Commercial Financial Dispute Resolution Platform
(7 years, 11 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
George Kerevan (East Lothian) (SNP)
I beg to move,
That this House notes the statement presented to the Treasury Committee on 20 July 2016 by Dr Andrew Bailey of the Financial Conduct Authority (FCA); endorses his statement that the ad hoc creation of a compensation scheme within the FCA was not entirely successful and lacked perceived authority to treat customers with fair outcomes; believes that the recent headlines and allegations in the press against RBS will lead to pressure for a similar scheme; notes that many debates in this House over the years have focused on similar subjects with different lenders; believes that what is needed is not ad hoc compensation schemes, but a long-term, effective and timely dispute resolution mechanism for both regulated and unregulated financial contracts; and calls on the FCA, the Department for Business, Energy and Industrial Strategy and the Ministry of Justice to work with the All-Party Parliamentary Group on Fair Business Banking to create a sustainable platform for commercial financial dispute resolution.
In time-honoured fashion, I thank the Backbench Business Committee for allowing us to bring the motion to the main Chamber. I expect that many hon. Members will wish to raise constituency matters. Many constituents have experienced mis-selling by banks and had loan dealings with them. Today, we are trying to move beyond individual cases, serious as they are, to try to find a broad permanent resolution system.
I would also like to thank the hon. Member for Aberconwy (Guto Bebb) and my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (Calum Kerr), who were my predecessors as chair of the all-party group on fair business banking. The all-party group rose out of the interest rate hedging product mis-selling. We can lay that at the door of many different banks—Clydesdale, Royal Bank of Scotland, HBOS, HSBC and so on—but today I want to direct the Minister to the point that, after eight years of dealing with this problem, we need to look to the future and a more permanent resolution. I suspect many hon. Members will have cases, as I have, where it is not just that an individual’s business has been affected or that money has been lost; the impact on an individual’s mental health is also a very serious issue.
Norman Lamb (North Norfolk) (LD)
I thank the hon. Gentleman for raising this incredibly important issue. Does he agree that along with all the people who suffered the horrendous loss of their business and livelihood, we need to think about whistleblowers, the incredibly brave people who risk everything to expose wrongdoing? They need to be properly treated, too.
George Kerevan
The right hon. Gentleman makes a fair point. In my experience, it has been those very whistleblowers who have suffered most in terms of mental stress. They started off trying to present justice to the community, the banking world and small businesses, and ended up losing their job, their family and their partnerships. They are still suffering to this day.
The issue is also economic. We have had eight years where, although there has been economic growth, levels of productivity have been poor, if not flatlining. A lot of that is due to the underperformance of the small business sector. It is not just individual businesses that have been affected by mis-selling and the lack of resolution. It has carried on to a lack of investment in new businesses, and it has been an additional factor in important entrepreneurs withdrawing from the business process. Unless we find a permanent resolution, we will not be able to create the economic growth that I know all of us in this House hope to see.
Patrick Grady (Glasgow North) (SNP)
My hon. Friend is right that a number of Members have constituency cases. He will be aware of my constituent, Mr Neil Mitchell, whose business was forced into administration by the RBS Global Restructuring Group. He finds himself almost in the role of whistleblower by trying to take private legal action. Does my hon. Friend share my disappointment at the lack of willingness of RBS to engage in dispute resolution, in particular the unwillingness of the chief executive to meet my constituent personally? Does he share my hope that the proposals in the motion, which I was glad to sponsor, can be taken forward?
George Kerevan
I take my hon. Friend’s point. There are so many individual cases. They cut across all the nations of the United Kingdom and Members of all parties. My plea to the Minister is that we desperately need to find a permanent resolution.
Stephen Gethins (North East Fife) (SNP)
My hon. Friend made a good point about encouraging small businesses. It is important that we get a fair deal for small businesses. He will be aware of the case of my constituent, Mr Jim McGrory, who was looking to refinance at a preferential rate, but was faced with high exit fees and termination clauses that had not been made clear in the terms and conditions. That is crucial for small businesses, and it was crucial for Mr McGrory.
George Kerevan
Indeed. That brings us to the nub of the issue: the imbalance in power between an individual small business and a bank.
Mike Weir (Angus) (SNP)
I have a constituent in a similar situation to the constituent of my hon. Friend the Member for North East Fife (Stephen Gethins). My hon. Friend the Member for East Lothian (George Kerevan) is right to talk about an imbalance. My constituent’s business was put under by the Royal Bank of Scotland. He found that taking legal action was almost impossible, because RBS, bailed out by the taxpayer, was in a much stronger financial position than he was. My hon. Friend’s suggestion of an alternative mechanism gives at least a real chance for these businesses to take on the massive banks, which the public have bailed out.
George Kerevan
Indeed. It is clear in Scotland—it might be true of other parts of the UK—that the major banks have signed up many solicitors, making it almost impossible for someone to find a lawyer to represent them, even if they want to take action against a bank, difficult as that would be, given the financial ability they wield in court.
Norman Lamb
Does the hon. Gentleman also agree that the absence of a clear dispute resolution process actually incentivises bad behaviour and sharp practice? If the banks know that there is no proper mechanism to challenge wrongdoing, it encourages that bad behaviour.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. I just want to remind hon. Members that opening speeches are usually up to 15 minutes long—there is some flexibility—and to warn them that I will be applying a formal limit of up to eight minutes so that everyone can get a fair shot.
George Kerevan
For that reason, having been reasonably accommodating, I will press on to the nub of my argument.
For a permanent resolution of the problem, we need three different mechanisms. First, we need a shift in the legal onus on banks to provide a duty of care or good faith in how they deal with customers, particularly business customers. That is open for broad debate—over the years, the banks have been unwilling to accept a narrow duty of care—but we need to redress the balance between major banks and small business clients by providing a mechanism around the legal onus on banks. I would even accept it, initially, if the banks collectively were prepared to come forward with a solution themselves. Secondly, given that many small companies end up insolvent, we need a more balanced insolvency practice to remove the possibility of banks or lenders being tempted to force small and medium-sized enterprises into unnecessary or premature insolvency. Finally, we need a new permanent and effective redress system for banks and small businesses in dispute. In effect, putting those three together, we need to change bank culture.
In order, I hope, to build some common ground with the Minister, I should acknowledge that the Government have already moved some way in recognising this issue. The Government’s impact assessment on the establishment of a small business commissioner in the Enterprise Act 2016 reads:
“The Government is concerned that for small firms, negotiating a contract with a larger business can be challenging… Government has been told that small businesses often feel intimidated and accept such terms (rather than walking away from a proposed contract or refusing to agree to a change) and there is concern that larger firms”—
for that, read “banks”—
“sometimes use their market power to impose unfavourable terms.”
That, I think, is what lay behind the issue of the hedging products sold to small businesses during the economic boom in 2006 to 2008. The Government have recognised the general problem, therefore; it is just a matter of how we resolve it.
Just to show that there is a broader political agreement on this, from right and left, I want to quote the Minister of State, Department for Environment, Food and Rural Affairs, the hon. Member for Camborne and Redruth (George Eustice), who wrote a piece for the Free Enterprise Group three years ago, entitled “Defending the rights of those who take risks”, in which he wrote:
“Over the years...the banks have contractually extended their rights through their ‘standard terms and conditions’ to give LPA”—
the Law of Property Act 1925—
“receivers general powers of sale, to set aside the limit on the fees that a receiver may charge and to load all associated costs on to the borrower. They have even moved to grant themselves the right to peaceably re-enter properties over which they have a charge without any recourse to the courts. The contractual extension of power taken by the banks goes well beyond what was originally envisaged in the Law of Property Act 1925.”
In other words, the banks have gradually extended their powers of receivership, making it increasingly difficult for small companies in financial difficulties to get redress, and leading to the situation with RBS’s Global Restructuring Group, which has now re-entered the public domain with the initial report from the Financial Conduct Authority.
I expect the Minister to tell us that ultimately, if there is to be a change in the redress process, it has to come from the FCA. To that end, the all-party group on fair business banking has been consulting the FCA, and subsequent to that, I raised the matter with Mr Andrew Bailey, its new chief executive, when he appeared before the Treasury Committee. I asked if he drew any relevant conclusions from the FCA’s experience with the banks in drawing up ad hoc processes of redress for the various mis-selling schemes, and he said that he did. He said that the problem arose where schemes lay “outside the regulatory perimeter”—much of the mis-selling was of unregulated products—but that the FCA had learnt from the experience, having come late to it, that businesses felt they had not had their day in court. He went on:
“Now, they do not want to have a literal day in court because that is obviously very expensive. However, what I conclude from this is that it”—
the ad hoc procedures—
“is not satisfactory from the point of view of the FCA, because the FCA has been involved in creating a lot of bespoke processes. We discussed this on the board a number of times. Were there to be a mechanism that could substitute for these—let us loosely call it a tribunal, for the sake of argument—rather like the ombudsman but for more complex cases, because corporate cases often are more complex, this would be a big step forward. From the point of view of the things that come out, we are creating a lot of work for ourselves. However, I am very sympathetic to the people involved, so we have to do it. However, if there were to be a process that could substitute for this…I think this would be a big step forward.”
We are proposing the idea of a tribunal. At this stage, it is a generic proposal, and there are issues to be discussed. It would, for example, cross the boundaries of the devolved Administrations, so if we went down this road, there might have to be separate institutional tribunal procedures in Scotland. There are also financial issues, but since we are dealing with redress where the FCA has decided that a bank has been involved in mis-selling—in other words, since we are already in the territory where a bank is going to pay—any permanent tribunal system could be funded by the banks. The all-party group is open to a general discussion with the Government about how to proceed, but the general backing from the FCA is there; it is just a matter of the detail.
This is important because the issue has not gone away. The situation with RBS GRG is coming back into the public domain. RBS has put forward a new ad hoc procedure for dealing with complaints from small businesses put into GRG. We have advance notice of a report, not yet finalised by the FCA, in which, having taken technical advice, it has clearly found a conflict of interest in how RBS handled the cases of companies put into GRG: the part of the bank taking over and reselling properties from the insolvent companies was part of GRG. In effect, therefore, the bank was putting companies into insolvency, taking their property and handing it over to another part of the bank, and generating cash that way.
