Taxation: Digital Publications

Baroness Kramer Excerpts

Thursday 6th December 2018 Lords Chamber

[Lord Young of Cookham]

I detect a certain degree of unanimity in the representations made so far. As I said, I have some sympathy with the argument that we should now equalise the tax on e-publications and conventional publications. We have had that freedom for only two days, so I hope the noble Lord will understand that we have not acted so far. However, meetings are under way with interested parties to develop the case. As I said earlier, if the Chancellor is convinced that a substantial case has been made, I am sure he will respond favourably.

[Baroness Kramer (LD)]

My Lords, research from the National Literacy Trust shows that one in eight children from disadvantaged backgrounds say they do not have a book of their own at home. Have the Government, in anticipation of this potential, done any assessment of what impact zero-rated VAT would have as a way to tackle reading inequalities? Do they plan any such assessment, as so many of these children have access to a smart phone or a tablet?

[Lord Young of Cookham]

Again, the noble Baroness makes the case for equalising. As far as literacy is concerned, this country has quite a good record if one looks at the international literacy standards. With e-publications for schools, at the moment the VAT can be got back through the local authorities. The noble Baroness adds reinforcements to the case that has already been made for using the freedom that we now have to equalise the rates.

Infrastructure and Projects Authority

Baroness Kramer Excerpts

Wednesday 10th October 2018 Lords Chamber

[Lord Young of Cookham]

As I said in my initial reply, the reviews are primarily aimed at the project leaders. They give them advice on how to identify risks and take mitigating action to ensure that those risks are circumvented to ensure that the project hits the relevant milestones. There might be occasions when Ministers have to intervene, for example, if some legislative change is needed or if fresh estimates and more money are required from the Treasury, but for the most part the reviews are aimed not at Ministers but at departmental leaders. As someone who has been a Minister, if I was in charge of a project that had a red tag attached to it by the IPA, I would take a very close interest in its progress and make sure that it was delivered.

[Baroness Kramer (LD)]

My Lords, I suggest to the Minister that if he were in charge of a project and he saw an amber/red, he would find within his department very few resources with the kind of expertise, training and coalface experience to be able to come to grips with these large, complex and high-risk projects. Will he take back to the Government the need to completely relook at resources and staffing against these projects? It is not the standard civil servant, nor the management consultants who are required; it is hard-bitten folk with real experience of the relevant industries, and the Government should start to put that rapidly in place.

[Lord Young of Cookham]

The noble Baroness raises a very important issue. If she looks at the annual report of the IPA, she will see the action it is taking in order to make sure that the Civil Service has exactly the skills and resources it needs. There is a fast-stream process and it is recruiting graduates and providing leadership programmes in order to ensure that the Civil Service does indeed have the capacity to manage these very large and costly projects.

Revised Draft Airports National Policy Statement

Baroness Kramer Excerpts

Thursday 15th March 2018 Lords Chamber

[Baroness Kramer (LD)]

My Lords, obviously the draft airports NPS will be the basis for the Government’s decision on the development consent application for a north-west runway at Heathrow Airport. I confess that I live under the flight path, so I suffer daily—I was woken this morning at 5.30, which has been very frustrating after the late hours that we have been here. I have long opposed expansion at Heathrow, well before ever becoming engaged in politics, on national as well as local issues.

It is often taken as given that there is a strong economic case for expansion at Heathrow, but that is exceedingly questionable. I am sure the Minister will be aware that the Davies commission agreed that it was clearly stated that the case for a third runway at Heathrow depended on a hub model of aviation prevailing over point-to-point. However, the shift in the industry is clearly towards point-to-point because, frankly, passengers hate changing planes. I say to the noble Lord, Lord Spicer, that his Chinese tenant is the exact example. People put up with this problematic hubbing, having to change planes and wait for hours in terminals for a second flight, until there is the opportunity to fly direct.

We are in an era where flying direct is becoming dominant. That is one reason for the rise of airports all across the various continents, and for a very fundamental change in the pattern of aviation that passengers themselves are demanding. What we have is a hub airport at Heathrow that is primarily and almost solely functioning on an outdated concept. The passenger forecast for the third runway is that there will be 41 million additional passengers a year, but that 22 million of them will simply be changing planes at Heathrow. I pick up the point made by the noble Baroness, Lady Jones: those 22 million contribute absolutely nothing to our national economy. A large part of the investment and the cost that we are carrying is to support literally half the passengers, who bring no specific benefit.

The economic case is also based on an assumption of a direct correlation between GDP growth and an increase in passenger numbers, particularly at Heathrow. That is very simplistic. We got a glimpse into how simplistic it was during the work of the Davies commission when it released the technical documents. I give credit to Justine Greening MP, who, at that time, through a number of FOIs, was able to get more information on the cost-benefit analysis, and it was clear that there really was nothing. Many people think that somehow there had been work with businesses in London to work out what the future demand would be; there was none. They thought that there had been a look at historical correlations; there were none. It is simply meant to be a given that as GDP goes up, there is a corresponding increase in demand for flights out of Heathrow. I say this with a warning, because the rail industry has had to cope with the fact that what it assumed was an unbreakable link between GDP growth and passenger demand for rail has now been clearly broken. For example, in London, the Tube has seen its passenger numbers this year down by almost 4 million. So the economic case is extremely simplistic and very unreliable.

None of the analyses ever included the negative impact on businesses from noise, poor air quality and, above all, traffic congestion, so the work has been inadequate. But, interestingly, even in that inadequate work, the latest piece of work done by the Government shows that a second runway at Gatwick is a better generator of long-term economic benefit than a third runway at Heathrow—a point made by the noble Lord, Lord McKenzie of Luton.

A number of key airlines, including BA—Willie Walsh’s name was quoted just now by the noble Lord, Lord Berkeley—have turned against the project because of the charges which they know they will have to pay and then have to pass on in ticket prices. No-one I talk to believes the cost of £17 million, which is often thrown around as the right number for this project. That number completely fails to include any realistic costing of the plans to move and then reinstate the M25 or, alternatively, to tunnel it. Until we get some reasonable costings, it is going to be very difficult to assess this, but £17 million is way too low, and any contractor will tell you that. To break even—even on that understated price—Heathrow will need to require the new runway to operate at 38% capacity from day one. The only way to achieve that kind of increase in flights at Heathrow is to lure flights—especially high-value flights by US airlines—away from Gatwick, Stansted and Birmingham, and possibly even farther afield, which would seriously compromise the viability of those other airports. This issue has never been properly examined and it bodes very ill for regional development.

Heathrow will incur a huge debt load as a result of building the third runway, and the pressure to service that debt means that Heathrow will inevitably focus its new capacity on long-haul popular destinations, where planes can be filled very quickly. That means New York and other near-US destinations, not flights to new developing markets in Africa and Asia. Even the NPS forecasts that the airport will reduce its network of domestic flights to serve, at best, only five domestic airports, compared with the eight that it serves today.

