate reporting regime.
  2. ensuring annual reports of companies contain clear, useful information relevant to investors.
  3. making the UK a more competitive environment for doing business by placing growth and investment at the heart of the reporting regime.

What does this mean?

  • Streamlining the existing non-financial reporting requirements – The non-financial reporting requirements on companies have ballooned in recent years as a response to investor and stakeholder demand, public policy and EU initiatives increasing the accountability of directors in how they run their businesses. However, it is the Government's view that these non-financial reporting regulations have now become too cumbersome leading to large, over-complex annual reports. If non-financial reporting is able to be streamlined as a result of this review, then the UK non-financial reporting regime has the potential to become more useful to investors and less burdensome on businesses whilst still ensuring directors are accountable to their stakeholders beyond those who are shareholders. Nevertheless, it should be noted that although stakeholders are the ones responding to the call for evidence, if the non-financial reporting regulations become too streamlined there is a risk that some stakeholders might suffer as certain non-financial reporting requirements become redundant reducing the responsibility on directors to act in their favour. However, in practice this is unlikely given that investors are becoming increasingly concerned with whether businesses are operating with wider stakeholders, such as the environment. It will be intriguing to see whether this review will lead to a change in corporate governance practices if non-financial reporting requirements are modified as a result.
  • Company size thresholds – A wide range of thresholds are currently used to determine whether a company must comply with non-financial reporting requirements. If these thresholds are simplified, it will be interesting to see whether certain companies will experience greater or lessened reporting standards. Businesses should keep an eye on whether their categorisation is impacted, as an increase or decrease in their reporting obligations will likely impact their approach to corporate governance.

FRC Publishes New Minimum Standard for Audit Committees (24 May 2023)

The FRC released the “Audit Committees and the External Audit: Minimum Standard”. The standard comprises four sections that cover areas such as the external audit tender process, the relationships companies have with external auditors, external auditor oversight and what a company’s audit committee will be required to report on in the company’s annual report.

Compliance with this minimum standard will be on a ‘comply or explain’ basis until legislation is implemented and the Audit, Reporting and Governance Authority (“ARGA“) (the FRCs successor) is established at which point the minimum standard will apply to FTSE 350 companies on a mandatory basis. It is the intention of the FRC that the standard will apply to all other companies on a comply or explain basis.

What does

The FRC released the “Audit Committees and the External Audit: Minimum Standard”. The standard comprises four sections that cover areas such as the external audit tender process, the relationships companies have with external auditors, external auditor oversight and what a company’s audit committee will be required to report on in the company’s annual report.

Compliance with this minimum standard will be on a ‘comply or explain’ basis until legislation is implemented and the Audit, Reporting and Governance Authority (“ARGA“) (the FRCs successor) is established at which point the minimum standard will apply to FTSE 350 companies on a mandatory basis. It is the intention of the FRC that the standard will apply to all other companies on a comply or explain basis.

What does this mean?

As a result of this new Minimum Standard, Audit Committees will need to pay close attention to the scope of the external audit, who conducts it and will need to provide effective oversight of the external audit function. As such, Audit Committees will have a much greater burden of responsibility placed on them. Strengthening its audit standard (and as a consequence its corporate governance framework) highlights the UK’s desire to restore trust in the UK audit and corporate governance processes. By increasing the responsibility and accountability placed on companies, hopefully the accuracy of the information on which companies are reporting is improved.

As this mean? a result of this new Minimum Standard, Audit Committees will need to pay close attention to the scope of the external audit, who conducts it and will need to provide effective oversight of the external audit function. As such, Audit Committees will have a much greater burden of responsibility placed on them. Strengthening its audit standard (and as a consequence its corporate governance framework) highlights the UK’s desire to restore trust in the UK audit and corporate governance processes. By increasing the responsibility and accountability placed on companies, hopefully the accuracy of the information on which companies are reporting is improved.

The FRC Consults on Changes to the UK Corporate Governance Code (24 May 2023)

In May 2023, the FRC published a consultation paper, which proposed revisions to the UK Corporate Governance Code (the "Code"). Under the FRC's Listing Rules, only premium listed companies are required to apply the Code; however, many non-premium listed companies choose to follow the Code, for example, because it can make them more attractive to investors. In summary, the Code is a code of corporate governance that operates on a "comply or explain" basis. (i.e. premium listed companies that do not comply with the provisions of the Code are required to explain why this is the case).

The consultation paper primarily focusses on Section 4 of the Code (Audit, Risk and Internal Control), but also proposes minor changes to the other sections. An overview of each section of the Code is provided below, along with a summary of the substantive updates proposed.

  1. Section 1 - Board leadership and company purpose

Section 1 deals with the board's function and its role in establishing the company’s purpose, values and strategy. Specifically, it discusses the board’s role in moulding a company’s culture and the requirement for the board to engage with shareholders and other stakeholders.

The FRC plans to introduce a new to introduce a new "Principle D", which lays out its expectation that companies should focus on activities and results to demonstrate the effect of governance practices for the benefit of company stakeholders when reporting on their governance activity. The FRC has also proposed minor amendments intended to bring greater concentration to ESG issues, particularly companies’ climate ambitions and transition planning.

