Where the Wild things are – bribery at the edge of business

The Financial Times (http://www.ft.com/cms/s/0/e12e0efc-0d71-11e2-bfcb-00144feabdc0.html#axzz28VeYteen) reports that one third of Board members would happily bribe to win business despite the introduction and publicity over the Bribery Act that was enacted in 2010 and brought into law last year. FTI Consulting, which did the survey, believes that the Serious Fraud Office is showing no desire to investigate and prosecute low level crime and is only after the big boys (www.fticonsulting.com/…/the-realities-of-the-uk-bribery-act.pdf).

 

This is no surprise to those of us involved in agitating to bring the Act into being – 34 years after the FCPA in the US and years after we signed up to the OECD convention. Jack Straw advised that around 1.1 extra prosecutions a year would ensue from the Act – so, no real surprise.

 

The Grown-ups get it

 

The report from FTI shows that businesses are being divided into those (usually large and quoted) that comply and other who are becoming the “risk takers” – willing to go for business in whatever way and hope they don’t get caught.

 

Like tax evasion and using deep and difficult schemes to evade tax, these organizations are willing to act outside the law and depend on the SFO’s inability to implement the law.

 

The grown-ups get it, the kids don’t – but, we have insufficient numbers of grown-ups in the SFO (many of whom left to go to private industry when the Bribery Act came into effect).

 

Just like Maurice Sendak’s children’s book, our small and medium companies wander into places and get transfixed by the wilder side of business. It wasn’t that long ago that the costs of bribery overseas were tax deductible in the UK and big companies (especially in defence and aerospace, construction and energy routinely bribed to get business and keep business.

 

Now, most large UK-based businesses act like their American and European cousins and have mainly (not completely) forsaken large-scale bribery. The SFO has said it will prosecute those who threaten the stability and reputation of the UK.

 

ITV’s Exposure on Wednesday, 10th March at 10.35 (UK) – “No Bribes Please, We’re British” – takes a look at the UK one year on. I spent some time helping with this documentary made by Ed Harriman and was interviewed for it – http://www.radiotimes.com/episode/sgzfv/exposure–no-bribes-please-were-british and it looks back at how we did business before the Act – and how many still do such business now.

 

 

This leaves the kids – SME’s / SMB’s.

 

Should we worry about the children?

 

Winning business overseas (especially in the BRICs – where methods of business may be different) in any recession is tough. Competition from those who don’t worry about giving bribes (and that is much more of a norm in the rapidly growing nations of Asia, Russia and South America) is enormous and business leaders want a level playing field.

 

The OECD Anti-Bribery Convention was signed by 39 nations – all the OECD countries plus Argentina, Brazil, Bulgaria, South Africa and Russia (China has not signed) and aims to tackle the “supply-side” of bribery. This is where the money comes from – the wealthy nations that enable bribes to take place. It was on this basis that the UK eventually enacted the Bribery Act.

 

The question asked is now that the Act is in force and most very large businesses comply, does it matter that the smaller ones don’t? Shouldn’t we only concern ourselves with large-scale bribery and corruption?

 

While we don’t want to go back to the 18th Century when you could get sent to Australia for stealing a loaf of bread, the impact of bribery is substantial. From small-scale “facilitation payments” upwards, bribery impoverishes and kills. This sounds overly fraught maybe – but, funds diverted to projects that a country does not need means less is spent where it does – on doctors, hospitals, safety measures and the like. As bad, poor construction of buildings and bridges in China (as an example) causes death each year – the contractors are normally found to have won the work through bribery.

 

In the 21st Century and in our global economy where we are all much closer to each other economically (as customers and suppliers), we need to ratchet up the standards not diminish them. The UK is a wealthy nation that can do without involvement in helping to destroy developing nations. Bribery is a constant threat at any level as Transparency International constantly shows in their annual Corruption Perception Index. Even in industries like Defence which have been subject to anti-bribery investigations for many years, the picture is unclear as TI have recently shown: http://www.transparency.org.uk/news-room/press-releases/13-press-release/375-defence-companies-fail-anti-corruption-test

 

Now countries like Greece, whose economy has been based on corruption, are paying the price. Countries like Mexico are likewise – http://www.nytimes.com/2012/04/24/world/americas/bribery-tolerated-even-as-it-hurts-mexican-economy.html?_r=0

 

Bribery hurts those countries receiving the bribes. If we let our kids (the SME’s) run amok, then the hurt just grows. We have to keep our neighbours safe.

