What constitutes good corporate governance?
The attributes, skills and abilities of Directors that have already been identified underpin the effectiveness of a Board of Directors, but they all need to be brought together. The manner in which Directors behave, both collectively and individually, constitutes corporate governance.
To encapsulate the standards that a Board should attain, documents should be produced which identify the manner in which a Board should conduct its affairs. These might take the form of a Corporate Governance Policy and while there is no standard format for such a document, a typical version might encompass the matters shown below.
This particular example is based on the policy for a Lloyd’s managing agent. Naturally, it can be adapted to fit other corporate entities, as most of the criteria mentioned are applicable to others within the insurance industry.
OPERATION OF THE BOARD: WHAT GOOD LOOKS LIKE
By way of example only, the following text is mainly taken from Lloyd’s Minimum Governance Standards covering the operation of Boards of Directors:
Principle 1: An Effective Board
Every managing agent should be headed by an effective Board, which is collectively responsible for the success of the managing agent.
1.1 The Board’s role is to provide entrepreneurial leadership of the managing agent within a framework of prudent and effective controls which enables risk to be assessed and managed. The Board should set the managing agent’s strategic aims, ensure that the necessary financial and human resources are in place for the managing agent to meet its objectives and review management performance.
1.2All Directors must take decisions objectively in the interests of the managing agent.
1.3 As part of their role as members of a unitary Board, NEDs should constructively challenge and help develop proposals on strategy. NEDs should scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance. They should satisfy themselves on the integrity of financial information and that financial controls and systems of risk management are robust and defensible.
Principle 2: Clear Division of Responsibilities
There should be a clear division of responsibilities.
2.1 There should be a clear division of responsibilities at the head of the managing agent between the running of the Board and the Executive responsibility for the running of the managing agent’s business. No one individual should have unfettered powers of decision.
Principle 3: Balance of Executive and Non-Executive Directors
The Board should include a balance of Executive and non-Executive Directors (and in particular independent NEDs) such that no individual or group of individuals can dominate the Board.
3.1 The Board should not be so large as to be unwieldy. The Board should be of sufficient size that the balance of skills and experience is appropriate for the requirements of the business and that changes to the Board’s composition can be managed without undue disruption.
3.2 To ensure that power and information are not concentrated in one or two individuals, there should be a strong presence on the Board of both Executive and non-Executive Directors.
Principle 4: Board Appointments
There should be a formal, rigorous and transparent procedure for the appointment of new Directors to the Board.
4.1 Appointments to the Board should be made on merit and against objective criteria. Care should be taken to ensure that appointees have enough time available to devote to the job. This is particularly important in the case of chairmanships.
Principle 5: Information Supplied to the Board
5.1 The Board should be supplied in a timely manner with information in a form and of a quality appropriate to enable it to discharge its duties.
Principle 6: Board to evaluate its own performance
6.1 The Board should undertake a formal and vigorous annual evaluation of its own performance. Periodically, this annual review should be undertaken by a third party firm to ensure impartiality and objectivity.
This particular example is largely based on the policy for a Lloyd’s managing agent.
It can be adapted to fit other corporate entities, as most of the principles mentioned are applicable to others within the insurance industry.
In summary, an effective Board works well when its Directors are demonstrably competent. Ensuring that all Board members’ skills and technical knowledge remain current and relevant is an important element of good governance. Appropriate induction sessions for new Directors and regular, ongoing training or structured education for the entire Board is essential.
The UK Corporate Governance Code suggests that companies should state in their Annual Report how performance evaluation of the Board, its Committees and its individual Directors has been conducted. Strong disclosures may include the following details:
A NED’s attention is drawn to the following Board characteristics:
Balance of the Board
Current emphasis on diversity issues underscores this point, including a call for more women to be represented on Boards of companies. The 2011 UK GOV report – women on boards argued:
“The Boardroom is where strategic decisions are made, governance applied and risk overseen. It is therefore imperative that Boards are made up of competent high calibre individuals who together offer a mix of skills, experiences and backgrounds. Board appointments must always be made on merit, with thebest qualified person getting the job. But, given the long record of women achieving the highest qualifications and leadership positions in many walks of life, the poor representation of women on Boards, relative to their male counterparts, has raised questions about whether Board recruitment is in practice based on skills, experience and performance.”
The latest, comprehensive information and opinions relating to Women on Boards can be accessed from this link.
Related to this point, an observation by the Financial Reporting Council in the preface to Grant Thornton’s Corporate Governance Review 2013, stated that “in the context of nominations committees, many companies could improve NED and Executive Director succession planning. Board evaluation reviews frequently raise this issue and findings suggest that companies only start planning when vacancies come up rather than thinking about long-term initiatives, such as nurturing pools of internal talent to fill Executive positions. More strategic succession planning might also offset the continuing lack of female Executive Directors.”
