European Union (Withdrawal) Bill

Debate between Baroness Falkner of Margravine and Lord Carrington of Fulham

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Carrington of Fulham (Con)]

My Lords, I am conscious of the hour and shall try to be as brief as I can with what I am sorry to tell your Lordships is a rather technical proposed new clause. Therefore, what I have to say may be slightly tedious, but the new clause is intended to be helpful to the Government.

The new clause suggests a way in which the UK and the EU 27 working together—however improbable that may appear at times—could resolve some of the issues around the provision of financial services from the UK to the EU 27 and, perhaps as importantly, from the EU 27 into the UK. It is not a fully worked out scheme and could not be at this stage. To be capable of adoption, it would require agreement in the Brexit negotiations. It is, however, pretty much in line with the Prime Minister’s proposals in her speech at Mansion House on 2 March and the Chancellor’s in his speech on 7 March, so it might just be an acceptable way forward.

The importance of the financial services sector to the UK economy and the significance of the Brexit process to the sector are well understood by your Lordships. What is often called the City is not just London, with its leading position as a financial centre; it is important to the UK as a whole. Of the 2.2 million people who work in financial and related professional services in the UK, 1.5 million work outside London.

My new clause proposes a mechanism by which this very important sector might operate to best advantage in the UK and in the EU 27 after the UK’s withdrawal from the EU. I would like to be able to claim that this proposal is all my own work but, in reality, it is based on work undertaken by the International Regulatory Strategy Group, a practitioner-led group drawn from across the UK-based financial services sector, co-sponsored by the City of London Corporation and TheCityUK.

The new clause is based on the principle of mutual market access rather than the EU’s third country equivalence regime. To quote the Chancellor in his speech last Wednesday,

“that regime would be wholly inadequate for the scale and complexity of UK-EU financial services trade”.

The basis of the proposed new clause is the requirement to produce a report on market access set out in subsection (1). Currently, cross-border access for firms is given by passporting, as it is known, under the single market directives. A supplier of financial services obtains authorisation in the form of a licence from the regulator in its home country and that will then allow it to operate in any other member state without needing to obtain a separate licence from the regulator in that state.

Inevitably, passporting will disappear when the UK leaves the EU. The proposed new clause requires a report to be produced detailing the arrangement which might take its place, to enable trade to continue without the need for local licensing. Essentially, the arrangement seeks to confer mutual market access between the EU 27 and the UK without local licensing based on the terms of a free trade agreement.

This is, admittedly, ambitious, but needs to be seen in the context of the current arrangement of complete alignment and passporting. If a licence-free arrangement cannot be fully agreed, the requirement for a licence for international trading should be applied only where strictly necessary. The overarching objective to allow this arrangement to work would be, to quote the Prime Minister’s Mansion House speech, based on,

“the ability to access each other’s markets, based on … maintaining the same regulatory outcomes over time”.

Proposed subsection (2) sets out what needs to be achieved to make this aspiration reality.

I should make it clear that these paragraphs do not require that the regulatory requirements are the same. Rather, the objective is to frame the criteria for mutual market access as being that the UK’s and EU 27’s requirements are sufficiently aligned to enable the desired regulatory outcomes to be achieved. Of course, the financial regulations in both the UK and the EU 27 will change over time—and at times, quite dramatically. Resolving this problem is covered in subsection (2)(e), which covers the need to set up a forum for regulatory alignment, a joint UK-EU 27 body whose functions are set out in subsection (3). This forum would have a big role in sorting out the problems arising from regulatory divergence. The joint UK-EU 27 forum would facilitate proactive and co-operative engagement between the UK and EU 27 to resolve the problems.

I could expand further on the detail and, of course, I have not attempted to cover in this proposed new clause the consequential issues, such as arbitration and enforcement mechanisms. That alone is a subject on its own and bears on the arrangements for the independent institutional structure which replaces the ECJ’s oversight. I hope, however, that what I have set out would provide a collaborative, objective framework that is reciprocal and mutually agreed, and could be relied on by business. Indeed, it may be a framework which could also be adapted to business sectors beyond financial services. I beg to move.

[Baroness Falkner of Margravine (LD)]

My Lords, my name is attached to the amendment but I will, indeed, be brief. The noble Lord, Lord Carrington of Fulham, said that he tabled the proposed new clause to be helpful to the Government. That may well be his motivation; it is not entirely mine. I attached my name to the amendment to bring severely needed clarity to a few of the really important aspects of financial services regulation and supervision that we need now, rather than waiting until the end of the transition period.

In doing so, I declare that I chair the EU Financial Affairs Sub-Committee. I am also a member of the EU Select Committee, though I speak in a personal capacity. My committee recently wrote a report on financial regulation and supervision. It came home to us, in a very stark fashion, how little of the architecture of financial regulation and supervision will be clear to enable firms and businesses to do the planning they need to do. This essentially touches on two or three areas. The first is the continuity of the legal position of contracts and the legal position that affects businesses in terms of laws passed during the transition period, when the UK would be in full regulatory alignment with EU law.