 

Getting an ASBO

 

In the UK, Anti-social Behaviour Orders (ASBO’s) are now routinely given out by police to kids who run riot in the streets and disturb neighbours. The UK was close to receiving the equivalent from the OECD before the Bribery Act was enacted. The UK had to be pushed to enact it – although all party support was eventually forthcoming.

 

Now, a year on, we see that lack of implementation (always feared by those most supportive of the Act) looks like it is providing those with more risk attuned attitudes to buck the system here and enter into the system overseas. Our neighbours (our trading partners) often don’t help – bribery takes a long time to eradicate and often governments are implicit in it. But, countries like the UK managed to stop slavery, made drug running illegal (although after we grew rich on both) and campaign to stop child-labour improve safety standards worldwide. Bribery seems a softer crime to many yet studies have continuously shown that the impact can be as horrific.

 

The UK is in recession but a get-rich-quick attitude that admires tax evasion (and tax havens) and tolerates bribery is not a modern society – it is a throwback to the 19th Century. We deserve credit for enacting Bribery legislation and we deserve an ASBO for tolerating bribery and for tolerating the use by foreign businesses especially in the energy sector that use London to raise capital on the stock exchange – and who are notorious for their poor business practices in poor health and safety and corruption.

 

The current UK Government has been mute in its delivery on anti-bribery provisions and the FTI survey – which should be a wake-up call – has received scant reaction. Watch Exposure on Wednesday, 10th October at 10.35 (UK) – No Bribery Please, We’re British. One year on from the Bribery Act, we should not be rolling back the legislation by lack of implementation.

 

 

And Quiet Flows the Money (Apologies to Sholokhov and the Don)

We have recently heard how HSBC have been guilty of extraordinary money laundering that allowed the corrupt and the criminals to export “their” money around the world with impunity.

We are also told by the Tax Justice Network that tax havens contain over $21 trillion of funds – much of that the result of money laundering, all of it hidden from sight.

Money flows around the world in amounts that make ordinary people dizzy – yet, governments are scared to remedy the essential problem that the “hear no evil, see no evil, speak no evil” banks and the laws that allow tax havens permit: at best, a gross distortion of the economic well-being of the vast majority (99.5% or more) of us that don’t work the system; at worst, a criminal shadow state that has the power to dictate our lives because of its financial muscle.

HSBC – dark deception

US Senator Carl Levin called HSBC misdeeds “stunningly unacceptable”. The broad acceptance that money can flow around the banking system no matter where it comes from and no matter where it is going strikes at the heart of a system mired in 19th Century but caught up in the plundering of the 21st.

Mexican drug cartels have (amongst many others) been able to syphon billions of dollars of their income (derived through murder and extortion and leading to the deaths of thousands, the misery of hundreds of thousands and the cost of those nations where demand for their drugs exist) as if they were the local car rental firm.

Regulators (see: http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/9413299/HSBC-money-laundering-where-was-the-regulator.html) were inept at …regulating. The laws were broken time and time again and there is no question that HSBC’s guilt is equivalent to a conspiracy to flout the legal system.

As the Senate investigation found, between 2007 and 2008 there was around $7bn moved from Mexico into the US via HSBC. Mexican authorities pointed out to regulators and the bank that this was highly suspicious but no action was taken.

Above this, banks in Saudi Arabia and Bangladesh were provided with accounts despite their alleged terrorist connections.

This deception by the banks – where they know all the problems that being found out would cause – cannot be deemed to be a simple error of judgment. The dark deception practiced by HSBC goes to the very core of not just banking but the whole way nations work. HSBC has torn at the very heart of natural justice and ethics by thinking that the banking system is, somehow, not part of the world. The flow of money to them is something else – not the prime culprit and with no one hurt by their deceitful acts. They are, of course, completely wrong!

Banks’ dark deception is the same deception as any launderer of stolen goods. While we prosecute the small criminals, the huge criminal acts are allowed to escape. This costs us all. How?

