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Does the 'dividend obsession' allow Ed Miliband to put people before profit?
Labour’s history with business can best be described as: “it’s complicated.”
Goldman Sachs recently boasted on Twitter of their involvement with Chuka Umunna, the Shadow Secretary for Business, Innovation and Skills. And in the past Lord Mandelson has claimed to be ‘intensely relaxed’ about business.
Labour’s ‘track record’ on “inequality” still fuels discussion. Tony Blair’s ‘Journey’, an autobiography possibly as exciting as Morrissey’s, doesn’t mention the word “inequality” once.
British Gas announced today that it is to increase prices for domestic customers, with a dual-fuel bill going up by 9.2% from 23 November. The increase, which will affect nearly eight million households in the UK, includes an 8.4% rise in gas prices and a 10.4% increase in electricity prices.
Labour therefore wishes to be seen to encourage wealth creation. It perceives any message that it is ‘anti-business’ as dangerous.
There is no doubt, however, that Labour instinctively wishes to be seen to be on the side of the employee/worker too. The evidence is that Labour warns about a growing number of people in part-time employment. They have also held their nose while the current Government have tried to implement the ‘Beecroft’ proposals. For the employer, an ability to sack an employee is seen as ‘flexibility’, so that a business plan can adapt easily to changing circumstances. For the employee, the ‘readiness to fire’ is seen as an indication that employers don’t actually give a stuff about employment rights, and the threat of insecurity for staff.
This is why the Fabian Society, in their analysis of why Gordon Brown became so unpopular, tried to hang their thoughts on the ‘aspiration vs insecurity’ scaffold. Interestingly, Ed Miliband has wished to emulate the ‘aspirational dream’ of Margaret Thatcher. Margaret Thatcher once claimed that, for every socialist who woke up, there had to be a Tory who woke up an hour earlier to work.
Any business these days needs to have due regard to its environment and its workforce. This is called ‘sustainability’, and this comprises the ‘people, profit, planet’ mantra of corporate social responsibility. It is a well established concept, which far precedes the ‘responsible capitalism’ now belatedly “accepted” after Miliband’s famous “high risk” conference speech in Liverpool in 2011.
The Conservatives have thrown everything but the kitchen sink at this attack on energy prices. The problem for Cameron is that this lunge is not only popular but populist. It frames the question ‘whose side is the government on?’ in an unappealing fashion. Error after error has seen the notion of a Conservative-led government being ‘out of touch’ being reinforced. This has perhaps been symbolised ultimately by Tory MPs simply re-tweeting on Twitter press releases from energy companies.
Whilst leadership theories both here in the UK and US are well articulated, the literature on the involvement of stakeholders in business is relatively embryonic. Freeman and Mendelow are generally accepted to be the ‘fathers’ of ‘stakeholder theory’.
But the tension of who runs the company in English law is noteworthy in two particular places. One is section 172 of the Companies Act (2006) which attempts to draft a primacy of shareholder dividend with regard to ‘stakeholder factors’. The second is the relative ‘paralysis of analysis’ which can occur with too many conflicting opinions of stakeholders, in relation to shareholders, in relation to the business plans of social enterprises.
Ed Miliband used the following as symbolic as the war against energy companies, which is perhaps more accurately described as a war against unconscionable profitability of shareholders. Cue his quotation from “SSE dividend information” this week in Prime Minister’s Questions:
The Right continue to argue that the war is a phoney one, given that Ed Miliband introduced these ‘green taxes’ in the Climate Change Act in the first place. A problem with this is that David Cameron voted for these taxes. The Right continue to argue that the market is ‘not rigged’. A problem with this is that David Cameron wishes to encourage the ability of a customer to ‘change tariff’, which presumably would be totally unncessary if the market were not ‘rigged’?
The unconscionable profits, in economic terms, come about because it is alleged that the competitors, relatively few of them that there are, act in a coordinated way to set prices amongst themselves. It is further alleged that the competition regulators currently are unable to regulate this oligopolistic market effectively. Miliband’s ‘price freeze’ gives the Labour Party also some ‘breathing space’, in which to tackle the OFGEN problem.
Fundamentally, Miliband’s narrative is extremely uncomfortable for the Conservatives. Far from being ‘liberalising’, in Miliband’s World, the markets end up fettering the behaviour of citizens. And this is a problem if citizens in Cameron’s World increasingly become mere consumers. If the market doesn’t work for Cameron’s consumer, the whole ideology collapses.
The Tories superficially may worry that the Hayek’s ‘Road to Serfdom’ has become a ‘Road to Slavery’, but ultimately their success depends on delivering a programme which benefits the big business and the City. Why else would Boris Johnson wish to go to legal war against Europe about banking bonus caps?
