Thursday, August 14, 2014

Is your money safe in the bank? - revisited

John Ward reports that some South African bank savers are now having their accounts raided to shore up a different bank, African Bank Investments Ltd. Even more disturbingly, the example he quotes is of a customer whose SA bank is part of the international Barclays group, so the link stretches back to the UK itself.

Almost exactly seven years ago, and over a year before the global banking crisis of 2008/9 hit us, I warned British readers that protection for their savings was limited. At that time (August 2007), you were guaranteed 100% of the first 2,000 in your account, and only 90% of the next £33,000. So the maximum compensation in the case of a bank wipeout, even if you had millions, was £31,700.

Now, and as a result of the crisis (and more importantly, to prevent a system-destroying general run on the banks) the "guarantee" has been increased to 100% of the first £85,000 per person (see FSCS here). That's per bank group, so if you have more than one bank account make sure they're not part of the same group.

But why is a guarantee needed in the first place? Surely the money you have deposited is yours, same as if you'd asked them to look after your house deeds.

Not at all. Here is the law as explained by Toby Baxendale on The Cobden Centre website in 2010:

The Current State of the Law

The key case is Carr v Carr 1811 (reported in Merivale (541 n) 1815 – 17). A testator in making his bequest said “whatever debts might be due to him…at the time of his death”, the key question in this case being whether “a cash balance due to him on his banker’s account” passed by this bequest. The Master of the Rolls, Sir William Grant held that it did. He reasoned that it was not a depositum; a sealed bag of money could be, but this generally deposited money could not possibly have an ‘earmark’. Grant concluded on this point, “when money is paid into a banker’s, he always opens a debtor and creditor account with the payor. The banker employs the money himself, and is liable merely to answer the drafts of his customers to that amount.” For the legal scholars among you, Vaisey v Reynolds 1828 and Parker v Merchant 1843 both affirmed this position.

In Davaynes v Noble 1816 it was argued in front of Grant that a banker is a bailee rather than a debtor. Rejecting that argument, Grant said “money paid into a banker’s becomes immediately a part of his general assets; and he is merely a debtor for the amount.”

In Sims v Bond 1833 the Chief Justice of the Queens Bench Division affirmed in judgement “sums which are paid to the credit of a customer with a banker, though usually called deposits, are, in truth, loans by the customer to the banker.”

The House of Lords, then the highest court in the land, had its say on the matter in Foley v Hill and Others 1848, duly reported in the Clerk’s Reports, House of Lords 1847-66 (pages 28 and 36-7). In summary, the appellant in 1829 opened a bank account with the respondent bankers. Two further deposits we added in 1830 and in 1831 interest was still added. In 1838 the appellant brought proceedings against the respondent bankers seeking recovery of both the principle and interest. The counsel cleverly tried to argue that it was the duty of the respondent bankers to keep all the accounts up to date at all times and thus there was more to this relationship than that of debtor and creditor.

The Lord Chancellor Cottenham said the following in judgement

Money, when paid into a bank, ceases altogether to be the money of the principal; it is by then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into a banker’s is money known by the principal to be placed there for the purpose of being under the control of the banker; it is then the banker’s money; he is known to deal with it as his own; he makes what profit of it he can, which profit he retains to himself, paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places. The money placed in custody of a banker is, to all intents and purposes, the money of the banker, to do with it as he pleases; he is guilty of no breach of trust in employing it; he is not answerable to the principal if he puts it into jeopardy, if he engages in a hazardous speculation; he is not bound to keep it or deal with it as the property of his principal; but he is, of course, answerable for the amount, because he has contracted, having received that money, to repay to the principal, when demanded, a sum equivalent to that paid into his hands.
That has been the subject of discussion in various cases, and that has been established to be the relative situation of banker and customer. That being established to be the relative situations of banker and customer, the banker is not an agent or factor, but he is a debtor.

