by Gildas the Monk
Hammurabi’s Code: Why bankers should not be jailed, how to fix the system
This week saw a report published by the Parliamentary Commission on public standards which advocated, amongst other matters, that bankers should face jail for the commission of a newly defined offence, “reckless misconduct in the management of a bank“.
I would suggest that, as ever, the approach of those who sit in power above us is both too late, acting after the horse has bolted, and inappropriate and misconceived. It is also the default position of the present generation of politicians if they don’t like something to pass a new law about it, rather than to apply the existing law, or to address the root causes of the problem. Hence New Labour’s torrent of criminal offences, more than 3,000 in total and more than one for every day in office, ranging from selling grey squirrels to creating a nuclear explosion.
Threatening to jail errant bankers is gesture politics, useless, and misconceived. Let’s be clear, the crop of soi disant financial “geniuses” who have caused incalculable damage to the nation’s finances are culpable in the extreme. But so too are the politicians who idly sit by and sanction waste and an endless and exponential increase in national expenditure without the means to pay for it. Jail one for recklessness, then jail both. But I can’t see that one really flying for some reason …
In both cases the root cause is that the actors in the drama are dissociated from any adverse consequences of their actions. In order to control both, both must become associated with the consequences of their actions or neglect.
Long, long ago, in a land far, far away (one which “we” have recently invaded and occupied for no apparently discernable reason, before leaving it in a state of utmost confusion, but I digress) there lived a mighty and wise king called Hammurabi. Hammurabi was a law maker and his Code, or Law, dating back to about 1770 BC, can be found recorded on various rather impressive stone tablets, including a diorite stele in the shape of a huge index finger (at least I hope that it is what it is meant to be).
The part of the Hammurabi’s Code which is relevant to banks and bonuses is in fact his Code written for architects. Hammurabi declared that if an architect built a house and that house later fell down and caused the death of the owner of the house, the architect himself must be put to death. And if the house collapsed and killed the son of the owner, the architect’s son must suffer the same fate too.
The Romans adopted the same principle in respect of engineers who built bridges. The engineer was expected to sleep for a certain time under the bridge, just to make sure it was up to scratch. It was a great incentive to good workmanship, and against cutting corners.
Hammurabi’s Code was brought to my attention by the brilliant and insightful former New York trader, now turned academic and philosopher, Nassim Taleb author of “The Black Swan” and other books rather over my head.
This aspect of the Code is often characterised as being “an eye for an eye” philosophy, but Taleb argues that is not quite right. What it is really about is risk management. In a functioning society risk and reward are good things, but only to the extent that there is symmetry; that if there is a downside to your actions, you must pay an equal price. Taleb argues that Banks have for quite some time been in the business of hiding risks, and those who develop their strategies have done so safe in the knowledge, conscious or unconscious, that if they win, they collect huge bonuses, but there is no come back on any individual if the result of their actions is to wreck the bank, or indeed the country. The banking crisis is thus the result of a flawed version of capitalism, in which there are no consequences for those who gamble. What one needs therefore is not a new criminal offence and an unwieldy and expensive show trial after the event, but to create a system which creates this symmetry of risk. The potential for a “de-bonus”, so to speak. It is thus less important that the appalling ex-Sir Fred Goodwin should lose his knighthood, than that he should repay his bonuses and pension pot, and lose his house in the event that he should be proved to be a complete and utter banker.
A short clip of the impressive and accessible Taleb opining on this issue and the Occupy Wall Street movement .
I mentioned above the question of applying the same principle to politicians. Here is one way it might work; at the end of each Parliament MP’s salaries are increased, or decreased, in a direct mathematical relationship to the extent that the country’s deficit and debts have been cut. It might be in inverse proportion, but you probably get the point. In that case, I really wonder whether the extraordinary expenditure of the Blair/Brown years would really have been so freely allowed.
Care for the sick and elderly and the lack of responsibility – it is time to boot out the leech class
Consideration of King Hammurabi’s Code has also led me to consider its application, or rather its non application, in other areas of British public life, and to ponder the way in which values have become distorted.
