Ashurst Governance & Compliance Update – Issue 38
19 July 2023
19 July 2023
Welcome to the thirty-eighth Ashurst Governance & Compliance (AGC) update, the aim of which is to keep you and your board on top of the latest developments.
The Chartered Governance Institute has published the following revised documents thereby updating the original versions first published in 2021:
The updated documents have been published following a review by an independent working group chaired by Dr Ian Peters MBE, Director of the Institute of Business Ethics. The FRC has suggested for some time that the disclosure of board performance evaluations is an area of reporting in need of attention, a fact borne out by the proposed revisions to the UK Corporate Governance Code. As a consequence, these documents should be looked on as an important guide to the commission, conduct and disclosure of evaluations if they have not been considered as such already.
The Investment Association has published guidance for its members on the effective requisitioning of shareholder resolutions.
In 2020, at the request of the City Minister, the Asset Management Taskforce Stewardship Working group produced a report analysing the current state of stewardship and provided recommendations as to how stewardship in the UK could continue to evolve and retain a world leading position. Shareholders have a number of tools at their disposal to conduct stewardship, ranging from setting expectations, engaging with companies, voting on management resolutions at the AGM, collective engagement, to (ultimately) divestment.
Recommendation 5 of the Asset Management Taskforce Report on ‘Investing with Purpose: Placing Stewardship at the Heart of Sustainable Growth’ noted that 'shareholders should use requisitioned resolutions more proactively as an escalation tool and develop model resolutions to escalate a range of critical concerns with investee companies, including resolutions on climate change'. It also recommended that the industry should 'develop guidance to overcome existing barriers to requisitioning resolutions'.
The IA guidance responds to the second half of this recommendation by providing institutional investors with an overview of the key steps required to file an effective resolution at a UK-incorporated company, where shareholders think it is an appropriate escalation mechanism. It also details the key considerations and legal and operational barriers that investors may face at each of these stages as well as providing some practical information on how these barriers might be overcome or mitigated.
The guidance is centred around the key steps and actions that investors must take and the key considerations at various stages of the filing process:
In August 2022 the Financial Reporting Council commissioned independent research to better understand the influence and impact of proxy voting advisors and ESG rating agencies on actions and reporting by FTSE 350 companies and on investors (asset managers and asset owners). A link to the analytical report by the Durham University Business School and Morrow Sodali is here.
Some themes emerged that were common to both proxy advisors and ESG rating agencies, such as the quality and timeliness of their research and the extent to which they were willing or able to take account of each company’s specific circumstances. However, there are also notable differences in the use made of the research by investors, the nature of the agencies’ relationships with their investor clients and companies, and the structure of the markets for proxy voting and ESG research. For these reasons, the report assesses the influence of proxy advisors separately from that of ESG rating agencies.
Voting decisions and outcomes - While almost all investors use the services of proxy advisors, an increasing number of them ask for voting research to be based on the investor’s own in-house voting policies rather than the advisor’s standard policies. Due to limited resources, most investors will issue voting instructions based on recommendations from proxy advisors without manual intervention where the resolution is uncontroversial. While there is some evidence of correlation between negative voting recommendations and voting outcomes in FTSE 350 companies, it appears to be less extensive than is sometimes asserted. There do not appear to be many notable differences in voting behaviour based on the size of the investor or the choice of proxy advisor. Many company interviewees considered that proxy advisor methodologies should be aligned to the UK Corporate Governance Code to increase consistency.
Engagement during the AGM season - Companies value the opportunity to comment on draft research reports produced by proxy advisors for their investors to ensure they are balanced and factually accurate. Proxy advisors have adopted different policies – some provide an opportunity to comment in all cases, others only in certain circumstances, and others not all. The majority of proxy advisors will not usually engage face-to-face with companies during the AGM season, with most citing time and resource constraints as the main reason. Many investors take the same position for the same reasons.
Engagement outside the AGM season - Many companies will seek to engage with proxy advisors and major shareholders when considering changes to their governance policies and structures. This engagement typically takes place in advance of the AGM season. There was a notable difference in the percentage of FTSE 100 companies that had attempted to engage with proxy advisors (68%) compared to FTSE 250 companies (50%). The reason for this difference is not clear. Companies and proxy advisors had different views on the purpose of engagement in advance of the AGM season. Many companies sought to obtain an indication of whether or not the proxy advisor would recommend voting in favour of the company’s proposals, whereas proxy advisors viewed it purely as an opportunity to exchange information.
