Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019

Debate between Baroness Bowles of Berkhamsted and Lord Bethell

Wednesday 16th October 2019 Grand Committee

[Lord Bethell (Con)]

My Lords, as the Committee will be more than aware, Parliament has now approved well over 50 EU exit SIs for financial services. That includes three miscellaneous provisions SIs, which are sometimes necessary to make isolated deficiency fixes that do not fit easily into more thematic instruments. These miscellaneous SIs have sometimes been used to correct minor errors in or omissions from earlier exit legislation. This instrument makes some such changes and updates some earlier exit provisions to account for the Article 50 extension. As I have explained to the House previously, the errors in our exit legislation have been minimal. Of approximately 1,300 pages of financial services instruments, miscellaneous instruments have accounted for only 60, with these miscellaneous instruments used only partially to correct errors.

However, this instrument also makes substantive changes to earlier exit legislation in two key areas: first, to the contractual continuity and temporary permissions regimes for payment services; and, secondly, to transitional arrangements for financial benchmarks. These changes are not to correct errors but to strengthen our readiness for exit. We are continually reviewing our exit arrangements to ensure that they are as robust as they can be. In these two areas, we decided it is right to do more to protect UK consumers of payment services and to prevent disruption to firms and markets that rely on financial benchmarks.

An important aspect of our no-deal preparations is the temporary permissions regime, which will enable European Economic Area firms that operate in the UK via a financial services passport to carry on their UK business after exit day while they seek to become fully UK-authorised. We have also introduced run-off mechanisms via the Financial Services Contracts (Transitional and Saving Provision) (EU Exit) Regulations 2019, which were made on 28 February, for EEA firms that do not enter the temporary permissions regime or that leave it without full UK authorisation.

Part 3 of this instrument supplements provisions for the temporary permissions and contractual continuity regimes for EEA payments and e-money firms through changes to underlying payment services and e-money legislation and previous EU exit SIs. A review of this legislation has identified a limited number of provisions that require amending by this SI to ensure that these temporary regimes are as robust as possible. The amendments fall into two categories. The first is to ensure that EEA firms in contractual run-off can continue to carry out various payment-related activities as intended. This will include provision of payment and e-money services by EEA credit institutions such as banks. The second category applies to the temporary regimes for EEA payments and e-money firms. These amendments clarify and make more explicit the full range of permissions and obligations of firms that enter these regimes. For example, the amendments make explicit that an EEA firm in a run-off regime can legally redeem outstanding electronic money, making it clear that it can return any balance on an account to UK e-money holders. In a limited number of areas, the instrument makes FCA powers more consistent with the powers it has with respect to credit institutions in the run-off regimes, for example by making explicit that the FCA may publish a register of firms in contractual run off. These changes ensure that the FCA has proportionate powers to take action to protect UK consumers.

The second substantive set of provisions in this instrument covers changes being made to the onshored benchmarks regulations by the Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019, which the House debated in February. As they stand, these onshored regulations contain a transitional regime for third-party benchmarks, allowing UK entities to use non-registered third-party benchmarks until 31 December 2019. However, since these regulations were made, it has become clear that there will be a damaging cliff-edge impact when this transitional regime expires at the end of 2019, a point highlighted by the Secondary Legislation Scrutiny Committee in its report published on 3 October.

Very few third-party benchmark administrators have made applications to be registered, and only two equivalence determinations have been made by the European Commission, covering only seven third-country benchmarks. If we leave the EU without a deal on 31 October, benchmark administrators outside the UK will have insufficient time to make an application under the UK regime by 31 December 2019. This would mean that UK firms would no longer be able to use those benchmarks for new contracts and products, causing considerable market disruption. For example, loss of access to third-party foreign exchange rate benchmarks, such as the Indian spot FX rate, could prevent firms carrying out important risk-management functions, such as hedging their currency risk. Equally, the inability to use equity benchmarks, such as the Nikkei 225, may make it more difficult for UK investors to gain or hedge equity exposures. These instruments extend the period that the transitional regime applies by three years, from the end of 2019 to the end of 2022, ensuring that benchmark administrators outside the UK have an appropriate period to make an application under the UK’s onshored third-country regime.

