-----Original Message----- From: IFA Defence Union [mailto:enquiriesifadu.co.uk] Sent: 30 September 2005 08:54 To: 'John Tiner'; ministershm-treasury.gsi.gov.uk Cc: 'Callum McCarthy'; 'Reilly, Louise'; 'wider.implicationsfinancial-ombudsman.org.uk'; 'wider.implicationsfsa.gov.uk' Subject: FAO John Tiner - FSA: Ivan Lewis MP - HM Treasury
Dear Mr Tiner
Our e-mail dated 15th September refers.
Please note that this e-mail is issued to you as a primary recipient, and in like and equal manner has also been issued to Ivan Lewis MP at HM Treasury as a primary recipient.
We have identified above, the other parties to whom copies have been issued, and would confirm that it is for their information purposes only at this juncture. A copy of this e-mail will also be posted on our website.
Please also note however that it is our intention to forward a copy of this and earlier correspondence to the Bank of England during the early part of next week.
Please finally note that this is not the second e-mail referred to in our e-mail dated the 15th of September. For clarity we identify reference later in this e-mail to that second e-mail, in this manner “second e-mail”.
We regret that this interrupts the flow of the correspondence we had originally intended, however, we believe there is one specific matter which we need to highlight before that “second e-mail” is issued.
We believe it is incumbent on all parties to establish and maintain a record of events, to do so from the outset, and that there is a fundamental need for the utmost clarity when perhaps at a later date the record is subject to the scrutiny of others. We do not believe you would differ from that belief.
Our original e-mail raised these two questions:
“ ……….. Before therefore issuing the second item of correspondence, I wish to have confirmation that it will be responded to, and not filed, the response received today notwithstanding.
In the alternative, I wish to have confirmation that the contents and strictures intimated in both items remain, and that correspondence from me on behalf of IFADU will not be responded to and will simply be filed.”
For the record, at today’s date no reply has been received, equally therefore no confirmation of one or other of the alternatives has been received. We recognise and clearly also concede that such an outcome is fully in accord with one of the two alternatives that existed. It suggests to us that our e-mail has simply been filed, and that we should have no expectation that this will alter at any stage in the future.
However we noted that at or around the 20th of September a copy of the following item http://www.fs-du.co.uk/downloads/FSA_Kenmir.pdf was placed on the FSA web site.
Despite the disparity between the date upon which the item was originally dated and the date of its appearance on the FSA website we remain in many ways grateful that this action was taken. It seems, at least in our opinion, to add weight to our judgement of the alternative chosen by the FSA, and does so in an open and public way, albeit for us in a rather roundabout manner. Nonetheless, and for reasons we will attempt to explain, it inevitably leads to anomalies and it also leads to and necessitates the issue of this interim e-mail, and to our delay in issuing the “second e-mail.”
It is not clear to us that the term used in Mr Kenmir’s e-mail, the term being “simply be filed”, is sufficiently specific to act as a suitable nor an adequate record, and we say this so that all of the parties concerned are aware of the anomalies it may create and the dangers it may harbour.
It could for instance be taken literally. Namely that any and all items we issue to the FSA will immediately upon receipt “simply be filed”. However the potential danger that we believe this may create lies in the fact that we do not know, indeed no one can know, whether all such items will be filed having been read or be filed whilst left unread, save for the obvious necessity of reading that it was indeed a communication from IFADU, the fulcrum upon which the decision that it “simply be filed” rests.
Why is this a potential problem? The posting of the item on the FSA website, as a matter of public record, could be seen as an indication that our earlier item dated 15th September had indeed been read. On that premise it could act as a potentially sufficient indicator that it was a “tit for tat” response to what was read, and upon which it was decided that the public notice should be posted.
If it were indeed read, it, it would also potentially suggest an honest albeit belated intention to correctly establish a proper balance. As importantly it established a visible record of such balance, between the request that we publish Mr Kenmir’s e-mail on our website, which it is known we did, when it was only at this later date that the FSA followed suit on their website. The reading of our e-mail may have been the prompt to strike this balance, to do so visibly, and in the public domain.
Again, on the premise that it was read, it could also be interpreted, and we are not suggesting any malice, as a clear sign that a door is being slammed even more firmly in our faces, silently perhaps, but slammed nonetheless. The reading of our e-mail may have been the prompt.
