Monday 1st March 2021
(3 years, 1 month ago)
Grand CommitteeFinancial Services Bill 2019-21 View all Financial Services Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 162-IV(Rev) Revised fourth marshalled list for Grand Committee - (1 Mar 2021)
Lord Oates
“Considerations in setting capital adequacy requirements
In setting the capital adequacy requirements of a credit institution, the Prudential Regulation Authority shall have regard to—(a) the level of exposure of an institution to climate-related financial risk;(b) the level of compliance of the institution with the recommendations of the Task Force on Climate-Related Financial Disclosure; and(c) the objectives of the Climate Change Act 2008 as amended by the Climate Change Act 2008 (2050 Target Amendment) Order 2019 (S.I. 2019/1056).”Member’s explanatory statement
The purpose of this amendment is to place a requirement on the PRA in setting capital adequacy requirements of a credit institution to have regard to its exposure to climate-related financial risk.
Lord Oates (LD)
My Lords, I declare my interests as the chair of the advisory board of Weber Shandwick UK, as set out in the register. In moving Amendment 28 in my name and those of my noble friend Lady Kramer and the noble Baroness, Lady Bennett of Manor Castle, I will speak also to the other amendments in this group. I once again express my thanks, in particular to Finance Watch, Positive Money and Carbon Tracker for their helpful briefing, and indeed to all organisations that have taken the trouble to provide me with information on this subject.
The context of our discussion of these amendments is one in which, at current levels of carbon emissions, the world will have exhausted within 10 to 15 years the carbon budget it must stick to if we are to meet the Paris objective of keeping warming well below 2 degrees. This is not the alarmist prediction of some fringe organisation or, indeed, even of a Liberal Democrat politician; it is the sober warning of experts in the field, including the United Nations special envoy for climate action and finance and former Governor of the Bank of England, Mark Carney, who spoke in his Reith Lecture at the end of last year of the struggle between urgency and complacency in tackling climate change, highlighting the contrast between the
“urgency of carbon budgets that could be consumed within a decade and the complacency of continuing to add new committed carbon … The urgency to reorient the financial system for the massive investment needed to create a sustainable economy, yet the complacency of many in finance”.
Mr Carney went on to warn that the tensions that exist in our desire to tackle climate change reflect the common challenge of values, including human frailties and market failures. Nowhere could market failures be more evident than in the failure to price climate risk appropriately within the financial system. That is what the amendments we are debating are all about. In the previous group of amendments related to climate, which we discussed last week, we talked about the purpose of prudential regulation, which is surely to manage and control risk. We spoke also about the fact that our system of prudential regulation is clearly not performing that function in respect of the greatest risk facing the financial system and, indeed, the planet as a whole: climate change.
Amendment 28 seeks to take the first steps in addressing this issue. It requires the Prudential Regulation Authority, in setting capital adequacy regulations, to have regard to climate issues, including the level of exposure of an institution to climate-related financial risk and the level of compliance of that institution with the recommendations of the task force on climate-related disclosure and the net-zero objective of the Climate Change Act, as amended.
Amendment 42 requires the Treasury to amend the credit rating agencies regulations to require such ratings to explicitly take account of the level of exposure of an institution to climate-related financial risk.
Both amendments aim to act as a wake-up call to regulators and the City so that, when setting capital adequacy requirements and issuing credit ratings, they take account of and act on the risks that climate change poses to individual institutions and the financial system as a whole.
Amendments 31 and 32 in my name and those of my noble friend Lady Kramer and the noble Baroness, Lady Altmann, focus specifically on fossil fuel exploration, exploitation and production. I am particularly grateful to Finance Watch for its advice and recommendations in this regard. Amendment 31 sets out the risk weight the PRA must apply to the funding of existing fossil fuel production and exploitation; Amendment 32 does the same in respect of new fossil fuel exploration, production and exploitation. They both seek to do so within the existing framework of the Capital Requirements Regulation, which sets capital requirements on a risk-based approach.
The two amendments apply different risk weights to the different activities addressed in each because the financial risks associated with the two activities are different: exploiting existing reserves runs a high risk that some fossil fuel assets will become stranded during their lifetime, whereas exploring and exploiting new reserves comes with a much higher risk—indeed, a near certainty—that they will become entirely stranded.
Amendment 31, dealing with the risk weighting for existing fossil fuel investment, is tailored around Article 128 of CRR as amended in CRR2. This deals with what it describes as:
“Items associated with particular high risk”.
Paragraph 1 of Article 128 states:
“Institutions shall assign a 150% risk weight to exposures … that are associated with particularly high risks”
and that for the purposes of the article, institutions should treat any of the following as exposures with particularly high risks:
“investments in venture capital firms, except where those investments are treated in accordance with Article 132 … investments in private equity, except where those investments are treated in accordance with Article 132 … speculative immovable property financing.”
Paragraph 3 of Article 128 goes on to state:
“When assessing whether an exposure … is associated with particularly high risks, institutions shall take into account the following risk characteristics: (a) there is a high risk of loss as a result of a default of the obligor; (b) it is impossible to assess adequately whether the exposure falls under point (a).”
As Finance Watch points out in its excellent report Breaking the Climate-Finance Doom Loop, paragraph 3 of Article 128 almost appears to have been written specifically to deal with stranded fossil fuel assets: first, because, if we manage to meet net-zero targets, a large proportion of existing reserves will have to remain in the ground, leading to the probability of default of the obligor, the issue addressed in Article 128(3)(a); and, secondly, because assessing the scale of the stranded asset risk is impossible given that it relates to a unique situation for which we have no historical precedent but in which we know that the future economic performance of the assets must be downward—the situation exactly envisaged and provided for in Article 128(3)(b).
Accordingly, Amendment 31 would apply an approach consistent with Article 128 of the CRR to make it explicit that the PRA must apply the 150% high risk weight in calculating capital requirements for existing fossil fuel funding. This risk weight is already applied to venture capital firms, private equity and speculative immovable property, and it is hard to understand how fossil fuel operations can be regarded as posing less risk. The fact is that the existing 100% risk weight is an incentive to the financial markets to continue to act as if nothing has changed. A 150% risk weight, by contrast, would provide a clear price signal reflecting the risk to assets but would not prevent the continued financing of existing fossil fuel operations, allowing an orderly and just transition for those industries and the communities that rely on them.
Amendment 32 addresses the much bigger threat to the climate and to the financial system that arises from new fossil fuel exploration, production and exploitation. It would require such investments to be funded entirely by capital by applying a 1,250% risk weight to this activity. This risk weight is calculated with reference to Article 92 of the CRR on own funds requirements, which obliges institutions to maintain at all times a total capital ratio of 8%. This provides the basis to determine the risk weighting to apply to ensure that new fossil fuel activities are funded entirely from equity.
The 8% total capital requirement is multiplied by the risk weight of 1,250% in accordance with the standardised approach, resulting in a 100% capital requirement for these activities. This risk weight is not some wild or punitive sanction; it is the considered application of the real risk such investments pose to the institutions themselves, to the financial system as a whole and to our ability to stabilise the temperature of the planet. It is also consistent with the existing risk weight applied under the capital requirements regulation for holding companies, as defined in Article 89.
Requiring any fossil fuel investment to be entirely equity funded is surely appropriate, given that these activities will either become non-viable because we have succeeded in stabilising the climate by reaching our net zero targets, or, if we have not, they will be fuelling runaway climate change which will threaten the viability of the whole financial system, not to mention our entire way of life.
The truth is that we have no chance of meeting the objective of the Paris Agreement to keep warming to well below 2 degrees, and ideally to 1.5 degrees, if we burn all the carbon in existing reserves, let alone exploit new ones. The regulatory system has to take account of that, and it has to adequately price risk for those institutions that wish to invest in activities which must become non-viable if we are to prevent catastrophic climate change. In doing so, it will help ensure an orderly and just transition away from fossil fuels.
I want to be very clear that these amendments are not driven by any animus against the fossil fuel industries, whose products have been critical to the development of human society, whether by keeping us warm or driving industry and prosperity. Indeed, my own title in this place is taken from Denby Grange colliery, where my uncles and my grandfather were miners, engaged in the critical but dangerous job of mining the fuel that provided heat and power for the nation.
As we know, coal mining as a major industry in the UK came to an abrupt end in the 1990s. The way it did so, driven by political malice and with no transition planning at all, devastated the mining communities which had fuelled the country’s prosperity over a period of more than 200 years. Abandoned by government, these communities were beset by huge economic and social problems, many of which exist to this day. We cannot allow that to happen in the oil and gas industry.
Lord Holmes of Richmond (Con) [V]
My Lords, it is a pleasure to take part in day three of our Committee deliberations on the Financial Services Bill. In doing so, I declare my interests as set out in the register. I will speak to Amendment 136A in my name, concerning environmental, social and governance—ESG—factors.
The rationale behind my amendment is quite simple: what is the point of profit if there is no planet to spend it on? In this amendment I am seeking to look at the funds’ billions of pounds of assets, under fund managers. It would probably be helpful for institutional investors and individuals to know a lot more about those funds and where their assets are invested. It is a very simple amendment, requiring the Secretary of State to make regulations to have fund managers report on how their funds—and, indeed, all the constituent parts of their funds—stack up against agreed ESG considerations.
The reason I stated it like that in the amendment is so that there can, I hope, be a public discourse around what all parties believe should be measurable and helpful when considering the operations and activities of these funds. The SDGs are obviously important—there is a reasonable level of global agreement around them—but there are other factors specifically relevant to certain sectors or regions of the UK. There could be a public debate, whereby the Secretary of State could consider what would form the particularities of the ESG for fund managers to report on.
I do not believe that the amendment would in any way fetter the market or overstep into the market—it certainly does not seek to—and nor does it seek to direct funds in one particular direction or another. What I hope it would do is throw light on the funds to enable far greater clarity of decision-making by investors, institutional or individual, into those funds. It is in no sense seeking to control or direct activity.
I hope the Minister will accept the amendment in the spirit in which it is being offered. It would aid a greater debate and understanding of funds and their operations. In some small way, it would indicate how we can move forward and have real-time analysis of these funds’ investments using many of the new technologies available to us, not least distributed ledger technology and elements of artificial intelligence, which can instantly adopt, analyse and report on the ESG performance of any fund and constituent part of it. The power that these new technologies affords us would not have been available three or five years ago, never mind a decade ago.
I ask my noble friend the Minister to consider both the positive impact that such a requirement could have and the deployment of new technologies to achieve the objectives set out in Amendment 136A.
Baroness Noakes (Con)
My Lords, most of the amendments in this group are about bank capital. I believe strongly that the setting of the capital requirements of individual banks should be about prudential risk to the capital of the banks and the resilience of the financial system as whole. The setting of bank capital should not get caught up in wider policy issues.
On Amendment 28, the level of exposure to climate-related financial risk should indirectly already be taken into account in the conventional capital-setting process. Climate-related financial risk is very unlikely to be a separate risk category for a bank. It is primarily a credit risk—the risk that borrowers will not repay loans—and it does not need to be separately considered. There may need to be adjustments made to banks’ evaluation of how credit risk will crystallise due to climate change but the essential elements—calculating the exposure at default and the loss that would arise if default occurred—are already in the system.
The impact of climate change on banks is very much an emerging area. I am sure noble Lords will have heard of the so-called biennial exploratory stress test, which the major banks need to submit to the Bank of England later this year. It will focus on how these risks will evolve under various scenarios, which have not yet been published by the Bank of England.
It is pretty unlikely that climate-related financial risk would have a major impact on current bank capital because the determination of bank capital contains buffers which are derived from stress tests that focus on the next five years. Therefore, the impact of risks from climate change working their way through credit risk is unlikely to find its way into bank capital in the short term. That is why the Bank of England’s exploratory stress test seeks to understand how this will evolve over a longer period. In addition to credit risk, there may be an element of operational risk, but that too should be capable of being captured by the existing rules for the calculation of operational risk.
These points are also relevant to Amendment 42, which tries to get climate-related financial risk into credit ratings. I am sure that the credit rating agencies need no reminders about any kind of risk and I would expect the biennial exploratory stress test to be an important input to their thinking on how their ratings will evolve. But, again, this will be over time and not something that is done immediately.
Amendment 28 seeks to ensure that disclosure requirements are also taken account of in setting bank capital. It would be wholly inappropriate to include compliance with disclosure requirements in the calculation of bank capital requirements because disclosure can never have an impact on the amount of capital that a bank needs to keep. It is an extraneous consideration that should not feature in the determination of prudential capital. I have absolutely no idea on what rational basis capital requirements for individual banks could be adjusted for the climate change objectives of the Government, which also features in Amendment 28.
As the noble Lord, Lord Oates, has explained, Amendments 31 and 32 would require mandatory risk weights for exposures related to fossil fuel; namely, 150% for existing exposures and 1,250% for new funding. These are both penal and unrelated to the underlying credit risk. I accept that funding fossil fuel exploration might well carry higher risks in the future than it does currently, but that will be reflected in banks’ evolving lending policies, including pricing for risk, and in the risks that are reflected in how they calculate credit risk-weighted assets.
Risk weighting is about loss at default and these amendments are suggesting that there could be a total loss at default; that is the particular implication of the 1,250% risk weight for new exploration. Neither assumption is realistic. Banks do not lend in situations where default is likely or total losses will occur, and I did not understand the reference to 100% equity funding in the explanatory statement: banks lend money; they do not make equity investments in the companies with which they deal.
In general, corporate borrowing is not linked to specific activities. At the weekend, when I was at home thinking about what I was going to say on these amendments, I found a copy of Shell’s most recent accounts, which I looked at to see how its balance sheet was made up. Most of Shell’s debt is in generic corporate bonds, rather than for specific activities within Shell. Like other major oil and gas companies, Shell has a mix of activities, including those which the green lobby will approve of.
As drafted, by reference to
“exposures associated with the funding of existing fossil fuel production and exploitation”,
the amendments are probably ineffective because lending is not likely to be hypothecated in the way the amendments assume. I should also say that Shell, as a corporate borrower, currently has long-term credit ratings of A+ and Aa2, which imply a low risk of default and therefore a relatively low likelihood of loss needing to be taken account of in the way that assets are risk weighted.
Even if these amendments were drafted in a way that was effective and made sense, I suspect that the only real-world impact would be that debt financing for oil and gas companies would be driven out of the London market. Why on earth would we want to deprive the City of London of relatively low-risk, profitable business?
Baroness Hayman (CB) [V]
My Lords, it is always fascinating to follow the noble Baroness, Lady Noakes. I certainly do not have her level of expertise in financial institutions but, listening to her, I worried that the phrase that the noble Lord, Lord Oates, used about the battle between urgency and complacency was actually rather relevant. We have a very short period of time in which to change the dynamics of what is happening to our world through climate change. I am sure that these amendments could be better drafted, and we may need her technical knowledge and experience to help us find the correct levers to do what Amendments 28, 31 and 32 set out to do, but, frankly, we cannot afford simply to say that this will not work. We have to find ways that will work, which is why I am interested in, and listened carefully to, the powerful and compelling case made by the noble Lord, Lord Oates, in introducing these amendments.
We have to find a way in which to make explicit and transparent the risks contained in continuing investment in existing fossil fuel projects or new ones, and that funding new fossil fuel projects is essentially of the highest risk and should be funded out of equity if it is to go ahead. The risks relate not only to continuing investment contributing to climate change, which itself creates systemic risk through increasing emissions, but to the certainty of these assets becoming stranded, as the noble Lord, Lord Oates, said. That is not in the long term—we are talking about the reasonably predictable future.
A recent report by Finance Watch, Breaking the Climate-finance Doom Loop, highlighted that to limit warming to 1.5 degrees we can emit only a further 500 gigatonnes of CO2. There are currently fossil fuel reserves which, if all were extracted, would emit 3,000 gigatonnes. If we are to have any hope to meet what are not just the aspirations of what the noble Baroness calls the “green lobby” but are actually our national and international treaty obligations, we have to change. Despite the fine words that have been spoken since Paris, $2.7 trillion in funding has been provided since that agreement to the oil and gas industry, with UK banks contributing significantly.
Financial institutions are in the process of quantifying climate-related financial risks, but it is widely recognised that this will take considerable time. Rather than waiting until the middle of the decade when we have made progress in quantifying the risks via the TCFD and climate-related financial risk disclosures, we could start to make changes to the existing capital requirements regulation now, to reflect what we all know are risky investments, even if we do not know the exact quantified risk. Prudential regulations are designed for just such a situation, to regulate markets and ensure long-term stability.
We have to make it very clear what the risks are, because there is danger of interpretation of risk from the transition from brown to green being considered in the light of it being a sudden cut-off of one and a change to the other, so that people avoid any change. We need a measured and adjusted transition. To do that, we need to be aware of risks on all levels.
Finally, I will say a word or two on taxonomy: how we actually define green and brown. In previous Committee debates, the noble Earl the Minister said
“we need to be able to define what we mean by ‘green’.”—[Official Report, 24/2/21; col. GC 225.]
He commented that it will take time to analyse the risks and produce the taxonomy. It is important that we recognise that that taxonomy needs to include a definition of what is a brown asset as well as what is green. We need to look at how we drive investment away from brown, as well as directing it to green.
The New Economics Foundation recently wrote to the Chancellor, saying that
“limiting the taxonomy to green activities will not necessarily encourage a move away from financing activities that undermine climate goals. We equally need the taxonomy to classify carbon-intensive and other unsustainable activities. Importantly, the taxonomy design should not be decided behind closed doors. There must be transparency and public consultation to ensure that a wide range of expertise and perspectives from across civil society and academia feed into the UK’s Green Technical Advisory Group.”