Sir Philip Hampton and Dame Helen Alexander have led a new review on improving female representation in leadership positions in British Business. The Hampton-Alexander report will be published on in November 2018, when they will share details of progress with business stakeholders.
The Parker Review in 2017, led to the publication of a consultative report Beyond One by ’21 examining the ethnic diversity of Boards. It recommended that FTSE 100 Boards should include at least Director of colour by 2021.
Role of the Senior Independent Director (SID)
The Higgs Review recommended that Boards of publicly listed companies (PLCs) should appoint a senior independent director (“SID”) from among their independent NEDs. To qualify as “independent”, NEDs need to have the necessary independence of character and judgement but also be free of any connections that may lead to a conflict of interest.
Higgs felt that the role of the SID was important in the relationship between major shareholders and the Board, stating that “The senior independent director should be available to shareholders, if they have reason for concern that contact through the normal channels of Chairman or Chief Executive has failed to resolve.”
Not all Boards, depending on their size and the nature of the enterprise or its corporate structure, will appoint a SID. Where they are appointed or designated, SIDs usually serve as a sounding board for the Chairman and act as an intermediary for the other Directors. They are often responsible for holding annual meetings with NEDs, without the Chairman being present, in order to appraise the Chairman’s performance. SIDs would also be expected to meet with the other NEDs on other such occasions when necessary.
If a Board is undergoing a period of stress, the SID’s role becomes vitally important. He or she is expected to work with the Chairman and the other Directors, and/or shareholders, to resolve major issues. SIDs can be especially valuable in managing conflicts.
In summary, the SID’s role would usually involve:
There is no panacea for managing conflicts when they arise, although the SID, if appointed, can be a useful resource in resolving contentious issues. The following, non-exhaustive, list of considerations may be useful:
Proposals and correctly worded resolutions should always be debated fully in an informed manner. The Chair will have an important role to play in ensuring that all Directors contribute appropriately and he or she may have a casting vote. However, decisions do not have to be unanimous. Resolutions can be made by a majority decision or vote. Under those circumstances, dissenting views should be minuted carefully with attribution to the Director or NED in question.
Nevertheless, once a decision is reached then it is incumbent for the whole Board to support it, especially in public.
Terms of Reference for Boards
Terms of Reference for Boards (TORs) do not need to follow a prescribed format. Rather, they need to be drawn up in a bespoke manner that is entirely appropriate for the company in question. They need not be lengthy either, and the example shown, based upon a PLC company, will reinforce this point, insofar as it covers typical, main headings.
The items shown in the example TOR represent a purely hypothetical amalgam, only, of the type of matters that may be reserved for the Board.
Accordingly, each Board’s TOR will include, or append, a bespoke set of Matters Reserved to the Board.
According to the UK Corporate Governance Code, the Chairperson is responsible for setting the Board’s agenda, for ensuring that all Directors receive accurate, timely and clear information and that all decisions are properly debated and recorded. In addition, the Chair should be intimately involved with the annual review of the Board’s performance. Indeed, this code makes particular reference to the Chair “promoting a culture of openness and debate.”
The Chairperson also has specific responsibilities for communicating with markets or stakeholders. Those who chair listed (PLC) companies in the UK will normally need to be particularly adept at chairing meetings such as the AGM (Annual General Meeting) of shareholders, especially if results have been poor.
Much has been published on the leadership skills required of those who chair Boards of Directors. Increasingly, this role has been performed by a NED to ensure a separation of duties between the Chair and the CEO or managing Director.
While this Information Bank cannot offer detailed guidance on such leadership skills, it would be fair to say that a Chair would, as a minimum and in addition to the skills required of all Directors, need to be highly adept at:
A good Chairperson will meet the NEDs individually and collectively to discuss personal performance and Board effectiveness. He or she will mediate where there may be differences of opinion on the Board.
According to the UK Corporate Governance Code: “Chairmen are encouraged to report personally in their annual statements how the principles relating to the role and effectiveness of the Board have been applied.”
The most informative disclosures will include details of the following areas:
Crossing the Executive Line
Objectivity, challenge and criticism, as well as encouragement, should be the guiding principles of the NED. He or she does not need to get bogged down in too much detail (although NEDs need to read and understand all materials with which they are presented) and they should not “do the Executives’ job for them.” This position, clearly, does not preclude the NED from giving sound advice or guidance, but all NEDS, especially those that have recently been Executives themselves, should avoid falling into this trap.
The only notable exception to this rule might be during a take-over or merger when the Executive team may, quite appropriately, be personally conflicted. Under such circumstances the NEDs may be asked to fulfil a more hands-on role, temporarily, or act in a more Executive capacity, especially when it comes to taking decisions on behalf of all stakeholders whose interests may not align with those of the acquiring party.