Given that this issue has reappeared and that there is a public debate over the nature of the redress system, we are not looking at legacy items; we are looking at a future situation in which the Royal Bank of Scotland is creating an ad hoc redress system that we need to ensure is a correct one.
I know that other Members want to participate in the debate. The bottom line for the Minister is that there is now an ongoing process of debate and a general consensus, even from the FCA, that we need a more permanent resolution system and that we need to go beyond just looking at insolvency law. The door is open for the Government to join the rest of us on both sides of the House to ensure that that resolution process is provided.
Mr Deputy Speaker (Mr Lindsay Hoyle)
As I said, we will have a voluntary limit of up to eight minutes. If it is not voluntary, it will have to be imposed.
John Howell (Henley) (Con)
It is a great pleasure to follow the hon. Member for East Lothian (George Kerevan). I congratulate him and I congratulate the Backbench Business Committee on granting the debate. I rise to speak as chairman of the all-party group on alternative dispute resolution. We are about to embark, in tandem with the hon. Gentleman’s all-party group, on an inquiry into precisely what he has proposed in the debate. We will be looking at the sort of dispute resolution that could be put into place for these sort of disputes.
I want to concentrate on the part of the motion that refers to the creation of
“not ad hoc compensation schemes, but a long-term, effective and timely dispute resolution mechanism”
that can be used to help solve these sort of issues. The hon. Member for East Lothian has set out admirably the reason for doing that, but I would say that the dispute mechanism already exists in the form of the alternative dispute resolution regime. I shall say more about that.
Businesses, including small and medium-sized enterprises, are left with no option except prohibitively expensive appearances in court. One of the great advantages that the alternative dispute resolution system brings is the potential to reduce the costs involved. This is not something that is strange to the financial services sector. A large number of commercial sectors automatically include alternative dispute resolution clauses within their commercial contracts.
The all-party group held a meeting on this recently, where we went through subject by subject, looking at how ADR could be incorporated within the system and used more often. We looked at the commercial area in quite substantial detail. One of the great things we were able to do was to bring together quite a disparate body of people who operate in the ADR field to see whether there were some common threads between them in approaching disputes such as those the hon. Gentleman mentioned and taking them forward.
The good news is that there was quite a lot of agreement about what we were aiming for, even though some of the methods of getting there were slightly different. For us, ADR includes arbitration, mediation, adjudication, expert determination, dispute boards and online dispute resolution. We also looked at examples to see how those elements could be—some already are—incorporated by financial services sectors in their contracts. The good news is that these were already being incorporated into contracts, so what we needed to do was to put pressure on the sectors to include them as a matter of course in their contracts, because that would help to solve these disputes.
Richard Arkless (Dumfries and Galloway) (SNP)
Will the hon. Gentleman clarify which sectors of the financial services he is referring to? Is it the retail sector or the business-to-business sector that is incorporating ADR? I have not seen many commercial contracts with ADR clauses in them from the banks.
John Howell
From memory, I think it was the business-to-business sector primarily, but there is absolutely no reason why it cannot include the business-to-retail sector as well. There is a great deal of ability for individuals to bring quite complex cases in a way that does not involve going to the courts, as I shall explain.
We are running out of time, so I shall deal with the issue right now. We all know that trying to bring a case to court is a very expensive business. It requires extremely expensive lawyers. What the arbitration or mediation process holds out is the ability for an individual to sit in arbitration and mediation between people in order to bring the dispute to a much earlier resolution. It could be said that this does not take away the need for a court to be involved, which is absolutely true, because the awards of the arbitration panel or the mediator have to be enforced by the courts. However, that is a long-stop for the ADR process, and I think we will see it being brought into play more infrequently.
Of course, Lord Justice Briggs has commented that he would prefer to see “alternative dispute resolutions” not called that—he wants the “alternative” taken out so that they are called “dispute resolutions”. I think that fits well with our own view of things. The other side is the issue of time and stress involved in taking forward cases within this sort of framework. It is absolutely true that the arbitration and mediation process takes away a lot of the stress of appearing in court and allows these sort of issues to be settled in a much more friendly way.
I look forward to the work that our two all-party groups will do on this issue. I think that the framework is already there, and I think we need to encourage banks to include clauses within their commercial contracts so that we can get back to ADR becoming the standard mechanism for resolving disputes, rather than using the internal complaints procedures of the companies as the starting point and the ending point of much of the discussion that takes place on these issues. On that note, I am happy to allow another Member to continue the debate.
Mr David Hanson (Delyn) (Lab)
It is a pleasure to follow the hon. Member for Henley (John Howell), a fellow member of the Justice Committee and chair of the all-party group on alternative dispute resolution, of which I am a member. I welcome his contribution, and the motion in the name of the hon. Member for East Lothian (George Kerevan), to which I was pleased to add my name, as a Labour MP; I support its objectives on a cross-party basis.
The issue is of great importance, and the Minister has a duty to the House to respond in a positive way to the very straightforward demand made by Members today—a demand that we establish a universal mechanism that allows businesses and others in non-regulated sectors an appeals mechanism, so that they can have an independent review of their situation. The motion is important, and I support it. The demands are clear, and have not come out of the blue. The motion clearly refers to the statement made by Andrew Bailey of the Financial Conduct Authority to the Treasury Committee on 20 July 2016. He said that we needed to look at the fact that
“the ad hoc creation of a compensation scheme within the FCA”
had not worked, and that there was no mechanism in place for many businesses—Members will no doubt mention them today—to find a resolution. Remember, these are small businesses facing big banks that have the time, money, expertise and often patience to try to see out the complaints being made. The motion, which calls for an effective, sustainable platform for resolving commercial financial disputes, is therefore absolutely right and timely.
Although many financial firms may be regulated, business and commercial banking remains an unregulated activity in the UK. Businesses do not have the same level of protection as consumers; they have to rely on internal complaints procedures and on the Financial Ombudsman Service, which may not be well equipped to deal with some of these cases. Businesses have to consider the potential for expensive, protracted activity through the courts. All of this effectively militates against fairness when opportunities have been denied or wrongs done.
I am particularly concerned about the Royal Bank of Scotland, which remains in public ownership. We taxpayers still endorse and act on behalf of the bank. The Minister has to look at not just the complaints procedure proposed by the hon. Member for East Lothian on behalf of the all-party group on fair business banking, but the Government’s responsibility, on behalf of every taxpayer, for the services provided by, and the attitudes and responses of, a bank that remains owned by me, my hon. Friend the Member for Bootle (Peter Dowd) on the Front Bench and every Member of this House.
This matters because over 12,000 companies were pushed into RBS’s controversial turnaround division, called the Global Restructuring Group. We are talking about real pressures and real actions affecting real businesses, and the bank having acted unfairly. Indeed, it has now recognised that it acted unfairly and has provided a compensation scheme of its own, but there is no independent scrutiny of it, and not necessarily any independent endorsement of it yet, because as the hon. Member for East Lothian said, this has not yet been finalised. RBS has a major commitment to those 12,000 businesses.
This also matters because of cases such as that of my constituent Clive May of Mold in Flintshire, north Wales. With his permission, I will detail his case. He experienced at first hand the actions of RBS in relation to the Government-sponsored enterprise finance guarantee scheme. Mr May was the owner of a successful business employing 100 people in north Wales. It was a construction company, building houses and factories. The company had banked with RBS for many years when Mr May was approached by RBS and asked to take up the EFG scheme, which was designed by the Labour Government to support the growth—not the closing down—of businesses through the difficult times of the recession between 2008 and 2010.
Mr May believed that the enterprise finance guarantee scheme would support the expansion of his business. He was informed that his overdraft, for which he had always met his responsibilities, and which was not excessive, as he could meet the liabilities, was to be taken over by the EFG scheme, and that his business’s cash flow would therefore be protected and developed. That was a falsehood on the part of RBS, because the moment he took up the EFG scheme, RBS placed the company in its distressed department and cut his overdraft.
Norman Lamb
It has been a pleasure to work with the right hon. Gentleman on what I regard as a scandal. Surely he is making the incredibly serious allegation that not only was an individual destroyed, but there was misuse of public money.
Mr Hanson
Absolutely, and I make that allegation here today. RBS has acted appallingly in its treatment of my constituent. Before Mr May took up the EFG, his business was making new contracts, had excellent cash flow, and never once went over its agreed overdraft limit. The moment Mr May took part in the EFG scheme, RBS took from the Government the money underpinning that overdraft, closed down his overdraft and ruined his business. That is important because Mr May exemplifies the small business facing the big bank. He and his wife Kerry have spent four years arguing this case—along with me as their Member of Parliament—having meetings with RBS, and looking at court cases, and now at criminal activity, which has been reported to North Wales police, because there are allegations of fraud. That is also being looked at by the Crown Prosecution Service, which is reviewing the case. All of that is because of concerns about how RBS has acted, but there is no mechanism to drag this case forward apart from Mr May’s personal determination and will to hold RBS to account. The Financial Services Authority cannot do that; he has to have the will himself, with the support of his family and his MP. That is not acceptable.
That is why I support the proposal of the hon. Member for East Lothian. Mr May’s business and similar businesses need this mechanism to ensure that they get fairness when they face banks such as RBS, which is in public ownership, that treat them with disdain.
Mr Steve Baker (Wycombe) (Con)
I am very glad to be called to speak in this debate. I support the motion, and congratulate the hon. Member for East Lothian (George Kerevan), with whom I serve on the Treasury Committee, not just on securing this debate, but on the excellent work he has done in having the initiative to bring forward the all-party group on fair business banking. I am glad to be a vice-chair of it, and am grateful to him for the invitation to take that role. I shall make three points: the first is about incentives; the second is about the cost and accessibility of courts; and the third is about complexity.
I have spoken previously in the House about the incentives for bad behaviour, particularly in relation to accounting under the international financial reporting standards, and liability. It is appropriate that the House is so well packed with Scottish National party Members, because I know at least one of them will be glad to hear that I recently attended an event at the Adam Smith Institute, where I helped launch the book “Legislating Instability: Adam Smith, free banking and the financial crisis of 1772”, by Tyler Beck Goodspeed, a brilliant American economist working in the UK. That event may seem irrelevant, but it goes to the heart of what is wrong today. The book shows that the Scottish banking system, characterised as it was by unlimited strict liability among partners, had very good, strong incentives for the owners and staff of banks to behave well. I am grateful to the hon. Members who are nodding in agreement.