It would be very good to understand government thinking on this issue and on the timing of the work of the green technical advisory group, and I hope that the noble Earl will comment on this when he winds up or, if that is not possible, write to me in the future.
Lord Sharpe of Epsom (Con)
My Lords, I refer to my interests in the register. It is a pleasure to follow the noble Baroness, Lady Hayman, and my noble friend Lady Noakes, who spoke eloquently on the capital requirements. I was planning to do the same, but she has said much of what I was planning to say, so I shall confine myself to a brief question about Amendment 31.
Amendment 31 refers to
“existing fossil fuel production and exploitation.”
I wonder whether all the possible consequences have been considered. The noble Lord, Lord Oates, spoke eloquently on mining, and I, too, claim mining ancestors: my great-grandfather was a coal miner in Seaton Burn in Northumberland. The noble Lord also mentioned stranded and abandoned communities. I wonder whether the amendment, as drafted, would also apply to companies that are actively engaged in the complex process of decommissioning existing facilities, particularly those in the North Sea. In many cases, those are the same companies that are involved in exploitation and exploration. Again, my noble friend Lady Noakes spoke very eloquently about hypothecation when it comes to lending to some of these types of companies. With that in mind, were the potential regional effects of rationing capital to these businesses considered, because that is the likely net effect of the amendments? I suppose that that would have particular reference to and relevance in Scotland.
I am sure we all hope for a world free from fossil fuels, but I am 100% confident that, regrettably, we will need them for a while yet—although it is probably worth stating that they have other uses apart from just being burned. As my noble friend Lady Noakes also pointed out, it is fair to say that financial institutions have a refined—no pun intended—approach to assessing fossil fuel-related risk and are perfectly capable of valuing stranded assets. The proof of that is to be found in the valuation of companies such as BP and Royal Dutch. If, as the amendments imply, we would prefer no lending at all to fossil fuel companies—which is a perfectly legitimate point of view—should we not just say that and agitate for a multinational agreement to that effect, perhaps at COP 26, rather than introduce it via the back door through amendments such as these?
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I am not a financial expert, nor was that my academic background, nor do I have family involved in the fossil fuel industry, because Northern Ireland did not have a mining base. However, it is quite clear to me that the Financial Services Bill is silent on the climate emergency and carbon issues. Therefore, I favour the amendments in this group in the names of the noble Lord, Lord Oates, and other colleagues.
A recent Bank of England publication states:
“Climate change poses different risks to the stability of the financial system, particularly for the insurance and banking sectors.”
It states that there are physical, transition and liability risks from climate change. Climate change means that we may face more frequent or severe weather events, such as flooding, droughts and storms. Examples of those recent weather events that have been linked to human-driven climate change include the heatwave and droughts in China in the summer of 2013 and the more recent flood events in the UK. Such events bring physical risks that impact on our society and have the potential to affect the economy, and our financial services sector. If these events happen more frequently, people will become more reliant on insurance to cover the costs of damage to their houses and cars.
Transition risks can occur when moving towards a less polluting, greener economy. Such transitions could mean that some sectors of the economy face big shifts in asset values or higher costs of doing business. One example is energy companies. If government policies were to change in line with the Paris Agreement, two-thirds of the world’s known fossil fuel reserves could not be burned. This could lead to changes in the value of investments held by banks and insurance companies in sectors such as coal, oil and gas.
Liability risks come from people or businesses seeking compensation for losses that they may have suffered from the physical or transition risks from climate change.
It is important to tackle climate change and protect the environment. This is very important in the financial services sector; I think the Chancellor of the Exchequer referred to that in the recent past. As I said, there is no reference in the Bill to climate or the ecological emergency, notwithstanding that the UK Government have the chair of COP 26 this year. There is no mention of green finance, climate risk disclosure or the critical role that the financial services industry will have to play if we are to tackle climate change.
How do the Government intend to deal with this matter from a legislative point of view? It is recognised as a clear priority by the Chancellor, although the Minister who took the Bill through the other place did not see any direct correlation between financial services regulation and the impact and risk of climate change. Parliament should determine that role and ensure that these amendments are made to this legislation. The amendments, which I support, would require the Prudential Regulation Authority to have regard to climate-related financial risk when setting capital adequacy requirements, and would ensure that credit rating agencies have to take climate risk into account in setting credit ratings, with particular relevance to fossil fuel exposures. I think of the fact that the Government wish to pursue a new coal mine in Cumbria.
Do the Government not see the benefit in these amendments to have regard to climate-related financial risk when setting capital adequacy requirements? If not, could they specify what their position is? Will they not admit that there is a direct correlation between the climate change emergency, fossil fuels and financial services regulation? Perhaps the noble Earl could provide us with answers when he winds up.
Baroness Sheehan (LD) [V]
My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie of Downpatrick. I found myself nodding at her every point. I pay wholesome tribute to my noble friend Lord Oates for the manner in which he introduced this series of amendments and the comprehensive nature of his speech. These amendments get to the nub of the issue.
In 1989, I left a comfortable job in advertising and went back to university, to bolster my chemistry degree and get a better understanding of the scientific evidence and facts behind the litany of dreadful things that seemed to be happening to the planet. The main issues of concern in those days were acid rain, the ozone hole, species loss and radiation in the environment, especially following the Chernobyl disaster in 1986. Another issue causing grave concern was what was then referred to as global warming. I wanted the facts. Specifically, I wanted to know to what extent climate change was anthropogenic.
When I left Imperial, I was in no doubt that the warming planet was due to the accumulation in the upper atmosphere of greenhouse gases, caused by the burning of fossil fuels since the start of the industrial age. The science was incontrovertible then, 30 years ago, and the ball was firmly in the political court. Over three decades later, to my utter frustration, when push comes to shove—and actions not words are needed—the political will appears lacking. I therefore welcome these amendments, especially Amendments 31 and 32, for their clarity of purpose.
I will say a few words about Amendment 28 in the names of my noble friends Lord Oates and Lady Kramer, and the noble Baroness, Lady Bennett of Manor Castle, the purpose of which is to place a requirement on the PRA, when setting the capital adequacy requirements of a credit institution, to have regard to its exposure to climate-related financial risk. It invokes the Task Force on Climate-Related Financial Disclosure and our domestic commitments through the Climate Change Act 2008, as amended in 2019. In my view, the amendment is pretty uncontroversial if you think that we are facing a climate emergency and I hope that the Minister will sympathise with its aims.
In Committee last Wednesday, the noble Lord, Lord Sharpe of Epsom, took me to task when I welcomed Amendment 48’s aim to bring forward the TCFD’s implementation by two years. He rightly said that the methodology to quantify the metrics was complicated and not yet in place. However, a huge amount of work is being done on the issue by UN agencies, EU agencies and the OECD, to name but a few.
I am heartened by the way that we met the challenge of developing and deploying not one but myriad vaccines in the space of a year. It is not much short of a miracle. That was made possible by global collaboration and working at speed, putting aside some artificial barriers to manufacturing by paying upfront to cover the risk of failure. In short, huge challenges were overcome because we faced a global crisis of mammoth proportions. Of course, the issue of scaling up manufacturing capacity to meet global demand remains, not least in developing countries, but that is now an issue of political will. With climate change, we are dealing with a global emergency that has the potential to dwarf the pandemic, so I say to the noble Lord, Lord Sharpe of Epsom, that necessity is the mother of invention. We can do this if there is a will.
I welcome the intentions of Amendment 136A, but it is a little broad and detracts from the central theme of tackling the climate crisis. ESGs are now pretty well established and cover a range of factors that move companies in the right direction, which is to be welcomed. But it is a slow process—it is not compulsory—and they do not explicitly signal climate-related financial risk, which I would like to see.
In conclusion I will say a few words about Amendments 31 and 32. The question to which I would like an answer is: who will pay the cost to society of climate change? The answer is that we as society will pay these costs. But such social costs are not built into the price of oil, gas, coal, gas fires, electricity, natural gas heating, petrol or diesel. As a result, the corporations most responsible do not pay directly for their pollution. That also leaves few incentives to limit greenhouse gas emissions, so problems such as climate change go unabated. I support these amendments as they not only are a shorthand way of building the massive social cost of carbon into investment decisions but also recognise climate-related investment risk.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Sheehan, who has made powerful points. A little more than a year ago, we faced the Covid emergency and the Government moved very fast with multiple rules and regulations. The world has moved very fast and science has moved very fast. That is a demonstration of how fast the world can change in an emergency—and we are all in agreement that we are in a climate emergency.
Given that I agree with many of the comments already made on this group of amendments, I aim not to repeat them all but perhaps to take us a little bit forward. To briefly outline, I am speaking on Amendments 28 and 42 in the names of the noble Lord, Lord Oates, and the noble Baroness, Lady Kramer, as well as my name. I also express my support for the principles and direction of Amendments 31 and 32 in the name of the noble Lord, Lord Oates. In his expansive and effective introduction, the noble Lord presented a strong case for the detail contained in these amendments.
With Amendment 136A, the noble Lord, Lord Holmes of Richmond, is heading in the direction of an amendment of mine discussed last week. I spoke about introducing acknowledgment of our international obligations on biodiversity. This amendment heads in the direction of thinking in terms of the sustainable development goals, and that kind of system thinking is very much what we need. It goes a lot further than simply looking at the climate emergency. I would like to see us go further than where we are at. The full SDGs are a big step that we need to take at some point very soon.
The noble Lord, Lord Sharpe of Epsom, noted that there are other uses for fossil fuels than energy generation or transport. Many of those uses are, of course, the production of plastics, which are creating a whole different set of crises in our plastic-choked world: a pollution crisis and a crisis in the impact on animal life and quite possibly on human health.
It is pretty clear that we are already in a carbon bubble. We know from an organisation as radical as the International Energy Agency that we have to leave at least three-quarters of our known fossil fuel reserves in the ground to avoid catastrophic runaway climate change. Yet we still see money being lent, sometimes by the UK Government—the chair of COP 26—to develop and even explore new reserves. This clearly is not the way forward.
To build on what others have said, rather than simply repeat it, I refer noble Lords to an article by Semieniuk et al in volume 12, issue 1 of the journal WIREs Climate Change, published in January/February 2021, entitled “Low-carbon Transition Risks for Finance”. In the conclusion of that article, the authors say:
“Asset stranding combines with other transition costs, notably unemployment, losses in profits, and reductions in real incomes from price changes that generate significant risks for portfolio losses and debt default. Financial actors might become unable to service their own debt and obligations, creating loss propagation within the financial network. The adverse impacts of credit tightening and lack of confidence as well as the direct impact of transition costs to the macroeconomy, could lead to a general economic crisis with further risks for finance.”
They continue:
“Targeted financial policies, however, can dampen some transition risks by direct regulation of the financial sector.”
This element of the conclusion relates in some ways very closely to the debate we will be having tomorrow on the National Security and Investment Bill, but it is worth noting that, with a different cause at its base, it could be taken as a pretty fair description of what happened in the 2007-08 global financial crash.
I referred to that article, at least initially, not primarily for its conclusion but for the detailed calculations and models in its body. I suspect that one answer that we might hear from the Minister in responding to this group is that something needs to be done, but not quite yet—the Augustinian approach mentioned by the noble Baroness, Lady Hayman, in our debates last week. However, the article demonstrates that thorough work has been done and is available to the department to act now. As the noble Lord, Lord Oates, and the noble Baronesses, Lady Hayman and Lady Sheehan, all referenced, we are in a state of extreme urgency—a climate emergency.
However, the noble Baroness, Lady Noakes, gave me a further reason to draw on that conclusion. She said that she relies on the banks in calculating and pricing risk. She said, “Banks do not lend in situations where default is likely.” Well, we all know how that worked out in 2007 and 2008. The noble Baroness also said, “Carbon debt financing could be driven out of the City of London.” If we look at the costs we bore from risky lending and risky actions by the financial sector in 2007 and 2008, we see that that could indeed be a very good thing for our financial security. I do not believe that we would see a direct migration of financing shifting out of the City of London and going to other places. If the British Government were to take this action and become world-leading, as they so often tell us they want to be, that would have an impact on other financial markets around the world. Other people would say, “Well, if London is doing that, perhaps we should have a look at it, too.”
Let us look at the best possible outcome: we entirely prevent a carbon bubble financial crash. One problem, of course, is that you do not get credit for stopping things that never happened, but perhaps we would know that we had done the right thing. Even if we managed only to significantly reduce the size of that carbon bubble crash, we would indeed be world-leading. We are ready to take action: this is an emergency and so we have to take action. I commend these amendments to the Committee.
Baroness Altmann (Con) [V]
My Lords, I thank the noble Lord, Lord Oates, for his excellent introduction to this group of amendments and his work to try to ensure that the Bill rises to the challenge of ensuring that our financial services institutions, regulations and activities are properly concerned with the dangers of climate change. I am happy to add my support to Amendments 28 and 42 in the names of the noble Lord, Lord Oates, and the noble Baronesses, Lady Kramer and Lady Bennett—who it is a pleasure to follow—which seek to ensure that capital adequacy and credit rating agencies take account of climate risk.
I also have sympathy with Amendment 136A, in the name of my noble friend Lord Holmes, which seeks to require that fund management firms should report on their ESG compliance. My only thought on that is that it may not go far enough. Such a requirement could become just a tick-box exercise and I believe we need to go much further than that if we are to meet our obligations to today’s younger people.
Baroness Kramer (LD)
My Lords, I begin by welcoming Amendment 136A from the noble Lord, Lord Holmes, which is the only amendment in the group that does not have my name attached to it. The amendment is useful. In a sense, it belongs with the group of amendments on climate change that we discussed last week, in that it is focused on disclosure and other such issues, which is helpful. The reason why we have this group of amendments is that we require more powerful levers, we need to recognise urgency and we need the financial system to recognise both the risks that it faces as a sector from the implications of climate change and the positive role that it can play.
Mark Carney and Andrew Bailey have both accepted that climate change is the greatest risk that we face to financial stability. That surely should be reflected in the way that the industry is regulated. I was therefore taken aback when Andrew Bailey, in his speech to the Green Horizon Summit in November, laid out a strategy that seemed to depend, essentially, on better data, disclosure and guidance. At the macro level, Mr Bailey confirmed that a climate stress exercise, postponed because of Covid, would launch in June 2021, but then he said:
“We will not use the results to size firms’ capital buffers.”
I found that quite shocking, but, having listened to the noble Baroness, Lady Noakes, and the noble Lord, Lord Sharpe, I realise the kind of pressures that Andrew Bailey must be facing from the industry. Surely capital buffers are a crucial tool of the regulator. If climate change is the most important risk to financial stability, surely the Bank of England must be prepared to reflect that in its capital adequacy requirements.
The noble Lord, Lord Oates, explained the complexity of some of the calculations. I understand that the numbers look really large when they are written down, but of course they are a weighting. The consequence for existing assets is not that a bank will have to hold 150% equivalent to its exposure but rather a percentage of that—around 12% of the exposure, I think. The number is not quite as alarming as it looks. When we look at future exploitation, we see that essentially what is being said is that it is so risky that 100% of capital needs to be held against any loan made—in effect, it is an equity investment because of the nature of its risk and not a risk that can accept the additional risk that is attached to leverage.
When I listened to the noble Baroness, Lady Noakes, a couple of things particularly struck me. One is that I have far less faith than she does in the ability of the banks to assess credit risk. Sometimes they are pretty good at looking at an individual company—though, my goodness, a lot of that was flawed, if we look at the period before 2008. The noble Baroness, Lady Noakes, was on the board of RBS and must have looked back at its credit—not at the time of its troubles being created but afterwards—and probably was in shock at some of the credit practices that were in place. That is similarly true at HBOS, Northern Rock and a wide range of banking institutions.
We should not fool ourselves that banks are all-seeing, even when it comes to looking at an individual company’s credit risk. But where they are really poor is in identifying change and looking at systemic and holistic risk. That is why we ran into that incredible crisis in 2008. The industry struggles to look beyond the small and narrow to understand the broader picture and then apply it to its whole range of credit decisions. I say that as someone who spent most of their banking career in the United States as a commercial banker, looking extensively at credit risk; I very much understand the weakness of the system.
Banking is, almost by definition, a short-term activity, so decisions are made over relatively short horizons. Despite the many changes that we have introduced at governance level to try to inculcate a longer-term culture, it will always be true—partly because of the way that remuneration and promotions are structured, and partly because it is just inherent in the culture of most of these institutions—that the way that banks look is inherently short term. They are particularly bad at assessing long-term risk and understanding how the implications of that should be applied on any given day.
The noble Lord, Lord Sharpe, said that if we do not want to see lending to future fossil fuel exploitation, we should deal with it globally at the COP meeting later in the year. I say to him that we take this same attitude to junk mortgages; I do not remember us saying that we must not do anything to increase the risk of those while we wait for a global agreement. We do the same thing with a wide range of high-risk derivatives and I do not remember us saying we should not act on those until we get a global agreement. When the financial regulator sees risk and recognises it, it has a responsibility to act. I remain, as I said, rather shaken at the idea that we have a financial regulator that will be identifying that risk but then not using it in its power to adapt capital buffers. As I have said, this is almost the last point at which we as parliamentarians will collectively be able to have an impact on the banks’ thinking and it strikes me that we need to seize that opportunity now.
Holding capital is a powerful tool to force a banking institution to face up to the risk that it is undertaking. That is why it is particularly true that the capital adequacy requirements are some of the most powerful leverages to change. In that same conversation, we must also make it clear to banks that they are not too big to fail and that if they undertake high-risk transactions there are consequences—in the past there have not been, as we as a country have bailed them out.
