The Beginning of the End of the FRC.

In December 2018, the Kingman Review produced its final report and, in doing so, appears to have begun the process that will see the FRC’s abolition. This brief blog post looks at the FRC, the circumstances that led to its effectiveness being questions, and the principal recommendations of the Kingman Review.

A brief history of the FRC

The FRC was established in 1990 to oversee the process of updating accounting standards (a role it still holds). Since then, its remit has expanded substantially in several ways, including:

For a more detailed account of the FRC’s role, see the FRC’s own report on its roles and responsibilities.

The beginning of the end

Following the collapse of Carillion plc, a report published by the BEIS and Work and Pensions Select Committees was extremely critical of the FRC, stating that:

  • it had little faith in the FRC’s ability to complete investigations in a timely manner;
  • the FRC was too passive in relation to Carillion’s financial reporting;
  • whilst the FRC identified failings in Carillion’s reporting, it failed to monitor whether these failings were remedied and was ‘happy to walk away after securing box-ticking disclosures of information;
  • the FRC was timid in challenging Carillion on the ‘inadequate and questionable nature of the financial information it provided and wholly ineffective in taking to task the auditors who had responsibility for ensuring their veracity.’

It therefore came as little surprise when the government announced that it was launching an independent review of the FRC, headed by Sir John Kingman.

The Kingman Review

The Kingman Review reported in December 2018 and, unsurprisingly, was critical of the FRC’s remit and effectiveness (although it did acknowledge that a number of the FRC’s deficiencies were the result of constraints placed on it by successive governments), stating that:

  • the FRC had not been effective in shaping the debate on major issues relating to its work;
  • its work on audit quality does not command the same respect as similar regulators in other countries;
  • it has not been an effective champion for the need for comprehensible annual report and accounts;
  • its relationships with the investment community are not as deep as they should be;
  • the UK Stewardship Code is not effective in practice.

The Review described the FRC as

an institution constructed in a different era – a rather ramshackle house, cobbled together with all sorts of extensions over time. The house is – just – serviceable, up to a point, but it leaks and creaks, sometimes badly. The inhabitants of the house have sought to patch and mend. But in the end, the house is built on weak foundations.

It was therefore no surprise that the Review concluded that ‘[i]t is time to build a new house.’ The Review recommended that the FRC be replaced by a new regulator, entitled the Audit, Reporting and Governance Authority. The principal objective of this new regulator will be:

To protect the interests of investors and the wider public interest by setting high standards of corporate governance, corporate reporting and statutory audit, and by holding to account the companies and professional advisers responsible for meeting those standards.

The core functions of the new regulator will be:

  • To set and apply high corporate governance, reporting and audit standards;
  • To regulate and be responsible for the registration of the audit profession;
  • To maintain and promote the UK Corporate Governance Code and the UK Stewardship Code, reporting annually on compliance with the Codes;
  • To maintain wide and deep relationships with investors and other users of financial information;
  • To monitor and report on developments in the audit market, including trends in audit pricing, the extent of any cross-subsidy from non-audit work and the implications for the quality of audit; and
  • To appoint inspectors to investigate a company’s affairs where there are public interest concerns about any matter that falls within the Authority’s statutory competence.

These functions are broadly similar to those already undertaken by the FRC, but the new regulator would be given increased powers in relation to these functions. Its remit would also be broadened. For example, the new regulator would be subject to a new competition duty that would provide that the regulator ‘must, so far as is compatible with advancing its other objectives, discharge its general functions in a way which promotes effective competition in the market for statutory audit services.’

Reaction to the Kingman Review

The Review’s recommendation to replace the FRC with a new regulator appears to have been broadly welcomed. Greg Clark, the Secretary of State for BEIS, stated that ‘t]he government will take forward the recommendations set out in the Review to replace the FRC with a new independent statutory regulator with stronger powers.’ The FRC itself welcomed the Review, with its chairman Sir Win Bischoff stating:

Sir John has carried out a thorough review and consulted numerous organisations and individuals. He has addressed the gaps in our powers that have been identified and set a course for a stronger, new regulator to emerge from the FRC. We welcome Sir John’s recommendations. They have the potential to bring about significant improvements to the work we do in protecting the interests of investors and the wider public.  We look forward to playing our part to ensure his review is implemented speedily.

Accordingly, it appears that the FRC will be abolished and replaced, but no timeframe has been put on this. The full implementation of the recommendations of the Kingman Review will require the passing of primary legislation, so it will be interesting to see when this legislation will be forthcoming given the extent to which preparations for Brexit (notably increased preparations for a ‘no deal’ Brexit) appear to be taking up governmental and cicil service resources.

The Wates Corporate Governance Principles for Large Private Companies

In its response to its Green Paper on Corporate Governance (see this blog post for more), the government invited the FRC and several other bodies to create a group that would work on a set of corporate governance principles for private companies. On the 30th January 2018, the FRC announced that this group, known as the Coalition Group would be chaired by James Wates CBE, Chairman of the Wates Group. On the 13th June 2018, the Coalition Group published a consultation document on the Wates Corporate Governance Principles for Large Private Companies. The final Principles were published on the 10th December 2018.

Reporting requirements and scope of the Principles

In its response to the Green Paper, the government stated that it would pass subordinate legislation requiring all companies of a significant size that do not currently provide a corporate governance statement to disclose their corporate governance arrangements. A few days before the Coalition Group published its consultation paper, the Companies (Miscellaneous Reporting) Regulations 2018 were laid before Parliament. These regulations which, if approved, will apply to financial years starting on of after the 1 January 2019, insert new provisions into the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 that will apply to any company that:

  • has more than 2,000 employees, and/or;
  • has a turnover of more than £200 million and a balance sheet total of more than £2 billion.

