European Union (Notification of Withdrawal) Bill

Debate between Baroness Kramer and Lord Bridges of Headley

Committee: 1st sitting (Hansard): House of Lords
Monday 27th February 2017 Lords Chamber

[Lord Bridges of Headley]

I am sorry to say that I dispute what the noble Baroness is saying. The British people voted to leave. There was a very loud and passionate discussion, with lots of people issuing lots of papers about what it would mean to leave, and the British people made a decision.

My noble friend raised the issue of a “neverendum”. This brings me to certainty. One thing we all agree on is the need for certainty. Therefore, let us think of European families here, of British families in Europe and of the thousands of businesses right across this country that are listening to our debate. For them, the prospect of another referendum at some unknown date years ahead, with a Bill—as the noble Lord, Lord Grocott, said—and a question we do not yet know, would simply create more uncertainty.

Let me say here a word about business in particular, given that my noble friend Lady Wheatcroft edited the Wall Street Journal. I would like to draw the Committee’s attention to a report just issued by the Institute of Directors. It recommends:

“A … measure to boost both political confidence and certainty for business would be for all parties to rule out a second referendum over the next parliament—either a repeat on EU membership or on the final terms of the deal”.


The IoD represents 35,000 businesses which employ hundreds of thousands of people. Those businesses are saying that they want certainty.

[Baroness Kramer (LD)]

Perhaps I might press the Minister for clarification. He says that people want certainty. Is he saying that if that certainty is, to a business, “Yes, you must move your headquarters, you must take jobs out of this country”, and to people that, “You will face higher prices and fewer opportunities for your children”, that is what the Government will choose to make the British people live with—and with no voice to challenge it?

[Lord Bridges of Headley]

The noble Baroness and I have many interesting discussions, but I dispute the grounds on which she is approaching this. We have set out very clearly, to provide clarity and certainty, a view regarding what we wish to achieve in the negotiations. That has provided a considerable amount of certainty and clarity to many of the businesses I have spoken to and in nation states across Europe. That is exactly what we now need to deliver on.

I will turn quickly to the issue of parliamentary scrutiny, which the noble Lord, Lord Newby, slightly dismissed. Parliament will be heavily involved in the process of our leaving the EU. This Bill, the Bill to repeal the European Communities Act 1972, primary and secondary legislation, Statements, Select Committee appearances—the list is quite long. On top of that, the Government will bring forward a Motion on the final agreement to be approved by both Houses of Parliament before it is concluded. So the nub of the matter is very simple. On 23 June people voted to leave the EU. It was a choice that this Parliament gave them and it is a decision that, now it has been made, we must obey. So I hope that the noble Lord will withdraw his amendment.

Brexit: Trade

Debate between Baroness Kramer and Lord Bridges of Headley

Thursday 2nd February 2017 Lords Chamber

[Lord Bridges of Headley]

On the first point, I have little further to add. The Government have clearly said—I answered on it a moment ago—that, as the negotiations continue, we will continue to provide to this House and the other place what information we can without undermining our negotiating position. That is not only the right thing to do, but the right thing if we are to build the national consensus that I said at the start we wished to build as we go forward. On my noble friend’s point about financial services, which is a very valid one, I would like to think that we are moving into a slightly new era as regards the understanding of the challenges and issues we face. There is a greater understanding of the mutual benefit that will be achieved if we come to an understanding with our European partners on financial services—not only to avoid a cliff edge in these negotiations, but to ensure that European companies and European Governments continue to have access to the global capital markets and the wonderful services provided in the City.

[Baroness Kramer (LD)]

My Lords, the Government will be very aware that in the Korn Ferry survey of FTSE 100 chairmen, 88% are convinced that, as it has been decided to leave the single market and the customs union, no trade agreement could possibly provide the current level of access. Does the Minister accept that consensus is now growing that, under the best terms we can get, we will see a drop in exports to the EU of something like 22%—nearly a quarter—and that no deal with the United States, no matter how favourable, could do more than claw back a very small portion of that loss?