Finally, I will talk to Amendment 42, which deals with credit rating agencies. As the noble Baroness, Lady Noakes, pointed out, an organisation such as Shell has a very high credit rating and who would not lend to an organisation with a credit rating on that scale? We always—I would say this to any individual Minister—have to be somewhat cynical when we look at the product of credit rating agencies. I know that they try to behave with integrity, but the companies pay their fees and their wages and that tends to incline them to think in very narrow terms. None of the credit rating agencies got right the crisis that we saw in 2008-09, even though it developed over quite a period of years leading up to 2008-09. This was not an overnight event; it was a crisis that built over a decade and, in that way, it is very similar to the climate change crisis.
We have an opportunity to put down a particularly important marker to the regulator and say, “You have a tool that matters, a tool that you can use to protect the financial system from risk, which you yourself acknowledge and recognise and which you say you find frankly somewhat frightening. So use those tools.” In these amendments, we have the leverage to make the regulator do so.
Baroness Jones of Whitchurch (Lab) [V]
My Lords, I am grateful to the noble Lords, Lord Oates and Lord Holmes, for tabling these amendments and for their helpful contributions. They provided a welcome extra clarity as to how we can deliver the UK’s climate change obligations across the financial services sector.
In an earlier debate, we identified the important principles which should underpin the application of climate change principles by the regulators and how they should be reported. A number of noble Lords then made strong and compelling cases for changes to the regulatory regime in advance of the Government’s consultation and implementation of the Basel standards because of the urgency of the climate change threat that we all acknowledged in that debate.
These amendments go one step further. Amendment 28 would add a specific requirement on the PRA to take the level of exposure to climate-related financial risk into account in setting capital adequacy requirements. We believe this is right, given the increasing evidence that institutions with overexposure to carbon-intensive investments are not acting prudentially.
In the debate last week, the Minister said:
“There is no evidence that ‘greener’ means ‘prudentially safer’, at least not yet”.—[Official Report, 24/2/21; col. GC 224.]
Although we accept that evidence in this field is still being collected, we believe that there is already a sufficiently strong evidence base on which to act. This has been confirmed by the Bank of England, which is already planning to tighten the supervisory expectations on climate-related risk for banks and insurers. As the Governor of the Bank of England said—and we all seem to be quoting the governors or the bank in different guises in this debate, but all roads lead to the same conclusion—in a recent speech:
“Investments that look safe on a backward look may be existentially risky given climate change. And investments that might have looked speculative in the past could look much safer in the context of a transition to net zero.”
Therefore, let us face it: high-level thinking is changing fast, whether it is by the Chancellor or the Governor of the Bank of England or, indeed, in the quotes from BlackRock that we looked at in the previous debate. There are big changes and big thinking going on. We now need to turn that recognition by all those leadership characters into practical policies for the future, and that is what we are attempting to do. We identify the urgent need to revisit investment assumptions and near-term capital requirements, and that is what Amendment 28 is trying to do.
Amendments 31 and 32 focus on the specific risk weight of investment in fossil fuels, which remain a major contributor to carbon emissions and are inevitably high-risk. We welcome the debate on these amendments and the specific risk weights that are proposed. I listened carefully to what the noble Lord, Lord Oates, and other noble Lords, had to say on this. We feel that the noble Lord was making a very valid point. As other noble Lords have said, the wording of these amendments might not be perfect, but they are certainly worthy of further exploration. On that basis, I look forward to the Minister’s response.
Earl Howe (Con)
My Lords, I am grateful to the noble Lord, Lord Oates, for his clear and succinct introduction to these amendments, and to other noble Lords who have spoken in his support, as well as to those who have sounded a more critical note.
I have already spoken about some of the broader questions relating to climate change and financial services in a previous debate and, in response to the noble Baroness, Lady Ritchie, in particular, I set out last Wednesday the significant action the Government are taking in this area. I also indicated that I have heard and understand the well-argued concerns of noble Lords about the manifold risks arising from climate change. I stand ready to discuss those concerns in the context of this Bill as constructively as I can between now and Report.
To add one more assurance in reply to the noble Lord, Lord Oates, who spoke about the risk of stranded assets and asked specifically about a transition plan, the Government are committed to a managed transition that puts new jobs in the clean energy sector at the heart of our strategy. My right honourable friend the Prime Minister set out details of this in his 10-point plan; further detail will be included in the forthcoming net zero review.
If I may, I will focus my remarks more narrowly on the specific issues raised by these amendments. Noble Lords reflected in earlier debates on the importance of prudential regulation, which aims to ensure the safety and soundness of the financial system. Much of the UK’s existing prudential regulation was introduced as a result of the 2008 financial crisis, to protect our economy by ensuring that financial services firms are adequately capitalised and properly managed to limit the risk of failure and the impact that would have on the economy. We must therefore be careful when considering the use of prudential tools to deliver other policy objectives; my noble friend Lady Noakes was absolutely right to emphasise this.
Indeed, one of the key advantages of the approach taken in the Bill is that it allows the UK’s prudential regulator, the PRA, to react where necessary to changing market conditions and to developments in international work and research on climate risk, particularly the development of a global consensus on what role the financial sector should play in tackling climate change. I believe this is a better solution than the amendments we are discussing here.
Amendment 28 would require the PRA to set capital adequacy requirements of a credit institution while having regard to its exposure to climate-related financial risk. As I have said, I appreciate all the concerns around climate change—there is no question of the Government being complacent about them—but I cannot see how this amendment would deliver more than the PRA’s existing obligations under the Financial Services and Markets Act, which by definition requires it to consider risks to the safety and soundness of financial institutions. I say to my noble friend Lady Altmann in particular that this includes climate risks in the same way as any other risks. The regulators are very alive to climate-related risks and are already acting to make sure they are understood and addressed in the financial system. To prove the point, the PRA will undertake climate-related stress tests in June to ensure that the financial system remains resilient to climate-related risks.
Amendments 31 and 32 would require the PRA to set punitively high risk weights against exposure to existing and new fossil fuel production and exploitation. These risk weights would, in effect, make it more expensive to finance such activities, and thereby make them less attractive. However, the point of the Bill is to support a flexible regulatory system that can respond to changing circumstances and developments as they arise. This framework puts financial stability at its heart through the PRA’s primary objective of safety and soundness. Other relevant public policy considerations are dealt with through the system of “have regard” set out in the Bill. None of these is prescriptive in the way that these amendments are, and they are, quite importantly, subordinate to the PRA’s primary objective. I maintain that this is the most effective way in which to ensure appropriate prudential treatment for all assets. Putting other public policy issues on a par with safety and soundness could lead to decisions being taken that are not sufficiently focused on the core purpose of prudential regulation.
Amendment 42 would require the Treasury to make regulations requiring credit rating agencies to give due consideration in their ratings to the level of exposure of a credit institution to climate-related financial risk. The credit rating agencies regulation sets out the UK’s regulatory regime for credit rating agencies, which are supervised by the FCA. A key principle of the regulation is that the agencies are independent, and the credit ratings they produce are independent, objective and of adequate quality. In producing these ratings, credit rating agencies are required to use methodologies that are rigorous, systematic, continuous and subject to validation based on historical experience. However, the credit rating agencies regulation does not stipulate factors that must be included within the methodologies used by credit rating agencies. In line with this principle of independence, the regulation prohibits interference of public authorities in the content of credit ratings or methodologies when performing their supervisory functions. This is an important principle designed to ensure that ratings have not been unduly influenced.
However, the regulation places requirements on credit rating agencies clearly to disclose their methodologies and the key elements underlying the credit rating or the rating outlook. That ensures that those using the ratings can make an informed choice as to whether a rating gives due regard to the impact of a type of risk on the creditworthiness of the institution in question, including climate-related financial risk. In addition, EU guidance published in 2019 provides that, when a credit rating agency changes a rating, it must disclose whether environment, social and governance factors played a part in that decision. The FCA has publicly communicated that it considers all guidance published by European authorities before 31 December 2020 to be relevant to UK firms and, therefore, UK agencies are expected to continue to apply this principle. More generally, the Government have committed to implementing the requirements of the Task Force on Climate-Related Financial Disclosures in the UK, with a significant portion of mandatory requirements in place by 2023, and all relevant firms reporting in line with the requirements by 2025.
On the topic of disclosures, Amendment 136A would require the Government to introduce an obligation on fund managers to report to the FCA on how their funds are satisfying environmental, social and governance requirements. I have already spoken about the Government’s commitment to implementing the requirements of the Task Force on Climate-Related Financial Disclosures—TCFD—in the UK. Becoming the first major economy to commit to fully mandatory and public climate disclosures is even more ambitious than the proposed amendment, which requires FCA-regulated fund managers only to make disclosures to the FCA. But fund managers do not yet have sufficient information on environmental factors from the wider economy in which they invest. The mandatory TCFD road map set out by the Government will apply to funds and the wider economy in a co-ordinated timeline.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I understand that the noble Baroness, Lady Jones of Whitchurch, may not have completed her remarks before the Minister began. Does she have anything that she wishes to say?
Baroness Jones of Whitchurch (Lab) [V]
Obviously the Minister has now responded. I think I made the point in conclusion that the high-level leadership and thinking, including from the Chancellor and the Governor of the Bank of England, are moving in the same direction. Something more urgent is needed, and the Bill is the ideal mechanism for delivering these changes on the ground; otherwise, we are in danger of this becoming aspirational, when the urgency is more immediate.
I apologise to the Minister. I have just been trying to find out what happened, so I did not hear everything he said. Underpinning all this, I feel that the amendments are worth while and deserve further consideration, and that we need a mechanism to have more targets and better data, assumptions and methodology. We need the regulators to set that; otherwise, if we are not careful, we will end up with annual reports that, as we have said in the past, are just greenwashed and are not in any way held to account. I will finish there and I apologise to noble Lords if they did not hear all the things that I had to say.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
Does the Minister wish to respond? No? In that case, I call the noble Lord, Lord Oates.
Lord Oates (LD)
I thank noble Lords from all sides of the Committee for their contributions. I am particularly grateful to those noble Lords who signed the amendments and spoke in the debate. I am grateful also to the Minister for his courteous response and for agreeing to continue to discuss these issues.
The noble Lord, Lord Sharpe, made the point that we are going to need fossil fuels for some time to come. That is precisely the point I covered in my opening remarks. That is why we need to risk existing fossil fuel operations properly and effectively so that they can continue as we transition.
The noble Lord, Lord Sharpe, and the noble Baroness, Lady Noakes, questioned which companies Amendments 31 and 32 might apply to. The intention was for them to apply to activities as opposed to specific companies, and specifically to fossil fuel activities to try to avoid capturing some companies’ non-fossil fuel activities. I am perfectly happy to accept that the amendments’ wording might be improved, but that was the intention. The issue we have to deal with is the threat of continued fossil fuel activities beyond what we have the carbon budgets for.
Overall, however, I was struck by the absolute complacency from the Government Benches—the lack of realisation of the issue that we are facing and of the urgency of dealing with it and of trying to use whatever tools we can to address it. The noble Baroness, Lady Noakes, appeared to question the very concept of using prudential regulation to achieve the objective of averting climate change. She said that the impacts of climate change were unlikely to find their way into credit risks in the short term. She also said, as the noble Baroness Lady Bennett, reminded us, that banks do not lend in situations where there is a high risk of default. History explicitly and categorically refutes that. The noble Baroness also informed us that credit agencies did not need any help in assessing credit risk—the same agencies which gave their highest ratings to complex securities associated with the subprime mortgage crisis.
Prudential regulation is a tool through which we can, necessarily and legitimately, regulate the sector and ensure its financial stability. My noble friend Lady Kramer quoted the current Bank governor’s rather extraordinary statement that we were not going to use the results of the stress tests of different climate scenarios to inform the size of firms’ capital buffers. But he did say that that does not mean firms should not be thinking about near-term capital requirements. He set out that firms must assess how climate risk could impact their business and review whether additional capital needed to be held against this. He expressly recognised the legitimacy of using capital requirements to tackle climate change.
The IPCC has warned us that if we do not act decisively to mitigate climate change, we are on a global warming path of between 3.8 and 4.8 degrees centigrade by the end of the century, with a range of median values between 2.5 and 7.8 degrees centigrade. That is the seriousness of the situation we face. Central bankers are clear about the huge risk that climate change poses to the financial system. But what is the reaction of the noble Baroness, Lady Noakes, and the noble Lord, Lord Sharpe? It is to say: “We don’t need to do anything now. Let’s wait and see.” We do not have time to wait and see.
We know the risks we face. If we do not act, we are culpable. Is our excuse to our children and grandchildren, nieces and nephews, and grand-nieces and grand-nephews going to be: “Oh, sorry, it was all too difficult. We were busy trying to measure everything and we thought the banks were quite good at predicting risk anyway, and they all let us down”? The noble Baroness, Lady Noakes, asked: why would we deny the City the opportunities of a relatively low-risk, profitable business? There is a simple answer to that: if those activities continue unabated, they will threaten the very future of human society. That is a reality. That is why we have to act.
In view of the Minister’s willingness to continue to discuss these issues, I beg leave to withdraw my amendment.
The Deputy Speaker (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 29.
Amendment 29
“Further matters for regulators to take into account
When making rules using their powers under the Financial Services and Markets Act 2000, the Prudential Regulation Authority and Financial Conduct Authority must—(a) have regard to competition within the contexts of—(i) the availability of consumer choice and fair pricing;(ii) the development and encouragement of new products and new industry;(iii) the desirability of supporting the international reputation of the United Kingdom for good governance;(b) structure the rules to establish clear categories for different types and sizes of financial service businesses including—(i) in banking, for small co-operative, mutual and community banks;(ii) in insurance, for captives and reinsurance.”Member’s explanatory statement
This is a non-exhaustive example of additional high level policy that could be embedded in the remit for the Regulators.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I support all the amendments in this group and will speak to my Amendment 29, which suggests further measures for regulators to have regard to. I also remind the Grand Committee of my financial services interests, as in the register.
“Have regard” clauses are the only things that the Government are proposing as additional accountability measures in this Bill, or as the “activity-specific regulatory principles”, in the language of the HMT consultation. Indeed, views were sought in question 2 of the consultation concerning more “have regards”.
The first part of my amendment seeks to give the PRA, as well as the FCA, a set of competition considerations relating to consumer choice and fair pricing, the development and encouragement of new products and new industry, and the desirability of supporting the international reputation of the United Kingdom for good governance. These are self-explanatory, but giving encouragement to new products and new industry is something that is important for both regulators. There is overlap here with issues that were discussed in the competition group on the first day of Committee. This is the kind of measure on which it seemed there was more consensus, but I will not repeat that debate.
The second part of the amendment, also under the umbrella of competition, in proposed new subsection (b), suggests that rules establish clear categories for different types or sizes of business, and two examples are given for banking and insurance. The regulators frequently inform us that they apply proportionality, but it is often within an overall regime that does not allow specific or easy identification of a stand-alone category and may not always take advantage of all legitimate considerations.
In banking, I have highlighted regimes for small co-operative, mutual and community banks. I have the impression that these banks have been at best tolerated by the PRA, rather than encouraged; perhaps it is awkward for the PRA to have more banks to deal with, perhaps there is no promotion from working with the small guys, or perhaps it is like it was with the old FSA and everybody wants the big glamour jobs. It seems to me that, for quite a long time, the public and parliamentarians have been saying that they want banks in the community, understanding the community and with purpose linked to the community, but the atmosphere in the PRA still seems to be one of reticence and suspicion.
For insurance, there has also long been a call to have better-elaborated categories that deal with different types of risk transfer. This is something that other countries have done, notably carving out specific regimes for captives and reinsurance, which has given them a competitive advantage. I should like to be able to see what the UK is doing in this regard and compare it much more easily with Ireland, Luxembourg or the Netherlands—or, indeed, Bermuda. It has always been possible; it is nothing to do with being in the EU or not—it is our regulators.
Recital 21 of Solvency II states:
“This Directive should also take account of the specific nature of captive insurance and reinsurance undertakings. As those undertakings only cover risks associated with the industrial or commercial group to which they belong, appropriate approaches should thus be provided in line with the principle of proportionality to reflect the nature, scale and complexity of their business.”
Of course, the attitude of HMT and UK regulators to recitals in European legislation is that they are not binding and so they are not interested, but other countries have taken notice. It is all very disheartening, as it was British MEPs who worked hard to get those words in there. Therefore, I would quite like to have another go with a “have regard”, where at least the regulators would have to explain why they have disregarded it.
The Central Bank of Ireland took the recital to heart and, taking the definition of a captive from Solvency II, has defined a “direct writing captive insurer” for which there is a specific “differentiated supervisory approach” under which the solvency, capital and governance requirements are less onerous. That approach is justified by the narrower risk referenced in recital 21. Are these the sort of more flexible, tailored kinds of rules that the Minister would like to see put to good use in the UK? If so, then maybe, over a decade on, we can get to where we should have been. Even if we do not, this illustrates a significant example where having the regulator’s justification for not “having regard” would at least be useful. I beg to move.
Lord Holmes of Richmond (Con) [V]
My Lords, it is a pleasure to take part in this debate on the second group of amendments and I declare my interests as in the register. I will speak to Amendment 126 in my name and, before I do so, say it is a pleasure to follow the noble Baroness, Lady Bowles of Berkhamsted. I congratulate her on the way that she introduced the group.
My Amendment 126 offers a structure of regional mutual banks, which are successful in other nations but not so present in the UK. With the current situation apropos Covid and the current economic outlook, it seems timely to reconsider the whole concept of mutuality via the structure, as set out in this amendment, of regional mutual banks. If we get this right, it would seem to play very much to the levelling-up agenda, to the regional agenda and to a more collaborative, connected and closer relationship between lender and lendee—with both sharing a part of the journey in whatever endeavour, be that individual or SME.