The noble Baroness, Lady Jones, talked extensively and so well on climate change. To meet the carbon targets in the Climate Change Act 2008, the third runway would require off-setting cuts across our regional airports. Passenger numbers would need to be cut by 36% in the south-west, by 11% in Scotland, by 14% in the north-west and by 55% in the West Midlands. Without that, carbon emissions from aviation would constitute 25% of our carbon emissions allowance by 2050. Again, the noble Baroness, Lady Jones, described that far more effectively than I can.

Of course, there are local issues. Getting passengers to and from the airport is a nightmare, both because of the impact on air quality and because of road and rail congestion. NOx emissions and particulates are severe around Heathrow even today, and legal limits are regularly breached. All the local access roads are heavily congested, so dispersal is not even possible. Even the London mayor’s plans for ultra-low emission zones does not solve the problem. In fact, this basically destroys the effectiveness of any of those plans, as the noble Baroness, Lady Jones, described. She talked about the health impacts of poor air quality, something we are becoming more and more aware of. So there are serious consequences to the air quality impact of a third runway.

The Government have promised that a third runway will lead to no more cars on the road—they do not say that about freight; we will have freight on the road but no more cars. Frankly, that is impossible. Every scheme to provide more rail access from London to Heathrow falls to pieces either because it requires tunnelling on a major scale at a huge cost or because it triggers the level-crossing problem. I will explain the level-crossing problem. In my former constituency of Richmond Park, the position of the River Thames, Richmond Park and the railway lines means that several thousand people can get in or out of the area only by using one of four roads that have level crossings. The rail lines are so busy that the level crossings are often down for 50 minutes out of the hour. A train service to Heathrow, which all agree—if passengers were willing to use it —would have to be a fast train running every 15 minutes with no more than one stop, would in effect close those level crossings completely, trapping the local population.

Transport for London has estimated that providing surface transport to support a third runway would cost £18 million, of which Heathrow has said it would pay £1 million, with the rest to fall on the taxpayer. That includes not a penny for resolving the level crossing problem. No engineer has found any solution to that, so we are talking about the impossible.

Last but not least, noise is a fundamental issue. I was astonished to hear praise for a six-and-a-half hour night flight ban. That ends at 5.30 am, and the traffic between 6 am and 7 am is what drives the community most insane. Also, the airlines constantly fly exceptions, created by some circumstance of weather or another, that always breach their current limits, and that will undoubtedly continue. It is an ongoing problem.

The noble Lord, Lord Naseby, talked about much quieter planes, but the problem is flights coming over in a constant stream so that there is never any relief from the level of noise, so even making planes quieter does not necessarily deal with that problem. There is an additional problem: Heathrow with a third runway will be running planes on two parallel runways. As the noble Lord knows, noise fans, so in the area between those two runways, the fan effect of two planes flying at the same time will be extraordinary. The operation of those two runways at the same time means that areas once affected only by take-off will now have take-off and landing.

[Lord Naseby]

I am not sure where the noble Baroness gets her information from. If one got the information for, let us say, two fighter jets taking off together, one would see that the increase in incremental noise is very small. Surely, since those are fair noisier than the aircraft that I was talking about, her facts are totally wrong.

[Baroness Kramer]

I will ask the Richmond Society to forward to the noble Lord the detailed modelling that has been done to show the impact of double noise on a significant section of the population. He may find that rather interesting.

Opposition to Heathrow comes from the overwhelming majority of residents in south-west London living under the flight path, four local councils and MPs of all political colours that represent that area. My party, the Liberal Democrats, and the Greens have consistently opposed expansion. When any of us hear of the mitigations, we apply that against our own experience. I lived in the area when Heathrow applied for the fourth terminal and we were assured there would be nothing more. Then came the fifth terminal, and we were assured again that anyone was foolish to suggest there would be a third runway. Then came a third runway and we were told, of course, there would be no sixth terminal. Now we hear of a sixth terminal to go with the third runway. This pattern continues regularly. In the same way, the mitigations—noise is a good example —never live up to their billing. Sitting outside—most people have the right to sit in their garden—is not helped by noise insulation inside a house; that works only provided all the windows and doors are closed, with the consequence that quality of life is severely affected.

[Lord Berkeley]

I am grateful to the noble Baroness. She quite rightly talked about more and more terminals. Does she have a view on the view expressed by the noble Lords, Lord Spicer and Lord Naseby, that we should be talking about probably four runways, if not five, to keep up with Dubai and Amsterdam?

[Baroness Kramer]

I think the noble Lord, Lord Spicer, was perhaps more honest than most. A lot of the PR that comes from Heathrow and much of the aviation industry suggests that every new increment will always be the last and it never is, because there is always a rationale and always money to be made from continually trying to expand capacity, particularly when the underlying strategy is to strip flights out of other airports in the UK. That ownership is no longer held in common has added great fire to that underpinning strategy.

I hope that the Government will reconsider again the whole notion of a third runway at Heathrow; there are other and better options. I understand that it is in some ways a sop to business because business tends just to assume that a third runway would be good without looking into the detail. This seemed a way to pacify businesses infuriated by Brexit.

[Lord Spicer]

The noble Baroness is making a very interesting speech, but how will we get in and out of the country—we are an island—as the population becomes larger and we do not expand our airports?

[Baroness Kramer]

My Lords, there are many regional airports—I personally look at Birmingham as the most obvious way to expand and it is part of our regional strategy. There are many alternatives to the third runway at Heathrow that were not considered by the Davies commission. There are mechanisms. Rail will be taking a different part of the strain domestically in future, so we are part of a changing pattern.

I do not want to keep the House longer.

[Lord Spicer]

You are passing the problem to Birmingham.

--- Later in debate ---

[Baroness Kramer]

Birmingham is eager to have a third runway, and there is a logic for it being there.

Heathrow has reached its limit. Frankly, it is time that the Government recognised that and looked for a better strategy.

Andrey Lugovoy and Dmitri Kovtun Freezing Order 2018

Baroness Kramer Excerpts

Tuesday 20th February 2018 Lords Chamber

[Lord Robathan (Con)]

My Lords, I commend the Government for taking this action. I also commend my right honourable friend the Security Minister in the other place for his comments about the assets of many people that have been brought here. They are probably illegally obtained moneys and are now held by oligarchs in this country who are laundering them through the banks here and buying up a great deal of London real estate.

I have been put on a stop list and cannot go to Russia. I would rather like to go to St Petersburg, never having been. I have probably been put on the stop list because I said something slightly disobliging about President Putin a few years ago. I urge the Government not just to pursue this matter but to be really fierce with the Russian Government, as I believe our Foreign Secretary has been. If the Russian Government get away with it, they will continue to get away with it and life will get worse, not better.

[Baroness Kramer (LD)]

My Lords, I support the continuation of the freeze on the assets of Andrey Lugovoy and Dmitri Kovtun, but they had years in which to reorder their finances before the first asset freeze came about in 2016. I point out that there is a lesson there: in the future the Government need to act quickly. The delay in the public inquiry and in acting to freeze the assets was, frankly, shamefully long. Beyond this just being a heinous crime, the murder was also, as my colleague in the other place, Tom Brake MP, said at the time of the public inquiry, an assault on our sovereignty. Those are two fundamental issues that should have urged us to rapid action.

