It is generally accepted that company directors have a fiduciary duty to their shareholders. The word itself comes originally from the Latin fides, meaning faith, and fiducia, trust. In other words, a fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. As is the case of a company director.

If we assume that the directors of banks also have this fiduciary duty, why is it that they are being asked to resign, rather than being sacked? In addition to their fiduciary duty, directors must exercise a reasonable standard of care and act responsibly. Now, whilst there is some reasoned argument that the world economic situation compounded the problems our banks faced, it is ludicrous in the extreme to suggest that this is the sole reason for their demise and therefore, the need for vast amounts of taxpayers money to bail them out. With position comes responsibility, if the directors of our banks got it wrong, then they must pay the price. It is after all, they (collectively or otherwise), who made the decisions that ultimately lead to the failure of these once great institutions. Theoretically at least, if any director failed in their fiduciary duty, acted recklessly or without due care then, not only could they be sacked, but they could find themselves liable to a civil action. That notwithstanding, it is clear to me, that if ‘trust and confidence’ is an integral part of a fiduciary’s duty, then there has been a failure.

Government ministers have consistently talked about the fact that there must be “no reward for failure”, this pre-supposes that the bankers have failed,if this is the case, then by which yardstick? Is it in terms if their fiduciary duty, duty of care or that they have acted recklessly? If they have failed, then why were they allowed to leave voluntarily, with or without a compromise agreement? Why weren’t they sacked, why haven’t we heard ministers talk about suing directors that have failed? Could it be that those in public office also have a fiduciary duty and that they themselves could be subject to litigation? I don’t know the answers, I am no lawyer, but I say this, if there is no reward for failure, then there must be action against anyone that has failed in their duties. Not for revenge, but to prevent this happening again. In addition, if the government is correct in its assertion that certain bankers have failed, then surely, the right way to go is not to renege on the terms of any compromise agreement, but to sue the individual in their personal capacity. These individuals have either failed or they have not, ministers must be careful in making damning statements, yet failing to back them up with appropriate action.

I am not qualified legally or otherwise to determine whether or not any individual director has failed in their fiduciary duty. Therefore I am not suggesting anyone (bankers or otherwise) has acted improperly, I am relying only on the governments own words, that there should be no reward for failure, which implies that there has indeed been a failure. However, in the “court of public opinion” I would like to state for the record, that I believe there is merit, perhaps even a duty, for the government to seek legal advice on this matter, because they, as a majority shareholder in these banks, have their own fiduciary duty to the shareholders, you and me!

Today, David Cameron provided what, for all intents and purposes, could be described as a ‘presidential’ address to conference, albeit the intention was to address the nation. Although this may described as political opportunism, he did, actually pull it off, at least insofar as to make it look as if the conservatives want to be an ally of the Labour government in this time of crisis, rather than an adversary.

What was interesting was, that Cameron came across as mature, thinking and determined, even though the content lacked real meat. However, he has promised to elaborate on this tomorrow. In his speach, he announced that he was going to drop his party’s minor objection to the current Banking Bill, in terms of who has the final say on the event that the Bank of England needs to intervene to save a bank, the BoE of the FSA, the conservatives originally favoured the former, whilst the Labour party the latter. He has also vowed to support the rapid introduction of further guarantees for savers money.

Finally, he suggested that he would support the government in its endeavours to address the complex issue of “marking to market”, a process whereby banks price daily their assets which, it is argued, is causing bank stocks to fall even further. The proposal is that this practice should be suspended. Quite how this would work, Cameron did not explain, therefore, we can assume that it will be challenging or perhaps, not even possible.

What is perhaps more important, is that the conservatives in general and David Cameron in particular, have, throughout this crisis, remained in the shadows, so to come out and make this type of statement is significant, if, perhaps underwhelming. Nonetheless, what was important was that Cameron emphasised that the conservative party was not a subsidiary of the CBI or the city, two areas where they are seen as possible lapdogs. One other very significant point, was that he made clear, that there must be a day of judgement for the bankers, not now, whilst all this turmoil is going on, but once the dust has settled.

Yesterday, I argued strongly, that the bankers and executives that have presided over this chaos and brought many very powerful, established and well-known companies to their knees, or worse and should be investigated. Further, this should be done quickly, in order that their assets can be frozen, less a small allowance, pending a criminal investigation, which could lead to the permanent sequestration of their assets. [Banking Crisis, a time for reflection and payback]

What I would like to see now, is David Cameron come out further on this issue, by providing a direct challenge to the Labour government to make a commitment, here and now on the issue of their ‘day of judgement’. If the government and other parties want the ongoing support of the public, they must agree to mount criminal investigations, into the actions of the bankers and city executives and they must not allow those same people the opportunity to salt away their assets through uneccessary or avoidable delays.

Well done David, timing was good, the tone was excellent, now you need to keep the pressure on and come up with tangible solutions, because of course, the offer of rapid passage of two acts through parliament is not going to fix things, more, much more needs to be done. Time to turn words into action and if necessary, show the government wanting if they fail to act quickly and decisively.

When the dust settles, governments around the world need to reflect on precisely how a situation arose, where taxpayers were required to bail out struggling banks and insurers. This should be wide ranging and lead to both regulation and prosecution.

It is insufficient in the extreme to state that the stock markets require regulation, the truth is that executives of some of the largest banks and insurers in the world have acted recklessly and in return, have profited through bonuses and dividend payments. They have manufactured products that could be traded for profit, even though 10 years or so ago, these types of trades did not exist, in fact, some are so complicated, that even financial experts and city observers have struggled to explain how they worked.

It must be remembered, that the executives of these banks and insurance companies were charged with a fiduciary duty to look after their shareholders interests and act responsibly. From what I can see, they have created products that allowed them to make short-term profits on traded mortgage securities and the like. In many cases, shareholders have lost everything, many of whom are pension companies, which means that the ultimate losers will be all those that have invested their hard earned money in a pension fund and of course, the taxpayer.

Few can argue, that the actions of many of these top executives has been reckless in the extreme, because previously solid businesses have now had to be bailed, whether through nationalisation or central bank loans. With the position, salary, share options, dividends and bonuses, must come the responsibility. Anyone who has been party to the decisions that have lead to the failure of the business they were responsible for, should be required to forfeit any profits they received.

During these tough times, there is a need for cool heads, particularly from government, but we will come out the other side. The government’s however, must act now, by freezing the assets of all executives who are believed to have been party to this reckless behaviour, before they are allowed to salt away their assets, as they surely will. The public will not forgive government, for allowing these people to protect their assets and avoid paying the price for their reckless behavior.

This is not about starting a blame game, nor is it a witch-hunt, both of which may even be justifiable. It is a method by which government, on behalf of the people, can make clear, that reckless behaviour, for short-term profit, which leads to business failure has a price. In the UK, company directors can already be held personally responsible if they have continued to trade whilst insolvent, based on some of the recent examples of spectacular business failures, it is difficult to see how some of the banking executives could claim that their business was solvent.

Government must use existing legislation to investigate and if necessary, charge reckless company executives. If necessary, they must introduce further legislation to increase their powers in such circumstances, but in a first move, they must seek to freeze most or all of the assets of these failed bankers and their cronies. It does not matter if they have been donors to party funds, politicians responsibilities are to the electorate, not a few failed bankers. The predict, that the first party to promise to freeze the assets of these bankers, pending an investigation, will receive a massive boost in the polls, so even if they don’t do it because it is right, they could try it for the poll boost!