Of course, we have come a long way since then, and we are not about to go back to free banking, much as I would wish us to. I shall quote an actuary, whom I do not wish to name, who talked about his work:
“I have examined around 100 individual cases, all of which had the same negative qualities. It is a case of bank salesmen deliberately withholding key information about the risks embedded in the ‘hedging’ products they sell. The term ‘hedging’ is therefore itself misleading.
Overall, the process is disgusting. Banks sold derivative products on top of loans to their clients which those banks knew would render them less creditworthy at the point of sale, and therefore render the business more likely to fail. How this can be described as ‘hedging’ by any financial organisation with a scrap of integrity is beyond me.”
I agree. The actuary went on to say:
“This misleading use of language, unfortunately, is maintained by some of the ‘experts’, some of whom charge large fees for reports to take into the courts. If these reports miss out on key risks, the cases become far weaker, possibly to the point that the case fails. At the best, the bargaining power of victims is much reduced.”
I want to pick up on that experience, because my second point is about the cost and accessibility of the courts system. This points to why our debate is so important. I am sure that the hon. Member for East Lothian has, like me, heard evidence in constituency casework and from the authorities showing that the system that was set up was not adequate to the task in hand. Indeed, I am sure many Members will have constituents whose businesses have been in grave difficulty, and whose lives have been affected, who found that the system failed them.
However well intentioned the authorities were in setting up the system, it has not worked well. We need to find some middle ground between the courts, which are too expensive, complex and require expert evidence—often either unavailable or too expensive to purchase at quality—and the failed semi-formal system. The court system, its inadequacies and the necessity of avoiding it is an old problem—Matthew 5:25 refers to it—and the Government have quite some task ahead of them if they are to deal with this matter.
As for complexity, even Treasury Committee members, who have been elected by the House to deal with such issues, have found derivatives fabulously complex and difficult to follow. If that is true of those of us who are charged with developing the expertise, it will no doubt be true of the small business people who buy the products. To ensure that similar problems do not reoccur, the Government may want to consider whether small businesses —limits on size is something else to consider—ought to be treated as consumers for regulatory purposes.
I am glad that we are interested in a tribunal system funded by the banks, and that we are open-minded. Although my hon. Friend the Member for Henley (John Howell) is not in his place, I am grateful that he will be working with the APPG to take things forward. Finally, I again congratulate the hon. Member for East Lothian. I look forward to making progress, and to hearing what my hon. Friend the Economic Secretary to the Treasury has to say.
Philip Boswell (Coatbridge, Chryston and Bellshill) (SNP)
I thank my hon. Friend the Member for East Lothian (George Kerevan) for securing this important debate. As others have rightly pointed out, those most negatively affected by the absence of a financial dispute resolution platform are largely small and medium-sized enterprises. The importance of such businesses to our general economic wellbeing cannot be emphasised enough. Some 67% of all UK workers are employed by small and medium-sized enterprises, which are not protected by the Financial Ombudsman Service. That figure amounts to 17 million employees, or over half the UK’s workforce. As such, it is important to recognise when discussing such businesses, which are at risk of going under owing to the burden of financial disputes, that it is not only the business owners who are at risk: the employees and their families will also feel the knock-on effects.
These vital small businesses face numerous structural challenges not faced by larger businesses. They have far fewer resources, meaning not only finances, but time, labour and information. In addition, they often have far less experience to draw upon than larger, more established businesses. The structural challenges mean that there is a substantial imbalance when SMEs get into financial disputes with large businesses or large banking institutions. The larger party involved in such disputes is inherently at an advantage, both in the context of a dispute resolution outwith the legal system and within the court system.
For small businesses that come into dispute with a financial institution, the first step is to submit a complaint to the institution’s internal complaint procedure, but many SMEs are fearful of even taking that first step. Unfortunately, it is unsurprising that SMEs feel sufficiently intimidated by financial institutions not to submit a complaint when they feel unfairly treated. According to statistics from the Bank of England, total lending from UK banks to other banks has more than quadrupled since 1990. However, lending from UK banks to businesses involved in production has remained stagnant. In addition, the Basel III international capital adequacy regulations, introduced in the wake of the financial crisis, have made lending to SMEs more expensive, further incentivising banks to lend to other banks, rather than to SMEs.
Just last week, I was approached by a small business from my constituency that has developed an innovative new technology that recycles waste and creates clean energy while minimising emissions. It reached out to me because it has struggled to obtain sufficient funding to move forward with the project, despite having built a test facility. That is just one example, but it demonstrates the degree to which small businesses struggle to obtain financing and credit. It is no wonder that many small businesses do not want to submit complaints to a financial institution. With so little credit available to SMEs, it is more than understandable that they want to protect their access to a limited available line of credit, even if it means being treated unfairly.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
The hon. Gentleman is making an important point, highlighting that the UK’s highly centralised banking model is broken. In addition to considering dispute resolution and firmer protections for businesses, we should look at an alternative banking structure based on community banks, under which banks are ingrained in their communities and know their local businesses.
Philip Boswell
I wholeheartedly agree with that excellent point.
As mentioned in today’s motion, the Financial Conduct Authority has set up several ad hoc schemes to address systemic misconduct by financial institutions. The schemes have been widely criticised, and, as others have mentioned, even Andrew Bailey, the new chief executive of the FCA, has said that they have left those affected by bank misconduct feeling unfairly treated. The recent review of the mis-selling of interest rate hedging products demonstrates the shortfall of the ad-hoc compensation schemes and their inability to reach fair outcomes for customers.
Last year, just before Christmas, I was approached by a constituent who had been mis-sold an interest rate hedging product. In 2001, my constituent and several co-investors used their retirement savings to create a small business that would purchase commercial property in Glasgow. However, they had insufficient capital to purchase their first property outright and therefore sought a loan from a bank. Despite the banks involved with the mis-selling claiming that customers were under no pressure to purchase the product, my constituent informed me that he could not find a single bank that would lend the money without including the interest rate hedging product. My constituent was told that this was to protect the customer in the event of interest rates continuing to rise. Having no other choice, my constituent’s business took out a 25-year loan that included the aforementioned product.
Many in the Chamber will be aware that interest rates fell during the financial crisis. The inclusion of the product in the loan resulted in my constituent’s business—set up on pension scheme earnings—owing £30,000 per quarter in interest alone during the biggest financial crisis in modern history. When it became apparent to my constituent that his business had been mis-sold the product, he began the complaints process in the hope of receiving some sort of compensation. However, the bank with which he took out the loan continually refused to provide him with the relevant paperwork for the loan, making it difficult for my constituent to continue the process.
George Kerevan
Does my hon. Friend agree that a fundamental problem with the current ad hoc redress system is that it does not allow the complainant access to the information they need? A tribunal system would put the complainant and the bank on an equal footing and allow that information to be made available.
Philip Boswell
I entirely agree. Such a practice is entirely undesirable and not befitting of any bank, particularly one in public ownership, as has been mentioned before.
The delay and avoidance tactics used by the bank, combined with the FCA’s own recommendation that claimants should not take legal action, meant that my constituent's case surpassed the six-year time limit on taking court action. His business did not receive any compensation from the bank as a result of the ad hoc scheme overseen by the FCA. Unfortunately, my constituent’s experience is far from rare, as many Members have shown. The compensation scheme for the mis-selling of interest rate hedging products was bank-centric and lacked sufficient FCA oversight. The review was set up in conjunction with the banks and allowed them to make redress offers that did not reflect an objectively fair outcome. The case of my constituent and the experiences of others who have been treated unfairly by banks clearly demonstrate the wide scope of financial disputes, particularly those between small businesses and financial institutions.
After hearing about the experiences of constituents from across the UK shared by Members today, it is apparent the ad hoc schemes set up by the FCA have lacked sufficient clarity and that the creation of a commercial financial dispute resolution platform is necessary. I am happy to support the motion presented by my hon. Friend, and I welcome the support that has been expressed in the House today.
Mr Mark Williams (Ceredigion) (LD)
It is a privilege to be able to speak to this motion. First, may I congratulate the hon. Member for East Lothian (George Kerevan) not only on initiating this debate on our behalf, but on his leadership of the all-party group for fair business banking, of which I am a vice-chair? I also wish to pay tribute to the former chair of the group, the hon. Member for Aberconwy (Guto Bebb), who helped us to set up the “bully banks” all-party group, as it was then, some years ago. Let me read out what he said when we debated these things earlier this year. He said that the FCA
“must work with integrity and be independent to deliver in the interests of a healthy financial marketplace.”—[Official Report, 1 February 2016; Vol. 605, c. 715.]
The sad reality for many of my constituents, in a constituency targeted for the selling of interest rate swaps—adverts were taken out in the local newspaper, and at one point we had more than 20 cases of mis-selling of hidden and embedded interest rate swap products—is that they lack confidence in the FCA, based on their experience; the respect and confidence that they should have have dissipated.
As we have heard, the ad-hoc scheme set up by the FCA for interest rate hedging product mis-selling has never had the authority or impartiality that it should have as a model for redress, as was acknowledged by Andrew Bailey in a very welcome admission before the Treasury Committee. The fact that he acknowledges this problem indicates—we hope—that he understands there needs to be reform, and we have heard positive comments from my hon. Friend the Member for East Lothian—he is my hon. Friend for these purposes—and from the hon. Member for Henley (John Howell).
The ad-hoc scheme was fundamentally flawed, not just because it was bank-centric and the FCA oversight was not rigorous enough, but because those SMEs that had embedded or hidden swaps were excluded from it. As has been said many times in this place, when the impact of an embedded swap is the same as the impact of a separate hedging product taken out with a loan, it is difficult to argue that the small businesses that were sold those products should be excluded from the scheme—but they were excluded from the scheme and they were denied justice.
