Corporate Governance and Insolvency

Andrew Griffiths Excerpts

Tuesday 20th March 2018 Commons Chamber

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Andrew Griffiths)]

I am pleased to announce that the Government have today published a consultation paper on corporate governance and insolvency. Copies have been placed in the Library of the House.

The United Kingdom is recognised as having a leading international reputation for corporate governance. That gives us an international competitive advantage, and is an important factor in making the UK the best place in the world in which to invest and do business. The Government are determined to ensure that our corporate governance regime remains the envy of the world.

Large corporate failures rarely happen, but when they do, their effect on stakeholders such as employees and smaller suppliers can be very damaging. In those circumstances, it is important to ensure that those in charge of the company concerned act properly and fully discharge their responsibilities. The Government are determined to ensure that our corporate governance framework clarifies those responsibilities, protects the economy and enhances public confidence, while continuing to foster conditions for business to thrive.

Last year we announced a number of reforms to strengthen the corporate governance framework in relation to executive pay, the voice of employees and wider stakeholders in the boardroom, and corporate governance in large privately held businesses. Those are now being delivered, and all of them will contribute to more robust and well-founded decision making in our large companies. We are determined to learn the lessons from corporate failures such as Carillion. We believe that we can do more to strengthen the corporate governance framework as it applies in insolvency situations. We intend to reduce the risk of major company failures occurring through shortcomings of governance or stewardship, and to strengthen the responsibilities of directors of firms when they are in or approaching insolvency.

The consultation will focus on three specific measures. Considerable public concern arises when owners of a distressed business, including a business within a group of companies, sell it on without proper regard for its future prospects or the interests of its creditors and employees. We propose to require directors, including directors of holding companies in respect of sales of subsidiaries, to have a greater regard to any future consequences of the sale of an insolvent or near-insolvent company for which they are responsible. In doing so, however, we will ensure that we do not put barriers in the way of credible business rescue efforts. We do not want to make it impossible to rescue businesses in distress.

Considerable public concern has also been raised when a company in financial difficulty has been rescued by new investment, only to find when it subsequently fails that the new investors have set up a series of complex financial schemes to protect their investment or minimise their losses, at the expense of other creditors. The Government will consult on measures to give insolvency practitioners the additional necessary powers to claw back, for the benefit of creditors, money that has been siphoned off through complex financing arrangements.

Concerns have also been raised—by, among others, a number of hon. Members—about the difficulties that arise when a company has been dissolved, but it is then found that it has outstanding debts or there have been allegations of director misconduct. Those dissolved companies often reappear, phoenix-like, in a slightly different form and with a slightly different name, and start operating again. At present, the Insolvency Service does not have the necessary powers to investigate such cases, and we are determined to ensure that it does.

These measures will complement those published yesterday by the Department for Work and Pensions in a White Paper entitled “Protecting defined benefit pension schemes”, which provides for stronger powers for the Pensions Regulator to prevent and punish those who would deliberately endanger a defined benefit pension scheme.

Corporate failures such as Carillion have raised concerns about some other aspects of our corporate governance framework. I do not wish to anticipate the current investigations of the circumstances leading up to Carillion’s failure, but I intend to use the consultation to seek views on a number of areas in which we may be able to do more to strengthen the rules within which UK companies operate. Those areas include the questions of whether steps should be taken to improve governance, accountability and internal controls within complex company group structures, and whether there are further opportunities to strengthen the role of shareholders in stewarding the companies in which they have investments. While the payment of dividends should remain for the directors to decide, having regard to their obligations and guidance, there is the question of whether the legal and technical framework within which these decisions are made could be improved and made more transparent and fairer. There are also questions about whether the commissioning and use of professional advice by directors is done with a proper awareness of directors’ duties, and how the supply chain and other creditors can be better protected in the event of major insolvency while preserving the interests of shareholders.

The reforms we propose will help prevent corporate failure and will strengthen the UK’s business environment, contributing to the success of our industrial strategy, and will cement our reputation as one of the best places to work, invest and do business. I commend the statement to the House.

[Several hon. Members rose—]

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[Laura Pidcock (North West Durham) (Lab)]

I thank the Minister for advance sight of his statement and for making it in good time.