Somewhat paradoxically, those same circumstances might require the NEDs, collectively, to stand back even further from the day-to-day running of the company and exercise highly objective wisdom or judgement. All will depend upon the nature of the negotiations.
Conflicts of Interest
From time to time, Directors may find themselves personally conflicted when certain issues arise or decisions are to be taken over a matter in which they have a personal interest. NEDs with portfolios of positions on other Boards may also find that they are conflicted if issues arise with other companies of whom they are a Director.
When this type of situation arises, Directors must declare their interests and act accordingly. Ideally, they should abstain from decision making or voting on such issues.
Annually, the Company Secretary or Compliance Function should compile a schedule of disclosable interests by Directors, which should extend to members of their close family.
A written policy governing conflicts of interests is a valuable aid for all Directors and Company Secretaries. Minutes of Board meetings should certainly record when a Board member discloses that he or she has a conflict of interests. The minute should also indicate how the conflict was managed: e.g. that there was a discussion on the matter, with or without the Board member being present, and that a vote was taken or a decision made with the conflicted Board member abstaining.
Individual Expertise and Diversity of Talent
The role of the Chair should be sufficiently well honed to recognise this aspect of a Board in action and the Chair should encourage optimal debate, led by those with the most expertise. This must not, however, preclude others from contributing, questioning, challenging or offering objective views.
Boards of Directors should evaluate their own effectiveness and performance annually. The Chair, Company Secretary and / or Compliance Function will generally lead the annual Board assessment. Questionnaires or surveys will often suffice, with written summaries being made available to the whole Board for discussion and follow-up action. Separately, NEDs may also evaluate the performance of the Chair, or be directed by the SID in such an evaluation.
It is increasingly common for third-parties such as accounting, legal or consulting firms to be engaged, from time-to time, but not necessarily every year, in Board evaluations. They frequently bring greater objectivity to bear, tend to be effective in their approach and often facilitate candour and required action which home-produced evaluations may not.
Boards of Directors act, primarily, on behalf of shareholders or capital providers and they need to develop good working relationships with them. It is, therefore, common for the Chairperson, who quite frequently is a NED, to be given specific responsibilities for communicating with markets or stakeholders. For example, those who chair listed (PLC) companies in the UK will normally be required to chair the AGM (Annual General Meeting) of shareholders or an EGM (Extraordinary General Meeting).
The UK Corporate Governance Code, under its Main Principles, suggests that there should be a dialogue with shareholders based on the mutual understanding of objectives. The Board, as a whole, has responsibility for ensuring that a satisfactory dialogue with shareholders takes place.
Some FTSE 350 companies include separate sections on shareholder relations in their Annual Reports, with the best organisations referring to regular dialogue with their shareholders and the availability of NEDs to meet shareholders on a regular basis or as required.
Companies also need to communicate with their shareholders on a regular basis, often quarterly or half-yearly, and their Boards have the responsibility of informing shareholders of results and dividends and allied matters, including increasing amounts of detail about how their companies are run. Apart from detailing the results, along with a description of the principal activities of the company and a review of the business, the Directors are obliged to identify the principal risks and uncertainties. For example, such risks would normally include the following for an insurance company:
Also, other pertinent considerations such as Solvency II might be reported to shareholders in the annual accounts, along with an indication of future developments.
Information that appears in Annual Reports and Accounts, whilst normally drawn up by the Finance Function, is the responsibility of the entire Board. In addition, the data itself, as well as the reporting and disclosure requirements of Annual Accounts needs to have been reviewed by the Audit Committee that is usually composed entirely of NEDs.
The Bank Of England updated their Audit Committee requirements in May 2016, details of which can be found under PS 16/16.
The information that is required is determined under protocols such as the International Standards on Auditing (UK & Ireland) known as ISAs, and those of the International Financial Reporting Standards (IFRS) body that has designed a common global language for business affairs so that Company Accounts are understandable and comparable across international boundaries. In the insurance industry, all major Reports and Accounts are drawn up in conjunction with the company’s or, in the case of Lloyd’s underwriters, the syndicate’s, auditors who will also ensure that there is adherence to specific directives such as those in place at Lloyd’s. A valuable description of the scope of an Audit of Financial Statements is to be found on the Financial Reporting Council’s website. The Chartered Institute of Internal Auditors also published their “Guidance on effective, internal audit in the financial services sector” in September 2017.
Reporting Board Activities to Shareholders
The UK Corporate Governance Code suggests that “The Board should meet sufficiently regularly to discharge its duties effectively. There should be a formal schedule of matters specifically reserved for its decision. The Annual Report should include a statement of how the Board operates, including a high level statement of which types of decisions is to be taken by the Board and which are to be delegated to management.” The best disclosures include details such as:
Reporting Audit Activities, Risk Management and Internal Controls to Shareholders
The UK Corporate Governance Code suggests that the main role and responsibilities of the Audit Committee should be set out in written terms of reference and should include: to monitor the integrity of the financial statements of the company and any formal announcements relating to the company’s financial performance, reviewing significant financial reporting judgments contained within them.
