The financial system is the system that allows the transfer of money between savers and borrowers, and comprises a set of complex and closely interconnected financial institutions, markets, banks, instruments, services, practices, and transactions (Steven M & Sheffrin, 2003). All Financial institutions in any country follow certain regulations which are placed by the central monetary authority (e.g. financial service authority) in order to provide improved service to the public and work in the best interest of the nations. Regulationis controlling human or societal behaviour by rules or restrictions (Bert & Jaap Koops 2006). The purpose for regulating the institutions is to reduce the risk of failure and to attain social goals. For example banks are regulated, as they by their very nature are prone failure, and the costs paid by the public for failure is extremely high compared to the financial costs to regulate the banking system. Regulations should be fair and limited so that they assist banks to develop new services in accordance with the customers demand, make sure competitions in financial services is strong, maintain the quantity and quality of the service provided to public and better utilisation of resources.
Over the last five years, the financial system in the world has gone through its greatest crisis. The financial problems have appeared at the same time in many different countries which makes it unique from the crisis in past. The overall economic impact is felt all through the world, which is resulted from the interconnectedness of the global economy. This does not mean that the economic recession which many countries in the world now face will be anything like as bad as that of 1929-33(turner 2009). The crisis in 1930s was made worse by the policy in response. But it is clear that effective the policy response cannot prevent the large economic cost of the financial crisis.
If we are to prevent or minimise the scale of future crisis there is an increased need of policy framework that can bring different factors and the corresponding powers to act positively when risks are recognized. Currently Britain’s existing framework is confused and the powers and capabilities split awkwardly between competing institutions, which results in nobody identifying the fundamental problems when these institutions are building up and none of the institutions can act in response to crisis as they do not have the authority to do so. In order to avoid future crisis changes in regulation and supervisory approach is needed in order to create a more robust financial system for the future. Our focus in the research is on banking institutions, and not on other areas of the financial services industry.
In 2007, Britain experienced its first bank run of any significance since the reign of Queen Victoria (Reid. m, 2003). The run was on a bank called Northern Rock. Britain was free of such event not by misfortune, but because in early third quarter of nineteenth century the Bank of England developed techniques to avoid them. These techniques were used, in Britain and had worked, and appeared to be trusted. The run of northern rock was triggered by the decision to provide support for troubled institution. That run was brought to a standstill, when the Chancellor of the Exchequer (Alistair Darling2) declared that he would use taxpayer’s funds to guarantee deposits at Northern Rock. Unlike runs in banking history, it was a run only on that one institution as funds withdrawn from it went only to a small amount into cash, and were mostly redeposit in other banks or in building societies.
The research has three major objectives:
- Describes the role of financial regulations and reviews the literature on role played by the regulations in financial system.
- To describe and evaluate the banking crisis in United Kingdom in last 5 years and the reasons of the crisis which affected the banking system.
- To analysis and evaluate the role and benefits of living wills in context of changes in regulation.
This leads to the research question:
“Can living wills address the perceived failures in the regulation of financial services highlighted by the current credit crisis?”
A literature review is a summary of a subject field that supports the identification of specific research questions (Rowley J & Slack F, 2004). Literature review explains the role of financial regulations, discuses the banking crisis in UK in last 5 years (2005-2010), and proposed new regulations which are to counter such failures in the future and at what cost these failures can be averted. The main focus of literatures review is the Banking Industry, proposed new regulations in order to minimise the effect of such crisis.
The functions of financial services industry
The existence of money is taken as for granted in all advanced societies today so much so that most people are unaware of the huge contribution that the concept of money, and the industry to manage it, have made to the development of our present way of life. Moneyis anything that is generally accepted aspaymentforgoods and servicesand repayment ofdebts (Mishkin & Frederic S, 2007).
