Too Big To Jail?

A couple of years ago when the banking collapsed made us angry rather than weary and depressed, we used to talk about the banks getting away with it because they were 'too big to fail': they'd come to dominate the global economy so much that governments had to save them rather than letting them shut down as a consequence of their criminal and reckless behaviour. This, of course, led to 'moral hazard': if the banks knew they'd be bailed out by taxpayers, there was no incentive to modify their behaviour. And so it came to pass.

We're now into a new phase of banking Yesterday Standard Chartered paid the American authorities £500m for helping finance various terrorists and crime gangs, while HSBC paid £1.2bn to settle American accusations that they'd happily turned themselves into the accounting arm of the Mexican drug cartels. In both cases, the banks pay a fine and escape without any criminal penalties corporately or personally. Which is lucky for Lord Stephen Green, the ordained minister and Government Trade minister (!) who was… er… head of HSBC while it worked for the cartels.

Breuer was pressed on why the US authorities had agreed to a deferred prosecution deal for the bank. He dismissed accusations that prosecutors had not been hard enough and said that the Justice Department had looked at the "collateral consequences" to prosecuting the HSBC or taking away its US banking licence. Such a move could have cost thousands of jobs, he said.

Why no criminal record or prosecutions? Because the American authorities have decided that as well as being 'too big to fail', HSBC and other banks are 'too big to jail'. Essentially, the authorities have decided that Justice should remove her blindfold and decide who gets punished depending on how important they are. No doubt the corner boys who sell the product which made HSBC and the cartels so much money will continue to get decades of jail time for pitifully small amounts of crack or whatever. But the bank which turned an underground industry into a multibillion global concern (and there's a strong argument that drug money helped keep the money markets liquid during the credit crunch, thus earning the gratitude of banks who decided not to be too sniffy about the money's origins) gets off free and easy. £2bn is nothing - epecially compared to the bonuses paid out.

I teach a class on ethics for students of media and religious studies. We give them two basic ethical frameworks, Kant's and the utilitarians' approach. To Kant, an action is immoral or moral regardless of purpose, motivation or outcome. To the utilitarians, the morality of an action is determined by its effects.

The US banking authorities have decided that the short-term consequences of prosecution – lost jobs and a depressed share price – outweigh the consequences of properly prosecuting HSBC. They've plumped for a utilitarian version of justice. I think they're wrong. We now know that justice is officially dependent on economic weight. We always knew that corporations don't suffer the same consequences of their actions as you and I might, but it's never been stated as a legal good. HSBC and its competitors now know that some loose change is as good as a get-out-of-jail free card. Why would they bother complying with any laws when they can simply pay the equivalent of a parking fine later?

More worryingly, the public may (should?) cease to comply with the legal and justice system in future. The point of both is that they're impartial, offering protection and punishment on an equal basis to all. This is no longer true. If corporations can escape the consequences of their actions, why should we invest in the concept of state justice any more? We already know that taxes are only paid by the little people: now it seems like criminal liability has gone the same way.

Nic, meet Steve. You won't be sharing a cell.

Nicolas Robinson is an idiot.


He was walking home from his girlfriend's house during last summer's riots, and opportunistically stole £3.50's worth of bottled water from a store which had been trashed. He was arrested and imprisoned for six months.


Baron Reverend Stephen Green of Hurstpierpoint is - as his titles imply - an important man. He is a member of the House of Lords. He is an ordained minister in the Church of England. He is a government minister for trade and business and he is a leading member of the Conservative Party. Here he is, plugging his book Good Value: Reflections on Money, Morality and an Uncertain World.  

Turning to the current economic crisis, Green said that "the breakdown in public trust and confidence in business in general and banks in particular" had created the need for a new look at the fundamental values and objectives that motivate business. In his view, corporate social responsibility should be regarded as a core component, the "raison d'être" of a company, rather than as merely an adjunct to its "real business." 

 
In the subsequent audience Q&A, Green, an ordained minister in the Church of England, fielded a question about how he balanced his professional life with his personal beliefs. Green replied that while he did agree that "one cannot serve both God and mammon (money)," he didn't equate "working with money as worshipping or serving the money." When the topic veered towards Wall Street and the "demonization of bankers," Green mounted a spirited defense of the many decent and hardworking people he believes to be working in the financial sector.  

As plain Mr Green, he was the chairman and CEO of HSBC ('the world's local bank'), the banking and financial services conglomerate. Before that, he was the CEO of HSBC Private Bank (Suisse) S. A., one of the world's leading tax-evasion providers (very sadly, someone stole a CD listing all their clients, and the tax authorities arrested rather a large number of them), and a Director of HSBC (Mexico), very much his baby. Steve also bought the Bank of Bermuda for HSBC, a curious choice for a religious man: it only seems to trade in tax havens.


According to Senator Carl Levin, HSBC (Mexico) and the rest of the HSBC group was knowingly providing banking services to Mexican drug cartels, tyrannous dictatorships, fraudsters, smugglers and tax avoiders to the tune of several hundred billion dollars. HSBC staff knew all about it and decided to carry on. Some of them were even using armoured cars to smuggle drug money across international borders. This is a long way from the current HSBC ads depicting cute children from across the world saving their pocket money… unless the implication is that their lawn-mowing is actually the drug harvest.In one case, HSBC continued to accept cash from Sigue, which federal agents caught taking on transactions even after agents explicitly told them were the proceeds of the drug trade.

The bank moved billions of dollars in cash from its affiliate in Mexico to the US, more than any other Mexican bank, despite concerns raised by law enforcement agencies with HSBC that such sums could only involve the proceeds from dealings in illegal narcotics, the Senate permanent subcommittee on investigations report said.

Some of the money that moved through HSBC was tied to Iran, the report said, which would violate U.S. prohibitions on transactions linked to it and other sanctioned countries. 

To conceal the transactions, HSBC affiliates used a method called "stripping", where references to Iran are deleted from records. HSBC affiliates also characterized the transactions as transfers between banks without disclosing the tie to Iran in what the Senate report called a "cover payment". 

Ordinarily, anyone caught processing money for drug dealers goes to prison for money laundering. HSBC was not the victim here: it made billions of dollars by knowingly moving drug and terror money from the black economy to the legitimate one. Stephen Green is in fact not a lord, government minister or bank manager. He and his colleagues are linchpins in the drug trade. Without them, it wouldn't have functioned. No wonder the HSBC ads feature the line 'understanding people and their values'. 


So where are we? Oh yes: Nicolas Robinson goes to prison for stealing a bottle of water. Stephen Green writes books about ethical markets, gets a seat in the House of Lords and a government job to add to his bloated bank account. I think we can legitimately call him a Drug Lord. As for Robinson… them's the breaks. Steal a bottle of water and that's your problem - he should have worn a tie and thought bigger. Enable a multibillion dollar drugs-and-murder empire… that's our problem.