Location: Enforcement Conference, Wilton Park, 5 May 2016
On 15 April 1989, 96 football fans – men, women and children – tragically died at Hillsborough Stadium in Sheffield. It was the worst sporting disaster the UK has ever seen and was rapidly followed by accusations and counter accusations about who was to blame. Many pointed the finger at the fans themselves, saying they had been drunk and violent. Families of the fans blamed the police.
Some 27 years later, on 26 April this year, an inquest (the second) returned a verdict that the 96 fans had been unlawfully killed. They were blameless in this tragedy. But others were not. The inquest found that design flaws in the stadium had been compounded by failures among police and ambulance service staff to protect and tend to the supporters.
The inquest and the three previous enquires also found evidence that police had sought to cover up their failures both in the immediate aftermath of the incident and subsequently.
The verdict has been followed by further recrimination and public outcries. It has led to the suspension of the current Chief Constable of South Yorkshire Police – driven by concerns about how the inquest was handled, rather than the original failings; potential civil and criminal litigation; and calls for further enquiries into other old issues – such as the policing of the miners’ strike in the 1980s.
These are sobering events and you might ask what all of that has got to do with enforcement and prosecution of financial services breaches?
But in many ways the response of the authorities to this terrible incident encapsulates many of the issues underpinning our conversation this afternoon.
In my view there are three lessons from Hillsborough that we would, despite our very different subject matter, do well to heed.
The first is the strength and persistency of the very real anger felt by individuals where society believes that someone has ‘got away with it’.
The idea that certain people – whether it be the police, the emergency services, or the bankers / Wall Street / the City can act with impunity drives a sense of ‘them and us’. And of a system that will always serve the interests of an establishment that assumes it knows best. We can see this playing out across the world in the rise of more or less extreme anti-establishment political candidates.
And this sense destroys trust and confidence not just in individual institutions but in the system. And without trust and confidence, financial services cannot thrive. After all, even the most basic building block of the system – money – is only a piece of paper unless the promise to pay can be believed.
So it is critical that society has confidence that the authorities will tackle the most challenging issues with an open mind and that where fault is found, it will have meaningful and visible consequences.
Transparency and speed
Which brings me to my second lesson – the importance of transparency and of speed. Where the facts are not known rumour, innuendo and speculation will fill the gap.
People want and need to know the facts. And without these we cannot learn the lessons, or at the least, not the right ones.
But if our aim is to learn lessons, we cannot afford to wait for 27 years before we make changes. So our processes need to be quicker.
And collaboration and effective decision making is critical here. Who is doing what and why? Turf wars between authorities or jurisdictions are most definitely not what the public expects of us in seeking to serve the public interest.
And while I recognise that the purpose of enforcement is very different from that of a full public enquiry, we do have a role to play in ensuring - to paraphrase the X Files – that at least part of ‘the truth is out there’ and that it is out there quickly. And we also need to recognise that in many scenarios the work we do may be all there is.
And this brings me on to my third and final lesson: fairness.
As regulators, enforcers or prosecutors, it is not our job to satisfy public opinion, to find scapegoats, to take sides or to seek retribution. It is not our job to jump to conclusions, to have knee jerk reactions, to be immediately on the defensive.
It is our role to divorce ourselves from the emotion, the speculation and the hyperbole, however difficult that is. To ensure we find the facts without fear or favour – through processes that are objective, fair and rational – and then, and only then, to recommend the appropriate action. Including, sometimes, saying no one is at fault.
Here in the UK, partly as a result of delays in publication of the Chilcott Inquiry report about the Iraq war and, closer to home, the report on the failure of HBOS, there have been calls to curtail the process of Maxwellisation, where those criticised in certain non-judicial reports get a right to make representations. It has been described as a lawyer’s charter or a delaying tactic and there may, at the margins, be some truth in this.
But we go too far in this direction at our peril. If people can see their careers and reputation destroyed by the state without fair processes, we may get a short term gain in the court of public opinion. But longer term, a lack of fairness will further fuel the anger I referred to in my first lesson.
And so, as enforcers, it is our job sometimes to say: ‘this far and no further’.
That is not always an easy part of our job. But we will only truly rebuild trust if we are, and are seen to be, above the political and media fray. Unafraid to do what is right and fearless in pursuing what is wrong. Listening to the views of those affected but then making objective and independent decisions based on facts, not emotion. Regardless of any external pressures we might be under.
Society is entitled to expect nothing less of us.