Introduction
Compliance can be defined as “conscious obedience to or incorporation of values norms or institutional requirements” (Oliver 1991, p. 152),2 while culture deals with ‘intra-organizational processes’ (Kondra and Hurst 2009, p. 39), as such the concept of compliance culture is usually seen as embedded within the firm (Newton 2001) in response to institutional requirements (e.g. codes of conduct) which are communicated through senior management, and then layered down throughout organisations. In the extant literature, however, this internalisation of cultural norms imposed by the immediate environment (industry) raised questions regarding the organisational orientation towards such compliance culture (i.e. what does a company do about complying with such culture?) rather than whether it exists or not. An example for this can be seen in Jenkinson (1996). Clearly, organisational compliance with such culture is an expectation from the Financial Conduct Authority as indicated in the following quote “Where we believe cultural measures expose the firm to a high level of risk in the context of our objectives, we will expect the firm to take account of it” (FCA 2013, p. 1). Furthermore, examining the extant literature shows that the concept of culture has been studied from the perspective of the regulator (O’Brien et al. 2014; Ring et al. 2016). However, this has been criticised on the grounds that culture is presented in a ‘diffuse, inconsistent, and often simplistic ways’ (Meidinger 1987). There are similar concerns with regard to the over simplification of the construct of legitimacy, and its widespread application resulting in misuse of the construct (Suddaby et al. 2017). Compounding the matter further, less has been said from the perspective of the compliance functions, within the firms where the continued dysfunctional cultural issues exist. Thus, an evident gap in the literature is to explore firms’ compliance culture and how it is formulated vis-à-vis the institutional environment in fulfilment of legitimacy claims from various stakeholders. Clearly, this is increasingly important given recent media speculation about the shift in regulatory direction of the FCA, where it will no longer be viewed as ‘enforcement-led’, or following the ‘shoot first, ask questions later’ approach after the appointment of Andrew Bailey in 2016.The misconduct in relation to LIBOR has cast a shadow over the financial service industry. The findings we publish today illustrate, once again, individuals within the industry acting with a cavalier disregard both for regulatory obligation and the interests of the markets. IEL’s significant failings in CULTURE and controls allowed that misconduct to flourish and fell far short of our expectations (FCA 2013, emphasis added).
Literature Review
Understanding Compliance Culture—Approaches Adopted by Firms
Regulatory Pillar, Legitimacy and Compliance
Normative and Cultural Pressures, Legitimacy and Compliance
Methodology
Year and total fines (all offences) | Sample size, justification of coverage | Further reading relating to fines |
---|---|---|
2013 £474,263,738 | 2013/2014 £587.6 M within our sample Total fines for all offences 2013/14 is £1,976 M. Of this total £1,114 represents a combined fined across several banks relating to G10 spot foreign exchange. This has not been included in total analysis, as related to systematic control issues across the sector (and further investigation of Barclays ‘culture’ is covered in 2015/2016 review) Fines excluding the combined fine total £862 M, so our sample represents 68% coverage | |
2014 £1,471,431,800 | ||
2015 £905,219,078 | 2015/2016 £823.0 M within our sample Total fines for all offences 2015/2016 £927 M, so our sample represents 88.7% | |
2016 £22,216,446 |
Findings and Discussion
Alignment to institutional category | Sub-themes | Emphasis within quotes | Key quotes from document |
---|---|---|---|
Coercive isomorphism—actions of the regulator pressuring violating banks | Theme: culture deficiencies | focus on profit | 1 “The culture at Martin’s was that profit came first. Compliance was seen as a hindrance” (FCA 2014a) |
2 “The brokers misconduct was exacerbated by a poor compliance culture within IEL which was a result of its heavy focus on revenue at the expense of regulatory requirements” (FCA 2013) | |||
3 “State Street UK allowed a culture to develop [….] which prioritised revenue generation over the interests of its customers” (FCA 2014b) | |||