I have a couple of questions for the Minister. Having reread the order, I am unclear about whether it applies to cryptocurrencies. If it does, I wonder whether the Minister can guide me to the relevant article or paragraph in the order and explain to me how on earth action against cryptocurrencies will be enforced. Because those currencies are beginning to play a major role in many areas of asset purchases and payments, it is important that we make sure that the issue is covered, and I would appreciate the Minister’s comments on that.

I also want to ask the Minister about the situation in the British Overseas Territories. The Government have firmly refused to require the overseas territories to make their registers of beneficial ownership open to public scrutiny. They have argued that the facility for UK authorities to inquire whether beneficial ownership is associated with individuals such as these two is sufficient for them to be able to enforce. How often have the relevant British enforcement authorities investigated this and are either of these men using the overseas territories and shell companies to continue to access financial services and markets? If the Minister does not have an answer now, could he write to me on that issue?

Capita

Baroness Kramer Excerpts

Thursday 1st February 2018 Lords Chamber

[Lord Young of Cookham]

On the first question, I understand that dividends have been suspended. That was part of the announcement. That, together with the rights issue of some £700 million, will mean that there will be some additional £900 million available in cash to the company. I will write to the noble Lord. I have asked about the Crown representative. I was assured that one had been in place. I will drop him a line on the specific question of 12 months, but there has been, and indeed is, a Crown representative on the board.

[Baroness Kramer (LD)]

My Lords, I hope that the Government will understand that they now have a very strong warning sign from both the Carillion and Capita events that they have been concentrating their outsourcing on far too small a group of companies, but also companies that, partly through their concentration, are too complex not just to manage, but to audit, or for the analysts or the credit rating agencies to get a grip on them. Will the Government strengthen the assessment capability for central and local government, and other parts of the public sector, so that they can comprehend the risk far more accurately at the prequalification stage, when contracts are to be let, and during the period of supervision? Picking up on diversification, which is certainly crucial to small entities, does he understand that diversification in and of itself is necessary to break the systemic risk that comes with overconcentration?

[Lord Young of Cookham]

On the noble Baroness’s first point about it being too complex, I believe that the chief executive officer himself, Jon Lewis, said yesterday that it is too complex and he wants to streamline it, hence the asset disposal and the streamlining of the operation.

I know that more personnel have been recruited within the Cabinet Office to beef up the Government’s capacity to supervise these contracts. I take on board the point that the noble Baroness made about making sure the Government have the resources to monitor the contracts we have placed with private sector companies.

We are at one on her final point. We would like to reduce the concentration of these big contracts to a small number of companies. We would like to broaden the base and see more companies bidding for these contracts and winning them.

Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) (Amendment) Order 2018

Baroness Kramer Excerpts

Thursday 1st February 2018 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, the order amends existing regulations to clarify an outstanding regulatory issue for the peer-to-peer lending industry. Peer-to-peer lending is not what happens at the Bishops’ Bar, but a thriving business activity which I will describe in a moment.

Specifically, the order, drafted in consultation with the Financial Conduct Authority and the Prudential Regulation Authority, will set out when a business borrowing via a peer-to-peer lending platform would need to have a deposit-taking licence to do so.

Peer-to-peer lending is a relatively new financial service, with the world’s first peer-to-peer loan originating in the UK in 2005. This nascent industry has experienced rapid growth and, at the industry’s request, the Government legislated to bring running a peer-to-peer lending platform into the scope of financial services regulation. Running a peer-to-peer platform is a discrete activity and not, for example, another type of asset management service. It allows investors, including consumers, to lend money directly to businesses or other consumers via the peer-to-peer platform.

The Government therefore introduced bespoke legislation regulating peer-to-peer lending where it interacts with consumers. This means that all P2P platforms used by consumers need to be authorised by the FCA and comply with financial, organisational and conduct requirements. These requirements include rules regarding separation of client money, business conduct such as fair treatment of customers, financial promotions and creditworthiness and affordability assessments.

This approach to regulation has allowed the industry to thrive, and £3.5 billion was lent via peer-to-peer platforms in 2016. In 2016, peer-to-peer lending to businesses grew 36% compared with the previous year, and was the equivalent of 15% of all new loans by UK banks to microenterprises in 2016. These impressive statistics demonstrate the Government’s commitment to fostering a diverse and competitive financial services sector which delivers quality services at efficient prices.

There is a degree of risk in members of the public making deposits, as they may not necessarily have the same degree of financial literacy as professional lenders. As a result, regulation surrounds businesses accepting deposits from the public. Under current legislation, conditions set out that if a business wishes to accept deposits from the public in order to wholly or materially finance their activities, such as a bank, they must be authorised and regulated by the FCA and the PRA. This could be termed “accepting deposits by way of business”. The regulatory permission for accepting deposits by way of business is known colloquially as a banking licence.

Currently when a business borrows money via a peer-to-peer platform, the legislation could be read as saying that businesses are technically accepting deposits from the public “by way of business” and therefore require a banking licence. In reality, it is not the case that the core business of these borrowers is accepting deposits. If it were, they would, for example, be operating like a bank and require FCA and PRA oversight.

However, for the vast majority of commercial borrowers, borrowing via peer-to-peer platforms is simply a way of financing their business—for example, capital expenditure. In the existing legislation as inherited by this new industry, there exists uncertainty as to whether those who are not accepting deposits as their core business would still need to be regulated.

It remains the case that peer-to-peer platforms used by consumers should be regulated, but some peer-to-peer platforms are therefore unsure as to whether businesses borrowing via their platform would require a banking licence. The practicalities of obtaining and then maintaining a banking licence just to borrow via a peer-to-peer platform would be burdensome for both the borrower and the platform, increasing costs and making it unviable as an efficient source of finance.

The order therefore provides clarity for peer-to-peer platforms and their business borrowers regarding the regulatory framework. It does this in a number of ways, specifically by making clear that where a peer-to-peer borrower is using deposits solely to finance their other business activity, they should not need a banking licence, and by ensuring that regulated financial institutions still need a banking licence to accept funds from the public, regardless of whether they do so via peer-to-peer or other means.

The order is required to provide certainty to peer-to-peer lending platforms and the businesses which fund their growth and other costs through this means. The certainty provided by the order will ensure that no undue burdens are placed on the sector or businesses because of legislation which predates the invention of this financial service. I beg to move.

[Baroness Kramer (LD)]

My Lords, I may have been the first person in this House to use the phrase peer-to-peer lending, to the enormous amusement of Lord Peston, who misunderstood it as “pier to pier”, which, as he said, was impossible. It is now a widely accepted, very successful strategy. I am not sure if this is officially a conflict of interest, but I declare that one of my children is an employee of a peer-to-peer lending platform. Back in the old days—and certainly before my son was involved—my noble friend Lord Sharkey and I helped to construct the framework that sits behind the regulations. We obviously missed a trick in allowing this discrepancy to enter the regulation, and for that, I—also on behalf of my noble friend—apologise. I am very glad that the Government are clearing up this misconception.

[Lord Tunnicliffe (Lab)]

My Lords, I came to the order in a state of almost complete ignorance, having never been involved in peer-to-peer activity in my life and not entirely understanding what it was. I did some research, and it seems that through peer-to-peer lending, the lender can get a better rate of return and the borrower has to pay less. I am reminded of the advice I would give anyone when it comes to financial affairs: “If it is too good to be true, it is too good to be true”. It is too good to be true in the sense that, in a peer-to-peer environment, one can lose one’s total investment and one is not covered by the FSCS guarantee.