Business and commercial banking is an unregulated activity in the UK, and those of us who have been following these matters know that businesses do not have the same level of protection as consumers do. That point was made by the right hon. Member for Delyn (Mr Hanson). Nor do they have recourse to a timely dispute resolution mechanism—the key word there is “timely”. As we have also heard, banks have deep pockets and recourse to civil litigation is unaffordable for most SMEs—certainly those I represent. Ceredigion has more small businesses per head of population than anywhere else in the UK. Those businesses and those people do not have those kinds of resources, so what do they do? First, when a business has a complaint against its bank, it has to rely on its lender’s internal complaints procedure. Time and time again, I have seen constituents deliberately hung out to dry by their banks, pushed into the long grass, in the hope that the issue would disappear or the constituents would give up. In all too many of those cases, businesses went under as a consequence of that prevarication.
Today, I want to raise the case of my constituent Mansel Beechey, a well-known publican in Aberystwyth and a customer of the Clydesdale bank, whose case regarding the mis-sale of an unregulated interest rate hedging product I have mentioned many times. We have had four or five of these debates over the past four years, and I have had to mention Mr Beechey’s case in every one, yet it remains unresolved. Mansel first formally complained to the Clydesdale bank in April 2012 through his solicitor and it took the bank six months to respond, which is clearly unacceptable. I wish to endorse the comment made by a Scottish National party Member about businesses that have been too frightened to pursue matters for fear of action being taken against them.
If an internal complaint fails—Mr Beechey had no confidence in the internal complaints mechanism—some SMEs can go to the Financial Ombudsman Service. Although the FOS is keen to explain that it will look at the facts, I am sad to say that I believe it has been selective in what it has looked at and has all too often examined evidence in isolation. I am sure it has done well in many disputes, such as those relating to payment protection insurance and payday lending, but my experience of the past four years has shown me that it has not had the expertise to deal with acutely complex cases.
For example, the ombudsman suggested that monthly payments under the redress scheme for my constituent would have been about £1,000 more than the actual fixed rate loan interest, which Mr Beechey says he could not afford. Yet the ombudsman insists that there was not a great difference between these payments, and his whole judgment hinges on this belief, which seems extraordinary. I am not a businessman—perhaps that is a good thing—but even I can grasp the fact that Mr Beechey’s pub business would need to take around eight times the amount of £1,000 through its till, which is about £ 96,000 per year or a third of the annual turnover of the pub. We need reassurance that those at the FOS are suitably qualified and experienced to understand how small businesses work.
Several constituents have cited timeliness as a problem with the FOS, which, sadly, seems to move at glacial speed. Some cases presented several years ago remain unresolved. What is very concerning is that when a final decision has eventually been reached in a case, it will never be overruled, even when that decision may be brought into question by new evidence or a change of approach in other comparable cases.
Another example to cite is the case of Mr Geraint Thomas of Bargoed farm in Llwyncelyn, a Lloyds bank customer of 53 years who was mis-sold a fixed-rate loan during the banking crisis. Mr Thomas was severely let down, with little understanding shown by his relationship manager at the bank of his financial situation, putting him and his business under great pressure. This started a long-standing complaint, which has required my intervention on several occasions, including phone calls to Lloyds officials. Eventually, a revised settlement offer was given by Lloyds, which Mr Thomas was under immense pressure to sign or he would lose out on it entirely; this came with the understanding that he would still be able to take his concerns to the FOS. However, since this period, the FOS has refused point-blank to look at the case, on the basis of the settlement he agreed with Lloyds bank, despite the fact that I had previously received assurance directly from Lloyds that his acceptance of the offer would not stand in the way of his complaint being taken to the FOS. It seems to have done exactly that.
We have heard about issues relating to subject access requests, a topic touched on a moment or two ago. Andy Keats of the Serious Banking Complaints Bureau has said:
“The bank relies on concealment of your central file, committee meeting reports and minutes, internal and external valuation of your property, loan documents and bank rules, etc.”
That is hardly a system of transparency to inspire confidence in the system. In the course of working for Mansel Beechey, we have made three subject access requests to both the Clydesdale bank and the FOS. He found that in simultaneous requests to both organisations, new information kept on coming. I have seen different transcripts of telephone conversations, three different credit reports and three different sets of credit figures. Things seem to have been changed by the stroke of a pen. Again, that is not a way to inspire my constituents’ confidence, and I seriously question the level of transparency and disclosure in his case and, no doubt, in others.
I could go on at length, Madam Deputy Speaker, but I am not allowed to. I apologise for the detail of some of what I have said, but it shows the practicalities of the cases we have taken on behalf of our constituents. Let me just end by making a plea for a level playing field. The system, whether we call it ad hoc or something else, seems to have been stacked firmly in favour of the banks. Our constituents—the small businesses of Ceredigion and elsewhere—deserve a fair chance. That is why I hope that some of the suggestions made by the all-party group will be taken forward, in the weeks and months—not years—ahead.
Several hon. Members rose—
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. If everyone who wishes to speak takes approximately seven minutes, everyone will get a chance. If they do not, some people might not get to speak, and that would not be fair.
Anna Turley (Redcar) (Lab/Co-op)
It is a pleasure to follow the hon. Member for Ceredigion (Mr Williams), who not only made a very articulate case on behalf of his constituents, but exposed the vacuum at the heart of the regulatory framework to support small businesses. I appreciated everything he had to say. I also congratulate all hon. Members who secured this important and timely debate, which, as we have heard, has real resonance in the life experiences of our constituents. That is why I am very happy to support the motion, and I wish to say something on behalf of one of my constituents who has been affected by this. I also give credit to the work that the Treasury Committee and the all-party group on fair business banking have done to give this issue the prominence it deserves.
I do not rise to speak on the minutiae of financial regulation, as I am sure you will be delighted to hear, Madam Deputy Speaker. Instead, I ask the House to consider the human stories of those denied fair outcomes in their financial disputes and those who have had to accept the current lacklustre compensatory measures. This debate is about the consumer and the customer and their right to meaningful redress when things go wrong. It is right that this House takes an interest in these matters, just as it is right that the FCA was established by an Act of Parliament. This House has an obligation to monitor the regulatory environment to ensure that our constituents are adequately protected when they bank, save, borrow and spend.
My constituent, Stephen Lilley, who runs his own business knows the devastating personal and economic effect that bad financial regulation can have. He was mis-sold an interest rate hedging product, which has left his business in considerable financial difficulty. The product was sold to him deceptively by HSBC, and included a base rate swap that was put in place to protect his business from rising interest rates, but without any explanation that should rates fall—and they certainly did—his business would not benefit. The result has left his business in a perilous state. He was let down by HSBC, which mis-sold him the product. He was initially let down by the Financial Ombudsman Service, which rejected his complaint twice until it decided that the swap product had indeed been mis-sold. He was also let down by the FCA and the flawed redress scheme for mis-sold IRHPs, which did not deliver the sort of financial compensation that would get his business back on track.
Mr Lilley and his family have endured sleepless nights and stress. Both he and his wife have had heart attacks in recent years, and have been wracked with worry over the future of their business. They feel powerless and that the bank has a hold over their lives. When HSBC admitted that it had mis-sold a product to Mr Lilley, it said that it had made a mistake in the length of the interest rate cap it had in place. It should have been five years, but instead it was 10. The bank said that Mr Lilley could have the difference returned to him if he accepted a cap at five years. It is very difficult for me to see how that can be right. How is it that, after clear negligence, the bank can continue to hold all the cards, and the customer none? Mr Lilley put it in stronger words to me: he said that the proposal amounted to theft.
This story is repeated all over the country, and we have heard some examples in the debate. Everyone in this House today will have constituents who have suffered similar circumstances—people who want to do the right thing, who have poured every spare penny they have into their businesses, and who have looked to their bank to secure a financial plan for that business. When things went wrong, the bank, the regulator and the ombudsman let them down. The best way that we can serve our constituents and ensure that cases such as Mr Lilley’s do not happen again is to support the motion, which I welcome.
The people who need a proper platform for the resolution of disputes of this nature are ordinary individuals and small and medium-sized businesses—exactly those whom the Government say they are determined to support. This House also has a proud history of acting to protect the wellbeing of citizens of this country, of which the Health and Safety at Work etc. Act 1974 is a case in point. That Act outlines the duties of employers to take measures, where reasonable, to ensure that persons not in their employment who may be affected by their activities are not exposed to risks to their health and safety.
I do not need to outline the devastating physical and mental health effects that are brought about by chronic worry and anxiety about a business that someone has spent their life building up. The impact on the health and wellbeing of my constituent and his family are clear. Our financial regulatory system has a moral duty to regulate as much as an economic one, and it is the lives of our constituents, and the worry that they bear, which is the test against which it should be measured. That is why I am proud today to support the creation of a proper authority to solve these disputes and why I am happy to support this motion.
Norman Lamb (North Norfolk) (LD)
I am very pleased to support this motion, and I congratulate the hon. Member for East Lothian (George Kerevan) on bringing this vital issue to the attention of Parliament.
There is a very clear gap in the framework of protection which needs to be addressed. This amounts to a significant injustice for very many people, and it would be intolerable if that injustice was allowed to go unchallenged. There is a need, clearly, for an effective and timely dispute resolution mechanism. As the hon. Gentleman said, central to any process of delivering justice must be full disclosure. Unless a person has access to all the information, they cannot properly bring their case and achieve justice. It must be a mechanism that is there for both regulated and unregulated financial contracts. The abuse of a proper process incentivises bad behaviour. If the banks know that there is no proper mechanism in place to achieve justice, they are encouraged to behave badly and to engage in sharp practice.
At the heart of current concerns is the Global Restructuring Group, which was set up by RBS. The stated intention was to put companies into intensive care to turn them around and to restructure their debts if necessary, but many small firms accuse the bank of deliberately forcing companies into distress, as the right hon. Member for Delyn (Mr Hanson) said, so that RBS can strip their assets and profit from their failure. That allegation in itself is akin to theft. On top of that, there is the serious allegation that there was a misuse of public money through the Government’s enterprise finance guarantee scheme. Lawrence Tomlinson, the former adviser to the Department for Business, Innovation and Skills, said:
“My fundamental concern is around what businesses were told before being brought into GRG and whether this reflected the true purpose of the division. Many businesses believed that they were in GRG to be helped, when it fact it appears to have been an exercise in restructuring the bank’s balance street, often in conflict with the best interests of that business.”
