The Role of the Non-Executive Director

We have seen a plethora of high profile corporate scandals over the past few years; Enron, WorldCom and the current SEC investigation into foreign exchange dealings to name but a few. The US administration took fright, and introduced the Sarbanes-Oxley rules; which, in very simplistic terms, mean that executives have to sign in blood as to the accuracy of their accounts. These rules apply to all US listed companies, their non resident subsidiaries and those non US companies that have listings (eg via ADR’s) in the USA.

The UK, knowing that whatever happens in the USA eventually happens here, commissioned Derek Higgs to review the role and effectiveness of non-executive directors and Sir Robert Smith to review audit committees.

These two reports were “morphed” into the Combined Code, which applies to all reporting years beginning/after 1 November 2003. In the usual British manner, unlike Sarbanes-Oxley (which is mandatory), the Combined Code allows companies to depart from its provisions; so long as they explain why.

Disregarding this opt out clause; in my view the Combined Code is a welcome clarification as to the role, and duties, of the non-executive director. There has been a feeling within the UK that the role of the non-executive director has not been clearly defined; and as such neither the Board (both executive and non-executive), nor the investor fully understand as what the non-executive should do and can do. Additionally, it has been felt that some non-executive directors take up too many positions at the same time, as a way of making an easy living; secure in the belief that only the executive directors are responsible for the strategy and management of the company.

Here is a brief overview as to the main points in the Combined Code, relevant to non-executive directors (NED’s):

 NED’s are the custodians of governance, they should challenge strategy and scrutinise performance.

 NED’s should have job descriptions, these should be prepared by the Nomination Committee.

 Appointments need to be justified.

 One of the NED’s should be available to interact with shareholders, and should attend meetings between management and major investors.

 Remuneration should be commensurate with the position, and be designed to attract the best candidates.

 The Nomination Committee should be responsible for appointing NED’s, its terms of reference should be published in the annual report.

 The training needs of current and future directors should be addressed by the Chairman.

 NED’s should be appointed from a wider range of backgrounds, based on merit.

 NED’s should be independent, and challenge the company orthodoxy.

 The performance of the Board should be reviewed annually.

 NED’s should serve two three year terms.

 Executives should hold only one NED position.

I shall watch with interest to see which companies embrace the code, and which use the op out clause.

Those of you who wish to study the subject of corporate governance in detail, should find the following links to be relevant:

 The Combined Code (2003)
 The Higgs Review (2003)
 The Turnbull Report (Internal Control) 1999
 The Cadbury report (1992), Greenbury Report (1995) and Hampel Report (1998)
 The Financial Services Authority’s Listing Rules (2002)
 Corporate governance codes in other countries
 Information on the Company Law Review (2001)
 The Myners Report on Institutional Investment in the UK
 The Tyson report on the recruitment and development of non-executive directors (2003)
 The responsibilities of institutional shareholders and agents-statement of principles (2002)

Identity Theft

Yesterday I found out, by chance, that someone had been using my address to falsely obtain credit. This particular nefarious individual had clocked up a £15K debt, claiming that my home address was his. I discovered this quite by chance, as a letter from the debt collection agency arrived threatening him with a personal visit by debt collectors, and a county court judgement (CCJ).

I rang the agency, and pointed out that I had never met or heard of the individual. I confirmed with them that no CCJ would be issued against my address. Note, if that had happened that would have negatively affected my ability to raise credit or increase my mortgage in the future; adverse credit records, even incorrect ones, stick to people like chewing gum on the sole of a shoe. I followed up the call with a letter, requesting that the agency confirm in writing the key points of our conversation. The agency are now in the process of tracking down this miscreant, and extracting the £15K from him.

This incident is the third time, in eight years, that someone has succeeded in using my identity/personal details to falsely obtain credit. The previous two occasions involved the fraudulent use of my credit card. One of which apparently involved me buying several thousand pounds worth of ladies lingerie in Harrods; if you want the full story behind that one, you can read it in my book “Accountants Can Cook”.

However, identity theft is no laughing matter for those who find their credit record besmirched and their bank accounts emptied by impostors. In fact identity theft is on the increase; witness the regular stories in the newspapers of people who find that their bank accounts and credit cards have had large sums falsely extracted, or the countless “Nigerian Scam” letters (which are a ruse to get the bank account details of the greedy and stupid) clogging up peoples’ email boxes. With regard to the latter, I now receive so many of these that I have dedicated part of my website to exposing this unpleasant practice; go to Stupid Punts! to read more on the subject.

As a victim, I thought it may be helpful to list a few hints and tips gained from my own experiences. Note, as with any issues involving money you should always seek the advice of an independent suitably qualified financial adviser and/or lawyer.

In order to minimise the chances of you becoming a victim here are a few tips; note, they are not exhaustive:

 Do not give out details of your bank account/credit card to strangers.

 Do not disclose passwords/pin numbers.

 Do not respond to “Nigerian Scam” letters.

 Do not let your credit card out of your sight, even when in a restaurant and you are paying the bill (the unscrupulous can copy the card details manually and electronically).

 If you lose your credit card, phone the card company immediately and cancel the card.

 Check your bank and credit card statements regularly; query any amounts that do not look correct.

In the event that you are unfortunate enough to become victim to an identity theft, here are a few steps (again not exhaustive) that you should take:

 Depending on the circumstances, inform the police and your insurance company.

 Contact the organisation from where the money was taken/attempted to be taken immediately. Explain the issues clearly and concisely.

 Confirm that any monies taken will be repaid.

 Ensure that they confirm that there will be no CCJ issued against you, or your property.

 Write a letter confirming the conversation, and ensure that they respond in writing.

 Where the identity theft involves a credit card, or bank account, change the account and relevant passwords immediately.

Please feel free to let me know if you have had the misfortune to have had your identity falsely used.

I await the next theft of my identity!

President Bush’s State Visit to Britain

President Bush is coming to London this week, for a three day State visit. This visit, to put it mildly, has caused quite a stir.

At the operational level, security forces (both British and the 700 US imports) and the British police will be on their highest level of alert; it is likely that there may be one or two “traffic jams” as the Presidential motorcade sweeps through a “cordon sanitaire”.

Political groups, non affiliated political groups and individuals are busy co-ordinating their protests covering all manner of issues; ranging from the war in Iraq, to general anti American hostility (which has been prevalent in mainland Europe for the past fifty years or so).

Anarchist groups are, so we are told, formulating plans to storm Buckingham Palace (some chance!); in the forlorn hope that there will be some form of popular uprising.

Added to this are the politicians, and media pundits, who are saying that it is disgraceful that President Bush should be invited here. Their reasons being that, in their opinion, the invasion of Iraq was wrong; and that the troops still occupying Iraq should be brought home.

Let me chip in my “two pennies” of thought into this morass of invective and emotion:

 People have the right to demonstrate, in a peaceful manner, in the UK. That is the benefit of living in a democracy, something that many people in the world do no have. The agitators who wish for violence would do well to remember that Bush was elected democratically; by people who live in a democracy, which was founded on the principles of liberty and justice over two hundred years ago.

 The timing of the invasion of Iraq is open to question and debate. However, the deed is done. To pull the troops out now, before initiating a road map to self government; would consign the Iraqi people to chaos, anarchy and a return to dictatorship. Therefore to demand withdrawal at this stage, on the grounds of decency, peace and anti imperialist sentiment is an absurd contradiction of logic; it shows a scant disregard for the wellbeing of the Iraqi people.

 Those that say that Bush should not have been invited imply that he is a war monger and dictator. As noted, the USA is a democracy; should we now stop inviting leaders of democratic countries where we disagree with their choice of leader and policies they implement? To my view, the people who follow this argument are displaying a stupefying level of arrogance.

 The visit will give our government the chance to raise matters of concern, such as steel tariffs and the treatment of the POW’s, in a constructive face to face manner. This surely is to the UK’s benefit.

Therefore demonstrate peacefully, by all means, but remember you are able to do so because you live in a democracy; which is hosting the President of another democracy.

Post Script to My Article on Britain’s Libel Laws

In my earlier article on the subject of Britain’s libel laws, I noted how ineffective the injunction would be in burying the allegations against Prince Charles; as the story was then published in the foreign press.

As if to rub salt into the wounds, the allegations were printed in a Scottish newspaper this Sunday. Scholars of geography will note that Scotland is physically attached to England.

How could the story be published in Scotland, when there is an injunction forbidding it? Simple, the injunction only applies in England and Wales!

As I said earlier, welcome to “lah-lah land”.

Britain’s Libel Laws, Welcome to “Lah-Lah Land”

This week has been remarkable, even by British standards, for showing how unrealistic our laws relating to libel wrt what may (or may not) be published in the press are.

It has been widely known within the journalistic community, royal family and certain other areas of “the establishment” that there has been a story circulating for over a year; concerning an alleged incident (of a compromising nature), between a senior royal and another individual.

Matters came to a head when a British Sunday newspaper was issued with a “gagging order”, raised by a former royal servant, preventing it from printing a story concerning the allegations; made by another former royal servant, relating to the above.

This was followed by an extraordinary statement issued by Prince Charles The Prince of Wales, on Thursday, denying that he had been involved in any sexual incident. Note this was despite the fact that the name of the senior royal, or the nature of the compromising incident, had not been published.

Needless to say this gave the story wings. I think it fair to say that the majority of the British people had been unaware of the allegations, or hint of allegations, before this; now of course they are fully aware. Human nature being what it is, many in Britain are now very interested to know precisely what the allegations are; especially since the British people are not allowed to be told by their own “free press”. Forbidden fruit can be very appealing!

At the time of writing the press and TV can, and are, reporting the statement by Prince Charles; and the fact that there are unspecified allegations by an unnamed former servant, concerning a senior member of the royal family. However, each report is tagged with the bye-line; that owing to the libel laws they cannot name the parties involved, or discuss the precise nature of the allegations.

It may be that this method for hushing up a story could have worked over 100 years ago; before the advent of telephones, TV and the internet. However, in the first decade of the 21st Century this approach is simply risible. The British are told by their “free press” that the story (with the details that the British are not allowed to know) is being widely reported in the foreign media and, of course, on the internet. There has now been an unseemly scramble by many British citizens to surf the net; in order to read the story, about their royal family, which they have been denied access to in their “democracy”.

In the thirties a very similar situation arose with regard to the affair between Mrs Wallace Simpson and the future Edward VIII. The British press knew of the story, but could not report it owing to the libel laws. However, the American press reported it freely; British citizens who travelled to America at that time were surprised to read about something that they had no inkling of. They, naturally, brought copies of the papers back to Britain; and shared the story with their friends. Eventually the story broke in Britain, and the resulting abdication crisis caused a change of King (and history) before he was crowned.

I would have thought that the lesson learnt, some seventy years ago (before TV and the internet), should have been taken on board by the legislative authorities by now. However, it has clearly not been taken on board. We wait for the inevitable leak and consequent media frenzy; which will have been stoked up by the gagging order.

The libel laws in Britain belong to a bygone age; those that seek to maintain them, and use them in this manner, truly live in “lah-lah land”.

A Note of Optimism for the Future of Relations with North Korea

I would like to put my head above the parapet, so to speak, and make a radical suggestion; contrary to the pessimism in the Western media, there may be hope for better times ahead in respect of the West's (ie the USA's) relationship with North Korea.

The sour relationship between the USA and North Korea stems from the unresolved debris of the Korean war; which was fought in the 1950's between UN troops and the forces of North Korea, who were attempting to overthrow the pro Western regime in the South.

The world was on the brink of nuclear conflict; as China sent her troops in to push the US troops back from the border, and General MacArthur threatened to use nuclear weapons on mainland China. Truman, rather wisely, pointed out that as President that decision was down to him; and consequently sacked MacArthur.

After a bloody campaign, the war was brought to a close by an armistice that divided the country into two. The North ended up being ruled by the world's last remaining Stalinist regime, and the South entered a period of democracy in the 1990’s.

As we know in Europe, armistice's are messy things; the rise of Nazi Germany and the Second World War were a direct result of the unresolved issues between the European powers emanating from the First World War armistice.

The armistice of the Korean war has left a heavy military presence of US troops in the South; whilst the North maintains an army of a million or more and seeks, so they say, nuclear weapons. The two sides glare at each other across the demilitarised zone at Panmunjon, this is one of the most dangerous borders in the world.

Whilst the South has become one of Asia Pacific's economic success stories, the North has declined and its people starve; as the USA has imposed an economic blockade for the past forty or so years.

The Western media portray North Korea in, to put it mildly, a very negative light; common stories include:

 The "Dear Leader" is an erratic, paranoid autocrat; who has a penchant for fine brandy and Marilyn Monroe films.

 North Korea already has a significant nuclear arsenal, which it will use in a first strike against the South.

 North Korea believes that the USA is ready, and willing, to invade.

 The citizens of North Korea are starving; as the harvest has failed, and what little food remains is diverted to the army.

 North Korea is a rogue state selling WMD, and associated technology, to anyone with the money to pay for them.

 The existence of the current regime in North Korea is a threat to the peace and stability of the Asia Pacific region; which has been a beacon of peace and prosperity, aided of course by the pacifying presence of American troops in many of the countries there.

 North Korea will implode economically and politically if the current situation is not resolved. Therefore, do nothing.

Now, elements of the above may or may not be true. However, there is usually more to an issue (especially one as complex as this). I would like to venture a few observations:

 The "Dear Leader" may have an eccentric taste in clothes (eg Mao style boiler suit, elevated shoes and exaggerated hairstyle), that does not necessarily mean that he is mad. On a trip to Russia by train a few years ago, the senior Russian official accompanying him had good opportunity to talk to him and observe him. He reported that the "Dear Leader" had a sound grasp of world events, and was perfectly lucid and rational.

 North Korea has had several crop failures, and its people are starving. However, this situation could be alleviated if it were allowed to trade freely with the world.

 The economic disparity between the North and the South is due, in no small part, to the fact that the North has endured an economic blockade for the past forty years. Free trade equates to prosperity, and greater understanding between countries and peoples. If you isolate a country, not only do you stifle its economic growth, you also stifle its intellectual and political development.

 Given the lack of trading partners, the economic blockade and the hostility of the USA; North Korea has been forced to adopt a siege mentality. It is highly likely that it genuinely believes that it may be invaded; it has taken the decision that the only way it can defend itself is to maintain a large army and indeed (as abhorrent and risky as it is), build up a stockpile of WMD.

 President Bush is known to totally despise the leader of North Korea; that in itself, from most peoples’ perspectives, would make it prone to a pre-emptive strike by the USA.

I am no lover of dictatorships,my articles clearly demonstrate this. However, you have to work with what ther eis, not with what you would like to be there.

I am tilting in favour of optimism with regard to the future of this area:

 The USA has, after forty years of blockade, finally started to engage in discussions with the North. Albeit diffident and via third parties, such as China. This indicates an acknowledgement, a reluctant one admittedly, that the policy of blockade has not worked.

 The situation in Iraq, which was an easy military victory, shows that winning the peace; and forcing a regime change, against the wishes of the locals, is no easy task. Defeating the North Korean army would be a very different prospect; Seoul would very likely be obliterated in the first two days of any offensive, and the level of resistance by the North Koreans would make the Iraq situation look like a Sunday picnic. I believe that the USA would be very reluctant, to put it mildly, to take military action unless forced to do so.

 The same can be said of North Korea, it would not be logical to consign oneself to the dustbin of history; without good reason. The fact that they are trying to engage in direct negotiations with the USA indicates that they wish to improve the situation, rather than worsen it.

 There are the signs, albeit very small shoots akin to a rare and beautiful orchid protruding from the earth, that North Korea wishes to emulate the Chinese in their movement to a Western style free market economy. This is a strong indicator that they wish to engage with the rest of the world, and not remain isolated.

 North Korea has brandished its nuclear threat, in my opinion, to gain the attention of the USA; in order for it to be treated as an equal in discussions, and not be ignored as it has been in the past. It should be remembered that "loss of face" in this area of the world is unacceptable. I think it fair to say that it now has the attention of the USA.

In my view, pragmatic engagement with the North can do both the North Korean people and the region nothing but good. There are some very real risks ahead. However, if both sides keep level heads there is real hope for a breakthrough; and the normalisation of relations.