David Behrens: Fortune smiles on rich and powerful when it comes to the law

AFTER what happened in 2008, who on earth would leave a financier to his own devices, confident that he would do the right thing and take the most responsible course?

Tesco's financial arrangements have come under scruitiny.
Tesco's financial arrangements have come under scruitiny.

It would be like putting a tin of custard creams, with the lid half off, in front of a mischievous toddler.

But that appears to be pretty much the approach of Britain’s Financial Conduct Authority, a quango-like body carved five years ago from the wreckage of the similar-but-different Financial Services Authority, to regulate banks and finance directors.

Whitehall is tremendously good at reinventing public bodies in this way: a different logo and an altered remit is an easy fix that can paper over the cracks without actually changing anything.

But what is different under the new order is the shamelessness with which deals are being done with those under investigation.

It’s the sort of thing the tax people have been getting away with for years, but they at least have done the decent British thing of appearing contrite in the face of criticism for allowing giant concerns like Amazon, Starbucks and Google to settle their bills by negotiation, rather than by the rules.

The FCA, on the other hand, was brazen when it announced this week that it would not financially penalise Tesco for having inflated its profits by £263m in 2014.

Instead, its “punishment” would be to pay compensation to out-of-pocket financiers.

Worse, in a privately-agreed deal with the Serious Fraud Office, the company will escape prosecution for its market abuse by agreeing to pay a negotiated fine.

Deals like this, incidentally, are getting to be a habit. In January, the fraud office allowed Rolls Royce to settle a lengthy bribery investigation by paying £500m rather than going to court.

Tesco, despite having owned up to its accounting scandal, will hand over £129m and compensation of just £85m.

The word “just” is relative here, obviously; £85m is a lot of money to me, and for that reason I do not expect to be invited for talks with the FCA any time soon. No, if ever I commit a financial crime I’ll pack my prison bags in advance.

That’s what is at the root of this “one law for them, one for the rest of us” model: the certain knowledge that you or I, lacking the necessary £85m, could not afford to draft in a team of lawyers to defend ourselves, and would collapse like a stack of dominoes when put in front of a jury.

Rolls-Royce and Tesco, on the other hand, have fortunes with which to deflect any slings and arrows fired their way. That being the case, the argument goes, court proceedings wouldn’t be worth the expense; taxpayers would not get value for money.

But that is not entirely the point. Britain’s legal system is not perfect but it is based on a full and dispassionate weighing of the evidence, not on a few hours of horse-trading.

Reducing the process to an opaque game of brinkmanship by business people in pursuit of their own interests is only going to create inequality.

We do not know, for instance, if the negotiators from the FCA or the Serious Fraud Office crumbled under pressure from the defendants’ lawyers.

Certainly, there is nothing in the recent history of public sector bargaining that might give us any cause for confidence.

For goodness sake, when did you last hear the Public Accounts Committee praising a Whitehall department for innovation and value for money in deal making?

The inequality could be addressed if you and I were allowed to negotiate with Rolls-Royce and Tesco in the same way as the officials. I could happily offer two grand and my Nissan as down payment on a Silver Ghost. Or hold up the checkout queue in Ilkley by bartering over a box of Quaker Oats. “£1.99 a kilo? I’ll give you a quid and we’ll shake hands.”

That, of course, is no more likely than a traffic warden offering to waive a ticket in return for a crafty fiver; it would be tantamount to bribery.

I hardly need point up the irony here, since bribery is exactly what Rolls- Royce did not have to defend itself against in court.

It is a strange logic indeed which dictates that the bigger the alleged offence, the smaller the need to prosecute it.