Finally, I want to explain the amendments that the instrument makes to our onshored equivalence framework. These amendments are purely for legal clarity and do not change the policy approach to equivalence that Parliament has already approved. When making an equivalence determination after exit, the law needs to be clear about on which aspects of the UK regime a third country has equivalent provisions. For example, if Parliament were to approve a decision on a third country having equivalent insurance regulation to the Solvency 2 directive, UK law will be clear that this refers to the UK’s implementation of Solvency 2 as it stands when the equivalence decision is made.

Before I conclude, I should point out that this instrument was made and laid before Parliament on 5 September, under the made-affirmative procedure provided for in the EU withdrawal Act. This is an urgent procedure which brings an affirmative instrument into law immediately, before Parliament has considered the legislation, but this procedure also requires that Parliament must consider and approve such a made affirmative instrument if it is to remain in law. As I explained to the House last week, the Government have not used this procedure lightly and it must be remembered that, across departments, we have already laid over 600 exit instruments under the usual secondary legislation procedures. Indeed, of the 58 SIs that the Treasury has put before Parliament, only four have been made using this procedure. But as we draw near to exit day, it is vital that we have all critical exit legislation in place, including legislation necessary to ensure that our financial services regulatory regime continues to function effectively from exit. Industry and our financial regulators need legal certainty on the regime that will apply from exit if we leave the EU without an agreement.

I have spoken of my gratitude for the hard work that has gone into preparing our regulatory regime for exit in previous EU exit SI debates, and I repeat that thanks. I know that the Bank of England, the FCA and industry have greatly appreciated the Treasury’s constructive, collaborative approach to this task. The legislation we have put before Parliament has been very positively received by the industry and has done a huge amount to provide confidence and reassurance that the UK’s regulatory regime will continue to work effectively in all scenarios. Once again, I thank all those involved. I hope colleagues will join me in supporting these regulations. I beg to move.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I thank the Minister for this introduction and also for sharing with us a draft of his speech. I appreciate that he us trying to be as helpful as possible, because this House is of course not involved in the various consultations. It is industry that gets the benefit of that. A point that I have made about when we get into non-Brexit legislation in future is that I think we need to have more consultation at the same time as industry.

As this is a financial services matter, I declare my interests as in the register. As the Minister said, this is a miscellaneous provisions SI, which have been thankfully rare from the Treasury. I repeat what we have said before: in general, the Treasury has done a very good job of converting the EU legislation into UK law and following a formula that we can generally see on all the documents as they come forward. I agree that it adds clarity and is a useful extension to previously defined transition periods.

I broadly welcome the provisions, in particular regarding the contractual run-off. It seems a very useful provision for the FCA to be able to list firms that are in contractual run-off, and it is very useful for consumers. I do not expect consumers to be wandering around the FCA website—I might do that and it is hard enough for me—but there are various consumer-oriented organisations, some of which make useful broadcasts to alert consumers to things.

They would find a use for that kind of information in circumstances where a consumer needs to be alerted: for example, if some provision is coming to an end or if the time is right for them to have to switch away from a provider that will not continue forever. It says that the FCA “may” do this; this is one of those occasions where I wish it said “shall”, because I regard this as essential and hope it is written with that spirit in mind.

Prospectus (Amendment etc.) (EU Exit) Regulations 2019

Debate between Baroness Bowles of Berkhamsted and Lord Bethell

Wednesday 16th October 2019 Grand Committee

[Lord Bethell (Con)]

My Lords, the Government have previously made all necessary legislation under the EU withdrawal Act to ensure that, in the event of a no-deal exit on 29 March 2019, there was a functioning legal and regulatory regime for financial services from exit day. Following the extension to the Article 50 process, new EU legislation has become applicable. Under the EU withdrawal Act, this legislation will form part of UK law at exit. Additional deficiency fixes are therefore necessary to ensure that the UK’s regulatory regime remains prepared for exit.