That is really serious. When he was in front of the Treasury Committee, he referred to
“unnecessarily engineering businesses into default in order to move the business from local relationship management to turnaround divisions such as GRG.”
He alleged that the purpose was to generate revenue through
“fees, increased margins and devalued assets.”
That is scandalous. They are incredibly serious allegations that must be properly addressed by the Financial Conduct Authority. It seems blindingly obvious that there must be an effective process for delivering justice.
I want to touch on the human cost. We have heard about owners of small businesses who have lost everything that they have worked for. They are in exactly the same position as any private consumer who has recourse to justice, but these people do not achieve justice. Just imagine what it is like for someone who has lost everything due to the sharp practice of a bank, but who cannot achieve any justice. It destroys people. It is impossible for them to move on. It is incumbent on this House and this Government to ensure that the matter is properly addressed.
I also wish to address the wellbeing of whistleblowers. I have a constituent, who wishes to remain nameless, who was a highly successful former employee of RBS and who raised concerns repeatedly over a sustained period about improper practice within RBS. It destroyed his health. He ended up leaving on agreed terms simply to end the nightmare that he was going through, but his concerns were not diminished in any way. The whole saga has destroyed this man’s life. He cannot move on, and he has been met by a brick wall. I have written on his behalf to RBS and, on five occasions, I have asked for meetings. I have written to Stephen Hester, Ross McEwan, Baroness Noakes and Sir Howard Davies, and on every occasion my reasonable requests for meetings have been turned down. They hide behind the compromise agreement reached with this man to say that they are not prepared to engage with him at all any further. It seems to be an arrogant and cavalier way to treat a former, highly successful employee. They have a total disregard for the impact on this man’s health.
My constituent’s conclusion is that it is not safe to blow the whistle. We should be celebrating whistleblowers; they risk everything to expose wrongdoing. They expose awful things that happen in our major financial institutions and they should be protected. I am horrified by the shameful treatment of this man.
George Kerevan
It may help the right hon. Gentleman if I tell him this: RBS has told me that the adjudicator in its new redress system, Sir William Blackburne, will have “unfettered access” to all the bank records in the cases that are brought up. The right hon. Gentleman might want to use that in his future dealings with the bank.
Norman Lamb
I am grateful to the hon. Gentleman for that suggestion. The FCA needs to take decisive action to provide justice to business owners who lost everything, establish an ongoing mechanism that is available for future cases of misconduct, and provide protection for whistleblowers destroyed by arrogant, dismissive behaviour by a bank owned by the taxpayer—that is the scandal. The need for justice is overwhelming and it is incumbent on the Government to respond properly to this call.
Michelle Thomson (Edinburgh West) (Ind)
I made a speech in this place on 1 February 2016 on the FCA compensation scheme for interest rate hedging products. I argued then that that scheme was ill thought out and provided no effective redress for businesses that had been made insolvent. To be honest, I was almost tempted to re-read my previous speech because here we are again, although I would have included the new numbers. Whereas in the case of the IRHP scheme 10% of its complainants were insolvent, in the case of RBS Global Restructuring Group that figure is upwards of 75%, with some estimates as high as 94%, yet fundamentally nothing has changed because RBS has already confirmed that it will not deal with the business owners who have lost their livelihood. The too little, too late apology from the chief executive of RBS, Ross McEwan, is not good enough.
Thanks to the excellent investigative journalism of BuzzFeed and the BBC, the so-called dash-for-cash articles make fascinating, yet harrowing reading. They clearly demonstrate a system that is well ordered and well structured in which the winner takes all. The so called victory emails that were sent to teams in GRG when West Register acquired an asset are a disgrace. That is quite telling because where there is a victor, there is always a loser.
I am grateful to Nick Stoop of Warwick Risk Management who applies the story of the “Komodo dragon” condition. The Komodo dragon lies in wait at a watering hole where it nips the foot of its prey. The prey escapes, apparently not seriously harmed, but the bite is toxic and the dragon knows that its target will eventually weaken and die. So it is with RBS swaps and GRG. The swaps salesman lands the toxic bite. GRG and West Register then get to tear the client to pieces.
I concur with Members who spoke about what that means for those people. We can never forget that people are at the heart of what we are trying to do here. Remember what they may have lost—their family home, their business, their livelihood, their future livelihood if they planned for their children to go into the business, their dignity, their pride and often their very self-definition. We know that wider society loses—the wider community, other local businesses that depend on the failed business, its supply chain, creditors, Her Majesty’s Revenue and Customs and local authorities. My hon. Friend the Member for East Lothian (George Kerevan) pointed out the potential emotional impact on individuals who, for years, have to dig deep for resilience and strength, but very often end up with mental health issues or develop physical illnesses. Let us never forget that people have committed suicide as a result of the actions of some of our banks.
When did we sign up to this? When did we sign up to a taxpayer-owned bank pillaging the assets of our SMEs—the so-called life blood of our economy—or creating a system where victory emails are sent when another department of the same bank asset-strips? We have to ask whether abuses such as those at RBS could have taken place if we had a system where a business owner could simply be heard. I concur again with my hon. Friend that it is a contract between unequals when somebody who has been declared sequestrated or insolvent cannot take on a bank.
Michelle Thomson
I thank the hon. Gentleman for that compliment.
Finally, I want to address the topic of culture. We need to recall that it is the underlying culture of institutions that has enabled this to happen. We know that we have come from a driven, bottom-line culture, but we must make our banking system—our whole financial system—work for us and for our society. I fear that we have lost sight of that over recent years. I agree that we need a tribunal, but we also need an effective process so that precedent can be set and learned from, and so that behaviour is changed and abuses do not happen in the first place. We have seen that happen with other tribunal systems.
I thank the APPG for its support in driving this campaign and Andrew Bailey of the FCA who endorsed the idea. It is time to get started.
Kirsten Oswald (East Renfrewshire) (SNP)
I congratulate my hon. Friend the Member for East Lothian (George Kerevan) on securing this timely debate.
A key issue that we need to address is how we end the conveyor belt of actions by financial services companies that generate disputes. Far too often, the perpetrators seem to be left to continue as before, so if we are to address the issue, we need to improve performance right across the sector. I was pleased that the debate was sparked by comments from Andrew Bailey, the new chief executive of the FCA. I sincerely hope he will follow through on the interest he has expressed in changing how we deal with these issues.
From the cases that I have encountered, it is clear that the current ad hoc approach is not working. As we have heard eloquently expressed today, why should those who blow the whistle on wrongdoing end up losing out, not just through the actions of their peers, but through the actions, or inaction, of the regulator? From my surgeries and caseload, I am well aware of concern at the actions of RBS and other lenders. Some constituents have experience of banks tilting the balance of risk too far in their own favour. I am particularly concerned to hear of banks forcing customers to use their home to underpin commercial loans in order to avoid being pushed into administration.
I want to highlight two constituency cases of concern. The first goes to the heart of the basic service provided by the banks—safeguarding our money and paying it out only when authorised to do so. A young constituent, Calum Cheshire, has had a bank account with RBS since he was 12 years old and, as a student, he worked to build up some funds. In July 2015 he was shocked when his bank statement told him that someone had withdrawn £550 from a branch in the east of Scotland on a Saturday when he was at home in the west of Scotland. To cut a long and painful experience short, Mr Cheshire has been seriously let down. RBS disregarded the FCA-defined rules for such circumstances. Not only has it effectively accused its customer of fraud, but it has rewritten his evidence to suit its narrative.
According to the bank’s defence, it appears that the usual way to commit fraud using the bank’s branch network is to walk into a branch that one has never used, produce proof of identity that does not include a bankcard, and ask to clear one’s account—a most unlikely scenario, but one that was parroted back to Mr Cheshire by the Financial Ombudsman Service as a reason for refusing to order the return of his money. Despite vast sums spent to have the FCA write a regulatory framework and the FOS to keep financial service disputes out of the courts, Mr Cheshire is now forced to resort to the small claims court to secure the redress that has been denied him to date. I issue a challenge to RBS management—please don’t throw an expensive city lawyer at this case and price it out of Mr Cheshire’s reach.
The relevance of this case to the current debate is what it says about the quality of decision making in resolving financial services disputes. If we are to keep cases out of courts, let us, as my hon. Friend the Member for East Lothian said, abandon some of the complex rules and procedures, but let us not abandon the requirement to apply rules fairly and to use the fullest evidence.
In looking at how we resolve commercial disputes, I suggest we look very carefully at the role of the Complaints Commissioner. This office receives too little attention, despite providing an external check on the quality of decision making in dispute resolution.
I am privileged to chair the all-party group on the Connaught Income Fund. Members may recall that the collapse of that fund saw the disappearance of over £100 million subscribed by investors at an average of £70,000 a head. Many of those investors, including my constituents, were making provision for their pension, attracted by a promised long-term investment, a good rate of return and limited risk. Unfortunately, the history of regulatory failure in relation to the Connaught Fund bears many similarities to that of the RBS Global Restructuring Group. The integrity of the Connaught offer was underscored by the involvement of major companies in the financial services sector. The initial operator of the fund, part of the Capita Group, holds major contracts with central and local government across the UK, was regulated by the FSA, and is regulated today by the FCA.
The Connaught fund collapsed in 2012. Yet, nearly five years later, investors still wait to hear what really happened to their cash. Who walked away with it? Why were they allowed to do so? When we follow a trail set for us by one of the largest companies in the UK, which must pass public sector due diligence tests weekly, we do not expect our funds to just disappear.
In the absence of answers from the FCA, those affected are turning to the Complaints Commissioner for answers. The commissioner recently released his findings regarding a complaint by George Patellis. In 2011, as the newly appointed chief executive of the company making investments on behalf of the Connaught fund, he reported to the FSA what he considered a systematic defrauding of the fund. This was an act of genuine integrity from a senior figure in the financial services sector, and the response by the regulator then and now should gravely worry all Members of this House, and particularly the Treasury. The finding issued by the commissioner describes the FSA’s response as unco-ordinated and fragmented, and condemns it for failing to prevent continuing detriment to investors.
