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Opinion

Lock 'em up

Lock 'em up
September 14, 2012
Lock 'em up

At the same time, a speech made by one Andy Haldane at the annual central bankers' jamboree at Jackson Hole in the US has been getting quite a bit of attention. Mr Haldane is the Bank of England's executive director in charge of financial stability, a position he arrived at in 2008 after joining the bank straight out of university 20 years earlier. He is an excellent speech writer for this kind of audience, blending academic rigour (his published speech - available from the Bank's website - lists 70 references and contains 20 complex charts) with colourful metaphors, in this case including the Tower of Basel and a frisbee-catching collie dog (whose reported expertise puts my collie to shame).

Mr Haldane points out that the Glass-Steagall Act - which kept the US safe from investment banks for 70 years - was 37 pages long but its modern successor, the Dodd-Frank Act, runs to 848 pages and that the Basel III framework is another toe-cruncher. Regulating unbearably complex banks with impossibly complex regulations is not a good idea: "these reform efforts have too many commas, semicolons and sub-clauses".

Then António Horta-Osório, chief executive of Lloyds Banking Group, popped up with a CBI speech describing his efforts to reinvigorate his bank by regaining public trust. I could not quite decide whether this speech was brave or crafty. No reasonable person would expect the gulf between the lofty standards Mr Horta-Osório espouses and those his bank delivers to be meaningfully reduced for many years, so he's not in much danger of letting us down. But on claw-backable pay (to which he is committed) I am very clear: if you didn't pay people money they had not earned, you wouldn't need a clawback mechanism.

He asked regulators "to have the courage to take pre-emptive action" to ensure scandals such as payment protection insurance could not recur. What a cop-out. If the new era towards which Mr Horta-Osório is heading does not preclude bank management who cannot see for themselves when they are brewing up a payment protection insurance kind of scandal, then it is the wrong destination. Bankers who say they are relying on regulators to keep them on the straight and narrow should never gain public trust.

Finally on Wednesday the Financial Times gave a comment slot to a distinguished retired City figure, Sir Martin Jacomb, to make the surreal suggestion that "banks over a certain size should be managed by a top team of a dozen people jointly and severally liable for the debts of the bank if it went bust". This, Sir Martin believes, would discourage banks from pursuing unmanageable growth and imprudent gearing. How you would convert 21st century behemoths like Lloyds Banking Group into 19th century style partnerships was, regrettably, an aspect the article did not cover.

Not for the first time, this column urges politicians and regulators to consider the virtues of crafting a strict liability law to cover the top cadre of bank management. Under strict liability, if you are in charge when a disaster occurs, then you are responsible for that disaster. A person accused of a strict liability offence cannot plead that the disaster was not their fault. Fault does not have to be proved: being in charge when the ship sailed into disaster is sufficient. Strict liability is a widespread legal doctrine, especially where safety is involved. If you are prosecuted because your car has bald tyres, only the baldness needs be proved. The legislation relating to defective products rests heavily on strict liability. And so it should.

We should make it a strict liability offence to be a senior employee of a bank which needs to be rescued. In this event, these people should expect to be locked up. Pre-emptive resignations well in advance of such a disaster and an inability to appoint replacements would be excellent advance indicators that a bank was heading towards dangerous territory.

Bank regulation would be much less of a challenge. We would all be safer.