Over the past couple of weeks I have been travelling around the country, engaged in matters temporal. In my distracted state, I have had some difficulty in keeping on top of the news, but a number of stories stood out as I toddled about.
Having mentioned the disgraced ex-Sir Fred, a man not only of ill judgment but seemingly personally arrogant and unpleasant, and thus lauded by our Establishment until his massive hubris and incompetence was truly revealed, I came across another Knight of the Realm, namely Sir David Nicholson, KCB, CBE, for the moment Chief Executive of NHS England, graduate of Bristol Polytechnic with a 2:1 in History and Politics, and former member of the Communist Party of Great Britain.
Sir Dave Nicholson-Spart was, of course, former head of the notorious Mid Staffs Health Care Trust. An institution which appeared to be carrying on its business in a fair imitation of a Soviet Gulag, but without the frills, and under whose “care” it is estimated up to 1,200 people died needlessly.
Sir Dave (£210,000 per annum) was being grilled by the Public Accounts Committee about payments made in so called “gagging agreements” which prevented the person leaving the NHS from revealing why they had been dismissed or resigned. Nicholson, it transpired, had previously suggested to the Committee that such gagging clauses were rare, and that the case of Gary Walker, the whistle blowing former head of United Lincolnshire Hospital NHS Trust who got a £500,000 pay off to ensure his silence was an isolated one. Nicholson had been asked (that means ordered) by the Committee to find out some figures on how common this practice in fact was. It turned out that for a variety of reasons which seemed to me, and indeed to the highly sceptical committee, hugely unconvincing at best, he had unilaterally decided he was not in a position to have done that. Something to do with remits and departmental changeovers, and changes in definitions and so on. He had not had the courtesy of informing the committee that he had decided he would not or allegedly could not carry out the task, however. The Committee was not impressed. Neither was I.
For once, Parliament was shown in a good light, as the Committee piled into the hapless Nicholson, a man so evasive that, as Blackadder might have said, he gave a good impression of having just been appointed Professor of Evading the Bloody Question at Oxford University. Or perhaps at Bristol Poly, because he actually wasn’t that good at it. That is an intellectually snobbish remark for which I have no intention of apologizing, by the way.
In fact the Committee was quite impressive and I will even give my commendations to Margaret Hodge, who normally drives me to despair, as well as Steve Barclay, whose dogged pursuit of information via FOI Act requests revealed that contrary to what Nicholson would have had the Committee believe, the use of such clauses was pretty widespread, if not endemic.
Nicholson struck me as a man who was skilled at the corporate management speak of all quango apparatchiks, of filling in forms, of going to blue sky thinking groups and sending out press releases and mission statements. I would not trust him to run the local St John’s Ambulance Brigade’s attendance at a school fete. I wonder what his pension will be? Why could we not have a surgeon, or a matron, who has a track record of care on the wards, and an understanding of the inside track of what patient care is all about, in charge of the NHS? Why not someone who might be prepared to walk the wards of a hospital under his or her charge unannounced and actually spot that patients are lying in filth, de-hydrated and hungry? Why not? Because in modern Britain, such good people are trying to do their job, whilst the “Greasy Pole” of aggrandizement is being climbed by those whose instincts are more politically tuned.
Next, earlier this week, news reached my ears of Operation Jasmine. This is, or was, the seven year Gwent Police investigation into the scandalous abuse of the elderly in care homes under its jurisdiction, costing £11 million and identifying more than 100 potential victims. In the end, no one was charged.
I also caught a glimpse of a BBC Panorama investigation into care for the elderly called “Condition Critical”. I say a glimpse because after the tales of starvation, dehydration, lack of basic care, bullying and the sight of a clearly confused and distressed elderly woman screaming in agony as her doubtless poorly paid and poorly trained “carers” used the incorrect technique to change her clothes, and told her to shut up and stop moaning and she screamed, I had to turn off.
I was thus reminded of the recent case of the case of 83 year Muriel Price, recorded on film left waiting in distress for her “carers”, who didn’t show up on time or sometimes not at all.