Thus the settled position of the law is that when you deposit, the bank becomes the owner of the money deposited and you become a creditor to the bank.

We have now established that you shouldn't have more than £85,000 in any group of banks.

Strictly speaking, it's not the government's guarantee, it's the FSCS's: "The Financial Services Compensation Scheme (FSCS) is backed by government" (my italics). The FSCS runs a fund and pays claims out of money it levies on UK financial institutions. In a bad - not the worst possible - situation it can borrow from the Treasury, and has done so, as this official attempt to reassure us says:

What if a giant goes bust? Is there enough cash?

The FSCS has paid out more than £26bn and helped more than 4.5m people since 2001. We are funded by the industry, but the FSCS can borrow money from the Treasury if the compensation costs of a major failure are more than the industry can meet. That is what happened when banks failed in 2008.

So consumers can be reassured the FSCS will always have the money to pay compensation. No-one has ever lost a penny of protected deposits and no-one ever will.

What about "bail-ins", like the case referred to by John Ward above?

For example, in the event of a building society's insolvency, depositors' claims used to rank below other unsecured creditors and so were more likely than the latter to be required to accept something other than their money back. This is now changing:

"...the BRRD has been agreed and will require us to introduce a slightly different form of depositor preference. It will require a two tier preference, where:
  • eligible deposits from natural persons and SMEs have a higher priority ranking in insolvency than the claims of ordinary unsecured creditors
  • covered deposits have a higher priority ranking in insolvency than the part of eligible deposits from natural persons and SMEs that exceed the coverage limit
Covered deposits are defined as those that are protected by the FSCS, up to its limit of £85,000. Eligible deposits are defined as those which qualify for FSCS protection, without any limit on the amount (and deposits from such natural persons and SMEs that are made through foreign branches of EU institutions). Following these changes, if an individual had £100,000 deposited at a building society that is a member of the FSCS, £85,000 would be a “covered deposit” and have a higher priority ranking than the remaining £15,000 which in turn would have a higher ranking than ordinary unsecured creditors.

We anticipate that the Directive will come into force by May 2014. The transposition deadline is 1 January 2015."

The Government's general guiding principle is to reassure depositors that they won't be fleeced in a crisis:

"Section 60B [of the Banking Act] requires the Treasury, when making these regulations, to have regard to the desirability of “ensuring that pre-resolution shareholders and creditors of a bank do not receive less favourable treatment than they would have received had the bank entered insolvency immediately before the coming into effect of the initial instrument” (the first instrument made by the Bank in the resolution)."

Why are they doing this? Well, here's Oz comedy pair Clarke and Dawe on the effect of the Cyprus bank bail-in:


(a) I don't see anything that limits the power of the FSCS and others to alter or suspend their guarantees, if they feel they have to;
(b) a leading barrister has given his views (in 2011 on CityWire) on the potential case against the FSCS's fund-raising powers;
(c) the Emergency Powers Act of 1920 allows the Privy Council to do pretty much whatever it likes in the short run, if it determines that there is an emergency*;
(d) anything can happen, and in a very bad situation some of those things could be beyond the Government's power to control;
(e) theft by inflation is always a threat, and despite a long campaign by me my MP has so far refused to stand up at Prime Minister's Question Time and ask when the Government is going to restore National Savings Index-Linked Certificates.

Where does the Cabinet hold their own families' cash? Be useful to keep that under observation, maybe. It might not just be the Russians or tax-dodgers who want to shift money out of the UK, and Europe in general. And why is the Chinese government encouraging its citizens to hold gold?

UPDATE: *I'm a bit behind the curve here - we now have what seems a much further-reaching and potentially sinister provision:


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Paddington said...

Pitchfork time.

A K Haart said...

For some time I've wondered about physical gold, but in an emergency situation even gold might be of little immediate use.

Paddington said...

Food, water, cigarettes, high- proof alcohol (sterilization and anesthesia), ammunition, etc.