Money flowing out of control

Without the ability to transfer their huge “wealth”, drug traffickers, corrupt politicians, the mafia and the rest would not be able to use that “wealth”. If an Angolan politician (and I use that country as an example advisedly) wants to gain any benefit from the oil wealth generated and passed into his or her bank account in Angola, the money has to be transferred to another country – somewhere that money can be invested or to buy goods (like mansions or yachts) that effectively launders that money. When Denis Christel Sassou-N’Guesso, the son of the President of the Congo, was shown by Global Witness in 2007 to have spent $35,000 on designer goods and other items (and went to court with them and lost), it may have seemed trivial – even to someone who earns much less than that a year from his “job” in his country. When he failed to pay his court costs, I had to pursue him into France (I was working with Global Witness at the time) and we found his expensive apartments in Paris and threatened him with bailiffs. He paid up!

But, how did he get his money out from a country where the vast majority is completely impoverished – under $2 a day income?

Through the banks, of course. Banks that are supposed to take account of PEP’s – politically exposed persons – and run checks on them to ensure that the money is obtained properly.

So, money flows without barriers around the world – banks appear oblivious to the terrors that their inactions cause.

Dark regulation – FATF

Of course, our guardians are supposed to be the regulators – people and systems entrusted by the “free world” to guard us against the corruption of the banking system.

Under the framework of the Financial Action Task Force – FATF (see:  http://www.fatf-gafi.org/pages/aboutus/) we are supposed to be provided with safety.

FATF’s objectives are stated as:

The Financial Action Task Force (FATF) is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions.  The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system.  The FATF is therefore a “policy-making body” which works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.

It is up to each country to develop its own safeguards and laws, but the system is failing. FATF make recommendations and while they have in recent years opened themselves up to more scrutiny and NGO participation, they are slow to act as any centralized, world organization can be.

If FATF was working, then the HSBC’s “stunningly unacceptable” inactions would not have occurred.

In each country, the laws and practices are separately developed. The US regulation of HSBC has been found to be appalling.  The Office of the Comptroller of the Currency (OCC) had 50 investigations into HSBC between 2005 and 2010 in areas of anti-money laundering and found 80 problem areas. However, in not one of those cases did it require any major changes to take place. This laissez-faire attitude to such a serious problem again strikes at the heart of governance – banking and nation.

This then means that the Compliance management system within the bank was flawed and unable to resist the calls to make money. Compliance officers are weak and under pressure from the moneymaking machine that is the bank. The fact that David Bagley (HSBC’s Head of Compliance) resigned from his role is no surprise – who knows that he will remain in HSBC in a different role????

So, failure at international level (FATF); failure at national level (OCC); failure at HSBC (Bagley) – the whole system is designed to fail and meets that objective.

Darker than dark – islands of tax heaven

If that was all, it would be bad enough, but it gets so much worse. The Tax Justice Network reports that $21 trillion is held in tax havens. Anyone who had read Nicholas Shaxson’s excellent book – Treasure Islands (http://www.amazon.co.uk/Treasure-Islands-Havens-Stole-World/dp/0099541726/ref=sr_1_2?ie=UTF8&qid=1342962917&sr=8-2) will be familiar with how dark and dangerous the world’s elicit affair with tax havens is. $21 trillion of unseen “wealth” is stored away from taxation and from sight.

The USA and UK are especially complicit in this as the UK has its own tax havens in London, Jersey, Guernsey and its protectorates in places like the Cayman Islands. Because it supposedly provides wealth to important people who influence our affairs, successive UK governments have been scared to interfere. Recently, as much to do with the involvement of the Liberal Democrats in government as anything, small steps have been started to end many tax avoidance schemes and the use of moral judgment has entered our language. This is causing such a fuss that the good citizens of Jersey are threatening to break off from the UK – horror of horrors. It is but a small start.

The USA is not exempt from blame as Shaxson shows so well. Delaware – the Blue Sky State – makes its money from tax evasion. Offices in Delaware are home to hundreds of companies located there for tax reasons.

This costs us (the 99.5% who don’t have the opportunity to avoid tax in this way) a fortune. We end up with higher VAT, higher social security, higher income tax, corporation tax, inheritance tax and other sales taxes as a result.

As reported in the Guardian yesterday concerning the $21 trillion

This gargantuan sum is difficult to comprehend, but it becomes more understandable at a parochial level. According to an earlier report by the PCS union, the Tax Justice Network and War on Want, the use of tax havens costs the UK taxpayer at least £16bn a year, double the annual budget of the Department for International Development.

The River of Hades around the world

The confluence of the HSBC horrors combined with the system of tax havens that operate is of a worldwide network of money flows that are outside the law and jurisdictions. While we berate the investment banks for their sub-prime disasters of 2007 and for Diamond’s culture problems at Barclays, the basic banking systems are at fault in a worse way.

