FSA Investigation into LIBOR

Lord Sassoon Excerpts

Thursday 28th June 2012 Lords Chamber

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, I will now repeat a Statement made by my right honourable friend the Chancellor of the Exchequer in another place.

“Mr Speaker, I would like to update the House on the Financial Services Authority’s investigation into the manipulation of the setting of the LIBOR and EURIBOR interest rates and the Government’s response.

The London Interbank Offered Rate or ‘LIBOR’ and the Euro Interbank Offered Rate or ‘EURIBOR’ are the benchmark reference rates that are fundamental to the workings of the UK, European and international financial markets, including markets in interest rate derivatives contracts. These contracts may sound exotic, but they are the bread and butter of our financial system and are used by businesses and public authorities every day, and they affect the mortgage payments and loan rates of millions of families and hundreds of thousands of firms, large and small. LIBOR and EURIBOR are by far the most prevalent benchmark reference rates used in euro, US dollar and sterling interest rate derivatives contracts. The outstanding interest rate contracts alone are estimated to be worth $554 trillion.

Yesterday, the FSA published notice that Barclays had, on numerous occasions, acted inappropriately and breached principles 2, 3 and 5 of the FSA’s Principles for Businesses. As a result, the FSA has imposed a financial penalty of £59.5 million on Barclays. In other words, the FSA reports that this bank, on numerous occasions, did not conduct its business with due skill, care and diligence. The bank did not take reasonable care to organise its affairs responsibly and effectively, with adequate risk management systems, and it did not observe proper standards of market conduct. As the FSA puts it,

‘Barclays’ misconduct … created the risk that the integrity of LIBOR and EURIBOR would be called into question and that confidence in or the stability of the UK financial system would be threatened’.

Barclays is not alone in this. The FSA is continuing to investigate the conduct of a number of other banks in relation to LIBOR. The FSA continues to commit significant resources to its investigations into potential attempts to manipulate LIBOR, and it continues to work with its counterparts overseas and with other authorities in the UK. The investigations concern a number of institutions both based in the UK and overseas, but it is already clear that the FSA’s investigation demonstrates systematic failures at the heart of the financial system at the time.

I want to thank Adair Turner and the team at the FSA for a very thorough piece of work. However, it begs three vital questions. First, how were such failures allowed to continue undetected and unchecked—particularly in the two years before the financial crisis, when the FSA is clear that the most serious breaches occurred, and the only motive was greed? Secondly, what changes are needed to our regulatory system in the future to prevent such abuse occurring again, and to make sure that the authorities have every power they need to hold those responsible fully to account? Thirdly, what further investigations are required into the activities at Barclays, what sanctions are available, and what questions must their chief executive answer?

First, the FSA report is a shocking indictment of the culture at banks like Barclays in the run-up to the financial crisis. The e-mail exchanges between derivative traders and the LIBOR submitters read like an epitaph to an age of irresponsibility. Through 2005, 2006, and early 2007, we see evidence of systematic greed at the expense of financial integrity and stability. They knew that what they were doing was wrong: ‘Keep a secret’, one trader tells another in February 2007, ‘If you breathe a word of this, I’m not telling you anything else’. Yet no one at Barclays prevents them, no one in the tripartite regulatory system knows anything about it, and the Government of the day were, literally, clueless about what was going on.

The FSA is clear that the most serious breaches of its Principles for Businesses occurred in the years leading up to the financial crisis. Once the crisis is under way, Barclays’ concern switches from the greed of traders to concern from the management about the reputational risk to the firm. Barclays itself raises concerns about the LIBOR with the FSA in late 2007 and 2008. Yes, the financial system was experiencing a severe stress, and markets were frozen. However, it is clear that Barclays—and potentially other banks—was still in flagrant breach of its duty to observe proper standards of market conduct and to give citizens and businesses in this country and elsewhere proper transparent information about the true price of money. Britain’s tripartite system of regulation failed us in war and in peace—and the country has paid a heavy price for that.

That brings me to the second question of how we can prevent this from ever happening again. This Government are getting rid of the whole tripartite system. The Financial Services Bill now before Parliament will create a new, far tougher regulatory system. A new Financial Conduct Authority will focus, razor-like, on market abuse and protecting consumers. We have been reviewing with the FSA and the Bank of England the operation of the LIBOR regime—which was not regulated under the last Government’s Financial Services and Markets Act. The market is already changing and the role of LIBOR is changing with it. As part of our review into LIBOR and the strength of the financial regulatory architecture, we will examine if there are any gaps in the criminal regime inherited by this Government and we will take the necessary steps to address them.

