In August 2011 I wrote to the Financial Services Authority to seek confirmation that the London-based custodians of SPDR Gold Trust (GLD) and iShares Silver Trust (SLV) were being regulated as custodians, despite the fact that physical bullion is not a regulated investment. After some chasing on my part I finally got a response, kicking my letter firmly into touch. The FSA accepted that the custodians (HSBC Bank USA NA for GLD and JP Morgan Chase Bank NA London Branch for SLV) were regulated, but appeared to be unwilling to do anything about it other than to pass my letter on to "the supervisors of the relevant firms".

My reason for writing to the FSA was to establish if allegations were true that bullion owned by these two trusts was being used in contravention of custody agreements. If they had any foundation there would be an important regulatory risk for the FSA which should be drawn to their attention, and in any event needed clarification to prevent a false market. Suspicions that this was the case were fuelled by obvious conflicts of interest in the firms concerned. The sensible course for the FSA would have been to investigate the matter with the custodians and give them a clean bill of health, or alternatively take appropriate action in the event of a breach. Instead, they ducked the issue, leaving the impression that there was indeed a problem.

This may have been to do with the fact that bullion, being dealt with in an over-the-counter market, operated under a different set of dealing and settlement procedures from a normal regulated investment. Subsequently the 2012 GLD prospectus was amended under "Risk Factors" on page 12, by the insertion of a new clause headed "The custody operations of the custodian are not subject to specific governmental regulatory supervision." It is now clear that the FSA had ceded its custodial responsibility to the "best practices of the LBMA".

This matters because investors naturally expect custodians to be properly regulated. It also matters because the bullion market settles through a separate entity called London Precious Metals Clearing Limited (lpmcl.com) owned by five LBMA members, including the two custodians for GLD and SLV. LPMCL is therefore at the heart of the London bullion market.

Because the bullion market in London is over-the-counter, bullion banks are exposed to counterparty risk, unlike traders on a regulated market. And if a big bullion bank fails, which is certainly possible in a global banking crisis, all the bullion held by the members of the LPMCL both for themselves and their clients could become available to central banks managing the crisis through the Bank of England.

In a systemic meltdown it may be naïve to expect central banks to fully respect property rights. So GLD and SLV are only suitable for investors prepared to accept a lower standard of custodial regulation, and who look to benefit from a rising gold or silver price until they decide to take their profits. They are definitely not for those seeking a safe haven or hedge from a financial crisis.