[Lord Bridges of Headley]

I hope the noble Baroness will forgive me, but she is approaching this from a somewhat pessimistic point of view. I approach it from a more optimistic and ambitious point of view. I believe that the United Kingdom has a very strong economic record on which we can build. I believe that we already have fantastic networks, right across the world, on which we can also build. Therefore, while I understand the challenges that lie ahead, I believe that when we put our mind to it and approach it in the way that my right honourable friend the Prime Minister has set out, there is no reason to take the somewhat pessimistic approach that the noble Baroness has outlined.

The Process for Triggering Article 50

Debate between Baroness Kramer and Lord Bridges of Headley

Tuesday 24th January 2017 Lords Chamber

[Lord Bridges of Headley]

The noble Lord raises an extremely good point. As I intimated earlier, we are taking due steps to ensure that the views of the Northern Irish people are heard in this lull. I am happy to meet the noble Lord and discuss that—with my ministerial colleague, Robin Walker, who is also intimately involved—and to explain exactly what we are doing.

[Baroness Kramer (LD)]

My Lords, can the Minister explain to me why his Government are so afraid to put the final deal agreed back to the British people for their vote? If the Government were confident that it would be a deal that the British people felt fulfilled the promises and commitments made, and was good for the future of the country, they would be confident of an overwhelming victory in that referendum. Is it because they believe the British people would be so disappointed and feel such a sense of betrayal that they dare not put the final deal back to them? Is that the rationale?

[Lord Bridges of Headley]

No, my Lords, I dispute that, because I do not think the British people will feel a sense of betrayal, given the approach that the Prime Minister set out in her speech last week.

A New Partnership with the EU

Debate between Baroness Kramer and Lord Bridges of Headley

Tuesday 17th January 2017 Lords Chamber

[Lord Bridges of Headley]

I am sorry to say that I think the noble Lord’s assessment of where we are currently is not strictly true. There are various regulations that are not part of our law but, again, we will outline more as regards this when we set out an approach to the great repeal Bill. There are two clear reasons why we are doing this. First, as I said in the Statement, it is to provide certainty for everyone—be they businesses or organisations in any walk of life—as regards the state of play on day one when we leave. Secondly, it is because the Government believe that it should be for Parliament to decide on what then to do. It can then be free to keep, amend or repeal EU law, once it has been transposed into UK law, as it so wishes.

[Baroness Kramer (LD)]

My Lords, can I ask the Minister about the financial services sector, which is about 7% of our GDP? As he will know, if we are leaving the single market and the customs union, most of the financial services sector can essentially no longer operate across Europe unless it redomiciles something like a third of its operations. The Minister says that he wants a bespoke agreement and an implementation transition period. But how long does he think the industry can wait for those to be confirmed before it has to decide to relocate in order to meet the needs of its clients?

[Lord Bridges of Headley]

The noble Baroness makes a valid point; we have had good discussions about this issue and I thank her for that. I understand the needs of some parts of the sector and the fiduciary duty that certain businesses will be under to make contingency plans. I can only hope that they will look at the remarks made today and see that while we are coming out of the single market, we are intent on negotiating as free and as frictionless access to the markets as possible. Once again, I repeat my earlier remarks: we are obviously starting from a unique position here, in that we are not just equivalent to EU law but absolutely identical to it. This puts us in a good position.

The second point is that, as the Governor of the Bank of England made clear yesterday, once again it would be to our mutual benefit—that is, our benefit and Europe’s benefit—to ensure that we avoid a cliff-edge. It was interesting to see that the German Finance Minister said today, “London as a financial centre will play an important role for Europe, even after Brexit”. I hope that those in Europe and in our financial institutions will be looking at these remarks and planning with due respect for what is happening and mindful of the fact that we are looking for this free and frictionless approach.

Brexit: Single Market

Debate between Baroness Kramer and Lord Bridges of Headley

Monday 24th October 2016 Lords Chamber

[Lord Bridges of Headley]

The noble Lord comes to this with a certain track record and position. I will not comment in detail on what he said. I have read the Civitas paper by Mr Justin Potts. I cite from the document for noble Lords who have not read it. It says that the findings of its analysis,

“highlight the importance of a trade deal for both the UK and for EU countries”.

In other words, a trade deal, not falling back on WTO rules, which I think may be where the noble Lord is coming from.