For, it is basic banking on which we trust to get money from one account to another. Nat West’s recent debacle in the UK, when its IT systems went haywire, shows what can happen when the basic system goes wrong.

How much worse it is when the basic system of banking and our international management of that system and to where we allow money to flow is completely abhorrent – it is a very dirty hell-hole that allows bad money to flow wherever it wants and to wherever it wants. The international banks are not just bystanders in this – they are culpable and implicit in crime, in corruption and in impoverishing millions (and making all of us poorer).

Banks have had a very bad press but in the 21st Century as digital technology rules our lives, it is too easy for banks and their staff to evade controls.

What should be done?

FATF should have teeth and should be allowed to go beyond recommendation to sanctions.

National governments should ensure that their OCC equivalents are given the means (financially, technically and with highly skilled and well-paid management) to do the job.

Compliance Managers in banks should have complete independence from their senior management and be subject to independent audit (outside the main financial audit and by different audit firms). Independence means that they should report to compliance board which, in banks, should have independence from the main Board and include only non-execs.

Tax havens should be outlawed – tax should be payable where profits are made and any scheme set up to avoid tax should be illegal. We have made a very small start in the UK- but only a tiny one. The moral crusade which happens at a time of worldwide recession is the time to get this in motion so that money can no longer flow illicitly and quietly.

Strangling Inherent Dignity – How we retain (regain) Self-Respect

Orhan Pamuk, today on the BBC, talked about how the military in Turkey have been moved away from the centre of political decision-making. Their threat has been diminished, resulting in a feeling of relief or release. He also remarked on the Arab Spring and how in Tunisia and elsewhere people had regained some dignity – maybe threatened by Islamic re-awakening (but “that would be the people’s decision”).

In China, the escape of Chen Guangcheng from house arrest and his televised pleas to Wen Jiabao to halt the rampant corruption in China points to a state that is gnawing away at its soul.

In the USA, the economy is dangerously tilted towards the highest 1% who now own around 50% of its assets.

In Spain, 24.4% of people who are seeking work are without a job.

Charles Taylor is found guilty of by the International Criminal Court of aiding war crimes – yet, he remains popular in much of Liberia for his ability to dole out cheap bread at the right times to local populations.

Organisations and People – The fight for Dignity

 

Whether as individuals or members of an organization or a region or a nation, the human instinct is to reach for a minimum level of dignity. The need to attain a degree of self-respect is fundamental to the human condition. Whatever our economic attainment (whether we are wealthy or poor) each of us retains the need for self-dignity and the self-respect of those closest to us.

Attainment of dignity is a basic need and we continuously fight for it.

The Universal Declaration of Human Rights starts its preamble with the following:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”

Yet, across the world, as we grow economically across a wider population, there is little evidence that we understand much more about a central issue that continuously confronts us – the attainment of “inherent dignity”.

If dignity means the attainment of freedom, justice and peace as the most important elements of our civilization (and we should be careful to ensure that our freedom does not blind us to the needs of a wider responsibility – to the planet as a whole), then what do we do daily that reminds us of our need to provide dignity and who is it who has this responsibility?

Responsibility

Leaders – whether of nations, businesses, local authorities , families or whatever – have a responsibility to those that they lead. This responsibility includes the establishment or reinforcement of cultural norms that strengthen the central idea of dignity to all its members.

This central tenet has been forgotten – we hear it infrequently amongst the babble of noise that comes from politicians and economists, business leaders and social leaders.

There is no question that where poverty is extensive, a crucial role for leaders is to ensure that economic growth is secured and poverty is minimized.

There is no question that where health and safety is jeopardized that better ways have to be found to minimize danger and secure life.

There is no question that where housing is poor that people must be housed and clothed.

But, the basic needs of food, shelter, clothing and safety are at one with the need for self-respect or dignity. The drive for better gross domestic product (GDP) has, in our enthusiasm to generate more wealth, left behind the basic understanding of what it is that propels the human spirit.

Setting dignity at the centre

While this is not a simple issue (dignity may be seen have different connotations to different people) the need for self-respect is the driver that propels individuals to fight back in so many cases.

