Tuesday, December 13, 2011

One law for them, and one for the rest of us!

When a top business executive throws a wobbler because one of his staff has put a pink wafer biscuit on the coffee tray, you know you are dealing with a rare kind of individual. But Sir Fred Goodwin, for it is he, was obsessed with biscuits and also had anger problems, The former Royal Bank of Scotland boss, who was known as "Fred the Shred" because of his obsession with cutting costs, left the taxpayer with a £45 billion bailout bill, and a lot of uneaten pink wafer biscuits.

He was, by all accounts, a terrible boss to work for. It is claimed that Sir Fred could not control his anger if the wrong type of biscuit was put in the boardroom, and even threatened catering staff with disciplinary action in an email titled "Rogue Biscuits" after executives were offered pink wafers.

The reason why Goodwin’s discredited name is back in the public frame again is because the FSA has now published its report into the way they regulated or failed to regulate the way in which RBS engaged in the contested take-over for Dutch bank, ABN Amro.

Let us be clear in the interests of simplicity, RBS made a bid for the Dutch bank, which resulted in their buying a crock, leaving RBS with a £49 billion black hole in her accounts, requiring a £45 billion injection from public funds to keep RBS afloat.

The FSA report makes repeated criticisms of the culture and governance at the bank, and labels the £49bn takeover of ABN Amro in 2007 as little more than "a gamble". So delicate are the sensibilities of some of the Directors of RBS as to the way this bad joke should be described, that they have hired lawyers who have been engaged in a lengthy legal dispute with the regulator over its description of the ABN deal.

In the foreword to the report, Lord Turner, the FSA chairman, says that the due diligence conducted by RBS amounted to "two lever-arch files and a CD-ROM", a claim disputed by the bank's former directors.

During its inquiry, the FSA wrote to former non-executives of the bank, including Sir Tom McKillop, the chairman at the time of RBS's collapse, to gauge whether they had felt intimidated or bullied by Sir Fred's notably autocratic style. The former directors are understood to have responded, perhaps not surprisingly, that they had not. Of course not, who would have thought that such a thing could even have been contemplated, I’m surprised anyone felt the need to question whether these nice Scottish gentlemen might have felt at all intimidated by a commercial thug who threw a hissy fit when a pink biscuit appeared by his coffee cup. What we do know is that The City regulator has reconfirmed its conclusion of last year that no former directors of RBS, including the former chief executive Goodwin, will face punishment over their role in the bank's collapse.

Why should this be, did no-one do anything wrong?

The duties of a director of a public company are straightforward and they include;

Directors must act in the interests of their company;

They have a duty to act within their powers;

They have a duty to promote the success of the company;

They have a duty to exercise independent judgment;

They have a duty to exercise reasonable care, skill and diligence;

They have a duty to avoid conflicts of interest;

Looked at through eyes given the benefit of hindsight, how could Goodwin possibly have thought that the ABN Amro deal was a good one for the Bank? Remember, the FSA report calls the whole thing a ‘gamble’!

The banking culture at the time was caught up in a mania of merger activity. The atmosphere in 2007 was, as one senior former RBS director put it, “eat or be eaten”. This was the era when everything was about rapid growth and global domination. Internally, RBS, it was felt, had to be part of that.

Yet Goodwin was repeatedly warned of the dangers of making a bid for part or all of ABN Amro. The memory of the Charter One deal was still fresh in the minds of RBS board members and many doubted whether a bidding consortium could be formed and did not want to buy the whole bank. Goodwin called UBS banker John Cryan, who had helped broker a previous deal and had been a close adviser of Goodwin’s in the past, for advice. The one-sided conversation was what one colleague later described as the “Fred hairdryer”.

Cryan had been against RBS buying ABN from the start and had warned Sir Fred against doing the deal, telling him he was “extremely concerned” about the impact it would have on the bank, particularly its capital ratios.

In one note, Cryan wrote to Sir Fred warning him about ABN’s exposure to subprime: “There is stuff in here we can’t even value.” Sir Fred replied saying: “Stop being such a bean counter”.