4 “…the firm’s culture, controls and remuneration structures meant that staff were focussed on quantity not quality and there were customers that paid the price for that” (FCA 2014c) | |||
Theme: shortfall in behaviours | expressions of disappointment and response of accountability | 5 “their conduct has fallen far short of our expectations” (FCA 2014b) | |
6 “the findings do not make pleasant reading” (FCA 2013b) | |||
7 “what is worse, they compounded this by failing to be open and cooperative” (FCA 2013d>) | |||
8 “Clydesdale’s failings were unacceptable and fell well below the standard the FCA expects” (FCA 2015h) | |||
9 “penalty was increased because of its failure to respond adequately” (FCA 2015h) | |||
10 “firms will be held to account” (FCA 2015b) | |||
Theme: cooperative ‘working together’ (message from regulator) | change in regulatory tone, from sanctions to working together. Praise for proactive action | 11 “The FCA has been working with the firm (FCA response to CashEuroNet) [….] We are pleased that CashEuroNet is working with us to address our concerns” (FCA 2015k) | |
12 “We have been encouraged that Cash Genie has been working with us proactively and openly to put things right” (FCA 2015m) | |||
13 “Lloyds has made significant progress” (FCA 2015c) | |||
14 “While Aviva Investors’ failings were serious, the FCA has recognised that its actions since reporting its failings were exceptional” (FCA 2015i) | |||
Theme: disregard for the regulatory response | absent responses, concise responses or passing on blame | 15 “JLTSL has since put in place updated policies that have been confirmed by the FCA as being appropriate” (JLTSL) | |
16 “Threadneedle was the intended victim of an attempted fraudulent trade….Threadneedle identified and stopped the trade…” (Threadneedle) | |||
17 “the FCA considers these failings to be particularly serious” (FCA 2015) | |||
Mimetic isomorphism | Theme: violators’ regret statements | apology, regret | 18 “We are issuing a public apology” (Wonga) |
19 “It is deeply regrettable” (ICAP) | |||
20 “We deeply regret this matter” (State Street Bank) | |||
21 “We sincerely regret” (Homeserve) | |||
22 “I sincerely regret” (Rabobank) | |||
23 “The misconduct at the core of these investigations is wholly incompatible with Barclays’ purpose and values and we deeply regret that it occurred.” (Barclays) | |||
24 “This trust could not have been earned without robust regulatory compliance in all of our operating jurisdictions, and we regret in this case that we did not meet our standards or those of the FCA.” (BNY Mellon) | |||
25 “We apologise…” (CashEuroNet) | |||
26 “I accept the findings of the review and apologise…” (Dollar Financial UK) | |||
Theme: emphasis on compliance culture | reform and value of culture and behaviours | 27 “this demonstrates again the importance of our continuing work to build values-based culture…we remain completely committed to that effort” (Barclays) | |
28 “we place great value on a positive compliance culture…” (Deutsche Bank) | |||
29 “our Enterprise Behaviours underpin the culture we aspire to create… makes sure everyone is held accountable for demonstrating the right behaviours” (Clydesdale Bank) | |||
Normative isomorphism—learning, adapting, and collaborating in response to sanction | Theme: learning and transformation | learning, actions of remedy, enhancement and transformation | 30 “We have learned from this” (ICAP) |
31 “We have worked hard to enhance our controls to address this unacceptable situation” (State Street Bank) | |||
32 “We have transformed the business” (Homeserve) | |||
33 “The remedial steps undertaken demonstrate substantial and healthy introspection” (JP Morgan) | |||
Theme: restructuring of boards and continuous improvements | strengthening of board | 34 “The Bank’s Board looks very different today […] we have also been reforming and improving the Bank’s systems, processes and culture” Cooperative Bank | |
35 “I am delighted to announce that Peter and Hugh will be joining the Virgin Money Executive Team. Their broad experience [….] will be invaluable to us as we continue to deliver on our strategy” Virgin Money | |||
Theme: acknowledgement of prior deficiencies and need for continued reform | similarity to regret statements, but with emphasis on moving forwards with reform | 36 “We have acknowledged for some time that mistakes were made and have apologised” RBS | |
37 “The culture, structure and way RBS operates today have all changed fundamentally […] We have made significant changes” RBS | |||