I then did a bit more googling, and picked up an article from Which?, which stated:

“Two of the biggest peer-to-peer (P2P) lenders in the UK have been beset by problems over the past month, with RateSetter forced to make up a near £9m loan-deal gone sour and Zopa customers experiencing a severe cut in returns. So, is the market for peer-to-peer lending headed for trouble? RateSetter has announced that it had to intervene to protect investors from losing money in struggling wholesale loans. The company, which lent £664m last year, has now confirmed it has left a peer-to-peer lending trade body for breaching transparency rules”.


I say that because, with no experience, you have to turn to Google, but it does not look as though the peer-to-peer environment is entirely without problems.

I then read the order and the Explanatory Memorandum and it seemed to me in some way deregulatory. The last thing I naturally want when I read about this is for peer-to-peer lending to be deregulated. I then tried to understand the situation more carefully, and I concluded that peer-to-peer lending activity involves three parties: investors, platforms and borrowers. It is important to be absolutely clear what the order does to each of those groups. In my understanding, investors are in no way regulated and therefore the order has no impact on them, except where the investor is a company or firm involved in financial services.

My question to myself, which I have partly answered, is: are the platforms regulated? As has already been said, they are. Perhaps the Minister would enlarge slightly on his brief reference to the regulation of the platforms. The key question is: is the regulation of platforms in any way impacted on by the order?

Finally, under the present regulations, are borrowers regulated? Clearly they are if they are in the financial services business, but if they are ordinary firms, are they in any way regulated? I think that that is what the order seeks to address. The final question that sums up everything is: is the SI in practice solely related to borrowers? Does it leave the protection of customers using the platform in its present regulated state?

Co-operative and Community Benefit Societies Act 2014 (Amendments to Audit Requirements) Order 2017

Baroness Kramer Excerpts

Thursday 1st February 2018 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, these three orders relate to the mutuals sector, which encompasses co-operatives, community benefit societies, credit unions and building societies. In the mutuals sector the interests of members, not shareholders, are paramount. Mutuals are an important part of Britain’s diverse and resilient economy, and we wish to keep it that way. Recognising this, the Government have brought forward a package of measures to provide further support for the sector and level the playing field between mutuals and companies.

There are nearly 7,000 co-operatives in Britain today, which together contribute more than £36 billion to the UK economy. They employ over 200,000 people and are part-owned by 13.6 million members of our society. The Government recognise the value of co-operatives and want to ensure they are not saddled with unnecessary administrative burdens. Since 2012, small companies have enjoyed an exemption from the requirement in the Companies Act 2006 to have their accounts fully audited.

The first statutory instrument, the Co-operative and Community Benefit Societies Act 2014 (Amendments to Audit Requirements) Order 2017, will increase the thresholds at which co-ops are required to appoint a professional auditor from £2.8 million in assets and £5.6 million in turnover to £5.1 million in assets and £10.2 million in turnover, in line with those for companies. While this proposal is deregulatory, noble Lords can be confident that appropriate controls remain in place. Members must vote to apply the exemption and the regulators can still demand a full audit if they have concerns over the management of a co-operative. Furthermore, co-operatives which disapply the requirement to appoint a professional auditor will still be required to prepare a less onerous audit report.

The second of the three orders before the House is the draft Building Societies (Restricted Transactions) (Amendment to the Prohibition on Entering into Derivatives Transactions) Order 2018. Building societies serve over 20 million UK customers and are an integral source of loans to first-time buyers. In order to offer fixed-rate mortgages, building societies must hedge against the risk of interest-rate changes and may do so by buying derivatives. The European markets infrastructure regulation of 2012 requires all derivatives to be centrally cleared. This means that building societies must either become direct members of a clearing house or clear through third-party members.

However, as it currently stands, the legislation prevents building societies complying with the membership rules of the main UK clearing house. The specific rule which we are concerned with requires that, in the event of a member defaulting, other members must bid for a portion of the defaulted member’s derivatives portfolio. Under current legislation, building societies cannot take part in this process because they are prohibited from trading derivatives for any purpose other than to hedge balance-sheet risk. As a result, building societies must clear indirectly through third parties which are members, placing them on an uneven footing as compared to banks. Clearing through third parties incurs expensive broker fees and makes building societies dependent on clearing-house members continuing to offer this service.

This SI will amend the Building Societies Act 1986, which I believe I put on the statute book, to allow building societies to trade derivatives not just to hedge their balance-sheet risk but for the purpose of complying with the membership rules of a clearing house. The Government have consulted representatives of the building societies and the Prudential Regulation Authority in developing these proposals, and they are content.

The last order before the House concerns mutuals in Northern Ireland including, for this purpose, credit unions. Under the Financial Services and Markets Act 2000, mutuals in Great Britain are registered with and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. As noble Lords will recall, prior to the appointment of the FCA as the primary financial services regulator, this function was performed by the Financial Services Authority. Following the failure of Presbyterian Mutual in October 2008, at a cost to the taxpayer of £50 million, Northern Ireland Ministers and HM Treasury agreed that responsibility for regulating Northern Ireland credit unions and other mutuals should transfer to the FSA. Responsibility for regulation was transferred in 2011. The aim of this transfer was to provide members of those mutuals with access to the Financial Services Compensation Scheme and the Financial Ombudsman Service, among other benefits.

It was intended that the registration of Northern Ireland’s mutuals should follow in due course, once the establishment of the new Financial Conduct Authority and Prudential Regulation Authority was completed. It is clearly logical for registration and regulatory oversight to lie with a single authority. The Northern Ireland registering authority, the Department for the Economy, also supports the move. A good deal of preparatory work has now taken place, and Department for the Economy and FCA officials are working closely to ensure that Northern Ireland’s mutuals are supported during the transfer of registration, which is set to occur on 6 April this year. Societies previously registered with the Department for the Economy will not have to re-register; their records will simply be transferred to the FCA.

I trust that the Members of the House will agree that these orders represent a welcome update to mutuals legislation across the country for the wider benefit of the sector. I commend the orders to the House.

[Baroness Kramer (LD)]

My Lords, I have a few questions to ask the Minister on these orders, although I cannot see anything major wrong with them. The first order the Minister described lifts the threshold at which point a co-op is required to have a professional audit. I have two questions on that. Looking through the attendant paperwork, I notice that responses to the consultation came from different co-operative societies. It is no surprise that they would wish to be on a level playing field with their various competitors which are privately owned companies, so I perfectly understand why they feel it is unfair that they should carry a cost burden which their competitors of the same size do not. But there is a difference between a private company and a co-op, which is that the membership of the co-op, which in effect is its ownership, is typically much more widely cast and made up of a large number of people who may not have a great deal of financial sophistication, whereas the owners of a privately owned company may have much greater awareness of the financial structure and happenings within that company. So I wonder to what extent the Government in their consultations took into account the exposure of relatively small people to losses that might seem quite small to those who have very large incomes but might be significant to those who are part of the membership of a co-op. It is the first area of concern.

