Cutting through the Fog – Corporate Secrets and Beneficial Ownership

David Cameron promised last week at the Open Government Partnership Summit that companies registered in the UK would be obliged to reveal their ultimate ownership and that the public would have access to those records.

This was a major statement of intent: evidence that the UK was not going to condone the opacity of companies or owners that could possibly be engaged in criminal dealings or those who are perfectly innocent but choose to inhabit the same smog-bound territory of corporate secrecy.

Why the secrets?

More accountability is a hard-won struggle in an era where our secrets are open to secret services like the NSA and where government secrecy is hard to lessen, Through all this opening up, companies (and Trusts) operating on an international level have reatained an unwelcome ability to shield themselves from public view. At a time of real debate about privacy (Snowden, The Guardian, the NSA, Angela Merkel’s mobile), companies that seek privacy have remained relatively immune.

Companies are treated as individuals under the laws of most countries yet have the ability to hide their ownership and deal with their taxation (if operating multi-nationally) wherever they choose. This means, of course, that they usually choose what is right for them not for the wider society in which they operate. That is their remit. The recent shake-down of Starbucks, Google and others over taxation – which, to date, has yielded not much more than the voluntary promise of payment of a few tens of millions by Starbucks – was a tip of the iceberg moment. With corporate taxation in the UK heading downwards, the current government coalition seems determined to accept the Institute of Directors’ call for companies not to be taxed on their profits at all!

However, one thing about tax is that we can all see how much a large corporate pays in the UK (about a year after the event when it publishes its accounts). What we don’t see easily is where a company has overseas affiliates with which it “trades” – such as paying royalties for the use of its name – in secret jurisdictions where tax is often negligible.

This nonsense of transfer payments and royalties (which HMRC showed last week to the Public Account Committee it has no real understanding over) shifts massive amount offshore and out of the country where real business was done to tax havens.

The fear often cited that proper taxation would force companies out of the UK is nonsense. They do real and profitable business here – the UK is the world’s seventh biggest economy (or thereabouts). Why on earth does anyone believe that they would move away from doing business here? Can anyone imagine that Apple would close its Covent Garden store if they had to pay real tax in the UK rather than shift profits to where the name “Apple” is deemed by a tax expert to reside? Being afforded the space to sell its (excellent) products in the UK, to use our roads, lights, take on people educated here and all the other benefits of selling in the UK (which includes the iconic area of Covent Garden in London) are well worth the entrance fee of corporate taxation.

Offshoring the owners

However, David Cameron’s speech was not specifically about offshoring taxation – it concerned beneficial ownership issues and these are, of course, linked to taxation in a major way but it is much more than that.

The fog of hidden beneficial ownership means that companies are set up which can channel profits or simply flows of revenue to places where tax does not apply and where no-one knows the beneficiary. This is a typical and easy-to-organise ruse of the criminal world. For many years, criminal networks have laundered their revenues offshore – it used to be through the transportation of suitcases full of notes; these days, it is a little easier. This not just saves tax – it transforms illegal earnings into clean money that can then be brought back again into the real economies via the normal banking system.

With the improved ease of transmission of money across the world, it just takes complicit banks to enable the movement (along with some accountants and lawyers to get things under way) and, hey presto, money surfaces wherever it is wanted without anyone knowing.

Just watch the antics of Breaking Bad attorney Saul Goodman – now getting his own series. The essence of monetary manipulation is built around secrecy and contacts. Governments cannot easily stop the development of the latter, but they can do much to stop the former – making beneficial ownership transparent.

Lining Up for Secrecy – the Fog of War

To the vast majority of us, this is obvious, but to many it is a declaration of war. Many secrecy-led jurisdictions are concerned about their future. It is not just Cyprus where the dominance of “financial services” is far too big for the country – Cyprus became completely over-dependent on banking, Russia and lack of due diligence. According to the Tax Justice Network there are 73 secrecy jurisdictions around the world that they analyse.