Elsewhere in Committee I have raised, and will raise later, issues around financial inclusion which are a stain on so many of our institutions and lives. But this is not a question just for individuals shut out of our financial services system; it is a question for the underbanked as well as the unbanked. It is also a question for SMEs, unable to get the lines of credit they require to do what SMEs do best: grow the economy for the benefit of their employees and communities—for the benefit of them all. In Amendment 126, the consideration of regional mutual banks goes to all these points.
Similarly, it could be the basis for a rebirth in this country of true patient capital, which is much in existence in other nations but not, perhaps, so much in recent years in the UK. We may also wish to consider changes to the rules around pension fund investments, which could come through such vehicles as regional mutual banks. We are all aware of the names of some famous and successful international pension funds—Ontario Teachers, to give one example. Why do we know about it, when most people perhaps do not necessarily know about our large pension schemes? It is because of the current rules and approach when it comes to where all that potential investment can be deployed.
Again, the amendment suggests that the whole question of capital adequacy should be considered. If we have a structure with a different funding model, leaning more towards patient capital, should we consider whether the current capital adequacy rules are indeed adequate for such institutions? Are they in fact acting as a barrier, a blocker, to the development of regional mutual banks? With such structures, the amendment seeks to probe a reconsideration of risk and risk profiling when it comes to these kinds of banking operations. The amendment also seeks to look at other social, economic or political limiting factors which may be out there.
Finally, I hope my noble friend the Minister will agree that Amendment 126 offers a helpful suggestion in terms of the seeding of such regional mutual banks. Public finances have rarely been as tight as they are right now; everybody understands that. Perhaps dormant assets could be used to act as some seeding to see where we could take the whole concept of regional mutual banks.
As we come out of Covid, it seems an opportune moment to reconsider, reimagine and potentially reignite the whole concept of mutuality throughout our society, which was so successful and so beloved in previous generations. I hope my noble friend the Minister will agree that Amendment 126 offers a positive, creative structure worth considering for the future. Regional mutual banks could play a key part in the Covid rebuild and in future, as yet unwritten, success stories.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I declare my interest as a former chair of StepChange, the debt charity. I put my name down to speak in this group of amendments because they give me an opportunity to raise a wider concern about the access we need to low-cost credit. In fact, this fits in very closely with points already made by the noble Baroness, Lady Bowles, on Amendment 29 and the noble Lord, Lord Holmes of Richmond, on Amendment 126, and his important point about financial inclusion and the need to make sure that we do not forget that. I am looking forward to the comments to be made by the noble Baroness, Lady Kramer; she will also touch on these issues when she comes to speak.
When responding to a group in an earlier debate, my noble friend Lord Tunnicliffe mentioned that he grew up in a household where poverty was a constant worry. He mentioned the “jam jar economy”, which often characterised low-income households. It was cash-based: putting small amounts of coin away for future expenditure. Indeed, research a few years ago showed the surprising conclusion that the lowest paid in our society were often the heaviest savers on many measures, mainly because they had to be. It was done outwith traditional credit sources and topped up where necessary by house-to-house lenders, which were often a vital lifeline.
A key problem I want to highlight is the need to solve the problem of how to expand low-cost credit. My noble friend Lord McNicol, when he was speaking in an earlier group, mentioned the problems revealed by a very interesting report by the University of Edinburgh Business School on the financial health of NHS workers—people who were in employment but receiving low wages. It was based on real-time open banking figures. It showed across the 20,000 or so NHS workers who were surveyed that far too many were heavily reliant on a regular basis on persistent overdrafts and high-cost credit, often borrowing to meet the emergency needs they had from time to time, at APRs of well over 1,000%. The report makes for very interesting reading, and I hope that the Government will have access to it when they come to consider these issues further.
I know that the Government are concerned about this and that their financial inclusion work recognises, as previous Governments have, that the availability of low-cost credit is a major blockage to financial well-being. As the noble Lord, Lord Holmes of Richmond, said, it also affects the ability of SMEs and sole traders to operate successfully in a difficult economy.
I hope that the Minister can say a bit more about the plans the Government have when she comes to respond. I know that the Government will pray in aid the idea that credit unions will often be the solution; they have been mooted so often in the past but do not seem to grow. Other countries have other models—Germany has its particular banks focused on the local economy and America has the Community Reinvestment Act—which have solved the problems. Is there not time to consider things that might operate more successfully here in the UK?
None of the individual measures outlined in the amendments in this group, welcome though they are, will solve low-cost credit and the drought that we are suffering from. But they make the point well that the regulatory measures in the Bill should not restrict much-needed support from institutions, banks and other organisations such as credit unions to help those who need to borrow but who cannot do so at the rates or in the period of time which are often required by our major institutions. I look forward to the Minister’s response.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble Baroness, Lady Neville-Rolfe, has withdrawn from this group, so I call the next speaker, the noble Baroness, Lady Noakes.
Baroness Noakes (Con)
My Lords, various amendments in this group address different aspects of small and medium-sized banks and other financial institutions, and I am not opposed to having more and different banks in the financial system. Indeed, anyone who has had a bad customer experience with one of the major banks, as I have in the past year, supports more competition and choice. However, I sound a note of caution: we have to be very careful not to send the regulators down a path that could lead to poorer outcomes for consumers.
I am always reminded of the history of building societies, the number of which has shrunk dramatically over the past 100 years or so. These were often small and regionally based, and the numbers have reduced for two main reasons. One reason for this was obviously the liberalisation measures which allowed a number of them to demutualise—one of the more recent trends—but, over time, the other reason was that these were small organisations which were often not managed particularly well and had insufficient financial resilience, and they often had to effectively sell themselves to other building societies in order to protect members when things went wrong.
Against that background, regional banks, as suggested in Amendment 126 in the name of my noble friend Lord Holmes of Richmond, are, in my view, unlikely to be a panacea. It is less than clear that the failure of a regional bank could easily be prevented in the current regulatory environment. I do not oppose the report that he suggests but I am a bit of a cynic when it comes to seeing that as a useful way forward.
I particularly want to speak to Amendment 91 in this group, in which the noble Baroness, Lady Kramer, has suggested restricting access to the term funding scheme if it is not then available for onlending to other banks and providers of finance. I accept that there may be an element of protectionism in the large banks that have access to the term funding scheme not wanting to share that advantage source of finance with other lending institutions. But the scheme suggested by the noble Baroness, Lady Kramer, would require the major banks to accept the credit risk of dealing with these smaller organisations without any ability to price for that risk. These organisations often struggle to raise equity capital, for good reason: they carry higher risk, they are often not profitable, and they do not all survive.
It seems to me that if the Government think it is a good idea to fund more lenders at preferential rates in order to fund the various lending schemes that have been introduced, they should instruct the Bank of England to vary its lending criteria for the term funding scheme. At the moment, it is restricted to those with access to the discount window facility. It would not take too much to get that changed, without trying to distort the lending decisions of the major banks. If the Bank of England were unwilling to assume that risk itself, it would be open to the Treasury to underwrite it for the Bank, without distorting the decisions made by the banks that do take term funding scheme finance.
Lord Naseby (Con) [V]
My Lords, I will speak to Amendments 29 and 126. Amendment 29 adds a hugely important new clause, clearly positioned by the mover, the noble Baroness, Lady Bowles, to whom I pay tribute.
By way of background, I have been involved in the mutual movement nearly all my life. My parents were active members of a co-operative. I bank with the Co-operative Bank. I have been politically involved since the days when I was leader of the London Borough of Islington, for some three years from 1968. I entered the Commons in 1974 and took an interest in debates from then onwards, becoming a non-executive director of the Tunbridge Wells Equitable Friendly Society in the 1980s. When I left the Commons in 1997, I became chairman of this society, the trading name of which was the Children’s Mutual. We built up a leading position for the child trust fund; to my deep regret, the Government of the day decided to end that fund. Finally, I had a Private Member’s Bill in your Lordships’ House, which became the Mutuals’ Deferred Shares Act 2015. So, I reckon to know a little bit about the mutual movement.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
My Lords, we will stop for a minute while we sort out the problem with the sound.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
My Lords, the noble Baroness, Lady Altmann, has been muted, I am glad to say, so we will now return to the noble Lord, Lord Naseby.
Lord Naseby (Con) [V]
I thank the Lord Chairman. As I was just saying, in both the United States and Canada there has been a change in young people’s attitudes to debt. This is one reason why the credit union movement there is seeing better times and beginning to come strongly back to life. However, two other things have happened here. First, during the pandemic, people have had a chance to look in great depth at their own financial situation; many are responding to approaches by building societies, credit unions and the other mutuals by having interactions, on the basis that they know somebody. They do not know anybody in the banks. I do not have a clue who looks after an account that I have at RBS; all I can do is act on the telephone. Secondly, and in addition, what do we see on the ground? Bank after bank are closing branches. Whereas in the old days I could go to the RBS in Biggleswade, and then to Bedford, now they have all gone. There is an opportunity here that should be encouraged.
Secondly, I will look not at cheap credit—I hasten to say—but what is called “home-collected credit”, which I covered to some extent at Second Reading. That is all about consumer choice and a fair price. Home-collected credit has been around for 150 years. It is highly successful: it is the credit of choice for the working classes, if I may use that phrase in today’s world. People who use home-collected credit take out small, short-term loans perhaps three or four times a year, probably around Christmas, Easter, birthdays and days such as that. They know what the terms are; the terms do not change, and if they run over in terms of repayment, there is not some swingeing increase in the rate charged. They get a single credit charge.
On the other side, there are payday loans. Every one of us in politics knows exactly what those loans are about: they compound interest and offer high-frequency, weekly loans that people get hooked on. When they go a bit wrong, the claims management companies—CMCs—leap in with a huge volume of complaints, most of which are manufactured. The problem is that today the FCA appears to be treating all high-cost credit models in the same way. The regulator is taking a singular sector-wide approach to affordability and repeat lending and pays less or no attention to the crucial differences between these two products. Whereas officials once differentiated between the responsible and the harmful models, now they treat them all the same. There is therefore a real danger of the HCCs being driven out of business.
In 2018 no less a man than Andrew Bailey said that people viewed home-collected credit differently from rent-to-own and payday ones, and that this was the model he thought about because the difference with home-collected credit is that the borrower knows the lender. The agent is the lender; that is, it is a different, almost social relationship that goes on and creates different attitudes. I ask the Minister to have a close look at this, and perhaps a discussion with the FCA and the Financial Ombudsman Service, to ensure that there is a clear differentiation in any investigations that they might want to undertake between these two very different models.
Thirdly, with the permission of the Committee, I would like to go back to the Mutuals’ Deferred Shares Bill, which I took through your Lordships’ House in 2015. I was motivated to do so by my interest in the mutual movement and by the financial crash of 2008. It seemed to me that there was a need for mutual insurers and friendly societies to have a means of raising capital. That is what I set about doing and it became law in 2015. That was, for me, a high day for the mutual movement. Today, there are not hundreds of mutual insurers and friendly societies: in fact, the active ones are the 52 that are members of the Association of Financial Mutuals.
What that Bill—which is now an Act—did was important, first, because it gave access to new capital, particularly for the friendly societies and mutual insurers. Secondly, without that new capital, many mutuals would have been driven into inappropriate corporate forms through demutualisation. Thirdly, a lack of capital limits mutuals’ growth and their ability to develop new services, which is what this amendment is all about. Fourthly, like all businesses, mutuals need to be able to benefit from economies of scale. Fifthly, it is important to learn lessons from that financial crisis I mentioned; if financial services businesses are to build up stronger capital bases, they require the legislated regulatory agility with which to do so. Sixthly and lastly, there are direct benefits of being able to issue new shares; debt—the alternative—is of lower quality than equity for firms wishing to build their capital base.
One dimension of the then Bill had two elements to it. I am afraid the Government of the day decided they would not accept the second arm that I put in the Bill originally, which was the proposal to have redeemable share instruments for co-operative and community benefit societies. At the time, the Government said they were
“unpersuaded about the merit of a redeemable share instrument as these societies already have a means of issuing redeemable shares. The Government do not see a clear need and demand for such an instrument”.—[Official Report, 24/10/14; col. 923.]
I think the world has not changed. The Government need to have another long, hard look at the second element of that Bill. Obviously, I withdrew that section, because I was happy to have what I could get.
The mutual world is dynamic. If we have learned nothing else from Covid—I was in isolation for my 10 days because I caught it at the beginning of January—it is that people work very hard on a local level. We need to capitalise on that. Society wants it. The wind is in the right direction. I hope very much that the amendments that both the noble Baroness, Lady Bowles, and my very good and noble friend Lord Holmes are putting forward find a following wind—not necessarily in the format they have produced them but certainly in some other format—and come to fruition.
Baroness Kramer (LD)
My Lords, I will speak very quickly to Amendments 29 and 126. Like the noble Lord, Lord Naseby, I welcome both. We need to keep putting pressure on the regulator to be far more granular in regulation. There has been significant improvement on predecessor regulators, but there is a lot more work to be done. I will speak in a later group about roles which could encourage the regulator to gap-fill, which is very much related to how it regulates a much more varied set of financial organisations, particularly relatively small ones.
Unlike the noble Baroness, Lady Noakes, I am a very strong fan of the idea of regional banks, so I appreciate the amendment of the noble Lord, Lord Holmes. You have only to look at the Landesbanken in Germany and their capacity to focus on local issues and people; they are there for them during times of crisis when, frankly, big banks tend to flee. Being regional does not guarantee that you are good, but it certainly creates a different dynamic, which we ought to explore—particularly in an era when we are talking much more about the importance of devolution and recognising its significance, and dealing with a levelling-up agenda. I hope all those will generate some thought in the Treasury and Government.
My three amendments—I am sorry there are three and that I have to talk to all of them—are probing amendments into problems that the Government need to get down and fix promptly.
Amendment 43 deals with the proportionality issue, which really is urgent. The level of loss-absorbing capital which medium-sized banks must hold in the UK is decided by the Bank of England. The Bank has been clear in declaring that these banks are not systemic, so we are not looking at systemic risk, but it treats them as if they were major banks, systemically risky, for the purposes of setting the requirement for loss-absorbing capital, and sets what is known as MREL—the minimum requirement for own funds and eligible liabilities—at 200% of their minimum capital requirements.
This is not an international norm. In the UK, the threshold at which MREL kicks in is a £15 billion balance sheet, or 40,000 transactional accounts—that really is a medium-sized bank. In the eurozone, the threshold is a €100 billion balance sheet, and in the US it is $250 billion before MREL kicks in. I really think that the Bank of England needs to go back and look at this.
Lord Tunnicliffe (Lab) [V]
My Lords, despite various initiatives to encourage the emergence of challenger banks and local and regional institutions, barriers to entry remain high and the UK does not have a very positive story to tell. If they were provided with the right regulatory framework, an expansion in the number of local and regional banks could play an important role in addressing local inequalities, building financial inclusion and increasing the proportion of lending going to the real economy SMEs. It is important not to look at this as a zero-sum game; it is not, or at least should not be, a choice between supporting either big corporates or small banks, but rather about creating a financial services ecosystem that covers everybody’s needs.
These amendments seem benign. Nevertheless, banking is a risky activity. It is a funny business: it goes out of its way to look respectable and sound, but, as we know, it is extremely frail. In the financial crisis of 2008, the country almost came to a position of collapse—much closer than we seem to remember. Only through decisive action by the Government of the time, and by other overseas Governments, were we saved from a serious financial crisis that could have crippled the world.
When looking at a bunch of amendments like this, one might be tempted to say that the PRA’s general objective will look after us, and one should remember that its general objective is promoting the safety and soundness of PRA-authorised persons. However, if these amendments were to become a trade-off between the amendments and the PRA’s general objective, that would be a step too far in the safety of the banking structure. Accordingly, I hope that the Government will have listened to the suite of sensible ideas expressed today but judge it as an overall package of goods and bring forward some proposals that capture the best without endangering the banking system. My noble friend Lord Stevenson brought up the fact that individuals desperately need a safe and orderly form of low-cost credit, and that is equally true of SMEs.
Baroness Penn (Con)
My Lords, as has been set out, this grouping considers issues relating to competition and proportionate regulation in support of increased competition. Increasing competition in banking has been a priority for government under successive Prime Ministers; this can be traced back to the immediate period following the financial crisis and, indeed, the work of the Independent Commission on Banking and the Parliamentary Commission on Banking Standards, of which I know noble Lords in this Committee were members.
Amendment 29 seeks to ensure that the FCA and PRA give due consideration to competition in exercising their duties and apply their rules and regulations proportionately to different-sized firms. It is important to note that the FCA and PRA are already required to consider competition as part of their statutory objectives. It was essential to put competition at the heart of the post-2007 financial crisis regulatory reforms. For the FCA, this is one of the three operational objectives and, for the PRA, it is a secondary objective—secondary to its safety and soundness objective. Since being given their competition objectives, both the FCA and PRA have taken significant actions to improve competition in UK financial services.
I shall give some examples. First, the new bank start-up unit was set up in 2016 as a joint initiative of the PRA and FCA to make the process of setting up a new bank in the UK more straightforward. Since it was launched, 20 new banks have been authorised, and the PRA continues to ensure that steps are taken to ensure that it is acting on its competition objective. For example, it consulted in summer 2020 on its approach to new and growing banks and, in November 2020, announced its intention to consider a more proportionate prudential regime for smaller banks, which promotes growth. Secondly, the FCA launched its regulatory sandbox in 2015, the first of its kind globally. This sandbox enables businesses to test innovative propositions with customers, improving the range of services and products available to UK customers. The FCA also recently launched a new digital sandbox to allow early stage firms access to data, which enables them further to develop their innovative ideas.