In earlier civilisations the process of bartering was sufficient for the exchanging goods and services. Barteringis a medium in whichgoodsorservicesare directly exchanged for other goods or services without a common unit of exchange (without the use ofmoney) (O’Sullivan, Arthur & Steven M. Sheffrin, 2003). In modern society, people still produce goods or provide services that they could, in theory, trade with others for exchanging for things they need. Due to complexity of life and the size of some transactions make it impossible for people today to match what they have to offer against what others can supply to them.
What is needed is a commodity that individuals will accept in exchange for any product, which forms a common denominator against which the value of all products can be measured. Money carries out these two important functions. In order to be acceptable as a medium of exchange, money must have certain properties. In particular it must be
* Sufficient in quantity
* Generally acceptable to all the parties in all transactions
* Divisible into small units
Money also perform as a store of value, which means it can be saved because it can be used to divide transactions in time received today as payment for work done or for goods sold can be stored in the knowledge that it can be exchanged for goods or services later when required. In order to fulfil these functions, money has to retain its exchange value or purchasing power and the effect of inflations can, of course, affect this function.
The financial services industry exists largely to facilitate and to deal with the management of money. It helps commerce and government by channelling money from those who have surplus, and wish to lend it to make profit, to those who wish to borrow it, and are willing to pay for the benefit they acquire of having it. The financial organisations want to make profit from providing such services and, by doing so, they provide the public with products and services that offer, convenience ( e.g. current accounts), means of achieving otherwise difficult objectives (e.g. mortgages) and protection from risk (e.g. insurance).
Prior to the 1980s, there were clear and distinct boundaries between different kinds of financial institutions; some were retails banks, some wholesale banks, others were life assurance companies or general insurance companies, and some offered both types of insurance and were called composite insurers. Today many of the distinctions have become unclear, if they have not vanished altogether, increasing numbers of mergers and takeovers have taken place across the boundaries and now even the term banc assurance, which was coined to describe banks that owned insurance companies, is inadequate to describe the complex nature of modern financial management groups. For example one major UK bank offers following range of services
* Retail banking services
* Mortgage services through a subsidiary that is a building society
* Credit cards services
* Wealth management services
* Financial asset management for institutional customers
* Investment banking
* Insurance services
Bank failures around the world have been common, large and expensive in recent years. It is common to think of banking failure as something that happens in emerging economies and countries with advanced banking system, but there have been some shocking failures of banks and banking system within the developed economies in recent decades. The scale and frequency of the bank failures and banking crises have raised doubts about the efficiency of bank regulation and raised questions as to whether the regulation itself has created an iatrogenic reaction.
Regulations for banks and other financial institutions hinge on the coase (1988) argument that unregulated private actions create outcomes whereby social marginal costs greater then private marginal cost. The social marginal costs occur because bank failures has a far greater effect then throughout the economy than, say, failure of a manufacturing concern because of the wide spread use of banks. Nevertheless it should be borne in mind that regulation involves real resource costs. These costs arise from two sources (a) direct regulatory cost, (b) compliance costs bear by the firms regulated. In IMF global financial stability report (2009), it estimates that the eventual cost to British taxpayers of support for the banking sector will be 9.1% of GDP, or more than £130 billion, that is more than five times the equivalent of 1.8% of GDP in France and three times the estimated 3.1% of GDP in Germany.
The main reason for regulating the banks is firstly consumers lack market power and are prone to exploitation from the monopolistic behavior of banks. Secondly depositors are uniformed and unable to monitor banks and, therefore, require protection. Finally, governments need regulations to estimate the safety and stability of the banking system.
