Independence Regulations in The United Kingdom
Within the United Kingdom there are various regulations in force regarding auditor independence. The main enforcement of auditor independence is through the Companies Act 1985 and the Companies Act 1989 although the matter is also covered by the professional accounting bodies’ rules of professional conduct and the Auditing Practices Board. It is also of note that regulations (i.e. International Accounting Standards or International Financial Reporting Standards) relating to the preparation of financial statements are also relevant.
The Companies Act 1985 dictates that it is the responsibility of shareholders (rather than directors) to appoint the auditor at the annual general meeting (AGM) – section 384 of the act refers. The theory behind this is that directors cannot intimidate auditors with the threat of replacement or bribe them by offering reappointment. In practice the existing auditors of a company are generally reappointed for another term at the AGM but the shareholders are free to choose another auditor if they wish to. Directors can only appoint auditors in exceptional circumstances (perhaps to fill a casual vacancy during the year). However, such appointments by directors will expire at AGMs. The Companies Act 1985 (section 386) allows shareholders to eliminate the need to reappoint an auditor each year. If they elect to do so then it is automatically assumed that the existing auditor will be reappointed each year without the matter arising at the AGM. In such circumstances it would take an extraordinary general meeting (EGM) in order to remove the auditor.
The Companies Act 1989 (part II) goes further to protect the independence of the auditor in various ways. One of the key ways is that auditors must belong to a recognised supervisory body (RSB) before they can undertake such work. Within the United Kingdom ICAEW, ICAS, ICAI and ACCA have been granted this status. Schedules 11 and 12 of the Companies Act 1989 specify the duties of the RSBs and the strict entry requirements for their members that they must impose. It is intended to ensure that all auditors have the required knowledge and skills in order to carry out their role to an acceptable standard.
Section 33 of the Companies Act 1989 allows for professional accountants who have gained their qualification in another country to practice within the United Kingdom although it is necessary for such persons to undertake extra education in British law and accounting practices. In the past this would tend be exploited by members of the Commonwealth but due to there being an EU directive on mutual recognition of professional qualifications it is now possible for professional accountants within Europe to come and work in the United Kingdom. The safeguards put in place by section 33 (that any foreign professional accountants must have an adequate knowledge of British law and accounting practices) should protect the quality of audits.
The Companies Act 1989 also has provisions to prevent employees of firms from becoming auditors of their own companies and subsequently either any subsidiary of their employers or parent companies (section 27 refers). This is intended to prevent the appointment of an auditor with vested interests in a company.
It is also a requirement that any person barred from acting as an auditor should refuse any such offers of appointment and resign immediately if for whatever reason they become ineligible during their appointment. If for whatever reason an ineligible person carries out an audit then the Secretary of State (under section 29 of the Companies Act 1989) has the power to require a company to appoint a second auditor and bear the brunt of the cost as a result. However, companies are allowed to recover additional fees from the original ineligible auditor.
Further to regulations regarding the appointment of auditors the various Companies Acts also contain rules regarding the rights of auditors. The most fundamental of these regulations is section 389A of the Companies Act 1985. This section states that auditors have a right of access at all times to accounting related information from companies and further have the right to demand explanations from companies regarding any accounting related enquiry they may have. Section 389A also covers other matters such as making it illegal for employees of a company to make misleading, false or deceptive statements to auditors regarding any accounting related queries they may have. Subsidiaries of British companies also must provide any accounting related information to the auditor of the parent company should they request it although in general it is usually the same auditor who undertakes the audit of both the parent company and its subsidiaries. Section 389A finally goes on to state that companies must take all reasonable steps to obtain accounting related information for auditors from any overseas subsidiaries it may have. Auditors also have the right to communicate directly with shareholders as dictated in section 390 in the Companies Act 1985.
Whilst this legislation prevents directors of companies from limiting the information available to auditors it does not prevent directors from setting tight deadlines for auditors where it may prove difficult to obtain all the necessary information they feel they require for audit. Directors could also attempt to negotiate a fee that would not be enough to cover the costs of a proper audit thereby forcing the auditor to perhaps undercut corners in order to reduce costs. Shareholders are not likely to be sympathetic to auditors in such circumstances either as they may be likely to see auditors as unnecessarily overcharging for their service.
Because directors can impose tight deadlines, negotiate low audit fees or perhaps threaten to nominate another auditor to shareholders it could be argued that auditors are not truly independent within the United Kingdom. Whilst there may be some truth to this it would not be fair to say the rules are entirely ineffective as auditors have to consider that if they fail to carry out an audit effectively they will face stiff penalties, they could potentially have to compensate any damages as a result of their failure, they could potentially lose a lot of business and ultimately their credibility would be shattered. Therefore in reality it is thought that British auditors are only influenced in minor ways and normally over matters of opinion given that an auditor would put retaining its business before the loss of one single client.
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