Of these, a staggering 35 have some substantive connection with the UK. One of those is Jersey and Jersey Finance’s CEO, Geoff Cook, voiced his concern on Friday when he heard David Cameron’s pitch. In his blog he refers to the public register:

It is not yet clear what will be on such a register but unless this is adopted by the G20, I would confidently predict that  Mr Cameron is likely to have lots of friends in the AID world and insufficient food on the table at home.
Protecting business interests, trade secrets, safeguarding personnel from fringe, sometimes violent campaigning groups, from corrupt political elites and from criminals are all real and weighty concerns.  It is telling that the NGO community are happy to  subject those who have worked hard and done the right thing to a much greater degree of scrutiny than almost any other constituency in society.
There is little difference from opening up the private company arrangements of business owners to the public glare of NGOs, journalists, cyber criminals and the assorted flotsam and jetsam of the worldwide web, than for ordinary bank accounts. If the logic holds good do we not need to know the balance publicly of all personal bank accounts so that all can be sure we came by our cash by legitimate means?
We have nothing to hide in Jersey and we have been active supporters of government to government information exchange. However, the voyeuristic tendencies of politically correct elites should not be indulged and indeed will not be by the vast majority of countries, leaving the UK out on an uncompetitive, uncomfortable and potentially impoverished limb.

It is extraordinary that arguments for secrecy over beneficial ownership are now wrapped up in screams about safety from “violent” campaigning groups and cyber criminals. These are the words of fear – fear for a future that may have been predicated on the Cyprus model and lack of such due diligence.

Secrecy over beneficial ownership allows vast amounts of money to be electronically channeled out of not just the UK developing nations. That cannot afford the losses. Huge amounts of wealth properly owned by citizens of countries such as Guinea, DRC, Angola and others are secretly moved and laundered – often with the help of banks (who are now in the firing line of authorities especially in the USA). As TJN itself states:

Secrecy jurisdictions facilitate illicit financial flows.

Illicit financial flows stem from three major sources: bribery (corruption in its narrow sense), criminal activity and cross-border tax evasion. In doing so, secrecy jurisdictions and the secrecy providers operating through them play not only a major role in preventing the poorest countries from developing out of a state of dependency and poverty, but they help creating a criminogenic environment in which all sorts of crimes can thrive and feast on the fruits of breaking the law.

The crimes that are facilitated and whose financial reward is secured by financial opacity and the resulting secrecy comprise, but are not limited to: tax evasion, aggressive tax avoidance, money laundering, terrorist financing, drug trafficking, human trafficking, illegal arms trading, non-payment of alimonies, counterfeiting, insider dealing, embezzlement, fleeing of bankruptcy orders, illicit intelligence operations, insider dealing, all sorts of fraud, and many more.

Clearing the Fog

David Cameron has made a real commitment but there are real obstacles to further progress.

The first is implementation.

Those involved in celebrating the introduction of the Bribery Act in 2011 are rightly concerned that its implementation is suspect. As Jack Straw, then Minister of Justice, said in the original White Paper, there was unlikely to be many cases brought before judges as a result of the Act. This has been borne out in practice along with insufficient funding of investigations, low numbers of court actions and Bribery Act guidance that was aimed at stifling the Act’s powers. Proper and funded implementation of real transparency and public availability of that information is now key to ending secret beneficial ownership for UK-registered companies.

The second issue is around Trusts. These are not covered by the PM’s statement or commitment yet Trusts are a key secrecy weapon for criminal activity across the globe.

The third issue is that the commitment only applies to the UK. This will serve some purpose in helping to clear money laundering from this country but the UK should now use its leadership wherever it has influence. This is direct in the 35 secrecy jurisdictions mentioned above but also in other forums where the UK has any influence – such as the G20, EU, FATF (Financial Action Task Force).

The fog remains but the UK is beginning to spy a way through – taking a lead on an issue on which millions of lives depend outside the UK. It is not the problems of those in Jersey’s Finance Ministry we should most be concerned with but the problems of those in countries where massive corruption by those in power is facilitated by banks and secrecy jurisdictions – resulting in billions leaving the countries (far higher than Aid going in) and that means millions having to survive on a $ a day with no medical facilities let alone schools or economic opportunities.

Time to see above the fog.

Institutionalized!

Will Self’s excellent new book “Umbrella” (http://www.amazon.co.uk/Umbrella-Will-Self/dp/1408820145/ref=sr_1_1?ie=UTF8&qid=1348396331&sr=8-1) brilliantly describes the torture of individuals put into “mental institutions” and how (until very recently in the UK) they were appallingly treated.

 

Old people in Care Homes have similarly been shown (one example had a miniature camera secured in the room of a care home) to have been malnourished, beaten and generally abused.

 

Maybe it is improper to use these examples of Institutions that have become uncaring and out of control to symbolize the problems faced regularly by all of us, but it is no coincidence. We have all become “Institutionalized” by the edifices that society has created to carry out the basic functions of society. This is not new. Ossification of institutions is a regular occurrence in society. The reason that monarchs are overthrown, for example, is because the institution of monarchy – the rule of society by one person or clique – becomes, eventually, intolerable to society in general.