Basel committee for banking supervision a committee for BIS (Bank for International Settlement) was first established in 1974. This committee operates at international level and the main focus of the committee is to strengthen the capital of banks. The principle reasons for the establishment of the committee were to safeguard the financial stability of the banking system worldwide and to create a level playing field. The first major achievement of the committee was in the form of Basel I. Basel I aimed at:
1. Promote the co-ordination in the regulatory and capital adequacy standards of the member countries.
2. Guard against risk in credit worthiness
3. Finally, it suggests for the minimum capital requirements for the international banking.
Since 1988 when the Basel committee introduced the first capital accord Basel I the risk management practices, the banking business and the whole financial market has changed. The New York Fed President argued that “it also has not kept pace with innovations in the way that banks measure, manage and mitigate risk.”(EBSCO, 2002)
Although the accord covered fairly relevant issues but it wasn’t helpful enough to make a major impact in the industry. Therefore in 1999 the initial steps were taken which led to the amended of Basel I. There were several different reasons for the amendments. One of the misunderstandings about Basel I was that it was the only way to the financial stability of a country. The positive results of implementation of Basel I were seen in the G-10 countries, as these countries were previously operating their financial industry on mostly the same rules, but still there were many new product introduced and reforms took place which remained unexplained by the accord and resulted in the financial industry either fully collapsed or got taken over by other giant’s. For example Grupo Financiero Bancomer, a Mexican banking giant was reported as “US- based Citibank has agreed to acquire Mexican banking giant Grupo Financiero Bancomer-Accival (Banacci) for US$12.5 billion” (All Business.com, 2001). The initial results blinded the G-10 in the aspects of emerging markets as they got pressurized by the larger financial institutions to follow the same accord.
Another failed aspect of Basel I which led to the new accord was that the old accord only focused around the credit risk. Basel I did not focused on operational risk which also supported the downfall of many financial institutions. As explained by Mohan Bhatia “Weather it is a fee-based business, emerging practices or income-based business. A bank is exposed to operational risk.”(Bhatia, 2002).
Even though Basel I was not written to be applicable for the emerging markets, its functions created distortions in the banking sectors of the industrialized economies. “In countries subject to high currency inflation and sovereign default risks, the Basel I accord actually made loan books riskier by encouraging the movement of both bank and sovereign debt holdings from OECD sources to higher-yielding domestic sources” (Balin, 2008).
Another problem with the 1988 accord was that it focused more on the type of loan rather than the credit status of the borrower. As the bank and large financial institutes saved just 8% for the unseen risks they had more capital left. That was used in form of loan and subprime lending which was later proved to be a real disaster for the financial institutions.
Basel I created a gap between the regulatory capital and the economic capital as bank would choose to hold. The commonly know regulatory capital is different to the economic capital. The economic capital aims to enhance the value of the investor and is based on the internal risk assessment of the organization. Whereas on the other hand the regulatory capital secures the banking stability and the regulator decides it for the protection of the depositor.
Considering the drastic effects of the Basel I accord the committee published the reforms in 2003 namely Basel II. “Basel II is a response to the need for the regulatory system governing the global banking industry.”(Garside, Bech, 2003) Basel II brought many reforms to the old accord and was based on three pillars. The first pillar was minimum capital requirement which explained explicit treatment for operational risk in the financial industry. However the market risk remained with the same explanation as from Basel I. The Basel II brought some new methods of measuring the credit risk by introducing the public and internal ratings which provided good risk mitigation techniques. Furthermore the second pillar explained the supervisory review of capital adequacy. The basic purpose of this pillar was to keep a check on the financial institution that they hold excess of minimum level of capital required. The regulator can intervene at the initial stage if this requirement was not fulfilled. Finally the third pillar was brought into place to bring a much better market discipline. The market is considered to be the role played by the shareholders, government or employees whether proper capital is maintained or not. With this improvement Basel II was considered to help both the lender and the borrower.
Basel II spots the weakness in Basel I and proposed effective risk measurement, mitigation techniques and elaborates valuables for market discipline for good banking system and good financial stability as explained “we at the Federal Reserve had even more reasons for the most finely tuned Basel II framework: Not only are we the umbrella supervisor over all financial stability companies but, as the nation’s central bank, we are responsible for maintaining nation’s financial stability.” (Poole, 2005)
The fines of Basel II are basically explained by the three pillars of it as the very dexterously explain how and where the accord will be effective. The first pillar of minimum capital requirement was extremely advantageous in providing enhanced risk measurement by helping the large financial institutions and big banks to measure the risk involved in their functions and operations more sophisticatedly. Risk management proposals were useful for the capital they require to hold in case of unexpected losses.
