Financial Services (Banking Reform) Bill
(11 years ago)
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Lord Deighton
That this House do not insist on its Amendment 41, to which the Commons have disagreed for their Reason 41A.
“PART 4
CONDUCT OF PERSONS WORKING IN FINANCIAL SERVICES SECTOR
Amendments of FSMA 2000
Professional standards After section 65 of FSMA 2000 insert—
“65A Professional standards
(1) The regulator will raise standards of professionalism in financial services by mandating a licensing regime based on training and competence.
(2) This licensing regime must—
(a) apply to all approved persons exercising controlled functions, regardless of financial sector;
(b) specify minimum thresholds of competence including integrity, professional qualifications, continuous professional development and adherence to a recognised code of conduct and revised Banking Standards Rules;
(c) make provisions in connection with—
(i) the granting of a licence;
(ii) the refusal of a licence;
(iii) the withdrawal of a licence; and
(iv) the revalidation of a licensed person of a prescribed description whenever the appropriate regulator sees fit, either as a condition of the person continuing to hold a licence or of the person’s licence being restored;
(d) be evidenced by individuals holding an annual validation of competence;
(e) include specific provision for a Senior Persons Regime in relation to activities involving the exercise of a significant influence over a controlled function under section 59 of the Act.
(3) In section 59, for “authorised” substitute “licensed” throughout the section.””
Commons Disagreement and Reason
The Commons disagree to Lords Amendment No. 41 for the following reason—
41A Because Lords Amendments Nos. 42 to 57 make more appropriate provision about the standards of those working in the financial services sector, and Lords Amendment No. 41 is incompatible with the provision made by those Lords Amendments.
The Commercial Secretary to the Treasury (Lord Deighton) (Con)
My Lords, I am recommending that your Lordships do not insist on this amendment and I of course support the reason the other place has put forward. I hope that I will be able to convince your Lordships, and especially the noble Lord, Lord Tunnicliffe, that the amendments the Government put forward in this House address the concerns of the noble Lord and the Official Opposition.
In essence, the Opposition are seeking to bring in a regime of annual licensing for bankers operated by the regulators, which would be supported by requirements about professional qualifications and minimum levels of competence. They also seek a code of conduct for bankers. I am grateful to the noble Lord for his constructive and thoughtful contribution to the debate on these professional training standards. First, I will set out how the amendments tabled by the Government, following the PCBS recommendations, already deliver the improved professionalism and higher standards of conduct that Amendment 41 seeks. Then I will explain the ways in which Amendment 41 is incompatible with the PCBS proposals, which had at their heart the need for banks to take responsibility for standards in their organisations, which is essential if the culture of banking is to improve.
First, on the code of conduct, Lords Amendment 54, tabled in Committee, already provides for the regulators to make rules of conduct for all bank staff. The regulators will be able to create a set of banking standards rules for people working in banks, just as the PCBS recommended. These banking standards rules will be able to do everything that a code of conduct would do.
Secondly, on ensuring a minimum standard of professionalism and qualifications, Lords Amendment 45 provides for banks and PRA-regulated investment firms to check that candidates for regulatory pre-approval to perform a specified function are fit and proper before they submit an application to the regulator for that approval. As part of this process, they will have to have regard to whether the candidate has obtained a qualification, has been trained or is undergoing training, or possesses a level of competence set out in the regulator’s rules. The regulator will of course have to confirm that those candidates are fit and proper, including by virtue of having the appropriate qualifications, before approving candidates to specified functions.
Thirdly, Lords Amendment 53, which provides for the new certification regime recommended by the parliamentary commission, requires banks and PRA-regulated investment firms to certify that candidates for significant-harm functions are fit and proper, including by having regard to whether the employee has obtained the qualifications, training or competence set out in a regulator’s rules. This certification will have to happen each year, so there will be an ongoing requirement to consider the training and competence of their staff.
In sum, the government amendments provide for a code of conduct, emphasis on ensuring that candidates for working in functions that could significantly harm the bank have minimum qualifications and annual certification. Those are the three central elements of Lords Amendment 41.
I will explain briefly why Amendment 41 is incompatible with, not complementary to, the PCBS proposals. Lords Amendment 41 would impose the requirement for annual validation and checking on the regulator, not the banks. The whole thrust of the PCBS recommendations was that primary responsibility for maintaining standards should reside with the banks themselves. The PCBS said:
“Banks should not be able to offload their duties and responsibilities for monitoring and enforcing individual behaviour on to the regulator or on to professional bodies. The tools at their disposal have the potential to be much more usable, effective and proportionate for the majority of cases than external enforcement”.
Lord Tunnicliffe
As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 41”.