Most companies stated that the fear of receiving an adverse ESG rating was not a significant consideration when the company was setting strategy and developing action plans to address ESG related issues.
However, they were concerned that investors may place reliance on the headline ratings when making voting decisions, and that the potential existed for the company to be penalised on the basis of a rating that, in their opinion, did not fairly reflect the company’s actions or performance. For this reason, the majority of company interviewees concluded that they needed to ‘play the game’ by providing the information used by ESG rating agencies in their methodologies, in the hope that they would receive a positive rating.
Most investors stated that they primarily used ESG rating agencies as a source of data rather than relying on the rating itself to inform voting decisions; and some have developed their own proprietary rating systems.
Both companies and investors would welcome greater transparency on the methodologies used by ESG rating agencies including, for example, more information on the specific ESG factors covered and how they are weighted and the quality assurance process.
The Financial Reporting Council has published a report discussing Audit Committee Chairs' (ACCs) views on, and approach to, ESG activities and reporting. The research, conducted by YouGov, is the result of 40 interviews with the ACCs of predominantly listed companies drawn from a range of sectors.
The majority of ACCs viewed ESG as an important part of good business practice. Many stated that ESG has increased in importance in the last few years, both within their organisations and across industries. The Covid-19 pandemic was a trigger for both awareness and engagement in ESG, as environmental and social issues came to the forefront, for example around working from home practices and staff well-being levels.
All ACCs showed an interest in ESG and a good understanding of the ESG activities undertaken in their organisations, such as initiatives aiming to reduce plastic use and carbon emissions and increase charity engagement and board diversity. However, many are not directly involved in the decision-making processes, especially in relation to environmental and social elements and when organisations have in-house environment and social experts or sub-committees. ACC's main role appears to be related to risk and compliance, as well as ensuring ESG is effectively reported on, rather than deciding on what to implement and how.
For some ACCs, the components of ESG were seen to be connected and work harmoniously with one another. However, a small number of ACCs felt tensions can arise when trying to prioritise ESG activities with profit-making responsibilities, especially in relation to environmental activities.
Some ACCs reflected on how the success of ESG can be dependent on executive management’s interest levels and the company’s access to ESG resources. Similarly, it was noted by some that if current and potential shareholders have an interest in ESG it tends to influence the business’ attitude towards the framework and give greater importance to the company’s efforts.
Some ACCs believe that the environment has been prioritised over the other ESG areas in the last couple of years. Environment activities undertaken are wide ranging, depending on the sector, operating markets, and size of the company. Many organisations are trying to reduce their carbon emissions, workplace plastic use and encourage staff to cycle or walk to work.
The Task Force on Climate Related Disclosures was well known amongst the ACCs in the study, with TCFD recommendations being implemented by most. Those in larger companies tended to be most familiar with TCFD’s targets and better able to fulfil its requirements due to the resources they have at their disposal. There were mixed attitudes towards TCFD, including a small number of negative reactions around continual changes to reporting standards.
The importance of the social component was reported by some ACCs to be increasing, especially regarding board and senior management diversity, staff wellbeing and equal pay. Some ACCs reflected that the expansion of social activities is driven in part by societal shifts, in turn making investors more interested in companies' social policies and activities and motivating companies to place a greater focus on their social activities and reporting. Furthermore, many ACCs recognised the important role the social component plays in employee retention and attracting high quality and diverse employees.
All ACCs felt they had a firm understanding of governance activities, issues, and risks, as these activities and measures are well established. Compared with the environment and social components, it is felt to be easier to define what activities, risks and issues have to, or should, be reported on due to the UK Corporate Governance Code . Pay transparency, succession planning, remuneration and bonuses of c-suite and board members were noted by some ACCs to have grown in importance for both investors and employees in the last few years.
Some ACCs reflected that ESG was ‘too broad’ and that it continues to evolve and grow rapidly, which can make the measurement of ESG activities difficult and inconsistent across sectors and markets. Some ACCs said that it can be especially challenging to measure and report on environmental activities, particularly indirect emissions (scope 3) and the impacts on markets outside the UK and Europe.
Many ACCs felt that the increased focus on ESG in reporting was making annual reports longer and longer, thereby making it harder to identify key information. A small number were concerned that the detailed reporting requirements could lead to performative policies, rather than authentic ones which are embedded into business practice. Finally, some ACCs had time and cost concerns around reporting on ESG, especially those from organisations who do not have sufficient resources or dedicated environment and social audit specialists.
