Corporate Governance f o r M a i n M a r k e t a n d a i M C o M p a n i e s

Corporate Governance f o r M a i n M a r k e t a n d a i M C o M p a n i e s

23. Corporate governance towards best-practice corporate reporting John Patterson, PricewaterhouseCoopers LLP Reporting is a fundamenta part of the UK Corporate Governance Code (the Code). It is through appropriate reporting of governance that companies earn the right to the fexibiity that a principes-based framework aows. It is expected that companies wi compy with most of the provisions of the Code most of the time and indeed a report from the Financia Reporting Counci (FRC) in December 2011, Deveopments in Corporate Governance, showed 50 per cent of FTSE 350 companies caiming fu compiance and 80 per cent of the remainder compying with a but one or two of the Code s provisions. However, the UK framework cruciay aows boards to exercise their judgement in respect of their governance arrangements as ong as they expain their reasons for non-compiance with the Code. This judgement is not generay chaenged by reguators; it is the responsibiity of sharehoders to consider the judgements and the expanations that are provided when a company does not foow a certain provision. The FRC s proposed revisions to the Code for years beginning on or after October 1, 2012 incude a number of measures that are intended to enhance engagement and stewardship by buiding the confidence of stakehoders in company reporting. The hope is that this wi encourage the taking of a ong-term view in decision-making and counteract the risk of a repeat of the short-termism that is often seen as a root cause of the financia crisis. Governance reporting is an integra part of the FRC s proposas, which incude enhanced audit committee reporting. But governance reporting aso has a wider roe to pay in buiding investor The European Commission and compy or expain There is some scepticism in Brusses about the effectiveness of the compy or expain approach to corporate governance, and the wiingness and abiity of sharehoders to hod boards to account. Some in the UK may fee that its track record shoud speak for itsef, but in the current environment there is a need to demonstrate that compy or expain continues to deiver strong and effective governance, and is taken seriousy by companies and investors. Faiure to do so coud resut in an approach which coud be more prescriptive about the way companies organise themseves, and coud give more power to reguators at the expense of sharehoders. FRC: Deveopments in corporate governance confidence and encouraging the taking of a ongterm view. Governance is not just about confidence in the financia statements; it is about confidence in the company in genera. It is about showing how the company s business mode, strategy and objectives, risk, performance and reward are governed. Governance reporting is a rea opportunity to reap the benefits of the good practice that exists within companies, and to buid the confidence of investors and other stakehoders and therefore company vaue. Few companies take this opportunity successfuy. Current governance reporting practice why companies are missing their opportunities With a few exceptions, despite the huge potentia benefits outined above, the reporting of corporate governance in the UK coud do more to embrace Post-IPO considerations Page 177

Persona reporting Chairmen are encouraged to report personay in their annua statements how the principes reating to the roe and effectiveness of the board (in Sections A and B of the new Code) have been appied. Not ony wi this give investors a cearer picture of the steps taken by boards to operate effectivey but aso, by providing fuer context, it may make investors more wiing to accept expanations when a company chooses to expain rather than to compy with one or more provisions. Above a, the persona reporting on governance by chairmen as the eaders of boards might be a turning point in attacking the fungus of boierpate which is so often the preferred and easy option in sensitive areas but which is dead communication. FRC: Preface to the Corporate Governance Code The roe of auditors The roe of auditors in reviewing the corporate governance statement is set out in the Listing Rues and under auditing standards. The responsibiities are restricted to reviewing nine specific provisions of the code (C.1.1, C.2.1, and C.3.1 to C.3.7) and the going concern statement that is required of UK incorporated companies under Listing Rue 9.8.6R (3). Other than this responsibiity, auditors read the corporate governance statement for consistency with the financia statements and for any materia mis-statements of fact based on the knowedge they obtain from their other audit work. They wi not want to be associated with any miseading statements in the governance report, but this does not mean they wi ook for discosures reating to every provision of the Code. the spirit of the Code. The FRC has recognised this and in the Preface to the Code (see the pane above) it recommends persona reporting by the chairman of the company as a way of improving the situation. Why are companies missing the opportunity for effective communication with stakehoders that governance reporting represents? Why are boards risking the fexibiity to exercise their judgement that the UK framework affords? The Listing Rues and the checkist mentaity Athough reativey few of the detaied provisions of the Code require specific discosures (and these are isted in Schedue B to the Code), the Listing Rues require companies to provide a narrative statement of how they have appied its Main Principes. Many companies find that the easiest way to demonstrate this is to expain how they have compied with each of the provisions that reate to the Main Principes. The resut of this approach is often apparenty standardised discosure, as companies repeat the wording of the Code provisions. This eads to a engthy report that reads ike boier-pate and can make it difficut for the reader to identify important information from mere procedure to see the wood for the trees. Reinforcing this, many companies have aso experienced a negative reaction from sharehoder groups or proxy advisers that take a mechanistic approach to checking compiance if they attempt to omit mention of a specific provision. Our advice on this is to resist. A number of eading governance reporters do not run through each and every provision of the Code in their discosures. Simiary, externa auditors have no mandate to insist on a box ticking report (see the pane above). Corporate reporting chaenges A number of the chaenges that appy to corporate reporting in genera pay out in governance, and Page 178

