In the Media

The fog lifts over RBS's inaction on NatWest Three

PUBLISHED July 5, 2006

So now we know. We have an answer to the question which, for many months, has been baffling British business leaders. Why won't Royal Bank of Scotland, owner of NatWest, involve itself directly in the case of its former executives who face extradition to the United States on fraud charges?

 All the bank needs do is to start legal action here in Britain against the NatWest Three - David Bermingham, Giles Derby and Gary Mulgrew - for their extradition to be halted immediately.

But, so far, RBS has mysteriously refused. What's behind this apparent abnegation of responsibility? Why let American prosecutors grab the controls of what should be an all-British legal matter?

It seems not to make sense. For if RBS believes that the trio are innocent, surely the bank has a duty to protect them.

If, on the other hand, RBS is convinced of their guilt, why not take them to court here? After all, it was in Britain where the alleged crime was committed. All the witnesses are here; so too is the evidence.

Allegations that the NatWest Three were swindlers, which they deny, emerged after a dragnet by American authorities into the ?40bn collapse of Enron, the US energy company. There is, however, no claim that the British bankers defrauded anyone other than NatWest.

So why would RBS sit on its hands and, by default, allow its ex-employees to endure a Texas jail for two years while awaiting trial? It's known as the Lone Star state, but the prisons there are unmistakeably no-star.

Stripped of easy access to family, friends and legal support, bankrupted by the horrendous cost of US litigation, Bermingham, Derby and Mulgrew could not possibly defend themselves properly. Banged up in Houston, they really would have a problem.

Why then put them through it? Not even his worst enemies suggest that RBS's chief executive, Sir Fred Goodwin, is motivated by either indifference or spite. So what's his reason for doing nothing, thereby letting the NatWest Three stew in the juice of their own fear and frustration?

Questions, questions, questions. Now, at last, we have some answers.

Sterling work by my colleague, Katherine Griffiths, in yesterday's Daily Telegraph, revealed that, when it comes to the fall-out from Enron, the fate of the NatWest Three could be the least of RBS's worries.

Were the legal dominoes to fall the wrong way, the bank might end up having to pay out billions in settlements and face demands for the extradition to the US of other RBS executives, far more senior than the NatWest Three. RBS, which earned about $83m from its dealings with

Enron between 1994 and 2001, has already settled one case for $20m over its relationship with the defunct company. But that payout might seem like smalltime charity if the bank fails to head off a massive class action from a group led by the University of California.

Known as the Newby suit, the plaintiffs' case draws heavily on evidence from an investigation by Neal Batson, the court-appointed official examiner, into the Enron scandal. In his report, Batson says: "RBS aided and abetted certain Enron officers in breaching their fiduciary duties".

The names of leading RBS bankers, past and present, including that of Johnny Cameron, a current main board director, are woven into the Batson report like multi-coloured threads in a Harris tweed jacket.

A generous interpretation of Batson's conclusions would be that RBS was naively credulous over Enron. Harsher observers would almost certainly take a different view.

Either way, we now know that it's the contents of Batson that have so unnerved RBS's top team. The trail of collateral damage leads, possibly, not just from Bermingham to Derby, but all the way to Edinburgh.

Which is why RBS is trying so hard to get Newby struck out, as a case with no merit. A ruling from a Texas judge, Melinda Harmon, is expected presently. An unpromising omen for RBS, however, is that she has already rejected a similar motion by Barclays.

Given what's at stake for RBS, the fog surrounding Sir Fred's inaction begins to lift. His lawyers, I'm sure, have all but bound and gagged him. Why would the bank wish to antagonise the US justice system? Avoiding a protracted spell in an American court would indeed be a good win.

But for the NatWest Three, it sounds more like silence for the damned. With just a few days to go before they are deported, their last hope of salvation rests with new Home Secretary John Reid.

He has the power to rip up a one-way extradition treaty, which the Americans refuse to sign yet are delighted to implement.

Reid's description of the Home Office, after he had inherited the shambles left by Charles Clarke, was that the department "is not fit for purpose". If nothing else, he got that right.

Reid was, of course, referring mainly to the foreign prisoners fiasco and the chaotic state of our asylum system. But when he finally peers over piles of papers marked "illegal immigration", he'll spot another mess, tagged "extradition".

If Reid could only extricate himself from the treacle of political correctness that clogs up his party's thinking, he'd have a rare opportunity to help restore our faith in the value of being a citizen of the United Kingdom of Great Britain and Northern Ireland.

He can and should simply annul the deal that David Blunkett, then home secretary, did with the Americans in 2003. Not because the NatWest Three are definitely innocent - they could be guilty - but because the process by which their rights are being abandoned is a travesty of domestic justice.

The extradition agreement was intended to facilitate the prosecution of international terrorists; it has ended up being used to drag UK businessmen, working for UK companies, into US courts.

It's a disgrace, in effect stripping the accused of treasured guarantees which for so long have formed part of the unique privilege of being British.

Blunkett is not stupid. But to sign up to a draconian arrangement with Washington, without checking first that the other side was going to deliver its side of the bargain, seems an astonishing dereliction of duty.

If, against the odds, Reid does decide to rescue the NatWest Three, he will not only right an obvious wrong, he will save his former Cabinet colleague from long-term embarrassment over a ghastly mistake.