  1. Section 2 – Division of Responsibilities

Section 2 of the Code considers the role of members across the board and the division of responsibilities across different layers of leadership of the company’s business.

In particular, the consultation paper records the increased concern from investors about the number non-executive directors of listed companies. Given this concern, the FRC proposes amending the current "Principle L" ("Principle K" in the revised Code), to specify that the annual board performance review should consider each director’s commitments to other organisations, and how directors are able to make adequate time available to discharge their duties effectively. Additionally, the FRC proposes to amend Provision 15 to recommend that annual reports include more information on the other commitments held by directors.

  1. Section 3 – Composition, Succession and Evaluation

Section 3 of the Code deals with the composition of the board (including diversity), appointments and succession planning.

The FRC is proposing that the current Principle J should deviate from the current approach of stipulating particular diversity characteristics that should inform companies’ appointments and succession plans. Instead, the revised Code will encourage companies to promote equal opportunity, and diversity and inclusion of all protected and non-protected characteristics including cognitive and personal strengths. Further, the FRC is proposing amendments to current Provision 23, to provide better clarity on the approach by the succession planning and board and senior management appointments. Finally, the FRC is also proposing that the current Provision 21 be amended to recommend that the chair commission an external board performance review rather than merely consider this (as currently provided by the Code). This pro-active language is unlikely to change much for FTSE 350 companies, however, as they should conduct such a review every three years regardless.

  1. Section 4 – Audit, Risk and Internal Control

Section 4 of the Code deals with the internal and external audit process, financial and business reporting, risk management and internal control and the audit committee.

The FRC's proposals here, are arguably the most important recommendations made by the FRC. They link directly with the Governments 2022 white paper ‘Restoring trust in audit and corporate governance’ which, after a series of large recent corporate failures at companies such as BHS, Carillion & Thomas Cook,[JS1] , set out plans to further strengthen the UK’s audit and corporate governance framework to empower shareholders and ensure they can rely on information published by UK companies.

The FRC's Section 4 proposals focus on:

  1. the audit and assurance policy
  2. audit committees and external audits
  3. sustainability reporting
  4. risk management and internal controls
  5. going concern reporting
  6. the resilience statement

Whilst audit committees are given responsibility in relation to reporting on sustainability matters, the majority of the FRC's proposals here relate to increasing their accountability and the standards of their reporting.

  1. Renumeration

Section 5 of the UKCG Code deals with remuneration policies and practices, the role and responsibilities of the remuneration committee and the use of remuneration consultants.

The FRC proposes the following amends:

  • Principles P, Q and R should be revamped to strengthen the link between remuneration and ESG objectives.
  • References to pay ratios and pay gaps should be removed from the Code, in the hope that this will avoid duplication of disclosure for the many companies who already separately report on gender and (in many cases) ethnicity pay ratios and pay gaps.
  • The insertion of a new provision setting out what should be covered by the remuneration report when it comes to malus and clawback.

What does this mean?

To some extent, these proposed changes certainly have shareholders in mind[1]. The focus of the proposed changes to Section 2 on controlling overboarding can be seen to have been driven by the fact that overboarding can negatively affect shareholders both in the short term and long term. Taking as an example Elon Musk's appointment and resignation as Twitter CEO and the correlated decline and rise in Tesla’s share price, it is clear that overboarding can negatively affect shareholders through share price decline and fluctuation. In the longer-term, share price will be negatively affected as directors have their attention spread too thinly, which could lead to poor decision making. Nevertheless, despite such a shareholder-focused amendment in respect of the way in which directors should govern, the FRC's proposed changes focus heavily on other stakeholder interests. The suggested changes to Section 1 and 5 have ESG in mind whilst those proposed in relation to Section 3 champion diversity. This greater focus on other company stakeholders beyond shareholders mirrors the emerging trends in corporate governance. ESG, for example, is becoming an increasingly large part of corporate governance as informed by investing habits, with Blackrock for instance, saying it will look to exit investments with high environmental risks.

Off the back of these proposed updates and with concerns around ESG and diversity becoming more prevalent, it will be interesting to see whether corporate governance in the UK will stray from an enlightened shareholder approach; an approach where directors prioritise the interests of shareholders whilst considering the interests of other stakeholders, such as employees and the environment. Might there come a point where executive decisions at companies are focussed more on ESG than maximising profit for shareholders, for instance?

European Parliament Adopts its Position on Corporate Sustainability Due Diligence Directive (1 June 2023)

The European Parliament has adopted its position for negotiations with EU Member States on rules to integrate human rights and environmental impact into companies’ governance. The rules require the negative impacts of companies’ activities on human rights and the environment, including pollution, environmental degradation and biodiversity loss to be identified, prevented, ended or mitigated. In addition, companies will have to monitor and assess the impact of their value-chain partners. This includes not only their suppliers but also sale, distribution, transport, storage, waste-management and other areas. The EU’s position also stipulates that firms would have to engage with those affected by their actions, regularly monitor the effectiveness of their due diligence policy and introduce a grievance mechanism. Non-compliance can result in fines of at least 5% of a company’s net worldwide turnover or the pulling of a contravening company’s goods from the market. Non-compliance by non-EU companies will result in them being banned from public procurement in the EU.