To give some more examples, the current account switch service, or CASS, was introduced in 2013 to allow customers easily to switch account provider when they see a better deal. As of September 2020, customers have switched over 6.8 million times using the service. The Payment Systems Regulator has been created to ensure fair and competitive access to central payment systems so that payment systems work in the interests of the businesses and customers that use them, and an SME credit data-sharing scheme has been introduced to make it easier for challenger banks and alternative finance providers to check the creditworthiness of businesses, improving their ability to lend to SMEs. I hope that reassures noble Lords that competition is already a key priority for this Government and is being properly considered by regulators.
Amendment 43, in the name of the noble Baroness, Lady Kramer, would remove existing capital requirements for banks with assets below £100 billion. As she has already explained, the intention of this amendment is to ensure that the rules on capital requirements for these smaller banks would be replaced by PRA rules with more proportionate requirements. The Government are committed to supporting more proportionate regulation for small and medium-sized banks and enhancing competition in financial services. The delegation of the relevant prudential requirements in this Bill will allow the PRA to introduce proportionality in its implementation, where appropriate.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received no requests to speak after the Minister so I now call the noble Baroness, Lady Bowles of Berkhamsted.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I thank all those who have participated in what has turned out to be quite an interesting debate. It seems that most or all noble Lords have managed to put their fingers on one or two points. It would be useful if the regulators could look through this debate, and maybe the Government could also look through it a little bit more when we get offline.
The noble Lords, Lord Holmes, Lord Naseby, Lord Stevenson, and the noble Baroness, Lady Kramer, all linked together the fact that, post-Covid, changes will be going on. Younger people in particular are looking to bank in different ways; they want to use their local services. Although I listened to what the Minister said about this Bill enabling the PRA to act in more proportionate ways, I know for a fact that they can already do that but do not. So there needs to be a little bit more encouragement. To go back to my first amendment, if things were more transparent in terms of having a category and saying, “This is how it is for a bank of small or medium size, or mutual,” we would be able to see how that proportionality works. At the moment, we are told that it is there, or “You can’t do it because of the EU”, and that is simply not true. Let us take the example given by my noble friend Lady Kramer about the MREL. You do not have to have the MREL kicking in at such a level for the medium-sized banks; that was very much introduced as something for the larger and more systemic banks.
My plea is: look at what this is asking. My basic “have regards” provisions were asking for us to have something that shows us the categorisations, layers, tiers and the strata—whatever you want to call them—so that it is clear for everybody. As the Minister herself said, there can be lots of places where things are too complex; it is not just for MREL. That is exactly the point I was trying to address: you have to go across the whole suite of regulations and bring together what is relevant for the different categories, not have the smaller banks having to fight their way through and find out that there is no consistent set of proportionality requirements.
We have started an interesting conversation here; there may well be some point that it is worth us pursuing when we get to Report on categorisation as a “have regard”. I see nothing wrong with that: we are not telling the regulators what to do but asking them to have regard because we think there has not been enough of it already. I am interested in carrying that forward, but, for now, I beg leave to withdraw the amendment.
“Skilled person review of supervisory bodies
(1) At least once every five years, an independent skilled person review must be conducted of—(a) the Financial Conduct Authority and(b) the Prudential Regulation Authority.(2) The body set up to conduct the independent skilled person review must include a person nominated by resolutions of the House of Commons and House of Lords.(3) The independent skilled person review must include a review of— (a) internal operations and controls;(b) systems for responding to whistleblowers, Parliamentary correspondence and reports, and public concerns;(c) regulatory perimeters;(d) the effectiveness of relevant legislation and rules and the regulatory burden;(e) whether all statutory and public policy objectives have been met;(f) the operation and effectiveness of engagement practices before and during rule making;(g) the skills base of the Authority’s staff;(h) any other matter the skilled person considers relevant;(i) any other matter requested by a relevant Committee of the House of Commons or House of Lords.”Member’s explanatory statement
This amendment suggests a generalised review, not linked to specific fault or failure, of a kind that exists in other jurisdictions.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I have already trailed the notion of regular independent reviews of regulators in an earlier amendment, but this amendment gives an opportunity to investigate it at greater depth.
In the Government’s consultation and in the context of the Bill, we are told that we are returning to basic FiSMA, getting rid of the statutory instrument layer containing EU-made legislation and going back to what was devised by the UK for the UK. However, it is worth noting that FiSMA never really stood alone, because the EU’s financial services action plan, laid out in 1999 and broadly completed by 2004, meant that the extensive consultation, public transparency and policy co-ordination of the EU was there and growing from the start of FiSMA and, by the time of the 2012 reforms, the EU’s rigorous regulatory and supervisory architecture was in place. Although those things were viewed as annoying by some—perhaps by many—in the UK, changes are now happening by going standalone, including loss of peer-reviewed rules and loss of peer-reviewed supervisory practices. That is especially problematic for the conduct and markets side, given the less developed international co-ordination.
After the financial crisis, the missing element of supervisory quality control was a primary driver behind the EU regulatory architecture reform, its absence being considered part of the reason for the financial crisis—a view much reinforced by the admissions of the FSA in the Turner report. Unwillingness of regulators to see the writing on the wall had certainly been a flaw in the UK. The fundamental gap of supervisory quality control has not been routinely addressed domestically; we just get reviews after failure happens. This gap will be more critically exposed in a standalone system where the regulators make all the detailed policy and all the rules as well as supervising.
Our immediate history, especially with regard to the FCA, is of repeated supervisory failures, already elaborated last week by the noble Lord, Lord Sikka—the latest being the Gloster report showing operational failures. In the news last week was the FCA being too slow on buy-to-let cars, and many more cases are bubbling on. In every case, warnings have been ignored. Private Eye often gives a good summary of what is going on, as do the broadsheets.
Viscount Trenchard (Con) [V]
My Lords, the noble Baroness, Lady Bowles of Berkhamsted, makes a good case for introducing skilled person reviews of the regulators in addition to the parliamentary oversight arrangements that I hope will be agreed satisfactorily. This transfers the boot to the other foot; the difficulty would be in deciding who could be skilled enough to assess the regulators. Would the costs ultimately be borne by the regulated firms?
In the first three years after the introduction of skilled person reviews by the regulators in 2014, fees paid for skilled person reviews, generally confined to a number of issues on parts of a firm’s business, or only one, amounted to more than £500 million. The cost of a review may amount to several hundred thousand pounds. The real cost in terms of diverted management time, legal costs and remediation activities is often much greater than the simple cost.
It is interesting that only some 8% of skilled person reviews have led to enforcement actions, even though many reviews at the time of launch were feared by firms as likely precursors to enforcement. The number of skilled person reviews commissioned by the PRA and FCA increased from 44 in 2017-18 to 51—or nearly one a week—in 2018-19. I worry that regular reviews of the regulators would be very expensive, in terms of money and time. As my noble friend Lady Neville-Rolfe often suggests, is this not a clear example of a case where an impact assessment should be undertaken before introducing a statutory requirement? I look forward to the views of other noble Lords and the Minister on this matter.
Lord Desai (Non-Afl)
My Lords, I very much welcome the amendment. I have been a Member of your Lordships’ House for 30 years. Throughout that time we have had one crisis after another in the financial markets. I have the impression that most of the time they have been due to ignorance by top people of how the market is changing and of the new products and challenges. When I first got here in 1991 we had the Baring Brothers crisis. There was no doubt that the people sitting in London had no idea what a derivatives market was, and nor did the Bank of England. Nobody knew that Nick Leeson was operating on the Yokohama stock exchange. Public information was available, but nobody in London knew where it was. Therefore, they completely missed it. We also had the BCCI crisis, but that was a pure, untechnical fraud. That is another matter.
Most importantly, I remember debating the legislation that set up the FSA. At that time we thought the problem was that self-regulation had failed in various sectors, and that these sectors were interdependent, so we had to have an overarching framework. We set it all up, but it did not help when the crisis occurred in 2008. I remember reading the report by Adair Turner—now the noble Lord, Lord Turner. He said that they had been told by the experts not to disturb the markets and to trust them. We were very impressed by that and trusted the markets, but they were wrong.
Obviously, the interesting point is that by then the market had so many new products, with fairly sophisticated probability models behind them, that it would have been necessary for the regulators to be constantly aware of new developments in this field to be one step ahead of where the market was. I will give a slightly technical example. Adair Turner said that they were told that the markets were efficient, and therefore we should try not to correct what the markets were doing. We now know that the people who believed the market efficiency hypothesis and all that—and who convinced the world—were using very simple normal or bell-shaped distribution to model movements in the stock market. While normal distribution is very easy and frequently used, it is not suitable for every occasion in the market. What we call fat-tailed distribution would have been better and predicted the crisis much sooner. But this is a technical matter.
The regulator might not know what is happening out there in the financial, economics field. It ought to be informed periodically where the knowledge has got to and where the products are. This is not something where the skilled person can necessarily come from the banking sector of one country or another. We might have to find a skilled person who knows how rapidly the market is changing, how new products are being developed, and how the nature of uncertainty itself is changing.
I believe that the amendment is very welcome. I will add one more thing. When I first read the Bill I was appalled that so much weight is being put on the FCA. I really feel that the FCA is not up to the task. I hope that after all this legislation, the Treasury review and so on we might get a better FCA, but I have grave doubts. If we are to have the FCA as it is right now, we urgently need a skilled person review, maybe not every five years but more frequently than that.
The noble Viscount, Lord Trenchard, referred to the cost. I can tell noble Lords that the cost of not doing this will be much more horrendous than the cost of doing it.
Baroness Noakes (Con)
My Lords, having been a director of a regulated bank for most of the last decade and therefore on the receiving end of regulation, the idea of a skilled person review of the regulators is immensely attractive.
The concept of a skilled person review appears in FiSMA as one of the regulators’ tools to be used when investigating the organisations they regulate. It was not used a great deal by the FSA, but over recent years skilled person reviews have become the weapon of choice for the PRA and the FCA, as the statistics given by my noble friend Lord Trenchard bore out. They can be effective tools for the regulators to get to the bottom of issues in individual institutions, but they are also very expensive and usually incentivise the skilled person to extend the work into later stages and wider remits. They can also be highly contentious, especially when the selected “skilled person” turns out to be less skilled than is needed for the task.
If there are to be skilled person reviews of the regulators, one thing that should have been included in subsection (3) of the amendment of the noble Baroness, Lady Bowles, is the use by regulators of their powers under Section 166 of FiSMA and more generally the provisions under Part XI. That could usefully be added to the list of items she has set out in proposed new subsection (3).
I was concerned that “skilled person” is not defined in the amendment—it is in FiSMA, but not in a way that would read across to this amendment. There also seems to be some confusion over whether a skilled person is involved or a body set up for the purpose, as seems to be suggested in subsection (2).
More substantively, I do not believe that a person nominated by your Lordships’ House and the other place should have any part in the conduct of such a review. I am not suggesting that there are no Members of either House who would have the skill to contribute to such a review; rather, I do not believe that Parliament should get involved in carrying out a review. Parliament should concentrate on its outcome, not its execution. I am also concerned that such a review could end up being a political football, given that proposed new subsection (3)(i) allows Parliament to request the inclusion of any matter in the review. The amendment is also silent on whom any report is to be made to and how it would interface with Parliament and its processes; for example, whether it is to be laid before Parliament or considered in any particular way.
I am sure my noble friend the Minister will not accept this amendment. However, if he does not, I invite him to explain to the Committee how the Government are satisfied that the PRA and the FCA are effective and fit for purpose, as it is not obvious that they are. If they are not, this makes a bigger case for bringing in some mechanism for an external review of the regulators to inform Parliament’s understanding of how well they discharge their responsibilities.
Lord Sikka (Lab) [V]
My Lords, I congratulate the noble Baronesses, Lady Bowles of Berkhamsted and Lady Kramer. I am delighted to support their suggestion for reform.
Last week, a number of proposals for arresting regulatory failures were put forward, each offering to help the regulator—what I call “acting as a guide dog for the watchdog”. This is another proposal which has considerable merit. It builds on the notion of an independent skilled person review, a practice that is already well established to some extent. However, in the details of the amendment, it differs from the conventional notion of a skilled person review in focusing on systemic factors rather than individual cases. These include matters relating to internal controls and operations, regulatory parameters, effectiveness, treatment of whistleblowers, public policy objectives and, more importantly, matters of public concern.
Although the amendment does not explicitly say so, I am sure that the noble Baronesses, Lady Bowles and Lady Kramer, would not be opposed to the independent skilled person review being conducted by a panel of retired judges; that could be feasible. The review in any case should be in the open, take evidence on oath and require the production of key documents from producers, consumers, intermediaries and other key parties in the finance industry. The panel could travel to different parts of the UK to take evidence and report within a specified period, like the Australian royal commission that we heard about earlier.
The main aim of the inquiry would be to focus on systemic problems, get to the bottom of the recurring and unresolved scandals in the industry, enable consumers to share their experiences with the industry and its regulators, and facilitate the legislative changes needed to secure confidence in the industry. The proposed review would be a necessary step to bring about a much-needed change in organisational culture and a sense of personal responsibility and accountability in the regulatory bodies, as well as the industry.
The proposed review and its specified headings of “regulatory perimeters”, “public concerns” and “effectiveness of relevant legislation” can also focus on neglected and emerging issues. A good example of issues totally neglected in the Bill, and by the FCA and PRA, are those about the impact of shadow banking. The shadow banking sector is intertwined with retail and investment banks, insurance companies, pension funds and others, and any crisis there is bound to have a huge impact on the rest of the economy. The sector could be worth nearly $117 trillion, far bigger than the world’s GDP; it is lightly regulated, and normal prudential rules do not apply to it. I remind the Committee that the 2007-08 financial crash was triggered not by mass withdrawals of bank deposits by savers but by the inability of Lehman Brothers and Bear Stearns, key players in the shadow banking system, to meet their contractual obligations arising out of speculative gambles. So there is an urgent need for an independent review; that is what we should be aiming for.
I want to reply to a couple of comments made earlier. The noble Viscount, Lord Trenchard, and the noble Baroness, Lady Noakes, referred to the issue of costs. As the noble Lord, Lord Desai, pointed out, the biggest cost is associated with the status quo, which has never been cost free. Over the months and years I have spoken to many victims of bank frauds who have lost their homes, businesses, savings, investments and pensions. All that any review panel or committee has to do is talk to them, and they will soon understand that there is a cost associated with the status quo.
The second point was the question of where on earth we would find these skilled persons. It is a sobering thought that it is not the skilled persons who told the world about any of the frauds or scandals. Journalists and ordinary people have been far more aware of what is wrong, and I am quite happy to trust their judgment to tell us what is wrong with the system, rather than having a very legalistic explanation.
I hope that in his response the Minister will now tell us how the Government have weighed up the evidence of systemic failures of the FCA and what assessment they have made of the impact of such failures on people’s lives. So far, Ministers have not supported any proposals for assisting the regulators or put forward any suggestions. Maybe the Government plan to appoint a royal commission or an independent public inquiry under the Inquiries Act 2005, or something else. It would be very helpful to know whether the Government are content or not content with the current state of affairs in the finance industry.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I understand that the noble Baroness, Lady Neville-Rolfe, has withdrawn, so I now call the noble Lord, Lord Naseby.
Lord Naseby (Con) [V]
My Lords, I would like to thank the noble Baroness, Lady Bowles, for the second time this afternoon for an interesting new clause. I have in the back of my mind the concluding words of the Minister of State, my noble friend Lord Agnew, when he introduced this Bill. Colleagues will remember that he said the Bill
“will support economic prosperity across the country, ensure financial stability, market integrity and consumer protection. It will ensure that the UK remains a world-class financial centre.”—[Official Report, 28/1/21; col. 1814.]
So we all know that the Bill is absolutely key. This particular amendment is about the enhanced role of the FCA and the PRA and, in particular, those who lead them. It means, frankly, that they are ever more powerful and important.
The amendment calls for a review after five years, although the noble Baroness, Lady Bowles, made it clear that, according to her contacts in Australia, a shorter period would have been better. I am quite clear in my own mind that five years is far too long. A great many changes are happening all the time, and I am quite sure that the market will remain dynamic and there will be many opportunities; personally, I would suggest a period of three years. You could argue for two, and I understand why you might, but I think that three years is about right, because it is quite a challenge for those who are running these two organisations to be reviewed after two years, which in effect means 18 months.
Should it be just one person? No, it is far too big a challenge for just one person. I believe there should be a team of three, and it should be the responsibility of one of them to be the chairman of the review, with a casting vote if necessary. In my experience of 12 years on the Public Accounts Committee, quite often a small working group would be set up of just three of us to look at the spread and success or otherwise of our work, and it seems to me that that was a good test market. Secondly, I had the privilege of being chairman of a quoted investment trust for some 10 years on a fixed-term basis. We had a limited number of non-executives and we decided that there should be a review every two to three years of the strategy that the operational company was following.
I say to the noble Baroness: well done for putting this forward. In principle, it ought to find favour from Her Majesty’s Government, although I am sure that the review period should be shorter than five years.
Baroness Kramer (LD)
My Lords, come another Monday, come another financial regulator story—this time in the Times. There are concerns that the FCA is going too slowly in its investigation of the Woodford scandal, to the point that Neil Woodford has felt confident about announcing plans to stage a comeback. It is just one story after another, and it very sadly makes the point. I think it is necessary to say that there are many—plenty—of good people at the FCA and the PRA, but clearly something is not working when we have regulatory scandal after regulatory scandal.
