Ten Hot Topics For Company Secretaries 

Applicable to: All UK listed entities that apply the UK Corporate Governance Code

In May 2023, the Financial Reporting Council (FRC) launched its consultation on revisions to the UK Corporate Governance Code (the Code). The consultation closed on 13 September 2023 and the new Code will be published in January 2024. It is intended that the revised version of the Code will apply to financial years commencing on or after 1 January 2025.

Only a small number of the original proposals set out in the consultation are being taken forward by the FRC, which the FRC says will streamline and reduce duplication in the Code. The main change will relate to internal controls. The review originally intended to improve the functioning of ‘comply or explain’ and, whilst we expect this will still be the case, this may not be confirmed until the new Code is published in January 2024.

Additionally, on 16 November 2023, the FRC published its latest Annual Review of Corporate Governance Reporting which was reported as finding ‘ongoing improvements in the quality of reporting against the UK Corporate Governance Code, but also identifies areas where many companies are still falling short’. The report confirmed that there continued to be transparency around reporting on departures from the Code but that many companies were lacking detail on how the departure benefits the Company. It was also reported that the use of boilerplate disclosures continues to be relatively common.

• Look out for the publication of the new Code and any related guidance documents in January 2024.
• Audit Committees should review internal control frameworks and procedures in line with the new Code.
• Provide sufficient and original narrative on why any Code departures benefit the company.
• Avoid use of boilerplate disclosures when reporting on corporate governance.
• Look at the FRC’s Annual Review of Corporate Governance Reporting.

Applicable to: All UK entities that apply the QCA Corporate Governance Code, including AIM, Main Market (Standard), the Aquis Stock Exchange and private companies which may opt to float in the future

On 13 November 2023, the Quoted Companies Alliance (QCA) issued its new Code. The new Code will apply for financial years coming on or after 1 April 2024. The QCA has not made too many changes in the new code principles as it was keen not to add more, or duplicate, disclosure requirements for its members. The following sections have been updated to give more guidance on how the new Code should be applied:

• Section 1 provides an overview of how to apply the new Code. Each of the ten principles should be applied together with an explanation in a company’s annual report and / or its website of how they have been applied. Where a principle is not being applied, a clear and well-reasoned explanation must be given;
• Section 2 states what the QCA considers to be good governance, how to demonstrate it and why it adds value for companies;
• Section 3 states the new Code principles; and
• Section 4 states what the roles and responsibilities for its board members and board committees should be. This will be especially helpful to those companies who are looking to be admitted to AIM for the first time.

While there are no formal requirements to cover diversity and inclusion, this could be covered by new Principles 4 and 6 which concern reporting on ESG matters and the establishment and maintenance of the Board as a well-functioning, balanced team, respectively. The new Code recommends that companies consider diversity as part of their succession planning.

New Code Principle 9 refers to the introduction of a remuneration policy which is supportive of long-term value creation, the company’s purpose, its strategy and its culture. This is a completely new principle for the QCA and reflects the increasing focus given to elements of directors’ remuneration supporting ESG matters. The QCA has also recommended an annual non-binding vote for the Remuneration Report and is recommending a non-binding vote (and binding vote for larger companies) for approval of the Remuneration Policy.

The QCA had advised that there is a transitional period of 12 months to allow companies time to adopt the Principles set out in the revised Code. Here at EQ, we held three round table sessions on the new Code for its clients in November. If you follow the Code or are considering doing so, you may be interested to read our paper analysing the changes and insights from the round table sessions and also attend a webinar we are planning in the New Year. Please contact us to request a copy of the paper and register your interest in the webinar.

• If you are a QCA member, download a copy of the new Code as well as the supporting materials which will assist with understanding what is changing from the 2018 edition.
• Undertake a gap analysis. Review the amendments and look at how each principle may be applied, along with how the revised Code may affect your company’s current corporate governance practices.
• Provide the Board with a briefing on the changes.
• Set out a list of the areas where any gaps / amendments need to be addressed, along with a timeframe.
• Consider displaying the new QCA Code Badge which has been introduced to indicate an Official User of the QCA Code. This can be displayed by anyone who has bought a verified copy of the revised QCA Code.

Applicable to: All UK FTSE 350 entities, but may be of interest to other entities with Audit Committees

For those companies where it is a requirement to have an audit committee, the responsibilities of the committee and the time commitment from members has increased over a period of years.

The Standard was applied with immediate effect to FTSE 350 companies on, initially, a ‘comply and explain’ basis until such time as legislation is enacted to establish the Audit, Governance and Reporting Authority which will make the Standard mandatory. The Standard, however, may be of interest to other companies which have established an audit committee and wish to apply the Standard as an example of good governance. The Standard has four main areas of focus:

Committee Responsibilities – including a requirement that the company manages its non-audit relationships with audit firms.

Tendering – The tendering process should be led by the Audit Committee and not by executive management. “Challenger” audit firms should not be excluded without good reason and selection criteria should be transparent and non-discriminatory.

