A regulatory ruling that your conduct was “reckless and lacked integrity” is meant to be a highly serious matter for a bank. Thus it was understandable two years ago that Barclays decided to appeal against a £50m fine imposed by the Financial Conduct Authority that related to the disclosure of controversial payments to Qatari investors as part of a 2008 fund raising during the depths of the great financial crisis.
Even in 2022, events from 2008 will have felt like ancient history, but if Barclays thought it did nothing wrong, there was still the principle of the thing – and, one assumes, a sense of an obligation to defend the reputations of former executives given that the Serious Fraud Office’s cases against four of them (and the bank itself) had already failed.
On Monday, though, Barclays abandoned its legal challenge to the FCA at the 11th hour. The bank still does not accept the FCA’s finding that £322m of payments to Qatari entities should have been disclosed to the market, but “in view of the time elapsed since the events”, it wishes to “draw a line under the issues”.
Put that way, Barclays makes it all sound like a dispute over an old parking ticket. The bank had the opportunity to adopt its new position two years ago. Then, as now, it could have said the interest of its shareholders and “other stakeholders” (it didn’t specify who) are best served by withdrawing. But it chose to fight on. To continue to reject the FCA’s findings doesn’t count for much if, having vowed to contest them, you then retreat on the steps of the courtroom.
The only real consequence of delay is that, bizarrely, the FCA has reduced the fine to £40m because of the new willingness to settle. One assumes the regulator is not allowed to increase the sum for wasting everybody’s time, but that would make more sense.
One can feel some sympathy here for John Varley, Barclays’ chief executive back in 2008. He was acquitted in a criminal trial when the appeal court in 2019 upheld the ruling from a lower court that there was insufficient evidence to proceed, and he was entitled to feel that was the end of the matter for him personally. But Barclays then summoned him as a witness in its appeal in the FCA case. A year or more of stressful preparation by Varley has been for nothing.
But the main feeling after Monday’s U-turn is frustration. The management of pre-crisis Barclays, brilliantly told in Philip Augar’s book The Bank That Lived a Little, was a story of greed and excess in modern banking, and the payments around the 2008 fund raising, via which Barclays escaped nationalisation, remain the most contested part of the tale.
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But we now have the unsatisfactory outcome where all the criminal prosecutions failed, but the FCA, working to a lower burden of proof, has ruled Barclays misled the market over fees that were seen as a way for Qatar to buy into the fund raising at a discount. Yet the bank does not accept the regulatory finding but won’t go to an appeal to make its argument. The cop-out is shareholder-friendly – but it’s still a cop-out.