BEIS White Paper and the implications for Private Equity firms

Earlier this year, the Department of Business, Energy and Industrial Strategy (“BEIS”) issued its White Paper which set out the UK Government’s responses to the over 150 recommendations arising from independent reviews by Sir John Kingman, the Competitions and Markets Authority and Sir Donald Brydon with the objective to strengthen the governance of companies in the UK and provide greater shareholder confidence in the public and private markets.

For the Private Equity (“PE”) market, the key recommendation that impacts large private companies is the potential extension of the UK Public Interest Entity (“PIE”) definition to include large private companies with certain defining characteristics. The response is recognising the need for improved governance on organisations that have a tremendous public impact without being listed.

The implementation of these new recommendations is still in consultation, but given the potential far-reaching nature of the recommendations, early consideration is encouraged. Entities to which these recommendations apply may be impacted from a reporting as well as operational, including internal controls, perspective.

The implication of being a PIE would likely bring with it significant resource requirement which means a cost implication as well as senior management time, all of which would impact the company’s valuation and so there are some tangible consequences of these proposals.

The government consulted on two options for extending the PIE definition:

• Option 1: More than 2,000 employees or turnover greater than £200m and balance sheet total of £2bn; or
• Option 2: Over 500 employees and a turnover of £500m or more.

The implication is that there could be a substantial increase in the number of entities being caught by the definition, by certain estimates up to 2,000 additional companies and so we expect that companies will be need to consider what the implications are and PE Funds need to understand the impact across their portfolios.

We expect that companies will be asking two key questions:

1. Is the company caught by the extended PIE definition?
2. What are the implications of being caught by the extended PIE definition?

For PE houses, when considering the impact on their portfolio companies, the first question requires a numerical assessment of the results of the portfolio companies against the two options highlighted above. This assessment should consider both the current position of portfolio company as well as those who may trigger the definition in the future due to expected growth based on the current definitions being considered (which are subject to consultation).

The second question is slightly more complex because, in addition to the pre-existing requirements which apply for PIEs, there are a number of proposals which are being considered that PIEs would need to adopt. These include:

• a new regulatory regime for directors;
• the development of an Audit & Assurance Policy;
• a new Resilience Statement;
• reporting on the directors’ obligations in relation to fraud;
• reporting on payment practices; supervision of corporate reporting; and
• a directors’ attestation on internal controls over financial reporting.

The changes above all require consideration as to the impact of those measures as portfolio companies will be at different stages of growth and maturity and so the impact will vary for each individual business. One of the measures that will be most impactful is the need for attestation on internal controls over financial reporting; this would require an annual review of the effectiveness of the company’s internal controls over financial reporting and related disclosures within the annual report.

Those that are familiar with US Sarbanes-Oxley (“SOX”) reporting frameworks would be familiar with these measures and would know how impactful such considerations would be on a business. Again, the impact will vary based on the maturity of the organisation and substantial time (and money) would likely be required to put those measures in place in time for the application date.

The key actions for PE firms are:

1. Carrying out an impact assessment across your investment portfolio in order to understand which businesses are impacted by the potential new rules and the potential changes which would need to take place.

2. Where any PE executives are directors on a PIE portfolio company, it will be necessary for these directors to understand the new regime and the impact the proposals will have on the duties required to be fulfilled in their capacity as a director of a PIE.

3. Consideration as to whether there will be any impact on the company valuation either immediately or in the future as these changes could be very costly to implement as a result of an increase in staff, an increase in senior oversight and additional assurance being sought (both internal and external).

4. Particular focus on internal controls as directors would likely require assurance over the controls for them to be able to attest to the effectiveness of the control environment. The need for external audit assurance is something which we expect audit committees and shareholders will consider as part of the Audit & Assurance Policy.

5. An impact assessment and implementation plan should be started now given the myriad of requirements which could come into effect and which need to be navigated, and the time which it will take to make the changes to appropriately respond to these requirements.

If you have any questions regarding the implications for PE, please do get in touch - contact details can be found below. Further details on the impact on private companies can be found in our paper “BEIS White Paper - The impact on Private companies”.