This instrument amends the EU prospectus regulation and related legislation, including a previous EU exit instrument—the Official Listing of Securities, Prospectus and Transparency (Amendment etc.) (EU Exit) Regulations 2019, or the official listing instrument. That instrument, which was debated back in February, fixed deficiencies in the EU prospectus regime prior to 29 March 2019. However, on 21 July 2019, the new EU prospectus regulation applied in full across the EU, replacing the existing regime.

The EU prospectus regulation contains the standardised rules that govern the format, content, approval and distribution of the prospectus that issuers may need to produce when securities are offered to the public or admitted to trading on a regulated market in an EEA state. Deficiency fixes to the new EU prospectus regulation are necessary to reflect that, after exit, the UK will be outside the EU single market and the EU’s regulatory and supervisory framework for financial services. Where appropriate, the amendments in the instrument follow the same approach as the prior amendments made in the official listing instrument to the UK prospectus regime. Overall, this instrument will ensure that the UK will continue to have an effective prospectus regime after exit.

First, after exit, EEA issuers wishing to access the UK market will be required to have their prospectus, or their registration document, approved directly by the Financial Conduct Authority, as any other third-country issuer would. Currently, an EEA issuer’s prospectus or registration document can be passported for use in the UK once it has been approved by an EEA regulator. To provide continuity, this instrument introduces transitional arrangements that will allow a prospectus approved by an EEA regulator and passported into the UK before exit to continue to be used and to be supplemented with additional information until the end of its normal period of validity.

Similarly, the instrument permits registration documents—the part of the prospectus that contains information on the issuer—that are passported into the UK before exit to continue to be used as a constituent part of a full prospectus in the UK. However, the full prospectus will still require FCA approval after exit. For both a full prospectus and a registration document, the period of validity is usually 12 months after it was originally approved. I should stress that the Government have worked very closely with the FCA in preparing this instrument. The FCA is confident that it has the appropriate level of resource to manage its responsibilities, including the approval of prospectuses as of exit day.

Secondly, the exemption for certain public bodies from the obligation to produce a prospectus under the EU prospectus regulation is maintained but is extended to the same set of public sector bodies of all third parties after exit. This exemption is limited to certain types of securities issued principally by Governments, central banks, local or regional authorities of a third country and public international bodies of which a third country is a member, such as the Nordic Investment Bank. This approach is in line with the approach previously taken in the official listing instrument. Noble Lords will remember that this issue was deliberated during the debate on that instrument in February and, as then, while this is a change from the current limitation to EEA states only, I believe it makes sense to extend this exemption more broadly. This will ensure UK capital markets continue to be attractive to public body issuers, which have historically raised substantial volumes of capital in the UK. We estimate that in 2016 and 2017 at least $84 billion was raised by public bodies making use of this exemption.

It is also important to remember that the EU prospectus regulation is not the only protection in place for those looking to invest in securities. Most significantly, the marketing and promotion of securities will remain subject to the financial promotion restrictions set out in the Financial Services and Markets Act and overseen by the FCA. The EU prospectus regulation allows issuers to incorporate information from certain documents that are available electronically elsewhere by making reference to them in a prospectus. This includes documents approved by the regulator of another EEA state. To provide continuity for market participants, this instrument sets out that information contained in the relevant documents approved by an EEA regulator before exit day can continue to be incorporated by reference in a UK prospectus going forward. However, the FCA will still need to approve any prospectus that incorporates information in this way before it can be used in the UK.

Lastly, this instrument ensures that matters in relation to the UK prospectus regime and transparency framework will continue to apply to Gibraltar, as they did prior to the UK’s departure from the EU. This is in line with the approach taken in other EU exit instruments.

As with all our EU exit legislation on financial services, the usual consultation process has not been used. It would have been unfeasible in the time available to prepare for exit. Nevertheless, the Treasury has engaged extensively with the financial services industry, particularly through TheCityUK, to develop our exit legislation, including this instrument. TheCityUK was supportive of the approach taken and helped to improve the clarity of the instrument.