The new accord proposed different approaches for the measurement of credit risk. The standardised approached being the more or less the same as the old accord was more risk sensitive for the creditworthiness of the customers and improved the requirement which was previously based on type of loan instead of the credit status of the customer. This approach explained the birth of credit rating of individuals but the problem with this approach was that the culture of rating is not popular in every European country and other countries with strong and effective economies. Whereas the internal ratings-based approach was based on the internal key risk drivers and therefore the potential for more risk sensitive capital was substantial in a way to mitigate the risk. But the internal ratings-based approach is not enough to calculate the capital required for the risks. “The approaches for calculating the risk-weighted assets are intended to provide improved bank assessments of risk and thus to make the resulting capital ratios more meaningful” (Pitschke & Bone-Winkel, 2006).
Operational risk which the Basel I failed to examine is a crucial element and was elucidated by Basel II in three operational risk alleviation approaches. The first method called the Basic indicator approach advice the banks to hold capital equal to 15% of average gross income earned by banks in the past three years. The second method named the standardized approach separates every business to hold capital to shield itself against the operational risk. Finally the third method of advance method approach allows the banks to calculate their own capital requirement to protect themselves against the operational risk. A disadvantage of the first pillar was that it allowed the banks to set their own risk assessment techniques. This gave over sanguine reports to reduce the capital required. Furthermore it even maximized the return on equity. For a much better market discipline regulators must approve the requirement. As explained by (Lind, 2006) “banks must have methods and systems for risk management which are subject to adequate corporate governance processes throughout the banks.”
The pillar II of The Basel Accord is based on Supervisory Review. It certifies that the banks should have enough capital to sustain all the unexpected risk in an organization and also provides with much more better techniques to monitor and mitigate those risks. It advises the banks to calculate their risks internally. It requires the regulators to assess the banks risk management processes and capital position to maintain a target level of solvency. “Pillar II recognises that national supervisors may have different ways of entering into such discussions and provides flexibility to accommodate those differences” (Caruana, 2003). It was helpful in a way to evaluate funding strategies and also gave an insight to the risk mitigation policies to the banks. In total the second pillar had two positive proposals. Firstly, it gave more power to the regulators to keep a check of the minimum capital requirement by banks as calculated in pillar 1. And secondly it alarms the repetition of the financial crises such as in countries like Korea and China by taking early actions and offering rapid remedial actions. “Some of the data submitted by individual institutions was not complete; in some cases banks did not have estimates of loss in stress periods–or used estimates that we thought were not sophisticate–which caused minimum regulatory capital to be underestimated” (Bies, 2006). At the same time while the corporate governance is in place the accord gave absolutely no information regarding the liquidity. Banks remained unaware of the true financial conditions of each other which forced them to stop lending and the State Bank of England was highlighted as the last resort to rescue.
Pillar III based on the market discipline helped maintain discipline in the market place by greater disclosure of the banks risk profiles. The pillar III is connected to pillar I and pillar II as it complements the minimum capital requirement and the supervisory review process. “Market discipline can contribute to a safe and sound banking environment and supervisors require firms to operate in a safe and sound manner” (BIS, 2005). The disclosure is important for the benefit of the stakeholders. Therefore a disclosure of market risk, operational risk, interest rate risk and the disclosure of capital structure is required. The information should be disclosed timely. “It will fundamentally transform financial reporting for banks by demanding increased depth and breadth of disclosure” (Garside, Bech, 2003).
One of the other disadvantages of Basel II is the complexity and potential cost of the framework. It is a defected draft of 450 pages and the cost of implementing it is too high for the banks. Banks were also afraid to lend because of the fear of Basel II as they would operate against the rules of Basel II on certain occasions. According to the Basel book the banks have to meet a certain level of capital reserves and in today’s scenario of credit crunch it is difficult. As Peter Spencer explains “the Basel system of banking regulations, which determine how much capital banks must raise to keep their books in order, are the root cause of the crunch and were serving to worsen the City’s plight” (Conway, 2007).