That is how we currently view what has happened, but that view is dependent on a supposition, not on a certainty of knowledge on our part, nor can it be so on the part of any other party except the FSA.
However, and this is the importance of the distinction we wish to highlight, it could also be that our e-mail dated 15th September was simply filed. It was not read.
It is entirely reasonable to suppose that the posting of the notice was a wholly unconnected event, albeit reasonably contemporaneous with our e-mail, whilst not so contemporaneous with the original date of the item itself. It is entirely reasonable to suppose that it was not dependent in any way on the reading or indeed even the filing of our e-mail.
Why might it prove to be important that we raise this issue, which we define as follows:
Will all or any communication from us to the FSA
- “simply be filed” – unread. - or - - “simply be filed” – but after reading.
There are two reasons. Firstly, our “second e-mail” will raise issues for public debate. (Initially these will be in an indicative manner only; the issues themselves will be a matter of ongoing correspondence, and the subject of further e-mails).
However, at least some of the issues raised may contain material and information that fall to be addressed under the Tri-Partite Memorandum of Understanding that exists between the Financial Services Authority, the Bank of England and HM Treasury.
Now it is self evident that it is not for us to decide whether any matter we intend to raise will or will not fall under the Memorandum of Understanding, that is wholly a matter for those who are party to the MoU.
However, those who have a knowledge of that agreement will be aware that each of the parties have attempted to delineate in advance the sectors or matters of interest for which each party will have particular responsibility. There is also an intention that there should be as little duplication of effort as possible.
It causes no particular concern, at least on our part, that the FSA “simply file” any items from us which may or may not in due course fall to be dealt with under the Tri-Partite MOU. They have reached a decision; we have no alternative but to accept that they have done so.
However we believe it may be a matter of concern to others were we to raise matters that may be relevant to the MoU, and it was not clear to all concerned that these may “simply be filed” by the FSA. “Simply be filed” – and remain unread.
Indeed we feel it should form part of the public record, that the FSA can and does take such action, based uniquely on the sender of the information, rather than the relevance or potential importance of the information itself. Indeed, even if it breaches the terms of the MoU.
We are appreciative of the opportunity recently offered by Ivan Lewis MP to address concerns that may emanate from bodies such as ourselves. It allows us to issue our “second e-mail” in the knowledge that its treatment, what ever that may prove to be, will not be that it will “simply be filed”.
It is also for similar reasons that we intend to issue copies of our correspondence to the Bank of England. In doing so we hope to ensure at least two parties to the Tri-Partite MoU are in a position to receive, to read and to consider what we have to say. We believe that leaves the contents of any communications to be judged independently of the sender and we believe that to be preferable.
However this points to the second reason for us raising the anomalous situation in which we find ourselves, indeed in which perhaps everyone finds themselves. In the normal course of events we would anticipate that correspondence issued to HM Treasury or to the Bank of England, which they deemed to be more directly the province of the FSA, would be passed by them to the FSA.
However, under the current circumstances that inevitably leads to the certainty that the items will “simply be filed”. That strike us, and we hope it may strike others, as an interesting destiny for matters which may be of importance.
As we have stated above, it causes no particular concern, at least on our part, that the FSA “simply file” any items from us which may or may not in due course fall to be dealt with under the Tri-Partite MOU. They have reached a decision; we have no alternative but to accept that they have done so. But we wish it on the public record that any anomalies or indeed dangers that may arise, are not of our making, nor at our request.
In perhaps stark contrast, we were pleased to note the response to our earlier e-mail from the Financial Ombudsman Service. We find this to be an approach to our earlier e-mail that has much to commend it.
For the record this is that response: http://www.fs-du.co.uk/FOS_further_communications.htm
We would add this final comment. IFADU may perhaps appear to be an unlikely candidate; perhaps even the least likely candidate, from whom matters, that may eventually be adjudged as having relevance to the Memorandum of Understanding, might originate.
However we would remind you of these comments from our earlier e-mail:
“ ……You are fully aware, I believe, that IFADU is small, small both in numbers and in resource. The size of the agenda for the meeting also seems to demand that you quantify such matters in terms of size rather than importance.
I should make you aware that I believe it is a mistake to see the issues that I intend to raise either at the meeting or in the second letter as being best judged in terms of size as opposed to their potential significance”.
Our “second e-mail” will follow.
Evan Owen
The IFA Defence Union
If you have ten thousand regulations you destroy all respect for the law. - Winston Churchill