I cannot comment on possible criminal investigations for individuals involved in this activity. The authorities are exploring every avenue open to them, but shockingly, the scope of the FSA’s criminal powers granted by the previous Government does not extend to being able to impose criminal sanctions for manipulation of LIBOR. As part of our review into LIBOR and the strength of the financial regulatory architecture, we are examining whether strengthening the criminal sanctions regime for market abuse and market manipulation is warranted, and if so, we will provide for these powers quickly. In addition, next week the Government will publish a consultation in response to the report on the failure of RBS, and will consider the possibility of criminal sanctions for directors of failed banks where there is proven criminal negligence.

Under the previous Government’s regime, fines paid to the FSA are used to reduce the annual levy other financial institutions are asked to pay. I am far from convinced that in all cases this is the best use of the money. We are considering amendments to the Financial Services Bill that ensure that fines of this nature go to help the taxpaying public, not the financial industry. I have also asked my officials urgently to investigate whether this legislation could be applied to the fine imposed on Barclays. However, it is clear that what happened in Barclays and potentially other banks was completely unacceptable, and that it is symptomatic of a financial system that elevated greed above all other concerns, and brought our economy to its knees. That brings me to the final point.

As I say, a number of individuals are under formal investigation by the FSA, and this number is expected to increase as the investigations continue. The Serious Fraud Office is aware of the matters under investigation, and there are ongoing discussions between the FSA and the SFO about the evidence as it develops. As far as the chief executive of Barclays is concerned, he has some very serious questions to answer today. What did he know, and when did he know it? Who in the Barclays management is involved, and who, therefore, should pay the price? It is quite right that the Treasury Select Committee has asked him to appear urgently to account for himself and for his bank. We all want to hear his answers.

The story of irresponsibility is not over yet. Our financial services should be a source of economic strength and national pride for this country. However, failures in our banks and financial system have cost the country billions and put thousands out of work. Those responsible should be held responsible. We want our financial services to support the creation of jobs and prosperity for millions. This Government are sweeping away the regulatory system that failed. They will protect taxpayers, punish wrong-doing, and put right the wrongs of the age of irresponsibility.”

My Lords, that concludes the Statement.

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[Lord Sassoon]

My Lords, I am grateful to the noble Lord, Lord Tunnicliffe, for confirming the Opposition’s support for possible amendments to the Financial Services Bill to reflect these matters and for his frank admission that there may be lacunae in the law that now need to be plugged.

The noble Lord, Lord Tunnicliffe, asked what the Bill will do to improve matters. First, we are creating a focused conduct regulator, the FCA, which will supervise in a much more focused way than the FSA the conduct of markets because it will not have all of the prudential side to look at. The FCA’s operational objective of protecting and enhancing market integrity goes to the heart of our discussion. Because it is a self-standing body, the FCA will create a different culture and risk appetite. It will take a tougher, more proactive and more focused approach to these sorts of issues and there will be specific powers that we will discuss in detail through the Bill’s proceedings. For example, in circumstances like this, the new power of the FCA to disclose the fact that a warning notice in respect of a disciplinary matter has been issued means that the FCA will be able to disclose that it is taking action at a much earlier stage in an investigation than the FSA. So the new structure will be much better suited to dealing with this sort of problem.

There is also a lot of ongoing work to review how the LIBOR-setting process works. There are consultants involved with the BBA and the panel banks working with the FCA. There is a supervisory committee for this work on which the Treasury sits as a non-voting member but providing strategic steer for the work. I would expect findings to be published from that review within the next few months. There are all sorts of ideas floating around, such as changing the LIBOR data to actual trading data rather than the submission basis we have now and whether there should be a new LIBOR code and so on. So there are a lot of ideas, the work is well advanced and will be reported in the next few months.

The criminal law ought to be the last stage. As the noble Lord said, we have to get the culture right within the banks. We have to have appropriate powers in the FCA to be able to detect things as early as possible and take action. We need to see whether there are any gaps in the criminal law. As with the forthcoming report into RBS, there will be a consultation on whether there should be new criminal sanctions on negligent directors of failed banks. So this is very much on our mind.

