Alex Bailin 

Gordon Brown is wrong to say British banking is still a free-for-all

More money is certainly required to prosecute wrongdoers, but many of the crimes of 2008 simply couldn’t happen today, says business crime barrister Alex Bailin
  
  

People sit by the River Thames with the financial district in the background.
‘In the criminal sphere, UK prosecutors’ tools have been considerably sharpened.’ Photograph: Hannah Mckay/Reuters

Gordon Brown has lamented the fact that no banker languishes in jail for their role in causing the 2008 financial crash – and is worried that we are “sleepwalking” into another major financial crisis. A decade ago Brown was mocked for accidentally claiming he had saved the world in the government’s reaction to the crash – but he was certainly a key architect of the international response that rescued the financial system in 2008.

He is correct now to highlight the lack of accountability and weak regulation of a decade ago. And he is entitled to balk at the scale of recent deregulation in the US, where Donald Trump has rolled back the banking sysyem’s hallowed Dodd-Frank legislation, raised the “too big to fail” threshold of US banks and exempted many of them from the health checks that were intended to protect the US and the global economy from more Lehman-type collapses.

But so far as the UK is concerned, Brown seriously plays down the reforms that have been brought in since 2008 – and which have started to alter banking culture. Banks are now ringfenced – their core operations are segregated to prevent contamination of the retail arm in the event of financial meltdown, and to limit the public’s bailout liability if the investment arm crashes. A new senior managers regime is in force, under which the Financial Conduct Authority regulates bankers more stringently. Critically, while it permits those in high-level financial services roles to delegate, it does not allow them to absolve themselves of accountability as a result of wrongdoing by those further down the chain.

Although hedge funds remain largely unregulated in the UK, and Brown is right to raise the spectre of shadow banking, which was at the core of the 2008 crash, the marketing of hedge fund investments is now regulated by the FCA and can only be performed in the UK by regulated individuals. Those changes represent real enforcement enhancements, and are not eclipsed by all that Trump does in the other direction.

In the criminal sphere, UK prosecutors’ tools have been considerably sharpened. Criminal cartels no longer require proof of dishonesty. We have new criminal offences for failing to prevent bribery and tax evasion. And there is a serious debate to be had about whether we need a corporate offence for failure to prevent economic crime– or even more widely about whether corporate criminal liability should be as wide here as it is in the US. Existing laws have been enforced more strictly too: some traders and middle-management bankers have received lengthy prison sentences for their roles in criminal rate-fixing– penalties that would have been unthinkable a few years ago. Corporates have paid fines of £500m in the UK as part of deferred prosecution agreements for historical misconduct, something many would have thought was long-forgotten.

Of course, while regulation is always a combination of carrot and stick, the best way to clean up banking is with salutary prison sentences and aggressive confiscation of the proceeds of crime. Laws and tough talk only go so far – prosecutors need deep resources, especially when they are investigating and prosecuting well-funded banks and bankers. The Serious Fraud Office is woefully underfunded and its new director, Lisa Osofsky, with her US law enforcement background, will feel that acutely. Until the SFO has proper funding allocated to it, there is a limit to what it can achieve and to the deterrent effect it can have.

Brown’s type of dour prediction often emerges when equity markets are experiencing major bull runs. He is right to worry that countries in an increasingly fragmented world will blame one another if financial history repeats itself, and America’s newfound isolationism is particularly harmful to the global banking system, which requires international cooperation in order to be safe and robust.

But Brown is wrong to say that nothing has changed and that bankers continue to operate here with impunity from culpability for wrongdoing or recklessness. Regulatory powers have been strengthened; criminal laws have been added and more may be on the table. Bankers are in prison for misconduct that occurred since the last crash. Things have genuinely changed in the UK, even if more money is urgently needed to enforce the new regimes.

• Alex Bailin is a barrister who specialises in business crime and financial services

 

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