Secondly, I am curious to understand the choice of benchmark. From the outside, it looks slightly random. I wonder whether it was done on a percentage of size within the industry or whether there was some structural characteristic within the industry that led to the choice of that benchmark.

The second issue the Minister addressed was the provision of the order that would allow building societies to be members of clearing houses. I think that all of us in this House agree that it is crucial that interest-rate swaps are cleared through a central counterparty—in the UK that would usually be the London Clearing House—and that it is very frustrating for building societies and mutuals to have to go the agency route and pay a brokerage fee, usually through an existing member which, quite frankly, is fairly disinterested in the service that it provides to that building society, never mind charging for it—so I am entirely on board. Can the Minister strengthen his confirmation that this provides no capacity for building societies to engage in speculation? It seems to be very clear that it does not. We all recognise that anyone providing a fixed-rate mortgage can do so only if they can hedge it through a derivatives contract, so that is an entirely appropriate and necessary use of a derivatives contract, or by doing it at the level of the balance sheet to achieve the same kind of protection.

Financial Guidance and Claims Bill [HL]

Baroness Kramer Excerpts

Tuesday 24th October 2017 Lords Chamber

[Viscount Brookeborough (CB)]

My Lords, as a member of that committee, I support this amendment. This is different from some of the other amendments that have come under Clause 2(7), because this is really already there as far as schools go, but it just falls short of doing what it should. For instance it talks about the “provision of financial education” and then says,

“working with others in the financial services”.

Your Lordships might sympathise with what Martin Lewis says:

“We do not ask GlaxoSmithKline to pay for chemistry. This is on the national curriculum. Why are we asking banks to pay for it?”.


Why are we asking financial institutions? I am perfectly happy that, as the Minister will say, “Yes, we do ask them and they do something”, but it is really small and does not begin to touch.

Here are just a few statistics to show why we are talking about education. I will not try to bore your Lordships with them all, but they put this into perspective: 40% of the working population have less than £100 in savings; one in six struggle to identify a single bank balance; around a third of the population, 17 million, cannot even manage a budget; and 26% of postgraduates —that is all—are confident in managing their money. The excellent FCA report which came out at the weekend also shows why it is important. I will come to education in schools in a minute, which is fairly horrifying, but the report says:

“Adults with postgraduate degrees are just as likely to feel uncertain about their abilities as those educated to GCSE level”.


So, with all due respect, there is simply nothing going on. Many do not understand the excessive interest rates on unauthorised overdrafts, for example, or revolving credit card balances and the interest rates that are put on those. They do not understand payday loans very much—although it is interesting to note, since we were ready to condemn them, that payday loans are actually cheaper than some of the other loans available, which is quite surprising. That is not because payday loans are cheap but because interest rates on credit cards and unauthorised overdrafts are not only ridiculous but incredibly unfair, as they do not even notify you. At least when you take out a payday loan, you know that you have borrowed £1,000. With most banks, you would not have a clue until you got the bill. So the question is not straightforward. These statistics are all true; they come from evidence that we took and the survey that I just mentioned, showing how very poor the understanding of basic financial matters is in this country. We are way behind others, including, I believe, China.

This whole problem ultimately causes so much unhappiness and stress and will mean a higher cost than otherwise to the welfare state, purely because of the number of people who could have managed but do not because no one told them how. It is all due to a single cause: the lack of financial education in schools. The Bill talks about,

“the provision of financial education to children and young people”.

Where are children and young people, and where are you going to educate them? Even I went to a school, and that is the only place where you have them all in one place. You do not honestly think that on a Saturday, instead of going to the cinema, they will go to a class on financial education. So there is only one place for it: the schoolroom. You have only to add “in school” to the wording and you almost have the amendment as it stands.

Financial education could be introduced into primary schools. However, although we are aware that there is some excellent work in primary schools—the Minister may come back and say, “There are good stories about primary schools because they teach people things”, and they do—in answer to question 179 in our evidence transcript, Adrian Lyons of Ofsted, who was incredibly useful and very nice about it, said of ex-primary schoolchildren,

“but then the children go to secondary school and hit a brick wall”.

That completely sums it up. What a condemnation that is from Ofsted itself.

What of the addition of financial education to the secondary school curriculum in 2014? The first point is that to most sane people a curriculum is what people have to learn. Believe it or not, though, there are actually two curriculums, one non-statutory and the other, the national one, statutory. You have got it in one: this is on the non-statutory curriculum, because it lies within the PSHE programme. It gets worse, as only 35% of state schools come under that so-called curriculum—all the free schools and academies are outside it. We need not say that financial education is being taught in schools as a curriculum subject; clearly it is not, as we would understand it, and it definitely does not go anywhere.

Financial education lies within PSHE subjects but they are not statutory. Guess what happens. Time devoted to PSHE has been reduced by 32% since 2011 because it is non-statutory and there is not enough time for it. Why? One reason for that was suggested by the PSHE representative, who said that schools,

“have so little time for it”,

characterising the situation as follows:

“We only have 20 minutes, and if we don’t do something on sexual exploitation or online safety we’re going to be in trouble over safeguarding”.


To all intents and purposes, that is the end of your secondary school financial education. Adrian Lyons said that Ofsted produces a state-of-the-nation education report. Our chairman, the noble Baroness, Lady Tyler, asked,

“how much was there on financial education in the last one?”.

Mr Lyons’s answer was:

“I do not know the answer to that, but I would be surprised if there was any, to be honest”.


I think we know that it was zero.

Here we have something that is all about life skills. After all, school, at the end of the day, is concerned with life skills. You are not going to survive on geography alone; you are not going to survive on physics or other things alone. We are talking about very basic financial management; we are not talking about pensions. We are saying: if you save one sweet every day until the end of the week, you will get five sweets; and if you want to borrow five sweets from me, you can pay me 10 next week. As a foundation, it is as simple as that, but the inspectorate does not even look at it. This amendment could change all that.

Of course, Ofsted says that you cannot judge something—I seem to think that this is how it puts it—without having exam marks, and there are no exam marks here. Ofsted is about marking schools. It is also about encouraging schools to do the right thing and to teach life skills, so why not initially find a way of saying, “Do you teach financial education? How much do you teach? Okay, we’ll give you 10 points for that”? At least that would be an incentive to do what they should.

When we talked about education in schools, every reason under the sun was given for why they would not or could not do it. We did not have the teachers in front of us. I am terribly sympathetic about teachers’ time, so I am not getting at them. There is no time. Teachers are not confident to teach this subject but, as I have said, we are talking about the basics. Any teacher on a salary is going to know something about saving or spending or not having enough money or whatever. I just do not believe that that is the reason.

The FCA book shows a really poor record on everything, yet schools are the only place where we have young people’s attention. What are we meant to be doing? If we say that schools should not be the place—we have already had several amendments turned down because they were too well defined or because they have added too many lines—where should it be? It is not going to be in church, so I suggest that it should be in schools and that we do something to make sure that it is done; otherwise, it will not be done. When we talk to people about where it might be done, why it is not done and the problems with that, it is somebody else’s problem. No doubt we will be told that it is the education board’s problem, or whatever there is. I am telling noble Lords that that is passing the buck. The sooner we get “schools” written in the Bill, the better.