The noble Lord then asked about people who have lost money. This is a difficult issue because it is not possible to know whether LIBOR has been manipulated on any particular day. It will be impossible to know what the effect of the attempted manipulation has been, if any. It is a complicated rate-setting process which means that half of the submissions that go in are excluded from the calculation. So some of these fraudulent or incorrect rates that went in—I should not presume anything that hints at criminality; that is for others—may not have got into the calculation. So we do not know whether people have benefited because the rate went up higher or lower than it should have been. People could have either benefited or lost out; it is not clear.

The noble Lord made some interesting observations about culture and management and so on. My right honourable friend did not want to list all the questions that the Treasury Committee will no doubt ask of the chief executive of Barclays but I am sure they will include one or two of the questions that the noble Lord put.

Lastly, the noble Lord talked about the stain on the banking industry. It is important to say that, although it is indeed a stain on the banking industry and that it has significant effects on London and the UK, there are also banks under investigation that are not British or headquartered and managed from the UK. There were regulatory failures in the run-up and through the financial crisis in the US and other countries. So, yes, it is a serious day for the banking industry; yes, there is a stain that needs to be dealt with; and yes, London needs to clean up its act but it is not only the UK that is involved in this.

[Baroness Kramer]

My Lords, the public are rightly outraged by the manipulation of interest rates and Europe is going to look more suspiciously at London just at a time when we are trying to protect the City. So there are great issues at stake.

Will the Minister explain why the FSA’s fine on Barclays is so small? As far as the company is concerned, £59.5 million is a freckle and far less than the fine in the United States. Surely it is not the senior regulator in this case. Why are there no sanctions at all—we are not just talking about criminal sanctions—against anybody senior? It is one thing to go after the traders but systematic mismanagement and manipulation of the market over four years surely affects senior people and has to engage them. The questions are to be asked by the Treasury Select Committee, which is an outstanding Committee, but surely they should be coming from the regulator with the ability to follow with direct sanctions.

Lastly, it is crucial that the Financial Services Bill is looked at again because, although we have a new form of regulator coming in the FCA, which I hope will be rigorous and effective, we must ensure in this Bill that the regulator has real teeth so that there is fear when that regulator looks again at this kind of mismanagement, and a fundamental change in behaviour.

[Lord Sassoon]

My Lords, I share the concerns of my noble friend. This is the largest fine ever imposed by the FSA. The US comes at this in a different way in many respects so the seriousness of the issue is demonstrated by the size of the fine in relation to anything else that has ever been done by the FSA in this country. It is the largest. The FSA sets the fines and it should do so. This has to be an independent process and I am sure nobody would want the Government involved in it.

As far as the investigations are concerned, my noble friend may be jumping ahead of the ongoing investigations by the FSA and SFO. I do not know where they will come out or who will be involved, but those investigations are going on. As for a powerful regulator for the future that is able to do this, I could not agree with her more. The FSA model completely failed. As I have already explained, the Financial Conduct Authority will be focused and will have as a core objective the integrity of markets. It will be much better placed to deal with these kinds of problems as they come up in future.

[Lord Morris of Aberavon]

My Lords, when I was a young barrister, I occasionally prosecuted, on behalf of the Board of Trade, persons thought to be unfit to be directors of a public company. Those cases, as I recollect, were not all that difficult. The Minister has mentioned criminal sanctions, where of course the burden of proof is the usual one and it is high. Without prejudice to a particular case, is similar procedure still available to prevent directors holding positions in future on the grounds of unfitness?

[Lord Sassoon]

My Lords, I am grateful to the noble and learned Lord. As I said, we have concerns about the question of directors, particularly directors of banks, to make sure that the regime is appropriate and tough enough. The regime for directors of banks, because of the special nature of their role, should be looked at on its own merits. That is why it is timely that the RBS report and consultation, going very much to this point, will be published next week by the Treasury. I hope that we will get a debate going about what is appropriate in terms of the special regime that might be appropriate for directors of failed banks if they are shown to have behaved negligently.

[Baroness O'Cathain]

My Lords, the Statement says that this was going on throughout 2005, 2006 and early 2007. Was it stopped in 2007, or has it been going on since then? I wonder whether it has been going on for another five years. If so, what do my Government propose that we should be doing? Can we actually believe these people?

