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Why compliance is dead - 100% ESG scores not enough

The cost of compliance, amid ever-widening regulation, is growing apace, particularly in banking and financial services, but also in every other sector, whether retail, energy, construction, manufacturing and so on.

Large corporations in America alone spend around $40m each on record-keeping systems to comply with more than 300,000 separate legal statutes.

Smaller companies don’t have the resources to cope with the ever-increasing compliance burden, so can end up the wrong side of the law straight away. 

Compliance really matters. However, as many bankers discovered, compliance with every law may keep you out of prison but cannot protect your brand or reputation, or build trust. 

You can comply perfectly with every banking or environmental regulation in every country in every year, but that will not help you when public mood changes. 

Growing emphasis on ESG (Environment, Social, Governance) is all a part of this.

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Public mood can change in hours and demand more than regulations require

A banking, environmental or social justice scandal happens, which is followed by a massive public reaction, which leads to wide-ranging new regulations, new compliance rules. 

These compliance requirements are in turn interpreted by lawyers, who try to work out what it means. And then your compliance and ESG teams turn it into another box-ticking exercise, to check you really are compliant. 

But you will only be complying with history.

One new media story and within hours on social media, a bank or retailer or manufacturer can come under huge pressure to justify actions, even though they have been totally compliant, even going beyond what laws actually require.

So companies risk being judged on past behaviour, and how that measures up against today's expectations.  It's a tough world.

That's why 100% compliant companies still get hammered every day for "unethical" behaviour (in the past).

100% compliance with antibribery and corruption legislation still leaves many companies exposed

For example, until relatively recently it was perfectly legal for a European company to pay a large bribe in another nation outside the EU, list it as a business expense, get it signed off by the auditors, and claim back tax from government.

The more they bribed, the more tax refunds they received.

But it is no good today for the Chair of the Board such a company to declare that they were well aware of bribes being paid back then and that ‘it was all done perfectly legally’.

He or she will lose their job, will never work again, and the reputation of the company will be damaged.

As I predicted many years ago, future legal advice will go far beyond today’s regulations, to consider the next headlines, next scandals, possible future action by regulators, and how public mood might change.

And it may not be a simple question of right and wrong.

So what's the answer if compliance not enough?

Banks, insurers and other financial services companies all need to look very hard at how people in future may perceive things that are perfectly acceptable today.

What kind of scandals might hit our world tomorrow that could cause an almost instantaneous change in public mood?

A key ethical and practical test - can you justify your decision in 60 seconds?

Can you explain a board policy or decision in a couple of sentences in a way that a ten year old child would immediately say: "That's really good. That makes sense."

The longer and more convoluted an explanation has to be, the more complex the legal advice behind it, the harder the communications will be when trouble comes, and the greater the risk.

And remember, in the world of Twitter, YouTube, Tik-Tok and Instagram, a corporate reputation is won or lost in sound-bites of less than 60 seconds.

Keep it simple, keep messaging clear, keep focussed on being a force for good in the world, rather than trying to justify what you thought you could get away with.

Unease is the classic early warning sign of an ethical issue

If you sit on a board of a bank, or lead a large business unit in an oil company, or run a retail chain, and something comes across your email trails, or is said in a meeting that makes you feel instinctively uneasy, watch out.

Unease is the classic early warning sign of a possible major issue.

Many ethical questions are so complex that they end up in court cases that drag on for months, while Judges debate rights and wrongs.

So it is common to find that our analytical brains are overwhelmed by complexity.  It's easy then to rely on expert legal advice.

"The lawyers have signed off on this"

The trouble is that such legal advice is almost always based on precedent: how such cases or issues have been handled in the past in court.

Such legal advice is fundamentally defective in most cases because it completely fails to take into account that the greatest risk may be reputational.

Even if no laws have been technically broken - thanks to clever lawyers and box-ticking compliance - a company can find itself globally condemned.

So trust your instincts.

If you feel uneasy, say so.  You do not need to be able in that moment to have it all worked out.

"I'm not completely sure why but I do think we need to consider this further - I feel uneasy about this.  We could be making a mistake."

After all, if a Judge often needs a month or so to reflect before pronouncing a Judgment on complex issues...

Pressures on ethical business to define real success

Real success in future will mean demonstrating how your corporation makes a difference for everyone: for shareholders of course, but also for customers, workers, the wider community and, in some small way, for the whole of humanity – for example, by protecting the environment.

There is a risk that ‘ethical’ employers (forced to be ethical by law) will lose out to ‘unethical’ employers.

That's why universal adoption of ESG principles are so important.

So, for example, jobs in well-regulated, clean factories in a nation like America are lost as production switches to filthy factories with dangerous working conditions in a country like Bangladesh.

Workers in the poorest nations may be paid almost nothing, with no job security, massive health and safety risks, no sick pay or other rights. We will see many new regulations in consuming regions like the EU to stop corporations from escaping their moral obligations in developed nations.

We have seen examples of this in global action to stop children working in textile factories.

Doing well by doing good Companies like Unilever have led the way in reducing environmental footprint, and increasing positive social impact, with aims to help a billion people improve their health and well-being, halve the environmental impact of its products and source all its agricultural materials sustainably.

In three years, the amount of sustainable agricultural supplies it used increased from 14% to 48%.

Companies such as Patagonia, Interface, Marks and Spencer, Nestlé, Nike, Natura, GE, Walmart, Puma, IKEA and Coca-Cola have taken similar steps. And many others have focused on particular areas such as reducing plastic waste.

So what should companies do?

In summary then, make sure you are 100% compliant, and then take steps to go further.  

Set standards for your industry that will become a beacon of light for competitors, and a guide for future regulators.

Take steps to dialogue with government, influence legislation, going beyond the minimum.

And in all you do, keep focussed on building a better world - for all.

Be famous for doing things right.

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