[Baroness Kramer]

My Lords—

--- Later in debate ---

[Lord Bridges of Headley]

I think the noble Lord is accusing me of being Humpty Dumpty and saying that the word,

“means just what I choose it to mean—neither more nor less”.

However, I will not add further to what I said or breach the Prime Minister’s commandment and start issuing running commentaries.

[Baroness Kramer]

My Lords, the Minister will be aware that the financial services industry contributes in excess of £66 billion a year to the Treasury. If the British Bankers’ Association is correct in its recent predictions of departures and transfers out of the UK thanks to the Government’s Brexit attitude, what cuts are expected in public spending on the NHS, schools and infrastructure?

[Lord Bridges of Headley]

I am sorry but I disagree somewhat with the assumption behind the noble Baroness’s point. I have met many financial service companies the length and breadth of the country, and it is clear that like many parts of the UK economy they are looking at Brexit and what it means for them. The noble Baroness takes a somewhat pessimistic view of things as they stand. We are talking to the financial sector as we are talking to all sectors, to ensure, as I have said before, that the outcome to the negotiations leads to a smooth and orderly exit from the EU.

Economy: Productivity

Debate between Baroness Kramer and Lord Bridges of Headley

Tuesday 12th April 2016 Lords Chamber

[Lord Bridges of Headley]

My noble friend makes an extremely good point. Sir Charles Bean recently completed a review of the UK’s economic statistics, and one of his findings was, as my noble friend said, that if the digital economy had been properly taken into account, economic growth would have been one-third to two-thirds of a percentage point higher over the past decade, with similar implications for productivity. However, I stress that that would not explain the UK’s recent poor performance in comparison with other countries, nor why productivity has worsened since the financial crisis, so we are not complacent.

[Baroness Kramer (LD)]

My Lords, the UK’s poor performance on productivity will surely never improve until we get in place the infrastructure—housing, broadband, power and transport—that we need. Will the Government give up or curb their obsession with the budget surplus, borrow at the current zero-coupon rate available to them, stop faffing around with expensive and reluctant private sector and sovereign fund investors, and actually get spades in the ground on the major projects—Hinkley Point being one example—that are at present all suffering delays?

[Lord Bridges of Headley]

My Lords, we are getting going and cracking on with things. I dispute what the noble Baroness says about having a choice between ditching the projected surplus that my right honourable friend the Chancellor has set out and achieving what we are setting out. They are not mutually exclusive. For example, noble Lords might be interested to know that we have committed to the biggest investment in transport infrastructure in generations, increasing spending by 50% to £61 billion in this Parliament.

Bank of England and Financial Services Bill [HL]

Debate between Baroness Kramer and Lord Bridges of Headley

Tuesday 19th January 2016 Lords Chamber

[Lord Bridges of Headley]

My Lords, I believe it is customary at this stage to thank all those who have helped ease the passage of this Bill through the House. It is fair to say that at times, the passage has not been entirely easy. The list of those I have to thank is therefore long but noble Lords will be glad to hear that I will refrain from an Oscaresque thank you, complete with thanking my mother and bursting into tears, and will simply thank a few people. I thank the Bill team of course, for their excellent guidance and advice, and my excellent Whip and noble friend Lord Ashton, who helped keep me on the straight and narrow throughout. I thank the Governor of the Bank of England, as well as Andrew Bailey and the officials there, and Sir Amyas Morse and officials at the NAO for all the work they did on various parts of the Bill and the negotiations over that.

Those Peers on all sides of the House who were members of the PCBS also deserve my thanks, especially the noble Lord, Lord McFall, and the most reverend Primate the Archbishop of Canterbury, and those on the Cross Benches who made excellent contributions on a range of possible technical issues during the Bill and spared the time to explain to me their thoughts and concerns, especially on the NAO and Bank issue. In particular I thank the noble Lord, Lord Bichard, as well as the noble Lords, Lord Burns, Lord O’Donnell and Lord Turnbull. At one stage in proceedings, one of your Lordships asked for a collective noun to describe three former Permanent Secretaries. The answer is, of course, “a Humphrey”.

I thank my noble friend Lord Naseby for his contribution regarding mutuals, and the noble Baroness, Lady Worthington, for her thoughts on the Green Investment Bank and auditing issues.

