People might have read a previous blog where I discussed the issues involving LIBOR and a resolution donation of over half a billion dollars of fines by the Royal Bank of Scotland.
Today’s article by Jill Treanor of the guardian at “http://www.guardian.co.uk/business/2013/may/01/vince-cable-rbs-prosecutions” gives notice of issues at play. Moreover, these issues have been at play for some time now and there is clear need for answers on several levels. The article mentions the issues as quoted: ‘Scotland’s Crown Office and Procurator Fiscal Service have been reviewing whether a case can be brought against any former directors since January 2012‘.
So, it seems that this investigation has been going on for 15 months. A letter was written to Lord Wallace in this matter. My question would be the why it is taking his Lordship the Advocate General of Scotland this long?
There is no doubt in my mind that it is a complex issue, yet overall, when it comes to banking issues, too often the public perceives this as the ‘out of sight, out of mind ploy’. The fact that this is the second bank involved in the LIBOR scandal and the fact that the fines are currently sailing close to 1 billion pounds in the UK alone, visibility should not wane for years to come.
This is not (just) about LIBOR. This entire issue is about the investigation into the directors who were in office at the time of the 2008 bailout. So, this is about a case 5 years old and this case seems to have only started in 2012 and now 15 months later there is still no final answer. This is interesting as the UK has the Limitation Act 1980. This statute has different limitations for different crimes, yet many of them is set at 6 years. This means that if defence can twist it that these crimes would fall under one of those statutes then prosecution has a lot less than 1 year left to take a stance and get started. The fact that these issues are still not for prosecution with the CPS are an additional matter of question.
If we look at the Limitation act and we consider this to be a tort, then Part 1, section 2 states: “2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. (Time limit for actions founded on tort)“.
The same time limit applies to actions founded on simple contract. The interesting question becomes where these issues are founded on. Is mismanagement a wrongful act, and there for a Tort? Are these wrongful actions and forms of mismanagement breach of contract?
Yet, we should not despair. There is a wise addition in this act that is stated in section 32 of that same act, which deals with ‘Fraud, concealment and mistake‘. Hip, hip, hurrah!
There it states “the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”
So we might have a little more time left. Yet, we should not…. how is that expression again? ‘Dilly dally’. Yes, that was it. My grandmother told me that more than once. So we should not dilly dally to find the answers whether we have a case against those directors, lest we forgot that time ran out.
So you see, I am not convicting them, but I do want to see a case brought to trial where they can either be convicted, or where they can submit evidence that would exonerate them. Either will be the case, yet no case means there will not be any answers forthcoming. This would be interestingly unfair as that bank gave the taxpayer an additional cost of 45 BILLION pounds to the taxpayer. If you are from the UK and reading this then you should ask yourself. Did you make your GBP 666 donation to the save the Royal Bank of Scotland funds? Will you? If not then we should figure out what happened and get this to trial. Considering that the UK has a 1 trillion dollar deficit, then the added debt is costing its citizens GBP 225 million each year in interests. That is almost 3.5 pounds per citizen each year just to keep that part of the debt on par.
So yes, it is interesting to read the article by Jill Treanor. It is also interesting that she was not the only one to mention it; similar articles could be read in the independent, the Telegraph and on the website of the BBC. It seems to me that this is not some political ploy as both MP Vince Cable (Twickenham) and Lord Wallace (Shetland) both seem to be Liberal Democrats, unless Mr Cable prefers Shetland over Twickenham.
The Guardian refers to the report of April on Banking Standards. The report was described to be enthusiastically damning. In another fine piece of writing by Jill Treanor at: “http://www.guardian.co.uk/business/2013/apr/04/bankers-brought-down-hbos” is one sentence that I found ….hmmm, ‘hilarious’ just does not describe that sinking feeling in me. The sentence was “Under pressure from parliament Goodwin’s pension was halved to £340,000“. Are you guys for flipping real? My total pension will never even come close to that amount as a total sum. If there was ever a case of evidence that incompetence pays, then that would be the evidence at hand.
This gives way to a quote in a book by Robert L. Bradley it states: “The businessman who refuses to acknowledge, despite clear evidence, that his facilities are out-dated, his product uncompetitive and his cash flow inadequate, is dishonest just as the one who makes fraudulent claims to the customers is dishonest. Both are trying, at the deepest level, to fake reality.” (Bradley,‘Capitalism at Work: Business, Government, and Energy’,2009,p.66).
I think with this quote he hits the nail on the head for a truckload of cases. He also shows a graphical bar of difference between incompetence and prosecutable fraud, whilst showing unethical behaviour and Philosophic fraud somewhere on the trajectory. This book is actually quite the little gem where they look at more than just ENRON and a few other devious little greed seekers. It even takes time to discuss the UK and ‘the Coal panic’ of 1865. So keep this book in mind please, it is a diamond in its own right.
So even though we get into the ‘Cloak and Kegger’ mindset that it is not a crime to be incompetent, then there is still the need to assure ourselves of a situation where those people do not run places like banks and corporate enterprises. Financial Services Authority (FSA) was supposed to have handled issues and cases, yet the Parliamentary Commission on Banking Standards seems to show a lack of actions on several levels. That committee on their web page reflected “The regulators also have a lot of explaining to do when it comes to their role earlier in the HBOS debacle. From 2004 up until the latter part of 2007, the FSA was ‘not so much the dog that did not bark as the dog barking up the wrong tree’”
From my view I wonder whether the regulator realised they were indeed the fore mentioned dog, whether they realised what a tree was and whether it ended up eating a bone instead.
The commission report which can be read at: “http://www.publications.parliament.uk/pa/jt201213/jtselect/jtpcbs/144/144.pdf” leaves us with another question that requires serious visible pondering by the press on several levels too. If we consider the issues of HBOS (20 billion) and RBS (45 billion) and the consequent fines that followed over the timeline until now then there are serious questions on those getting an income from the Financial Services Authority (FSA). Here comes the kicker! “and was funded entirely by fees charged to the financial services industry.” So basically we have a group that was not biting the hand that feeds them. How was this ever a good idea?
As per April 1st (no joke) its responsibilities have been split between two new agencies, the Prudential Regulation Authority, the Financial Conduct Authority at the Bank of England.
If we see what has happened here on several levels, it seems to me that self-regulation has failed on a massive scale. Both the Banking and Press industry seems to have scuttled justice, fairness and ethics on many levels and at many places. The question is not how they can restore their integrity; the question should be ‘Why are they presently allowed a place on the negotiation table in the first place?’
This brings me back to the bars as displayed by Robert L. Bradley. In my mind the distance between incompetence and prosecutable Fraud needs to be a lot smaller then I am currently comfortable with and the buffer called Unethical behaviour is a buffer zone that should be nothing more than a mere hairline. From those parts I wonder why massive visible and noisy steps have not yet taken place to remove options of self-regulation in several places at present.
Lawrence van Rijn - Law Lord to be 