there are aso a number of specific chaenges in governance reporting: Standardised discosures are seen as a safe option in corporate reporting. To give company-specific information for instance, about particuar events or chaenges that the company faces is seen as potentiay risky even where it is not obviousy commerciay sensitive It takes courage to ead the way in reporting, moving away from precedent in the form of simiar discosures pubished previousy by others. Of course arger organisations may have more resources at hand to aow them to do this, but there are many exampes of creative approaches outside the FTSE 100 Corporate reporting is used by a number of different audiences, each with differing needs; companies worry that too much customisation wi mean their reporting fais to meet the needs of a particuar group The various eements of the front haf of the annua report are often drafted separatey, eading to differing approaches and styes and aso to a ack of integration, perhaps beyond some basic cross-references. This is particuary imiting for corporate governance as it can be reated to many areas of the organisation in fact to amost everything in the annua report Governance deas with particuary sensitive areas: board-eve governance focuses specificay on the activities of the directors, and their individua characteristics, reationships and even the evauation of their performance. To hep address these chaenges it pays for there to be oversight that ranges across the whoe annua report. Assembe a group who wi be aware of the overa pan and messaging. Cutting cutter Those preparing annua reports shoud refer to the FRC s Cutting Cutter pubication. This incudes a specific discosure aid on governance reporting, but its rea importance ies in its emphasis on ony reporting information that is materia, and in a way that is open and honest, cear and understandabe, and interesting and engaging. Aso ensure that the project pan aows enough time for initia mapping out of the content and for review and integration after the content is drafted. Most importanty, corporate reporting needs to be owned by those abe to see the big picture and who have a vested interest in making sure it is communicated; the directors shoud be invoved eary enough to be abe to infuence the process. The FRC s encouragement of persona reporting on governance by the chairman recognises this, and governance reporting particuary benefits from these strategies. The FRC s proposed changes to the Code from October 1, 2012 aso incude a requirement that the board, with the advice of the audit committee, shoud set out the basis on which they consider that the whoe annua report is fair, baanced and understandabe and provides the information necessary for users to assess the company s performance, business mode and strategy. If they are introduced, these changes wi emphasise the direct responsibiity of the board and the audit committee for good reporting. Going beyond compiance starting to take the communication opportunity Because current governance reporting is often uninspired, it s not difficut to make an impression. Here are some quick wins to consider: Post-IPO considerations Page 179

Figure1: Towards best-practice reporting: the backbone of the annua report Business mode Strategy & objectives Risk Don t just report on process Meaningfu governance reporting does not just report governance processes. It reports how governance activities have been appied to the backbone of the annua report. when reporting on the board evauation, expaining why a particuar concusion was reached and what actions arose; not just setting out the process and reporting the overa concusion. Usefu tips incude: Don t just ist what the board and its committees are responsibe for; expain what they actuay did Give rea-ife exampes of what they did; mini case-studies can work we Expain how governance was appied to key chaenges or events in the year. Do this particuary where there has been controversy; readers wi not be impressed by sience on subjects they expect to see covered. Go beyond the bare facts To take one exampe, in order to compy with the Code, every company has to give information about the roes of directors and the composition of the board and its committees. The biographies of directors generay show that they are we-quaified and experienced individuas and, foowing the FRC s 2012 revisions to the Code, companies wi aso have to expain their poicies on diversity and their progress towards any measurabe objectives set. Companies can go beyond these bare facts by: expaining the directors most reevant skis or experience for the particuar board showing how the skis and experience of the directors compement each other A of this can make a rea contribution to buiding the confidence of stakehoders in the robustness and effectiveness of the board. Communicate what makes the company distinctive The business mode is part of what makes a company distinctive it shoud capture the essence of the commercia proposition. Estabishing the business mode is very much part of governance. Ensure aso that chaenges and issues in particuar industries are addressed; too many governance reports coud be picked up from one annua report and dropped into the report of another company in a different industry. Focus on the key messages and use structure to hep with this To start with, decide on a sma number of key messages for the reader to take away and ensure that they are ceary communicated. To hep do this, think about how the report can be structured. Consider communicating key messages separatey from the other required discosures and standing data. This can be done simpy by boxing out from the rest of the text. Increasingy, these messages are introduced in the chairman s persona reporting Page 180