[Baroness Kramer (LD)]

My Lords, I will add just a brief comment in this area, as the noble Viscount, Lord Brookeborough, has really made the case. A few years ago, when I was dealing much more with banking institutions, one of them very proudly showed me its pack for schools. All that I came away with was that its logo and colours were all over everything. Had this been presented to an adult, they would have regarded it as a sales pitch rather than an educational tool. That was rather worrying. We are moving into an era where there is huge disruption of all the traditional players. On a personal basis, many of the people making decisions to save or borrow will be looking at many of the new disrupters—the challengers, the peer-to-peers, the digital bodies and whatever else. If we are looking towards the handful of major high-street players to be the providers of financial education, particularly to the young, they will not be introducing that world, which they very much regard as threatening. Yet that is the world of the future that our youngsters will have to deal with. The Government have to be very cautious about how they use providers as a delivery instrument for this education.

[Lord McKenzie of Luton]

My Lords, I am grateful to the noble Viscount, Lord Brookeborough, for his contribution to this debate. It is a pity that there were not more people in the Chamber to hear the powerful case that he made.

Actually, I do not think that the Minister has responded yet—my apologies.

Financial Guidance and Claims Bill [HL]

Baroness Kramer Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 13th September 2017 Lords Chamber

We are making progress but the world of claims management is live, creative and fleet of foot. No sooner is one loophole closed than another is found and exploited. I just hope my amendments might help us propel the regulators one step ahead of all those constantly undermining the civility and stability of our society by setting people against one another purely for their own financial gain. I beg to move.

[Baroness Kramer (LD)]

My Lords, this is not an area that I knew about before the noble Lord, Lord Hunt of Wirral, got to his feet, but he has thoroughly persuaded me and I hope that he has thoroughly persuaded the Government.

[The Earl of Kinnoull (CB)]

My Lords, as usual, the noble Lord, Lord Hunt, is right on the money and I do not disagree with a word that he said. I would add one tiny little thing: the net effect of the MROs and the CHCs is that they add to the cost of motor insurance in this country so that poorer people who struggle to pay their motor insurance will find it further away from them. For that solid reason, I strongly support the noble Lord’s two amendments.

--- Later in debate ---

[Baroness Altmann (Con)]

My Lords, I, too, rise briefly to support my noble friend’s amendment and congratulate him on laying it in the way he has. I certainly sympathise with him about wishing to put in measures which might originally seem out of scope and the need to be rather convoluted about it. I also echo the words of the noble Baroness, Lady Drake: these are issues that have been recommended by the Financial Services Consumer Panel, highlighted by the Lords Select Committee on Financial Exclusion and would go some way to help change corporate culture to support those who are going through serious, perhaps unexpected, illness and need time to adjust to their circumstances or to cope with their treatment.

The cancer charities are rightly raising this issue and it would be very helpful if the FCA were able to encourage firms to introduce some kind of special measures or special help in recognition of the circumstances that people will from time to time find themselves in—not only to help those people when they apply for that help but to encourage somebody who has had a cancer diagnosis, for example, to ask for help, which very often right now they do not even think of doing. Therefore, I hope my noble friend will take this matter to heart and take this opportunity to address an issue that could have serious and important social benefit.

[Baroness Kramer]

My Lords, I was a member of the Parliamentary Commission on Banking Standards, which looked at the duty of care issue. In the end, the commission made the decision not to pursue the matter and to empower the FCA to take up regulation and play a role. I thought at the time that was not a good decision but the argument was very much based on the idea that the remit of the Parliamentary Commission on Banking Standards was to do with banking, and that the new banking standards body would tackle many of these culture issues, of which duty of care is obviously an inherent part. Looking at the work of that banking standards body, I do not think most of us think it has followed that direction. I do not see any significant change in pressure from the various bodies, whether applied to banks or financial institutions, to make them become much more conscious of the needs of their customers, especially vulnerable ones.

I have never understood why the industry has resisted this duty. Frankly, it is akin to constraints on mis-selling as behaving in the wrong way towards any individual, providing them with an inappropriate service and not giving them adequate support to understand whether that is the service they need surely falls into that mis-selling category. Expanding the powers of the FCA to allow it to provide a more general approach through the mechanism of duty of care would make the FCA’s job on issues such as mis-selling significantly easier. Therefore, I hope very much that the Government will take this on board. Frankly, the long-grass decision is very frustrating. Whenever I hear that an important piece of legislation is being postponed because we have the Brexit Bill, I begin to wonder whether we recognise appropriately the needs of the country.

[Lord McKenzie of Luton]

My Lords, this is an important amendment and we should congratulate the noble Lord on its introduction. It goes to the heart of what the regulation of claims management companies should be about, although I think we recognise that it is a surrogate for a broader duty of care issue. It is understood that there will anyway be a consultation around the regulatory principles that the FCA should adopt. Others have commented on the timing of that. Perhaps the Minister will let us have his view on whether the current timescale attached to that is appropriate.

The issue takes us back in part to our debates on earlier sections of the Bill, and to the current position of the FCA and the CMRU. As the Brady report sets out, the primary objectives of the CMRU are protecting and promoting the interests of consumers, protecting and promoting the public interest and improving standards of competence and conduct of authorised persons. This is quite different from the operational objectives of the FCA, which are to secure appropriate protection for consumers, protect and enhance the integrity of the UK financial system and promote effective competition in the interests of consumers.

Some of the “ideal organisational objectives” for claims management regulation proposed by the Brady review co-mingled some of this but included empowering consumers to choose a value-for-money service as well as maintaining adequate and effective access to justice.

While I support the noble Lord’s proposals, I quibble on the inclusion of “where appropriate”. Where is this not appropriate? Certainly, the proposed new subsection (1)(a) places a strong and proper focus on consumers, which we support. It addresses dealing with conflicts of interest, and although it is implicit in the noble Lord’s amendment, it seems desirable that transparency should feature in the requirements. However, the noble Lord has given us at least a starter for 10 on this important topic, and we look forward to the Minister’s reply.

--- Later in debate ---

I realise that the amendment, as it stands, does not achieve its intended aim, due to a tabling error, but I would be grateful to the Minister and the House if the issues behind the spirit of the amendment could be explored further. I beg to move.

[Baroness Kramer]

My Lords, I support the amendment. We all understand that the amendment has drafting problems, but the intent behind it is an important one: to avoid delay in taking action against pernicious behaviour by some of these companies.

[Lord McKenzie of Luton]

My Lords, I will be brief in a similar vein. We support the thrust and spirit of the amendment, which is to make progress on the cap before we get to the stage where PPI claims have all gone through the system. It would be a tragedy if people continued to lose significant amounts of money from claims management companies when there is a clear remedy available.

This also partly picks up the issue, which we touched on earlier, regarding SRA regulation being less rigorous than MoJ regulation of CMC activity. The noble Lord felt that that was not a problem, but as I understand it a thematic review of solicitors who undertake claims management activities has been commenced, with the intention of strengthening their approach to regulation on this activity. The noble Lord may be able to confirm that or help us, but it seems to be a clear worry of some whether being able to escape CMC regulation because a solicitor is on board—albeit that brings in a different form of regulation—is a fair way to proceed.