The narrative that Ed Miliband wishes to pursue of ‘putting people first’ is theoretically an amicable fusion between social democracy and socialism. While there are still clear faultlines in the approach, for example the maintained marketisation and privatisation of the NHS, this narrative could prove to be even more popular and populist yet. Cameron’s World may just have been disrupted.
CV here
Smell the Starbucks coffee: a toxic mix of marketing, politics and tax
In a page on the Starbucks website, Kris Engskov, Managing Director of Starbucks UK, Starbucks offered a full explanation. Engskov provided that, “I want to personally assure you that Starbucks pays and will continue to pay our share of taxes in the UK to the letter of the law. We always have and always will.” Meanwhile executives told analysts that the UK business was “successful”, “profitable” and they were “very pleased with the performance”. The company has made UK sales of £1.2bn in the past three years but declared no profit despite having described the British business as “profitable” to investors and analysts.
PayUpandGetOut, on the same webpage, offered a problem with this argument, “Yes, we know you’re paying “to the letter of the law”, but you are using the law to allow you to pay less tax than really you are expected to. It’s such a shame that you have worked so hard to improve your ethical credentials, and while this does not detract from your apprenticeships, links with local businesses and creation of more jobs, nor your support for farmers, it certainly makes me question your ethics, and thus will make me question buying from you in the future.” Some critics believe that corporate social activities are undertaken by companies such as British American Tobacco, BP, and McDonalds to distract the public from ethical questions posed by their core operations. They argue that some corporations start CSR programs for the commercial benefit they enjoy through raising their reputation with the public or with government. They suggest that corporations which exist solely to maximise profits are unable to advance the interests of society as a whole. Kappa99 offered another widely-held view that it is perfectly possible for somebody to act legally but totally immorally. Kappa99 writes, “Its legal to have sex with a horse in many US States. Its legal in the UK to kill a Scot in Nottingham with a crossbow.” There are numerous absurdities in how English law has evolved, to some extent through a process of ‘trial and error’.
Kris Engskov, UK managing director of Starbucks, has further added that the company had in the past three years “paid over £160 million in various taxes including National Insurance contribution for our 8,500 UK employees, and business rates”. Starbucks is not alone by any means. Last week it emerged that Facebook UK generated revenues of just £20.4m last year and paid just £238,000 in tax to the Revenue. Experts said the social networking giant was not breaking any rules but paid less tax because its European headquarters is not in the UK but in Ireland. Stephen Moss adds in the Guardian: “My mobile network is Vodafone, which UK Uncut alleges obtained a very favourable tax settlement that left £6bn in back taxes unpaid. The headache all these numbers are giving me will be salved by pills from Boots, another target for UK Uncut after moving its headquarters to Switzerland in 2008. In 2009-10, Boots paid just £14m on profits of £475m, equivalent to 3%.” Prominent tax campaigner Richard Murphy, from Tax Research UK, later in this article argues that, “Where there are alternatives we should look for them,” he says, “but we should also be clear that these actions are symbolic. The real purpose is getting political change.” Murphy says the objective should be to make corporate taxation more transparent and establish a ranking of companies – a sort of good corporate taxpayers’ guide. Margaret Hodge, chairman of the Public Accounts Committee, said HMRC should look at the company’s tax affairs after this Reuters report. MPs may also want to grill Starbucks’ management over the revelations. The PAC is responsible for scrutinising the stewardship of public funds, including tax collection.
However, Starbucks as a multi-national company does appear to take its environmental agenda seriously. Earlier this year, Starbucks announced the availability of EarthSleeve™, a new hot-cup sleeve that integrates proprietary technology that enables a reduction in overall material usage while at the same time increasing the post-consumer content. These adjustments correlate to a savings of nearly 100,000 trees. With nearly three billion* hot cup sleeves produced in the United States in 2011 and Starbucks representing nearly half of the marketplace, this material evolution will have a substantial impact on the packaging industry. In marketing management, there has been increasing interest in “greenwashing”. Starbucks, unlike other firms, does not appear to have been engaging in greenwashing activity, on the basis that it takes its environmental agenda seriously. Magali A. Delmas, a professor of management at the UCLA Institute of the Environment and Sustainability and the Anderson School of Management, in California Management Review (2011) has defined “greenwashing” as “a fixed and focus on firm communication about environmental performance … given the shorter time frame required for a firm to alter communications about its environmental performance than for a firm to change it, our analytical focus on the drivers that lead (some) firms to communicate positively about environmental performance while holding firm performance constant is not only useful for analytical tractability, but is also true to shorter-term strategic decisions of managers in these firms.”