 

Cracks in the Institutional Wall

 

We are all confronted by Institutions throughout our lives. From hospitals to school, from government departments to businesses, individuals live their lives working in and being confronted by Institutions.

 

Institutions have been defined as: “An institution is a system of rules, beliefs, norms and organizations that together generate a regularity of (social) behavior” (Greif, Institutions and the Path to the Modern Economy: Lessons from Medieval Trade).

 

They provide “equilibria” to society as a method or ordering our behavior. Greif also developed notions of dynamic institutions to show how institutions change through time.

 

Common Threads’ focus is that the institutions developed in the 19th Century for politics, economics, education and other key areas of society don’t work well in the 21st Century. The aim has been to generate some discussion of where the problems may be and look at some potential solutions rather than try to develop a theoretical analysis (when this is being done elsewhere – for example, in the area of economics at ESNIE (European School on New Institutional Economics – http://esnie.org/).

 

Major economic dislocations as we have seen since 2007 in the West – the banking disasters leading to huge debt problems leading to depression in Greece and the potential for this throughout Europe – could presage major changes in the way institutions develop. Often, the cracks in the wall have to be very large before we either build a new wall or try to fill in the cracks – which is what is being done now.

 

The changes in our institutions that are being made – small changes in banking (mainly in terms of individuals) are akin to deck chairs being moved around on the Titanic. Whether in our political institutions or our economic ones (or wherever large organizations have been set up to provide societal equilibrium) the danger is that they do not change enough to enable society to prosper – rather, built on the foundations of the 19th Century, they fail to deal with the issues that face them (and us) today.

 

Building Order out of Chaos – Challenging Entropy?

 

Just like the walls of Jericho were built to keep out intruders (subject to the odd trumpet) and we build firewalls in our computer systems to keep our systems secure, society builds our Institutions also to have effective walls against change and to build ourselves a cover against the outside world. Maybe we are genetically primed – our cells work within walls that allow us to withstand the chaos that would otherwise ensue. The Second Law of Thermodynamics essentially describes entropy – the natural tendency for good energy to dissipate into bad (useless) energy. Our life on this planet is a constant grind against the power of entropy and, maybe, our desire to build this equilibrium is a natural and instinctive drive for order within chaos.

 

This natural tendency to build order exists throughout civilization and can produce stability and contentment. But, as Darwin wrote: “It is not the strongest of the species that survives, nor the most intelligent, but the one most responsive to change.” (Origin of Species).

 

The key is that Institutions cannot be left to ossify but have to change to meet the changes in environment that exist externally. New order has to be developed constantly.

 

In business, in relatively free markets, businesses come and go on a regular basis. The FTSE 100 started in 1984 and today only three companies from those 100 remain in the FTSE 100 – GKN, Rolls Royce and Imperial Tobacco. This is because the FTSE 100 reconstitutes itself every three months. The Dow Jones started in 1896 – who remembers American Cotton Oil or National Lead or United States Rubber? That is not to belittle business – there is a tough economic law that works hard to reward success and punish failure. Companies that don’t work hard to change to meet the needs of the external environment simply fail. Apple is a great example of a company that was close to collapse in the 1980’s but (under Jobs) completely redirected itself so that it is now the highest valued company in the world. But, for how long? Most companies fail (70% in the first three years).

 

Taking Down the Walls

 

Within the rest of society, change is harder. In our fight against the ravages of chaos, we allow pressure to build up, often learning the wrong lessons. This so often leads to an explosion as pressure gets too much. Society is not very good at understanding where the pressure is building. We defend the status quo for too long and then find ourselves unable to contain the whirlwind that attacks us.

 

In the UK, we have prided ourselves on our ability to change gradually so as to release the pressure before it gets too much. Not since the middle of the 17th Century has England fought a Civil War. This is held up to be the result of the changing democratic scene – from Magna Carta through rule by nobles to rule by the Commons (elected nobles); constant enlargement of the vote from 1832 onwards to women in 1918 (as long as they were over 30 and lived in a decent house) to 18 year-olds in 1969.

 

The walls have been dismantled brick by brick and most democracies follow a similar path.

 

The challenge now is that, in an age where developed societies have reached a decent level of economic wealth, politicians are losing any connection with those they are supposed to represent. Only around 50% of the voting population bothers to vote in general elections. More are now linking up with one-issue groups who they believe will push agendas on their behalf rather than hope that a political party will (by the mere casting of a vote every five years) carry out a manifesto that cannot meet most aspirations.

