Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2018

Monday 25th June 2018 Lords Chamber

Motion to Approve

17:48

Moved by

[Lord Bates]

That the draft Order laid before the House on 9 May be approved. (Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 26th Report).

[The Minister of State, Department for International Development (Lord Bates) (Con)]

My Lords, the UK and London are world-leading financial centres, providing access to a wide pool of investors and international capital. This is built on the expertise of the UK’s financial services sector in providing products that meet the needs of a variety of economic actors in the UK and around the world. The UK has therefore sought to establish itself as a leading western centre for Islamic finance, illustrated by the UK becoming the first western country to issue a sovereign sukuk, or Islamic-equivalent bond, in 2014. The UK attracts business and investment from Muslim and non-Muslim countries around the world, supporting growth and jobs in the UK, as the UK’s financial services framework accommodates Islamic finance instruments alongside their conventional equivalents.

The Government are committed to ensuring that this continues to be the case. Changes were made to the law in 2010 to define alternative finance investment bonds, which cover sukuk, as a specified investment. More recently, we took measures in the Finance Act 2018 to afford such instruments the same tax treatment enjoyed by conventional bonds when traded on new types of trading venue. This was accepted by the House, but the specified investment definition in financial services legislation requires updating to match the tax change.

The order in front of the House today does exactly that and ensures that there is an alignment of the tax and regulatory treatment of alternative finance investment bonds to provide certainty, clarity and consistency for issuers of these instruments in UK markets. The order adds two types of financial trading venue—so-called multilateral trading facilities and organised trading facilities—to the list of permitted venues for alternative finance investment bonds. Conventional bonds can already be traded in these venues. The order also amends the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001 so that a person administering a benchmark, as specified in the regulated activities order, will be regarded as carrying on the activity by way of business. This technical amendment is consequential on the coming into force of the EU benchmarks regulation which was given effect in February of this year by the Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018.

The order tracks an amendment made by the Finance Act 2018 which came into force on 1 April 2018. This left a gap in the treatment of alternative finance investment bonds in financial services regulation. We intend to close that gap as quickly as possible in the interests of certainty, clarity and consistency. Similarly, the amendment to the “by way of business” order is the final part of the legislation needed to complete the implementation of the EU benchmarks regulation into UK law. We wish to reassure issuers of and traders in alternative finance investment bonds that these instruments will be legally recognised in UK markets, giving certainty to the market. The London Stock Exchange has warned that continued failure to update the legislation for alternative finance investment bonds in regulation is causing issuers to look elsewhere.

The changes do not cause any new costs for business, as the regulatory framework for alternative finance investment bonds has been in place since 2007. The Financial Conduct Authority confirmed that there is currently only one firm in the UK authorised to operate a trading venue of the type which might be impacted by the proposed amendments. Instruments of this nature are very sophisticated and highly unlikely to be traded in this manner by anyone without a significant level of expertise in financial services—in other words, firms authorised by the Financial Conduct Authority.

We have a situation where differing treatment in regulation and taxation is afforded to alternative finance investment bonds compared to their conventional counterparts. This is unintended from a policy perspective and the Government want to act quickly to address this gap to protect the competitiveness of the UK markets. For that reason, I beg to move.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his assured and persuasive introduction. I recollect him in another place, where I realised that he always mastered his brief. My remarks will be very brief; I have but one question. The Explanatory Memorandum refers, at paragraph 10.1, to the impact on voluntary organisations and charities being minimal. Can the Minister give an instance of a charity or voluntary organisation, to facilitate further understanding of his introduction?

[Lord Lexden (Con)]

My Lords, I shall comment briefly as a member of the Joint Committee on Statutory Instruments. The committee’s recent 26th report drew the attention of the House to this instrument, on the grounds that it appears to make an unusual use of enabling powers conferred by the Financial Services and Markets Act 2000. It is a long-established principle of the joint committee that, where an affirmative instrument imposes new duties significantly more onerous than those that existed before, and where it requires those affected to adopt different patterns of behaviour, there should be a period of at least 21 days between the making of the instrument and its commencement, to give those affected a reasonable chance to adapt to the changes required. This instrument allows only one day.

