August 1 2018
Last month the FCA published its near final rules on the Senior Manager and Certification Regime, a hefty 420 pages (and that’s not counting the consultation papers, responses and rules for insurers and solo regulated firms and so forth). So many words to deal with what was succinctly described in this paragraph of the Report of the Parliamentary Commission on Banking Standards:
“One of the most dismal features of the banking industry to emerge from our evidence was the striking limitation on the sense of personal responsibility and accountability of the leaders within the industry for the widespread failings and abuses over which they presided. Ignorance was offered as the main excuse. It was not always accidental. Those who should have been exercising supervisory or leadership roles benefited from an accountability firewall between themselves and individual misconduct, and demonstrated poor, perhaps deliberately poor, understanding of the front line. Senior executives were aware that they would not be punished for what they could not see and promptly donned the blindfolds. Where they could not claim ignorance, they fell back on the claim that everyone was party to a decision, so that no individual could be held squarely to blame—the Murder on the Orient Express defence. It is imperative that in future senior executives in banks have an incentive to know what is happening on their watch—not an incentive to remain ignorant in case the regulator comes calling.”
But what does taking responsibility really mean?
A few days after the FCA’s publication, the death was announced of someone who, in his life, gave three striking examples of this: Lord Carrington, Foreign Secretary 1979-1982, subsequently Nato Secretary-General and the last politician to have served in Churchill’s post-war Cabinet. Much of the commentary on him focused on his resignation following the Argentinian invasion of the Falklands in 1982. Though absolved of personal blame by the Franks Report, he explained his decision to resign thus: “It did not seem to me a time for self-justification and certainly not to cling to office. I think the country is more important than oneself.” In his autobiography he wrote: “The nation feels that there has been a disgrace. Someone must have been to blame. The disgrace must be purged. The person to purge it should be the minister in charge. That was me.”
Those 7 sentences admirably summarise what it means to be in charge and to take responsibility when something goes wrong on your watch.
(It would not be far-fetched to say that the nation might well feel that aspects of banking have in recent years been “a disgrace” which ought to be purged.)
It was not the first time Carrington had offered his resignation. As a very junior minister at the time of the Crichel Down affair in 1954 (a landmark case on the rights of individuals vs the interests of the state and the standards to be expected of Ministers) he had offered his resignation though it had been refused. It was the senior Minister in charge who resigned following findings of severe maladministration in his department, the first such Ministerial resignation since 1917.
Most surprisingly of all, despite being awarded the Military Cross in 1945, Carrington never mentioned it in his autobiography, stating that he only got it because of the good men he had under him and that it was “all such a rough raffle. Pot luck – nothing to do with me.” Well, hardly.
Still, that is what marks out leaders: recognising that being senior means taking responsibility even when you are not to blame and having the humility to know that your own achievements rest on the hard work of others (and a fair amount of luck) at least as much as on your own efforts.
What might we learn from this?
- Well, however wonderful the rules, having people around to set a good example and be good role models is even better.
- Role models can be found in the most unexpected of persons.
- And, finally, the aim of all good and long-lasting training is to ensure that concepts such as responsibility and leadership become an instinctive and genuine part of a person’s every day conduct and behaviour and not simply something to trot out in specified circumstances.
Women in Investigations – 2018
July 24 2018
I have been honoured to be chosen as one of Global Investigation Review’s 100 Women in Investigations globally for 2018. Attached is my profile published on GIR’s website.
- In my first proper job as a government lawyer I uncovered some illegal behaviour. When I brought it to people’s attention, some were not best pleased but I persevered and the problem was eventually put right. That really got me the investigative bug. I realised that my legal skills, natural curiosity and a bloody-minded determination not to give up could form the basis of an interesting career.
- The biggest change I have noticed is the development of electronic media, which far outstrips peoples’ willingness to understand that their thoughtless or instantaneous tweet or chat can be retrieved. It’s a goldmine for investigators and a nightmare, given its scale.
- There have been many highlights in my career but so many are still confidential that I cannot say more about them, other than some have left me exasperated at what idiocies people are capable of.
- The standout case was the UK’s biggest fraud prosecution of Kweku Adoboli for fraud by abuse of position in 2012.The 14 months I was involved in it, from the first day to when he was convicted, were one of the most intense and fascinating periods of my career. I learned so much, and it was immensely satisfying to be able to work with police, prosecutors, colleagues and my marvellous team to get to the right result.
- I was a litigator in Slaughter and May at a time when it was building up its litigation practice and Big Bang happened. The combination meant that I got to work on, and have a lot of responsibility for, a lot of cases, many of them involving the financial sector. Money makes people behave in the most irrational of ways and the stories you learn are endlessly fascinating.