Such companies must include in their directors’ report a ‘statement of corporate governance arrangements’ that states:

  • which corporate governance code, if any, the company applied in that financial year;
  • how the company applied this code, and
  • if the company departed from that code, its reasons for doing so.

Companies will be able to adopt the Wates Principles and report on them as required under these new provisions.

The Principles

The core of the Wates Principles consists of six Principles, which appear to be split into three hierarchical categories (see image at the end of the post). The six Principles are:

    1. Purpose and Leadership: An effective board develops and promotes the purpose of a company, and ensures that its values, strategy and culture align with that purpose.
    2. Board Composition: Effective board composition requires an effective chair and a balance of skills, backgrounds, experience and knowledge, with individual directors having sufficient capacity to make a valuable contribution. The size of a board should be guided by the scale and complexity of the company.
    3. Director Responsibilities: The board and individual directors should have a clear understanding of their accountability and responsibilities. The board’s policies and procedures should support effective decision-making and independent challenge.
    4. Opportunity and risk: A board should promote the long-term sustainable success of the company by identifying opportunities to create and preserve value, and establishing oversight for the identification and mitigation of risks.
    5. Remuneration: A board should promote executive remuneration structures aligned to the sustainable long-term success of a company, taking into account pay and conditions elsewhere in the company.
    6. Stakeholder Relationships and Engagement: Directors should foster effective stakeholder relationships aligned to the company’s purpose. The board is responsible for overseeing meaningful engagement with stakeholders, including the workforce, and having regard to their views when taking decisions.

Each Principle is accompanied by brief guidance on how the Principle should be applied. It is clear to see that the Principles are written in a ‘high-level’ manner and provide companies with considerable flexibility in terms of their application. The consultation document itself provides an example of this, noting that Principle 3 could be applied in several different ways including:

  • A large family owned company might seek to appoint an independent director to its board to introduce independent challenge. It could explain how the appointment of this director has delivered improved outcomes to its board’s decision-making processes by identifying an example where the provision of independent challenge from the independent director has improved board decision-making.
  • A private equity-owned company with a small shareholder board might appoint an external consultant to provide independent advice on its corporate strategy. It could describe the value that independent insight has had on refining the company’s purpose.
  • A large subsidiary of a UK-listed company may establish an advisory committee to seek independent, objective advice as to the effectiveness of the board’s decision- making. It could explain how this appointment demonstrates the directors’ commitment to accountability and acknowledgement of their duties under the Companies Act 2006.

Apply and explain

The UK Corporate Governance Code operates on a ‘comply or explain’ basis, meaning that companies to whom the Code applies can either comply with the Code’s recommendations or explain their reasons for any non-compliance. The Wates Principles operate on an ‘apply and explain basis,’ as follows:

  • Any company that adopts the Wates Principles should apply each Principle by considering them individually within the context of the company’s specific circumstances. They should then be able to explain in their own words how they have addressed them in their governance practices. Companies should provide a supporting statement that gives an understanding of how their corporate governance policies and processes operate to achieve the desired outcome for each Principle.
  • The guidance that accompanies each Principle is provided to assist companies in explaining their approach to applying each Principle appropriate to their circumstances. As a result, the company does not need to report on whether it has applied the guidance.

The UK Corporate Governance Code operates on a comply or explain basis because a one-size-fits-all approach would not work, and so companies are allowed to depart from the Code’s recommendations. The Wates Principles also recognise that, in large private companies, ‘[d]iffering management and ownership structures means that a one-size-fits-all approach to corporate governance in large private companies is not appropriate.’ However, the Wates Principles provide companies with the requisite flexibility through the Principles themselves, which are very broad and provide companies with significant flexibility in terms of their application.


Companies that adopt the Wates Principles can start reporting on them from the 1 January 2019. We will then be in a position to see whether the Wates Principles have had any effect on the governance of large private companies. Stephen Martin, the Director General of the Institute of Directors, has described the Wates Principles as representing ‘the start of a new chapter for UK corporate governance.’ Time will tell whether the chapter improves on those that came before it.

Parent Companies and the Duty of Care

Corporate personality is granted to a company via statute (namely s 16(2) of the CA 2006) and so the issue of when (and indeed whether) the courts should set aside a company’s corporate personality has proven to be a controversial and difficult subject. The leading case, Prest v Petrodel Resources Ltd, has provided clarification, but it has done this by restricting those instances where the courts can pierce the veil. Indeed, in that case, Lord Neuberger even reclassified many prior ‘veil-piercing’ cases and stated in the majority of cases the veil would not need to be pierced at all as a similar result could be achieved by applying conventional legal principles. One such conventional legal principle is the duty of care, and in the recent case of Ogale Community v Royal Dutch Shell plc, the key issue was whether the parent company could be liable for damage caused by the actions of its subsidiary. Before looking at this case, it is worth briefly covering the case that first established that a parent company can owe a duty of care to an employee of its subsidiary, namely Chandler v Cape Industries plc.

Chandler v Cape Industries plc

Chandler was, for periods between April 1959 to February 1962, an employee of Cape Building Products Ltd (CBP), a subsidiary of Cape plc. In 2007, Chandler discovered that he had contracted asbestosis as a result of being exposed to asbestos whilst working for CBP. He sought to obtain compensation, but CBP had been dissolved many years before and, during Chandler’s period of employment, CBP had no insurance policy in place which would indemnify Chandler for his loss. Accordingly, Chandler commenced proceedings against the parent, Cape plc.

Arden LJ stated that a parent company could be liable for injuries sustained by an employee of its subsidiary if the parent owed a duty of care to the employee, which it then breached. She went on to list several factors that might result in such a duty being imposed, namely:

  • the businesses of the parent and subsidiary are in a relevant respect the same;
  • the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry;
  • the subsidiary’s system of work is unsafe as the parent company knew, or ought to have known; and
  • the parent knew or ought to have foreseen that the subsidiary or its employees would rely on it using that superior knowledge for the employees’ protection.