Financial services are notoriously difficult to police. The FCA is knee-deep in reviews that it has carried out after a failure, but the internal remedies that are promised every time perhaps help with the problem but do not seem to really cure it. Any financial services firm with a track record like the FCA would have been required by the regulator to bring in outside expertise to give an objective overview but then also to oversee change.
Lord Eatwell (Lab)
My Lords, one of the most important elements in this amendment is set out in the explanatory statement provided earlier by the noble Baroness, Lady Bowles, which says that the proposed general review is
“not linked to specific fault or failure”.
When we consider the history of the development of both international and domestic financial regulation, it has almost always been reactive: a model of crisis, then response. As a result, regulatory reform has typically been made in an atmosphere of crisis rather than an environment of thorough, calm consideration. So a periodic report by a skilled group might enable our regulatory system to get ahead of change in financial markets rather than persistently lag—and change, as we know, is persistent and indeed accelerating.
Another important factor that favours the proposals by the noble Baroness, Lady Bowles, is the extraordinary complacency evident in the documents issued with the Bill and in those issued so far that are associated with regulatory framework review. Organisations that in the past displayed a total lack of understanding of systemic risk in the markets they were supposed to be regulating should not resist external scrutiny and advice from well-informed parties; indeed, such external scrutiny would be in the national interest.
However—I am afraid I now come to that word—given the assurances of the Minister in summing up the debate we had on parliamentary scrutiny, I wonder whether we are at risk of creating too many committees and too many reviews. A well-resourced parliamentary scrutiny committee, which I trust the Minister has in mind, would recruit expert, experienced advisers to help them in the discharge of their responsibilities and would conduct periodic reviews. I must say that I was struck by the comment by the noble Baroness, Lady Kramer, that the buck stops with Parliament; indeed it does. I therefore suggest that it would be more fruitful for this Committee to concentrate on ensuring that well-resourced parliamentary scrutiny is indeed introduced, rather than taking the path suggested by the noble Baroness.
Earl Howe (Con)
My Lords, this amendment would require an independent review of both the FCA and the PRA every five years, and it sets out a number of things that the review would have to cover. The FCA was created to ensure that relevant markets work well. In practice, that means regulating the conduct of firms to make sure that the financial services sector is serving the interests of individuals, businesses and the economy as a whole. It has a broad remit and is responsible for regulating nearly 60,000 firms.
I accept the point made by the noble Baroness, Lady Bowles: the recent investigations by Dame Elizabeth Gloster and Raj Parker have shown that the FCA does not always get this completely right. However, the FCA is wholly committed to learning from past mistakes. It is addressing the recommendations in both these reports and we can see that commitment being translated into action.
The FCA has set out how it will accelerate its ongoing process of reform, including through its transformation programme led by the new CEO, Nikhil Rathi. It has committed to provide public updates on progress every six months, and it is right that the Government and Parliament hold it to account on delivering these important changes. The FCA absolutely knows what it needs to do, and that it needs to do it under a spotlight, both from the Treasury and from Parliament.
That is one part of my answer to my noble friend Lady Noakes, who asked me how the Government assure themselves that the regulators are fit for purpose. But the noble Baroness, Lady Bowles, spoke about the need for assurance and the noble Baroness, Lady Kramer, similarly, on the need for accountability. I reassure all three noble Baronesses that there already exist a number of mechanisms to hold regulators to account, both to Parliament to the Treasury. I believe that these existing mechanisms are sufficient to achieve the outcomes that this amendment is aiming at. I touched on some of these points in my previous remarks to this Committee, but I will attempt to provide a short summary here.
First of all, the regulators are required to produce annual reports and accounts, which are laid before Parliament by the Treasury and certified by the National Audit Office. The regulators are subject to full audit by the National Audit Office, and the NAO has the associated ability to launch value-for-money studies on the FCA and PRA. The FCA is subject to scrutiny via departmental Select Committee hearings, including the Public Accounts Committee and the Treasury Select Committee, which holds regular six-monthly meetings with the FCA CEO and Chair. The Treasury Select Committee scrutinises the appointments of the FCA Chair and CEO posts, and the Treasury has direct control over appointments to the FCA board and powers under the Financial Services Act 2012 to commission reviews and investigations.
The Treasury is also able to launch investigations under Section 77 of the Financial Services Act 2012 where it suspects there may have been regulatory failure. There are a number of informal mechanisms as well: there is nothing to prevent a Select Committee of either House launching inquiries, taking evidence on them, and reporting with recommendations; that is a decision for them. In speaking to Parliament about this Bill, both the PRA and FCA have stressed that they are committed to appropriate parliamentary scrutiny and will always respond to requests for engagement. Combined, these measures ensure that there is sufficient independent scrutiny of our regulators.
I am the first to agree that this is particularly important in light of Dame Elizabeth Gloster’s findings, but I reassure the Committee that, in addition to these measures, the Economic Secretary meets frequently with the FCA CEO to monitor progress on these critical reforms and ensure that the FCA remains focused on effectively delivering against its objectives. Of course, however, as we have discussed, the future regulatory framework review is considering the appropriate accountability mechanisms for the regulators, so this will provide an opportunity to consider these issues further. I hope that these remarks are helpful and sufficiently reassuring to the noble Baroness to enable her to withdraw her amendment.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I thank everybody who has spoken in what has turned out to be quite an interesting debate, the majority of whom have supported the general notion of my probing amendment, if not exactly all the specifics that I put into it, which perhaps tried to do too much. To clarify my intention, it was exactly as my noble friend Lady Kramer summarised: it was for a regular review that gave oversight to the regulator’s activities. As the noble Lord, Lord Sikka, said, the systemic factors also had oversight of that change.
I am sure that it is possible for this to come from other quarters. The Minister has suggested that it comes from the Treasury. Perhaps it could come from a parliamentary committee, although what I had in mind was not so much a body that solely took evidence but a few people who could get inside and examine procedures and find out how the operations worked.
Like others, I would like to clarify my concerns here. I know how difficult it is to be a regulator, especially to be the conduct and markets regulator, where things are less tangible than in some of the prudential regulation work, but it is about giving a helping hand. Although a lot of good thought and planning goes into how to address the problems that are exposed every time there is a review, if it is done from the inside, that is never the same as having eyes that come from outside. The thing about having an independent regulator is that, if you want independence, ultimately, the review should be independent. Having those reviews monitored through the Treasury is not necessarily the sort of independence that is satisfactory if you want to say that it is independent, and I question whether it is possible to do it through a parliamentary committee.
Baroness Noakes
“Continuity of contract
If the FCA exercises one or more of the powers under Article 23D of the Benchmarks Regulation in respect of a benchmark, any reference to or description of that benchmark in a contract, security or instrument must be, with effect from the date of such exercise, interpreted as a reference to or description of the benchmark as modified by the FCA under its powers under Article 23D.”Member’s explanatory statement
This amendment would ensure that if the FCA revised a benchmark under Article 23D (inserted by Clause 15) there would be continuity of contract by replacing references to the earlier benchmark with the revised one.
Baroness Noakes (Con)
My Lords, in moving Amendment 44 I shall speak to Amendment 45 in this group. I am grateful to the noble Baroness, Lady Bowles of Berkhamsted, and my noble friend Lord Holmes of Richmond for adding their names, especially as I had not expected to have any companions at all for these amendments, which are pretty technical and lack the sex appeal of some of the other groups of amendments.
These amendments concern what are known as tough legacy contracts in the context of the transition from Libor, which is expected to complete by the end of this year. The cessation of the use of Libor was first announced in 2017, and banks and other financial services firms have been working on transition since then. A principal focus for financial services firms has been on ensuring that new loans and other transactions do not reference Libor or, if they do, that there is legally watertight fallback language allowing the use of alternative rates once Libor is no longer available. This may sound easy, but I can assure the Committee that it has not been easy, and work is still ongoing. However, that is not the focus of these amendments, which are targeted at past contracts that reference Libor.
Despite considerable efforts, which will continue throughout this year, the industry has been clear from the outset that it is highly likely that there will be contracts at the end of 2021 which either have no fallback provisions or where the fallback provisions are effectively inoperable or would result in an uneconomic or unintended outcome. The regulators have been clear that the industry should solve this problem itself through bilateral or multilateral negotiations, and very considerable progress has been made. In particular, there is a revised ISDA protocol that will deal with the vast majority of derivative contracts. However, it is the case that not all contracts can be dealt with before the end of the year and possibly not at all, because there will be cases where there is no realistic means of proactive restructuring or where restructuring attempts fail.
The contracts in this legacy bucket are very varied. At one extreme, there are complex bonds which have multiple parties in many different jurisdictions, which range from hedge funds to Japanese retail investors. Getting agreement from all parties, which some bond documentation requires, is not feasible. At the other end of the spectrum are individual or SME borrowers who, for various reasons, such as default or dispute, may refuse to engage with the banks or lenders. The banks are particularly sensitised to the conduct issues that can arise if individuals or SMEs are unduly pressured to engage, especially in the context of the economic and health stresses of Covid-19.
The good news is that the regulators and the Treasury have accepted that there is a problem that needs to be solved, and this Bill contains some changes to the benchmarks regulation which will allow some legacy use of Libor, together with the ability for the FCA to set out how the benchmark is to be determined—the so-called “synthetic Libor”. These provisions have been widely welcomed by the financial services industry. However, the new provisions leave some legal loose ends, which I seek to address with my amendments.
Amendment 44 seeks to ensure that there is continuity of contract, so that any contracts transferred to synthetic Libor under the new provisions of the benchmark regulations are treated as if references to Libor were to the synthetic Libor. This is important, because a counterparty could well argue that the terms of the contract meant that, if Libor became unavailable, the contractual fallback provisions should be used instead of synthetic Libor. In the bond markets, I understand that this will in effect result in a floating rate bond becoming a fixed rate bond. In other commercial lending, the fallback will in many instances be some form of “cost of own funds”, the exact meaning of which is likely itself to be the subject of litigation. I understand that derivative contracts that cannot be restructured have no effective fallback language. I believe that a continuity of contract provision such as that provided in my Amendment 44 is essential to provide legal certainty for these situations.
Amendment 45 is a companion amendment, designed to give safe harbour from any legal claims. The opportunities for litigation could be significant, whether vexatious or not. In the retail and SME space there could even be a new opening for the dreadful claims management companies.
I should say that I claim no particular merit for the drafting of the amendments; I know that parliamentary counsel have their own ways of doing things, were the Government minded to accept the principle of these amendments. I have been assisted in the drafting by the International Capital Market Association and specialist City lawyers involved in its working groups. This has in turn drawn on the drafting of similar provisions by ARCC, the American Alternative Reference Rates Committee, for New York law. Given the international nature of some of the markets affected by tough legacy contracts, I believe the UK would be wise to act in a similar manner.
Since I tabled my amendments, the Treasury has issued a consultation paper on continuity of contract and safe harbour, which is a bit behind the pace but none the less very welcome. I know that the consultation period will run until 15 March; I hope my noble friend the Minister will update the Committee on how the Government now see this progressing.
The problems of continuity of contract and safe harbour cannot be dealt with by the FCA or the PRA because that is beyond their powers. The solution needs to reach beyond “supervised entities”, as it is not just banks and the like that need to be covered. The problems can be solved only by primary legislation. If we lose the opportunity of this Bill, I fail to see how the Government will be able to act, given that the deadline of the end of this year will be rushing up on us. Financial Services Bills are not an everyday occurrence —thank goodness—and it is important to understand how the Government will progress this important issue. I will be especially interested in my noble friend’s comments on how the Government see this. I beg to move.
Lord Holmes of Richmond (Con) [V]
My Lords, it is a pleasure to speak on this group; I declare my interests as set out in the register. It is an even greater pleasure to follow my noble friend Lady Noakes. She declared that she thought she would be a solitary performer on Amendments 44 and 45 because of their technical nature; they are certainly technical, but none the worse for it. They are absolutely necessary, as she set out. Almost irrespective of what happens beyond this point—much needs to happen—she has done a great service in throwing such a spotlight on this issue for everyone involved in this phase.
Like my noble friend, I was concerned about the seeming inoperability of many fallback positions in which various entities will find themselves. Like her, I ask my noble friend the Minister to look at that point. Similarly, can my noble friend the Minister say where the thinking is on synthetic Libor? Does she think that it is complete and that all reasonable eventualities have been considered within that construction? Alongside that, what representations has Her Majesty’s Treasury received, not least from the City and in relation to derivatives, which my noble friend Lady Noakes pointed out are a particularly sticky part of this issue?
On a previous group, my noble friend Lady Noakes described herself as a cynic—not a bit of it. She is certainly a healthy sceptic, and all the better for it.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I am pleased to support the amendment from the noble Baroness, Lady Noakes, which, as she explained, was tabled before the benchmarks consultation was launched. I share her thoughts that something nevertheless has to be done quite quickly if there is to be an opportunity to ensure that one can look forward to stability of contracts, knowing that something will be done before the end of the year. Maybe we are again in the territory of Parliament giving a consultation response through the debate.
Switching from Libor reminds me just a little—it is complicated—of the problem that we had with gilts being indexed to RPI rather than CPI, when RPI was both wrong and not being maintained by the ONS. The Economic Affairs Committee covered this in a report; indeed, we were tempted by Mark Carney to try to get it sorted out. Though I paraphrase, I think the report’s message was to grasp the nettle. That is certainly where I stood. That is really what the noble Baroness, Lady Noakes, is saying with the amendments: there needs to be continuity of contract. We do not want lots of litigation, so there needs to be a safe harbour. It makes one reflect on how wise some of the fallback positions possibly were, but we are where we are; in many instances, nobody really expected them to be activated. They are sometimes maybe not fair between the parties.
The explanations given already are very good. It would be useful to have something in the Bill. It might even be crafted in such a way that it could apply as the general precedent if one came across such circumstances again, heaven forbid. Benchmarks do change from time to time: one discovers that something is flawed, therefore one has to correct it. That should not disturb what could be made into something that can operate with continuity, certainty and without disadvantaging either side. I would therefore like the Government to take something up, if that is possible in the timeframe they have given themselves now that they have launched a consultation.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The next speaker is the noble Viscount, Lord Trenchard.
I believe the noble Viscount is muted. Would he be kind enough to unmute?
Viscount Trenchard (Con) [V]
[Inaudible]—Amendment 45 in the names of my noble friends Lady Noakes and Lord Holmes of Richmond, and of the noble Baroness, Lady Bowles of Berkhamsted. We are midway through the process of transitioning from the familiar Libor benchmarks, the replacements for which have become more necessary since banks’ funding patterns have changed following the financial crisis. My noble friend Lord Holmes already asked the Minister what he thinks about synthetic Libor. I would also be most interested to hear his reply on that.
The Investment Association welcomes the additional powers for the FCA in the Bill as it will be better able to manage the transition, which should help to mitigate the uncertainty for holders of derivative contracts. There is the additional uncertainty caused by the existence of only temporary equivalence between UK and EU benchmark regulations. It is to be hoped that the EU will soon adopt the European Council’s recommendation to extend the transitioning period for third-country benchmark administrators to the end of 2025.
My noble friend’s Amendments 44 and 45 would be helpful improvements to the Bill, by making it clear that changes to benchmarks made by the FCA will apply to contracts made under benchmarks being revised. Rightly, they offer a safe harbour protecting parties to such contracts from legal actions resulting from benchmark changes. It is encouraging, as I mentioned, that the Investment Association supports this part of the Bill and I welcome these powers being handed to the FCA. My noble friend’s amendments would improve and reduce the risks inherent in exercising these powers and I support them.
Lord Desai (Non-Afl)
My Lords, this is a technical matter and I have nothing to add to what was said by the noble Baroness, Lady Noakes. I am merely an academic but, when these things were going on, I wondered how people who swore by the free market could have had a cartel sitting in a little room, generating a rate of interest on which billions were based. Someday, somebody ought to explain to us how anybody could trust a cartel and hope that it will not be dishonest.
Lord Blackwell (Con) [V]
My Lords, I too support these amendments and welcome the fact that the Bill addresses these issues. While Libor may have been effective in the past, we all know that it was becoming an unviable way of setting rates and was subject to manipulation, in the way mentioned by the noble Lord, Lord Desai. It is therefore important that the regulators have taken a firm line in moving us on from Libor to other benchmarks. But, as my noble friend Lady Noakes set out, in doing that, there are lots of problems with continuity of contracts. The legislation is necessary to help address those issues and ensure that partners in contracts move together to a new common contract based on a synthetic Libor.
We have to recognise that no substitute for Libor will have exactly the same characteristics. There is no perfect substitute. Most contracts will be based on SONIA, the sterling overnight index average rate, but getting SONIA terms that have the same characteristics over time is not perfect, so there will be winners and losers. That is one reason why it is important that, to give certainty, the legislation requires the regulator to ensure that synthetic Libor interest rates are taken in the contracts as substituting for Libor for both parties.
As my noble friend Lady Noakes set out, however, some parties will not accept that. They will take the change in the contract as the basis to believe, argue or litigate that the contract has been abrogated. Some parties will be out of the money in a contract and it will simply serve their convenience to choose this method to abrogate the contract. Safe harbour is therefore an important secondary requirement. If banks are following the requirement of the regulator to stop using Libor, and following its instructions in substituting synthetic Libor, they cannot then be subject to litigation from counterparties claiming that, by following the instructions of the regulator, they have abrogated their contracts. This is an important thing for those contracts, which could, in particularly vulnerable contracts, involve vast sums of money.
The Government have launched a consultation on this, but I do not think that is a reason not to legislate in the timescale of this Bill. The problem has been known about for many months—indeed, years—and has been discussed. I do not believe the Government need a consultation to understand that there is a problem or that it must be dealt with. During the passage of this Bill, if not in these amendments then in the Government’s amendments, it is important for this to be incorporated into the Bill. Otherwise, the uncertainty will go on far too long. Libor will come to an end and these issues will present themselves. This Bill is the opportunity to address them.