The lack of dignity of those who are deprived of respect range widely. We see it constantly as we mentally note how individuals compare to certain societal norms – those who are poor are given less respect than those who are wealthy; those who have special needs are likely to be given less respect than those who are “OK”; those who are amongst the led are given less respect than those in power; those without the vote are seen as demanding less respect than those commanding political heights; the unwell lose dignity when maltreated; the unemployed lose dignity by the nature of unemployment and an assumption of laziness – the list goes on.

The problem is that self-respect is not normally a subject that is discussed or considered when key decisions are made. We are trampled by the rush to mend economic fences so easily that we ignore the affects. An example is Iraq. Here, not only was the rationale for entering Iraq wrong – there were no weapons of mass destruction – but the dignity of the Iraqis as a nation (or several nations within borders created by Europeans who cared nothing for the self-respect of those within them) was not an issue despite what should have been the lessons of history. Economics (through oil) and maybe the stated threat of terrorism (maybe) dampened the pressure to think through the impact of a complete eradication of self-respect amongst the Iraqi people – a self-respect oddly (to us in the west) retained with a strong man at the helm (Saddam Hussein) and then not replaced. In Afghanistan, self-respect has, through the ages, turned out many who would think to rule the country. It is the demand to self-rule that has been constant.

Corruption tears away at dignity

The danger in China is that corruption (an economic and power game) is tearing away at the nation’s credibility and self-respect. Recently, university students in Beijing were asked by the BBC what careers they wanted and one answered they wanted to be a senior local politician because that is where the money (through corruption) goes. The lack of self-respect that enables this response is intense and is leading to a potential fracture of the system in China as recent events in Chongqing highlight.

In India, one of its best-known websites is www.Ipaidabribe.com . This is a self-understanding of the rampant corruption in the country and mirrors a loss of dignity that brutalizes that society.

As a result of its alleged dealings in Mexico, Wal-Mart is under investigation by the US authorities through the Foreign corrupt practices act (FCPA) over millions of $’s of facilitation payments (not in themselves individually illegal under the FCPA but maybe through the gross flouting of corporate norms will be found to be). Mexico, riven by many drug cartels and corruption, lacks a dignity and self-respect because money is at the centre and seen as the only response. Wal-Mart helps to encourage that loss of self-respect.

National dignity or the dignity and self-respect of any business or individual is destroyed by corruption. When dignity is destroyed, then the basic ability to enjoy a life of “freedom, justice and peace” is also destroyed.

Economics cannot be isolated from self-respect

A cornerstone of self-respect is the ability of individuals to reach a level of basic self-attainment – the ability to feed oneself and one’s family; to house and clothe at least. In the rush towards austerity the macro-economic arguments are destroying the micro-economic disasters that are being generated. Poverty in wealthy nations is on the increase and the unevenness of wealth is growing. This is leading to a loss of self-respect amongst large sections of society. The impact of this change is uncertain – but, we can judge that the effects will not be positive.

John Rawls, one of the best-known and best-respected philosophers of the 20th Century considered self-respect as “perhaps the most important primary good” and how lack of self-respect leads to a growing disenchantment with the society and an estrangement with its ideals.

In the UK, maybe more prosaically, Ian Duncan Smith has highlighted the need for self-esteem amongst those on welfare and why jobs are the answer to bringing them out of the cycle of poverty.  This cycle of poverty is being exacerbated by the sovereign debt crisis which has transferred bank debt to national debt and enabled bankers to reap the rewards.

This crisis is now endemic in Europe and threatens stability and progress. The lack of dignity of nations (Greece, Spain, Portugal) as the Eurozone centre demands they commit to more austerity is misunderstood or ignored at the Eurozone’s peril. It is a fall-off in self-respect that eventually reaches a tipping point. It was a fall-off in national self-respect that catalyzed the German nation towards fascism in the 1930’s – a lack of national dignity that was caused by the war reparations following the 1st World War and heightened by the torments of the depression of the 1930’s. At some point, shattered self-respect will require repair – sometimes in brutal ways.

Democracy, Corruption, transparency and Economics

There are many ways in which dignity is destroyed – through lack of involvement in decisions, through corruption and lack of a chance for basic economic fairness.

There is no single answer but the key problems facing us today should all consider the issue of dignity before the answer comes rattling out. Clearly, real democracy, eradication of corruption, better knowledge of and openness about what is being done (transparency) and a new economics based on an understanding of the economics of self-respect are overall responses to ensure that we enjoy the basic dignities enshrined in the Universal Declaration of Human Rights.

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”