There are two substantive proposals: on clawback and on disqualification of directors. There is, however, already provision in insolvency law for clawback of assets, for example assets sold at an undervalue. There is also provision in company law for disqualification of directors due to incompetence or recklessness. The proposals set out by the Minister on clawback are extremely unclear. Can he explain how these provisions add to existing rights, rather than repeat them?

Secondly, there are a number of much vaguer promises. What do these mean? On giving the Insolvency Service new powers to investigate directors of dissolved companies, what will these new powers be and how would they militate against reckless behaviour? There is also the consideration of the legal and technical frameworks within which decisions are made on payment of dividends and how that can be improved and made more transparent. What does that mean? How can it be made more transparent, and how would greater transparency protect against greed and excessive payment of dividends, as we saw with Carillion? Then there is the strengthening of the role and responsibilities of shareholders in stewarding the companies in which they have investments, and, again, that is vague. What does it mean? Frankly, these are meaningless platitudes.

Thirdly, the Government again appear to be consulting, rather than acting. Do the Government agree that it is time for action, not consultation? They are also consulting on the Taylor review, which in itself was a consultation. What good are these consultations to people currently working in companies providing public services at risk of collapse?

Fourthly, the Government are certainly not known for being proactive; rather, they are always mopping up after the event. None of these problems is new. Companies going insolvent and leaving pension deficits and asset-stripping is not novel; we need only look at the case of BHS. These are problems that the Government should already have anticipated. Why has it taken the Government until now to begin to act, and why do they take only tentative steps?

Fifthly, we must have a bolder and more imaginative approach to corporate governance. Large companies are not the toys of directors and shareholders. They do not exist merely to make a small group of people excessively wealthy. They are the product of the hard work and effort of their workforce and suppliers, and they provide services that the public use. Short-termism is often at the heart of shareholder decisions. How do today’s proposals safeguard the long-term interests of companies, for the workforce and for the public good?

Sixthly, have the Government made any assessment of the viability of Interserve and any companies with public sector contracts? What steps are the Government taking to ensure these companies do not collapse? Will the Government institute project bank accounts for major public construction projects, mandate and enforce payment of public sector contractors within 30 days and set up a new model that allows them to step in when construction companies collapse, all of which Labour has called on the Government to do?

Lastly, how would any of these proposals meaningfully have helped the workers, pensioners and suppliers of Carillion? The amount paid in dividends at Carillion was the same as the pension deficit over the same period. Have the Government done any assessment of what more the workers, pensioners and suppliers would have received under these new plans, and if not, why not?

[Andrew Griffiths]

A little like a machine gun, those questions came thick and fast, and I thank the hon. Lady for them, but I am somewhat surprised. When Carillion went into insolvency the hon. Lady and her partner the hon. Member for Salford and Eccles (Rebecca Long Bailey) demanded that we learn the lessons from the Carillion failure. Today, just a few weeks later, we have come forward with proposals to prevent something similar from happening, yet she criticises us for a failure. Her colleague the hon. Member for Salford and Eccles criticised us in Labour’s press release today for yet another consultation, and then said that Labour has

“launched our own review into corporate governance”.

The Government’s measures will make a massive difference to prospects and the way in which our companies are regulated, to ensure a more robust and accountable regime within the boardroom. The hon. Lady fails to mention the fact that yesterday the Department for Work and Pensions brought forward a White Paper that introduces a huge number of extra regulations and gives powers to the Pensions Regulator to impose punitive fines, civil fines, criminal sanctions, and director disqualification. The hon. Lady asks what we have been doing during our time in office: we brought in pay ratio reporting, a new register of companies for significant shareholder opposition, and we have strengthened the voice of the employees and representatives in the boardroom.

The hon. Lady talks about Interserve. It would be inappropriate for me to give a case-by-case running commentary on the financial probity of private businesses, particularly as that could impact on their share price. I am sure somebody of the hon. Lady’s experience will understand that.

The hon. Lady talks about project bank accounts. As she will be well aware, in January, the Government consultation on project bank accounts closed, and we will be making our proposals in the coming weeks. She talks about payment in the public sector, and I can inform her that the special manager in relation to PwC has already agreed that companies providing services to Carillion will be paid within 30 days, and that is a requirement for all contractors who accept Government contracts. We will make further proposals about how we can improve that and make it robust.

