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Analysis/Comment Last Updated: Jan 21, 2010 - 6:27:32 AM


Ireland: Where the buck stops nowhere - - Irish banking inquiry, DCC and a cast of Pontius Pilates
By Michael Hennigan, Founder and Editor of Finfacts
Jan 20, 2010 - 7:24:09 AM

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Taoiseach Brain Cowen at the helm - - both a pilot, Pilate and pastmaster in passing the buck.

We have often made the point that Ireland is a place of limited or no accountability where the buck appears to stop nowhere. On Tuesday, we had announcements on reports to be made as part of an Irish banking inquiry and a High Court Inspector's report on the DCC insider trading case was also published. There is a connection between the two.  As for the banking inquiry, there will no doubt be a big cast of Pontius Pilates.

In July 2007, the Supreme Court had ruled that DCC's founder and executive chairman, Jim Flavin, had market sensitive information in his position in 2000, when he sold DCC's stake in fruit importer Fyffes. Mr. Justice Nial Fennelly  said: "To trade on the use of inside information is recognised for what it is. It is a fraud on the market."

In contrast, the report from High Court Inspector Bill Shipsey SC, published on Monday, praised DCC for its governance standards and said in respect of Jim Flavin: Having questioned him at great length, I have concluded that Mr Flavin genuinely believed that he was not in possession of price sensitive information ... The suggestion that the dealing was intentionally wrongful ... can be dispelled.” 

So one man's view was widely at variance with the sentiment of the Supreme Court, which suggests that reliance on one individual's judgment of a situation, may not be wise.

In May 2008, the Irish Association of Investment Managers (IAIM), the body representing the country’s major institutional investors, publicly rejected DCC board’s defence of Jim Flavin.

‘The governance implications arising from the litigation between DCC plc and Fyffes plc have been the subject of continuous monitoring and assessment by the Irish Association of Investment Managers,”
the IAIM said in a statement.

‘Having regard to all of the governance issues raised by this matter, the IAIM does not consider it appropriate for Mr Flavin to continue as executive chairman of DCC.”

IAIM only responded because of the public criticism of a prominent company, treating the Supreme Court with contempt.

Insider trading is as old as the joint stock company and while it's often hard to prove, it would not generally be viewed as a crime by insiders.

In the United States, the billionaire founder of the Galleon Hedge Fund, Raj Rajaratnam, faces the prospect of up to 25 years in jail if found guilty, in a case, following an ongoing investigation.   

It used to be said in Ireland, it's not what you know but who you know.

In 1940, Deputy James Dillon said in the Dáil in reference to the three year sentence to an industrial school, that was given to a child who had stolen some grapes: "Can you imagine the son or the daughter of a resident of Fitzwilliam Square being brought down to Morgan Place and sent from there to an industrial school because he stole 5/- (32 euro cent) worth of grapes?"

How times have changed!  Or maybe not.

DCC's board included the former chief executive of Ireland's biggest banks, Maurice Keane of Bank of Ireland and Michael Buckley of AIB.

IAIM, which includes bank-owned asset managers, had only made a public intervention on Irish banking after the crash, when there appeared to have been the prospect of an external investment in Bank of Ireland, in early 2009. 

Reckless lending, dependent on a huge jump in foreign borrowings and the selling of assets including bank headquarters to overstretched developers, in the crazy year of 2006, didn't seem to matter.

Going with the flow, was paying dividends.

Taoiseach Brain Cowen rubbished the idea of an inquiry into the banking crash until recent days. He has agreed to one, not because he has any interest in finding out what went wrong, accepting responsibility or airing dirty linen, but in response to  pressure, led by the new governor of the Central Bank, Patrick Honohan.

The chief witness in an inquiry into the Irish banking crash should of course be the Minister for Finance at the time when the hysteria was allowed to build to a breaking point --  Brian Cowen.

Cowen even changed Building Society legislation in 2006 to facilitate Irish Nationwide chief executive's desire to have an unencumbered trade sale.

At the time, the building society was a smaller version of the builders bank Anglo Irish with most of its lending for commercial property.

