Auditor and director liability - statement in full
The full statement by Patricia Hewitt, DTI secretary, on the government's decision not to introduce a cap on auditor liability and its statement on director liability.
The full statement by Patricia Hewitt, DTI secretary, on the government's decision not to introduce a cap on auditor liability and its statement on director liability.
The House will be aware that, between December 2003 and March 2004, the Government consulted widely on the case for reform of the law on director and auditor liability. Over 120 responses to the consultation were received from investors; companies, both large and small; auditors; legal advisers; industry bodies; academia; and the general public. I am grateful to all those who took the time and trouble to contribute.
In the light of the consultation responses the Office of Fair Trading was asked to undertake a study of the potential impact on competition in the audit market of a cap on auditor liability. I am grateful to them for completing and publishing this so quickly.
Directors
It is essential for British competitiveness that we have a diverse pool of high-quality individuals willing to become directors, and that directors are willing to take informed and rational risks. But it is also important that directors act in accordance with their duties, and that negligent directors can be held to account by their companies. The courts have in recent years imposed a much more demanding standard of care, skill and diligence on directors. This has been a very welcome development.
The consultation built on the recommendations both of the Company Law Review and of Sir Derek Higgs’ study on non-executive directors. It identified two particular concerns:
The consultation indicated these issues are affecting the recruitment and behaviour of directors. I therefore intend to introduce a balanced and proportionate package of reforms, by tabling amendments to the Companies (Audit, Investigations and Community Enterprise) Bill at its Commons Committee stage. The proposals will in particular introduce two important relaxations of the current prohibition on companies exempting their directors from, or indemnifying them against, liability:
The Government amendments will also remove an arguable loophole under which a company in the same group may currently provide an indemnity to a director that would be unlawful if it was provided directly by the company of which the individual was a director.
The amendments will also require disclosure in the directors’ report by companies that indemnify directors. Shareholders will also have the right to inspect any indemnification agreement. Companies that do not indemnify directors will not have to make any disclosure.
Auditors
The consultation also covered the position of auditors.
The Government wishes to see a competitive and high-quality market for audit services, shareholders using high quality and reliable information, and an adequate system of redress for when things go wrong. There must also be an appropriate degree of transparency and accountability for the audit process.
The Government is actively pursuing this agenda. The Bill already extends the powers of auditors to obtain information, and contains new provisions for each director to confirm there is no relevant audit information of which he is aware but the company’s auditors are unaware.
There are also a number of initiatives to improve the quality of the audit and other information provided to shareholders. For example:
In line with the Company Law Review’s recommendations, and as supported in the consultation, I have decided not to bring forward amendments to the current Bill to extend an auditor’s duty of care.
The consultation showed a wide variety of views both as to whether reform of the law on liability of auditors was needed, and if so what form it should take. Some investors also had concerns about whether the audit process was serving them sufficiently well. It was also a matter of concern that the leaders of some of our largest companies were worried their choice of auditor was limited.
I have considered carefully whether there is a case for a change in the law on auditor liability. I am grateful to the Office of Fair Trading for looking at the competition implications of enabling shareholders to agree in advance a maximum amount for which the auditor would be liable. In the light of the consultation responses, and the OFT’s advice that introducing a cap would not significantly enhance competition, I have concluded against proposing changes to the law on this.
The Government remains committed to improving the operation of the audit market and will continue to consider any proposals, including the possibility of limiting liability on a proportionate basis by contract, which can be demonstrated significantly to enhance competition, and to improve quality, in the audit market. The Government intends to look closely at this option and actively calls upon auditors, business, and investors to work together to examine whether proposals for a system of proportionate liability via contract are practical and/or desirable.
However no change to the law on financial liability could protect one of an auditor’s greatest assets – its reputation. That responsibility rests with the professionalism of auditors themselves.
Department of Trade & Industry
7 September 2004