There is no doubt that the social media is a major new influence in allowing consumers to give ‘instant feedback’ to suppliers. Indeed, as consumers, the public, and investors become more interested in environmental issues, environmental activist groups become more powerful and can exert more influence and pressure on companies. In the same way, now members of the public are able to give feedback about how they perceive far taxation might work. There is also no doubt in the past that corporates have been using their green credentials to secure “competitive advantage” in the marketplace, and there has been much interest latterly in how ethical banks could attract customers through a “competitive advantage” of acting ethically. George Osborne has a think-tank of a few lawyers thinking about how make the corporate tax system fairer. Taxation has clearly become an issue, with David Cameron restating in one breath that, “Fairness includes asking those on higher incomes to shoulder more of the burden than those on lower incomes. I’m not saying this is going to be easy, as we’ve seen with child benefit this week. But it’s fair that those with broader shoulders should bear a greater load”, while not pursuing aggressive tax policies in top earners.”
Meanwhile, Natalie Bennett, Green Party leader, in responding to David Cameron’s speech, provided that: “Further cutting the real rate of benefits, when they are already insufficient for a basic decent life is unconscionable. As the Joseph Rowntree Foundation calculated, the minimum weekly income needed in Britain is £193 for a single person, but out of work benefits deliver just £85.” A political party which is able to grasp the nettle of this complex toxic mix of marketing, politics and tax may reap dividends at the ballot box perhaps.
Shareholder activism and the soul of corporate social responsibility
The traditional split in the distribution in power is that directors run the company, and shareholders own it. Directors make important decisions about the constitution and the strategy of the company, and often require shareholder approval for certain decisions. English companies are part of society, and as soon as they lose sight of that they run into trouble. The shareholders are an important part of the power mechanism, as has been graphically demonstrated by recent events.
The longest piece of legislation for us is in fact the Companies Act [2006], which establishes the precise governance of the English company. An ordinary resolution of the members (or of a class of members) of a company means a resolution that is passed by a simple majority. and a special resolution of the members (or of a class of members) of a company means a resolution passed by a majority of not less than 75%.
All is not lost then if the shareholders wish to exert influence over the running of the English company. For example, a company may by ordinary resolution at a meeting remove a director before the expiration of his period of office, notwithstanding anything in any agreement between it and him. In July 2011, activist investors have been successful in their attempt to remove two directors at Aim-listed Aurora Russia, in a rare example of shareholder activism forcing change at a listed private equity firm. Aurora Russia, which trades on London’s AIM and focuses on investing in the Russian market, has confirmed that Dan Koch and Alexandr Dumnov have resigned as directors of the company in a move aimed at improving the company’s corporate governance. The men were widely considered to be too close to the Aurora’s founders and managers John McRoberts and James Cook to be deemed independent, according to two people familiar with the situation. Aurora declined to comment further. The departure of the two men from Aurora’s board was reported as being one of several demands being made by two of the company’s largest shareholders; Timothy Slesinger and Peregrine Moncreiffe together hold around 20% of Aurora’s shares either directly or through the management of investment funds.
Pay is another target of ‘shareholder activism’. Public companies are required to prepare a directors’ remuneration report and put the resolution on the report to a shareholders vote. The vote to be held will be an ordinary resolution to approve the remuneration report and gives the shareholders the opportunity to consider the company’s remuneration policies and the remuneration paid to directors in the previous financial year. The shareholders vote is only advisory and no aspect of an individual director’s entitlements under a service contract is conditional on approval by the shareholders.
There has been much talk latterly about a great wave of “shareholder activism” against excessive executive pay, a so-called the “Shareholder Spring” – and there has been a 100% increase in the number of rejections by investors of FTSE 100 companies’ remuneration policies, from just one decisive rebellion in some years to a grand total of two this year. This week’s 60% vote against the remuneration report of WPP, the media giant, against the 60% rise to The decision of the shareholders is only advisory and the board of the advertising conglomerate can ignore it if they wish, but the company’s Chairman, Philip Lader, said: “We take the remuneration report vote seriously. We’ll consult with many share owners and we’ll then move forward in the best interest of our share owners and our business.”
Robert Peston warns that the “shareholder spring” may not, as such, exist. Peston writes on the BBC website, “Strikingly, though, a deeper analysis of this so-called “shareholder spring” of investor uprisings shows it may not really exist. There have been just four defeats so far of companies in votes on their so-called “remuneration reports”, and only one of these companies has been in the FTSE100 list of biggest businesses. That does not represent an exponential increase in shareholder rebellions.”