In such a case, the parent would have assumed a responsibility towards the employees of the subsidiary and so liability could be imposed upon it. The Court held that the above circumstances were present here and so Cape plc had assumed a responsibility to Chandler, and so it was ordered to pay him damages. The important point to note that liability was established by holding that Cape owed a duty to Chandler, which it had breached. The Court emphatically rejected any suggestion that liability was imposed upon Cape by piercing the corporate veil.

A number of subsequent cases have involved similar facts to Chandler and all have followed the approach in Chandler (see Lungowe, Unilever, and Thompson). However, in none of these cases was the claimant able to establish that the parent company owed him a duty of care, thereby indicating that establishing a duty is no easy feat. The same is true of the latest case, namely Ogale Community v Royal Dutch Shell plc, but this case did not involve an employee who had suffered loss. Instead, it involved persons who were affected by pollution caused by a subsidiary’s activities.

Ogale Community v Royal Dutch Shell plc

Shell Petroleum Development Company of Nigeria Ltd (‘SPDC’) was a subsidiary of Royal Dutch Shell plc (‘RDS’). SPDC was incorporated in Nigeria, whereas RDS was incorporated in the UK. Two claims were brought (representing around 42,500 claimants in total) alleging that SPDC’s activities in Nigeria had caused widespread pollution to those areas of Nigeria where the claimants lived. Given the close relationship between Shell and the Nigerian government, the claimants argued that they would never get justice in a Nigerian court if they sued SPDC. Accordingly, they decided to commence proceedings against RDS in the UK’s High Court. At first instance, their claim failed, so they appealed to the Court of Appeal

By a 2:1 decision, the appeal was dismissed. Sir Geoffrey Vos and Simon LJ held that RDS did not have sufficient control over the activities of SPDC and there lacked sufficient proximity (proximity is one of the three factors required to establish a duty of care, as set out in Caparo Industries plc v Dickman). However, Sales LJ dissenting, stated that he would have allowed the appeal, inter alia, on the ground that he felt that RDS and SPDC exercised joint control over the pipeline that caused the pollution, and this established sufficient proximity.

The claimants have stated that they will seek permission to appeal to the Supreme Court.


Concerns were expressed following Chandler that it could result in a swathe of cases imposing liability on parent companies for the actions of their subsidiaries, which could result in a notable weakening of a company’s corporate personality (even if the veil was not actually being pierced). To date, this has not occurred. There have only been a handful of cases where the Chandler principle has been relied on and in none of those cases was it successful. It is clear that establishing a duty in such circumstances is not easy. However, it is interesting to see that the Chandler principle is being pleaded to establish a duty in cases other than those involving an injured employee (both Ogale and Lungowe involved environmental pollution). Should the claimants in Ogale be granted permission to appeal, it will be interesting to see what the Supreme Court makes of the principle established in Chandler. It is highly unlikely that the Supreme Court would overrule Chandler as it is arguable that the Chandler is an example of what was later stated by the Supreme Court in Prest (i.e. that liability can be imposed upon a parent company using conventional legal principles). It is more likely that the Supreme Court will seek to establish more clear principles regarding when a duty will arise.


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Revising the UK Corporate Governance Code


Following the 2016 update to the UK Corporate Governance Code, the FRC stated that it would avoid further updates to the Code until at least 2019. However, several months later, the Government published a Green Paper on Corporate Governance Reform (discussed here) and, in August 2017, the government published its response to the Green Paper (discussed here). In light of the reforms recommended in these reports, and the fact that the FRC had undertaken work in a number of related fields (notably succession planning and corporate culture), it has come as no surprise that the FRC has brought forward its plans to update the Code. In December 2017, the FRC published a consultation document in which it proposed to issue a revised Code in the Summer of 2018, which will then apply to accounting periods beginning on of after the 1 January 2019. This blog post looks at the principal proposed revisions contained in the consultation document. The consultation document also looked at revisions to the UK Stewardship Code – these proposed revisions will be covered in a separate blog post.

Length, structure and scope

The consultation document states that, in order for the Code to encourage companies to achieve high standards, it needs to ‘clear and concise’ and so the FRC has looked to ‘shorten and sharpen’ the revised Code. The revised Code is only 13 pages in length, compared to the 2016 Code, which stands at 23 pages (excluding the two schedules and appendix).

The structure of the revised Code (which has hardly changed since the 2010 version) has also been significantly amended, with some parts being removed entirely (some of these deletions have been moved to the accompanying Guidance on Board Effectiveness). The revised Code follows a five-part structure, namely:

  1. Leadership and purpose
  2. Division of responsibilities
  3. Composition, succession and evaluation
  4. Audit, risk and internal control
  5. Remuneration.

The scope of the revised Code has also received a notable amendment. Both the 2016 Code and the revised Code apply to companies with a Premium listing, but the 2016 Code provides that ‘smaller companies’ (i.e. those below the FTSE 350) are exempt from certain recommendations in the Code. The revised Code abolishes these exemptions on the ground that ‘even smaller companies should strive for the highest standards of corporate governance.’

Leadership and purpose

Section 1 of the revised Code covers board leadership and purpose. Notable revisions here include:

  • The FRC’s report on Corporate Culture and the Role of Boards stressed the importance of establishing the correct corporate culture, and so the revised Code frequently refers to the culture of the company and how this can be best promoted (see the Introduction, Principle A, Provision 2, and Principle E).
  • The revised Code contains a new Principle C which states that, in order for the company to meet its responsibilities to shareholders and stakeholders, the board should ensure effective engagement with, and encourage participation from, these parties. There is no corresponding provision in the 2016 Code.
  • Provision 3 of the revised Code contains notable new provisions regarding workforce engagement. It provides that the board should establish a method for gathering the views of the workforce (not that, given the current litigation concerning the ‘gig economy’, the Code specifically does not refer to ’employees’ but covers the entire workforce). It goes on to provide that this would normally involve appointing a director from the workforce, setting up a formal workforce advisory panel, or by having a designated NED. Provision 4 goes on to state that the annual report should explain how the board has engaged with its workforce and other stakeholders, and how the interests set out in s 172 of the CA 2006 have influenced the board’s decision-making.
  • Provision 6 contains a new provision which provides that, when more than 20% of votes have been cast against a resolution, then the company should explain what actions it intends to take to consult shareholders in order to understand the reasons behind the result. The Investment Association maintains a Public Register of FTSE companies that have encountered such levels of of shareholder opposition.
  • Section E of the 2016 Code covered relations with shareholders. The revised Code contains no such section, but some of Section E’s content has been moved into Section 1.