Finally, of course, I thank especially both of the Front Benches—the noble Lords, Lord Tunnicliffe, Lord Davies and Lord Sharkey, and the noble Baroness, Lady Kramer—for all the time they spent meeting me and discussing detailed aspects of the Bill. Sometimes we agreed and sometimes we did not. But the discussion was always amiable, civilised and, above all, thanks to their efforts, we did what this House is meant to do, which is to scrutinise and test the legislation.

I said at the start of the Bill that I see this process as a form of legislative acupuncture. At times it was undoubtedly a bit painful, but, thanks to the contributions of your Lordships, the Bill leaves this place in better shape than when it began, and for that I am thankful.

[Baroness Kramer (LD)]

I very much join in the thanks, particularly to the noble Lord, Lord Bridges, for the way in which he conducted the work of the ministerial Front Bench. He was always open to meeting and kept us incredibly well informed—frankly, above and beyond the usual. I extend those thanks to the noble Lord, Lord Ashton of Hyde, and to the whole of his Bill team for the generous way in which they handled this piece of legislation. The Government listened, particularly on one key issue which these Benches were concerned about—oversight of the Bank of England —and the Bill will now be stronger for that.

I have to say, very briefly, that there were areas where the Government did not listen, and we will all live to regret two of them. One is the decision to end the reversal of the burden of proof, which would have had a big impact on the culture of banking, and for the better, and the other is the concern we raised over the independence of the FCA. Both those concerns have been very much underscored by the recent disclosure that the FCA has cancelled its review of the culture of banks and by the timing of the way it did so, just a few weeks after the Bank of England parachuted an executive director into the FCA to supervise this area. So we have concerns, which I am sure will be picked up in another place and by the Treasury Select Committee. But I very much thank those who worked on the Bill and who did so with great graciousness.

Banking: Financial Crime

Debate between Baroness Kramer and Lord Bridges of Headley

Wednesday 2nd December 2015 Lords Chamber

[Lord Bridges of Headley]

My Lords, I echo the point made by the noble Lord, Lord McFall: the financial companies face severe financial penalties. Furthermore, a new criminal sanction was created by the previous Government for those who manage firms in a reckless manner.

[Baroness Kramer (LD)]

My Lords, the sophisticated and complex money laundering scheme for nearly £2 billion of Middle Eastern money is unlikely to have been a one-off. What assurances can the Minister give the House that this transaction and others like it were not using funds from terrorism or that the funds generated were used for terrorism?

[Lord Bridges of Headley]

My Lords, I am sorry but I cannot go into greater detail on that point. However, I draw the noble Baroness’s attention to the fact that, under the FCA’s rules, money laundering reporting officers will have to be senior managers. The FCA will also require firms to allocate overall responsibility for the firm’s policies and procedures for countering the risk that the firm might be used to further financial crime to an approved senior manager, who could be the MLRO but does not have to be. This will ensure that there is accountability for financial crime matters at the top executive level.

Bank of England and Financial Services Bill [HL]

Debate between Baroness Kramer and Lord Bridges of Headley

Wednesday 11th November 2015 Lords Chamber

[Baroness Kramer (LD)]

My Lords, I shall say a brief word. My noble friend Lord Sharkey and the noble Lord, Lord Davies of Oldham, have both been very calm on this issue, but I shall admit that, frankly, I am outraged. The obligations that exist for so many people in the public sector to report misconduct—on teachers, police officers and members of the NHS—are taken as absolute requirements. There is no question of whether they are costly; it is understood that the importance of propriety and integrity in all those activities is crucial. I suggest that, after the years that we have been through following the financial crisis, no one should doubt that integrity in this sector is absolutely vital.

When we sat on the Parliamentary Commission on Banking Standards, we discussed whistleblowing extensively. Every single institution that we talked to and everyone we could identify had in place mechanisms for whistleblowing; the problem is that none of them was effective. The kind of issues that were reported through whistleblowing systems were situations such as when someone had noticed someone sliding a £5 note out of a cashier’s desk—they were on that kind of scale. So none of the major abuses, whether it was PPI, the LIBOR scandal, the mishandling of credit issues or money-laundering, came to the surface through any kind of whistleblowing system. This measure—the statutory requirement to report a breach when someone sees or recognises that it is happening—is one of the few mechanisms that we could conceive of to try to counter that particular set of problems. Without exception, everybody who gave evidence to the parliamentary commission talked about the importance of making whistleblowing much more effective. So far as I can see, there is no replacement to this requirement that is effective, that has been proposed—and, frankly, if there is a burden, surely any burden is significantly smaller than living with the consequences of sustained and ongoing abuse.