In taking this issue seriously, can my noble friend the Minister commit that the Government will bring back amendments, or accept these amendments, during the passage of this Bill through the House?
Baroness Kramer (LD)
My Lords, I know we have to accept the safe harbour provisions in Amendment 45, but it would be slightly less galling if we had not had to drag the FCA kicking and screaming to investigate the Libor scandal. As noble Lords know, it was finally revealed after a series of American journalists published an investigation into Libor; it then took parliamentarians months to actually get the FCA to do anything about investigating. It first did so because, by that point, the Bank of England was involved in manipulating Libor as well, although, as I think I said in my Second Reading speech, it intervened to try to provide some element of financial stability for the more honourable purpose of disguising to the world how badly the banks had been hit by the 2008 crisis. However, all of them had been aware for years that Libor was being manipulated.
I say to the noble Lord, Lord Desai, that this was no secret cartel; traders were shouting their required Libor benchmarks—the ones that would assist their bonuses—openly across the trading floors of various banks. There was nothing secret in this. At the time, under the UK approach—which is that anything not forbidden is permitted; since there was nothing to say, you could not lie in contributing to a financial benchmark —it was apparently not a criminal act or fraud. I do not think it ever even invoked the senior managers regime which came in later, but many of the players who were deeply involved in all this were obviously still around. It is a real stain on London.
I accept the safe harbour, but one of the things that saddens me is that some of those who will be hardest hit by the transition are small companies. Loans with spreads over Libor were not restricted to large, sophisticated companies; those companies will manage to work their way through this and make sure, if they are moving to a particular benchmark or negotiating a contract with the financial organisation they are set up with, that they do not come out damaged. However, many small businesses are exceedingly worried and have no idea which way to turn—do they get shifted to a new benchmark or stay with synthetic Libor? I hate to say this, but I think the assumption will turn out to be justified that, whatever happens, the amount they will pay in interest will be ratcheted up compared to the interest they would have paid had Libor remained. I find it very hard to conceive of banks saying, “We will move you to Sonia and you will pay less than you would have”. I am afraid there will be rounding up involved in all this. I am not sure how we provide any kind of fairness and justice, but maybe the Minister can talk about that.
Lord Eatwell (Lab)
My Lords, the Libor scandal has precipitated a regulatory nightmare. How is the FCA to fulfil its statutory responsibility to ensure that markets function well when one of the foundation stones of those markets, the Libor benchmarks, are to be discontinued and replaced by untried underpinning?
The change in benchmarks is not only a problem for individual contracts, it is a systemic risk that the measures in the Bill do not—the FCA itself admits—entirely mitigate. To quote the FCA:
“Where parties to contracts referencing LIBOR cannot reach agreement on how those contracts would operate in the event of LIBOR’s cessation, discontinuation could cause uncertainty, litigation or loss of value because contracts no longer function as intended. If this problem affects large volumes of contracts it could pose risks to wider market integrity of contracts/financial instruments.”
The section in the Bill dealing with benchmarks attempts to limit the potential damage. The FCA describes one area of potential damage in these terms:
“This is to cater for a scenario where either a benchmark administrator informs the FCA of its intention to cease publication of a critical benchmark, or where contributors to the benchmark have notified the administrator of their intention to withdraw submissions to the benchmark before the relevant provisions in this Bill are commenced.”
Note that this is a plausible scenario in the FCA’s view.
How is it to be met? Among other measures there is the totally unrealistic proposal in Clause 9(3) that the FCA
“compel the administrator to continue publishing the benchmark”.
I cannot think of anything more likely to precipitate the systemic events that the FCA wishes to avoid. Then, remarkably, it amends Article 22(b) so that the FCA must provide
“a written notice stating that it considers that the benchmark is not representative of the market or economic reality that it is intended to measure or that the representativeness of the benchmark is at risk”.
What do we think that would do to the markets?
Despite the attempts in the Bill to deal with the cessation of the publication of a benchmark, there is, as the House of Commons Library notes suggest,
“risk of legal challenge and prolonged market uncertainty”.
That is the core of the problem that the Libor scandal has precipitated. I admit that the clauses in the Bill do their best to mitigate the risk, but even the authors of this section know that there is no entirely satisfactory solution. All they can do is cross their fingers and hope for the best.
The greatest risks are in retail markets: the ordinary family investor or, more pertinently, the ordinary family’s pension fund and, as the noble Baroness, Lady Kramer, said, small companies. They are the ones who are really at risk. There is nothing in this Bill to protect retail customers from that risk. When the Minister replies to this debate, perhaps she could reflect on the protection that should be provided for retail customers should the worst fears of the FCA be realised.
Amendment 44 in the name of the noble Baroness, Lady Noakes, seeks further to strengthen the defences against the plausible scenario by introducing continuity of contract when a benchmark is changed. This is an undoubtedly worthwhile addition to the armoury. It does not prevent adverse market reaction and loss of value—that problem remains—but at least continuity of contract will be there.
As I see it, Amendment 45 removes protection from the retail customer by preventing
“claim or cause … or liability in damages”.
This may well be unfortunate. The noble Baroness referred to claims companies. Pernicious though they may be, they were often the only recourse of the retail customer. As I understand it, the administrators of benchmarks could implement these changes themselves because powers that are given to them under Article 23D, where they are granted discretion, allow them to implement changes themselves, without concern for any consequent damages inflicted on holders of particular financial instruments. While I understand the thinking behind this safe harbour, I fear that it stands in stark contrast to the lack of protection for retail customers. Having read this section of the Bill carefully, I feel that the benchmark consultation is clearly necessary. The problems have not as yet been solved.
Baroness Penn (Con)
My Lords, as this debate has illustrated, when you hear about Libor it is hard not to think about the benchmark’s manipulation in the wake of the financial crisis. However, since then there has been substantial reform to the regulation of benchmarks and significant improvements have been made to the governance and controls around the submission and administration of Libor itself.
As a result of declining activity in the wholesale lending market that Libor seeks to measure, in 2015 the Financial Stability Board recommended a transition away from certain interest rate benchmarks including Libor to alternative rates based on active and liquid underlying markets. As Andrew Bailey remarked in his speech on Libor wind-down last summer,
“Public authorities and market participants … have … been working together to transition away from reliance on Libor for a number of years.”
It remains of the utmost importance that firms continue to prioritise the move away from the use of the Libor benchmark where possible. We need to reduce the number of contracts that refer to the Libor benchmark as much as possible before the agreement between the FCA and panel banks to continue submissions to Libor to facilitate this transition ends. For most Libor currencies, that is the end of this year.
However, it has been clear for some time that there will be certain tough legacy contracts that will not be able to transition away from Libor in time. In May 2020, the Working Group on Sterling Risk-Free Reference Rates highlighted the need for legislation to support these contracts. Without government intervention, parties to these contracts would be left without a means of determining contractual obligations when panel bank submissions cease, resulting in significant disruption.
Shortly after that, the Government announced their plans to give the FCA the powers to manage an orderly Libor wind-down through this Bill in a manner that protects consumers and market integrity. This includes legislation to deal with these tough legacy contracts. The UK was the first country to set out an appropriate regulatory framework to manage the wind-down of critical benchmarks, and this legislation has been very well received by industry.
My noble friend Lord Holmes and the noble Viscount, Lord Trenchard, asked about synthetic Libor. The proposed legislation does not prescribe what a synthetic benchmark might look like but allows the FCA flexibility and discretion as to what methodology change it might choose to impose. For example, the FCA could use this power to direct a change to Libor’s methodology so it is no longer reliant on panel bank submissions. The FCA has recently consulted the market on its proposed policy approach to using this power.
Turning to the amendments, Amendment 44 would require that where the FCA has used the powers given to it in this Bill to impose a change in the methodology of the benchmark, that new benchmark must be interpreted as the same benchmark in any contracts which reference the original benchmark. Amendment 45 seeks to reduce the scope for litigation where the FCA has exercised this power.
Since the introduction of this Bill, the Government have received representations from some key industry participants, highlighting a residual risk of disruption and potential litigation that they are concerned would remain even once the FCA has exercised its powers under this Bill. This risk is separate from the wider risks and impacts on markets that would materialise if the Government had not introduced legislation under this Bill, and it is this potential residual risk that these amendments seek to address. I appreciate noble Lords’ interest in this important issue and I reassure them that the Government are committed to looking at it and, if necessary, providing industry with any reassurance it needs. But I will now turn to the two fundamental reasons why we are unable to accept these amendments.
First, critical benchmarks such as Libor are widely used in a diverse range of products and contracts across the economy, so any action of the kind proposed in this amendment would affect a wide range of individuals and businesses. This must be taken into account before determining whether and how to act. As the noble Baroness, Lady Kramer, and the noble Lord, Lord Eatwell, have described, this would impact people outside the financial services industry.
Secondly, these amendments would intervene directly in private contracts, restricting the ability of contractual parties to seek legal redress were they to disagree with the imposition of synthetic Libor. I am sure that noble Lords agree that any such interference would need to be carefully considered and designed to be as narrow and targeted as possible while achieving the intended effect. It is therefore critical that the Government consider to the greatest extent reasonably possible the full range of Libor-referencing contracts and the impact any legal provisions, such as the ones proposed in these amendments, would have on parties to these contracts before deciding how to proceed on this issue.
For example, I am concerned that Amendment 45 would provide wide legal protection to parties using the revised benchmark against all forms of claim or causes of legal action associated with the exercise of the FCA’s Article 23D(2) power, as opposed to a more targeted form of legal protection. I have not yet been convinced that such a wide-ranging legal protection is appropriate, and it could have serious and significant unintended consequences.
For these reasons, the Treasury published a consultation specifically on this matter on 15 February, which is currently open for responses. This will allow us to properly consider these issues with the benefit of feedback from a broad range of Libor users. As the consultation is still open, I cannot say at this stage whether the responses provide evidence that a provision of this nature is necessary, or how such a provision should be structured, but I reassure noble Lords that the Government take this matter very seriously. Guided by the evidence gathered through this consultation, the Government will be well placed to decide if an intervention along the lines that these amendments intend is appropriate. I therefore ask that these amendments be withdrawn.
Baroness Noakes (Con)
My Lords, I start by thanking all noble Lords for taking part in this debate; I think all have supported my Amendment 44 on continuity of contract, and I think the noble Lord, Lord Eatwell, expressed some concerns in relation to Amendment 45, which dealt with safe harbour.
It is worth re-emphasising a point made by my noble friend the Minister: we should not confuse what happened with the Libor manipulation scandal—which was dreadful and affected not just the London market but the New York and other markets—with the reasons for withdrawal of Libor. As my noble friend has said, these were much more technical reasons regarding the suitability, durability and stability of Libor as a benchmark going forward. It is a more technical issue than harking back to the fact that it had been manipulated prior to the very significant improvements in benchmark administration that came about as a result of the benchmarks regulation.
“32B Gibraltar-based persons: taxation reporting(1) A Gibraltar-based person carrying on an activity approved under Schedule 2A, or which has permission by virtue of relevant Gibraltar provision to carry on an activity, in the United Kingdom must, as soon as reasonably practicable after the end of each financial year, submit to the Treasury a statement in respect of that year of the gross profit made from carrying on that activity or, where it is carrying on more than one such activity, from carrying on each activity.(2) The report under section 32A must specify—(a) the number of Gibraltar-based persons who submitted a statement under subsection (1) in the reporting period concerned,(b) the number of persons referred to in paragraph (a) who, at any time in that reporting period, were also authorised persons on some other basis under section 31,(c) the total of the amounts of gross profit in each statement submitted under subsection (1) in that reporting period, and(d) the total of the amount of tax chargeable in the United Kingdom on the amounts specified under paragraph (c) and, where tax is chargeable on a different basis for different amounts, the amount chargeable on each basis.(3) The report under section 32A must include an analysis of the difference between the taxation regime in the United Kingdom on profits made from carrying on activities of the kind referred to in subsection (1) and the equivalent regime in Gibraltar.(4) The report under section 32A must, in the light of the analysis under subsection (3), include such recommendations as the Treasury considers appropriate for improving transparency in the processes in the United Kingdom, and in the processes in Gibraltar, for levying and collecting tax on activities of the kind referred to in subsection (1).(5) A failure to submit a statement under subsection (1), or a failure to submit a statement under that subsection which is complete and accurate, is to be treated as a breach of the general prohibition.(6) A reference to a relevant Gibraltar provision is to be read with section 23 of the Financial Services Act 2021.”Member’s explanatory statement
This amendment would require any Gibraltar-based person carrying on activities in the UK to provide an annual statement to the Treasury of the profits it has made from those activities. The Treasury would then report to Parliament on the amount of tax chargeable on those profits and make any recommendations it thinks appropriate for improving transparency.
The Lord Bishop of St Albans
My Lords, Amendment 46, in my name and those of the noble Lord, Lord Sikka, and the noble Baroness, Lady Bennett of Manor Castle, probes whether the reporting requirements on financial firms operating from Gibraltar in the UK market are sufficiently robust, and it questions whether we might find a way to make them more transparent. The Gibraltar authorisation regime continues the established practice of companies operating from Gibraltar in the UK, which is why it is important to review whether the UK taxpayer receives a fair deal from this arrangement. The Companies Act 2006 already mandates foreign companies to register and file accounts to Companies House, yet some Gibraltar-based companies with registered subsidiaries in the UK have successfully used this system to reduce their tax bill.
Transfer pricing plays a major role in switching money between jurisdictions so that the costs are burdened on the area with the highest tax rates, with the profits channelled to the areas with the lowest tax. This is of course a global issue that requires global tax co-operation, but that does not mean that where possible we as a nation should not take measures to remedy the situation where we can. Financial services are one of Gibraltar’s primary industries, which is why I have tabled the amendment. Ideally, through stricter and more thorough reporting standards between Gibraltar and the UK, these should apply to all sectors. For example, in the online services and gaming industry, transactions are often placed in the UK by customers but processed by servers in Gibraltar, a technicality that allows what in reality is taxable income in the UK to be taxed in Gibraltar.
If such practices are well documented among the online gambling sector, I do not doubt that they extend to the financial sector as well. Without public country-by-country reporting, identifying dubious transfer pricing will continue to remain difficult. However, that should not deter us from strengthening reporting between Gibraltar and the UK, particularly given our official links. Surely it simply cannot be right that some of the major UK gambling firms pay an actual corporation tax in the UK of between 3% and 13% by either headquartering or using subsidiaries based in Gibraltar. Incidentally, we only know this because the size of these firms has brought them under the scrutiny of journalists who have investigated them. Given the commonality of these methods among larger corporations, financial firms of the SME variety could, and possibly do, engage in similar methods.
The fact that companies have been able to rather openly reduce their corporation tax bill by incorporating some of their operations in Gibraltar calls into question the current mechanisms for the effective and proper exchange of information between the two jurisdictions in relation to profits subject to tax. During his evidence session, the Minister said that corporation tax rate was not a factor in relocation to Gibraltar. No doubt, the Mediterranean climate and lifestyle make it a very attractive place to reside. Indeed, I have thought of little else over the recent cold days. However, for the purposes of reducing your corporation tax bill, only a partial relocation is required. Furthermore, Gibraltar provides a unique service in the “non-resident company”, a simple and cheap offshore corporate tax entity that even the most cursory search online will see marketed as an international investment and tax-planning vehicle, with all the usual connotations that this implies.
I do not want the many good people of Gibraltar to confuse my concerns as an attack on their territory, but the continuation of access to UK financial markets by permitted Gibraltar-based persons without a review into the effectiveness of the information exchange and the transparency of reporting requirements between the two jurisdictions will leave open avenues and incentives for businesses to reduce their actual UK tax obligations through Gibraltar-based tax planning. I hope that the Minister will be able to reflect on some of these issues and perhaps help me understand what we can do to improve the situation because we might need to revisit this later on. I beg to move.
Lord Eatwell (Lab)
My Lords, the provisions in the Bill dealing with relations with Gibraltar raise a number of intriguing questions. The probing amendment in the names of my noble friend Lord Tunnicliffe and myself is really seeking some answers. The Bill in effect creates a single financial market with Gibraltar, even to the extent of offering customers of Gibraltarian entities access to the Financial Services Compensation Scheme. In doing so, it forges a single market with a different jurisdiction, a jurisdiction that includes a different regulatory authority and notably—as the wording of the amendment in the name of the right reverend Prelate the Bishop of St Albans suggests—a fiscal jurisdiction that diverges significantly from that of the UK. I welcome the right reverend Prelate’s amendment.
When this country was a member of the European single market, there was, in essence, a single regulatory regime in the UK and Gibraltar, although the implementation of EU directives was not entirely uniform. In the Bill, the provisions on Gibraltar have been presented as a continuity measure. However, the UK’s new-found ability and declared intention to deviate from EU rules signals a substantial shift in our regulatory framework and potentially in its interplay with that of Gibraltar. The first part of Amendment 47 asks the Treasury to present in detail its assessment of how compatible the regulatory systems in the UK and Gibraltar actually are. It is important that people have confidence in the firms that will be allowed to operate in the UK. The Gibraltar authorisation regime, as it is called, being introduced by the Bill seeks alignment of law and practice in the UK and Gibraltar, but it does not prohibit Gibraltarian divergence.
I turn to the impact assessment. It is pointed out that the Gibraltarian authorisation regime will be established by a mix of primary legislation, secondary legislation, regulators’ rules, MOUs, policy statements and guidance. Given the unique nature of the creation of the single financial market, it is important that Parliament has the opportunity to assess this plethora of measures; hence the need for a Treasury statement in 12 months’ time.