However, the substantive point is to have the opportunity to get that cap in place well before the PPI claims have run their course.

--- Later in debate ---

[Lord Young of Cookham]

My Lords, the amendment tabled by the noble Baroness, Lady Greengross, seeks to require the FCA to make rules restricting fees relating to claims for financial services within two months of the Bill receiving Royal Assent. I agree wholeheartedly with what the noble Baroness and others who have taken part have said on the need to ensure consumers are not charged excessive fees by companies offering claims management services. I also appreciate the Committee’s wish to ensure this protection is given to customers of CMCs as soon as possible. However, it will not be possible for the FCA to make all the necessary rules within two months of Royal Assent. That is indeed an ambitious target.

The Bill puts a duty on the FCA to make rules restricting charges for regulated claims management activity relating to financial products or services. The duty is broad so as to give the FCA the flexibility to design an appropriate cap relating to a wide range of claims for financial products and services. Conceivably, different types of claim might require different levels of cap. To ensure the cap is appropriate, the FCA will need to obtain evidence from across the sector, analyse that information to develop suitable proposals, prepare a cost-benefit analysis and consult on draft fee cap rules. This will, necessarily, take some time. I am sure noble Lords will agree that we need a robust cap, developed on the basis of sound evidence and consultation.

The Government are giving the FCA the tools it needs to start that work as soon as possible. Schedule 5 to the Bill gives the FCA the information-gathering powers it will need to do the work, and Clause 19 provides that those powers will come into force on Royal Assent. However, the scale of the work that needs to be done means it cannot do it all within a two-month window.

Noble Lords have quite rightly raised the current campaign on PPI and how it impacts on the proposals in the Bill that may not come into force for some time. They have asked what might be done in the meantime, which is a very good question. The Government remain committed to establishing a tougher regulatory regime for CMCs. We are considering further the nature of any fee controls that could be introduced before the FCA’s new powers are switched on, using the helpful and comprehensive range of responses to the Ministry of Justice’s consultation. Indeed, this could include a ban on up-front fees. To that end, the Claims Management Regulator is working with the FCA. We are taking the opportunity in the Bill to incorporate a duty on the FCA as the new regulator to develop and implement a fee cap for financial services claims. As that debate gets under way I am sure those concerned will take on board the concerns expressed in the debate to make sure CMCs do not use the benefit of any hiatus to unduly disbenefit—

[Baroness Kramer]

Will it be possible for the Government to bring forward some appropriate language that achieves that when we get to Report so it becomes a locked-in proposition rather than one that has various legislative stumbles before it can be achieved?

[Lord Young of Cookham]

I will do what I can to shed some more light on those issues. As I said, discussions are going on to see whether we can bring those proposals forward. We will certainly update the House when we come to Report.

In response to the noble Lord, Lord McKenzie, this is a similar point to one he raised earlier, and the answer is very similar. The CMRU regulates CMCs, while the Solicitors Regulation Authority regulates solicitors firms conducting claims activities—I think that I am reading exactly the same note as I received earlier. The full scope of claims management services for the purposes of FCA regulation will be defined through secondary legislation, including the extent of any exemptions. The Government want to ensure that there is a tougher regulatory regime and greater accountability for CMCs, while ensuring that solicitors are not burdened with unnecessary regulation—the more I read, the more familiar the sentences become. Both the scope and the nature of exemptions will be drafted to reflect these priorities.

Against a background of what I have said about the Government seeing whether, if we cannot—as we cannot—implement the full Act within two months, something can be done in the meantime, and against an undertaking to update noble Lords by the time we get to Report, I hope that the noble Baroness might be able to withdraw her amendment.

--- Later in debate ---

[Baroness Drake]

My Lords, I too rise to express my sympathy with the views articulated by the noble Lord, Lord Sharkey, and the noble Baroness, Lady Altmann. I also empathise with the point made by the noble Earl, Lord Kinnoull. I listen to what he says because he often makes some very wise nuggets on a point that warrant reflection.

We do not want to regulate CMCs out of existence, because people need access to redress where they have been poorly treated or have experienced a serious problem. Public policy has been pushing assisting people with access to justice out to the private sector, so we have to come up with a toughened regulatory system that does not deny that. In a well-regulated, well-run system where public policy itself is making it more difficult for people to pay for access to justice, well-regulated claims management companies have a role to play.

However, the way the CMC industry currently operates is clearly totally dysfunctional. It gives rise to three key problems. One that the noble Lord, Lord Hunt of Wirral, articulated in the previous debate is that it stirs up such an artificial level of claims without merit that it risks undermining that very protection regime for the genuine claimant. It raises the costs and charges faced by other customers for what they have to pay for products and services, often hurting those on lower incomes.

We know that the ease of entrance to the market means that claims management companies often do not treat claimants well. They give poor value to the claimant on fees and service; there is little inhibiting them doing so. I see that, a couple of years ago, 22% of claims management companies in one year lost their accreditation or received a formal warning—basically one-quarter of the industry having its card marked or forced out.

Also, we have a situation where new technology allows claims management companies to operate on a huge scale. They are harassing the public with very aggressive techniques, using new technology that allows such mass approaches. People are being bombarded with calls and texts; if you answer them by mistake, God are you hooked in. That triggers another series of harassing texts and calls. Very often the person does not even have the product or has not had the experience the call management company is targeting. These call management activities are one huge fishing trip that new technology allows which has got completely out of control. That trawling simply has to stop. There needs to be some appropriate intervention.

In supporting that, I go back to the reflective point that the noble Earl made. In a situation where assisting people with access to justice is increasingly being put into the private sector, we want a well-regulated claims management company that will help the genuine claimant get access to justice.

[Baroness Kramer]

My Lords, I intervene because it is important to stress that it is essential to ban cold calling, not give it a space. For example, those who are concerned about PPI claims can see advertising on the television. That is not cold calling or a sort of personal assault on your letterbox or your phone, whether by call, messaging or email. It is the personalised cold call that arrives. Often it is content that is intimidating and unless every phone call is recorded and checked there is absolutely no way to make sure it is not intimidating. It is the number of these things. If, for example, you say, “You can send five texts to every individual”, you will simply have a much greater group of people all sending five texts. It becomes almost impossible to manage unless you go for the ban strategy.

There are many ways to communicate. For example, I look at the way the FCA is now communicating with the general public over PPI. It has some excellent ads on television making it clear that there is a free way to call. It provides a phone number and a website. The whole process is easy. We would all be offended if the FCA now started cold calling individuals across the country, even to provide a free service. It is an invasion of private space. We have to protect private space, and cold calling is a mechanism which violates it. I hope that, in the interests of making sure people remain informed about the options available to them, we do not require them to give up control of that private space.

--- Later in debate ---

[Baroness Buscombe]

I thank all noble Lords who have taken part in this important debate. I thank in particular the noble Lord, Lord Sharkey, the noble Baroness, Lady Kramer, my noble friend Lady Altmann, and the noble Earl, Lord Kinnoull, for tabling the amendments and prompting this debate about cold calling. I think we are all familiar with the nuisance calls and texts that noble Lords seek to address.