[The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con)]

My Lords, I thank the noble Lord, Lord Sharkey, for provoking this short debate. I heed what the noble Baroness, Lady Kramer, and the noble Lord, Lord Davies, have said. I shall try to explain the Government's position. I need to examine the very insightful comments made by the noble Lord, Lord Sharkey, and may want to return to some of them in writing. If I do not address them here, I shall endeavour to do so in writing.

At first glance, this seems an obvious and straightforward requirement to impose on authorised persons. As the noble Lord will be aware, this requirement was introduced by the coalition Government through the Financial Services (Banking Reform) Act 2013. It is through that planned implementation of this provision that we have learnt that it is simply disproportionate.

Before I go into more detail, I reassure noble Lords that this does not mean that firms will be under no obligation to report wrongdoing to the regulators. First, a separate proviso in the 2013 Act will still apply: the requirement for firms to notify regulators that they have taken disciplinary action against an individual subject to the conduct rules, be it through dismissal, a reduction in pay or a written warning. Secondly, this requirement builds on the regulators’ existing principle for business that firms must tell them of anything that may be of interest to them. If a significant issue arose with the conduct of a member of staff that for some reason did not lead to disciplinary action, the firm would still need to consider whether it would be appropriate to alert the regulators.

In this context, the Government believe that a blanket requirement to report all known or suspected breaches of the conduct rules is disproportionate. In particular, an obligation to report suspected breaches is potentially open-ended and wide ranging for it forces firms to work out the point at which possible indications of breaches of rules of conduct would amount to a genuine suspicion. Then the firm would have to train staff to spot and assess those indications, and finally firms would need systems—

[Baroness Kramer]

The argument the Minister has made suggests that he does not believe that whistleblowing is a justified process. Almost every whistleblower who raises a suspicion is very unlikely to be able to present a signed and sealed case. It is surely the responsibility of the organisation where the whistleblowing has taken place to explore that. In fact, they constantly guarantee that that is exactly what they will do. The Minister is now saying that that is far too onerous. I find that incredible.

[Lord Bridges of Headley]

I am not saying that. I am saying that the process as a whole is potentially too onerous. I heed what the noble Baroness says, and of course whistleblowing is important. I shall continue, and we can continue to have this debate.

Finally, firms would need systems to ensure that the information is captured and transmitted to regulators, but it does not stop there. Having been notified of a suspicion, the regulators would have to decide whether to investigate and then, if appropriate, to consider what action to take. No doubt there would be many cases where there was only suspicion and nothing more and no action would be taken, but all cases would have to be investigated to some extent, and it would be difficult for regulators to do nothing at all once they had been notified.

Noble Lords should also note that, although the Government believe that an inflexible requirement to report all known and suspected breaches of conduct rules by all employees subject to them is inappropriate, the regulators can impose more targeted proportionate rules in this area if it supports the pursuit of their objectives.

The noble Lord, Lord Sharkey, raised costs. The costs in the impact assessment are based on the detailed cost-benefit analysis published by the regulators when they set out how they would implement the regime. I understand it is available on the FCA website, but I will write to the noble Lord and all interested Peers on this point. On that basis, I ask the noble Lord to withdraw the amendment.

Bank of England and Financial Services Bill [HL]

Debate between Baroness Kramer and Lord Bridges of Headley

Wednesday 11th November 2015 Lords Chamber

[Lord Bridges of Headley]

The noble Lord makes an extremely good point, and one that the CEO, Shaun Kingsbury, was asked directly. I am not going to prejudice what my noble friend the Minister in BIS is working on, but that is clearly something that we need to look at. I note that Mr Kingsbury himself said that he believed that the purchasers of or investors in the Green Investment Bank would look expressly to ensure that the specialisms that the bank currently has would continue, and we would want to make sure that that specialism and focus are the core of their investment. That said, I heed entirely what the noble Lord says and will draw it to my noble friend’s attention.

