At the end of February, disgraced corporate tycoon Sir Philip Green agreed to pay £363m to plug some of the BHS pension shortfall caused by his poor stewardship of the company and its subsequent fire-sale to thrice-bankrupt retail novice Dominic Chappell.
The pension deficit of the department store chain was assessed to be £571m after its collapse last April, so Sir Philip—or just plain old “Phil” if some Members of Parliament get their way—got a £208m discount. Try passing that good news on to the 11,000 people who lost their jobs and who have seen their company pension benefits cut by 12 percent.
It is no laughing matter. Green will not face any criminal charges for poor corporate governance or for effectively asset-stripping the company over 15 years and then flogging it to a dunce for £1. He is highly unlikely to face disqualification from being a director or face any disciplinary proceedings. Nor will his wife, who was nominally the owner from the family base in the luxurious tax haven of Monaco.
The settlement has put an end to the United Kingdom’s Pensions Regulator’s legal action against Green that it started last year. In many ways, Green has already weathered the storm. The worst he faced was a mock show trial in front of a Parliamentary Select Committee and the prospect of being stripped of his knighthood—now fading after he coughed up one-tenth of his estimated fortune to pay just two-thirds of what thousands of ex-employees are dependent on.
However, Chappell has not been so lucky: On 13 November, he was arrested by HM Revenue & Customs for failing to pay more than £500,000 in tax on profits made from BHS. Administrators are also trying to wind up Retail Acquisitions—the company he used to acquire BHS from Green—to pay back creditors.
During his ownership, the Green family and other shareholders collected at least £580m from BHS in dividends, rental payments, and interest on loans. Worse still, his £100m superyacht that he used to keep a low profile was delivered as BHS collapsed. MPs branded him a “billionaire spiv” who was “not particularly good at retail”—a man who “took the rings from BHS’s fingers” and “beat it black and blue.”
Such sharp words sting, and it is evident that Green did not enjoy his public grilling in the stocks at the House of Commons. But ultimately it looks like he is set to walk off, albeit under a cloud and a little less rich.
The debacle has exposed all too deeply the problems of corporate governance in the United Kingdom. Green could not be disciplined by the Financial Reporting Council (FRC), the U.K.’s corporate governance regulator, because it only takes action against directors who are accountants, actuaries, or auditors. The regulator is pressing the government (which is already reviewing other corporate governance reforms in its Green Paper) to allow it to discipline any director in future.
It is also unlikely that any follow-up proceedings will materialise quickly, or be concluded in the short-term. On 9 February, the Insolvency Service said that an investigation into the collapse of BHS could take as long as two years to determine whether any of the department store chain’s former directors should be disqualified.
Besides Green and Chappell, there are plenty of other parties who emerge from the affair equally dismally. Auditors, banks, and other professional advisers raised no serious alarm at the prospect of a once-great retail giant being sold for the price of a litre of milk or gave any thought as to whether the buyer had the means or brains to plug a nine-figure pensions deficit or act in the best interests of employees, creditors, or other stakeholders. MPs said U.S. investment bank Goldman Sachs had “enabled their prestigious name” to add “lustre to an otherwise questionable” sale.
Unsurprisingly, the scandal has resulted in a call for action. On 21 December MPs called on the government to create a “nuclear deterrent” to prevent another “BHS pension fund-style disaster” by trebling the amount the Pensions Regulator can fine employers.
Indeed, the Pensions Regulator needs all the help it can get as its reputation has been badly tarnished by the whole affair. That Green can get away with regarding a £363m payment as a “voluntary contribution” rather than a legal liability speaks volumes about the lack of credible regulatory action meant to compel good behaviour.
Last May, Richard Fuller, Conservative MP for Bedford, criticised the regulator for the way in which it reacted to the BHS pension deficit. “The fund had a £200m deficit and growing, which you didn’t think required a ‘proactive response.’ And when you go after someone who has a fund that doesn’t have enough money in it, your first question is ‘how much can you afford?’ You are not much of a regulator, are you?”
But Lesley Titcomb, CEO of the Pensions Regulator, gave a telling reply that highlighted the limits of her powers, and which perhaps hinted at who is ultimately responsible for failed regulatory oversight—the government. In response to Fuller’s rebuke, she reminded MPs that “We have, as a regulator, got to operate within the framework provided to us.”