However, I fear I shall disappoint noble Lords, but will do my utmost to persuade the Committee that legislating for a ban on cold calling at this stage is not the right thing to do. The arguments against the amendments are twofold. I shall begin with what we are doing by way of this Bill. The Government have put on record their commitment to clamping down on rogue CMCs that bombard consumers with unsolicited nuisance calls and texts, or provide poor service for consumers, by transferring regulatory responsibility to the FCA. Strengthening the regulation of claims management services—good regulation, I might add—should reduce the number of unsolicited calls made by CMCs as they will have to comply with any additional rules that the FCA makes in relation to how CMCs obtain customers or pass their details on to others.

The FCA will consider unsolicited approaches to consumers in the wider context of rules around advertising and marketing. It is too early for the FCA to have decided on specific rules for CMCs. I make that point clear to all noble Lords who entered into the debate on this amendment: this is not something the FCA has had a chance to do before but now, through the Bill, it has the opportunity to decide on specific rules for CMCs. It will consult on its proposals.

There are already measures in place to tackle unsolicited calls. The Information Commissioner’s Office enforces restrictions on unsolicited direct marketing. Unsolicited directing marketing calls to a person who has subscribed to the Telephone Preference Service or told the company they do not wish to be called is prohibited under the Privacy and Electronic Communications (EC Directive) Regulations 2003. In addition, organisations responsible for breaching these regulations can be fined up to £500,000 by the Information Commissioner. In 2016-17, the Information Commissioner’s Office issued more civil monetary penalties for breaches of these regulations than ever before, issuing 23 companies over £1.9 million of fines for nuisance marketing.

There was reference to scams. Of course, scams fall into the sphere of fraud and are therefore criminal. Many cold calls are conducted by unauthorised businesses. CMRU increased its capacity to identify, investigate and take enforcement action against unauthorised businesses, including all call centres marketing unauthorised claims management services. Since these regulations began, CMRU has taken enforcement action against 1,280 unauthorised CMCs. Moreover, in May this year, a company behind 99.5 million nuisance calls was fined a record £400,000 by the ICO. Action is being taken now and the FCA will introduce tougher regulation in this area.

The noble Lord, Lord Sharkey, asked why, if we are able to ban calls for mortgages and pensions, we cannot ban them for CMCs. It is important to differentiate between the two types. The Government absolutely decided that cold colds in relation to, for example, pensions are a special case because the levels of consumer detriment are uniquely high. For some UK customers, especially inexperienced investors, pensions savings may be their largest financial asset. Often, CMC nuisance calls are just that—a nuisance. The potential for customer detriment is therefore also much less.

It is not that this is not an issue for the Government to consider. I say that with some feeling. Strengthening the regulation of claims management services should help reduce the number of unsolicited calls made by CMCs. As I said, there are already measures in place enforced by the ICO.

[Baroness Kramer]

The Minister talked about the current enforcement and recommended it with such vigour. Could she then explain why the number of calls is so great? I think the noble Baroness, Lady Altmann, cited a figure of 50 million and it is growing every year. To my mind, the two things do not tally.

[Baroness Buscombe]

I am trying to make the point that the transfer of claims management company regulation to the FCA will result, we believe, in tougher regulation and should reduce the number of unsolicited calls made by CMCs. What I am really saying is: can we please give the FCA a chance? While there are already measures in place to tackle unsolicited calls, enforced by the Information Commissioner’s Office, unfortunately there is a minority of disreputable companies which flout the law. The ICO will take enforcement action where appropriate; as I have said, in 2016-17 it did so against 23 companies. We need to improve on this and we hope this will happen through tougher regulation.

I hope I have explained the difference between cold calling for CMCs and cold calling for pensions, which we are taking action on. I think my noble friend Lord Deben was suggesting, as indeed were other noble Lords, that we should have a wholesale ban on cold calling, but one has to be really careful what one wishes for. This point about access to justice is very important. Clearly, there are different routes to making unsolicited approaches. If we had a wholesale ban on cold calling, what would political parties do?

Financial Guidance and Claims Bill [HL]

Baroness Kramer Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Wednesday 6th September 2017 Lords Chamber

[Baroness Kramer (LD)]

My Lords, I am strongly in favour of this amendment, which picks up on an issue addressed earlier by the noble Baroness, Lady Altmann. It is that the world we live in is far more complex than the one that provided the framework when these original bodies, which are now being brought into one, were set in place. We need that revision for this single body to encompass the whole of the arena of life as it is today.

The noble Baroness, Lady Greengross, was very clear that for many people, the overwhelming majority of their wealth and assets is in their home, that using that as part of their support for their old age may well be a strategy they want to pursue, and that they cannot consider a pension without looking at that issue with the same kind of clarity and without looking at the situation as whole.

I have personal experience of this. I have an elderly family friend who is considering equity release or some similar way to use the wealth embedded in her home. I started to look at the various websites and at the products that are available. Noble Lords will be delighted to know that this is apparently the golden age of equity release, which is increasing at the rate of 28% per year. The websites are exceedingly seductive. The comparison sites compare one product to another, but none of them exposes the real issues of concern or the questions one should be asking about whether the product is appropriate. It is also easy to find a way to access that equity without being in a regulated environment. Recognising that, equity release is for some people entirely appropriate but for many it is entirely inappropriate, and advice is critical.

If people are not signposted and sent through a guidance mechanism to get that financial advice, it seems to me they are in very murky waters. It takes a very sophisticated financial expert to work their way through this. It makes pensions look simple, and I hope very much that the Government will take on board and make use of this excellent amendment.

[Lord McKenzie of Luton (Lab)]

My Lords, this is an interesting amendment. I believe that it is possible for the noble Baroness to achieve what she wants under the terms of the Bill as it stands, but that is not entirely clear and not quite for the reasons set down in the amendment. The amendment says:

“As part of its pensions guidance function, the single financial guidance body must provide”,


et cetera. Clause 2(4) says that the “pensions guidance function” under Clause 2(1)(a) is,

“to provide, to members of the public, information and guidance on matters relating to occupational and personal pensions”.

I do not think that equity release falls within that definition. There is a separate issue as to whether it would fall within Clause 3, which says:

“As part of its pensions guidance function, the single financial guidance body must provide information and guidance”,


et cetera, but that is to do with,

“flexible benefits that may be provided to the member or survivor”.

It seems to me, on a straightforward reading of the Bill, that it would not be possible to use the pensions guidance function strand of the new body, but there seems absolutely no reason why the money guidance function could not be used for that purpose. That would be a potential quarrel I would have. The Minister may say that interpretation is too restrictive and not right, but I do not think it would preclude the noble Baroness achieving what she wants. It seems to me the money guidance function should enable guidance to be provided on assets including on equity release.

The noble Baroness, Lady Kramer, raised the question of whether the FCA regulates all these schemes. I am advised that it probably does not, but obviously there is an issue there and perhaps the Minister would respond to that. We can support the thrust of this, because I think it achieves what the noble Baroness wants, but not quite, as I understand it, in the terms of the amendment, because of the other functions in the Bill.