The UK Corporate Governance Code Principle of ‘Comply or Explain’: Understanding Code Compliance as ‘Subjection’

The focus of this paper is on UK Code compliance and the contests and confusions that have surrounded its principle of ‘comply or explain’. In contrast to many agency theory‐informed studies, the paper suggests that visible compliance with the Code cannot itself be taken as a reliable proxy for board effectiveness. Instead, drawing upon Foucault's account of governance as subjection, we argue that, as a form of board accountability, visible compliance can only support the Code's primary objective of establishing norms which shape the conduct of directors within boards. The contests and confusions as to the meaning of comply or explain are then explored in terms of the challenge regulators have faced, throughout the subsequent life of the Code, in respecting the freedom of action of directors, whilst nevertheless seeking to influence how this is exercised. The paper first explores three key moments in the evolution of the UK Code: the initial Cadbury committee two‐page ‘Code of Best Practice’ in 1992, the more prescriptive 2003 post‐Enron changes to the UK Combined Code following the Higgs review, and the retreat from such prescription in the 2010 changes to the Code. This is complemented by drawing on qualitative empirical research to describe three very different ‘subject positions’—refusal, cynical distance, and willing embrace—which directors have come to adopt in response to the Code. The paper concludes by pointing to the very different consequences for actual board effectiveness implied by these contrasting, but largely invisible, responses to the Code.