 

This means that the one issue lobbyists are getting greater powers to influence. Their techniques and ability to make change happen is developing constantly. Originally, such groups were primarily labour organizations (Trades Unions) and, in the UK, this developed into the Labour Party. Now, there are groups within the Third Sector that campaign on any range of issues from the environment to health, from taxation to education, from peace campaigners and human rights to fox-hunting (both sides). Organized campaign groups now operate as a key part of society so that individuals are now useful only at elections.

 

This means that more Institutions have been developed to challenge the political parties (it happens throughout the world). This is not a challenge to the political process – it may even solidify it by shoring up the political process within a wall of campaigning institutions.

 

What role for Society?

 

It is in this context that several have questioned the future in which we grow Institutions to work with other Institutions to govern (or run other aspects of our lives). This response to the walls around politics and government may be a natural one but is questionable as the new Institutions (of the campaigners and lobbyers) are run by a small number of people and funded in many ways. They are not accountable in the same way as political parties are supposed to be (and continue as long as they are funded). Their funds come from a variety of sources and confusion exists amongst society in separating out charitable work from campaigning and lobbying. In the UK, there is no register of lobbying so there is no transparency that is at least attempted in the US (which has its own problems owing to funding regulations that allow companies to fund to whatever level).

 

There is a real danger that the way we are evolving the democratic process is anti-democratic. Democracy is supposed to be government by the people. We have a three-tier system now whereby professional politicians are influenced by a small number (relative to the population) of professionally-run organizations throughout a term of office – remembering the individual citizens only when elections loom.

 

Is this the best we can do?

 

Building the Walls from the Bottom Up

 

In Australia (as I have mentioned in an earlier post), The Centre for Civil Society (under Vern Hughes) – http://www.civilsociety.org.au/ – has developed some new insights and a challenge to the norm in http://www.civilsociety.org.au/CivilSocietyPolitics.htm.

 

This is worthy of investigation as one means of providing greater involvement in our own future.

 

Also critical is the use of technology. Changes in the means of communication have always brought with them the means to radically change society. The printing press, the telegraph, the telephone, the TV, the computer and the internet, the mobile phone, wireless comms – all lead to more and faster information and an enabling of the individual.

 

This is a critical cause of concern for leaders of legalist states such as in China but also offers challenges (and opportunities) to so-called democracies.

 

Individuals are now empowered by technology by dis-empowered by institutions. This means that empowerment is taken up by online shopping or social networking rather much more than for social change or betterment. It means that civil society will continue to be badly served by national and international institutions that meet lobbyists in the corridors of power but are insufficiently grappling with society itself (rather the funneling through funded organizations).

 

Yet, power exists. Libya is a exciting example. Just recently, armed militia groups (a powerful central non-government organization) were ousted by people – civil society coming together to say, “thanks for toppling Gaddafi, your work is done!” In Egypt, Tahrir Square was the centre of civil society’s success to overthrow a dictator. Here, the Military Institutions delayed the correct response and we will have to wait to see if the elected President, Morsi, will serve his citizens or other Institutions (including religious).

 

Civil society (we, the people) should see the 21st Century as one where we are allowed to deliver. The forces for 19th Century equilibria often stand in the way of progress – and are standing in the way of serious climate change policies on an international scale. Institutions set up to effect change may be set up for the right reasons but we are now institutionalized and should seriously re-evaluate our reaction to the new Institutions just as we challenge the old ones. If we need a wall, then we should be blowing that trumpet to unsettle the existing ones.

 

Locked out of Power and Making a Noise

How do we contribute to society and how do we influence the future?

 

There is a dangerous gap opening up between people and institutions that current forms of democratic parties and other organisations set up to channel views to those instruments of power are not able to bridge. The problem is manifold:

Political parties which dominate most democratic societies are filled with professional politicians who have little (or at best moderate) understanding of the real world outside of politics;

Civil service bodies and public sector institutions are (as they have always been) full of careerists who are no longer “tempered” by the social reality that broadly based political parties would provide;

Campaign organisations are also full of careerists who work their way up the system internally and may have little real association with society outside their own silo of interest.

Corporations (especially large, multinationals) have a tremendous power in a world dominated by numbers – growth objectives – and can fund large campaigning groups of their own.

Ever-Changing society

There is no equilibrium in society although it feels like stasis has been reached. Different bodies are continually evolving as the environment changes politically and socially and economically. The problem is that entrenched interest groups (drawn from those sectors above) continuously work to make their positions more secure.

In the past, four, main sources of change were developed to open up society to change:

Political parties

Campaign groups

The media

Communications

But, mainstream sectors have succeeded, in the main, in wrapping the first three groups into that mainstream. There is a dependency on each other and a difficulty in breaking through with new ideas and attempting to force through decisions on even the most important issues.

