We cannot take enforcement action on every single bank breach.

THOSE WERE THE words of Ed Sibley, deputy governor of the Central Bank last week.

Since then, the full extent of the tracker mortgage scandal has been revealed, the Finance Minister Paschal Donohoe as “admonished” the bankers, CEOs of the financial institutions eventually apologised and they now have a deadline to give back the money wrongly taken from their customers.

• Analysis: Sorry is too little, too late for tracker customers who for suffered years because of bank overcharging

So, is that it? No punishment? No sanctions? Two reports on the scandal and the culture within the banking sector and we’ll call it a day? Surely not?

Those are just some of the questions which are circulating since the revelations that this mess could impact well over 20,000 customers and could end up costing over €1 billion.

Taoiseach Leo Varadkar said the government is not acting on the basis of trust with the banks. He also acknowledged that it will take a very long time before the public trusts the banks again, pointing out that the tracker mortgage issue following on from the banking crisis was not exactly helping the bank’s public persona.

What do people want then?

Accountability, for one. For those that moved people off their tracker mortgage, who denied them the option of one, and who took the money from the people to be held accountable – by both the Central Bank and the gardaí, if necessary.

Is there a track record of this being done in the past? Not so much, it would appear.

While the tracker mortgage issue was the talking point of the Central Bank’s appearance last week, there was another case mentioned that might have been missed by most.

Towards the end of the day-long grilling at the Oireachtas Finance Committee, the chairperson, Fianna Fáil’s John McGuinness, raised the case of Jonathan Sugarman.

You have probably heard of Sugarman – the bank executive-turned-whistleblower.

He was the risk manager at Unicredit Bank Ireland in 2007. This was the Irish arm of Italian firm Unicredit, one of the largest banking and financial services companies in the world.

Sugarman, an Israeli citizen, worked for the Dutch Ministry for Economic Affairs and a bank in Israel before moving to Ireland in 1999.

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He worked for Microsoft Finance before taking up roles at the risk departments in several banks and finally joining Unicredit in May 2007. It was Sugarman’s job to make sure that the company’s Irish arm was sticking to the rules.

However, only a few weeks after joining Unicredit, Sugarman said that he started noticing liquidity breaches. He has since given evidence to the Oireachtas Finance Committee about the incident.

What are liquidity breaches?

Liquidity is how much money a bank has available. When banks lend money out, they have to hold a certain amount of cash or assets so that they can give people their money back if debts are called in.

In Unicredit Ireland’s case, Sugarman said that the bank was required to hold assets and cash in reserve equivalent to 90% of its liabilities. This was due to liquidity regulations that came into force on 1 July 2007.

The lender was allowed to drop below this by about a percentage point, but any breach in excess of this was meant to be reported to the banking regulator, the Central Bank.

Sugarman said that Unicredit Ireland was involved in deals in the hundreds of millions – and in some cases, billions – of euro. Accounts for Unicredit Bank Ireland show that it had assets of €32 billion as of the end of 2007.

He said that, when the new rules came into force in July, Unicredit Ireland was frequently breaching its liquidity requirements, and on occasion would only be holding enough cash and assets to meet 70% of its debts.

What did he do about it?

Sugarman said that he was told not to be concerned after he raised the issue with his former bosses, and that the liquidity figures were inaccurate due to technical glitches.

Still uneasy with what he had found, he resigned from Unicredit after notifying the Central Bank of the issue. He also turned himself in to Rathmines Garda Station in 2009 but alleges nothing was done.

Seeing a correlation between the Unicredit issue and the tracker mortgage scandal, McGuinness said the lack of action by both the Central Bank and the gardaí when the banks do wrong is sending a terrible message to the people of Ireland.

In the Unicredit case, McGuinness asked why the gardaí and the Central Bank did not step in after Sugarman reported himself to the gardaí.

“I believe it was brought to the attention of the Governor – from the Garda Commissioner’s office which dealt with queries raised during the hearing the committee had with Jonathan Sugarman.

