The problems facing UBS are starting to generate debate in

Switzerland, a country noted for its consensus-based direct democracy but also for its keen defence of its independence.

For too long, the response to any question related to banking secrecy has been a blanket assurance that this tradition will stay. However, the matter is finally being discussed and the debate as to the legal distinction between tax evasion and tax fraud – and whether it can be maintained in the face of the current international pressure – has been joined.

Whilst various politicians have been quite vocal, the government has been silent on the subject, save to announce on Tuesday this week that Eveline Widmer-Schlumpf, the federal minister for justice, will travel to Washington next Monday for talks with Eric Holder, the US attorney general.

The Swiss-US meeting is officially designed to discuss prevention of financing terrorists and organised crime but no-one is suggesting that this will be the only item on the agenda. It is also rumoured that there will be a government-created “task force” to review the banking secrecy laws.

There has been no shortage of advice from politicians but two main ideas have come to the fore. One idea is the simple removal of the distinction between tax fraud and tax evasion. Whether this would apply for Swiss residents as well overseas clients is a sticking point as the Swiss traditionally jealously protect their privacy. This has resulted in many people calling for a review rather than specific action. The other proposal is to conclude an agreement in the style of the European Savings Tax Directive with the

US.

In a local newspaper interview, Ivan Pictet, president of the Foundation “Genève Place Financière”, suggested that removing the distinction between evasion and fraud in tax matters could reduce private banking assets in Switzerland by up to a half. According to Mr Pictet: “The 140 foreign banks in

Geneva would have no reason to remain - they are here to offer Swiss banking secrecy to their clients. The traditional Swiss knowledge in money management would in itself be insufficient to compensate for the loss of the protection of privacy which is something the importance of which people often underestimate.”

That matters have come to this stage is being attributed to the lack of agreement between the finance minister Hans-Rudolf Merz and FINMA, the Swiss regulator.

Last week, the regulator allowed transfer of details of 250 client accounts to the

US last week, a deed that was declared illegal after the event by the Federal Tribunal. FINMA was given until Tuesday evening to explain itself to the Tribunal, which it confirmed that it would do, but stated that its response would not be made public.

WealthBriefing spoke with Dr Alain Bischel, a spokesperson for FINMA, and asked him on what basis FINMA had given the information to the

US authorities given the subsequent ruling by the Tribunal. Dr Bischel told us that Swiss banking law requires the regulator to act to defend the local banking system.

When the

US authorities increased the pressure and issued an ultimatum that the information be provided or UBS would be subjected to an indictment, FINMA realised that such an indictment would have far-reaching consequences for UBS and, by extension, systemic stability within the Swiss economy, so it capitulated.

This outcome represents a pragmatic approach on the part of FINMA which is contrary to the legalistic approach of the Tribunal. It also strengths further the appeal of smaller Swiss private banks with few international branches. Larger banks like UBS have to face an issue that was summed up rather well by Mr Pictet: “If you aim to be a large investment bank in the US, you should not take any risk with your private banking activity in that country which is very sensitive to money flowing overseas.”

For now the battle over Swiss bank secrecy is on-going. Expect a number of skirmishes before the result is known.