Oversight of auditors and audit – Working to create a culture which recognises the work of, and encourages challenge by, the auditor, reviewing whether the auditor has met the agreed audit plan and that the Committee understands the reasons for any changes and obtaining feedback about the conduct of the audit from key people involved, for example the finance director and the head of internal audit, including consideration of the external auditor’s reliance on internal audit.

Reporting – The annual report should describe the work of the Audit Committee, along with a report on the activities the Audit Committee has undertaken to meet the requirements of the Standard. 

• Audit committees should familiarise themselves with the requirements of the Standard and, as a start, consider whether their terms of reference need to be updated to refer to the new Standard. The Standard is designed to be read in conjunction with the UK Corporate Governance Code and the FRC Guidance on Audit Committees.
• If your company is in the FTSE 350 you should look at how best to apply the Standard as far as possible so as to reduce the work required when it becomes mandatory.
• an Official User of the QCA Code. This can be displayed by anyone who has bought a verified copy of the revised QCA Code.
• If you have not done so already, we would advise reading the FRC's best practice guide to audit tendering.

Applicable to: All UK entities that undertake board effectiveness reviews

Ensuring a Board of Directors’ and Committees’ collective and individual performance is a fundamental aspect of facilitating good governance. Both the UK Corporate Governance Code and the QCA Corporate Governance Code recommend regular evaluation, with such evaluations being periodically facilitated by external parties. A review of a company’s Board should not be a box-ticking exercise and should be used to recognise both strengths and weakness of the Board, assess composition and identify areas of development.

Through having to address issues which would otherwise perhaps be left unearthed or avoided, improvements can be implemented and a path forward can be agreed upon. It is just as important to also monitor progress against the action plan at regular intervals throughout the year, which will enable the Board to demonstrate how it continues to improve and evolve year on year.

The Corporate Governance Institute (CGI) conducted a review of the effectiveness of independent board evaluation in the UK listed sector in 2023 and concluded that there was scope for a broader adoption of existing good practice in the way that external reviews are conducted. As such, the CGI has released a number of guidance and good practice documents to assist both companies and reviewers in the process. Although they have been written primarily with FTSE350 in mind, other organisations are encouraged to use them. Recommendations include setting the selection of the external reviewer as a matter for the Nomination Committee, and to disclose in the annual report whether the CGI principles have been followed.

• Review the CGI guidelines and best practice documents to understand where improvements can be made to your existing board effectiveness reviews.
• Work with the Chair to consider how to enhance reviews whilst perhaps seeking feedback from other members of the Board.
• Use the CGI’s ‘Reporting on Board Performance Reviews: Guidance for listed companies’ guidance note to ensure the correct level and content of the disclosures within your annual report as required by the UK Corporate Governance Code. 

Applicable to: All UK Main Market and AIM entities

Additionally, it is useful to note that in its annual review of corporate reporting published in October 2023, the FRC highlighted a number of financial reporting areas in which companies should pay particular attention, including impairment, judgements and estimates and cash flow statements as well as the assumptions underpinning the values of assets and liabilities in their financial statements.

On climate related reporting, there are also considerable uncertainties surrounding companies’ exposures to climate change and their plans for the transition to a low carbon economy.  For premium listed companies, who are now in their 2nd cycle of providing TCFD disclosures in their reporting, the FRC expects clear statements of consistency with TCFD which explains whether management considers they have given sufficient information to comply with the framework in the current year.

• Take a look at the FRC’s Annual Review of Corporate Reporting.
• When drafting the Annual Report and Accounts, ensure disclosures around the effects of the environment on the financial and narrative reporting are consistent and sufficiently linked and/or signposted throughout the report.

Applicable to: All UK entities within scope

The Companies (Strategic Report) (Climate-related Financial Disclosure) Regulations 2022 amended sections of the Companies Act 2006 to place mandatory requirements on certain companies to incorporate TCFD-aligned climate disclosures in their annual reports. The Limited Liability Partnerships (Climate-related Financial Disclosure) Regulations 2022 were also published on the same date, which make these disclosures mandatory for certain limited liability partnerships.

Those companies that are in scope are as follows:

• UK companies with more than 500 employees and which have either transferable securities admitted to trading on a UK regulated market or are banking companies or insurance companies (namely those UK companies that are currently required to produce a non-financial information statement);
• UK registered companies with securities admitted to AIM, and which have more than 500 employees;
• UK registered companies not included in the categories above, which have more than 500 employees and a turnover of more than £500 million (high turnover companies);
• Large LLPs, which are not traded or banking LLPs, and have more than 500 employees and a turnover of more than £500m; and
• Traded or banking LLPs which have more than 500 employees.

• For companies with a 31 December 2023 year end, this will be the first year that they will be required to include these disclosures in their annual reporting.
• The Strategic Report will need to contain a Non-Financial and Sustainability Statement which should contain the disclosures set out in the Regulations.
• For further information we would recommend reading the government’s non-binding Q&A Guidance (Mandatory climate-related financial disclosures by publicly quoted companies, large private companies and LLPs) on how to apply the new requirements.