[Lord Sassoon]

My Lords, on the particular case, the FSA report sets out what was going on. The important point for my noble friend is that the point of highlighting the dates which my noble friend gave was that this activity was going on before the financial crisis. It was going on in an atmosphere of greed in what were perceived to be the good times. When the financial crisis hit, the activity of the individuals at Barclays was motivated by something else, which was to do with the reputation and standing of Barclays in the market. The particular relevance of those earlier dates was to distinguish what then happened during the later period, in the financial crisis.

As the FSA and other regulators’ investigations go on, they will tell us more about the extent and duration of these activities. Given that the banks have been on warning of this for a period, I would like to think that they have taken significant steps to clean up their activity. We want to make sure that, as I have described with this ongoing review of the LIBOR system, the system is appropriate to the new market circumstances.

[Lord Radice]

As a former chairman of the Treasury Select Committee, I of course strongly support the idea of its investigation. Does the Minister agree that if the executives of Barclays did not know what was going on, they ought to consider their position? If they did know what was going on, they ought to resign immediately.

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[Lord Sassoon]

My Lords, the noble Lord, Lord Radice, makes some good points, which I am sure the chief executive of Barclays will be pressed on when he comes before the successors to the noble Lord on the Treasury Select Committee.

[Lord Hughes of Woodside]

My Lords, in the Minister’s Statement he repeatedly says that there were failures of the regulatory system and it was matter of greed, and so on and so forth. What was going on was not a failure. It was deliberate criminal deceit. Under those circumstances, how can the Minister possibly say that criminal charges should be the last resort rather than the first resort? By all means, let us try to tidy up the system. In view of what appears to be absolute, outright criminality, we should recall that fraudsters rely on the fact that they will escape the law through such mealy-mouthed words.

[Lord Sassoon]

My Lords, I am certainly not going to jump to premature conclusions which are not for the Government—or, I suggest, other Members of this House—to jump to, about what is or is not criminal activity. I have made it quite clear in repeating my right honourable friend’s Statement that investigations continue by the FSA and the Serious Fraud Office. We will hear the views of the appropriate authorities in due course on these matters, but those investigations are ongoing.

[Lord McAvoy]

My Lords, from every noble Lord and noble Baroness who has spoken there has been consensus on the seriousness of this, and also about making sure that the appropriate steps are taken to, at the very least, prevent a repeat of it. However, moving forward should be done on the basis of honesty and not scoring cheap points. It is regrettable that the Minister used the word “clueless” to describe the previous Government. If the Government want consensus, as everyone who has spoken does, they should make sure that there is no repeat of that, or they might be asked what measures their party proposed during that time.

[Lord Sassoon]

My Lords, during earlier parts of today, I have criticised the former Government’s behaviour and policies on certain matters. I have commended certain things that they had done. In this case, I stand by the words of my right honourable friend the Chancellor.

[Lord Foster of Bishop Auckland]

Does the Minister agree that the apparently noble gesture of the directors of Barclays in waiving their bonuses this year is not good enough? I will be pretentious and say that we, the people, demand that they pay back every bit of the bonuses for the years in question.

While we are talking about this, I cannot remember—because I have been in this place for so long—whether the process of deregulation was begun by the Minister’s Government. It was the noble Baroness herself who elevated greed to a virtue. Then the whole international financial consensus pleaded with us all for soft-touch regulation. That is what they got. We were wrong, but they were wrong for exploiting it. They, and not the two Governments who have been involved, are culpable.

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[Lord Sassoon]

My Lords, on the noble Lord’s first point, I am sure that the board of the bank in question will listen to his views on bonus matters. That is principally a matter for the board of Barclays Bank to consider.

The noble Lord, Lord McAvoy, has said that we should not get too far into prior history here. There is a risk that I will get drawn into these matters. It was Mr Gordon Brown and Mr Ed Balls who espoused very explicitly the virtues of light-touch regulation, and that was the environment in which these traders operated.

[Lord Empey]

My Lords, LIBOR rates could not have been interfered with by one institution alone. There would have to be accomplices. I therefore presume that that is one of the directions in which the investigation will go.

