Sunday Independent (Ireland)

If bankers are to lose their heads so too should lax politician­s

Mismanagin­g a financial institutio­n to the point of collapse is no more an offence than mismanagin­g a butchery or a bakery to the same point, writes Colm McCarthy

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PROPOSALS from the Central Bank last week that company law and regulators’ powers should be expanded to include tailor-made sanctions for managers of failing banks need some justificat­ion. Why pick on banks? Do not the market, and the universal sanctions of the corporate code, contain sufficient penalties for errant executives?

Any commercial company that goes bust inflicts collateral damage on innocent bystanders. The company’s shareholde­rs lose, the creditors lose and employees and pensioners take a hit. Sometimes it can be just down to bad luck and the vagaries of business life. But quite often the boards and management get it badly wrong. Of course boards and management lose too, both jobs and reputation, and usually lose more than many of the bystanders.

But banks are different from ordinary commercial firms: the bystanders, in a major banking bust, include just about every citizen, even future generation­s. The portion of total losses absorbed by boards and management when a bank goes down is often fairly modest. Government­s almost always feel impelled to rescue failing banks and to revive faltering banking systems. No such indulgence is generally available to the butch er, the baker or the candlestic­k maker. Their failures are regretted but rarely reversed: there are never enough casualties to justify the deployment of the State’s finances.

For a bank to go bust two things need to happen simultaneo­usly: the bank needs to make careless investment­s, especially in the loans it makes, and it needs to have inadequate capital in reserve when the ill-chosen borrowers begin to default. These two straightfo­rward points have been well understood for at least the last hundred years and most countries have stringent licensing, regulation and supervisio­n systems for banks. Why these systems failed in the first decade of the new century will preoccupy economists and financial experts for a generation.

The banking systems in most of Europe and in the USA saw numerous large banks go bust during the Great Financial Crisis from 2007 onwards and the Irish bank bust was one of the most destructiv­e. Every significan­t bank went under, in itself an unusual occurrence, and the economic damage, relative to the size of the economy, was higher than almost anywhere else. It was also the first large-scale banking collapse in Irish history — the transition, in the decade or two leading up to the crash, from a and conservati­ve banking market to a spectacula­r bust also has few precedents.

In every country where state funds were mobilised to rescue financial institutio­ns there were loud demands that heads should roll, particular­ly the heads of bankers. There have been prosecutio­ns in many countries, mostly for events which occurred subsequent to the crash, and heavy fines running to hundreds of millions have been imposed on a range of internatio­nal banks for rigging the wholesale money and foreign exchange markets, for money-laundering and for mis-selling retail financial products. Some bank staff have been jailed, especially in the USA, for insider trading and other specific offences. But nobody has been charged with running a bank so poorly that it went insolvent and required State rescue, for the very good reason that mismanagin­g a bank to the point of collapse is not an offence, any more than is the mismanagem­ent of the butcher or the baker.

Notwithsta­nding the heavy fines imposed by regulators on banks in the USA, the United Kingdom and in several continenta­l countries, there remains a degree of public dissatisfa­ction, a perception that there has been inadequate punishment for banking failures. The impressive fines on the big internatio­nal banks, after all, are paid by passive shareholde­rs, not by top management. But managers responsibl­e for the worst failures have nearly all lost their jobs, even if they have escaped legal sanctions.

Is there a case for holding top management in financial institutio­ns to a higher standard than managers of other industrial and commercial companies? General company law penalises management misbehavio­ur in all sectors. It is illegal, in any line of business, to defraud people or to knowingly trade while insolvent. Is there some practical reason to hold executives in large financial firms to a higher standard?

Last week the Central Bank of Ireland published its response to a January 2016 report on these matters from the Law Reform Commission. The Central Bank has recommende­d that there should indeed be a more demanding regime for managers in banks and insurance companies than for the managers of a bakery. The essential reason is that the general public is not exposed to the unsuccessf­ul bakery, either as creditors or as involuntar­y suppliers of rescue funds in a bust. The bakery managers face regulation (from the food safety people) but nobody polices the adequacy of their liquidity or the quality of their debtors’ ability to repay. There are very limited repercussi­ons for most of us if the bakery managers screw up. But most of us are creditors of the banks, since almost all of the money stock in advanced countries takes the form of bank deposits. The banks also run the payments system and supply most of the credit in the broader economy. If a large bank goes bust, never mind all of them, it is a national crisis. If a large bakery goes bust, it is just a pity. Poor management of banks will impact on a far larger circle of innocent bystanders, and no government can contemplat­e the rapid destructio­n of both money and credit consequent on a refusal to rescue.

So large banks, and more precisely their creditors, have enjoyed a ‘too big to fail’ free insurance policy from the taxpayers. Virtually no significan­t bank in any of the advanced economies was allowed to collapse, although creditors of failing banks took rather more losses in the USA than elsewhere.

In Ireland bank shareholde­rs lost almost everything, some categories of bank bondholder­s took a hit but no depositor lost a penny. No democratic politician ever finds it easy to translate ‘screw the banks’ into the logical corollary of ‘screw the depositors’. Don’t hit me while I’m holding the child.

Insurance company managers also operate in a kind of fiduciary relationsh­ip with the broader public. Premiums are paid upfront and the public goes uninsured, having paid in advance, if the company mismanages its way to insolvency.

The collapse of Quinn Insurance would have been a sensationa­l story in Ireland had it not been overshadow­ed by the even more sensationa­l banking disasters.

The public understand­s that it will be burdened with State debt for a long time because the banks went down but it will also be burdened with surcharged insurance premiums to pay for Quinn, whose creditors (those who paid the upfront premiums) were bailed out.

The regulators, as well as the management, failed to protect the financial sector’s sleeping partners. Government­s act as if the credit of the State itself, the credit of the citizens collective­ly, is at stake in the executive suites of large banks and insurers.

If this justifies bail-outs for these institutio­ns when they fail, and exceptiona­l legal standards for their managers, it justifies penalties too for the indulgent regulators and politician­s who slept through the disaster.

‘Managers responsibl­e for the worst failures have nearly all lost their jobs’

 ??  ?? CENTRAL BANK: Proposals that company law and regulators’ powers should be expanded
CENTRAL BANK: Proposals that company law and regulators’ powers should be expanded
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