The Basel committee produced the old and new accords which to an extent were successful for the strengthening of the capital of banks and also took into account the risk throughout the procedures. But the new accord did not changed with new reforms in the system which made it just a box to be ticked in a form and had no connection with the reality or implementation. Most of the organizations ticked the boxes and yet carried on with the risky decision which seemed profitable but yet proved out to be wrong such as Northern Rock. These decisions were not even against any of the accords as the Basel committee never updated to the new market.
Financial Services Authority (FSA)
Regulations of the financial services industry in the UK is a 5 tier process:
* First level: European legislation that impacts on the UK financial industry
* Second level: the acts of the parliament that set out what can and cannot be done.
* Third level: the regulatory bodies that monitor the regulations and issue rules about how the requirements of the legislation are to be met in practice. The main regulatory body is now the Financial Services Authority (FSA), which has taken over the regulatory responsibilities of the number of other bodies, including the bank of England.
* Fourth level: the policies and practices of the financial institutions themselves and the internal departments that ensure they operate legally and competently.
* Fifth level: the arbitration schemes to which consumers complaints can be referred. For most cases, this will now be the financial ombudsman service, which takeover the responsibilities of a number of earlier ombudsman bureaux and arbitration schemes
Before the arrival of the financial services act 1986, the UK financial services industry was self regulating. Standards were maintained by a promise that those in the financial industry had a common set of values and were able, and willing, to exclude those who violated them. The 1986 act moved the UK to a system which became known as self regulation within a statutory framework. Once authorised, firms and individuals would be regulated by self regulating organisations (SROs), such as IMRO, SFA or PIA. The financial services act 1986 covered investment activities only. Retail banking, general insurance, Lloyds of London and mortgages were all covered by different acts and codes. When labour party came in power in 1997 it wanted to amend the regulation of financial services. The late 1990s saw more fundamental development of the financial services system with the fusion of most aspects of financial services regulation over a single statutory regulator, the financial services authority (FSA) process took place in two phases. First the bank of England’s responsibilities for banking supervision was shifted to the financial services authority (FSA) as part of the bank of England act 1998. The second phase of development consisted of a new act covering financial services which would revoke key provisions of the financial services act 1986 and little other legislation. All the earlier work on regulation would be swept away and the FSA would regulate investment business, insurance business, banking, building societies, friendly societies, mortgages and Lloyds. On 30 November 2001 the act, the financial services and market act 2000 (FSMA 2000) came to form a system of statutory regulation.
The creation of the FSA as the UKs single statutory regulator for the industry brought together regulation of investment, insurance and banking. The FSA took over the responsibilities for prudential supervision of all firms, which involves monitoring the adequacy of their management, financial resources and internal systems and controls, and Conducting of business regulations of those firms doing investment business. This involves overseeing firms dealing with investors to ensure for example information provided is clear and not misleading. Adair Turner (2009) argued that FSA’s regulatory and supervisory approach, before the 2007-2008 crises, was based on a sometimes implicit but at times quite obvious philosophy which believed that
* Markets in general are self-correcting and disciplined which acts as effective tools than regulation or supervisory oversight to ensure firms’ strategies are sound and risks contained
* Main responsibility for managing risks was of senior management and boards of the firms, who were thought to be at better place to evaluate business risk than bank regulators, and who are better off in making appropriate decisions about the balance between risk and return, provided proper systems, procedures and skilled people are in place.
* Customers protection cannot ensured by product regulation or direct markets intervention, but by making sure that wholesale markets are tolerant and transparent as possible, and that’s the way in which firm’s conducts business is appropriate.