Is the time ever going to come again in this country when someone takes professional responsibility for what is going on, leaving aside the criminal activities that will be pursued by the regulatory authorities? Is no one going to take professional responsibility and suffer a professional sanction if they are found in default?

Finally, sadly, we as taxpayers own substantial numbers of banks. Can the Minister assure the House that there is no such activity in institutions that are owned or partly owned by the taxpayer?

[Lord Sassoon]

My Lords, on the first point made by the noble Lord, Lord Empey, as I have said, other banks are being looked at by the relevant supervisory authorities here and in other countries. All that is ongoing. I very much endorse what the noble Lord has to say about the profession taking responsibility. If the banking industry wants to be thought of as a profession, clearly it should think about how it re-establishes professional standards. I speak as a chairman of the ifs School of Finance, the former Institute of Bankers, so I feel very strongly about that and believe that the profession needs to think about it very clearly.

I am not aware of public authorities being involved. I can be pretty clear that no public body is involved in any way in the LIBOR-setting regime and therefore in what we are discussing this afternoon.

[Lord Lea of Crondall]

My Lords, would the noble Lord remind us of the basis of company law? In whose interests are the banks supposed to be operating? Is it, in some sense, the public interest, the customer’s interest, the worker’s interest? Whose interest is being served by the banks? Is he satisfied that there is now a general perception in this country that it is not like that at all and that the banks are operating in the interest of some people at the top of the banks?

[Lord Sassoon]

My Lords, I think the issue here is that, whatever the law says about the way in which the banks have to operate, the behaviour that has been exposed in this case is that of naked greed, and that is completely unacceptable whatever the legal framework. It is at heart an ethical question as much as anything else, as I see it, and is quite independent of the legal framework around it. Whatever the requirements of the boards vis-à-vis shareholders and other parties, at the heart of this—as has been exposed very clearly by these extraordinary e-mails—were individuals behaving in a most extraordinary way.

[Lord Marlesford]

My Lords, is not one of the most serious aspects of this whole thing the potential economic consequences that are going to come from the reputational damage to the City of London, which is so important to the British economy? Would he agree that the only way of restoring reputation from malfeasance is to seek out and deal very publicly with those who are responsible? Does he remember—I remember all too well, as I declare myself to have been a victim of it—the malfeasance in Lloyd’s of London, which was never really sorted out because no one was held to book and certainly no one suffered any particular penalty that I can recollect. One thing that they seem to be able to do in the United States is to deal very severely with individuals who are found to have misbehaved from positions of great financial responsibility.

[Lord Sassoon]

My Lords, I completely agree with my noble friend Lord Marlesford that the reputational consequences here are very serious. I stress the point that this is not simply a London or a UK banks’ issue as it appears. The inquiries clearly cover other regulators and other banks and we will see where they go. However, it is precisely because of the significant reputational damage that the Chancellor has come forward immediately with his response, which I repeated this afternoon.

On the question of Lloyd’s of London, without repeating the tortured and difficult history there, it is worth saying that after a long and difficult period for that market, Lloyd’s of London is at the forefront again of the world’s specialist insurance market. It has a critical position and is, I believe, stronger than ever. While we certainly do not want to go through a long and difficult period, as Lloyd’s of London did, it does show that well-regulated markets in London are capable of leading the way in innovation and value-adding in financial markets.

[Lord James of Blackheath]

I make one observation, perhaps as a correction of the comment made by the noble Lord, Lord Marlesford. I speak as the former chairman of the committee that created Equitas for the solution of the Lloyd’s of London problem and put in place the Equitas solution. The difficulties with Lloyd’s of London were caused, to a very large extent, by another great failure of regulation by a parallel market in America. It was not wholly a United Kingdom problem. The problems of Lloyd’s of London were exacerbated to an alarming extent by the failure of the US authorities to regulate the clubs that were put together for litigation purposes on a group class action basis relating to asbestosis, which allowed open, free entry to anyone who wanted to join, regardless of the fact that they had never been near a scrap of asbestos in their whole life. This is what created the enormity of the problem. It was a massive failure of regulation by the USA authorities that undermined a major institution, and we should not forget that. These things are never isolated.

[Lord Sassoon]

My Lords, I am always interested by my noble friend Lord James of Blackheath’s sometimes remarkable interventions. I think we are a little off the LIBOR case at the moment.