And as I listen to the radio this morning, I am informed that the “Care Quality Commission”, a body charged with investigating care for the weak and vulnerable around the country, has been implicated in a cover up of lethal and scandalous poor standards at Morecambe Bay NHS Trust. Naturally, “Data Protection” was wheeled out as the reason for not revealing the names of the persons in question. This was not an interpretation of Data Protection laws with which the Information Commissioner agreed.
I understand at the time of writing that the CQC has rightly recanted and that these people have now been named. One is a “media manager”. Excuse me, but what does a “media manager” do? How much was she paid? And why does the CQC need a “media manager” at all? And the salaries of these people and pension pots are apparently beyond most people’s wildest dreams…
As result of all these matters, all these deaths, not one single person has been prosecuted, and I cannot find any clear evidence of anybody being sacked. Resigned, maybe, in the case of CQC, but not sacked. There have been some convictions for cruelty it is true, as a result of undercover reporters, as I understand it, rather than the seemingly pointless, mission statement generating quango that is the CQC. CQC? It might as well be the bloody QVC shopping channel for all the good it is doing at the moment.
One infamous sacking was not, of course, the result of undercover reporters. I was reminded of the case of Sue Angold, a caring worker who was sacked on ‘Elf and Safety grounds by the Sutton Housing Trust, a topic upon which I have blogged before.
Her crime? Coming to the aid and lifting of a 95 year old woman who had been left to sit stuck on her commode for hours, soaked in her own urine, and lifting her to a more comfortable place rather than wait for “trained carers” to arrive, in breach of “risk assessment” rules. The ‘Elf and Safety Stasi swooped, a compliant Employment Tribunal shrank before their mighty and righteous hands, and a great wickedness was done. In my opinion, it was one of the great travesties of justice of modern times.
Meanwhile, for the heinous crime of allegedly listening to people’s voicemail’s, Operation Weeting trundles on remorselessly, with 23 arrests at the last count. Operation Yewtree seems to have left almost no “celebrity” of the 1960’s and 70’s still free on the streets. My point is not to defend phone hackers and dirty old kiddy fiddlers, but that there is a lack of balance in all of this. It is clear that the lack of care for those who are sick and elderly and especially both in our society is in places disastrously, and in many cases indeed criminally low. Elderly people are suffering, going hungry, being treated with lack of care, sometimes even with cruelty whether by default or design, and dying before their time without dignity and peace. This is because, once again, wrongdoing is too often divorced from any real consequence. We need to radically reform the way in which care for the elderly is managed and policed. There should be heads on poles. There should be a widespread cull of failed and useless executives and managers and apparatchiks and media managers. There should be a body to oversee care for the weak and elderly with real bite, real drive, run by formidable and energetic men and women of serious mind and almost militant zeal. And here is a heresy: it should be run and staffed by people who have spent time on the shop floor, on the wards and in the homes, who know the business end of care.
And here is another heresy, even greater than before! One which will strike horror, utter revulsion and outrage amongst many in the insular quango establishment. This body should be staffed not by those who are so skilled at writing their CV’s and attending the correct diversity awareness courses, but by those appointed by invitation. Why? Because what we have generated in this country is a class of apparatchiks who dominate public office, who are on the one hand the least skilled in doing the job, and on the other the most aggressive and cunning in gaining public employment. A locus class, a leeches class, a class of mosquitoes and vampires and mountebanks. Whereas the people who do know about the real world, who understand their profession, whether medical or legal, are often those who are the most modest and least likely to blow their own trumpet who are actually getting on with it. I may have to take a ride to the tumbrels for even uttering that one. I expect – to borrow a phrase from the mighty Old Holborn – that hordes of Diversity Coordinators will descend upon me, baying for my ritual slaughter in a very non PC way.
There should be real and robust sanctions for failures, not whitewashes and pay offs and gagging orders. There should, in appropriate cases, be criminal sanctions. We need a kind of Hammurabi’s law here too, and urgently, because the care of the elderly is a national scandal.
© Gildas the Monk