Lord Tunnicliffe (Lab)
My Lords, I speak on behalf of my noble friend Lord Eatwell. We are in but, we hope, moving towards the end of the worst financial crisis in most of our lifetimes. We will not agree on the reasons for this crisis, as we have proved when we have touched on it over the past several months. However, I think all noble Lords agree that some part of it related to the regulation and structure of the banking sector. We have had several White Papers on this subject and the Vickers report. We have had two financial Bills, of which this is the second. Half way through this process, there was a discontinuity when the LIBOR scandal changed the mood and grounds of the debate. We all hoped it was a one-off, just as we hoped RBS and Northern Rock were one-offs, but from that scandal onwards unease about the sector has continued to grow. Other banks—HSBC and the Co-op—were involved in mis-selling, but what really hit me was the latest report on the Lloyds Bank issue, which brought out how deep mis-selling has gone in these organisations. The FCA press release states:
“For a Lloyds TSB adviser on a mid-level salary, not hitting 90% of their target over a period of 9 months could see their base annual salary drop from £33,706 to £25,927; and if they were demoted by two levels their base pay would drop to £18,189—almost a 50% salary cut. In the worst example that the FCA saw, an adviser sold protection products to himself, his wife and a colleague in order to hit his target and prevent himself from being demoted”.
This final debate is about the whole issue of standards and culture. As a result of the LIBOR scandal, Parliament decided to set up the Parliamentary Commission on Banking Standards. As Mr Tyrie said in the other place today, its role was to,
“consider and report on professional standards and culture of the UK banking sector”.
We hope to tease out this issue by insisting on this amendment.
We are not happy—nobody can be happy—with the way this Bill has progressed. It started in your Lordships’ House 35 pages long and it was more than 200 pages long when it left. In the other place, it had a two-hour debate. The Minister had barely got to Amendment 41 in his winding-up before the debate was terminated by the guillotine. This is unsatisfactory. Other elements of the Bill have, in many ways, been a model of good practice which I hope will be taken up in future. My parliamentary experience is not long enough to be sure, but I think the Parliamentary Commission on Banking Standards is an innovation. It has been a good one, roundly approved by all sides of the House and I thank its members, two of whom are in their place tonight.
I also commend the Government for the graceful way they have bowed to the wisdom of the commission and the size of our voting power. The combination of the two has been, in most places, most satisfactory. What is now left between the Official Opposition and the Government? One thing that is not left is the duty of care. We wish we had carried that amendment, which could have made a big impact on standards and culture in the future. Unfortunately, we were unable to persuade the House. We are left with professional standards and it is on these that we want to emphasise our differences. I wish the process had not ended up with 150-plus pages of the Bill being discussed in two hours in the other place. More extensive and thoughtful work on this area might have achieved the level of consensus that the Minister hopes for.
I wish to make four points about the amendment which are subtly, but importantly, different. The first relates to the term “licensing”: the amendment calls for a licensing regime. For 10 years, I carried in my pocket—actually it was a little too bulky for that, so I carried it in my briefcase—a licence to fly an aircraft and carry passengers. At one point in my career I was privileged to carry up to 400 passengers, so society imposed on me the requirement to have a licence. We were very serious about that licence, the validity of which cost three days a year to maintain. You had a simple, clear concept of what a licence was. It is therefore important that the word “licence” should be used. In the rest of industry, such as the railway industry, from which I come, the concept of licensing is growing in strength. It is a good idea and we should call this a licensing regime.
Secondly, the amendment requires that we,
“specify minimum thresholds of competence including integrity, professional qualifications, continuous professional development”.
The Government’s amendment does not set out that these areas must be specified in the regime. This is a modest, but important, difference.
Thirdly, our amendment sets out that there should be a set of “Banking Standards Rules”. These were referred to by the commission, in paragraph 107 of its summary of conclusions and recommendations, paragraph 634 of the total document. Paragraph 2.18 of the Government’s response states:
“The Government will also take forward the Commission’s recommendation to replace the existing statements of principle (and codes of practice) for Approved Persons with banking standards rules”.
We believe it is important that banking standards rules should be set out, with the implication that this is a universal document for all parts of the industry to know of and take account of.
Finally, our amendment calls for,
“an annual validation of competence”.
I am happy to be corrected on this, but the tone of the government amendment suggests that in the previous 12 months the individual has not been found out—been found to be incompetent—because it talks about issues, errors or problems being recorded and being passed on to other employers. We want this to be a positive thing. Just as it was in my day, when I had to prove my right to hold a licence, we want bankers to go through a similar process, which looks positively over the previous 12 months at the continuing professional development and professionalism of the individual, and validates that annually. For those reasons, I beg to move.
Lord Turnbull (CB)
My Lords, perhaps I might go back over the history a little. The banking commission found that the approved persons regime had proved pretty toothless and that virtually no senior figures had suffered any serious sanction, and recommended a two-tier system: the most senior tier would require prior registration, and the second tier would require the banks to attest that the people working for them were fit and proper.
Both the Opposition and the PCBS found that the original government proposals were unsatisfactory, and each put down their own amendments. The one put forward by the Government, which was supported by the PCBS, was passed—but so, too, was the Opposition’s Amendment 41. They are different in some significant ways, but they do not differ in their attempt to define the standards that this generality of employees in trading or serving the public should be asked to reach.