Division of responsibilities

Section 2 of the revised Code covers the division of responsibilities amongst the board. Notable revisions here include:

  • Code Provision A.3.1 of the 2016 Code provides that the chairman should be independent on appointment. Principle E of the revised Code and Provision 11 now provide that the chairman should be independent at all times.
  • Code Provision B.1.2 of the 2016 Code provides that at least half the board, excluding the Chairman, should comprise independent non-executive directors. Provision 11 of the revised Code now provides that independent non-executive directors, including the chair, should constitute the majority of the board.
  • Code Provision B.1.1 of the 2016 Code establishes a number of relationships or circumstances that could affect the independence of a NED. If any of these apply to a NED that the board has identified as independent, then the board should explain why it regards that NED as independent. Provision 15 of the revised Code amends this by simply stating that if any of the specified relationships or circumstances apply to a NED, then that NED will not be considered independent. Given that one of the circumstances listed is that the NED has served on the board for more than nine years, this effectively limits a NED’s term to nine years.

Composition, succession and evaluation

Section 3 of the revised Code covers board composition, succession and evaluation. Notable revisions here include:

  • The Supporting Principle to B.2 of the 2016 Code states that board appointments should be made with due regard for the benefits of diversity on the board, including gender. Principle J of the revised Code broadens this by providing that both appointments and succession planning should promote diversity of gender, social and ethnic backgrounds, cognitive and personal strengths.
  • Provision 17 expands the role of the nomination committee by providing that it should have an oversight role in relation to the development of a diverse pipeline for succession. The 2016 Code does not provide such a role for the nomination committee. Provision 17 is reinforced by Provision 23 which states, inter alia, that the annual report should describe the nomination committee’s work in relation to building a diverse pipeline
  • Provision 18 provides that, when a director is seeking re-election, the board should set out, in the papers accompanying the resolution, specific reasons why the director’s contribution is and continues to be important for the company’s long-term success. The 2016 Code does not provide for such disclosure.

Audit, risk and internal control

Section 4 of the revised Code covers audit, risk and internal control. This section remains broadly the same as Section C of the 2016 Code.


Section 5 of the revised Code covers board remuneration. Notable revisions here include:

  • A new Principle O which provides that the board should satisfy itself that company remuneration and workforce policies and practices promote its long-term success and are aligned with its strategy and values.
  • Provision 32 is new and provides that a person should not chair the remuneration committee unless he has served on a remuneration committee for at least 12 months.
  • The role of the remuneration committee has been expanded, with Provision 33 stating that the remuneration committee should oversee remuneration and workforce policies and practices, taking these into account when setting the policy for director remuneration.
  • Schedule A of the 2016 Code provides that share-based remuneration should not be payable or exercisable within three years. Provision 36 of the revised Code extends this by providing that share-based remuneration and other long-term incentives should be subject to a vesting and holding period of at least five years.


This is the most significant update to the Code in a long time, with the shortening of the Code being especially noteworthy. The result is a more concise principles-based Code, but also one which provides less guidance than its predecessor. The revised Code contains some noteworthy reforms (notably Provision 15 which relates to the independence of NEDs). However, it should be noted that this is a proposed revised Code only and a the FRC is seeking views on a number of the above amendments. Accordingly, it is possible that some of the above amendments may not make it into the final Code, or may be modified.

The Government’s Response on Corporate Governance Reform

In November 2016, the government published a Green Paper on Corporate Governance Reform (which I blogged about here). In late August 2017, the government published its response to this Green Paper consultation. Before looking at the proposals in the response document, one point is worth noting. Usually, the government will publish a Green Paper which will contain proposals for consultation, which will then be followed by a White Paper that contains detailed final plans for reform. Here, no White Paper is forthcoming and instead the government has published a ‘response’ document that contains a number of action points, the discusson of which lacks the depth and detail found in a White Paper and, as regards a number of reforms, places the empahasis on several third-party organisations such as the FRC and the Investment Association. The response document itself focuses on five areas, of which three contain substantive proposals for reform, namely:

  1. executive pay;
  2. strengthening the employee, customer and wider stakeholder voice, and;
  3. corporate governance in large privately-held businesses.

Executive pay

The response document sets out the following reforms:

  • The government invites the FRC to revise the UK Corporate Governance Code to set out the steps that companies should take when they encounter significant shareholder opposition to executive pay.
  • The government invites the Investment Association to maintain a public register of listed companies encountering shareholder opposition of 20% or more to executive pay and other resolutions, along with a record of what these companies are doing to address concerns. The Investment Association has confirmed that this register will be set up by the end of 2017.
  • The government invites the FRC to consult on a revision to the UK Corporate Governance Code and supporting guidance to give remuneration committees greater responsibility for demonstrating how pay and incentives align across the company, and to explain to the workforce each year how decisions on executive pay reflect wider pay policy.
  • The government will introduce secondary legislation that requires quoted companies to report annually the ratio of CEO pay to the average pay of their UK workforce.
  • The government will introduce secondary legislation that requires quoted companies toprovide a clearer explanation in remuneration policies of the range of potential outcomes from complex, share-based incentive schemes.
  • The government will invite the FRC to consult on a proposal to increase from three years to five years the minimum holding period for share-based remuneration.