“The letter from the Commissioner’s office stated that liquidity ratios are set by the Central Bank in its role of economic governance. It continued that in 2012 and 2013 the Central Bank notified An Garda Síochána, in accordance with its statutory function, that it intended to deal with these breaches of liquidity ratios with the bank in question, Unicredit Bank Ireland plc, through administrative sanction procedures. What happened? What were those sanctions?” he asked.

Deputy Governer of the Central Bank Ed Sibly said they did take enforcement actions against Unicredit Bank.

McGuinness asked why the gardaí were not involved if there had been a breach in the law.

“He [Sugarman] specifically said at this committee that he had reported the matter to gardaí at Rathmines. They, in turn, had noted it in the station book. Afterwards, the detective unit informed him a banking specialist would be in touch but that did not happen.

“When the committee asked the Garda Commissioner’s office to comment on this and explain at what stage the inquiry was, we were told the Central Bank had suggested it was dealing with it and that it would be dealt with through administrative sanction procedures.

“I presume from that letter that the bank was in some way sanctioned by financial penalty or whatever for this breach, which apparently was 20 times more than what was allowed. What was the sanction?” he asked again.

Governor of the Central Bank, Philip Lane. Oireachtas TV Oireachtas TV

The Governor of the Central Bank, Philip Lane, spoke up to state there was an inspection by the Central Bank in early October 2007 and the investigation concluded that the reported breach “did not suggest a wider and more systematic erosion of overall liquidity and that the bank was back in compliance within the limits in 24 hours”.

Breaches by the banks 

The governor then outlined how such breaches by banks are dealt with by the Central Bank – highlighting what is the customary approach to take with the banks over such breaches.

Additional claims were made in 2010, [in relation to Unicredit] both in the media and the Seanad, that there have been numerous breaches of liquidity by the firm in question. A further investigation was undertaken at the instruction of the Central Bank. An independent third-party firm was engaged to check compliance with the liquidity requirements. This investigation did not highlight any further breaches.

There was significant investigation of the issues raised and the matter is closed.

More generally, the overall message reflected in the letter cited by the Chairman is that if there are liquidity breaches, the correct way to deal with them is through investigation. If an investigation establishes a systematic regulatory violation, administrative sanctions procedure would be invoked. The general answer is correct. If we see systematic breaches, that is how it would be handled.

Lane said that “initial breach was closed quickly and did not suggest a wider or more systematic erosion of overall liquidity”.

Central Bank building Shutterstock / noel bennett Shutterstock / noel bennett / noel bennett

Unhappy with his response outlining that if breaches are done just once, or are not viewed as “systemic” then little or no action is followed up on, McGuinness said the legislation is clear.

The legislation at the time referred to a breach. A breach is a breach. Every single breach on each day was a breach.

Garda investigation 

He said the letter from the [Garda] commissioner’s office about the Jonathan Sugarman case specifically mentioned that he reported a breach in the law, so why was there not a garda investigation?

From the letter, it is clear to me, that this liquidity breach was to be dealt with through administrative sanctions, according to the Central Bank at the time. I find it unacceptable that a bank of that size breached the legislation and broke the law so that the individual concerned took it upon himself to report it to the Central Bank.

Despite that breach and breaking of the law no action was taken. The commissioner, however, has said that someone within the bank had to have communicated some form of message to the bank, relative to the Jonathan Sugarman issue, to say that it would be dealt with under administrative sanction procedures.

Sibly intervened to state that, in this case, the Central Bank “formed a view” on the seriousness of the allegations raised by Sugarman.

“We follow that up in a proportionate manner. There are a number of tools we can use around breaches and these relate to the proportionate approach, the seriousness of the breach, the persistence of the breach and so on. Some of those actions may be private in nature such as a supervisory warning, and some may be more public in nature, which apply in areas such as when we talked about transparency,” he explained.