This was a man exercising reasonable care skill and diligence? I don’t think so. This was a man so puffed up by his own ego that he was willing to ignore serious professional advice. The full, gory story of this banking farce can be read at;

uk,finance.yahoo.com/news/RBS-investigationpChapter -2-tele-2357916462.htmail?x=0

What it demonstrates is the way in which one man’s inflated sense of self-importance determined the way in which a bank would quickly founder and collapse to the point that it needed vast sums of public money to stay afloat. Goodwin of course walked away completely free, with an obscene pension to feather-bed has latter years, and no-one inside the RBS Palace of Varieties has been required to explain their dereliction to the duties they owed the company in Court.

To understand the reasons for this inexplicable conclusion, we are forced to revert to the most recent FSA findings. In a report published on 12th December 2011, the FSA admits its own supervision was "flawed" and "provided insufficient challenge" to RBS, the BBC reports. However, it did not concede these shortcomings amounted to negligence.

How can this possibly be the case? The FSA has had a very chequered track record of dealing with the big cases and it has always employed people who were not really qualified to take on the big players. We were repeatedly told that the FSA was going to be better than its predecessor, the SIB,, which was supposed to be infinitely preferable to its predecessor, the DTI, etc, etc.

It may just be that lawyers reviewing the case may have found themselves constrained by the fact that the then Prime Minister, Gordon Brown, was on the record insisting that the FSA continue to engage with the financial sector, with ‘…a light touch approach to regulation…’

Perhaps they felt that this evidence might not assist a jury in coming to a clear conclusion. Whatever the reason, no-one is going to be held accountable for this farce, and the tax-payer must pick up the bill.

In any other walk of life, any failure to fulfill your role and responsibilities properly, and in such an egregious manner as this, would have resulted in immediate sackings inside both organisations. Any chief officer of police deemed to have acted in this way would have been picking up his P.45 long ago, The same goes for any other kind of public service role, but in the City and the financial sector, we do things differently! No one will be called to account, senior figures inside the FSA will be quietly selected for promotion and the whole rotten system of cosy City financial regulation will just drift on and on.

Many of those of us who have been closest to financial regulation in the past have tried to warn the FSA of its failings, but to no avail. We have tried to show them through offering training or working with their enforcement arm, with the aim of providing a high level of assistance, how to develop investigators with real skills, but we have been rebuffed at every turn.

The good old tradition of well-meaning amateurs exercising senior positions in public life, without any real professional skills, will continue to operate. No detective worth his or her salt would have been confused by Goodwin or his satraps, and it is unlikely that they would have allowed him and his cowed team to shout them down. They would have insisted on getting straight answers to straight questions like;

Why, when he knew that other professionals were counseling caution, did Goodwin ride roughshod over their concerns, without reviewing them by third-party professionals? How did this demonstrate that he was acting within his powers?

Why was so little due diligence undertaken before making such a huge investment? How was this in the interest of the company? How much did Goodwin believe his personal commercial worth in the banking fraternity would be increased in the event that the buyout went through successfully?

It would have been put to him that his anxiety to get the deal done in such a hurry, was largely motivated by his greed and avarice in both wanting to beat Bob Diamond from Barclays, (a personality issue) and wanting to be seen as a major banking icon (a big swinging dick in other words) in the banking world, which would of course have increased his commercial value.

It would have been put to him that his anxiety to achieve this fast fix was in fact a series of major conflicts of interests and not in keeping with the interests of the company and its shareholders, but in making him even more commercially valuable.

He would have been kept at the interview table until such time as he gave simple and reasoned answers. He would not have been allowed to roam off into the realms of commercial bullshit, speculating and pontificating and trying to avoid the real meaning of the questions, and he would have been invited to demonstrate why he should not be litigated against for a gross breach of all these requirements?

We, the investing public have a right to deserve far better from those who regulate our financial sector. We have a right to expect that those who have the stewardship of our great financial institutions, should exercise considerable skill, diligence and above all, caution in their handling of our money. We have a right to expect that the Regulators will employ people who can do their job properly, and above all, we should not expect to have to sit through another sniveling apology from a the head of the SFA, explaining why their handling of their responsibilities was so pathetic.

They should be subjected to the same treatment as any one of us would expect, but the problem with the British financial sector is that there has always been one law for those on the inside and one law for the rest of us. Oh, and they don’t like pink wafer biscuits either!

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