Contro Performance Reward rather than in the main body of the governance report. A number of the discosure requirements in the Code may be met by pacing information (such as the terms of reference of committees) on the company s website. The provisions that aow for this are isted in Schedue B to the Code. Towards best-practice reporting of corporate governance Achieving good practice in governance reporting is the first step. Reay to buid stakehoder confidence means tacking matters of importance that are rarey addressed propery in governance reporting or that continue to be particuary sensitive, such as some aspects of remuneration reporting. The chaenge for companies is to move the game on. The Code and the guidance around it need to be appied in a wide range of circumstances, so they do not dea with the content of discosures in detai. This aows companies to add rea vaue; best-practice corporate reporting gets to the heart of what stakehoders want to know and governance reporting shoud be a part of this. Buiding confidence in the annua report as a whoe Foowing the financia crisis, the FRC has been behind two initiatives reated to buiding confidence in not ony financia reporting but the annua report as a whoe: Revisions to the Code As discussed above, under the FRC s proposed revisions to the Code after October 1, 2012, boards wi have to set out the basis on which they consider that the whoe annua report is fair, baanced and understandabe and provides the information necessary for users to assess the company s performance, business mode and strategy. If this is to go beyond a description of process, boards wi need to discose the key points considered in arriving at their concusion. To hep them with this, the audit committee is to report on the significant issues that it considered in reation to the financia statements and how these issues were addressed. Currenty, ony a few best-practice reporters discuss the key judgements and estimates made by the board in the preparation of the financia statements; this wi in future be part of the Code itsef. The Sharman Inquiry into going concern and iquidity risk assessments Going concern discosures have often been viewed as a technicaity, particuary where there is no perceived probem within the usua time horizon of 12 months (in the UK) from the date of signing the financia statements. Currenty, athough the FRC issued guidance in 2009 designed to improve the quaity of going concern discosures, reativey few companies have taken this fuy on board. The Sharman Inquiry, which reported in 2012, signaed a move away from the current mode where a company ony highights going concern risks when there are significant doubts about the entity s surviva to one that integrates the Post-IPO considerations Page 181

directors going concern reporting with the other eements of their discussion of strategy and principa risks. It aso signaed a move away from the current three category mode for auditor reporting to an expicit statement in the auditor s report that the auditor is satisfied that, having considered the assessment process, there is nothing to add to the discosures made by the directors. These are both rea opportunities to buid confidence in the annua report, and we encourage companies to embrace them when they become appicabe. Getting to the heart of what stakehoders want to know appied governance Stakehoders are interested in each eement of the content backbone of the annua report, and they are aso interested in how governance has been appied to each of them. But they are not interested in mere descriptions of process. To buid their confidence in the board and in the company as a whoe, stakehoders shoud be provided with information on how governance has been appied. This is not to confuse governance with management or contro ; the focus is on how the board and its committees have been invoved in the right things, and at the right time. The particuar content of appied governance discosures wi of course vary from company to company and it is beyond the scope of this chapter to go into detai, but we have provided iustrative exampes beow for each eement of the backbone. Business mode Business mode peope and reationships Many organisations rey on the expertise of their peope, buit up over many years in some cases, eading to cose working reationships that create vaue in the Peope and reationships: reporting to buid confidence in the company and the board: recognition that this is a key feature of the business mode discussion of empoyee satisfaction, incuding retention and professiona deveopment evidence that there is succession panning and a pipeine of taent appropriate recognition of the reationship between diversity in the company and understanding the customer base. business. In our experience, the importance of peope and reationships is sedom recognised in annua reports in any depth, though in such businesses we woud expect it to be a high priority year in, year out for the board and perhaps the nomination committee. Strategy & objectives Strategy and objectives mergers and acquisitions activity A ot of time is devoted to the financia reporting issues around M&A activity, such as acquisition accounting and impairment reviews, and there is generay extensive discosure of underying and adjusted profitabiity numbers, exceptiona items, and even tracking the financia benefit of M&A activity: reporting to buid confidence in the company and the board: the key issues that went to board eve significant risks that the board considered in reation to the dea (price and terms, for exampe) how the board is monitoring/driving synergies (restructuring decisions, for exampe) the outcome of post-investment reviews. Page 182