Before I conclude, I want to address the procedure under which this instrument has been made. It, along with three other financial services exit instruments, were made and laid before Parliament on 5 September under the made-affirmative procedure provided for in the EU withdrawal Act. As described earlier, this is an urgent procedure which brings an affirmative instrument into law immediately, before Parliament has considered the legislation, but the procedure also requires that Parliament must consider and approve a made-affirmative instrument if it is to remain law. The Government have not used this procedure lightly but, as we draw near to exit day, it is vital that we have critical exit legislation in place. It would have been inappropriate to leave this until the last minute. Industry and our financial regulators want legal certainty on the regime that will apply from exit.

In summary, this Government believe that the proposed legislation is necessary to ensure that the UK’s prospectus regime can continue to function appropriately post-exit if the UK leaves the EU without a deal. I hope that noble Lords will join me in supporting these regulations, which I commend to the Committee.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I thank the Minister for his introduction to the statutory instrument and also for his previous email contacts. As has been said, the delay to Brexit has brought another EU regulation into scope and, given that it is a regulation, it is already directly applicable. As usual I must declare my interests as in the register and especially as a director of the London Stock Exchange. I think that prospectuses are slightly relevant there.

All the usual concerns that have been voiced previously, often by the noble Lord, Lord Tunnicliffe, and my noble friend Lady Kramer, as well as me, about the complexity of following the state of play of our UK legislation apply. In statutory instruments such as this, which is a second round of amendments, they seem to bear more heavily than usual. It is rather unfortunate that the word “regulation” applies at so many different levels. It is easy, even for someone like me, to wonder which regulation it is: is it the EU regulation, is it one of the regulations that we have done for Brexit, or is it an individual regulation within a set of regulations? That is not helpful, but there is not a lot we can do about it, other than choose a new name.

Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) (No. 2) Regulations 2019

Debate between Baroness Bowles of Berkhamsted and Lord Bethell

Tuesday 1st October 2019 Lords Chamber

[Lord Bethell (Con)]

As the House will be aware, the Government had previously made all necessary legislation, under the EU withdrawal Act, to ensure that, in the event of a no-deal exit on 29 March 2019, there was a functioning legal and regulatory regime for financial services from day one. Following the extension to the Article 50 process, new EU legislation will become applicable before 31 October and, under the EU withdrawal Act, this new legislation will form part of UK law at exit. Further deficiency fixes are therefore necessary to ensure that the UK’s regulatory regime remains prepared for exit. The approach taken in this instrument aligns with those financial services exit statutory instruments already approved by Parliament, providing continuity by maintaining existing legislation at the point of exit, but amending where necessary to ensure that it works effectively after exit.

I shall turn to the substance of the instrument. The European Markets Infrastructure Regulation, usually referred to as EMIR, implements the G20 Pittsburgh commitment from 2009 to regulate over-the-counter derivative markets in the aftermath of the financial crisis. EMIR was reviewed by the European Commission in 2015-16, resulting in an update known as EMIR REFIT. EMIR REFIT makes a series of technical changes so that the framework for over-the-counter derivatives, usually referred to as OTC derivatives, applies in a more proportionate way. EMIR REFIT focuses on users of OTC derivatives. It does not make significant changes to the rules for central counter- parties—CCPs. In particular, it provides exemptions from the requirement to clear trades in those derivatives through a CCP, because clearing is not always appropriate for all firms.

As the House will be aware, earlier EU exit legislation was used to address deficiencies in EMIR, as it will form part of UK law at exit. This instrument addresses new deficiencies which will arise as a result of the recent amendments made to EU legislation by EMIR REFIT, which came into force on 17 June 2019. After exit, the UK would be outside the EEA and outside the EU’s legal and supervisory framework for financial services. The EMIR framework that will form part of UK law at exit therefore needs to be updated to ensure that these new provisions continue to work effectively.