What does this mean?

These proposals have not yet taken effect in legislation and remain subject to negotiation between the European Parliament and EU member states. Obligations are estimated to have a lead time of five years before reporting will be required. However, the proposed measures in the European Parliament’s position represent a radical shift away from how companies traditionally have been seen to treat social impact. The mandatory due diligence aspects which it is proposed that companies will have to perform on their own value chains will require additional resources committed by firms to the active monitoring and mitigation of risks to human rights and the environment. Furthermore, the proposed sanctions have greater reach and scope than those to which companies are currently subject, due to proposed ability of supervisory bodies to sanction non-EU companies and assess impact from parent company level.

The OECD Ministers Adopted the Revised G20/OECD Principles of Corporate Governance (1 June 2023)

Taking into account recent evolutions in capital markets and corporate governance policies and practices OECD Ministers have adopted the revised G20/OECD Principles of Corporate Governance ensuring their place as the leading international standard for corporate governance  

The main goal of the revisions was to promote policies that support sustainably and resilience of corporations. As such, the revised Principles include a new chapter on “Sustainability and resilience” which provides recommendations to support companies in managing the risks and opportunities of the climate transition and other sustainability challenges. There were however other revisions reflecting evolutions in:

  • the growing role of institutional investors
  • corporate ownership
  • the increasing complexity of corporate risks
  • digitalisation

These revised Principles of Corporate Governance will be submitted to G20 Finance Ministers and Central Bank Governors for endorsement in July.

What does this mean?

This demonstrates a forward-thinking approach in ensuring companies are sustainable and are suitably equipped to deal with the challenges that come in an ever-evolving world. The recommendations will provide useful guidance for companies in managing the risks and highlighting the opportunities available. The revised principles also discuss the impact of digitisation. With the rise of technology and more companies than ever using AI systems to carry out tasks, it is important that companies have guidance on the risks and opportunities available to them.

Government Proposal to Reform Identification Doctrine Published (15 June 2023)

Currently, a company can only be criminally liable where an offence can be given to someone who at the time was the ‘directing mind and will’ of the company. This is known as the identification doctrine. Generally, the ‘directing mind and will’ of a company are those individuals who make up a company’s board. On 15 June, the Government announced plans to reform this via the Economic Crime and Corporate Transparency Bill. It is proposed that a test to be applied to consider the decision-making power of the senior manager who has committed an economic crime, rather than just their job title with the purpose being to limit the ability of corporations to conceal, via complex structures, who the decision makers of a company are.

What does this mean?

If adopted, this legislation will prevent corporations from trying to disguise who the ultimate decision makers are, arguably making the sanctioning much fairer. The proposed reforms set the bar very high for large corporations, as they will no longer be able to rely on complex structures to hide key managers. Instead, managers will be held accountable based on their substantive powers, regardless of their face value job description. In practice, this means that companies must ensure board members appreciate and understand the risks involved in having such management responsibilities and that they are aware of the repercussions should they not meet the required standard.

The Scope of the UK Criminal Insider Dealing Regime is Extended (15 June 2023)

On 15 June 2023, the Insider Dealing (Securities and Regulated Markets) Order 2023 (the "Insider Dealing Order") broadened the scope of the criminal insider dealing regime in the UK to align with that of the civil market abuse regime under the UK Market Abuse Regulation ("UK MAR").

Prior to the Insider Dealing Order, the criminal offence mainly applied to shares and debt securities and certain instruments related to those securities. In other words, it only applied to a limited range of securities listed in the Criminal Justice Act 1993 ("CJA"). Further, it could also only be committed on a small number of named regulated markets, as specified in secondary legislation. In both respects the criminal offence was much narrower in range than the civil market abuse regime under the UK MAR.

Under the Insider Dealing Order, instead of being restricted to named regulated markets, the criminal offence will now apply to securities traded on any of the following:

  • any UK, EU or Gibraltar regulated market, multilateral trading facility or organised trading facility; and
  • any market established under the rules of NASDAQ, SIX Swiss Exchange or the New York Stock Exchange.

Further, the Insider Dealing Order expands the types of securities covered by the CJA in line with UK MAR to now include derivatives as well as units in collective investment schemes.

What does this mean?

The expansion has been a long time coming with recommendations for an update being produced in 2015 with the FCA suggesting that the number of insiders dealing cases has risen since then. Companies should review their policies and procedures and ensure they, along with staff training, are updated accordingly. Further, firms and their staff will need to be increasingly conscientious when in possession of inside information and when engaging in trading activities. This is paramount. Beyond being criminally liable for a wider range of insider dealing acts, insider dealing harms the interests of shareholders (damages market liquidity and efficiency). Given that company directors should act in a way they consider "promotes the success of the company for the benefit of its members as a whole"[1], the expansion of the UK Criminal Insider Dealing Regime provides incentive for the executives of a company to do everything they can to prevent insider dealing.

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