I had the opportunity to discuss this, when I met Andrew Bailey recently. I highlighted my concern that there was a danger the FCA would be damaged by its handling of legacy cases such as Connaught, and the same may be said of the Global Restructuring Group issue. I was therefore disappointed to see the FCA’s response to the commissioner’s findings. He recommended that Mr Patellis receive a public apology. Instead, the FCA chose to issue a private letter of apology. Not surprisingly, Mr Patellis described that as “beyond disappointing”, and reiterated many of the failures of regulation by the FSA and FCA since he first blew the whistle on what he strongly believes was a process of fraud and misappropriation of funds. For the benefit of other Members, I am happy to lodge the Complaints Commissioner’s findings and the correspondence between the FCA and Mr Patellis in the Library.
The Complaints Commissioner refers to an internal assessment by the FCA that confirms the FSA delayed reporting this alleged fraud to the police for approximately 18 months. I would welcome a reassurance from Treasury Ministers that this assessment has been shared with them.
So, whether we are looking at the operation of financial services companies as payment services providers, investment managers or commercial lenders, we must expect integrity. It is not yet clear that the FCA is upholding that standard any more now than was the case under the FSA regime so comprehensively criticised by the Complaints Commissioner. That is the challenge facing Mr Bailey and his team as we head towards 2017. Our challenge here is to make sure that that integrity is delivered on.
Callum McCaig (Aberdeen South) (SNP)
I congratulate my hon. Friend the Member for East Lothian (George Kerevan) on his choice of tie and on securing this debate—we are wearing remarkably similar ties today, although I am not sure whether that says more about him or me.
This is a really important debate, and there are two aspects to it. First there is looking back at some of the truly appalling practices carried out on behalf of banks, and secondly there is the forward-looking aspect of making sure that these mistakes are never repeated. I do not believe that the solutions that have been put forward will do that adequately.
Banking is clearly a cornerstone of our economy. The central role that it plays has been built on trust—businesses’ trust that their bank will deal with them responsibly, but also that the Government and the financial system will protect them if that relationship, for whatever reason, breaks down. That system may work for a large conglomerate—a major employer with the ability to go toe to toe with the banks in terms of litigation, affording lawyers and so on. However, for small or medium-sized enterprises, that relationship is skewed, and they stand to lose out because they cannot meet the might of the banks.
Let me just put that into perspective. I am sure that these numbers will not come as a surprise to anyone, but small and medium-sized enterprises account for 47% of turnover and 60% of employment in the private sector. That is a huge part of our economy, and one we must all be cognisant of, and we must provide the protection it requires.
How do we go about rebuilding the trust that has been lost? We have heard that the problem stretches across the length and breadth of the country and that different banks and sectors have been affected by malpractice. Will ad hoc arrangements address the problem? I do not believe they will, because the problem is not ad hoc; in large part, it is systemic, and we do not solve systemic problems with ad hoc fixes.
There is a temptation in this place, and in all walks of life, to find the simplest solution possible. In this case, that will not cut the mustard; we need to find a proper solution, and my hon. Friend’s suggestion of a commercial financial dispute resolution platform, whether that is a tribunal or something else, is a key part of doing that.
Like other hon. Members, I have constituents who have had issues in this respect, particularly with RBS and its Global Restructuring Group. While I have been sitting in the Chamber, a constituent—I do not feel comfortable naming them, and they have asked me not to—has messaged me about this. He said that, in the dealings his lawyer has had with RBS, the bank’s lawyers have said that these things are water off a duck’s back and that a bit of bad publicity now will not change how it operates. If that is the case, it suggests that, even when we have ad hoc solutions in place, they do not solve the ad hoc problems. That adds to the compulsion on us to find that systemic solution.
Hannah Bardell (Livingston) (SNP)
Perhaps I could name one of my constituents, Archie Meikle, of Ashwood Homes, who has given me permission to do so. I have fought on his behalf for over six months, and we have been waiting for responses from RBS after he was forced into the GRG. Does my hon. Friend agree that the only way we can solve these problems and grow our economy is by making sure that our businesses are protected from programmes such as these, which are being pursued by the banks?
Callum McCaig
Unsurprisingly, I agree wholeheartedly. The importance of economic growth is tied into this. There are individual consequences to issues like these, but there are also whole-system economic problems that come from them.
Aberdeen is going through a difficult economic time as we speak, although I think we are beginning to see green shoots of recovery. However, we have not seen the problems associated with the previous financial downturn, and we may be in a beneficial situation. However, there is no systemic solution, and just because we do not have a problem now, that does not mean that there will not be problems in the future. The economic problem in Aberdeen has been particularly localised, but if it were to be repeated on a national level, the mistakes of the past could well creep back in. As the UK moves towards leaving the European Union, there is the risk of greater pressure on our financial and business systems, and the temptation may come back for banks to use the opportunity to make money on the backs of others. It is therefore incredibly pressing that we get this right.
The benefits of this proposal would be manifold. Rather than huge crises that we need to solve, we would have early intervention, and we would have parity between banks and companies, so that they could identify and solve problems early, without the need for massive recompense, as has been the case.
We have heard from many hon. Members today that it is very difficult to put a figure on the cost to business. It is even more difficult to calculate the cost to the economy of lost growth as a result of these problems. But let us come back to the human cost, which a number of Members have mentioned: the hours of grief, the hours of anguish and, in certain cases, as the hon. Member for Edinburgh West (Michelle Thomson) mentioned, the lives that have been lost. That is the problem, and we can do something about it: we can protect our businesses. We can ensure best practice, and above all, we can ensure that the mistakes of the past are never repeated.
Roger Mullin (Kirkcaldy and Cowdenbeath) (SNP)
I shall be mercifully brief. I am afraid I have a slight throat infection, so I am forced into brevity against my better judgment.
I would like to address just one area: culture. Many outstanding speeches have gone into lots of detail on the way in which people have been crucified by the banks through the mis-selling of products that were entirely unsuitable—that were not transparent and simply existed, at the end of the day, to allow people to asset-strip perfectly good businesses in our society. I have a number of constituents who have been affected. I will not go into great detail on them because, like those of my hon. Friend the Member for Aberdeen South (Callum McCaig), they do not particularly want to be named, and I fear that if I give too many details, others might find out who they are. One of them was a victim of Clydesdale bank, then National Australia Bank, and then the utterly appalling Cerberus. They have, as he put it, stolen his assets and put him completely out of business—a family business—creating problems not just for him but for his entire family. Another businessman said to me of the Clydesdale bank-NAB-Cerberus lot: “They have destroyed a business, and the mafia couldn’t have bettered the way in which they did it.”
A business close to the boundary of my constituency was promised in statements by Ross McEwan of RBS that proper mechanisms would put in place, and that there would be proper resolution, so that it would get back fees that were unsustainable and quite ridiculous. It then found that what RBS did not state was that it was surrounding this with such difficult conditions that this medium-sized business in central Scotland is unable to get back a penny of—would you believe?— £1.8 million in fees that RBS is imposing on it.
At the heart of this is a cultural problem of a particular sort. It is fundamentally about a complete lack of ethics in the banking sector in relation to businesses, including small businesses. Broadly speaking, there are two major ways in which one can look at ethics. The first is the so-called ontological approach—looking at the processes along the way. Were those processes properly transparent, and was the information properly provided, so that along the route, before one sees an outcome, it can be expected that banks operate ethically? Banks have demonstrably failed on those measures, so from the ontological point of view, they fail the test of operating ethically.
Of more interest to me from an ethical standpoint is the so-called consequentialist view—looking at the outcomes of the banks’ behaviour. Judged on that basis, they have demonstrably completely failed this community—small and medium-sized businesses in this country—and society as a whole. We can look at this from the point of view of medical ethics. The medical profession says that one should operate on the principle of non-maleficence; basically, one has an obligation not to inflict harm intentionally. If ever there was a case of operating to inflict harm intentionally, in order to gain from the destruction of businesses, it is the way in which many of these banks have been operating. We need to get action on this.
I support the motion, but there are two additional things that I would like to see. First, there should be imposed on the entire banking sector a proper and rigorous duty of care towards its customers. Unless we get a duty of care, the banks will continue to have an easy path towards ignoring the rights of individuals and businesses, and potentially continuing to destroy them for their own gain. Secondly, there should be far greater strengthening of support for whistleblowers in the banking community. The Government should contemplate putting in such severe penalties against financial institutions that they are deterred from blackmailing and harassing people who are doing society a favour, because, so often, it is the whistleblower who suffers, rather than the perpetrator of the crime.
Richard Arkless (Dumfries and Galloway) (SNP)
I add my thanks to my hon. Friend the Member for East Lothian (George Kerevan) for securing this very important debate, which has caused a number of Members to be contacted by constituents who own small businesses and have been fleeced and mis-sold the most awful and inappropriate hedging products, leading not only to economic disaster but, as many have said, mental health problems; there have also been other effects on health and wellbeing. My hon. Friend made an excellent speech, as always. He set the tone of the debate perfectly by saying that this is a time to move beyond individual cases. Clearly, we all have these cases, but he meant that we need to look beyond discussing them and see whether we can come to some form of permanent solution.
Calum Kerr (Berwickshire, Roxburgh and Selkirk) (SNP)
I commend my hon. Friends for turning up in numbers. I am sure that everybody across the House has constituents deeply impacted by this, and it is disappointing, despite Christmas and all, that the House is so poorly attended. Will my hon. Friend join me in praising the work of Richard Samuel, who back in May, when we first looked at this idea, drew the parallel that we have been discussing? Will he commend my hon. Friends for bringing forward—I hope that the Government will see this for what it is—proactive suggestions as to how we improve things? Yes, we rage against the system, but we are trying to be proactive and work with the Government to improve the world for small businesses.
Richard Arkless
I entirely agree. My hon. Friend puts his point passionately and very well. It is time for mourning to stop and for solutions to be found.
My hon. Friend the Member for East Lothian made an incredibly important point about the link between low productivity levels in the UK and the threat and the pressure that small and medium-sized enterprises have been under, particularly since 2007-08. There is no smoke without fire. I am convinced, having listened to him, of the causal link between the problems that we are discussing and low productivity of SMEs.