The hon. Lady talks about disqualification. Directors can be disqualified for up to 15 years, and that prevents them from acting as a director, and taking part directly or indirectly. Anyone contravening a disqualification is committing a criminal offence, so these are real punitive powers.

The hon. Lady talked about dividends. There is nothing wrong with healthy companies paying dividends. In fact many of our pension schemes rely on the profits paid from dividends. The hon. Lady talks about dividends as if they are a dirty word, but in a healthy business they are something to be applauded.

The House can be reassured that this is just the next step in a robust, detailed, full review of our corporate governance regime to make sure that we protect the taxpayer, the pensioners and the workers in all those companies who do such a good job.

[Sir Desmond Swayne (New Forest West) (Con)]

What is the Minister’s ambition for when his excellent proposals will be implemented?

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[Andrew Griffiths]

As my right hon. Friend will know, we have not hung about in relation to improvements within the corporate governance structure. We will soon lay a further statutory instrument which will enhance even further the corporate governance measures we have introduced. The consultation will take place within the normal rules of a consultation, and we hope to bring forward proposals as a matter of urgency.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

I thank the Minister for giving me advance sight of his statement. On engagement, will the Government consider proposals to force chief executives and company directors to engage directly with small business owners or groups of affected individuals? In the recent instances involving the Global Restructuring Group and the Royal Bank of Scotland branch closures, there has been a refusal on the part of directors to meet those affected. As my hon. Friend the Member for Glasgow North (Patrick Grady) pointed out, a lot of the problems that this consultation seeks to address could have been avoided simply through early engagement with those in charge.

With prohibitive costs often preventing individuals from pursuing legal options after being affected by insolvency, will the Government’s strategy look at ways of ensuring that legal recourse is available to those who will already be in financial difficulties as a result of insolvency? On contract and pensions protections, small businesses should not be the ones to suffer when a failed large company goes bust, and it should not only be in high-profile cases that the Government step in to protect pensions. What measures will this strategy take to ensure that small and medium-sized enterprises are protected when contracts or payments are halted due to a large company collapsing, and that any protection for creditors is mirrored by protection for workers and pension holders? These proposals are aimed at improving the range of options available following a company becoming insolvent. However, a proactive approach could help to prevent that from happening in the first place. Does the Minister agree that one way to ensure this would be for organisations to take profit warnings seriously and not to continue to hand out contracts to firms that issue them?

[Andrew Griffiths]

I thank the hon. Gentleman for his detailed and important questions, many of which related to small businesses. As the Minister with responsibility for small businesses, I take those questions extremely seriously. It is not just large corporate collapses, such as that of Carillion, that affect the thousands of small businesses in the supply chain. The collapse of a small business can affect other small businesses as well. We have all seen cases in our constituencies of small businesses losing money because of phoenix businesses that go into liquidation, change their name and reappear. It is the same people selling the same products, fleecing people time and again. We are giving the Insolvency Service the ability in this consultation to investigate companies that have already been dissolved, and that will go a long way towards sending the clear message to directors who think they can get away with fleecing small businesses in that way that the Insolvency Service will come and get them.

The hon. Gentleman talked about pensions. It is important that directors should clearly understand, through this White Paper and through the consultation, as well as through the Department for Work and Pensions White Paper, that there will be consequences if they fleece their pension fund, that there will be fines and penalties and that they could spend time in prison if they have been found to be fleecing their pension fund in an unacceptable way.

The hon. Gentleman also talked about the need for small businesses to be treated in an ethical way. In the spring statement last week, the Chancellor demonstrated a clear recognition and understanding that small businesses were being fleeced, particularly in relation to late payments. He said that he would consult on how we could end the “scourge of late payments”. If we could do that, we would see £14 billion taken from the pockets of big businesses and put into the pockets of small businesses. Also, when insolvencies such as that of Carillion do happen, payments will stay in the bank accounts of the company that had gone bust not for 128 days but for only 30 days.

[Craig Tracey (North Warwickshire) (Con)]

I welcome this announcement. As a former business owner myself, I have seen the impact, particularly on small businesses, of large companies becoming insolvent. Does the Minister agree that it is crucial that we protect the small businesses and employees in the supply chain?

