Essential Corporate News – Week ending October 12, 2018

Welcome to Essential Corporate News, our weekly news service covering the latest developments in the UK corporate world.

On October 8, 2018 the Financial Reporting Council (FRC) published a report setting out the work the FRC has undertaken in the last year to drive the delivery of consistent, high-quality audit by UK firms and address specific risks and issues. In line with the FRC’s aim to promote transparency and integrity in business, the report considers auditor independence, audit quality, the future needs of investors and corporate viability.

The report highlights several key themes, including:

• Auditor independence – Confidence in the independence of the auditor influences public confidence in audits and so the FRC plans to review the effectiveness of the rules on auditor independence. Specifically, the FRC is looking into whether consulting work performed by an auditor on a company it is auditing should be banned to prevent auditor independence being compromised. The FRC will work closely with the Competition and Markets Authority (CMA) in this area.
• Viability – Taking lessons from recent company failures, the FRC will look to develop proposals to strengthen requirements on auditors when considering whether an organisation is a going concern. This includes matters concerning the responsibilities of auditors in assessing companies’ statements on their longer-term viability and whether auditors should report publicly on their views of the realism of assessments made by companies.
• Investor needs – The FRC will be conducting a review of the work auditors do on the front half of the annual report to assess whether auditors are undertaking enough work to conclude it is not materially misstated. In addition to this, the FRC will soon launch a major review of stakeholders’ needs for information in corporate reports and will consider to what extent such information needs to be assured.
• Audit quality – The FRC has implemented an enhanced programme of audit firm monitoring. In addition, the FRC has improved its enforcement capacity to ensure that cases are concluded faster and has amended the sanctions framework to ensure that penalties issued reflect the gravity of the issue in question.

(Financial Reporting Council: Developments in Audit, October 2018 – 08.10.18)

On October 9, 2018 the Competition and Markets Authority (CMA)  launched a market study into the statutory audit market in the UK to determine whether bit is working as well as it should. As part of its review, the CMA will investigate whether the sector is competitive and resilient enough to determine whether it is working as well as it should to maintain high quality standards. The review focuses on three sets of issues:

• choice and switching of auditors;
• the long-term resilience of the sector; and
• the incentives between audited companies, audit firms and investors.

The CMA will focus on what might be the most effective and proportionate remedies but will look particularly at:

• ideas to improve incentives;
• further separating audit and non-audit services; and
• reducing barriers to entry and expansion of non-Big Four firms.

Comments on the issues raised are invited from interested parties by October 30, 2018.

(CMA: Statutory audit market – invitation to comment – 09.10.18)

(CMA: Statutory audit market – market study notice – 09.10.18)

On October 9, 2018 HM Treasury published a document setting out its approach to regulations relating to the European Supervisory Authorities (ESA) and the European Systemic Risk Board (ESRB) following Brexit.

Following Brexit, the Treasury states that the UK will no longer be in the EU’s joint framework for the regulation and supervision of financial services. The ESAs and ESRB will no longer carry out their functions relating to the UK, and related legislation will no longer be operable or appropriate in UK law. Where the European Union (Withdrawal) Act 2018 (EUWA) incorporates directly applicable EU legislation related to the ESAs and ESRB into UK law, the Treasury will amend or revoke those provisions by statutory instruments. It notes the following:

• ESA and ESRB Regulations - The ESA Regulations include powers for the ESAs to issue guidelines and recommendations to financial services firms and market participants. It will not be necessary to transfer these guidance functions to the UK regime as the UK financial regulators can already produce guidance for these entities. The guidelines and recommendations that the ESAs have produced are not retained EU law under the EUWA, so will not form part of UK law after exit. However, the UK financial regulators will be able to communicate their expectations of firms and market participants relating to EU guidelines or recommendations. Regulators intend to consult on their approach to EU guidelines and recommendations.
• ESA functions set out in EU sectoral legislation - Where other specific functions carried out by the ESAs will need to be replicated in the UK to ensure there is a fully functioning UK regulatory regime after exit, the Treasury will use statutory instruments to transfer those functions to the appropriate UK body. These specific functions are set out in relevant EU sectoral directives and regulations.

(HM Treasury: Regulations relating to the European Supervisory Authorities and the European Systemic Risk Board – 09.10.18)

On October 10, 2018 the Financial Conduct Authority (FCA) published a consultation for its first set of proposed changes to the FCA Handbook and EU derived binding technical standards (BTS). The FCA has considered and planned for a variety of outcomes to the Brexit negotiations, one of which being the UK leaving the EU on March 29, 2019 without an implementation period.

In this scenario, the FCA will amend the FCA Handbook in line with the Government’s legislative changes and to reflect the UK’s new position outside the EU to ensure that there is a functioning regulatory framework in place. In the same way, the FCA will be required to amend EU BTS, which are detailed EU rules, for which they will gain responsibility.

For the most part, the amendments proposed are straightforward changes that update references to:

• EU legislation;
• UK law which relates to or refers to the EU;
• EU institutions and concepts; and
• the European Economic Area (EEA)

In a small number of cases the FCA has found more than one solution to resolve an issue. Where this is the case the FCA has set out its chosen proposal and welcomes feedback on the proposed approach.

The FCA does not propose wider policy changes and is not making other changes unrelated to Brexit to the FCA Handbook or to BTS.

The consultation closes on December 7, 2018.

(FCA CP18/28: Brexit: proposed changes to the Handbook and Binding Technical Standards – first consultation – 10.10.18)

On October 11, 2018 the Financial Conduct Authority (FCA) launched a Guidance Consultation (GC18/4) ‘Senior Managers and Certification Regime: Proposed guidance on statements of responsibilities and responsibilities maps for FCA firms’. The Guidance follows FCA Policy Statement (PS18/14) published on July 4, 2018 containing the near-final rules on the extension of the Senior Managers and Certification Regime (SM&CR) and the FCA’s Guide for FCA solo-regulated firms.

The proposed guidance is primarily for FCA solo-regulated firms preparing for the extension of the SM&CR, which will apply to all regulated firms authorised under the Financial Services and Markets Act 2000 on December 9, 2019.

Under the SM&CR, all senior managers must have a Statement of Responsibilities (SoR) and all enhanced firms must have a responsibilities map. The guidance aims to help all FCA firms clearly set out senior managers’ responsibilities through SoRs.

Comments on the proposed guidance are requested by December 10, 2018.

(FCA: Guidance Consultation on Senior Managers and Certification Regime - GC18/4 – 11.10.18)

On October 11, 2018 the Department for Business, Energy & Industrial Strategy (BEIS) and the Race Disparity Unit (RDU) launched a consultation on ‘Ethnicity Pay Reporting’.

The consultation seeks views on ethnicity pay reporting by employers. It sets out options and asks questions on:

• what ethnicity pay information should be reported by employers to allow for meaningful action;
• who should be expected to report; and
• next steps.

The objective of the consultation is to enable the Government and employers to move forward in a consistent and transparent way. Responses received will inform future Government policy on ethnicity pay reporting.

The Consultation closes on January 11, 2019.

(BEIS: Open consultation on ethnicity pay reporting press release – 11.10.18)

(BEIS: Open consultation on ethnicity pay reporting – 11.10.18)