The last major reform to the rules relating to directors’ pay came with the enactment of the Enterprise and Regulatory Reform Act 2013. Prior to the Act’s passing, the Coalition Government published a consultation document that contained a number of far-reaching and notable proposals, such as annual binding votes and votes that would require supermajorities to pass. In the event, the more noteworthy proposals were dropped and the reforms contained in the 2013 Act were rather modest (even the much-hyped binding vote has not really had much of an impact, with the vast majority of remuneration resolutions being easily passed). The same process is evident in the government’s response document, with the Green Paper’s more notable reform suggestions (e.g. annual binding votes) being dropped in favour of a much more modest set of reforms. The Conservative Party’s 2017 election manifesto also stated that ‘[t]he next Conservative government will legislate to make executive pay packages subject to strict annual votes by shareholders …’ All told, whilst there are some useful reforms here (notably, the requirement to publish pay ratios), they are unlikely to have a notable impact upon the regulation of directors’ remuneration and have largely been regarded as somewhat underwhelming.

Strengthening the employee, customer and wider stakeholder voice

The reforms contained in the response document are:

  • Introducing secondary legislation to require all companies of a significant size to explain how their directors comply with the s 172 duty. This is not an especially noteworthy reform. Directors (except directors of small companies) are already under a duty to publish a strategic report as part of the annual report. The purpose of this report is ‘to inform members of the company and help them assess how the directors have performed their duty under section 172.’ The reform does extend some requirements that only apply to quoted companies to all companies of a significant size.
  • The government will invite the FRC to consult on developing a new principle in the UK Corporate Governance Code that will establish the importance of strengthening the voice of employees and other non-shareholder interests at board level.
  • The FRC will be invited to consider a Code provision requiring Premium-listed companies to adopt, on a comply or explain basis, one of three employee engagement mechanisms: a designated NED; a formal employee advisory council; or a director from the workforce. Again, this represents a weakening of the government’s original position. The Conservative’s 2017 election manifesto stated that listed companies would be legally required to introduce one of these three mechanisms. Indeed, when Theresa May ran for the leadership of the Conservative Party, she pledged to introduce a system of worker representation on company boards. The proposals in the response document fall far below this.
  • The government will ask ICSA and the Investment Association to complete their joint guidance on practical ways in which companies can engage with employees and other stakeholders at board level.
  • The government invites the GC100 group to complete the work it is undertaking to prepare and publish new advice and guidance on the practical interpretation of the directors’ duty in s 172.

Accordingly, the one reform that the government itself will introduce (namely introducing secondary legislation to require all companies of a significant size to explain how their directors comply with the s 172 duty) is a rather modest one, whereas responsibility for all the other reforms has been offloaded to outside bodies.

Corporate governance in large privately-held businesses

Reforms here include:

  • The government will invite the FRC to work with other bodies (notably the Institute of Directors (who have already published a code for unlisted companies) and the CBI) to develop a voluntary set of corporate governance principles for large private companies. The development of a corporate governance code for large private companies is welcome (see an earlier blog post where I argued that a new code is preferable to extending the UK Corporate Governance Code), but what about public companies? The UK Corporate Governance Code focuses on those companies with a Premium listing, but governance is also relevant to unlisted public companies. We could end up with a situation where seperate codes exist for large listed companies and large private companies, but no code exists for public companies (which could be unlisted, but larger than large private companies).
  • The government will introduce secondary legislation to require all companies of significant size to disclose their corporate governance arrangements in the Directors’ Report and on their website.


Whilst some of the reforms are welcome, most are rather underwhelming and merely tweak our governance system, as opposed to bringing about any substantial change. Further, a notable number of the reforms are mere invitations to outside bodies to consider certain reforms. The press release accompanying the publication of the response document refers to a ‘[w]orld-leading package of corporate governance reforms.’ Given the modesty of the reforms, this is something of an overstatement. However, it should also be noted that the response document is very light on detail, and so final judgement can only be rendered once more detailed reform proposals are published.

The Amended Shareholders’ Rights Directive

EU Directive 2017/828 has now been published in the Official Journal and will come into force on the 9th June 2017. The Directive serves to amend Directive 2007/36/EC, which is more commonly known as the Shareholders’ Rights Directive (‘SRD’). The SRD was passed in 2007 ‘with a view to enhancing shareholders’ rights in listed companies.’ The financial crisis revealed that many shareholders supported management’s excessive short-term risk-taking and so, in 2012, the EU Commission published an Action Plan which set out the initiatives the Commission intended to take in order to enhance transparency and engage shareholders. Directive 2017/828 is the result.

The Amendments

The principal amendements to the SRD are:

  • Identification of shareholders: Shares in listed companies are often held through complex chains of intermediaries, which can make it difficult or impossible for a company to identify its shareholders. This, in turn, makes it difficult for companies to contact shareholders, which is an essential feature to facilitating the exercise of shareholder rights. Accordingly, a new Art 3a is inserted which provides that Member States shall ensure that companies have the right to identify their shareholders. To faciliate this, companies will have the right to collect personal data on their shareholders ‘in order to enable the company to identify its existing shareholders in order to communicate with them directly with the view to facilitating the exercise of shareholder rights and shareholder engagement with the company.’ Companies will be able to store this data for as long as they remain shareholders.
  • Institutional investor engagement: A new Art 3g provides that Member States shall ensure that institutional investors and asset managers comply with two requirements, or publicly disclose a reasoned explanation as to why they have not complied. The two requiremrnts are (i) institutional investors and asset managers shall develop and publicly disclose an engagement policy that describes how they integrate sahreholder engagement into their investment strategy, and; (ii) institutional investors and asset managers shall, on an annual basis, publicly disclose how their engagement policy has been implemented.
  • Institutional investor investment strategy: A new Art 3h provides that Member States shall ensure that institutional investors public disclose how the main elements of their equity investment strategy are consistent with the profile and duration of their liabilities, in particular long-term liabilites, and how they contribute to medium to long-term performance of their assets.
  • Transparency of asset managers: A new Art 3i provides that Member States shall ensure that asset managers disclose, on an annual basis, certain information to their institutional investors, such as how their investment strategy and implementation thereof complies with the arrangements in Art 3h and contributes to the medium to long-term performance of the assets of the institutional investor or the fund.
  • Transparency of proxy advisors: A new Art 3j provides that Member States shall ensure that proxy advisors publicly disclose reference to a code of conduct which they apply and report on. If such proxy advisors depart from the recommendations of this code of conduct, they shall explain from which parts they depart, provide explanations for doing so and, where appropriate, any alternative measures adopted. Where proxy advisors do not apply a code of conduct, they shall provide a clear and reasoned explanation why this is the case. All proxy advisors will be required to diclose inforamtion set out in Art 3j(2).
  • Right to vote on remuneration policy: A new Art 9a provides that Member States shall ensure that companies establish a remuneration policy as regards directors, and that shareholders have the right to vote on the remuneration policy at the general meeting. Member States may allow companies, in exceptional circumstances, to temporarily derogate from the remuneration policy, provided that the policy includes the procedural conditions under which the derogation can be applied and specifies the element of the policy from which derogation is possible. The company’s remuneration policy shall contribute to the company’s business strategy and long-term interests and sustainability, and shall explain how it does so. The remuneration policy shall explain how the pay and employment conditions of employees of the company were taken into account when establishing the remuneration policy.
  • Transparency and approval of related party transactions: Transactions with persons related to the company can adversely affect the company and its shareholders, or place the directors in a conflict position. Accordingly, a new Art 9c provides that each Member State shall define what a ‘material transaction’ is. Companies that enter into material transactions with related parties must publicly announce the transaction at the latest at the time the transaction is concluded, and provide specified information relating to the transaction. Member States shall ensure that material transactions with related parties are approved at the general meeting or by the administrative or supervisory body of the company. Where the administrative or supervisory body has approved the transaction, then Member States may require that the shareholders in general meeting then have the right to vote on the transaction.


Member States have until the 10th June 2019 in which to implement the amended Directive. Remember that, until the UK formally leaves the EU, it remains bound to implement EU law. Article 50 has now been triggered and if, as expected, the UK leaves by the end of the Art 50 period (i.e. by the 29th March 2019), then the Amended Directive will not apply, unless the UK decides to implement it prior to leaving the EU. Accordingly, it will be interesting to see whether the government decides to begin the process of implementing the Directive.

Further information

The EU Commmission’s factsheet on the SRD can be found by clicking here. The EU Council’s press release on the amendments made to the SRD can be found by clicking here.

Company Law and the 2017 Manifestos

The three main political parties have now published their manifestos for the 2017 General Election, and each of the manifestos contain some interesting company law and corporate governance-related pledges. Beginning with the Conservative Party’s manifesto, which contains the following pledges:

  • Corporation Tax will fall to 17% by 2020.
  • The rules that govern mergers and takeover will be updated. Details on this are scant, but the manifesto does state that (i) bidders will be required to be clear about their intentions from the outset of the bid process; (ii) all promises and undertakings made in the course of takeover bids can be legally enforced; and (iii) the government will be empowered to require a bid be paused to allow greater scrutiny.
  • Executive pay packages will be subject to strict annual votes by shareholders. It is not clear if the entire pay package will be subject to a binding vote or whether, as is the current case, certain parts will be subiect to a binding vote and others to an advisory vote.
  • Employees’ interests will be represented at board level, either through requiring listed companies to nominate a director from the workforce, creating a formal employee advisory council, or assigning responsibility for employee representation to a non-executive director. Employee board representation would be  significant reform that has been opposed by companies when suggested in the past, which is why it is highly unlikely to happen. If it happens, my bet would be that the government will adopt the least radical method, namely assigning responsibility for employee representation to a non-executive director.
  • The government will consult on how to strengthen the corporate governance of private companies. Given that this is a major plank of the corporate governance green paper, this is unsurprising. The question is whether this will be done by extending the UK Corporate Governance Code to cover private companies, or whether a new Code will be created (I have blogged about this here and here).

Moving onto the manifesto of the Labour Party, which contains the following pledges:

  • Corporation Tax will be increased, but small businesses will become subject to the re-introduced lower small profits rate.
  • Labour will establish a National Investment Bank, which will support a network of regional development banks.
  • Labour will amend company law (by which they presumably mean s 172 of the CA 2006) so that directors owe a duty to shareholders, employees, the customers, and the wider public. This would represent a massive shift in company law, as the long-held principle is that, generally, directors owe their duties only to the company. The issue that arises is that it is extremely difficult to effectively draft a statement of duties that can be enforced by so many persons. By making the directors owe duties to so many persons, the danger is that accountibility is actually reduced, as the directors can justify almost any action as benefitting one of these groups.
  • Labour will amend the takover regime to ensure that businesses that are ‘systemically important’ (usually defined as those whose collapse would cause a serious risk to the economy) have a clear plan in place to protect workers and pensioners when a company is taken over.
  • Labour would aim to reduce pay inequality by introducing an Excessive Pay Levy on companies with staff with very high pay. No further details on this have been provided.
  • Labour would introduce maximum pay ratios of 20:1 for companies bidding for public sector contracts.
  • Labour would scrap quarterly reporting for businesses with a turnover of under £85,000.
  • Labour would implement the Parker Review on ethnic diversity in the workplace. Quite what ‘implement’ means is unclear. Would legislation be introduced or would a voluntary goal (as with Lord Davies’s review be established) be established with backup from the UK Corporate Governance Code?

Finally, the Liberal Democrats’ manifesto pledges the following:

  • The Liberal Democrats are the only party pledging to remain in the single market.
  • Corporation Tax would be increased to 20%.
  • Tax evasion would be tackled by introducing a General Anti-Avoidance Rule.
  • Extend transparency requirements so that larger employers would have to publish the number of people paid less than the National Living Wage and the ratio between top and median pay.
  • Staff in listed companies with more than 250 employees would be given the right to request shares.
  • Strengthen worker-participation in companies by having worker representation on remuneration committees, and the right for employees of a listed company to be represented on the board. The manifesto goes on to say that the law would be changed to permit a Germany style two-tier board structure to include employees, but no change is necessary as the current law does not prohibit such a board structure. The Lib Dems likely mean that the law would change to expressly cater for such a board structure. Given the dominance of the unitary board structure in the UK, this would be a major reform, and there has not really been an appetite from UK companies to establish a two-tier board.
  • The Lib Dems would ‘[r]eform fidduciary duty and company purpose rules to ensure that other considerations, such as employee welfare, environmental standards, community benefit and ethical practice, can be fully included in decisions made by directors and fund managers.’ Section 172(1) of the CA 2006 already requires directors to have regard to most of these factors, so this might not (depending on the details) mbe much of a change.
  • The Lib Dems would ‘[r]educe the reporting requirement for disclosure of shareholdings to 1% in order to increase transparency over who owns stakes in the biggest companies.’ This would represent a significant extension of the number of persons who would be required to be listed on a company’s PSC register.
  • The manifesto pledges to require binding and public votes of board members on executive pay policies. For quoted companies, the policy section of the remuneration report is already subject to a binding vote. The wording indicates that it will be board members that will be required to publicly vote, but it is well established principle of governance that directors should not be involved in determining their own pay. Quite what a ‘public vote’ is is unclear.
  • The Lib Dems will continue to improve board diversity by pushing for at least 40% of board members being women in FTSE 350 companies by 2025. The current Hampton-Alexander Review is aiming for 33% female board representation in FTSE 350 companies by 2020. The Lib Dems also pledge to implement the recommendations of the Parker Review on ethnic diversity.
  • Companies with over 250 employees will be required to monitor and publish data on gender, BAME, and LGBT+ employment levels and pay gaps.

Oveall, all three manifestos contain some noteworthy company law and governance reform pledges. However, all the manifestos are thin on details and, as tends to be the case with company law reform, the more radical reforms will likely be killed off rather quickly. One final point worth noting is that, with the mammoth task of negotiating the UK’s exit from the EU looming, one has to ask how much time and attention the new goverment can actually devote to any of these company law-related pledges.

Tesco, False Accounting and Market Abuse

On the 29 August 2014, Tesco plc published a trading update in which it stated that its expected trading profits for the previous six months’ would amount to £1.1 billion. This figure was based on information that had been provided to it by one of its subsidiaries, Tesco Stores Ltd. This information was incorrect, which meant that the trading update overstated the company’s profits by around £326 million. On the 22 September 2014, Tesco published a further trading update in which it acknowledged that it had ‘identified an overstatement of its expected profit for the half year, principally due to the accelerated recognition of commercial income and delayed accrual of costs.’ Tesco admitted that this amounted to false accounting and market abuse.

Deferred prosecution agreement

In relation to Tesco’s false accounting, on the 28 March 2017, Tesco plc and the Serious Fraud Office announced that a Deferred Prosecution Agreement had been reached in principle (the DPA will not become effective until the court has approved it – the hearing to determine this will take place on the 10 April 2017). Under the DPA, Tesco plc will not be prosecuted for false accounting, but it will pay a financial penalty of just under £129 million and the SFO’s costs. It should be noted that the DPA only relates to the criminal liability of Tesco Stores Ltd. It does not address whether criminal liability attaches to Tesco plc, or any employee or agent of Tesco plc or Tesco Stores Ltd. Three former Tesco executives have been charged with fraud offences by the SFO and are due to stand trial in September 2017.

Market abuse

Although the £129 million penalty grabbed the headlines, from  a company law perspective, it is the market abuse issue that is more interesting. The overstatement of profits gave a false or misleading impression about Tesco plc’s shares, thereby constituting market abuse under s 118(7) of the Financial Services and Markets Act 2000 (this provision has been repealed and replaced by Arts 12 and 15 of the EU Market Abuse Regulation). Basically, the overstatement resulted in the price of Tesco plc’s shares being inflated, and persons who purchased shares based on the overstatement understandably felt aggrieved.

Tesco plc and Tesco Stores Ltd admitted it had engaged in market abuse, but instead of issuing a penalty, the Financial Conduct Authority took a different approach. Section 384(5) of FSMA 2000 empowers the FCA to require those who engage in market abuse to provide restitution to those investors who suffered loss. Accordingly, the FCA exercised this power and required Tesco to set up a redress scheme which will compensate affected shareholders (see the FCA’s press release,the Final Notice, and the Tesco Redress Scheme FAQ for more details). This scheme, which will be administered by KPMG, is estimated to cost Tesco around £85 million plus interest, meaning that, including the DPA penalty and associated costs, the affair will cost Tesco around £235 million (assuming no further liability arises).


Surprisingly, this is the first time that the FCA has exercised the power under s 384 to order the payment of compensation. All things considered, Tesco may have cause to be grateful regarding the outcome. As a result of Tesco’s cooperation and agreement to pay compensation, the company faces no penalty for engaging in market abuse. Tesco will hope that the compensation scheme will stave off litigation from shareholders (shareholders who accept compensation under the scheme will be required to sign a release giving up claims against Tesco in relation to the overstatement). However, the scheme is voluntary only and affected investors who do not accept compensation under the scheme are free to commence proceedings against Tesco. Indeed, in October 2016, over 125 of Tesco’s institutional investors commenced proceedings against Tesco, claiming over £100 million. These investors will examine closely the terms of the compensation scheme before deciding whether to continue proceedings. Tesco will hope that it can draw a line under this whole affair and move on to address the commercial challenges it is currently facing, but this will depend on whether the terms of the redress scheme are acceptable to the affected shareholders.

Reviewing the UK Corporate Governance Code

2017 marks the 25th anniversary of the Cadbury Report. Since 1998, the Combined Code and the UK Corporate Governance Code have been pioneering in improving governance standards and have acquired worldwide respect. However, in a recent speech, Sir Win Bischoff, Chairman of the FRC, noted that trust in business continues to decline. It is therefore fitting that 2017 will also see what the FRC has labelled as a ‘fundamental review‘ of the UK Corporate Governance Code. Details of the review are currently sparse, but the FRC’s announcement does reveal that the FRC will issue a public consultation on its proposals later this year. Following the 2016 update to the Code, the FRC committed to not updating the Code further until 2019. It would now seem that this commitment has been abandoned, but there are several good reasons for this abandonment:

  • The outcome of the government’s Green Paper on corporate governance reform (discussed here) will likely necessitate amendments to the Code.
  • The FRC has undertaken work in relation to succession planning and corporate culture that it will wish to incorporate into the amended Code.
  • The FRC recently set up a Stakeholder Advisory Panel and this panel will undoubtedly have a notable role to play in amending the Code.
  • Since the BHS scandal, there has been increasing pressure for the UK corporate governance system to be broadened to cover private companies (currently the Code expressly states that it applies only to companies with a Premium listing). Last week, the House of Commons Work and Pensions Committee recommended that large private companies or those that have over 5,000 defined benefit pension scheme members should be made subject to the UK Corporate Governance Code on a comply or explain basis (ICSA has made a similar suggestion). It will be interesting to see to what extent to amended Code caters for the governance of private companies.

One notable omission is any reference to the UK Stewardship Code. Sir Win Bischoff did state that the review of the UK Corporate Governance Code will cover ‘the role of stewardship’, but it is disappointing that an update to the Stewardship Code was not announced, as it is probably in greater need of an update than the UK Corporate Governance Code. It was last updated in 2012 and, whilst the FRC’s latest Developments in Corporate Governance and Stewardship Report (discussed here) does state that an update to the Stewardship Code is possible in 2018, confirmation of an update would have been welcome.

Parent Companies and the Duty of Care

One issue that repeatedly arises in corporate law discourse is the extent to which a parent company can be liable for the acts or omissions of its subsidiary. As each company in a corporate group has its own corporate personality, the general response is that parent companies are not liable for the acts/omissions of their subsidiaries. Liability could be imposed on a parent company if the corporate veil of the subsidiary can be pierced, but since the Supreme Court decision of Prest v Petrodel Resources Ltd narrowed the instances in which the corporate veil can be lifted (and narrowed the definition of what constitutes a lifting of the veil),this will be very difficult to establish in practice.

An alternative method is to establish that a parent company owes a duty of care to those affected by the relevant acts/omissions of the subsidiary. This was argued successfully in Chandler v Cape plc, and the High Court has recently revisited this method in His Royal Highness Okpabi v Royal Dutch Shell plc.


Shell Petroleum Development Co of Nigeria Ltd (‘SPDC’) was a Nigerian-based company that conducted onshore oil operations in Nigeria. SPDC was a subsidiary of Royal Dutch Shell plc (‘RDS’), a company based in the UK. It was alleged that oil spills from SPDC’s pipelines had caused ‘serious and ongoing pollution and environmental damage’ to wide areas of the Niger Delta and the waters of the Delta itself. The defendants did not dispute this (although they did attribute other causes to the damaged pipelines, such as locals damaging the pipes to steal the oil).

The claimants (of which there were around 42,500) commenced proceedings against both SPDC and RDS but, for our purposes, it is the claim against RDS which is of interest. The claimants argued, inter alia, that RDS owed a duty of care to those persons affected by the activities of SPDC, and therefore it should be liable for the damage caused.


The claimants’ case failed and the High Court held that RDS did not owe them a duty of care. Fraser J stated that the starting point was the three-part test in Caparo Industries plc v Dickman, namely forseeability, proximity, and reasonableness.Fraser J stated, at paras 114-5) that the claimants would have difficulty establishing the second and third parts of the test.

Fraser J also examined the various authorities, notably Chandler. In Chandler, Arden LJ identified four factors that could indicate the existence of a duty of care, namely:

(1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry; (3) the subsidiary’s system of work is unsafe as the parent company knew, or ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees’ protection.

Fraser J stated that, when approaching these four factors, a two-stage approach is to be adopted, namely ‘[t]he first is whether the parent company is better placed than the subsidiary. The second is, if the finding is that the parent company is better placed, whether it is fair to infer that the subsidiary will rely upon the parent.’ He went on to state that the four factors were:

descriptive rather than exhaustive, the presence of some, or all, of those factors, would bring any particular case more closely within the scope of a duty of care owed by a parent company, the existence of which has already been recognised by the Court of Appeal. The higher the number of those four factors that are present, the more likely that will be.

Fraser J held (at para 116) that none of the four factors identified by Arden LJ were present here. He also stated that ‘a duty of care is more likely to be found in respect of employees, a defined class of persons, rather than others not employed who are affected by the acts or omissions of the subsidiary.’


This case provides additional (albeit limited) guidance on the factors to be applied when determining whether a parent owes a duty of care to persons affected by the actions/omissions of its subsidiaries. Clearly, cases in this area are highly fact-specific and the relationship between RDS and SPDC was of notable importance. This is only a first instance decision and the claimants have indicated that they intend to appeal. This blog post will be updated if permission to appeal is granted and if an appeal decision is handed down.