Cowen also gave in to lobbying on a tax change for the betting instruments, contracts for difference (CFD).

Billionaire Seán Quinn lost over €1bn on CFDs on Anglo Irish Bank shares.

The sign "The Buck Stops Here" was on President Harry Truman's desk in the White House Oval Office (1945-1953). On the reverse side, i.e. the side that Truman saw, it was inscribed, "I'm from Missouri". That's a short form of "I'm from Missouri. Show me". Natives of that state (a.k.a. the Show Me State), which included Truman, were known for their skeptical nature.  As President Truman said, "The President – whoever he is – has to decide. He can’t pass the buck to anybody. No one else can do the deciding for him. That’s his job."

The saying "the buck stops here" derives from the slang expression "pass the buck" which means passing the responsibility on to someone else. The latter expression is said to have originated with the game of poker, in which a marker or counter, frequently in frontier days a knife with a buckhorn handle, was used to indicate the person whose turn it was to deal. If the player did not wish to deal he could pass the responsibility by passing the "buck," as the counter came to be called, to the next player.

Minister for Finance Brian Lenihan told the Dáil on Tuesday that two preliminary inquiries will be completed by the end of May, with a commission of inquiry under an expert chairman established by June 30th and asked to report by the end of the year.

One report will be produced by the governor of the Central Bank on the performance of the functions of the Central Bank and the Financial Regulator. The second report would be from“an independent ‘wise’ man or woman with relevant expertise to conduct a preliminary investigation into the recent crisis in our banking system and to inform the future management and regulation of the sector.”

After this the statutory commission would be established and chaired “by a recognised expert or experts of high standing and reputation. The terms of reference for this commission will be informed by the conclusions of the two preliminary reports”, the Minister said.

Without looking at big client files, there will not be an opportunity to assess risk management and the factors which influenced decisions.

In the Commercial Court this week, Mr. Justice Peter Kelly, said in respect of a listing of the AIB claim of €550m against Liam Carroll's Zoe Group that it was "a rather astonishing feature" of the case that the loans were secured on letters of undertaking which he said was a"far cry from a legal mortgage."

As regards, a "wise" man or woman, it surely shouldn't be a lawyer who may have benefited, directly or indirectly from boom era work.

Besides, the former chairman of AIB, is a prominent lawyer who would need to be grilled.

UCD economists Colm McCarthy and Karl Whelan are outsiders who know the industry well.

There will be a lot of buck passing in these inquiries and as for Dr. Honohan, surely he shouldn't be lumbered with a Central Bank Board with people like trade union leader David Begg, novelist Deirdre Purcell and "demographic dividend" economist Dermot O'Brien who apparently supported his predecessor, John Hurley, who believed that he was powerless to stop the impending inferno.

Hurley told the Oireachtas Committee on Economic Regulatory Affairs  in March 2009: “Time and again I pointed out that the interaction between an international and a domestic shock could have serious consequences for the economy.

“Time and again we indicated that debt levels were growing too fast and too strongly and that we could not continue building 70,000 to 90,000 houses.

“Our financial stability reports received a great deal of publicity. They were prepared jointly with the regulator and published. There was no hiding the message in the financial stability reports: they were public documents.

“I regularly gave press conferences, speeches and interviews in regard to these risks but behaviour did not change.”

Hurley also said that despite being the governor, he was not in a position to influence its regulatory unit, the Financial Regulator, which had the power to stop banks’ lending madness.

Seven of the Central Bank Board members sat on the Board of its regulation unit.

When asked who had the power to control the banks if he - - as governor of the Central Bank - - could not do so, Hurley replied: “The Government and the Financial Regulator have the power. The Central Bank certainly does not.”

If this isn't a Pontius Pilate, what is?

Minister of State for Finance Martin Mansergh asked in the Dáil on Tuesday if newspaper property pages were “at least for a time an integral part of the forces driving the bubble.” There was “rarely any reference to the relentless hype” in the supplements.

“It would be good if this were to be looked into if any holistic explanations are sought and lessons to be learnt and if improved safeguards are to be provided in future.”

Holistic indeed as we contemplate a Black Hole of Calcutta.

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