Jailing ‘rogue’ bankers is easier said than done

By Howard Davies  / 

Wed, Jun 26, 2013 - Page 9

Last year’s LIBOR scandal was a shock to the body politic in London. Despite all that had gone on before, the public and their representatives were stunned to learn that bankers had systematically undermined the foundations of a global market benchmark — one with London in its name to boot — for personal gain.

British Chancellor of the Exchequer George Osborne felt compelled to launch a parliamentary inquiry. On Wednesday last week, after a year’s work, the UK Parliamentary Commission on Banking Standards finally laid a large egg.

Bankers will certainly regard the outcome as what in England we like to call a “curate’s egg” (served a rotten egg by his bishop, a young clergyman, when asked whether the egg was to his liking, replied that it was “good in parts”). They will choke on the commission’s recommendation of a new criminal offense for reckless conduct that leads to taxpayer bailouts, reinforced by a new “senior persons” regime that would ascribe all bank functions to a specific individual, who would be held personally liable when things go wrong.

The commission argues that “top bankers dodged accountability for failings on their watch by claiming ignorance or hiding behind collective decisionmaking.”

Its members aim to make that impossible. If they have their way, behaving recklessly with banking assets will result in a prison sentence, with no Monopoly-style “get out of jail free” card for the financial masters of the universe.

I can already hear the sound of lawyers sharpening their pencils: the offense must be defined specifically enough to withstand a human rights challenge. However, if implemented, the commission’s proposed regime would certainly be tougher than what is now on offer in New York or other banking centers, and British MPs are noticeably impatient with what they consider the glacial pace of change in global regulation — they want action now.

If the UK does proceed in this unilateral way, what would the consequences be for London’s banking industry? Would New York, Frankfurt or even Paris receive a competitive boost as international bankers, alarmed at the prospect of time behind bars if their derivative trades blow up again, flee the City of London?

Commission members offer two, somewhat contradictory, answers to that question. The first is that, frankly, they do not care.

“The risk of an exodus should be disregarded,” the commission said, adding that the advantages of being a global financial center have been accompanied by serious associated risks to the British economy. Unlike the US, where the financial sector is smaller as a share of GDP, the UK economy has still not recovered the output lost in the post-2008 Great Recession, owing to continued retrenchment in the banking sector.

The commission’s members do recognize that London’s loss of status as a global financial center would be costly in terms of jobs and output, so they developed a second line of argument: “There is nothing inherently optimal” about a level playing field in international finance.

In their view, attempts to develop a single European financial market have forced countries to respond to the failings revealed by the 2008 crisis at the speed of the “slowest ship in the convoy.”

By contrast, “there may be big benefits to the UK as a financial center from demonstrating that it can establish and adhere to standards significantly above the international minimum,” the commission said.

In addition to the tough new regime of personal accountability, the commission would supplement the Basel standards on bank capital with a tight leverage ratio.

The British government, preoccupied with finding ways to stimulate growth as the next election approaches, will no doubt think hard before making any changes that might drive business offshore. However, the government is caught between a rock and a hard place, hemmed in by a parliament that, strongly backed by a bank-hostile press and public opinion, is eager to enact reforms, and by EU directives to implement a tougher regime.

So, is the commission right that the UK government should move quickly on reform and disregard the consequences?

Such evidence as one can find from international surveys suggests that the regulatory changes implemented so far have not driven bankers away. London has already implemented an approach that is tougher than that of most other financial centers. Taxes levied on executive bonuses have cost international banks dearly. Regulators are now appreciably tougher and more intrusive than their counterparts in New York. Bankers do not like it, but they have not yet left for more congenial locations.

Nor do they indicate that they will. Indeed, the latest Z-Yen index of global financial centers showed London maintaining its first-place position — and with its margin over New York unchanged. The Asian centers are catching up, as one would expect, but they are hardly direct competitors for business that would otherwise be done in London. Frankfurt and Paris, the most plausible European competitors, languish in 10th and 26th place respectively.

Rating agencies and shareholders are nervous when they hear that a stricter regulatory environment is not necessarily a disadvantage. However, a regime in which personal responsibility strongly affects individuals in one jurisdiction will give bankers pause for thought, especially in the case of global banks with complex matrix-management systems that enable product heads to be moved elsewhere.

British legislators will need to be satisfied that any new regime captures the right people, in the right way. However politically appealing the idea of rogue bankers behind bars might be, putting them there is likely to remain very challenging in practice.

Howard Davies, former chairman of Britain’s Financial Services Authority, deputy governor of the Bank of England and director of the London School of Economics, is a professor at Sciences Po in Paris.

Copyright: Project Syndicate