Reporting on the appointment of External Auditors is also a requirement, extending to such matters as the dates of appointment and tenure, tender frequency and processes, the assessment of the auditor’s qualifications, contractual obligations and proposed dates of future tenders.
FTSE 350 Companies are also expected to report on their risk management processes and systems of internal control. Best disclosures in these two areas of control might include the following:
In November 2017, Moore Stephens published a wide-ranging “18 risks insurers should be aware of in 2018”, which will be of interest to all Directors.
MANAGEMENT REPORTING: AGENDAS, BOARD PACKS AND MINUTES
Agendas: All Board meetings will require formal agendas. Their purpose is to give notice of the meeting and to ensure that material items are addressed.
Again, there is no specified format, although good practice would suggest, and the regulatory bodies would expect to see, agendas for regular insurance industry Board meetings contain the following types of items (which may vary according to the time of year, the frequency of Board meetings and the type of organisation):
Some agendas will specify the amount of time to be allocated to each item. Most should identify the lead or nominated Director responsible for each item and usually reference will be made to relevant sections in the Board pack or provide an indication as to whether a verbal report only is to be made.
Board Packs & Management Information (MI)
Directors should receive Board packs, or dossiers, along with the agenda at a designated time ahead of the meeting in question. The pack should contain all relevant information and identify each section with the numbered agenda.
Historically, Board packs and MI were provided in paper formats. Today, there is an increasing trend to supply them electronically and for Directors to attend Board meetings with electronic tablets such as an iPad.
There is no prescribed format, but, clearly, each section should follow the agenda precisely and be sufficiently comprehensive to inform the Board of material matters; especially if decisions are to be taken.
Ideally, each section should be preceded by a short summary with an indication as to whether the items are for noting; require a decision or need some other form of attention from the Board.
The contents should be clear, relevant and not so intensive, voluminous or opaque so as to prevent the Directors and, in particular the NEDs, from being “able to see the wood for the trees.” MI techniques that highlight key issues are to be recommended such as “exception reporting methodologies”, “dashboards” and “traffic light” or “RAG” formats (red, amber and green) that immediately draw attention to items requiring attention.
Each section of a Board pack should assist the Board in performing its duties and constitute effective reporting that supports or manifests a management control or underpins a decision that is required.
When dealing with items in the Board pack, the nominated Executive Director should address the item by reference to any additional information or by seeking responses, often through the Chair, from other Board members. It is a waste of time simply to regurgitate or read out MI that has already been circulated in the Board pack.
The purpose of all minutes is to provide an accurate record of proceedings. They also represent a valuable means of creating a “corporate history of events” for auditors, regulators and stakeholders. They may vary in style from a virtually verbatim report to a Hansard-style edited report of proceedings. They need not describe every syllable, but they should be sufficiently detailed to provide evidence of debate, challenge, clear decision making and any objections.
The PRA and FCA will expect to find recorded evidence of challenge, objections and formal dissent, notwithstanding the unitary nature of Boards in the UK.
Minutes should always describe the formal resolution of material issues.
Along with their Executive colleagues, NEDs should read draft minutes carefully, ensure that they understand and agree with the text and check them for accuracy. They should point out any inaccuracies to the Board Secretary and ensure that corrections are made, either before, or during, the meeting at which the minutes are ratified and signed by the Chairperson.
Minutes should be produced in a timely fashion (which may be specified in the Board’s terms of reference or those of the Company Secretarial Function) and they remain in draft until officially agreed by the Board, usually at the next or a subsequent Board meeting.
Along with the use of electronic media for circulating agendas and Board packs, some Boards record their meetings using audio equipment as an aid to true and accurate reporting.
Board minutes are usually discoverable if legal process is instigated, for any reason, against the company.
Boards of Directors need to delegate to the day-to-day management of a firm, and an effective way to do so is via Committees or Sub-committees of the Board, whose role is to perform specific functions and report to the Board verbally or in writing.
Each will need its own terms of reference, which, in the insurance industry are regarded as essential by the regulators. They require formal agendas and minutes so that their decisions and Executive actions can be correctly recorded; thereby creating an audit trail of their activities which supports the lines of reporting and control that need to run through and across regulated companies in the insurance sector.
As in many aspects of management, the terms of reference of Committees or Sub-committees will need to be drawn up to suit the individual organisation. There is no prescribed format, although, typically, such TORs will cover the following items (although not necessarily in the order shown):
Typical Sub-committees / Committees of the Board in the Insurance Industry:
These comprise Committees of the following type, shown in alphabetical order, although their nomenclature may vary: