Civil Enforcement Against Senior Bankers

Civil Enforcement Against Senior Bankers Civil enforcement against senior bankers for the financial failure of the institutions that employ them has been quiet in the United Kingdom before the global financial crisis in 2007. However, this unpleasant event that happened in the period between 2007 and 2009 directly displayed the weaknesses of senior management in the financial sector. Risk-taking management decisions, market misconduct and mis-selling practices are the common malpractices in the financial sector. Gradually, this problem which is caused by weak governance and misbehaviour has become more and more serious. There is a quote from an article stating this kind of problem as nothing so concentrates the mind as an urgent and complex problem.[1] However, generally, senior managers at financial institutions are typically incentivised in ways that lead them to underestimate risk-taking from the perspective of the firms other constituencies because they put the institutions profit in the first place. This can result in a failure to identify or fully appreciate in particular the correlation between low-probability risk and firm integrity.[2] Hence, it may not be best dealt with by enforcement against senior bankers.[3] As we know, a decision to be made equally for the best interest of the financial institution and the public is difficult. However, since weak governance appeared to be a problem for the fairness and transparency of the financial sector, it has to be addressed as soon as possible. Before determining whether the law is taking sufficient measures in addressing this senior management problem, we should first proceed to look at previous cases of the banks in the UK which failed in the global financial crisis. First and foremost, Northern Rock, which was a mortgage lender with a large market share, operated on a risky originate-to-distribute business model which relied on short-term money market funding to finance its extensive mortgage writing business. However, it went into trouble when the money markets dried up owing to subprime mortgage defaults in the United States. Then the Financial Services Authority (FSA) produced a report reflecting upon what went wrong at Northern Rock.[4] Certain doubts were voiced regarding the chairman of the board and the chief executive in terms of their competence and decisions made. However, neither individual has been subject to any individual liability under the law. Thus, this reflects that the law was not having a consolidate d structure to deal with individual liability in decision making. Next, the Royal Bank of Scotland teetered on the brink of failure in early 2009. It had been growing aggressively through large-scale acquisitions, such as of National Westminster Bank in the UK in 2000.[5] In May 2007, Fred Goodwin, who was the Chief Executive Officer of the Royal Bank of Scotland Group between 2001 and 2009, led the bank to acquire the Dutch bank ABN-AMRO, over-bidding for it in order to edge its rival Barclays out of the race.[6] The deal was completed deal quickly without adequate due diligence carried out on ABN-AMROs assets. This action was severely questioned by the media at that time.[7] By early 2009, the bank faced significant losses due to the absorption of losses from ABN-AMROs extensive securitised assets portfolio. This acquisition was proved not a good move. However, although the Financial Services Authority criticised the senior management for poor risk decisions and governance culture in its report on the Bank, no individual has been subject to any i ndividual liability under the law again.[8] In addition, Halifax Bank of Scotland, in fact, was a casualty of the global financial crisis because the crisis crystallised the failure of an already dangerous business model.[9] The bank had been underwriting corporate loans with poor due diligence and standards in order to pursue rapid growth and expansion. The Parliamentary Commission looked into the banking standards and criticised the chairman, the chief executive and a number of board members. However, only one individual, Peter Cummings, the director of the corporate finance division who led the business into writing enormous sums of bad corporate loans, was fined and disqualified by the Financial Services Authority.[10] No other individual has been subject to any individual liability. Hence, these previous cases show that the legal structure in this area was not competent to act as a deterrence and raise awareness of the senior bankers in making careful decisions in the best interest of the public. After the global financial crisis, several conduct scandals were revealed in the financial sector. Significant banks in the UK such as Barclays were fined in significant amounts for rigging the London Inter-bank Offered Rate.[11] The Financial Conduct Authority (FCA), together with other international regulators, also subjected a number of banks, including Barclays and RBS, to record fines over foreign exchange market-rigging.[12] The Salz Review[13], which revealed unhealthy sub-cultures in the large and complex structures at Barclays, also raised interesting questions. Question arises as to what extent senior management and the board should be responsible for the polluted banking culture as organisational pyramid shows the decisions are often made at the top.