Irish financial regulation–two contrasting perspectives

Two contrasting perspectives have been offered on Irish banking regulation in the past week. A Blueprint for Ireland’s Recovery was the culmination of several months dialogue among 17 ‘Influential Persons’ that included several former board members of AIB and Bank of Ireland prior to the onset of the September 2008 financial crisis and the massive commitment of resources to bailout these banks. They argue that what Ireland needs is ‘an appropriate and proportionate regulatory environment’ but ‘we’ must ensure that ‘over regulation is not a deterrent to foreign direct investment’.

The Moriarty Tribunal Report published on 22 March makes recommendations with respect to banking regulation. It states that most of the information upon which the Central Bank, as regulator, should have acted was available to the Bank, or ought, on reasonable enquiry, to have been available to it when it supervised Guinness & Mahon.

The Moriarty Tribunal investigated  Guinness & Mahon in connection with off-shore subsidiaries in the Cayman Islands and the Channel Islands from 1976 to 1982. It was concerned with Central Bank’s concern that Guinness & Mahon was operating a tax avoidance scheme that was tantamount to facilitating tax evasion. Following special investigation by the Revenue Commissioners, prompted by the Tribunal investigation, the Ansbacher scandal subsequently yielded a cumulative €107.3 million in tax and penalty payments from 139 taxpayers by the end of 2009.

Moriarty states that the reason the Central Bank did not act was a culture ‘characterised by a marked degree of unwarranted institutional and regulatory timidity on its part and by a high degree of unacceptable commercial defiance’, on the part of those subject to regulation. Allied to these considerations and underlying these attitudes and approaches was the conviction and culture of all concerned that the attachment of publicity to improper banking behaviour , or the generation of controversy in respect of banking practices and banking standards in Ireland, might lead to the undermining of the Irish banking system. It was not that the Central Bank at the time lacked any requisite power to enable it to suppress the shamelessly improper operation of the Ansbacher accounts, but rather that it failed to use its ample regulatory powers.

The function of the regulator is the ‘regulate’ and the balance had swung toward under rather than over regulation. Strong action, not amounting to over regulation, on the part of the regulators, should be valued as a key element rather than a retardant, in the promotion of a healthy financial sector. It is extremely difficult to frame recommendations where what is proposed is a change of attitudes on the part of the relevant authorities and indeed in the overall commercial culture in which those authorities are bound to act. As recent events have shown, regulation if the key to the survival of the banking sector, so vital to the national economy

A culture where forthright regulation is valued, not merely at a time of financial stringency, but at a time when it might be thought to be an unnecessary brake on commercial activity.  Such a change can of attitude can best be encouraged by increased vigilance on the part of elected representatives.  These issues were addressed in the Tribunals first report published in December 2006 – but without apparent consequence, according to Moriarty.