... continued.
If this is your first visit to this blog - welcome! Be aware that each post in this blog is like a piece in a jigsaw, each post when added and fitted into its neighbour slowly forms the whole picture - one which will when finished give an answer to what should be a simple question - whether Bank charges were fair or unfair. An answer not yet provided by the OFT, the FSA or the Courts.
This post will examine, forensically, the Concordats established between the FSA and the OFT. What are they? (Health and Safety Warning - You need to read the earlier posts to find out in mind numbing detail - the relevant pieces are there for you, but you will find (perhaps in equally mind numbing detail) some being examined below.)
Earlier, I used the BBC TV series Silent Witness to establish the concept of forensic science playing a part in all of this. A better example, for my purposes in this Test, Test 3, is CSI, Crime Scene Investigation, because of the origin of that programme. Its creator, Anthony Zuiker, was looking for a new series for TV, and couldn't find one. As is often the case it was his wife who gave him the answer. His wife told him about a Discovery Channel show she liked about forensic detectives who used DNA and other evidence to solve cold cases.
That is highly relevant to this examination of the FSA/OFT Concordats. I will be looking for the DNA of the Concordats, what established them, what formed them. Then I need to go back to the "cold case", the "crime scene", which we will find in the agreement signed on the 27th July 2007, by the OFT, by six Banks and one Building Society, and the FSA. That is our "crime scene", and we need the evidence, the DNA from the Concordats to reveal both the "crime" and the perpetrators of the "crime".
In my last post, I said that I would need, and have to rely on your patience as I carry out the investigation. I repeat that request - if you have followed either of those TV series, or if you have watched reports on TV of real crimes being solved through the minute examination of trace evidence, then I hope you will realise that patience is required.
As I explained in my last post, I am using this Memorandum of Understanding signed by Hector Sants, for the FSA, and John Fingleton, for the OFT, for the examination. It contains 4 Concordats, each in turn signed by those acting for the FSA and the OFT.
I have already asked you to note the dates upon which the Concordats were operative and the importance that may have, so let's move on and take a closer look at each Concordat.
1: Co-operation on competition issues: A concordat between the Office of Fair Trading and the Financial Services Authority.
2: The Unfair Terms In Consumer Contracts Regulations 1999 and Enterprise Act 2002: A concordat between the Office of Fair Trading and the Financial Services Authority.
3: The Consumer Protection from Unfair Trading Regulations 2008 and Enterprise Act 2002: A concordat between the Office of Fair Trading and the Financial Services Authority.
4: Banking conduct regime: Consumer Credit Act 1974, Financial Services and Market Act 2000 and Payment Services Regulations 2009: A concordat between the Office of Fair Trading and the Financial Services Authority.
Let's just for a moment visit the "crime scene", and examine something which links those Concordats back to it, this:
A. The OFT has initiated an investigation under s.224 of the Enterprise Act 2002 (the Investigation) into the fairness or otherwise for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999 (the 1999 Regulations) of certain terms contained in each Bank's personal current account arrangements providing for charges to be imposed on customers who seek to make payments for which they do not have available funds (the Relevant Terms and the Relevant Charges).
Now you might immediately see that both Concordats 2 and 3 mention the Enterprise Act 2002, that is a link one to the other. You might also see that Concordat 2 mentions The Unfair Terms In Consumer Contracts Regulations 1999 - another link.
In an earlier post, I spent time on a technique magicians use to perform their tricks - something called misdirection. They make you look in one direction, whilst they hide what they are doing elsewhere. Let me ask you this - what are you looking at right now - which Concordat - which piece of legislation - most importantly, perhaps crucially, which regulator?
Step back for a moment, and consider whether this is true or not. Have those who have been following this issue from the outset been looking at the OFT? Looking at the OFT when that first test case was announced. Looking at the OFT when they won that first case in Court. Looking at the OFT when the Banks decided to appeal, and the case moved up a notch to the Court of Appeal - where again the OFT won. Looking at the OFT when the Banks took the matter to the Supreme Court, and this time the OFT lost. Looking at the OFT again, when the Supreme Court said the OFT could pursue other avenues, and despaired of the OFT when they announced they were throwing in the towel.
Was it when the OFT threw in the towel, that everyone thought this issue had been decided, that it was dead? The Supreme Court, let me remind you, did NOT rule on whether Bank charges were fair or unfair. They did NOT say that the OFT could NOT keep going, that there were NOT other avenues to pursue.
BUT - Has anyone ever looked at what the FSA were doing all that time? Was everyone looking in entirely the wrong direction?
Has anyone ever asked this question:
Let's ask Lord Turner and the FSA this very simple question:
Do you believe that the charges levied by Banks on their customers were and are fair or unfair?
Maybe, just maybe, when all the pieces of this jigsaw are in place and others can make up their own minds on the evidence presented, I will not be the only one asking that question. Maybe, just maybe when the millions of people affected by this issue, also ask that question, Lord Turner and the FSA might just feel obliged to answer.
We have a way to go, and more evidence yet to examine. In my next post I will continue this forensic examination of the Concordats, I will also look at the powers vested in the FSA by law, and why - by avoiding misdirection - it leads to the answer.
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