Many ACCs commented that the guidance on ESG related activities, and how to measure them, is complex to navigate - particularly for businesses with limited resources, those who operate across markets and those who have only recently begun to invest time into environment and social activities.
When asked what role the FRC could play, some, mainly from smaller organisations, said that they would welcome more practical guidance that is sector specific, especially related to measuring environment and social activities. Some ACCs would also welcome best practice examples to ensure ESG reporting is salient and meaningful, rather than adding more reporting requirements.
As part of the series of Mansion House Reforms presented by the Chancellor on 10 July, which build on the Edinburgh Reforms, the government has announced a package of updates and initiatives designed to encourage companies to grow and list in the UK.
Amongst other measures aimed at making the UK 'the global capital for capital', the government:
The Financial Reporting Council has published Insight Report: Disclosure of dividends revisited by way of an update to its 2015 FRC Lab's Project Report: Disclosure of dividends – policy and practice.
The Insight Report reflects on the fact that, as a result of the government's proposed Audit and Corporate Governance reform package, certain 'sized-based' Public Interest Entities will be required to disclose their distributable reserves and explain their board's long-term approach to the amount and timing of shareholder returns. The case studies are particularly useful.
The International Sustainability Standards Board (ISSB) has published:
These standards are the final versions of the exposure drafts that were issued in March 2022 (see AGC Update, Issue 17).
The ISSB's aim in producing these standards is to consolidate a raft of sustainability and climate-related disclosures, including the Task Force on Climate-related Financial Disclosures (TCFD) recommendations and Sustainability Accounting Standards Board (SASB) Standards). The new standards ensure that company disclosures on these issues are consistent and helpful for decision-makers including financial organisations. They are also intended to provide a single global baseline for sustainability disclosures upon which jurisdiction-specific requirements can be built.
S1 requires companies to disclose material information about all sustainability-related risks and opportunities that could affect their cash flows, access to finance or cost of capital over the short, medium or long term. It covers a wide range of environmental risks and opportunities such as greenhouse gas emissions, water pollution and waste.
S2 requires companies to disclose information about climate-related risks and opportunities that could affect their cash flows, access to finance or cost of capital over the short, medium or long term. It incorporates and augments the TCFD recommendations.
Both standards set out requirements for the content and presentation of the required disclosures.
The disclosures required by S1 and S2 will be made as a part of a company's general financial reporting package.
ISSB states that IFRS S1 and 2 are effective for annual reporting periods beginning on or after 1 January 2024. Consequently the first financial reports to use them will be published in 2025. Earlier use of the standards is allowed as long as both standards are used together and the company discloses that it is using them.
The standards contain some transitional provisions. In the first year in which a company uses the standards, companies can:
The timing of mandatory compliance will depend on the adoption of the standards into national law.
The UK has indicated it will consult on a framework that will adopt the ISSB's standards. The FCA has also said it will align its reporting requirements for listed companies with S1 and S2 once they are adopted in the UK.
The Australian Government is currently undertaking a second round of consultation on mandatory climate-related disclosures that will closely align with S1 and S2 (see Mandatory climate-related financial disclosure to be required by FY24/25 in Australia, 28 June 2023).
S1 and S2 are the first of the ISSB's standards. The ISSB is currently consulting on what other standards may be needed. Initial proposals include biodiversity, ecosystems and ecosystem services (BEES), human capital and human rights. The consultation closes on 1 September 2023.
The European Commission has published a new package of measures to bolster the EU sustainable finance framework. These include:
We have produced three briefings relating to these developments:
In overview, the aim of the package is to ensure that the EU sustainable finance framework continues to support companies and the financial sector, while encouraging the private funding of transition projects and technologies. Specifically, the Commission is adding additional activities to the EU Taxonomy and proposing new rules for ESG rating providers, which will increase transparency on the market for sustainable investments. The package aims to ensure that the sustainable finance framework works for companies that want to invest in their transition to sustainability. It aims also to make the sustainable finance framework easier to use, thereby continuing to contribute effectively to the European Green Deal objectives.
The EU Taxonomy Delegated Acts are expected to apply as of January 2024.
Regarding the proposal for a regulation of ESG ratings providers, the Commission will now engage in discussions with the European Parliament and Council.