- The biggest barrier was – sometimes – having bosses who did not really understand or appreciate what I was doing and why it mattered. When you’re trying to build a practice, deliver tough messages and get the necessary resources, that’s not helpful. It took the very public explosion of a lot of scandals at the same time for people to realise why good, thorough investigations matter and what you can learn from them. It’s a lesson still being learned by some today!
- I want those I work with to feel that, when the bullets are whizzing overhead, there is no-one they want more on their side than me – that they can trust and depend on me
- The worst advice I received is that you will be rewarded for your hard work. No, you won’t! Not unless you make the case for what you do, its value and the value you bring to your clients. Work is not like school exams where you get the marks if you get the right answer. You need to be your own entrepreneur and sell yourself.
- The best advice I have received is “do not be afraid”.
- The biggest talking point in UK investigations is how to balance the need for a thorough investigation with the need to do so swiftly, so that lessons can be learned, matters remedied, wrongdoers punished and public trust rebuilt at the time, and not years later.
- Having role models to talk to and learn from, and realising that women’s careers should not end or be diverted into the sidelines when they have a family, can help create gender equality. Children grow up and there can be another 20 years or more when you have much to give. Firms need to harness those skills and experience and not sideline women during those middle years when they are balancing work and family but see that time as investment in people who will be the senior trusted advisers of tomorrow.
- As a teenager I beat Daniel Day-Lewis in an acting competition. My Juliet was to die for. He is now a three time Oscar-winner, and I am here. Sometimes life doesn’t quite go to plan!
- Sitting in Istanbul’s Central Criminal Court, representing my client defrauded of a significant amount of money by a terrified looking defendant, sandwiched between two tough-looking Turkish policemen, was about as exotic a place as my work has taken me to. But when not working, I explored Istanbul, which remains one of my favourite cities.
What Whistleblowers Really Want
June 21 2018
”The real scandal is not that no-one knows. It’s that everyone knows.”
Not said, as you might imagine, about the events at Gosport War Memorial Hospital but about the childrens heart unit at the Bristol Royal Infirmary 30 years ago. And yet, as applicable today as then, despite all the lessons learned (or not) over the years.
There are many aspects of this which will be wearily familiar to those involved in previous NHS scandals (Morecambe Bay, Stafford) and those in other sectors:-
– warnings or concerns raised by junior staff were ignored or hidden away
– senior staff and colleagues were aware but turned a blind eye
– complainants, both internal and external, were treated as troublemakers
– a tendency to close ranks against those raising concerns
– missed opportunities: all too many moments when something could have been said, should have been said but was left unsaid
– retaliation (or threats of it) against staff. They were warned that if people continued to speak out, it could undermine the good work being done. Some staff highlighting concerns faced “a certain amount of ostracisation”
– a culture of deference: both to senior staff and to the institution
– viewing the protection of the institution’s perceived reputation as more important than dealing with its failings.
Sound familiar? The fact that an institution consistently admired by the public could develop a culture quite as bad and – in its effects on people – worse than in less admired sectors (such as banking or the press) shows how widespread these problems are. Unsurprising really. Most people are not heroes and find it easier to take their cues from those around them.
But the most shocking (and, so far, least commented on) aspect of this story is that even 12 different sorts of investigations over 27 years failed to uncover the full facts or lead to effective action. How can this be? Well, different bodies with different agendas, powers, without access to all the information and sometimes lacking the relevant skillset do not result in the ideal investigative set up. But in truth, institutions – like most people – do not really want to know about their failings.
So it is all too easy – and sometimes unfair – to criticise individuals for not speaking up (see here a nurse describe her shame at not having done more) and to think that training them to have the courage to do so is all that’s needed. Necessary as this may be, it places too great a burden on them. And lets others off the hook.
Too often the focus is on those who knew but did nothing and on the lessons to be learned but not on the critical bit in the middle – the integrity and thoroughness of the investigation. Without it no-one will come forward and “lessons learned” will be seen as lessons which are never learned by those who need to do so.
“Freedom to speak” guardians (the NHS’s most recent attempt to create a better culture) are a nice idea. But what, really, can they do? What those who raise concerns want is not just the freedom to speak but the knowledge that action will be taken once they have spoken.
What they need above all are trustworthy, fearless, independent and tenacious investigators who will really listen to them and investigate properly. And an institution humble enough from the top down to realise – and really mean it this time – that it is only by understanding its failings and mistakes and learning from them that it can improve for the benefit of those it is there to serve.
Only then can individuals have the confidence to know that speaking up is not just the right – but the professional – thing to do. And that it will not be in vain.