I have said repeatedly that the City of London
is an organised criminal enterprise that owes no allegiances to anyone but
itself.
I have made that assertion by applying the
accepted definitions of organised crime to the way in which business is
conducted within the Square Mile, and by extrapolating from the outcomes.
This blog is the first in a short series of
articles looking at the history of the regulation of the financial sector, and
why it is always doomed to fail!
William Chambliss, the American criminologist
once said;
"...One of the reasons we fail to
understand business crime is because we put crime into a category that is
separate from normal business. Much crime does not fit into a separate
category. It is primarily a business activity..."
In many of the more well-researched American cases,
they have traditionally offered access to commodities and services which were demanded
by the public more generally, but marginalised
by contemporary 'straight' society, alcohol in the early days, later drug
trafficking, prostitution, counterfeit products; or services which were
effectively closed to their constituents by the straight world, such as
financial lending to borrowers of limited or no means, which became known as
'loansharking'.
Such 'criminalised' businesses were supported
by many other, 'straight' business enterprises, food supply services,
restaurants, clothing industry products, garbage hauling, etc, indeed, many OC
enterprises operate among other functions, as legitimate front companies
through whom the profits from the illicit enterprises are laundered.
What has traditionally differentiated these OC
groups from their straight world counterparts, is their residual willingness to
resort to means of 'self-help' to settle commercial disputes, finding the judicious use of a
sawn-off shotgun or machine pistol to be far more efficacious than spending
vast sums of money on lawyers and litigation.
When we come to make comparisons between such
OC enterprises and their counterparts in the straight world of the City of
London, once we drill down beneath the very thin veneer of utmost
respectability with which the City cloaks itself, there is in fact, very little
to provide any great sense of differentiation between the two enterprises.
Indeed, one gets to marvel at the levels of similarity.
I will confess, it has taken me a long time to
overcome my natural reluctance to view the City as anything other than an
entity of utmost probity and transparent ethical standards. Like you, I was
brought up to believe that the City was a vital element in the British economic
infrastructure, and was part of our enviable ability to engage directly with
the rest of the commercial world. I fondly remember watching films and Pathe
News reels when the received diction of Mr Cholmondley-Warner would extol the
virtues of Threadneedle or Throgmorton Street.
I genuinely used to believe that the City was
there to facilitate GB plc's financial and economic well-being, in the same way
as the National Health Service looked after our bodies, the police, our safety,
the teachers, our education and the church, our souls! It was only when I was
at the Fraud Squad, and I started to engage with City institutions, (and then
only when I could get past the Praetorian guard of the City's own police force,
who jealously obstructed our every attempt to conduct our own enquiries within
their bailiwick), that I began to see the place in a different light, and began
to realise that the City owed a duty to no-one but itself and its private members.
Today, with the
examples of the recent criminal scandals still raw in our memories, I
have started to examine the financial sector, and to try and understand why the
regulatory agencies, the early SIB and the alphabet soup of self-regulating
organisations (SROs), and the FSA, failed so dismally to control the Square
Mile; and try and identify why the FCA will fare no better in the future.
I have come to this difficult conclusion as a
result of observing how the financial sector has repeatedly and efficiently
managed to survive every scandal, every allegation of fraud and financial
crime, every money laundering allegation, but without one member of its upper
circle ever having been prosecuted or brought low through the criminal justice
process.
I have come to the conclusion that the City is
indeed so powerful and all-embracing, that they are indeed, a protected
species, that even the Government is frightened of its threats to migrate from
its present home, if its members or its customs and practices are impacted too
heavily by the civil power. I believe that the City has the means, through its
many avenues and back channels, to let Government know what it will and what it
will not put up with, and to make it clear to Government that if it harbors any
ambitions to continue to be in receipt of the 11% or thereabouts of GDP that
the City contributes every year to its coffers, it had better do the City's
bidding, and keep its nose out of the Square Mile's affairs.
"...Leave us alone, and don't ask too many
awkward questions..." is the way of the Square Mile, and Government does
just that!
So, what was the means by which the City
achieved this level of hegemony, became so powerful that it could resist even
the most intrusive investigations and survive?
"...Go where you will, in business parts,
or meet who you like of businessmen, it is - and has been for the last three
years - the same story and the same lament. Dishonesty, untruth, and what may,
in plain English, be termed mercantile swindling within the limits of the law,
exists on all sides and on every quarter…"
For many years the City had been able to
operate with virtually no regulatory oversight whatsoever, as this quote from Temple
Bar Magazine, of 1866 identifies.. The impetus for reform only really began to gain
momentum in the early 1980s as the result of a series of scandals within the
fabric of the City of London, scandals so bad, they attracted significant
publicity.
During this period, it became abundantly clear
that the existing machinery of City self-regulation had proved to be wholly
ineffectual in providing the necessary degree of regulatory control.
When
discussing the constraints previously placed upon the activities of City
practitioners, Professor Gower, the architect of the Financial Services Act
1986, later stated;
"...It is not easy to detect any rationale
for the choice of one method rather than another. All one can perhaps say is
that the practice has been to avoid any form of regulation until some scandal
has shown it cannot be avoided and then to choose statutory Government regulation, unless there is a traditional
self-regulatory agency in existence to which the task may be left..."
At first glance, the proposed new system of
City regulation called 'practitioner-based, self-regulation' introduced by the
Financial Services Act 1986, and applying legally-backed re-regulation to an
exercise in de-regulation, appeared to contain a fundamental paradox: the
system, while being essentially market-influenced and non-governmental in
function, incorporated a considerable degree of statutory underpinning, the
very last thing the financial sector wanted to accept.
The Securities and Investments Board, (SIB)
described as 'an unprecedented body', was a perfect example of the kind of new
agency being introduced. It possessed wide powers to investigate alleged
breaches of criminal and regulatory provisions, to call for evidence and to
bring prosecutions, in exactly the same way as only the statutory agencies and
more importantly, the police, had hitherto had the power so to do. The SIB was
unusual however because it was not a statutory agency, but a company, limited
by guarantee.
Professor Gower realised that the City
establishment would be very reluctant to recognise the proposed changes and
that attempting to introduce an American-SEC style body would not be 'practical
politics'. Indeed, the proposed
legislation was widely resented and led to considerable friction between the
Conservative government and the various sectors of the City, who saw the new
proposals as an entirely unwarranted intrusion into their traditional hegemony.
Once it realised however that direct opposition
to the legislation was fruitless, commercial pragmatism quickly reasserted
itself. The City Establishment recognised that too public a degree of
controversy generated by overt antagonism to legislation would potentially
provide a threat to its own autonomy, and possibly undermine its traditionally perceived
position of being wholly supportive of the agencies of control.
In 1992, as part of my thesis for the award of
my Master of Arts degree at Exeter University, I had observed;
"...This traditional position of the City
was deliberately inculcated to give the abiding impression to any outsider that
the City was a complete supporter of all the control mechanisms that Government
cared to introduce, a law-abiding, ethical establishment entity..."
"...As a classic example, when dealing
with the issue of Insider Trading, a common practice which had underpinned the
foundation of the entire fortunes of the entire stockbroking community since
time immemorial, the City Panel on Take-Overs and Mergers issued a statement on
insider dealing as far back as February 1973, with the full support of the
Stock Exchange and the then Governor of the Bank of England..."
"...It proposed that insider dealing
should be a specific criminal offence...which should be properly enforced by
the Police...and the Police should be given statutory powers to investigate the
beneficial ownership of securities..."
"...This encouragement for the provision
of investigative powers to the Police (by which they meant the City Police),
was merely part of the traditional posture of support for law enforcement which
the City has always been keen to be observed to adopt..."
"...It provides the City with a dual
benefit because it enables the financial sector to be perceived to be
high-profiled in its support for law enforcement, thus perpetuating its
required image of absolute probity and utmost good faith, while resting secure
in the knowledge that those same agents of the State deputed to investigate and
regulate its activities, are so ineffectual and their reputation for concerted
action so poor, that they are unlikely to be able to do little more than
conduct the most cursory examination of any allegations of misconduct..."
"...By continuing a policy of encouraging
the same agencies to be granted ever-increased powers, the egregious sector
knows that it is simply facilitating an increased dilution of investigatory
effectiveness...."
Yet again, when confronted by the Financial
Services Bill, the City therefore reverted to its traditional defensive posture
of closing ranks and started preparing instead to undertake a policy of passive
resistance, first with a view to marginalising the legislation, and then, by
supplying a wide variety of City practitioners to the various boards,
committees, sub-groups, working parties and review teams, ultimately becoming
responsible for its administration, and thereby, rendering it wholly ineffectual!
The paramount need was to retain
self-regulation, a technique for which Professor Gower would later shrewdly
observe 'the City believes it has a genius'. This need became an article of
faith for those who opposed the introduction of a wider degree of financial
regulation.
The appearance of being a willing
co-participant in the regime of financial regulation; the provision of members
for the various committees and sub-committees; contributing to the ever
increasing degree of bureaucratisation and thus generally being observed to
undertake a 'responsible' approach towards the public administration of the new
policies, ensured that enforcement of the new regulatory provisions would in
fact be made more difficult than politically envisaged, and in reality, wholly
worthless.
The City establishment succeeded in
emasculating the intentions of the Financial Services Act 1986, even before it
got off the ground, and rendered its intentions irrelevant.
It was further able to minimalise the effects
of the legislative intentions of Parliament by employing men and women in the new
compliance role who, in the early days, were totally imbued with the cultural
appreciation of the primacy of the 'commercial' ethic of their masters.
These
people were expected to be capable of undertaking the proposed compliance role,
but without engaging in too close an approximation of a policing function. They
were expected to know how to behave without having to be schooled in the issue,
and what business practices should be treated as in the paramount interests of
their employers. Almost inevitably, they were recruited primarily from within
the ranks of those who had worked in the financial sector for many years, and
who were thus, well versed in the mores and norms of the sector. These experienced
old hands, in their turn, have schooled the newcomers to the compliance
function, thus maintaining the hegemony of their financial masters, and
ensuring that the internal compliance function recognises the limits of its
role within the profit-making nexus!
The SIB, from the beginning, showed little
interest in enforcement. The chairman himself was reported in the press as
stating; "I am a regulator, a watchdog and a policeman in that
order." It was widely rumoured that the SIB was most reluctant to recruit
personnel who showed any sign of being "enforcement minded" and
instructed its head hunters
accordingly..Dr Barry Rider of Cambridge University put it thus;
"...It would seem there is little alarm on
the part of those who have been systematically abusing the system..."
In this way, the City saw off the most
ambitious plans to provide a regulatory edifice which it was hoped would bring
the UK into line with the regime extant in the USA. Before the ink was dry on
the Statute Book, the legislation was stumbling along, blinded and toothless,
all its important functions being overseen by City Insiders.
Just as with its successor, the FSA, we should
not be surprised when the lead regulator proves to be utterly toothless and
supine, when its leading functionaries are a bunch of passed-over bankers.
As with the SIB, the City was able to see off
the FSA, and we shall look at some more reasons in the next edition of this
blog!