My noble friend explained that very few firms—possibly only one—would be affected by this change. He also made clear that the Government were responding to a grave concern expressed by the London Stock Exchange that the continued failure to amend the permitted arrangements for alternative investment finance bonds is damaging the competitiveness of UK markets. The committee was unpersuaded that the changes to the law made by the proposed order are so urgent that they must have immediate effect. If the need for amendments was really so pressing, the draft order should have been laid before Parliament much earlier, with a commencement date of 1 April 2018 to coincide with the tax changes referred to in the Treasury’s memorandum

Because of frequent and recurrent poor practice, the Joint Committee on Statutory Instruments has recently published a special report, Transparency and Accountability in Subordinate Legislation, to remind the Government of the need for new law to be published promptly, so that those affected by the changes it makes are protected from being subjected to them before they have had a reasonable opportunity to understand and prepare for them. That is a general principle to which the Government should always adhere. I commend the committee’s important recent report on the major issues of transparency and accountability to my noble friend and all his colleagues in this House and the other place. I hope the House will have a brief opportunity to consider it in due course.

[Baroness Kramer (LD)]

My Lords, I think that we all recognise that Islamic finance—the sukuk market—is the fastest growing global financial sector, with growth of 10% to 12% a year. The current stock is some $3.5 trillion, with $100 billion of new issuance a year. The UK plays a very important role, as the most significant western market. As the Minister said, in June 2014 we became the first non-Muslim country to issue a sukuk.

I have no problems with the content of this statutory instrument. It is an “oh, oops!” and should have been included in the April order. This underscores the complexity we now have in dealing with FSMA 2000. It is now so complex that it is not at all unusual for real issues to fall through the cracks. If ever there was a candidate for a piece of consolidated legislation, it is this whole financial area. In 2012, we found ourselves with a Bill that, when tracked through the legislative trail, required the Governor of the Bank of England to appoint himself. Another issue, which we could not find a way to get rid of, was the Governor of the Bank of England being required to write himself a letter to update himself on what he was doing. Those are slightly humorous examples, but this one is a real “oh, oops!” and I hope that the Government will take that on board.

Picking up the point made by the noble Lord, Lord Lexden, there is a growing sense that the Government do not quite respect the procedures of this House and this Parliament. There is a rationale for saying that there should be a period between an order being approved and it being implemented. In this case, it seems that only one company may be involved, but for that company it makes no difference whether there was one day’s notice or 21. It would have been an opportunity to show that the general procedures of this House are treated with that kind of respect and are followed, unless there is a genuinely exceptional circumstance; I do not think it can be argued that there is in this case. The concerns of the London Stock Exchange would have been met by the approval. It did not require that the order should become effective instantly.

18:00

I wanted to raise a couple of other issues. A sukuk is equated here to a government bond but it is much closer in character to an asset securitisation. Can the Minister give an assurance that that is recognised, as the various regulatory phases are put in place for this to become a much more widely and generally used instrument? The reason why that matters is that it basically shifts where the risk lies. In a sukuk structure there is much more risk to the investor than there would be in a traditional government bond structure. It is important that the Government have that in mind rather than thinking of these as essentially instantly equated. There are also issues because, obviously, those who determine what an appropriate sukuk is are religious leaders because this is a sharia instrument, and in many different places there are different views on what qualifies. We probably need a clarifying framework as this becomes a much more significant instrument to use. I hope the Government can give us some reassurance that they are taking that on board.

Finally, as we look at this crucial sector, the whole issue that is not being tackled is Islamic student finance. The Government did their consultation back in 2012, knew exactly what they had to do and now intend to rectify the problem—but not until 2020, leaving year after year of students who feel that they cannot take out a student loan on conventional terms but are unable to access that kind of financial support to go to university and to follow the studies that we all want them to be able to follow. Surely, as the Government recognise the urgency of making sure that the sukuk market is liquid, viable and growing in the UK, they could put their skates on to deliver something for our students, who need an equivalent instrument to deal with student finance.

[Lord Tunnicliffe (Lab)]

My Lords, I too thank the Minister for introducing this instrument. The noble Baroness, Lady Kramer, says that we all know that the sukuk is an important feature in the growing and important Islamic finance sector. I have to tell her that before Friday, I did not even know that the sukuk even existed, and this instrument has truly spoiled my weekend.

Clearly, I welcome London’s aspiration to become a major Islamic finance centre, and this caused me over the weekend to try to understand what the differences are and what is special about Islamic finance. I found six characteristics set out in one of my searches, which are quite positive. I will pick three of them. There is a,

“prohibition on uncertainty—to ensure that no party has an unfair advantage over another … prohibition on speculation—profit should be made through hard work and effort, not purely by chance”,

and,

“no unjust enrichment”.

At the level of principle, it seems that this style of finance is intrinsically moral and that we will have nothing to fear from it being a major part of our financial system.

I note that a sukuk, to comply with Islamic law, is like a bond, but it is based on an asset, not debt-based. I also note that they already exist; indeed, a major sukuk was issued here in February for £250 million. That started to confuse me—why do we want these instruments if they already exist? I therefore tried to understand it, and traced it back—for once I read the order, because I could not immediately understand the Explanatory Memorandum. I got as far as FiSMA Article 77A, and after that, I am afraid, I gave up. I could not see how the mechanism of the order was such as to embrace the sukuk as part of the legislation. I would be grateful if the Minister could take me through the steps. However, assuming that the order embraces the sukuk and fully integrates it into legislation, what are the consequences? What changes will there be to the way in which the instruments are supervised, sold, traded and taxed? I would also like to know of any other features of the instrument that are changed.

On the matters raised by the JCSI, which were admirably expressed by the noble Lord, Lord Lexden, and supported by the noble Baroness, Lady Kramer, I too agree with the conclusions of the 26th report. The committee says that the case for an order coming into force the day after it is made should be compelling, and repeats its proposal that the normal period of time should be a minimum of 21 days. Without going on about this point, I register my agreement with that. This is particularly worrying because it seems a bad precedent, going into a period during which we expect to handle many SIs. Setting that precedent at this point is bad news, and I put down a marker that we will continue to resist it as the SI scene develops in the light of Brexit.

I also make a plea about the Explanatory Memorandum. I am afraid that it did not work for me. I accept that I may be a bear of little brain, but that should be the test. A decent Explanatory Memorandum should, to a bear of little brain, be straightforward and readable without excessive prior knowledge of what the order does, and describe why and how it does it. For me, at least, this Explanatory Memorandum failed. It is important that the standards of Explanatory Memoranda are held to a high level. I remember making some major changes to FiSMA that introduced bail-in, and the Treasury wrote some brilliant memoranda explaining how it worked. I would hope that the high standard it achieved in the past could be repeated in the future.

Finally, returning to the sukuk, if the market in these instruments is to grow rapidly and become large, one has to recognise that it is innovatory in the sense that it has not been a big part of the market in London, and it could—I am not saying that it does—create systemic risk. After all, the crisis was caused by the way in which clever instruments reacted with each other. Can the Minister therefore assure me that someone—whether at the FCA, the Bank of England or the Treasury—has done an analysis to assure themselves that encouraging this style of instrument does not develop systemic risk in the marketplace?

[Baroness Morris of Bolton (Con)]

My Lords, I had not intended to speak, but I declare an interest as a chairman of the Centre for Islamic Finance at the University of Bolton. During the financial crisis, the Islamic banks were not affected in the same way, because there is a much better relationship between the customer and the issuer. I place on record my thanks to the Government for ensuring that Islamic financial instruments are not an odd investment on the side but are becoming part of the mainstream. Many people can now participate in them, and certainly in Asia, where the markets are booming, a lot of non-Muslims are also taking part in these instruments because they rather like the idea of them. I was going to sit very quietly, but I thought I would place that on record. I also thank the City, which has put a lot of effort into making the UK such a strong centre for Islamic finance.

[Lord Bates]

My noble friend should not apologise for a contribution such as that, which is very welcome. I know that she follows these matters closely and is an outstanding trade envoy to Jordan and to other parts of the Middle East. This instrument carries a strong message: that the UK and London are very much open for business.

The noble Baroness, Lady Kramer, was quite right to highlight the importance of this particular market, worth $3.5 trillion now, but it is also the fastest growing element. If we desire, as we do, to seek to retain our position as the world’s pre-eminent financial market, we need to be as strong in areas of Islamic finance as we are in other areas of finance. Whether it is Masala or rupee-denominated bonds from India or renminbi-denominated bonds from China, this is a great financial centre and we want to keep it that way. That is why we are introducing this instrument.

I want to prioritise my remarks, if I may, by taking probably the most important point first. Several noble Lords raised the 26th report of the Joint Committee on Statutory Instruments. I put on record that I accept that we have not met the standard that we would want to set ourselves for conduct in this. I know there is concern in the committee that, with a lot of SIs about to come down the track, we must maintain very high standards and be held correctly to them. I draw your Lordships’ attention to the substantive response we made which presents the reasons for the provision, contained in appendix 4 of the report. I reiterate to members of the committee—including my noble friend Lord Lexden—that we do take on board the criticism and will look at ways to ensure that this type of situation does not happen again.

Let me turn to some of the points raised in the debate. The noble Lord, Lord Tunnicliffe, undersells himself. Having stood frequently on the other side of the Dispatch Box from him, I know that he is nothing if not assiduous and sharp in getting to the heart of the issue. His point on the Explanatory Memorandum is reflected in the text of the Joint Committee’s report. It falls into the category of things that we need to do much better. The amendment was very narrow and technical, and I do not envy the officials who then had to produce the Explanatory Memorandum. However, I take on board his point.

Similarly, the noble Lord, Lord Jones, drew our attention to paragraph 10.1 of the Explanatory Memorandum. Its reference to the impact on,

“business, charities or voluntary bodies”,

as minimal is standard wording. We certainly would not expect, in instruments of this nature, charities to get involved, but that does not mean to say that they cannot. Despite his great build-up, I am struggling to come up with an example of a charity or voluntary organisation that might want to take advantage of this. I do not know if he has one in mind but, if not—

[Lord Jones]

I could not bring myself to take advantage of the Minister. I have been a Minister and have been in the same predicament, but if I were challenged in such a way, I would never have such facility or charm as he has.

[Lord Bates]

I think I should just sit down now. The noble Lord is very kind.

I will deal with some of the points raised by the noble Baroness, Lady Kramer, and then I will come back to the noble Lord, Lord Tunnicliffe. The noble Baroness asked whether a sukuk could be an asset-backed security as they are not always a sovereign bond. That is exactly right. We keep our regulatory framework under constant review to make sure that it can adapt to emerging market practice. As for it becoming difficult to comprehend, this is not an easy task given its size and complexity. The Government have no current plans to do so, but will revisit the topic later.

The noble Baroness asked about compliance with Islamic principles, which the noble Lord, Lord Tunnicliffe, also touched on. As secular entities, UK regulators do not operate on Islamic compliance. We set the framework to allow consumers to decide what to do with this. We operate on the basis of no barriers but no favours for these types of instruments.

18:15

The noble Baroness also asked about the position on student finance, which is an interesting question. The Department for Education is looking at this. I do not have an exact status for it at the present, but this will be a helpful opportunity to give the department a nudge in that direction and to draw its attention to the instrument, which I hope will be approved by your Lordships today.

The final question was from the noble Lord, Lord Tunnicliffe, who asked how this might work in practice. The reality is that the instrument expands the definition of AFIBs to allow these to be admissible for trading on additional types of financial trading venues, known as MTFs or OTFs. These are markets for the issuing of trading of debt securities, which are regulated on platforms operated. The London Stock Exchange’s Alternative Investment Market and International Securities Market are examples of markets in which these instruments would operate.

[Lord Tunnicliffe]

Can I check that point? My understanding is that these are not debt securities but asset-backed securities, and it is hoped that these platforms will change their rules so that it can be done.

[Lord Bates]

The securities that are there are allowed to deal with a variety of different securities; they are not limited in the asset class that they can use. It is simply a catch-all phrase to mean that they can be traded on those platforms. That is very much the view of the London Stock Exchange, which has drawn our attention to the fact that people are interested in using those particular markets for that purpose. This instrument will help the City of London to take advantage of these investment opportunities, which will create jobs and wealth for this country. I commend the order to the House.

Motion agreed.