This instrument will ensure continuation of the new provisions introduced in EMIR REFIT and will transfer new EU functions to the appropriate UK authorities. Many provisions in EMIR REFIT will continue to work effectively at exit without significant amendments—for example, the exemption for small financial counterparties from the requirement to clear trades through a CCP.

However, there are two key deficiency fixes in this instrument which are necessary to ensure that EMIR REFIT is workable in a UK context. First, this instrument ensures that UK pension schemes will continue to be the exempt from the requirement to clear trades through a CCP. This is an important provision for industry and consumers; an exemption for pension schemes is needed because there is currently no approach to clearing that works without subjecting pension schemes to disproportionate cost, particularly the requirement to pay margin to the CCP. These additional costs would ultimately undermine the ability of pension funds to meet their obligations to pension holders. In the EU, EMIR REFIT currently includes a pension scheme clearing exemption which will last anywhere between two and four years. This instrument provides greater certainty and stability by ensuring that there is no ambiguity about the length of the extension. That extension will now last the full four years in the UK.

This fix is appropriate given the size and nature of the UK pension schemes, the vital role they play in pension provision and their crucial position as long-term investors in the UK economy. This instrument will provide the time to find a solution which balances the interests of pension schemes and CCPs, which will be particularly challenging in the UK context. The instrument enables the Treasury to extend the pension scheme exemption further, for up to two years at a time, if no appropriate solution for the UK market has been found. It also ensures that EEA pension schemes will continue to be exempted in the UK. This means that UK banks will still be able to trade derivatives with EEA pension schemes without using a CCP. Her Majesty’s Treasury committed to this action on 21 February to avoid disruption to UK businesses offering derivatives to EEA pension schemes.

Secondly, the instrument transfers the function to suspend the clearing obligation from the European Securities and Markets Authority and the European Commission to the Bank of England. In EMIR REFIT, ESMA can recommend that the European Commission suspend the clearing obligation in three-month increments for up to 12 months. We believe that the Bank of England is the most appropriate UK authority for this function, in line with the responsibilities that Parliament has already conferred on the Bank for financial stability and CCP supervision. The Bank of England must secure the consent of Her Majesty’s Treasury and inform the Financial Conduct Authority if it needs to suspend the clearing obligation in the UK. The Bank may decide to issue a suspension lasting for any period up to 12 months. Such flexibility will enable the Bank to reduce uncertainty for globally significant clearing members and clients based in the UK in the unlikely event that a suspension is necessary. Finally, this instrument ensures that all references to EMIR are up to date on exit day so that references in UK legislation after that point will refer to the right version.

The Treasury has been working closely with the Bank of England and the Financial Conduct Authority to prepare this instrument. We have also engaged the financial services industry extensively on it. The Treasury published the instrument in draft on 24 July ahead of the Summer Recess, to maximise transparency to Parliament and industry.

This legislation is necessary to ensure that EMIR legislation continues to function effectively in the UK from exit. In particular, it will ensure that UK firms are able to use the new provisions on proportionality introduced by EMIR REFIT, and that the Bank of England is able to take necessary action to safeguard financial stability where necessary. I hope that your Lordships will join me in supporting these regulations. I beg to move.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I must declare my interest as a director of the London Stock Exchange plc and Prime Collaterised Securities ASBL, as these measures may affect parts of the businesses with which I am involved. As I am sure many noble Lords already know, I also have a personal affinity with these matters having either negotiated them or left them on my to-do list for the European Commission when I ceased to be chair of the Committee on Economic and Monetary Affairs.

On the OTC derivatives and, in particular, the pension funds exemption, I can add a little history. It was a UK issue that came up rather late in the day, so it had to be pulled out of my magic negotiating bag during trialogues to fix it; and because it was a UK issue, there were not necessarily a lot of people who wanted to fix it. One thing that helped me on my way was that I managed to mobilise the defined benefit pension funds that had been taken over by German businesses when they took over some of the car industry. They suddenly decided that they had a workforce that might be concerned. That is just one of the levers that I managed to pull.