[14] The harms caused by malpractices in the banking sector are not only individual losses, but also damaging market confidence and integrity. Good corporate governance matters. It persuades, prompts and encourages institutions to preserve the honesty and integrity of key promises made to investors and the public.[15] In the aftermath of the global financial crisis, we can notice that many affected banks underwent senior management changes. In fact, the general consensus of all key reports is that the economy would have had stronger chances of survival had there been more professionalism among executives, better corporate governance structures and more ethical behaviour within the banking sector.[16] However, new management is unlikely to have significant effect on the current posed problem if the law is still lacking sufficient supervision in this area. In relation to this, Singapore, one of the world leading financial centres, recognises that a regulatory framework that is sound, strong and in line with the practices of leading jurisdictions is fundamental to achieving a thriving and liquid market.[17] We should now proceed to look at the development of the law in this area. In fact, the regulation of banking in the UK began with informal controls by the Bank of England and was eventually placed on a statutory basis by the Banking Act 1979. The following decades saw the passing of the Banking Act 1987 which increased the Bank of Englands regulatory and supervisory powers. As the UK did not have any special regime for dealing with banks in financial difficulties, a temporary Banking (Special Provisions) Act 2008 was passed to enable the resolution of problems. That Act was then replaced by the Banking Act 2009. After that, Financial Services Act 2010 was passed which amended Financial Services and Markets Act 2000 by strengthening the powers of the FSA and giving it a financial stability objective.[18] In July 2012, following a series of banking scandals culminating in the LIBOR findings, the UK instituted a Parliamentary Commission comprising both Houses to inquire into how banking culture could be changed for good.[19] The Parliamentary Commission was of the view that individual standards are key to enhancing banking culture and hence enhanced regulation of individuals must be introduced to change banking for good.[20] The Parliamentary Commission proposed enhanced regulatory liability for senior persons and employees performing any function that could harm the bank, as well as a special criminal liability regime for senior persons who have recklessly mismanaged a bank.[21] In relation to the above, the Financial Services (Banking Reform) Act 2013 has adopted many of the Parliamentary Commission recommendations. This Act has been lauded by the Treasury as the biggest reform to the UK banking sector in a generation, which will help to increase conduct standards among bankers.[22] This Act can be seen at the heart of system-focussed reforms designed to increase overall resilience of the UK financial system to future shocks and instability, as much as it can be seen in initiatives designed to strengthen the liability of individual actors operating within the overall financial system.[23] However, the Financial Services (Banking Reform) Act 2013 is also said to be a missed opportunity to increase the accountability of senior bankers for the financial failure of the institutions that employ them. In fact, individual liability is governed under Section 36 of the Act.[24] We can examine this issue by viewing it from two perspectives. We should first look at the express meaning and purpose which the Act wishes to carry out by its wordings. From the Act, we can see that Section 36 provides a jurisdiction to prosecute misconduct in the financial services sector. However, this jurisdiction is quite broad. This can be seen in Section 36(1)(a)(i) and (ii). It states that the senior manager either needs to have taken a decision or have agreed to the taking of a decision. Besides that, the senior manager has the duty to take steps he or she can in order to prevent such a decision being taken. The Parliamentary Commission on Banking Standards (PCBS) in its June 2013 final report concluded that mismanagement and failure of control lie at the heart of standards and culture in banking.[25] However, it seems that Section 36 is only intended to deal with the process of making reckless decision while managing the financial institution. Furthermore, the Act has a number of limitations. First, S stated in the Act must be a senior manager or an authorised person who is carrying out a senior management function, which is stated in S.19(2) of the Act.[26] In fact, many organisations have delegated authority now and so, this will narrow down the ambit of the offence. There is one problem in accessing this jurisdiction identified by the Commission is that managers of varying levels can communicate preferences that give rise to a risk without directing subordinate employees explicitly. For example, this was displayed in the London Interbank Offered Rate rigging scandal.[27] In relation to this, the law provides the provision where the senior bankers have the duty to take measures in order to prevent reckless decisions. Nevertheless, this 2013 Act still has its limitation to prosecute senior managers who are experienced and have become adept at encouraging reckless misconduct. Besides that, the Act states that S needs to be aware of a risk that the decision in question may cause the failure of the financial institution. This may be unfair to criminalise the actions of a decision-maker who did not appreciate or actually foresee a risk. The decision must actually bring the financial institution to the risk of failure, not only risk causing losses to the bank. In addition, there is no single definition of conduct risk available. There are different definitions in use, depending on the emphasis, the causes and the impact.[28] This will make the Act seem vague in this sense. The scope of the offence is limited further by the causation clause in Section 36 (1) (d) which states that the implementation of the decision causes the failure of the group institution. Failure in this context means is interpreted in three ways. First, the institution becomes insolvent. Second, any of the stabilisation options in Part 1 of the Banking Act 2009 is satisfied by the financial institution in question. Third, the financial institution is taken for the purposes of the Financial Services Compensation Scheme to be unable or likely unable to satisfy claims made against it. Practically speaking, it is very difficult to prove or to bring actions under the law. In the article titled Criminalising Bank Managers, Professors Julia Black and David Kershaw from the London School of Economics identified the difficulties faced by the drafters of the new legislation.[29] In fact, the law has to be broad enough to provide a solid deterrent to individual liability and also to satisfy public demand for accountability. However, it cannot be legislated too widely which would possibly allow senior bankers to benefit from the loopholes of the law. In fact, it can be said that the criminal sanction provided by the Act delivers an important message and acts as an alarming notice for the banking sector. Apart from that, question arises here as to whether the law achieves its purpose practically. The exact purpose of the law in this area is said to be difficult to be achieved practically. The practical problem of the Act is that Section 36 is seemed to be a legal framework on how the law and sanction will operate because the possibility of successful prosecution is quite remote. Indeed, the Commission stated in its final report that it would not be easy to secure convictions for the offence. However, the Commission felt that the provision should be created to give pause for thought to the senior officers of UK banks. There are two main reasons affecting the practicality of the law in this area. First, there is the matter of causation. In order to establish liability, the senior manager must cause or his decision results in the institutional failure. In other words, it has to be proved beyond reasonable doubt that the senior banker causes the failure of the financial institution. As we know, most of the business failures are often caused by a combination of factors. In any prosecution, as stated above, establishing that the decision of a senior manager cause the failure of a bank will be difficult. Financial institutions such as banks are often large organisations, and failure of the bank is not usually caused by only an individual, but a combination of different factors. Hence, it is quite difficult to prove that the bank failure was due to a specific decision by an individual, if not impossible.[30] In fact, the government argued that causing the banks failure should be interpreted as having significantly contributed to the failure during the Parliamentary debates on the b ill. However, this interpretation is unsupported by a plain reading of the Act. Hence, establishing causation in fact and in law successfully might be very difficult practically. Secondly, it also appears to be difficult that the senior manager is aware of the risk that the implementation of a decision may lead to bank failure as it is full of uncertainties in the financial sector. Besides that, the Act states that his or her conduct fell far below what could reasonably be expected of a person in their position. In fact, the doctrine of reasonableness can have different outcomes owing to different circumstances. For example, if there is an imminent bank failure, a senior manager is reasonably expected to take responsive but difficult decisions under pressure. This will cause proving the necessary mental element of the offence become very complicated. Besides that, misconduct or risk-taking decisions at one bank spreads across the sector, as the behaviour comes to be seen as the market norm and no bank wants to miss the extra earnings from the practices. Therefore, it is difficult to apply the reasonableness test on senior bankers since a lay person may not kn ow the actual reason behind certain decisions made in that position. The idea of how these situations will be decided can only become clear when it comes to the court. Apart from that, in determining a potential prosecution under this Act, investigations on the issues are likely to require a high degree of access to the financial institution records. This may appear to be a heavy burden for the financial institution in question. In the absence of sufficient evidence or information on what actually causes the banks failure, this will be a waste of time for the authorities and the financial institution. In addition, if the investigating authority wishes to investigate on every person involved in the senior management decision, this action requires a certain amount of time which might take months or even years. It would be even worse for a financial institution which does not have proper records of its major decisions. Besides that, it should be noted that not every decision is made at the general meeting. Therefore, an investigation may use up management time.[31] By looking at the nature of the Act, the new provision criminalises individuals actions by holding them responsible for having caused the banks failure. However, the process of decision-making in large financial institutions is usually a collaborative process with several inputs from various senior managers or people sitting at the top level of the institutional pyramid. As stated above, an investigation on this issue would possibly consume few months or years and this may disrupt the continuing management. In relation to the above, it shows that the laws must be clear and simple for people to follow. Laws that are overly vague or complex and technical do not encourage compliance as they are too difficult to interpret and comply with.[32] Practically, this new offence has its limitations in finding senior bankers liable for making risky decisions because risk-taking is the spirit of the financial sector. For example, in many capitalist societies, risk-taking is seen as a necessary part of business and it is hard to prove wrongdoing.[33] Therefore, this illustrates that Section 36 may seem to be a paper tiger which is enacted more for symbolic than actual punitive effect.[34] Apart from that, the law has another way of addressing senior bankers liability besides merely applying the 2013 Act. The Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) have published the final approach to improve individual accountability in the banking sector. The Senior Managers Regime will ensure that senior managers can be held accountable for any misconduct that falls within their areas of responsibilities, while the new Certification Regime and Conduct Rules aim to hold individuals working at all levels in banking to appropriate standards of conduct.[35] This has come into force on 7 March 2016. In fact, the new UK Senior Managers Regime (SMR) has the potential to rebalance these incentives. It is the product of a two year process led by a parliamentary commission tasked with addressing widespread misconduct at banks. The commission identified the lack of personal consequences for individuals as a root cause of repeated bad behaviour by institution s.[36] Under the SMR, an individual is guilty of misconduct if the regulators are able to show that there was a failure by a relevant authorized person in an area for which that individual senior manager was responsible.[37] Clearly, all centrepiece reforms of the Financial Services (Banking Reform) Act 2013 can be related to culture as it is currently understood by regulators: as a set of attitudes, values, goals and practices which together determine how a firm behaves à ¢Ã¢â€š ¬Ã‚ ¦[38]; and also by academic scholars: as the subsistence and transmission of behaviours and beliefs which characterise particular social or economic groupings within and beyond these groupings.[39] From the above, we can see that the Financial Services (Banking Reform) Act 2013 can be seemed to act as a reminder or notification for the senior bankers not to make extremely risky decisions. And by having this legislation, senior bankers and those who are responsible for making decisions would be more cautious in future decision making. However, practically speaking, it is difficult to be accessed as the financial or banking sector are full of uncertainties. No one can foresee the potential risk hidden in every decision made a nd no one should be blamed if the decision is made in the best interest of the institution. In short, a powerful mechanism to promote desired behaviour is to ensure that senior managers of the banks and their counterparties are aware of the possibility of the systemic implications of their actions such as aware of the possibility of their failure, and therefore the need to be concerned about that risk.[40] Banks safety and soundness are key to financial stability, and the manner in which they conduct their business is central to economic health. Governance weaknesses at banks, especially but not exclusively, those which play a significant role in the financial system, can result in the transmission of problems across the banking sector and into economies in outlying jurisdictions. Thus, effective and sensible corporate governance is critical to the proper functioning of the banking sector and the global economy.[41] In conclusion, the presence of this new offence may be seemed as a political tool to comfort the public after the global financial crisis which has no real and practical impact on individual liability. However, this Act will anyhow act as a general framework for senior bankers in their financial institutions to re-examine their decision making processes and to ensure that they comply with the highest standards of transparency. Someone may argue that strict rules or legislation might stop attracting talents into the financial sector. 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