The Opposition’s amendment refers to,
“minimum thresholds of competence including integrity, professional qualifications, continuous professional development and adherence to a recognised code of conduct”.
The Government’s Amendment 53 contains something that is more or less identical. It refers to a “fit and proper” person who has,
“obtained a qualification … undergone, or is undergoing, training … possesses a level of competence, or … has the personal characteristics”.
On that there really is no difference at all between us. The difference is the mechanism by which this is achieved.
The noble Lord, Lord Tunnicliffe, prefers the word “licensing”. I cannot really tell the difference between that and “certification”. On the question of defining minimum standards, I have just explained that those are true of both these proposals. On the question of annual approval, in the Government’s case all these characteristics are,
“required by general rules made by the appropriate regulator in relation to employees performing functions of that kind”,
and the certificate issued is valid for 12 months—so, again, we do not really have any difference between us; or at least the differences are tiny.
As has been pointed out by the Minister, the one important difference is that in one case the enforcement goes directly from the regulator to the regulated person, and in the government amendment, which follows the PCBS’s approach, it is the bank—paradoxically called an approved person—that has to identify those people who are capable of causing harm to the bank, its customers or its regulation, and to ensure that they meet the right standards. You have to make a choice about which you think is the better system.
The Opposition’s amendment would involve the direct regulation of tens of thousands of people, and in the alternative system it would be the bank that is, in a sense, the first line of regulation, but according to standards that the regulator has set. I think that that is a superior approach, and therefore I will certainly support the retention of Amendment 53 rather than voting to allow Amendment 41 to prevail.
Lord Flight (Con)
My Lords, following on from what the noble Lord has just said, I would have thought that recent history suggested that regulators were not particularly good at being the bodies finding out the bad eggs in banking institutions. Most of the staff of the PRA have come from the FSA. They were the regulators for the period during which the banking system in this country took on board the awful problem of a lack of integrity.
There is agreement across the House and the country that the question is: how do we get integrity back into our banking system? I do not see that rules are going to do it. We should have focused more on the role of the shareholders of banks in making sure that their boards and executives are proper people, and on the role of the auditors in this area, but I do not see any sound basis for being of the opinion that the regulators are going to be much good at it.
I broadly support the concept of licensing, although I agree with the point: what is in a word? It seems to me that you can license people in regard to their academic qualifications and job experience but not for integrity. People have either got integrity or they have not. We want to get to a situation where the managers of our banks have got integrity and give key effort to making sure that their banks are run with integrity.
That leads me to the next big area. My view over 40 years in the City has been that the main cause of this trouble has been that an oligopoly was allowed to develop. If one looks at economic history, wherever there have been cartels and oligopolies, there has always been bad practice. One reason that the oligopoly got worse is that there was a mistaken view back in the 1980s after the failure of Johnson Matthey that led to the doctrine that the lender of last resort only stood behind banks that were too big to fail. That led to a shrinkage of the number of banks. Many, because they were not deemed to be covered by the lender-of-last-resort doctrine, were closed down.
I remember having extensive discussions and correspondence with the late Sir Eddie George on just that issue back in the early 1990s. What was allowed to happen was a moral hazard. The oligopoly was there with its ticket that it had lender-of-last-resort support and it took the view, “Make money in any way you like and pay the fines”—they were a natural cost of business if you were in breach. That led to a complete deterioration of the standards of integrity in the banking system. That is the truth of what I observed.
I repeat, I personally do not see the regulator as being a huge force in turning round integrity. Punishing those that basically act immorally is quite an important ingredient, but above all we need to get sound management into banks. Maybe the regulator has some role in helping that process, but bank managers must run their banks on the basis of integrity. How far down does the regulator go if he is responsible for ensuring that staff have integrity? It seems to me that this would not work.
Lord Tunnicliffe
I commend the noble Lord, Lord Flight, on his ongoing campaign for small banks and more diversity—not that I dissent from it, but it is consistent. What I have more trouble with is the concept of competence and integrity in the banking system, and the idea that somehow we should more readily trust the banks than the regulator. The banks have not got much of a record over the past three or four years in terms of either competence or, frankly, integrity. There is virtually no major bank that has not shown some errors in terms of integrity or shown some failure in competence or ripped off customers through mis-selling. The poor FSA might not have done brilliantly, but it did investigate these areas and produce perfectly sensible reports. As far as one can see, the FCA has got off to a good start. It is producing good and competent reports. I want to express my belief that the regulator is doing, and will continue to do, a good job.
The amendment is quite rightly interpreted as saying, “The regulator shall do”. If our amendment were to succeed, I could readily see some drawing back from that. My own experience in the airline industry is that the regulator creates the framework and checks the checkers—in other words, checks the senior management—but that the spreading of annual testing and so on goes into the companies in a trusting framework. There are ways of doing it without having thousands of inspectors around. Our general thrust is in the right direction. However, I get a sense from what is happening in the House tonight that the chances of me persuading people on this point are slim, so I will not press this to a Division. I beg leave to withdraw the Motion.