It is further noted in the impact assessment that about 20% of motor insurance policies in the UK are written with Gibraltar-based insurers. When replying to the debate, will the Minister tell the Committee why he thinks that might be? What are the peculiar advantages of Gibraltar that have attracted such an extraordinarily high proportion of this UK business, and will those peculiar advantages continue as a result of the Bill?
At a time when the entire regulatory framework is under review, the Government might consider this to be the time to reassess the financial services relationships with the Crown dependencies as well. I am aware of the very different legal status of the Crown dependencies from that of Gibraltar and the fact that, given that the Crown dependencies were never members of the European Union, the UK’s exit does not pose the same range of new problems. However, the Minister will be aware that the financial services provided in the Crown dependencies are a vital part of the financial infrastructure of the UK, in particular with respect to the flow of liquidity into the London markets. Will the regulatory framework review cover the issue of the financial market relationships between the UK and the Crown dependencies? The regulatory framework review could take note, for example, of the fact that many regulatory practices in some Crown dependencies, such as the registration of beneficial ownership, are significantly superior to current practice in the UK. Given that the UK Government happily promote financial relations with Gibraltar, even though the Gibraltarian fiscal regime is significantly different from that in the UK, are they considering some enhancement of financial relationships with the Crown dependencies by, say, extending access to the Financial Services Compensation Scheme?
Baroness Neville-Rolfe (Con)
My Lords, we have been making slow progress, so I will be brief. I rise to question the appropriateness of these amendments on Gibraltar and the Crown dependencies. I appreciate that the second amendment in the group, Amendment 47, tabled in the name of the noble Lord, Lord Tunnicliffe, is probing in nature and I look forward to the Minister’s reply.
Amendment 46 is extraordinary. It targets Gibraltar with new and additional requirements at a time when it is facing particular challenges following Brexit and with a new treaty with the European Union still under negotiation. It seems that there are three arguments against these proposals. First, Gibraltar is autonomous and has its own democratically elected Government, setting their own regulations and taxes. Secondly, reporting regimes on businesses and the individuals who run them are burdensome and costly, and divert management effort from serving customers and building for the future. Thirdly, in the case of Gibraltar we are talking about our good friends. Many British people love and support Gibraltar. Its Government is well led, as I know from taking evidence from the First Minister to the EU Committee of this House and visiting him and his Government with the committee. I know that they have demonstrated their commitment to meeting international standards on issues such as illicit finance, tax transparency and anti-money laundering. I do not believe that there is a case for making things more difficult for Gibraltar’s businesses or those involved with proposals of the kind in this group.
Lord Rooker (Lab) [V]
My Lords, unlike the noble Baroness, I consider both the amendments to be probing in nature. As I said at Second Reading, I have no expertise or knowledge. I visited Gibraltar privately on holiday in 1977 and 1979, both times quite deliberately to give support because at that time the border with Spain was closed. As I had talked to the Foreign Office beforehand, I had the opportunity to speak with the Governor and members of the Government and the then trade union leader who later became First Minister. The dockyards were winding down, but one thing those people told me they did not want was Gibraltar to be dependent on being a brass-plate economy, and in effect that is what we are talking about. The right reverend Prelate gave some good examples. Transparency is crucial. It is a global issue. Identification of what is going on is required. The gambling figures the right reverend Prelate gave are a concern. My noble friend Lord Eatwell gave the figure of 20% of UK motoring. It is not for no reason that the biggest single donor to the Brexit campaign for exiting the EU has his insurance companies working out of Gibraltar, so there must be some reason that you can make a lot of extra money working through Gibraltar than you can in the UK.
The danger is that if we leave it as it is and build on it, Gibraltar will become the UK’s state of Delaware, the backstreet way to money laundering and other issues. Frankly, the EU will not stand for it. The financial structures of the services of the EU will be working closely and looking in detail at what is happening following Brexit. They are not going to stand for, effectively, a state of Delaware that has been inserted into Europe by the UK. Therefore we have to find a better way of doing this. One way of dealing with it is by openness and transparency. As the right reverend Prelate said, this is in no way an attack on the people of Gibraltar or, indeed, on the structures of Gibraltar. I have always been a strong supporter of Gibraltar having the right to choose, and 96% of Gibraltarians voted not to leave the EU. It was right at the time we did it that we incorporated Gibraltar into one of European UK constituencies. It is different from the other overseas territories of the UK, and because it is different, we must not allow the undermining of the financial system, so we have to find a better way of dealing with it. I look forward to the Minister giving some assurance on this and perhaps explaining, in answer to my noble friend’s question, why such a large proportion of the UK motor insurance system is worked out of Gibraltar. What is the reason for that? It cannot be the sunshine. The only reason can be money and profit—profit where less tax is paid. That is the basic reason that we have these probing amendments today. I look forward to the Minister’s answer.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Rooker. What we might label in shorthand “the Delaware danger” is very real. It was my pleasure to attach my name, as has the noble Lord, Lord Sikka, to Amendment 46 in the name of the right reverend Prelate the Bishop of St Albans. I also welcome Amendment 47 in the names of the noble Lords, Lord Tunnicliffe and Lord Eatwell. We heard from the noble Lord, Lord Eatwell, a clear and welcome outline of the peculiarities of the Gibraltar authorisation regime and the reason why we need to hear a lot more from the Minister about the justification for it and an explanation for some of the peculiarities that the noble Lord, Lord Rooker, just outlined.
I do not regard Amendment 46 as a probing amendment; I suggest that it is a modest amendment for improvement. It builds on an amendment from the noble Baroness, Lady Bowles of Berkhamsted, debated last week, which made broader country-by-country reporting proposals. Given that we have just seen the Government’s welcome incorporation into the Domestic Abuse Bill of a significant number of amendments proposed by noble Lords in that debate, we might hopefully see the same thing here before we get to the next stage of this Bill.
The noble Baroness, Lady Neville-Rolfe, suggested that this might be extraordinary, or be targeting Gibraltar in some way. As the noble Lord, Lord Eatwell, outlined, we are incorporating it in a truly extraordinary way within our system, so it is surely important that we have full transparency about what is happening. The noble Baroness, Lady Neville-Rolfe, said that we should not make it more difficult for Gibraltarian businesses. Whether it is motor insurance or the gambling industry, we are not talking here about the issue for Gibraltarian businesses; we are talking about businesses operating and making their profits in the UK, which should be paying their tax in the UK. On the Tax Justice Network corporate tax haven index—what might be called the ranking of infamy—I note that Gibraltar is ranked 28 on a scale where number 1 is the worst. While it is not the worst, given that there are scores of tax havens around the world, it is pretty well right up there.
It is estimated by the Tax Justice Network that the tax loss that Gibraltarian arrangements inflict on other nations is about US$4 billion. I do not have a breakdown of figures of where those losses are inflicted but, given what we have heard about both the motor insurance and the gambling industries, it is clear that a very significant portion of them will be in the UK. We also have to think about the nature of those industries; the gambling industry, in particular, inflicts significant major damage on individuals and communities in the UK and I believe that even the Government are looking to tighten controls on it.
Certainly, Amendment 46 offers a modest measure towards transparency, honesty and openness. If that should mean that certain industries pay tax on their profits in the UK, I do not see how that could be opposed. I ask the Government to comment on that.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I understand that the noble Baroness, Lady McIntosh of Pickering, has withdrawn, so I now call the noble Lord, Lord Sikka.
Lord Sikka (Lab) [V]
My Lords, I draw attention to my interests as set out in the register: I am an unpaid adviser to the Tax Justice Network. I strongly support Amendment 46 and congratulate the right reverend Prelate the Bishop of St Albans for providing the moral lead in securing tax justice and transparency.
As the noble Baroness, Lady Bennett, just pointed out, Gibraltar is one of the most secretive jurisdictions on this planet; indeed, it is among the top 30 most secretive, and inflicts tax losses on many nations including the UK. We all know that secrecy is an essential ingredient for tax avoidance and illicit financial flows. Over the years, Transparency International has reported that Gibraltar-based companies have been used to purchase properties in the UK, possibly with dirty money. Gibraltar has a population of around 33,000 but it has over 60,000 registered companies: that is, nearly two for every person living on the Rock. Many of these are just shell companies and little is really known about their authentic beneficial owners.
Gibraltar-based companies pop up in smuggling and bribery scandals all over the world. Unsurprisingly, a headline in the Guardian on 9 April 2017 said:
“Defend Gibraltar? Better Condemn it as a Dodgy Tax Haven”.
Little has changed. In February 2020, a report by the Council of Europe’s anti-money laundering body, MONEYVAL, called on Gibraltar to improve its efforts to combat, money-laundering and financing for terrorism.
The right reverend Prelate the Bishop of St Albans has already drawn attention to the tax haven aspects of Gibraltar. Unsurprisingly, many UK insurance and gambling companies are headquartered there because it is considerably more profitable to run UK operations from there by dodging UK taxes and increasing profit-related executive pay.
Research by TaxWatch shows that Gibraltar is indeed a hub for tax-avoidance: some 55% of the remote gambling services provided to UK-based customers are provided by companies based in Gibraltar. Most of the big companies, including William Hill, Ladbrokes and Bet365, have links to the Rock. Unibet’s website states that its servers are based in Malta, Alderney and Gibraltar and that it is registered and licensed in Gibraltar. The company is also listed on the New York Stock Exchange. This organisational maze provides opacity and tax avoidance and obfuscates accountability and the regulators’ ability to investigate.
William Hill has six subsidiaries in Gibraltar and is expected to pay around 12% in corporation tax for 2020, compared with the headline rate of just 19%. One of Ladbrokes Coral’s two licences to operate in the UK is registered in Gibraltar. On 9 August 2019, the Daily Mail reported that 32Red, which is based in Gibraltar,
“paid just £812,000 in corporation tax over ten years—an effective tax rate of just three per cent.”
The company is obviously not in Gibraltar just for the sunshine and the good climate. On 7 August 2020, the Daily Mail reported:
“Over the past two years, Bet 365 paid an effective tax rate of 12.7 percent on profits of £1.4 billion.”
Bet365’s accounts for the period 2015-19 show that the company’s corporation tax bill was £176 million lower because it has various operations in tax havens, including Gibraltar. Adjusting for inflation, Bet365 avoided around £182 million of UK corporation tax for the period 2015-19.
Ministers continue to tell us that companies should be taxed where sales and profits are made, but then we have this Bill, which will enable companies to book their profits in Gibraltar, even though they will have their sales and profits in the UK. The Government’s briefings on the Bill have not stated how much of the profits made in the UK are booked in Gibraltar and what the effect the Financial Services Bill will have on that.
The Government have a legal and moral duty for the good governance of Gibraltar and other jurisdictions to ensure that they do not continue to be what I call the world’s fiddle factories. Through this Bill, the Government are showering more gifts upon Gibraltar but without any quid pro quo; what exactly is it that we are getting in return? Can the Minister explain how these gifts aid tax justice in the UK? I strongly support Amendment 46 because it provides the basis for tax justice and transparency.
Baroness Kramer (LD)
My Lords, I will be very brief—this is not my area of expertise. I do not know if this is a required declaration, but my family have a small apartment in Andalusia; we do not rent it out, so there is no income involved—but it means that we have many neighbours who seem to run their financial affairs through Gibraltar, much to their general advantage.
Gibraltar suffers from a perception that it is something of a tax haven, and, indeed, most of the normal taxes that are levied in the UK or Spain are not levied there. However, I think we all feel great sympathy for Gibraltar; it has absolutely been caught in the Brexit conundrum and has seen many of its sources of income from the Navy and the military disappear over a number of years.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, this has been a very interesting brief debate. I will not follow the noble Lord, Lord Rooker, into speculating about Delaware because I am acutely conscious that the new President of the United States represented Delaware in the US Senate for 36 years. However, I appreciate what my noble friend Lady Neville-Rolfe and indeed the noble Baroness, Lady Kramer, said: I think that the people of Gibraltar merit sympathy and understanding.
Before I turn to the specific amendments tabled, it might be beneficial in the light of a number of the questions and comments to set out some of the intentions behind the introduction of the Gibraltar authorisation regime. As the right reverend Prelate said, the financial services industry plays an important role in Gibraltar’s economy, and Gibraltar-based firms have made extensive use of the existing market access arrangements between the UK and Gibraltar. It is true, as has been pointed out in this debate, that currently firms based in Gibraltar service a large retail consumer base in the United Kingdom, particularly in the insurance sector, where, as has been said, more than 20% of motor policies in the UK are written by Gibraltar-based insurers. The reasons for the concentration of motor insurance in Gibraltar are complex and obviously of a commercial nature, but it is natural that growth in a sector can lead to an agglomeration effect. Business attracts business, and that attracts people and talent.
I note the remarks that have been made in the debate on a range of companies. However, I remind noble Lords that the Bill is limited to financial services firms only. It will establish a new legal and institutional framework that provides for mutual market access and aligned standards in financial services between both jurisdictions. The United Kingdom and Gibraltar have a historic and unique relationship in financial services, and the UK has not had the same level of market access arrangements with any other jurisdiction. This regime will enable Gibraltar-based firms operating in the UK to continue to do so provided they meet certain standards. That way, the regime respects Gibraltar’s regulatory autonomy while ensuring high standards of supervision and consumer protection for UK customers.
On the amendments themselves, Amendment 46 would require any Gibraltar-based person carrying on authorised financial services activity in the UK to provide an annual statement to the Treasury of the profits it has made from those activities, and for the Treasury to report on this. This proposal cannot be supported by the Government because it does not reflect Gibraltar’s autonomy. As an overseas territory, Gibraltar is fiscally autonomous, and it has the right to set its own policy to support its economy within international standards and to determine its own tax rates. The scope of the GAR is focused on ensuring continued market access for Gibraltarian firms to the UK market based on the alignment of relevant law and practice. The GAR does not extend to taxation.
As my noble friend Lady Neville-Rolfe said, Gibraltar is already committed to meeting international standards on illicit finance, tax transparency and anti-money laundering, including those set by the OECD and the Financial Action Task Force. Gibraltar shares confidential information on company beneficial ownership and tax information with UK law enforcement bodies in real time and has agreed to introduce publicly accessible registers of company beneficial ownership. The Government were satisfied that the Gibraltar authorisation regime is rigorous and includes the right safeguards to ensure consistent standards of law and supervisory practice. I therefore ask that the amendment is withdrawn.
Amendment 47, in the names of the noble Lords, Lord Tunnicliffe and Lord Eatwell, would require the Treasury to report on the regime, the current position regarding financial services market access enjoyed by the Crown dependencies and the case for extending the regime to the Crown dependencies. I suggest to noble Lords that the first part of this amendment would replicate provisions that already exist in the Bill. Clause 22(3) of the Bill, which inserts a new Section 32A into the Financial Services and Markets Act 2000, already imposes a duty on HM Treasury to lay a report to Parliament on the operation of the regime. This report will be presented to both Houses within two years of the regime coming into force, and every two years from then on. It will specifically include an assessment of whether the alignment condition between the UK and Gibraltar is satisfied before market access is granted for an approved activity.
Noble Lords have alluded to the frequency of reporting. It has been chosen considering a range of relevant factors, including the length of time required to undertake a meaningful assessment. In this context, the amendment would simply duplicate this requirement within 12 months of the Bill receiving Royal Assent, potentially demanding a statement before this is appropriate and before any assessment has been completed.
Turning to the second point raised in this amendment, it is important to note—and the noble Lord, Lord Eatwell, acknowledged this—that no other overseas territory or Crown dependency has the same market access arrangements with the UK as Gibraltar has today. The Gibraltar authorisation regime has been designed to deliver the Government’s commitment to Gibraltar in 2018 to maintain long-term market access for financial services between our jurisdictions, based on shared high standards of regulation and modern arrangements for information-sharing, transparency and co-operation. This commitment and the framework reflect the unique historic position of Gibraltar and the UK, specifically the passporting arrangements that were in place when we were both members of the EU single market, as has been said.
In our judgment, it would not be appropriate to extend the operation of the regime to other jurisdictions that do not have the same starting point of close alignment between our rules and supervisory practice. The Treasury remains committed to working with the Crown dependencies, and there are existing tools, including equivalence, that enable different degrees of access to the UK market and are more appropriate for the circumstances of the Crown dependencies. Having considered those points, I therefore ask noble Lords not to press this amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have not received a request from anyone wishing to speak after the Minister, so I call the right reverend Prelate the Bishop of St Albans.
The Lord Bishop of St Albans
My Lords, I am most grateful to the Minister for the points that he has made. I too want to underline my support for Gibraltar. In this new post-Brexit world, I want us as a nation and our neighbouring countries, as well as Gibraltar, to flourish. However, we are also in a time of huge financial stringency, and there are very important issues here about tax justice. As so often when I sit in a debate in your Lordships’ House, I find myself realising that I am in a seminar and learning far more than I am giving. I am grateful to my noble colleagues and friends here for some of their explanations.
I am still unclear how the GAR will be reciprocated in terms of why we are giving these extraordinary benefits. I need time to go away and think about what the Minister has said. I certainly still look at the situation with puzzlement. I was struck by the comment by the noble Lord, Lord Sikka, that there are two registered companies for every citizen on the Rock. It sounds as if there are some extraordinary benefits which to some of us do not look to be reciprocated justly.
I will probably return to this on Report, but in the light of the comments and some of the limitations of the amendment as it is currently drawn up, I beg leave to withdraw it.
Baroness Scott of Bybrook (Con)
My Lords, this may be a convenient moment for the Committee to adjourn.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The Committee stands adjourned, but in so doing I remind everyone to sanitise desks and everything else within sight.