by Girish Menon
The anonymous source who once wrote, 'To err is human; to really foul things up requires a computer' was spot on when it comes to cricket and its Dreadful Review System (DRS). After tragicomic incidents in the just concluded Ashes test, the world, as represented by Adam Gilchrist, has begun to appreciate India's 'Luddite' approach to the DRS. This writer feels that cricket and technology both need to evolve a lot before they can become mutually compatible and enhance the spectators' and players' experience.
Firstly, umpires in cricket need to adjudicate only on events based on facts and eliminate those decisions based on opinion or interpretation. The first casualty of such a change will need a repeal of the LBW law. Cricket should find a way of penalising those batsmen guilty of using unauthorised means of impeding the ball. For example one could modify the 'three strikes' rule in baseball and rule out any batsman who has illegally impeded a cricket ball three times. Thus this decision will be based on fact and will not rely on the convoluted law that explains an LBW decision. Along similar lines, all decisions made by umpires need to be evaluated on the fact-opinion dialectic and ways to eliminate opinion based decisions need to be found.
If this is done, then adjudicating a cricket match can be mechanised. However, the current level of technology in cricket leaves a lot to be desired both on the validity as well as the speed perspectives. The validity of the technology has been debated ad infinitum and I feel that once technology is used for fact based decision making then its validity will be convincing to even Luddites.
However currently used DRS technology has a problem with speed. Gordon Moore's axiom about a microprocessor's power doubling every eighteen months does not seem to hold true with the technology suppliers to the cricket industry. How else does one explain that Hotspot was not available to adjudicate on the Trott decision because 'its resources were concentrated on processing the earlier delivery'.
Thus cricket's struggle with DRS arises not only because of the shortcomings of technology but also because of some of its anachronistic traditions. While Voltaire has been quoted as saying, ' The best is the enemy of good', in the case of cricket and DRS Voltaire may be wrong. So both cricket and DRS need to evolve before the sceptics can be convinced about technology based decision making, until then some may even prefer human howlers.
The issue of taxation is never far from the headlines, and doubly so in times of austerity. So it’s hardly surprising that the likes of Google, Starbucks and Goldman Sachs have come under fire in recent years for under-payment of tax.
But how much tax should a company pay? At first glance, the answer is obvious: only as much as the law demands. The economist Andrew Lilico put the point well recently: “The assets of… a company do not belong, per se, to the company’s employees… it’s not for the managers or accountants of a company to decide that shareholders ought to pay some extra tax, not legally required of them, and then do so on their behalf.” Not only that, any claim to the contrary is an attack on private property itself: “It is, as it were, to say that all money belongs to society collectively, and 'we’ have an intention as to how much you get to use yourself and how much goes to the state, and if you avoid tax you end up using more of society’s collective money than it intended for you to use.”
This line of thought is extremely seductive, and very widely held. But it is mistaken, both in principle and in law.
First, the law. The Companies Act 2006 requires directors to promote the success of the company, but with regard to six factors: the likely long-term consequences of a decision; the interests of employees; relationships with suppliers and customers; the firm’s impact on the community and the environment; its reputation for high standards of business conduct; and the need to act fairly between shareholders. The effect is precisely to prevent managements from automatically pleading a duty simply to maximise shareholder value. While they don’t have a free hand, they do have a genuine choice as to how aggressively to avoid tax.
But the deeper point is this. Unlike small businesses, or the vast majority of the working population, larger companies (and especially multinationals) have enormous scope to avoid tax. In the absence of common, binding global standards, that scope has expanded alongside the complexity of tax law.
For many of these firms, tax is effectively optional. In avoiding it, they are using their size to advantage themselves over purely domestic competitors – as anyone who has tried to compete with Amazon can testify. When decent people are outraged by companies that adopt labyrinthine legal structures to avoid tax —whose main effect is to enrich the lawyers and accountants —what angers them is a belief that this power, this choice, has been abused.
So, again, how much tax should these companies pay? Patently, the law cannot answer that question. But neither can economics. For economics sees companies merely as bundles of contracts, which allocate different financial incentives to shareholders, directors, managers and employees.
This can be a useful analytical tool, but it falls short of setting proper standards of behaviour. Indeed, it does the opposite: there is increasing evidence that people exposed to purely financial stimuli become more greedy, more short-term and more individualistic. Since really effective management is about inspiration and teamwork over the long term, monetary incentives often undermine, rather than reinforce, success.
In fact, all power – private and public – brings with it responsibility. In the words of the great American judge Benjamin Cardozo, “a trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honour the most sensitive, is then the standard of behaviour.” So it is not enough just to be a “good corporate citizen”.
This insight demands a shift of perspective, from the language of law and economics to one of stewardship and ownership. It is a shift with profound consequences. Within companies, it implies a long-term focus resilient enough to resist market pressures just to meet quarterly earnings targets. It implies a sense of personal responsibility – indeed, contrition – from management that has been largely missing from recent arguments over tax, or the causes of the banking crisis. It also demands a degree of modesty in how directors and managers reward themselves. And it invites companies to reconsider the privilege of limited liability, and the connection – which existed from the earliest chartered companies on – between corporate activity and the public interest.
But the idea of stewardship does not end there. For share ownership also carries with it power, and so responsibility. A recent review by Professor John Kay has done much to advance such ownership; it could be greatly assisted by a vigorous collective response from fund managers. And Parliament has its own role to play in reinforcing these values. It must ensure a clear, stable yet flexible framework of law within which companies can operate; and it must ensure effective enforcement, and prosecution, when the law is broken.
What really matters, however, are shared public standards. Lew Preston, as head of JP Morgan, once circulated a memo to all staff: “It has come to my attention that some employees have been preferring the interests of their own departments to the interests of the bank as a whole. Henceforth this will be grounds for immediate dismissal.” That’s more like it.
Jesse Norman is MP for Hereford and South Herefordshire