The European Parliament has adopted amendments to the CSD3. These make a large number of changes to the draft directive, including broadening the scope of the entities and the nature of the activities captured; and provide further detail on civil liabilities and sanctions that could be imposed for non-compliance.
By way of reminder, CSD3 requires in scope companies to undertake due diligence to identify (and then prevent, mitigate or end) the actual and potential adverse human rights and environmental impacts that they have caused, contributed or are directly linked to. A company needs to consider its own operations, products and services and those of its subsidiaries and entities in its value chain with whom it has a direct or indirect business relationship (e.g. a contractor). The latest amendments clarify that due diligence should be 'risk-based' meaning that it should be proportionate to the likelihood and severity of potential adverse impacts and the severity of the actual adverse impacts, as well as the company's specific circumstances and risk factors. This includes considering the company's size, capacity, resources, sector, leverage, where it operates, and the extent of its value chain.
CSD3 applies to EU companies with more than 250 employees (previously 500) and a net worldwide turnover of more than EUR 40 million (previously EUR 150 million) or the parent company of a group with 500 or more employees and a net worldwide turnover of more than EUR 150 million (a new addition). The CSD3 also captures non-EU companies and parent companies which meet these turnover thresholds provided that at least EUR 40 million turnover was generated in the EU (parent companies also need a minimum of 500 employees).
The text is likely to be further amended before coming into force as part of the negotiation stage. Once agreed (likely to be 2024), the finalised text will be implemented on a staged basis (at three, four and five years from the CSD3 coming into force) beginning with companies, or parent companies of a group, with more than 1000 employees and a net worldwide turnover of more than EUR 150 million and companies which generate a net turnover of more than EUR 150 million in the EU, or the parent company of a group generating such turnover.
The European Commission has also published a consultation on the first set of EU sustainability reporting standards.
The Standards set out required disclosures which certain entities, including UK incorporated entities which have a subsidiary or branch in the EU, or which have securities admitted to a regulated market in the EU, will be required to disclose.
EU Member States have until 6 July 2024 to implement the Standards.
The introduction of the new "failure to prevent fraud" offence is considered to be a milestone moment for how corporate compliance programmes will be assessed in the UK.
As one of the proposed reforms under the Economic Crime and Corporate Transparency Bill (ECCTB), the new offence raises important considerations for those responsible for managing financial crime risk, particularly in relation to fraud and tax evasion. For a full summary of the new offence, see our article here.
Our further article - here - sets out the steps for compliance professionals to consider in advance of the Bill's implementation and an overview of the key tenets that should underpin any fraud compliance programme.
The government has also announced further amendments to the ECCTB, which, if enacted, are set to make further significant changes to corporate criminal liability laws.
The government has proposed widening the scope of the 'identification doctrine' - which is the principal basis for attributing liability for criminal acts of individuals to corporates - to the knowledge and actions of 'senior managers' in connection with economic crimes (including fraud, false accounting, money laundering, sanctions evasion, bribery, and tax evasion).
Our article – here - highlights the key considerations for companies in light of the proposed reforms and includes our thoughts on how this may change the approach to managing corporate criminal liability risk.
Companies House has published guidance on how to file the annual update statement required of an overseas entity and its beneficial owners or managing officers. The guidance covers what an overseas entity update statement is; when and how it must be filed; who can use the updating service; what information needs to be reviewed and updated; what to do if there are trusts involved in the overseas entity; how to obtain an authorisation code; and what verification checks need to be completed.
The guidance states that update statements may be filed online from August 2023.
The guidance addresses the following areas:
In short, where 'help and advice' from the Registrar does not secure compliance with regulatory requirements, Companies House will use a consistent and proportionate approach to enforcement. This will include, where necessary:
The Financial Reporting Council has published a thematic review of fair value measurement and, in particular, related disclosures.
IFRS 13 ‘Fair Value Measurement’, has featured in the FRC's Corporate Reporting Review team’s 'Top Ten' matters of challenge several times in the past. While the FRC believes that the application of IFRS 13 is generally satisfactorily applied by larger companies and its principles are well understood by certain sectors such as banking, insurance and real estate, smaller companies appear to struggle with the requirements.
In its summary of key findings, the FRC highlights that:
The review includes two case studies to highlight measurement issues the FRC found in its routine monitoring of corporate reporting, as well as examples of good practice.
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