The Companies Act [2006] also provides for the important, but overall unlikely to succeed, mechanism known as the “derivative action“. The 2006 Act introduced a new statutory derivative action, giving shareholders the ability to bring a civil action on behalf of the company against a director (or against a third party) in respect of the director’s conduct. The ability to bring a derivative action is dependent on the company itself having a claim. These types of action should usually be considered as an action of last resort. There is a two-stage procedure for the shareholder seeking to bring the derivative action. Firstly, the applicant will be required to make a prima facie case for permission to continue a derivative action. Secondly, but before the substantive action begins, the court may require evidence to be provided by the company. However, courts have strong powers and discretion
Shareholders finally have a statutory right to apply to court for relief where the company’s affairs have been carried out in a way which has been unfairly prejudicial to the interests of its shareholders. In general, these actions also involve a lengthy time process and are likely to take as long, if not longer, than a derivative action. These actions are also rare in the context of listed companies, as the most natural remedy is for the investor to sell its holding in the market. In general, as long as a company has acted within the confines of its constitution, it is often considered difficult to succeed with unfair prejudice petitions. However Grace v Bagiloli [2006] was rare decision on the remedies appropriate when a minority shareholder’s claim succeeds in a case of where excessive dividends in the company were considered unfairly prejudicial.
All these recent events demonstrate that, whilst the shareholders own the company and not considered to be involved in the day-to-day running of the company, they exert in fact a huge amount of power potentially. Successful companies are ones which value people, including the citizens who work within them as well as customers. In this way, lawyers are well placed to act as the linchpin between corporates and the rest of society, as elegantly discussed by Porter and Kramer in the Harvard Business Journal.
Jeremy Hunt's 'big plan' for #Leveson doesn't add up
In what seemed like a bold, inspiring statement, Jeremy Hunt commented to Robert Jay QC that the business model of the print newspaper did not make sense.
Actually, anyone with a reasonable understanding of management will understand that the way to get around declining sales of newspapers would be to diversify your product, if in a mature market which is not growing much; this would be easy to do, if Hunt were able to invest in the infrastructure to support high speed broadband. However, being a true free marketeer, one assumes that he can rely on big corporates such as Virgin, who are largely supportive of the Tories, to enter into a mutually beneficial strategic alliance. So, taken as a whole, Jeremy Hunt’s statement does make sense.
Jeremy Hunt then went to elaborate how the people were looking to these problems to be solved, but there existed solutions in existing law. He described how there could be a new PCC, but Hunt did not at any point opine whether there should be any further laws. Ideologically, the concern is that Hunt’s new PCC would not have any ‘teeth’, in much the same way a replacement for the Human Rights Act would not be legally enforceable. Perhaps, the new PCC could ‘nudge’ principal stakeholders into action, such as reasonable behaviour. Reasonable behaviour would almost certainly in this definition encompass *excluding* illegal behaviour such as phone hacking of celebrities and other citizens. Unless of course you believe in absolute shareholder primacy.
One half of Hunt’s model so far therefore appears to support sustainability. It would make sense if the other half of Hunt’s model could also embrace sustainability. Corporate social responsibility – or acting with a concern for people and planet, as well as profit. I take this to mean including all members of society in what you’re doing. Where Hunt is clearly correct is that a corporates with pending or active litigation, where its Directors could even be brought under the auspices of foreign legislation such as the FCPA, should indirectly be punished by market forces. It is still uncertain whether corporates of their own accord can do this with a bit of nudging – the behaviour of some companies such as ENRON suggests perhaps not. The question as to whether the UK should introduce direct legislation – making widespread disclosure and transparency targets of CSR information available for investors – to give teeth to bodies such as the new PCC.
I think Jeremy Hunt doesn’t understand CSR. His concrete thinking of money prevents him from understanding how the News International crisis began in the first place. To this extent, I have grave doubts about his solution, or lack of it thereof.
Ed Miliband: towards an inclusive society
What sets out Labour from the other parties now is that we embrace the opposite to a culture which is obsessed about shareholder dividend. Perhaps the word ‘predator’ is not quite hitting the right note with the City but it conveys the ‘quick buck’ culture which can go so badly wrong in investment of critical services such as care homes. I remember going to this meeting at the Institute of Education, at @thefabians’ new year annual conference 2011, with my friend @saminstroud; in fact, @CriminologyUK has just reminded me about it just now, which is why I am posting this.