Theme: cooperative ‘working together’ (message from firms) | aligns to stance of regulator ‘working together’ but setting a norm of best practice within firms | 38 “Barclays have cooperated fully with the FCA throughout and continues to apply significant resources” (Barclays) | |
39 “we appreciate the opportunity to work with the FCA….we are pleased they’ve witnessed how seriously we take our regulatory responsibilities” (CashEuroNet) | |||
40 “BNY Mellon has worked cooperatively with the FCA” (BNY Mellon) |
Coercive Isomorphism—Actions of the Regulator Pressuring Violating Banks
Firm/violation (sourced via FCA press releases > 500K fine) | Significance of fine £’million |
---|---|
2013/2014 review | |
Wonga (FCA 2014) | £2.8 |
Martin Brokers (FCA 2014a) | £0.6 |
ICAP (FCA 2013) | £14.0 |
State Street Bank (FCA 2014b) | £22.9 |
Lloyds (FCA 2013) | £28.0 |
Homeserve (FCA 2014c) | £30.6 |
JP Morgan (FCA 2013d) | £137.6 |
JLT Speciality (FCA 2013c) | £1.8 |
Rabobank (FCA 2013f) | £105.0 |
Sesame (FCA 2013f) | £6.0 |
2015/2016 review | |
Threadneedle Asset Management Limited (FCA 2015) | £6.0 |
Barclays (relating to transaction in 2011/2012) (FCA 2015b) | £72.0 |
Barclays (forex failings 2008–2013) (FCA 2015d) | £284.4 |
CashEuroNet (FCA 2015k) | £1.7 (note redress) |
Dollar financial UK (FCA 2015l) | £15.4 (note redress) |
Cash genie (FCA 2015m) | £20.0 |
Lloyds banking group (PPI handling) (FCA 2015c) | £117.0 |
Deutsche bank (Libor and Euribor) (FCA 2015e) | £227.0 |
Merrill Lynch International (MLI) (FCA 2015f) | £13.2 |
Clydesdale bank (FCA 2015h) | £20.6 |
The Bank of New York Mellon London branch and The Bank of New York Mellon International Limited (FCA 2015h) | £126.0 |
Bank of Beirut (FCA 2015i) | £2.1 |
Aviva investors (FCA 2015j) | £17.6 |
Theme 1: Culture Deficiencies
Theme 2: Shortfall in Behaviours
Theme 3: Cooperative ‘Working Together’
we considered that a thematic review would not be the most effective and efficient way to continue to support and drive continued culture change across the sector […] we will continue our work with individual firms (FCA 2015/16 Annual Report).
Theme 4: Disregard for the Regulatory Response
Mimetic Isomorphism: Violators’ Regret Statements
Normative Isomorphism—Learning, Adapting and Collaborating in Response to Sanction
Normative Isomorphism Evidenced in Endorsed (Legitimate) Firms
Different Isomorphism logics |
Coercive Isomorphism
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Mimetic Isomorphism
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Normative Isomorphism
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Formal and informal pressures exerted causing companies to comply | Companies responding to pressures of being similar to other organisations within the field and ‘copying’ one another | Companies respond to norms and values being promoted by Educational institutions and /or /professionalization | |
Mechanisms of change within compliance culture | |||
Forces included in Practice | Credible deterrence adopted by the FCA Companies follow rules and regulations or face sanctions | Cycles of continuous improvement in regulatory compliance which is similarly communicated by banks leading to one communicated ‘public’ face through websites/Public relations Compliance aligned to FCA/BASEL frameworks | Adoption of best practice guidelines issued by groups such as BBA/UK Finance Group; membership and conformity with professional bodies requirements i.e. accounting and legal professional bodies /training providers for CPD |
Findings from this study | FCA response through public criticism and significant fines. (Legitimacy as a Product) Response to sanctions by firms is mixed—few ignore coercive impact of regulator Adjusted regulatory stance of collaboration (coercion through communicated expectations) (Legitimacy as a process) | Firms’ response appear similar to sanctions - Regret statements (Legitimacy as both a Product and Process) | Firms respond with messages of culture improvements, and control/procedural improvements such as re training of staff and new leadership in accordance of new professional norms that reflect best practices (Legitimacy as a Process) |
A State of ‘Evolutionary Compliance’?
Regulatory arbitrage, at least in the conduct arena, is a game no longer worth playing […] to give credit where it is due, much of this is the result of firms’ efforts to improve their business models and culture to meet our expectations FCA Annual Report, 2015/16, p. 6.