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THE FUTURE OF COMPANY LAW: FAT CATS, CORPORATE GOVERNANCE AND WORKERS BY BILL WEDDERBURN


Lord Wedderburn of Charlton QC FBA is Emeritus Professor of Commercial Law at the London School of Economics and Political Science. He previously taught law at Cambridge University. He was a deputy Parliamentary spokesman for the Labour Party on employment from 1980 to 1993, and is a past President of the Institute. During his practice as a barrister, he represented several trade unions and the TUC. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.

ISBN 0 9547562 0 7 October 2004 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail office@ier.org.uk www.ier.org.uk printed by Upstream (TU) 020 7207 1560 ÂŁ6.50 for trade unions and students ÂŁ20 others


Lord Wedderburn of Charlton QC FBA gave the inaugural Clyde & Co Lecture under this title at the Law Department, University of Surrey, on 16 October 2003. An extended version of the lecture was printed and circulated in 2004 by Clyde and Co. Copies of the original printed version are available from Clyde & Co, Beaufort House, Chertsey Street, Guildford GU1 4HA. The sponsors, Clyde & Co, kindly gave their agreement to a new edition of the paper being prepared for publication by the Institute of Employment Rights. What follows is a new edition designed to stimulate interest in the problems discussed among a wider audience. It is preceded here by an “Outline of the Argument” for the purpose only of putting the legal argument into perspective for nonlawyers. That outline does not attempt to repeat or replace the details in the paper’s full argument, especially on the law.

the future of company law

In this revised edition material has been added up to September 2004.

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contents

an outline of the argument

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CHAPTER ONE

introduction the gap in the Company Law Review

1 3

CHAPTER TWO

the modern corporate phenomenon: ownership and control management power directors’ duties

5 5 8

CHAPTER THREE

the new development rent extraction society and the new development Britain and America

11 12 16 18

CHAPTER FOUR

the distraction of ‘rewards for failure’ the distraction

20 22

CHAPTER FIVE

25

CHAPTER SIX

the conventional answers independent non-executives independence diversifying non-executives? other devices

28 29 31 32 33

the future of company law

a global development?

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CHAPTER SEVEN

corporate governance and workers? the interests of the company the British concept the Review and the future: pluralism directors and the employees: section 309 workers and carrots partnership

36 36 38 40 41 43 44

CHAPTER EIGHT

a practical first step

the future of company law

Bullock other interventions: workers’ voice

iv

47 47 49

endnotes

53

recent Institute publications

71


an outline of the argument

Top corporate directors – the “fat cats” – have become central to wealth and control in modern society, integrated as they are with government and the political elite. For a long time they have been “divorced” from the shareholders, the so-called “owners” of the enterprise. Where shareholding is dispersed in the large, even global, company there is no effective machinery to monitor the use of directors’ powers. Their duties, owed to the “company”, are based on old legal principles, and the Review does not really propose a serious change in the basic rule that they manage the enterprise primarily in the interests of the shareholders, despite its use of “enlightened” language. Instead even an unenforceable legal rule that directors must consider the interests of employees, put rather ineffectively into British law in 1980, is to be repealed. But we need a law that protects the interests of all “stakeholders”, including the employees. Directors – and accountants – are now claiming that in the reform of the law they should have special protection against liability for negligence, the duty that requires every professional to show prop-

the future of company law

Putting aside the legal technicalities, Company Law is the law regulating corporate enterprises, setting the terms on which powers, duties and privileges are granted to them and those interested in them. It is acknowledged to be in need of reform. The government’s Company Law Review of 1968 to 2003 made proposals for law reform; but it paid inadequate attention to a new development in this area – the massive increase in the rewards and powers of executive company directors, who form a new power centre in our society. There is need for new proposals on this matter, one largely ignored by the Review.

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er care, to which the company law proposed by the Review would subject them; and the Government may be willing to give them special protection against lack of diligence. This should be resisted when their failure to manage or monitor the enterprise properly can do so much damage to investors and workers alike. The new law on corporate governance should find a way of monitoring and confining the “New Development” – that is the massive increase in benefits taken from the enterprise by top directors, socalled “rent-extraction”, as the price of their new power of management. They form a new elite in our society, similar to the top corporate executives in the United States, taking out massive rewards which promotes greater social inequality. The same trend is becoming evident in Europe. Current British company law does not even stop them from receiving large rewards where the company crashes in failure.

the future of company law

The paper that follows reviews the conventional answers said to be the way forward (especially, greater disclosure of directors’ rewards, more “shareholder activism” within the company, increased intervention by pension funds and other institutional investors and, especially since the Higgs Report, an increase of independent non-executive directors on the boards and committees of large companies) and finds them inadequate. It argues, with close attention to the legal structures, that there is a need to find a new mechanism. The Review failed to make any such proposal. Management control of corporate assets should be modified by insertion of worker representatives through trade union machinery, not as “worker-directors”, but at appropriate points in corporate governance. A start should be made by securing a place in law for workers’ representatives on the “remuneration committees” of large companies, which set the rewards of the top executives.

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WHAT IS THE INSTITUTE? The Institute of Employment Rights was launched on 28th February 1989 and was granted charitable status in 1994. As a labour law “think tank”, supported by the trade union movement, our purpose is to provide research, ideas and detailed argument on all aspects of employment law. As a charity, however, we are not a campaigning organisation. The Institute has attracted wide and distinguished support creating a unique network of lawyers, academics and trade unionists. Among the membership are John Hendy QC, Professor Keith Ewing, Professor Aileen McColgan, Professor Brian Bercusson and the general secretaries of Britain’s largest trade unions. The results of our work are published in papers and booklets. We also provide short articles, free of legal jargon, for trade union journals and other publications. Dissemination of our ideas is increasingly achieved through seminars and conferences as well as our educational courses. The Institute does not assume that legal measures can offer ultimate solutions for political, economic and social problems. However, we recognise that law has a part to play in influencing the employment relationship, both individually and collectively. Our funding is from various sources, including subscriptions, which entitle subscribers to a copy of all our new publications and reductions in conference fees. If you are interested in subscribing or would like to know more about the Institute, then contact us at 177 Abbeville Road, London SW4 9RL, 020 7498 6919 or email us at office@ier.org.uk. Or visit our website at www.ier.org.uk

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