It is how I view the role of the City, as part of the society, not divorced from this; this shapes my views on corporate social responsibility, which are in full agreement with Prof Michael Porter’s seminal contribution ‘strategy and society‘ published at the beginning of this year also in the Harvard Business Review. The City in my view should learn from their mistakes in not including themselves in the rest of Society, which is why they have lost trust with many stakeholders. Bob Diamond opined on this in the seminal BBC Today lecture, and it’s what led me to spend two months spending hours travelling to the City from the Primrose Hill due to the blockage round St. Paul’s Cathedral.
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A paradigm shift is needed by law firms in understanding disability
‘Diversity’ is such a broad-ranging term, so as to be completely unhelpful. Far from promoting individuality, it clumps together people who are gay, black, bisexual, disabled, but draws the line at being male or female. Critically defining diversity has some bearing on whether you wish diversity groups to be safely ringfenced; or whether all ‘diversity individuals’ should be represented at all levels of a corporate. Whether or not a partner, who has a diversity issue, has time to making diversity part of the corporate culture or not is a moot point, or whether she or he gets paid extra and keeps work for this to a minimum to prevent its negative impact on targets and billable earnings, etc.
Lessons can be learned from another area so beloved of corporate legal marketing and recruitment departments. A highly seminal article on the different subject of corporate social responsibility (CSR) emerged from Porter and Kramer in 2006 in the Harvard Business Review. At this time, Porter and Kramer made a limited entrance into the discussion of CSR and corporate strategy, by structuring their discussion around reputation, sustainability / ‘people, planet, profit’, license-to-operate, and a few other associated issues. It is probably the article which has appeared from Harvard in 2011 that makes the most enduring impression of how CSR should be approached. Porter and Kramer introduce the notion of ‘creating shared value’, emphasising that a previous drawback of previous approaches – including their one – is that the corporation has been pitted against society. Of course, if the purpose of the company in English law is to maximise shareholder dividend, the issue of whether shareholders and directors have an alternative belief-set to other stakeholders becomes enormously relevant.
A similar criticism in my view can be made of the way that law firms approach disability. I am deciding not to hide this under the general term ‘diversity’. Michael Porter talks about the competitive advantage of businesses adopting CSR, such that your business is better than the competition. A lazy marketing solution would be to plaster your promotional literature with pictures of lawyers in wheelchairs, and get your firm to sign up to the aspirational but unenforceable Law Society Diversity and Inclusion Charter; and to concentrate on the profitability of your law firm instead. A more imaginative solution, in keeping with Porter and Kramer (2011), would be to acknowledge disabled individuals like myself as valued members of society. Whether or not you believe in multiculturalism, it is easily possible that a law firm, including the Magic Circle, could set up innovative professional legal services solutions regarding disability and employment issues in the corporate work force; they could make money out of this, indeed, and become more profitable in the process. More radical than making up numbers of the number of disabled candidates invited for interview, even.
I allude to this discussion briefly in a podcast I did with Alex Aldridge and Kevin Poulter this evening.
Emergency debate in the Lower House (courtesy of the BBC Democracy Live channel)
This is the recording of yesterday’s complex debate in the Houses of Parliament about the issues raised by the phone hacking scandal enmeshed in the culture of parts of Fleet Street. Chris Bryant MP explains in his opening statement that the problems go well beyond ‘one rogue reporter’, and considers the complete moral failure which threatens to undermine the reputation and hard work of talented journalists in the print media. What has gone wrong in Fleet Street reflects a failure of managerial and executive decision-making, according to Bryant. If this is the case, in the context of a huge profit-making corporate, one is obliged to look at the ethics (as well as the legality) of making a profit. LegalAware specifically has a page on corporate social responsibility.
CSR, marketing and competitive advantage: Bhopal
In May 2011, the BPP MBA exam contained a question on market signalling and corporate social responsibility.
As part of the presentation tonight in room G2 at BPP Business School at 5 – 5.50 pm, members of the BPP Legal Awareness Society will be discussing,
- the impact of Jeff Skilling’s leadership in the Enron scandal (using a clip from “Enron – the Smartest Men in the Room”)
- the legacy of ‘Bhopal’ in understanding business ethics and corporate social responsibility (using the YouTube video below);
- the use of “perception management” by corporations; Pfizer turnstiles to prevent fare-beating in the subway (using a clip from “The Corporation”)
All BPP students are welcome to attend – including MBA and CIM students. Learners in the MBA ‘Organisations and Leadership’ module may find the session useful, entertaining, and interesting.
BPP LegalAware meeting: Corporate social responsibility, competitive advantage and marketing
These are the slides to be presented at our meeting of BPP Legal Aware, BPP Business School, 2 St Mary Axe, The City, at 5 pm room G2. Any BPP students are of course welcome to attend. In the meeting, the classic paper by Kramer and Porter (2006) from the Harvard Business Review will be discussed.