synergies. The financia statement discosures are often accompanied by commentary in the front haf of the annua report, typicay incuding some indication of future deveopments. However, there is rarey much discussion of how the underying decisions and judgements were reached by the board, or of how they continue to monitor outcomes. Risk appetite and Risk management Athough there has been an improvement in recent times in the quaity of the discosures of principa risks and uncertainties in annua reports, there is rarey any meaningfu connection between these discosures and the governance of risk. This is despite the reemphasis of the board s responsibiity for risk in the Code (see the pane above). This reworded principe focuses on risk appetite without using the specific term. In the narrative discosures of how the main principes of the Code have been appied, it is therefore particuary important to focus on this aspect of risk, which is the key ink between risk and strategy and very much a board responsibiity. The Turnbu Guidance, pubished by the FRC in October 2005, provides more information on how the board s responsibiities around risk Risk appetite and management: reporting to buid confidence in the company and the board: how the board engineers risk resiience into the company, incuding resiience against back swans, or unforeseen risk events how risk is measured and reported to the board and how governance is appied to it. Board responsibiity for risk The board is responsibe for determining the nature and extent of the significant risks it is wiing to take in achieving its strategic objectives. The board shoud maintain sound risk management and interna contro systems. FRC: UK Corporate Governance Code, Main Principe C.2 management and interna contro shoud be addressed. However, it has not tended to generate discosures that cover everything stakehoders woud be interested in. Exampe suppy chain governance. An exampe of how reporting coud be improved is governance of the suppy chain, which is fundamenta to the operation of companies and is frequenty partiay outsourced or dependent on joint ventures or associates. This brings with it a number of governance chaenges that are rarey addressed in the annua report. The Turnbu Guidance requires discosure where joint ventures or associates are excuded from the risk and interna contro systems of the group but nothing more specific than this. There is aso a tendency for such issues to be seen as beow board eve and not part of the governance to which the annua report discosures reate. To buid confidence in the company and the board, reporting might detai how a decision to outsource or pace reiance on a third party was seen by the board as consistent with the company s risk appetite. It coud aso address the question of what the board has done to make sure it s cear where the responsibiities of the company stop and start avoiding the risk of faing between stoos. Post-IPO considerations Page 183

Group and subsidiary governance: reporting to buid confidence in the company and the board: how the structure of the group/business maps to territories or ega entities how the governance structures inter-reate an outine of where responsibiities ie. Contro group and Contro subsidiary governance Annua report governance discosures tend to focus on the group, but there can be a disconnect between the group governance structures and those that operate in (often very significant) individua territories. This can ead to a ack of carity around responsibiity for matters that do not map easiy to the group structure, such as oca ega or reguatory requirements (incuding tax and pensions), and aso to uncertainty as to the responsibiities of directors in oca statutory entities. Contro anti-bribery measures The UK Bribery Act 2010 came into force in the midde of 2011 after much initia uncertainty and deays in guidance on the expectations for adequate procedures. With its widening of iabiity to those acting on a company s behaf wordwide, the Bribery Act Anti-bribery measures: reporting to buid confidence in the company and the board: how the board tracks the group s response to the new anti-bribery regime is it part of ongoing monitoring? continuous reassessment of the risks based on experience. represents a major source of ongoing reputationa risk that boards shoud be measuring and managing. Many companies currenty note that processes have been put in pace (as the Bribery Act requires) but few provide discosures beyond the bare facts. Performance Performance governance over non-financia measures Non-financia measures are intrinsicay bound up with governance, and this wi become more significant as corporate reporting moves towards integrated reporting, driven by initiatives aunched by groups ike the Internationa Integrated Reporting Counci to ink financia Governance over non-financia measures: reporting to buid confidence in the company and the board: Does the board consider these issues throughout the eements of the backbone of the annua report, from business mode to reward? Are the issues deat with by the board or are they whoy deegated to a subcommittee? performance with non-financia areas such as the environment and corporate socia responsibiity. A number of companies are aready providing performance statements on environmenta issues such as the consumption of finite resources. As these deveopments continue, stakehoders wi become more and more interested in how the board has engaged with them. Page 184

Reward reporting Reward remuneration The reporting of directors reward is part of the backbone of the annua report, and there is a particuar focus on its aignment with the rest of that backbone. This aignment is a key concern for many investor groups, incuding proxy advisers, who reguary recommend that sharehoders vote against or consider withhoding their votes on the remuneration report at the annua genera meeting. In respect of the remuneration poicy part of the report, this is to change to a binding vote from 2013, when it is panned that the Enterprise and Reguatory Reform Act wi come into force. Remuneration: reporting to buid confidence in the company and the board: showing that the remuneration committee and its chairman have been active during the course of the year, incuding taking advice from appropriate parties and engaging with stakehoders on a timey basis being cear about the performance-reward ink in a variabe eements of remuneration, and particuary the aignment of that performance with business objectives providing cear discosure of amounts earned in the year and the entitements for future years deaing head-on with specific known issues especiay where these have been raised by sharehoders recognising any industry-specific chaenges, and discussing how they have been addressed, but being carefu not to impy over-reiance on market benchmarks deaing with the remuneration of senior empoyees beow board eve cear discosure of potentia or actua exposure to compensation for oss of office. Companies remuneration poicies wi come under even more scrutiny and carefu discosure wi be one way to avert a crisis. It is certainy not in anyone s interest to create uncertainty, which may give rise to unnecessary questions. Reporting for newy isted, Standard Listed and smaer isted companies A number of specific chaenges can arise for newy isted or smaer isted companies, though some of these may aso appy to any company. Newy isted companies Athough adequate financia reporting procedures shoud be in pace prior to isting, it may take time for companies to work towards fu compiance with the Code (or compiance to the extent thought appropriate for the particuar organisation). As a Premium Listed companies must now appy the Code, those that are incorporated overseas and are therefore accustomed to other governance frameworks may take time to adjust their arrangements. This may resut in a need to expain more departures from the Code than is the case with other companies and for those provisions of an ongoing nature where arrangements were put in pace during the year the periods of noncompiance and compiance. We recommend that this is done ceary in the governance report, with areas of non-compiance at the end of the period being identified separatey. Stricty speaking, a instances of noncompiance for provisions of an ongoing nature shoud be incuded in the compiance statement required under Listing Rue 9.8.6 (6), but we beieve that it is adequate for them to be mentioned in the narrative statement under LR 9.8.6 (5), provided that the non-compiance is ceary described and the compiance statement identifies those provisions that have sti not been compied with at the end of the period. Post-IPO considerations Page 185

Compy or expain : expanations Where appropriate, companies shoud take into account the FRC s February 2012 guidance on the three eements of a meaningfu expanation: It shoud set out the background, provide a cear rationae for the action it is taking, and describe any mitigating actions taken to address any additiona risk and maintain conformity with the reevant principe. The expanation shoud indicate whether the deviation from the Code s provisions is imited in time and, if so, when the company intends to return to conformity with the Code s provisions. Standard Listed companies Athough Standard Listed companies (regardess of their pace of incorporation) do not have to report against the Code under the Listing Rues, if they appy any code (one appicabe in their country of incorporation, for instance) on either a vountary or mandatory basis, they must report against it to compy with the Discosure and Transparency Rues. Smaer quoted companies The Quoted Companies Aiance (QCA) issues guideines for smaer quoted companies on how they may impement the Code appropriatey. The Code sti appies to a Premium Listed companies, and the ony reaxations from it are for those provisions that the FRC has appied excusivey to FTSE 350 companies, mainy around the composition of audit and remuneration committees, the re-eection of directors and externa faciitation of board performance. Our recommendation is that smaer companies aim to impement the Code to the extent that it appies to them, and refer to the QCA guideines where they beieve that a specific provision does not suit their circumstances. Page 186

PricewaterhouseCoopers LLP 1 Embankment Pace, London WC2N 6RH Te +44 20 7583 5000 Fax +44 20 7822 4652 Web www.pwc.co.uk John Patterson Consutant, Assurance Risk & Quaity, London Emai john.t.patterson@uk.pwc.com John Patterson works in a consutant roe on corporate governance matters within the Assurance Practice of PwC, providing advice and updates on corporate governance deveopments to cient management and boards as we as to PwC teams. He has 15 years experience with UK pubic companies, incuding AIM, sma cap and mid tier organisations. Much of Mr Patterson s work focuses on the reporting of corporate governance, and he has contributed to a number of PwC s pubications on corporate reporting. He has aso deveoped the firm s responses to consutations from the Financia Reporting Counci, the UK government and the European Commission, incuding revisions to the FRC s UK Corporate Governance Code.

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