Applicable to: All UK Main Market and AIM entities within scope

Two IFRS Sustainability Standards (the Standards) have been issued by the International Sustainability Standards Board (ISSB): 1) General Requirements for Disclosure of Sustainability-related Financial Information (IFRS S1); and 2) Climate-related Disclosures (IFRS S2). IFRS S1 sets out requirements for companies to disclose forward looking sustainability and related risks and opportunities that they face. IFRS S2 sets out specific climate-related disclosure standards that need to be met, with TCFD at the heart of it.

The Standards are effective for annual reporting periods beginning on or after 1 January 2024 although it is up to individual jurisdictions to decide whether companies need to adhere to the Standards. In the UK, the government has indicated that there will be a consultation on implementation to which listed companies are encouraged to respond. 

So although the ISSB standards won’t replace the TCFD disclosure framework immediately, it is strongly recommended that listed companies start considering the Standards now and to build them into future plans.

Furthermore, the UK Transition Plan Taskforce (TPT) published its final disclosure framework for climate transition plans and accompanying implementation guidance on 9 October 2023. This builds on IFRS S2 and all companies will be required to comply with the elements of the disclosure framework. The framework sets out best practice guidance on transition plan disclosures, recommending disclosures in nineteen areas, grouped under the broad headings of foundation, implementation strategy, engagement strategy, metrics and targets, and governance.

• The FCA recommends that listed companies align their existing reporting with the Standards and TPT framework on a voluntary basis until any future requirements are confirmed.  The consultations are expected to take place in 2024, with a likely implementation at the start of the 2025 financial year.

Applicable to: All UK Main Market and AIM entities

As always, it is sensible to start planning your company’s AGM well-ahead of time. The 2023 AGM season showed us that companies are making notable shifts in the timing of their AGMs as well as the format. Many continue to explore the options of alternative locations, slightly more relaxed formats, different staging and seating options, whilst at the same time having to prepare for the possibility of disruption which is a recurring theme throughout every AGM season.

EQ Advisory believes that there could be a stronger theme around stakeholder relations during the 2024 AGM season following many companies having amended their Articles of Association to be able to hold hybrid meetings. It is crucial to ensure that the voice of the shareholder is not muted, and as such it is once again unlikely that virtual only shareholder meetings will gain much support. It is also expected that climate change, executive remuneration and board composition will also feature as key AGM trends during 2024.

• Consider any feedback from your last AGM’s wash-up meeting and explore whether changes to the location / format / timing / presentation of the next AGM would further enhance engagement with shareholders.
• Understand the Board’s collective view on your company’s AGM and how they see it potentially evolving. What is their ideal AGM set up? Are disruptions becoming an increasing concern for the directors? 
• Review your company’s articles of association and identify whether there are any amendments in respect of AGMs that need to be considered by the Board.

Applicable to: All UK Main Market and AIM entities

Key agencies with influence over UK listed company registers are Institutional Shareholder Services (ISS), Glass Lewis, Institutional Voting Information Service (IVIS) (part of the Investment Association (IA) ) and PIRC, although there are others. All will issue research reports on FTSE listed companies, and some will also issue reports on AIM companies. Proxy voting policies and guidelines applicable for 2024 are being published, with Glass Lewis publishing on 16 November, which can be found here. We expect ISS and the IA Principles of Remuneration to be published during November and in Q1 2024 we expect publication of the IA Shareholder Priorities and PIRC guidelines.

• Consider if any of your shareholders would be likely to follow the recommendations set out in any of the proxy voting policies.
• Monitor key changes to policies which may be published by the agencies themselves, or please subscribe to our CGPro Network monthly updates where we will issue a summary of key changes in due course.

Applicable to: All UK entities

Some of the initial key changes introduced by the Act due to come into force in early 2024 are:

• An increase in Companies House filing fees from early 2024.
• Every UK company must have an appropriate registered office address and registered email address. Failure by a company to notify Companies House of its appropriate email address shall constitute an offence for which the company may be fined.
• The requirement for members to confirm they are forming companies for a lawful purpose on incorporation and to re-confirm this each year in their annual confirmation statement.
  
  

It is important to note that there are two sections of the Act that will come into force on 26 December 2023:

• Section 196, 197,198 & Sch. 12  (provisions relating to the change to the identification doctrine); and
• Section 213 which relates to reports on the implementation and operation of Parts 1 to 3 of the Act.
  
  

Some measures will not be introduced straight away as Companies House have advised that many changes need system development and secondary legislation before they can be introduced. The following changes will come into force once this has been completed:

• Changes to statutory register requirements.
• New identity verification requirements for company directors, PSCs, and those delivering documents to Companies House. Businesses shall need to put in place systems and processes to comply with these new requirements.
• Companies House will have more power to query and reject information, as well as potentially remove information on the register.
• The power to require all accounts to be filed online. Businesses should start planning now for the transition to online accounts filing. This may involve ensuring that they have the necessary software and hardware in place, training their staff on how to file accounts online, and reviewing their internal processes to ensure that they are compatible with online filing.
• Small and micro companies will be required to file both their profit and loss and balance sheet. Small companies not preparing accounts under the micro entities rules, will be required to file a directors’ report.

Contributors:

Anne-Marie Clarke, Sian Cotton, Leanne Davidson, Monika Degun, Emma Hunt, Matthew Jones, Georgina McHugh and Reynolds Robertson.