Turner argued that this philosophy in supervisory approach resulted in:
A focus makes sure that systems and processes were defined well instead of challenging the business models and strategies. Risk Mitigation Programs set out after ARROW reviews therefore tended to focus more on organization structures, systems and reporting procedures, than on overall risks in business models.
A focus within the FSA’s failure to notice of approved persons on checking that there were no issues of honesty raised by past conduct, instead of evaluating technical skills, with the assumption that management and boards were in a superior position to assess the appropriateness of particular individuals for particular roles.
A balance between business regulation and prudential regulation which, with the benefit of observation, appears biased towards the former. This was not the case in all sectors of the financial industry: the FSA for instance introduced in 2002-04 major and very important changes in the prudential supervision of insurance companies which have significantly improved the ability of those companies to face the challenges created by the current crisis. But it was to a degree the case in banking, where a long period of reduced economic volatility, which was attributed by many informed observers to the positive benefits of the securitized credit model, helped foster inadequate focus on system-wide prudential risks.
Failure of Current Regulation
Based on the “Geneva Report”, the “G30 Report”, and the “NYU-Stern Report” failure of current regulation
Systemic risk:Reports established a point of view that the financial regulatory frameworks around the world pay little consideration to systemic risk. Carmichael and Pomerleano (2002) define systemic risk as systemic instability that “arises where failure of one institution to honour its promises leads to a general panic, as individuals fear that similar promises made by other institutions also may be dishonoured. Acharya, Pedersen, Philippon and Richardson (2009) argue that Current financial regulations seek to limit each institution’s risk seen in isolation; they are not focused on systemic risk. As a result supervisions focus on individual institutions, instead of having it on the whole system, while individual risks are properly dealt with in normal times, the system itself remains, or is encouraged to be, weak and exposed to large macroeconomic shocks This focus was a common feature and a common failing, of bank regulation and supervisory systems in the world. As per the Geneva Report regulations wholly assumes that it can make the system as a whole safe by simply making sure that individual banks are safe which is misleading.
Pro-cyclical risk taking: Reports also agreed that financial regulations encourage pro-cyclical risking taking which increases the possibility of financial crises and their severity when they occur. Any economic quantity that is positivelycorrelatedwith the overall state of theeconomyis said to be pro-cyclical (Gordy MB and Howells B. 2004). Financial intermediation as a whole is inherently pro-cyclical. Financial activity such as new bond issues and total bank lending tend to increase more during economic booms than during downturns. Higher levels of economic growth lead to higher values of potential collateral, thereby loosening credit constraints and making access to debt financing easier. Another contributing factor to the financial system’s pro-cyclicality is that financial market participants behave as if risk is counter-cyclical. For instance, bank loan standards tend to be most lax during economic booms (Lown et al 2000)) and banking supervisors have historically been most vigilant during downturns (Syron (1991)). Regulations lead towards stability and reduce statistical measures of risk and encourage excessive risk taking. In bad times, the pendulum swings back producing excessive risk aversion.
Large Complex Financial Institutions (LCFIs): All reports agree that current regulations do not deal effectively with LCFIs, defining LCFIs as “financial intermediaries engaged in some combination of commercial banking, investment banking, asset management and insurance, whose failure poses a systemic risk or `externality’ to the financial system as a whole.” (Saunders, Smith and Walter, 2009). The growing role of LCFIs poses various challenges.The complexity of these institutions has made it hard for financial analysis and effective supervisor’s oversight. The linkages among business areas within LCFIs are close which leads to increase of risk contamination from one business area to another as well as across jurisdiction. All reports also insist on the danger induce by implicit Too-Big-To-Fail guarantees. “Too big to fail” is an expression that refers to the idea that ineconomic regulation, the largest and most interconnected businesses are so big that a government cannot let them to declare bankruptcy for the reason that said failure would have disastrous consequences on the overall economy. Mervyn King on June 17th, 2009, the governor of theBank of England, called for banks that are “too big to fail” to be cut down to size, as a solution to the problem of banks having taxpaye