I was particularly struck by my hon. Friend’s comments about arrangements between solicitors’ practices and large banks. I declare an interest of sorts, in that I was a practising solicitor who was seconded to a large financial services organisation. How it works is very peculiar. I was given to the bank for free by my firm, and the bank created a so-called value account. My salary was set into this value account, which triggered work for my firm. We can see the problem that SMEs have in trying to find highly reputable, highly skilled corporate lawyers; they are all working for firms that have these links with the banks. These firms do not bite the hand that feeds them; they need this work. That is another manifestation of the complete inequality of arms between SMEs and large financial services organisations. My hon. Friend was right to say that banks’ terms and conditions—the secret terms of the contract—have evolved over the years, further exacerbating the inequality of arms.
My colleague on the Justice Committee, the hon. Member for Henley (John Howell), made a very interesting point—I was grateful to him for taking my intervention—about alternative dispute resolution clauses in contracts. While I would clearly welcome ADR clauses in all these types of commercial contracts, I am slightly confused, because I have never seen them in the case of these hedging products. As to asking banks to incorporate these clauses voluntarily, it stands to reason that the commercial risk will drive whether they are included. We are talking about risky derivatives. Have we ever seen ADR clauses in hedging product contracts? If not, I have no idea how we could persuade the banks to incorporate them voluntarily, given the risk.
John Howell
The point that I was trying to make was that it is not just the commercial circumstances that will force the inclusion of ADR clauses, but the way in which we make ADR known as a group of activities that can help.
Richard Arkless
In that sense I completely agree. The hon. Gentleman is right to point out that ADR, as a concept, exists; we are asking not for a new beast to be created, but for an ADR forum to be specifically linked to the contracts and disputes under discussion. However, I am cynical about banks’ motivation in putting the clauses in particularly risky contracts.
The right hon. Member for Delyn (Mr Hanson), who is also a colleague of mine on the Justice Committee, made a typically powerful speech in which he drilled home the perverse fact that the banks under discussion are in public ownership. Essentially, public funds are being used to push businesses against the wall and asset-strip them, which has consequences. It is very hard to accept that that is being funded by our taxpayers’ money. The right hon. Gentleman made that point extremely well.
The hon. Member for Wycombe (Mr Baker) touched on a stark irony when he referred to the old banking system in Scotland and the rest of the UK. I wholeheartedly agree with him that strict joint and several liability incentivised a good culture and good practice, but the pendulum has swung entirely in the other direction. I will come on to discuss the crux of the issue, which is banking culture, but he made that point well.
Hannah Bardell
On culture, a number of people dealt with my constituent over many months, and he felt that the culture being driven by the bank was not for the majority. We want to believe that most people who work in the banking sector are good people, but the culture being driven from the top of those organisations means that staff end up moving and are deeply dissatisfied at not being able to serve customers properly.
Richard Arkless
My hon. Friend will be unsurprised to hear that I completely agree with her. My experience is that, although many good people work in banks and we should not tar them all with the same brush, which we are inevitably tempted to do, banks see businesses and individuals in the retail sector as units to extract revenue from. Unless banking returns to being an ethical practice of looking after people’s interests, as opposed to extracting revenue, we will not make the vital cultural change necessary to sort out the issue.
I was particularly struck by what my hon. Friend the Member for Coatbridge, Chryston and Bellshill (Philip Boswell) said: even before a contention is raised, there is a reluctance to complain. Banks feel the inequality of arms before we even get to the courts or a dispute resolution system. I think that is a consequence of the public perception of the inequality of arms, and it has produced a fear factor. Clearly, an ADR system would go a long way to reducing that fear factor among SMEs.
That point was corroborated by the vice-chair of the all-party group on fair business banking, my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (Calum Kerr). He also made a good point about the Financial Ombudsman Service and inconsistencies in the adjudication of retail banking issues. During my time at a bank, I had many dealings with the FOS, and I assure Members that it was possible to put to it two cases with exactly the same facts and circumstances and get two completely different results.
The right hon. Member for North Norfolk (Norman Lamb) made an excellent and powerful speech, from which I took two points. The first was the effect on mental health and wellbeing, which is often forgotten about; we are not just talking about economic consequences. The second was whistleblowing, which was picked up by my hon. Friend the Member for Kirkcaldy and Cowdenbeath (Roger Mullin). The right hon. Member for North Norfolk will be pleased to hear that we intend to table two amendments to the Criminal Finance Bill. One will seek protection for whistleblowers, and the other will ask for a banking culture review. I would be grateful if he would consider them with his colleagues and perhaps support them in due course.
My hon. Friend the Member for Edinburgh West (Michelle Thomson) wowed this Chamber last week—I think that deserves a mention—and I do not think that any of us could have failed to be struck by her reference to the Komodo dragon. She attacked the underlying culture in banks and said how predatory they can be.
My hon. Friend the Member for East Renfrewshire (Kirsten Oswald) made an excellent speech. I was particularly struck by her example—not a commercial case, but a retail case—of an ordinary individual whom the bank are accusing of going to another branch with identification and withdrawing money. Surely the complaints process could look at the closed circuit television and the FOS could be more inquisitorial in assessing the case. I hope that that message will go out.
When I worked for a bank and a retail customer threatened to take a matter to the FOS, we were told very clearly that that incurred a cost to the bank. I forget the exact figure, but it was between £400 and £600. When it got to that point, a quick calculation was made, and if the case could be settled at less than £600, that was what happened and the bank was not dragged through the FOS. That just demonstrates that we are units to extract revenue from, and nothing more.
I agree with my hon. Friend the Member for Aberdeen South (Callum McCaig), who was the first to say that the ADR system in itself will not fix the entire problem. He was absolutely right to mention culture. On RBS’s approach, he was told that this was water off a duck’s back, and that is absolutely true: these are actuarial, commercial calculations. The human cost is completely negated. A calculation is made of liability and potential cost, and the bank will take whichever is lower.
That concludes my summary. If I missed out any colleagues, I apologise. I agree that it would be a good idea to ease access to justice for SMEs that have contentious issues with large banks. That would make it cheaper and easier, and it would certainly help to equalise the inequality of arms. However, whether a case is considered by the FOS, a small claims court, a fast-track court, the Supreme Court, the Court of Appeal or an ADR, it is the same case, with the same contract and the same terms and conditions, that will be considered from court to court, and if all those dispute resolution vehicles do their job, they ought to come to the same conclusion. Although that would be a welcome step, we need to go beyond that and look at the reasons the organisations were sold the products in the first place. That points to the culture perpetuated by the banks. If we can fix the culture and the over-aggressive mis-selling of products that businesses and retail customers simply do not understand, we will not end up in a situation where we need an ADR. Although I welcome the proposal, we need to change the culture in order to make a real difference.
Peter Dowd (Bootle) (Lab)
The hon. Member for Dumfries and Galloway (Richard Arkless) has summarised most of the things that I would have referred to. I thank the hon. Member for East Lothian (George Kerevan) for bringing the issue before us. I also want to touch on one or two points made by the hon. Member for Wycombe (Mr Baker) about the Austrian school. As he said, the system is not adequate to deal with the task of resolving complaints. My right hon. Friend the Member for Delyn (Mr Hanson) gave a passionate exposition of his constituents’ concerns.
I am pleased that we are debating this issue. It has been the subject of cross-party engagement, particularly in the work of the all-party parliamentary group on fair business banking and that on alternative dispute resolution, which is chaired by the hon. Member for Henley (John Howell). I suspect that RBS’s use of global restructuring is the most glaring example of how poor corporate governance and weak regulation can produce dreadful outcomes for individuals and businesses. Many of the small business owners affected have lost not just their businesses but their health. Under the current financial regulatory system there is a huge imbalance of power between small businesses and their financial services providers, as many Members have mentioned, and that imbalance needs to be redressed. When problems arise between businesses and their banks, as happened with RBS and the GRG, the dispute resolution options open to businesses are inadequate. RBS announced in November that it was establishing a new complaints review, but any ad hoc dispute resolution mechanism based on the internal mechanisms of the bank is clearly insufficient.
The failures of RBS were fundamental. Its actions were not just the result of a few rogue employees; apparently, those actions were RBS’s explicit policy. Employees were strongly encouraged to push small businesses into the GRG. Restructuring was required of companies, along with interest rate uplifts. Many claim that once small businesses were in the hands of the GRG, they were, to use a phrase, turned over for every penny that could be found. There was no great secret in the bank about what was taking place. Ostensibly, the fact that project “dash for cash” was in the system was celebrated, as the hon. Member for Edinburgh West (Michelle Thomson) said. The intention could not have been more obvious, and it had little to do with assisting businesses that were in trouble.
The motion usefully highlights the fact that we cannot say that this was a problem at just one bank. The issue went beyond that; it was systemic, and we can point to the wider failings of the banking sector that led us here. The catastrophic failure of the system in 2008 made that clear. Poor regulations, excessive borrowing and incentives within banks all helped to drive the crash. Of course, the cost to the taxpayer was immense. On the IMF estimate, the UK bail-out scheme cost, at its peak, £1.2 trillion.
The lessons that should have been learned are clear. Banks have to be regulated well in the public interest and in the interests of the taxpayer. A laissez-faire approach is inappropriate for a sector of the economy as uniquely privileged as banking. Since 2008, British banks have placed themselves on a more solid foundation, building up reserves and conducting regular stress tests, and closer monitoring has been adopted by the appropriate authorities. That is quite right.
RBS’s novel approach to many small businesses shows graphically and in a historic way how things can go wrong. Poor management, avarice and hubris took the place of prudent management at the top of the bank, and other people’s money was used imprudently on the basis of hubris. The management were reduced to shoring up the balance sheet by almost any means necessary, and mechanisms must be in place to stop that happening.
Since the financial crisis, a consensus has grown up that a failure of regulation and regulators helped to drive the crash. Efforts have been made at a national and international level, but there have been troubling signs since the election last year that the Government may be going a bit cold on the necessary work. The proposals of the Vickers commission have been, as John Vickers has said, largely ignored, and the inquiry into banking culture has been scrapped.