Fianna Fáil John McGuinness Oireachtas TV Oireachtas TV

No such thing as zero-tolerance when it comes to Irish banks 

Derville Rowland from the Central Bank clarified the approach to such matters.

The approach to enforcement is this jurisdiction – and in other jurisdictions such as the UK – is not to have a zero-tolerance approach. Not all breaches across the regulatory spectrum will end up as an enforcement case.

One would not be able to bring that volume of cases. We have a strategy of targeted enforcement and reactive enforcement. Reactive enforcement is when the most serious cases come and we make the space to give resources to bring those cases forward. The tracker issue is a very good example of that approach.

Highlighting her point again – that a zero-tolerance approach does not exist in Ireland to such breaches – she said:

To be clear, from the very beginning of the enforcement strategy as stated in 2010 until now there is not a total zero tolerance threshold for every single breach that arises across the whole spectrum of the regulated areas. We may take one or two of a type, where we see non-compliance in an area, as the message and we may take more. There are other regulatory tools in the escalation pyramid that are also used as enforcement to complement it. That is the general approach.

We also have supervisory warnings as an enforcement tool, which are private between the entity and the regulator. As the breaches go up the threshold the procedures become full enforcement procedures.

McGuinness said a liquidity breach that was nearly 20 times over the limit was a significant breach, pointing out that Sugarman went to the bother of walking into a Garda station to report himself and his employer of wrongdoing.

‘Nothing to see here’

“The answer from the Central Bank was that there is ‘nothing to see here, move on’,” he said.

Sibley said breaches are taken incredibly seriously, stating that since the crisis there have been more than 100 enforcement cases.

“We cannot take enforcement action on every single one. We take a proportionate approach to the breaches which are most serious and warrant public sanction and our whole supervisory framework is underpinned by that. We have teeth and we use them,” he said.

The way in which Sugarman was treated sends the “wrong signals” to those who might also want to blow the whistle on certain practices operating within the banking sector, explained McGuinness.

I do not know this individual. He had no motive other than to do the right thing. What would other whistleblowers or risk managers in the banks say when looking at the example of Mr. Sugarman who is now not employed, in extremely poor health and so on? He questions the approach of the Central Bank and cannot fathom why the issue with such a large bank that was 20 times over the limit was not addressed.

One cannot temporarily break the law

Governor Lane reiterated that it was addressed, adding that it was the bank’s conclusion that the breach was temporary and did not last longer than a day.

To that McGuinness said:

A person driving at a 100 mph, even if it was for five minutes, where the speed limit was 80 mph. That person is breaking the speed limit. If the Garda stopped him within that five minutes, he got a ticket. It goes back to the same thing as before.

In this instance, for more than five minutes, it was 20 times over the limit and nothing was done. It sends out the wrong message. It is the complete wrong message.

“Those kinds of breaches wrecked the country,” added McGuinness, adding:

If one breaks the law temporarily, one breaks the law.

“I profoundly disagree with that point,” replied the governor.

“Of course they did,” said the chairperson.

“It is not as simple as the speed limit in traffic law… Many things can happen when there is a breach but the conclusion in this case was that the breach was temporary, not systemic and not persistent, and the bank stands over that assessment,” said Lane.

McGuinness questioned Lane on why there is even banking law in the first instance. He said Sugarman read the legislation and was “so frightened” by what was happening in the bank, “not just one case one day but a number of them, that he decides to risk his job and tell the Central Bank that there is something wrong”.

He went to the Garda and said that he had broken the law and told them to arrest him. He could be imprisoned for up to five years. However, nothing happened to satisfy the fact that he had reported this wrongdoing. He lost his health and he lost his job. He did it pursuant to the obligation on him under legislation to report to the Central Bank.

If the Central Bank does not want these international banks that are here to bother looking at the law, why would we have the law?

The Governor of the Central Bank agreed that he will meet Sugarman to discuss the issue further.

With reporting by Paul O’Donoghue 

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