The global economy has exacerbated this problem – as international needs lead to massive international organisations that succeed always in taking decision-making away from the individual.

Improved communications have through history succeeded in transforming the ability of individuals to learn more and have a greater say. The printing press was followed by the telephone, which was followed by the fax machine and the mobile telephone and the internet. Mass communication is now available that provides the ability for all of us to understand more of what is being done in our name. Social systems such as Twitter enable communication in an instant; mobile telephony and digital technology allows information in microseconds. This has had repercussions in events like the Arab Spring but the rigidity of social norms fights back most often.

Society’s complex underpinning will see some new emergence develop from this – but, what is it likely to be and how can the individual become involved rather than be part of a sector that more clearly matches that of Orwell or Huxley’s nightmares?

The drift to Centralised control

Maybe it’s a natural occurrence – that as organisations develop, they coalesce and form groups and associations that begin to meld into international committees that appear completely remote from most of us.

This is certainly true of political parties, true of sports associations (like FIFA or the International Olympic Committee), true of international organisations (like the UN, WTO), major NGO’s and charities, political groupings such as the EU, international corporates (such as the banks). Most people don’t know most of these organisations and many (like FATF – the Financial Action Task Force) have for years seemingly gloried in their anonymity.

With the rise of the internet, we were meant to discover more but that same rise has meant that less spending goes into traditional media organisations like campaigning newspapers. This has meant a reduction in in-depth investigations and analysis and much-reduced investment by newspapers and other media outlets in providing the type of information we need as individuals in society to keep the massive organisations on their toes.

In a major sense, the rise of the internet has had consequences that were not envisaged and has led to a major centralization of power structures – more immune from investigation than before.

We must not be misled by the closure of the News of the World in the UK after the hacking enquiry – the NotW was a scandal rag that was part of the new world of celebrity. Its loss is not great.

The loss of whole departments where the main task was to investigate and analyse how society works (and where it does not) and the rise of the internet as a news medium (and comment in 140 characters) shows that, so far, what has emerged is leading to centralization not the reverse.

Does Centralised control matter?

Democratic society is supposed to provide individuals with the ability to influence the way our society is run. So, centralized control does affect us all. While the drive to consumerism may suggest that we would not mind if we were ruled like in China (more goods supplied to keep the population quite), I suspect that this tendency does not appeal to all of us. Centralised control does not stop at Tiananmen Square – it has no controls. “”Unlimited power is apt to corrupt the minds of those who possess it” (William Pitt the Elder) is borne out through history and the idea that we can allow others complete freedom to guide us through life is obnoxious to most of us I suspect.

What are the options for decentralising?

The centralization of sectors of society needs to be continuously prodded. That can be done both internally (i.e. within those instruments of power) but mainly externally (from other organisations and / or individuals).

Working within is tough – the structures bind staff to their culture and it is very difficult to break out. A feature of British politics has been how the Liberal Party (a party for the individual within a coherent society and always opposed to centralization and totalitarianism) has become (especially since it became the Liberal Democrats) so bound up with the EU project – a centralizing force that is now seen to be breaking up.

External pressure may now be the only way to elicit change and to change the environment so that something less centralized can emerge.

The Centre for Civil Society in Australia is a good example of an organization that has been set up to prod society. www.civilsociety.org.au

The Centre for Investigative Journalism in London is another. http://www.tcij.org/

NGO’s like Global Witness are important contributors. www.globalwitness.org

All such organisations are set up to prod (some quite heavily) the existing structures – they are all dependent on external funding.

We need some creative destructionism – in the same way that Apple created new products that tore at our desire for more than pure functionality (although Apple is now part of that central structure); in the same way that Google tore into the online world and is now a core of that central structure – within the non-economic sphere, the way we live outside of numbers and products.

There are some options that remain that can assist in developing society so that we learn the lessons of the 20th Century – where communism and fascism drove the world to and then away from totalitarianism. Those lessons are now in danger of being unlearned – where the danger of unbridled centralism of society is occurring without (thankfully) war, but just the same potential results. We could wake up and find the world run from the centre. Maybe it is already and the drift to unequal wealth distribution a symptom.

That suggests more of an effort is needed to point a finger at our structures and the best way to do this is through our participation – and through some independent organisations, especially in investigative journalism, which can expose, fight for freedom of speech, help to analyse the impact of centralised decisions on society and expose fraud and corruption: many groups, many individuals wanting to open up the closed doors.

Does a tree that falls in a forest make a noise?