[Andrew Griffiths]

I agree with my hon. Friend. This is why we are specifically consulting, in this document, about what more we can do to protect small businesses. In lots of these failures, we have seen clever directors with clever advisers, clever lawyers and clever tax accountants putting in place a regime that allows them to walk away scot-free while hard-working businessmen and women in our constituencies pay the price. This consultation looks at how we can put an end to that and be on the side of the small guy, not the big guy.

[Catherine West (Hornsey and Wood Green) (Lab)]

In the consultation, will the Minister consider extending the 30-day limit for late payments to other non-governmental contracts, to create a new way of doing business? Also, what will he do to protect apprentices who are often caught in the subcontracting chain and who lose their apprenticeships with SMEs, which are the lifeblood of our economy?

[Andrew Griffiths]

The hon. Lady asks two important questions. The Government have a role to play in this as a customer. We give billions of pounds of contracts and we have the power in our own hands to demand that the supply chain is treated properly. I can assure her that, in the very near future, we will be coming forward with a clearer set of principles and tools to ensure that the supply chain is treated properly and paid fairly, using the 30-day terms. That is what we expect of our suppliers. I agree with her point about apprentices. Unfortunately, we have to accept that there will always be businesses that go bust. That is one of the realities—[Interruption.] That is the way in which the business environment works. We are putting the employees at the heart of this consultation and at the heart of the decisions we make.

[Stephen Kerr (Stirling) (Con)]

I congratulate the Minister on his statement and on launching this much-needed consultation. As a member of the Select Committee that is inquiring into the collapse of Carillion, I should like to share with him the fact that one of the startling things we discovered was that the company could not even give the Insolvency Service the names of all the directors of all companies in the group. Does he agree that steps should be taken to improve governance and accountability in groups of companies with complex structures?

[Andrew Griffiths]

My hon. Friend has hit the nail well and truly on the head. I commend the work that his Select Committee has been doing in shining a light on the realities of the way in which Carillion operated. In the very early days of the Carillion collapse, when the Government were looking to protect those vital services that were being delivered and to protect the 18,500 people employed by the company, it became clear that it was a hellishly complicated business with a hellishly over-complicated structure. It is still proving a difficult job to untangle the web of the Carillion business structure. If it is difficult for the Insolvency Agency to do that, so many weeks on, how much more difficult must it have been to run the business? We need clear, accountable business structures in our businesses today.

[Sir Vince Cable (Twickenham) (LD)]

I welcome this sensible set of proposals, particularly those relating to value extraction through complex arrangements. What can the Minister currently do, and what will he be able to do in the future, in respect of companies such as Toys R Us? It had a management team, led by a man called Frank Muzika, which was able to loot the company over a long period of time and load it up with debt using complex instruments and tax havens, leaving behind a legacy of a £580 million pension fund and 3,000 redundancies. What can the Minister do?

[Andrew Griffiths]

I thank the right hon. Gentleman for his question. He clearly has a vast amount of experience as a former Secretary of State in our Department. He is right to identify the value extraction element in this document. When a business is taken over, we often see the directors of the purchasing company put in place complicated measures to protect their own backs, to ensure that, whatever happens to the business, they will not be impacted. The powers proposed in this consultation would allow us to recoup and recover the amount of money involved, not just for shareholders and directors but for contractors and creditors in the supply chain. In relation to Toys R Us, he will recognise that some businesses will always fail. However, the Government are clear that this set of measures will put an emphasis on the responsibilities not just of directors but of shareholders. It is an important point that shareholders—particularly institutional shareholders—should have a voice in the way in which these businesses are run.

[Jeremy Lefroy (Stafford) (Con)]

I commend my hon. Friend for his statement, for this consultation, and for standing up for small businesses. Will he extend the consultation—or perhaps have a future consultation—to look at the forced liquidations of often small and sometimes slightly vulnerable businesses by banks and other secured creditors, which are totally unnecessary, and could be resolved by other means, thereby maintaining jobs, employment and prosperity in our constituencies, as opposed to leaving bust businesses that should be thriving?

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[Andrew Griffiths]

In recent weeks, we have seen the impact that the banks can have on small businesses when they act inappropriately. I have been meeting the all-party parliamentary group on small and micro business recently to see how we can get more accountability; I know that my hon. Friend is a member of that group. My concern is that small businesses are shying away from finance—shying away from taking credit from the banks because of the way they have been treated. I would be delighted to meet my hon. Friend to talk about his ideas.