Another aspect of concern to us was the extent of supervisory co-operation between the EU and the UK. The noble Lord, Lord Carrington, said he believes that the proposed new clause will reflect the views of the Prime Minister and the Chancellor in his recent HSBC speech. I agree that it will probably reflect those views, but I do not think it recognises that, in the European Commission’s draft negotiating guidelines or the European Parliament’s new paper, the idea of having provisions for financial services is dealt with either extremely skimpily or not at all. The amendment is perhaps somewhat optimistic, but nevertheless I want to hear from the Government; in that sense, my attachment of my name to the amendment is just to probe them.

Coming back to continuity of contracts, our inquiry was told by Stephen Jones from UK Finance that there were approximately,

“10,000 pages of EU originated financial services rules”.

The City of London Corporation told us that it sought, as a matter of urgency “clarity, stability and certainty”. I notice that the Chancellor raised those issues and said that he thought we could get that. However, the challenge of the technical detail of EU regulation has not been addressed by what the Government have told us as yet. One example of that is the Lamfalussy framework, which we looked at. We were told by the then Minister, Stephen Barclay—it is a sign of some concern that we do not get a Treasury Minister who deals with financial services in post long enough to have any continuity in the relationship; Mr Barclay is now gone and I think Mr Glen, who has other things going on at the moment with Salisbury and so on, has replaced him—that it would by a straightforward process. Levels 1 and 2 would be dealt with by primary legislation and levels 3 and 4 would be handed over to the regulators as part as the rulebook.

However, as we looked into this more closely, we did not think that it reflected what will happen in reality. I quote Simon Gleeson of Clifford Chance; he did not see even level 1 as straightforward. In our report, he said:

“When we translate that into UK law, if we simply copy Europe … we will be moving into our primary legislation stuff that properly belongs in regulators’ rulebooks … If we take a bunch of regulatory material that, almost by its nature, should be reasonably dynamic, and hard-bake it into statutory instruments, we are creating a monstrous procedural problem for ourselves in how we regulate the market”.


Inoperables are another issue. One of those is “in-flight” legislation, which I just referred to and is partly transposed—let us assume—during the transition period. However, much of EU financial services regulation takes four or five years to come into effect. Noble Lords may recall that MiFID II started in 2012 but came into effect only in January 2018. It seemed clear to us that we needed guidance and further direction on how the remaining parts of that in-flight legislation would come into EU law once we had actually left. My final example of that concerns the position of EU businesses in the UK. The Chancellor has said again that the Government will bring forward legislation to enable EEA firms and firms in the UK to obtain temporary permission, for a limited period. We need greater clarity on that.

It is a late hour so I will not labour this point, but there is a great deal of uncertainty on how the legal application of financial services regulations would work. On a recent visit to Brussels, the European Union Select Committee had the privilege of a discussion with Mr Barnier and Mr Verhofstadt. I notice that there is a great deal of emphasis in this clause on the IRSG’s proposals for a joint EU-UK alignment in respect of financial services that would take the form of a forum. I probed both of those people about the level of regulatory co-operation we could expect in the future, post withdrawal. We were not encouraged by their response, which was rather lukewarm. I do not think this proposal will get very far, but that does not mean that the Government can avoid setting out their intentions and how they envisage the strong regulatory alignment that they seek playing out in practice.

In his recent speech, the Chancellor acknowledged concerns about the legal framework for the regulation and supervision of financial services. The Commission’s draft guidelines on the withdrawal agreement foresee a large and continuing role for the European Court of Justice in adjudicating, in some cases for the whole of the foreseeable future. Although this may just be an opening shot in the negotiation, the defining of the EU positions makes it even more important that we force the Government’s rather reluctant hand, to make them spell out their thoughts on the conduct of business for financial services at the time of exit and beyond.

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[Lord Carrington of Fulham]

My Lords, I am most grateful to all noble Lords who have participated in this debate. We have had an interesting short debate which has highlighted some of the problems which the City of London is going to face. I will pick up on one point. I rather agree with my noble friend Lord Trenchard that the City will survive whatever happens and that there are workarounds for most of the problems that the City will face when operating inside Europe. What we are actually talking about is how to make those problems less difficult to resolve rather than attempting to find a solution to an intractable problem.

Having said that, I am grateful to my noble friend the Minister for his comments. He understands fully the issues that the City will face and I look forward to him having successful negotiations with the EU Commission. If its representatives have any sense at all, they will accept that they have as much to gain from a successful result to these negotiations as does the UK. On that note, I shall withdraw the amendment.

[Baroness Falkner of Margravine]

Before we dispense with the amendment I have a brief question for the Minister. If I have understood him correctly, he has just said that when the negotiations are complete, the Government would set out and clarify their position. Can he tell me what he means by “when the negotiations are complete”? Is he talking about the negotiations on the withdrawal agreement—in other words, by the end of this year—or the agreement on the FTA, in which case we will not know the parameters of the Government’s thinking until very much later when we are into the transition agreement itself? There I would have to agree with my noble friend Lady Kramer that essentially, businesses will have made up their mind and taken the necessary actions, not least because the regulators require them to carry out their contingency planning.