I know that the Minister is in listening mode, and I hope that he listens today. There are challenges ahead, and we must have mechanisms in place to deal with them. To leave small businesses without even the protections available to consumers is to leave them very vulnerable, and we all know what happens to small businesses when they are left in such a vulnerable position. I do not want to harp on about banking failure, but nor should we go into amnesiac mode to save a few blushes. It is absolutely vital that we get the proper processes and mechanisms in place.
When there are disputes, it is essential that they can be resolved speedily and effectively. Ad hoc dispute mechanisms go only so far, so we need systematic arrangements. In previous cases, small businessmen have had to rely on expensive and inaccessible court procedures to obtain redress, and that is not appropriate. It is not enough, as the motion states, to establish ad hoc compensation schemes after the event. They lack the authority to secure public confidence, so we have to go further. It is much better to have the appropriate procedures in place before the event, and before things begin to go wrong. The motion rightly insists that the Government follow the advice of the Treasury Committee and establish an effective dispute mechanism for financial services.
I will bring my comments to a conclusion. It is essential that the malpractice in RBS is not allowed to recur. As has been said, the taxpayer still owns a huge share—73%—in the bank. The Office for Budget Responsibility now believes, on Treasury advice, I understand, that the stake may never be sold, or will not be sold for a considerable period. It is absolutely right that we should expect any bank to treat its customers fairly. The failures at RBS and its treatment of its customers would be totally unacceptable at any institution. At the moment, there is a wider case for at least considering the establishment of effective regulatory mechanisms, and not only such mechanisms, to change the governance and structure of our banking system. It is now pretty clear that RBS will not be sold for the foreseeable future, so it is perhaps time to conduct a full review of all the options for the future of RBS, including whether any alternatives would deliver better value for money for business and the economy. The key is to have a robust, independent and systematic resolution platform.
The Economic Secretary to the Treasury (Simon Kirby)
I thank the hon. Member for East Lothian (George Kerevan) for securing this debate and, to be fair, for his very thoughtful and measured speech. We certainly acknowledge the importance of the issues that have been raised today.
As a former businessman, I have a great deal of sympathy with all the businesses that have been mentioned and, indeed, all the other businesses that have been treated unfairly. As has been clearly shown by the speeches today, we all care about the businesses that form the backbone of our economy. We should never forget that businesses are more than just numbers; they are people, families, employees, customers and local communities.
This Government have a very strong record of supporting large and small companies, including through our competitive tax regime and our investment in skills, research and infrastructure. Clearly, one way that businesses are able to grow and develop is through having access to finance, so we all want financial services providers to lend to our businesses and to act in the strictest accordance with the FCA’s rules. Wherever that is not the case, any affected business should be compensated appropriately.
We have already heard about the avenues that exist for SMEs in dealing with their banks—from the Financial Ombudsman Service to the FCA’s powers to require firms to establish redress schemes—but it is right to look at the interactions of small businesses with financial services providers to ensure that their dealings are fair and effective. The FCA is already doing that. It launched a discussion paper on SMEs as users of financial services in November 2015. Among other things, that looks at the remit of the FOS in providing fast and inexpensive redress for consumers and our smallest businesses. The FCA is currently analysing the responses to the discussion paper, but when its findings are published, we will consider them very closely. Let me make it clear that if they include the need to review the support for businesses in resolving financial disputes, we will look at that.
It is important for me to reflect on the specific comments made today. There have been quite a few, but I shall do my very best to cover most of them. The hon. Member for East Lothian asked about reforming insolvency law. He may be pleased to hear that the Government keep insolvency law under regular review, and we are currently considering the responses to our recent review of the corporate insolvency framework.
The hon. Gentleman mentioned Andrew Bailey. As Andrew Bailey made clear in his letter to the hon. Gentleman yesterday, the FCA is considering the treatment of small and medium-sized enterprises as users of financial services. It has yet to publish the findings from that work, but, again, if they include the need to review the support for businesses in resolving financial disputes, we will look at that.
I fully recognise the hon. Gentleman’s views about RBS, the Global Restructuring Group and its treatment of small business. I share those concerns and am keen to discuss with RBS the detail of the redress scheme it announced recently for former customers of GRG.
I thank my hon. Friend the Member for Henley (John Howell) for his support for alternative dispute resolution. We welcome businesses using alternative methods to resolve disputes.
The right hon. Member for Delyn (Mr Hanson) raised concerns about the quality of the IRHP review. The Treasury Committee has recommended that the FCA should learn lessons and the FCA has confirmed that it will do so once legal proceedings are at an end. He also mentioned access to the Financial Ombudsman Service. The FCA estimates that 97% of small businesses have access to the FOS and the Government believe the FOS plays a crucial role for small businesses.
The right hon. Gentleman asked an important question about the British Business Bank’s enterprise finance guarantee scheme. At the instigation of the British Business Bank, RBS conducted an in-depth internal investigation of its administration of the EFG. RBS put in place a plan to rectify the issues identified and has concluded remediation action with affected customers.
Simon Kirby
I will not give way, but perhaps we might speak afterwards. I have an awful lot of things I have to address.
My hon. Friend the Member for Wycombe (Mr Baker) asked about incentives to discourage misconduct. The Government and regulators have acted to embed personal responsibility in banking through the senior managers and certification regime. He also stated that small businesses should be treated as consumers.
Simon Kirby
I thank my hon. Friend for that clarification, and I apologise to the right hon. Member for Delyn for being inconsistent.
Unincorporated sole traders and small partnerships fall under the regulatory rules of the consumer credit regime. The FCA is asking how all SMEs are treated as customers of financial services, as is right and proper.
The hon. Member for Coatbridge, Chryston and Bellshill (Philip Boswell) mentioned the IRHP scheme. The redress scheme was not designed to replicate the courts system, which can be lengthy and expensive, as Members have acknowledged. Independent reviewers were put in place to oversee each case.
The hon. Member for Ceredigion (Mr Williams) asked about the timeliness of the ombudsman’s decisions. I agree that the decisions should be quick. I am assured that its decisions are faster than the courts and free for complainants. However, inevitably, complex cases will take time to resolve. He also asked about the disclosure of information. Where the ombudsman considers it appropriate to accept confidential information, an edited version, summary or description will be disclosed to the other party. I agree that it is right to pay tribute to my hon. Friend the Member for Aberconwy (Guto Bebb) for keeping this issue on the agenda.
The right hon. Member for North Norfolk (Norman Lamb) asked an important question about whistleblowers. I understand that the FCA has invited the hon. Member for East Lothian to discuss whistleblowing and I am sure he would be welcome at that meeting. To be clear, the Government recognise the information and huge value that whistleblowers provide.
Simon Kirby
I will not give way; I am so sorry.
The right hon. Gentleman mentioned RBS and GRG. The Government recognise the seriousness of the allegations against RBS. The FCA has stated that it is carefully considering the skilled persons report and other material and it is currently assessing what further work may be needed given the report’s findings.
The hon. Member for Redcar (Anna Turley) mentioned a constituent, and I have a great deal of sympathy with the situation in which he finds himself. The Government are committed to supporting small businesses through the tax system and through a regulatory regime that balances consumer protection and growth.
The hon. Member for Edinburgh West (Michelle Thomson) asked about GRG and the Government-owned bank. I should make it clear that Her Majesty’s Government’s shareholding is managed at arm’s length from the Government on a commercial basis and that HMG did not know about GRG’s activities. As a shareholder, HMG is not informed of internal business decisions. That is an important point.
The hon. Member for East Renfrewshire (Kirsten Oswald) asked about Connaught. I recognise the difficult position of many Connaught investors and I hope that the FCA considers any lessons to be learned from that case. I understand that an investigation into the collapse of the fund is ongoing.
The hon. Member for Kirkcaldy and Cowdenbeath (Roger Mullin) mentioned duty of care. I agree that the outcome is important and that culture is vital. The FCA has principles of business, including acting fairly, on which it can take action. The consumer panel has asked the FCA to look at a duty of care. I am happy to tell hon. Members that I will write to the FCA to ask for an update on its thinking and put the letter and the reply in the Library.
I thank everyone who has contributed to the debate. I will summarise the Government’s position briefly because although we certainly do note many of the issues that are raised in the motion and by hon. Members in the debate, we have also heard that there are existing avenues open to businesses that are seeking to resolve financial disputes. In the case of the smallest businesses, there is the Financial Ombudsman Service. When there are widespread issues, the FCA has the power to take specific measures to ensure redress and, of course, the usual legal process is open to businesses.
However, the FCA has work ongoing to look at the relationship between SMEs and financial services providers, and we look forward to the next steps in that work. I assure hon. Members that we will then consider the need for future steps in that context.
George Kerevan
I thank all Members who took part in the debate. It has been very good and I think that we have progressed matters. I will take the Minister’s reply as saying that the door is still open. We will certainly want to come through it.
I particularly thank Heather Buchanan and Fiona Sherriff, who are the brains and hard work behind the all-party group, and deserve to have their names on the record.
The next stage is to have an inquiry, which will be conducted jointly by the APPGs on fair business banking and on alternative dispute resolution, in conjunction with the Chartered Institute of Arbitrators and with the support of the Federation of Small Businesses. I hope that the Minister, if he nods his head violently enough, will give evidence at that inquiry.
George Kerevan
Thank you.
Question put and agreed to.
Resolved,
That this House notes the statement presented to the Treasury Committee on 20 July 2016 by Dr Andrew Bailey of the Financial Conduct Authority (FCA); endorses his statement that the ad hoc creation of a compensation scheme within the FCA was not entirely successful and lacked perceived authority to treat customers with fair outcomes; believes that the recent headlines and allegations in the press against RBS will lead to pressure for a similar scheme; notes that many debates in this House over the years have focused on similar subjects with different lenders; believes that what is needed is not ad hoc compensation schemes, but a long-term, effective and timely dispute resolution mechanism for both regulated and unregulated financial contracts; and calls on the FCA, the Department for Business, Energy and Industrial Strategy and the Ministry of Justice to work with the All-Party Parliamentary Group on Fair Business Banking to create a sustainable platform for commercial financial dispute resolution.