"It has been an extremely hectic past year," reflects the Financial Services Authority's (FSA's) general counsel (GC) Andrew Whittaker as he pours himself a glass of water in the meeting room at the FSA's huge Canary Wharf HQ, home to its 2,000 London-based staff. "During September and October we had an enormous number of issues to deal with."The 52-year-old Oxford graduate cites the ban on 'short-selling', which he was heavily involved in implementing, as a key challenge from that period. "It was very much a rapid response to market conditions - a sign that the regulator was able to take firm and effective action at very short notice, which was undoubtedly a shock to lots of people," he recalls.
Helping to steer the FSA through the current financial crisis presents many challenges and, when it comes to the criticism it attracts, some frustrations. Alex Aldridge talks to Andrew Whittaker, the regulator’s general counsel
“It has been an extremely hectic past year,” reflects the Financial Services Authority’s (FSA’s) general counsel (GC) Andrew Whittaker as he pours himself a glass of water in the meeting room at the FSA’s huge Canary Wharf HQ, home to its 2,000 London-based staff. “During September and October we had an enormous number of issues to deal with.”
The 52-year-old Oxford graduate cites the ban on ‘short-selling’, which he was heavily involved in implementing, as a key challenge from that period. “It was very much a rapid response to market conditions – a sign that the regulator was able to take firm and effective action at very short notice, which was undoubtedly a shock to lots of people,” he recalls.
Does he feel that the ban went some way to answering the barrage of criticism the FSA has received of late, particularly relating to Northern Rock, over which it was accused of ‘having its eye off the ball’?
“It would be a great mistake to take action of that kind because you’re trying to answer critics,” responds Whittaker. “We brought in the short-selling ban because we felt specifically that it was the right thing to do for the markets, which is the same reason we lifted it.”
Whittaker admits that some of the criticism can be hard to take, particularly when it fails to grasp the organisation’s duty to balance the needs of a wide range of sectors: “Sometimes people only see things from one point of view, while not realising that what we are implementing has to work for everyone. At times that is frustrating.”
With all the flak – and the considerably lower levels of remuneration on offer than in private City institutions – the attraction of a career with the FSA is not immediately obvious. But a few minutes in Whittaker’s company, and it is clear that you are speaking with someone who enjoys their job: “What I really like is being able to use law proactively, so that you are actually involved in law-making and, as a result, influencing how things work. I am very fortunate my position at the FSA allows me to do that.” He also relishes being able to “give something back”.
It was this commitment to public service that saw Whittaker move from McKenna & Co (which merged with Cameron Markby Hewitt in 1997 to form CMS Cameron McKenna) to the Department of Trade and Industry (DTI) as a two-year qualified assistant solicitor in 1982. There, he worked on the Gower review of investor protection, which he remembers as “a fantastic opportunity to create a new regulatory system”.
After 15 years at the DTI, Whittaker moved on to the Securities and Investments Board, which became the FSA in 1997, taking the role of director of the markets and exchanges division. In 2000 he was promoted to GC, a position that involves him overseeing a team of around 70 staff, the majority of whom are lawyers. They are divided into five groups: European Union, markets, retail, regulatory services and a fifth “flexible” group. This year will see a “modest” increase in the team through a recruitment process which is currently ongoing. The 120-strong enforcement division, led by former White & Case litigator Margaret Cole, operates separately.
Regulatory work and minor litigation matters remain in-house, with three external barristers – Fountain Court’s Michael Brindle QC, Blackstone Chambers’ Charles Flint QC and Ian Glick QC of One Essex Court – occasionally consulted on “especially tricky issues”. Major disputes work goes externally, with Ashurst currently the first-choice law firm. Mindful of the threat of financial crisis-inspired actions being brought against the organisation, Whittaker is in the process of creating a wider panel, the details of which are not yet finalised.
Befitting of a man who describes his interests as “family, and looking after my ageing parents”, Whittaker comes across as modest and down to earth. Those who know him, however, point out that his understated style belies a more forceful side and a political nous developed after years in public service. Still, even with these qualities in abundance, it cannot be easy regulating all those aggressive bankers and deal-making lawyers.
“What you have to remember is that people who can be quite aggressive in a deal-making context are not always so aggressive with their regulator,” he responds, arguing that the substantial numbers of ex-financial services professionals employed by the FSA prevents the development of an ‘us and them’ dynamic.
With regulatory expertise currently at a premium, is he concerned that some of these individuals may be tempted to follow the likes of former FSA head of market integrity Martyn Hopper (now of Herbert Smith) and ex-head of European law Jonathan Herbst (now of Norton Rose) back into private practice?
“While it is healthy that there is an interchange between the regulator and law firms, we continue to offer a unique opportunity to do regulatory law in a broad context. People find that attractive and we continue to recruit very good people,” replies Whittaker, skirting the question somewhat.
On the more general topic of the future of the economy, Whittaker is happy to give a view, although – understandably – it is a somewhat cautious one.
“The long-term fundamentals of London as a financial centre are good, but there is going to be a period of re-grouping and consolidation for a while.”
And with that, he is gone, whisked off to his next appointment by a junior colleague who has been waiting patiently outside. It is already 5pm, but with the City lurching from one crisis to another, it is a fair bet that the FSA’s GC will not be arriving back at the family home in Sevenoaks until much later in the evening.
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