[Baroness Kramer]

My Lords, I was actually quite heartened by the Minister’s reply, although I suspect not in the way that he intended. He suggested that there were very few obstacles to using the PRA as an appropriate regulator in this case—so perhaps there is an avenue there to be explored. Can the Government look seriously at this issue? I know from having been in government very briefly that to direct the lawyers to look at a way to achieve rather than stop something is a very significant challenge. I hope that now the energies of the Treasury will be focused on this, as well as the energies of BIS. Frankly, if we lose the Green Investment Bank in the role that it plays, we will all be losers. It would be very frustrating to think that that was unnecessary and had only required some significant legal effort to avoid it. I beg leave to withdraw the amendment.

Bank of England and Financial Services Bill [HL]

Debate between Baroness Kramer and Lord Bridges of Headley

Monday 9th November 2015 Lords Chamber

[Baroness Kramer]

My Lords, I will make just a few comments, if I may. I join my noble friend Lord Sharkey, and the noble Lords, Lord Tunnicliffe and Lord Eatwell, in their concern about the changes being proposed and the implications that would follow from them.

Will the Government confirm that, under the arrangements to reduce the number of non-executive directors to seven and increase the number of officials on the board to five, it would take co-operation from only one non-executive director with those officials to effectively prevent any investigation into any area of Bank activity? That is, I feel, a completely unacceptable balance that is being proposed today. The Government will have to come up with a very great justification for why the hurdle must be so low—four current officials—to prevent investigation of historical activity.

Clause 4 effectively falls if Clause 3 falls. Clause 4 makes the situation yet worse, because it contemplates not that the whole court will act as an oversight committee but that a sub-committee can be created in order to carry out that work, comprised of as few as two non-executive directors. For two non-executive directors to be considered sufficient for the important work of investigation, review and oversight of the Bank of England strikes me as completely extraordinary. It is also noticeable that the number two applies to the sub-committee responsible for the remuneration of officials at the Bank.

We are moving into a “two best friends” provision here, and I find it exceedingly disturbing. The Government will have to come up with some justification for why a sub-committee of two NEDs is sufficient to carry out a crucially important task that was absent during the many years in which the Bank of England essentially failed to meet the necessary standards to prevent a systemic crisis in finance in this country. I would like to hear their justification for the number two.

[Lord Bridges of Headley]

My Lords, I thank all the noble Lords who have made very powerful contributions and thoughtful points.

I will not detain your Lordships with lots of history; you know it much better than I do. However, to remind the Committee how this came about, I will repeat something that has already been said. The Financial Services Act 2012 gave rise to the Oversight Committee, largely in response to recommendations made in the report Accountability and the Bank of England from the Treasury Select Committee in the other place. That report recommended that the court should be reformed into a board, with powers to conduct ex-post reviews of the performance of the Bank; that board members should be authorised to see all the papers submitted to the MPC and FPC; and that the board should be responsible for reviewing the processes of the Bank’s policy committees.

The Treasury Select Committee argued that the new board should be called the Supervisory Board of the Bank of England but, despite this name, the structure that was proposed was in fact a unitary board. As has been said, the Financial Services Act 2012 took steps to implement these recommendations, by creating a set of statutory oversight functions. However, instead of conferring powers on the court itself, the powers were conferred upon a new statutory Oversight Committee, made up exclusively of the non-executive directors.

[Lord Bridges of Headley]

That is my understanding. If I am wrong, I will correct myself.

The noble Lord, Lord Sharkey, made his points very forcefully and I fear we may still have to have further discussions—if he can bear it—but let me restate the Government’s position. The problem now faced by the Oversight Committee is simple. As the noble Lord said, for the non-executives to hold the executive to account effectively, they need to meet together, not separately. There needs to be full and frank discussion between the governors and the non-executives on how best to exercise the court’s oversight functions. I am sure the noble Lord would agree that the challenge and recommendations of the non-executives need to be informed by in-depth knowledge of the Bank’s operations. Effective oversight needs to be carried out by the executive and non-executives in partnership, not in silos.

It bears repeating that the key powers of oversight, which are necessary and working, are not lost as a result of their transfer to the whole court. The court will continue to be able to commission reviews as it sees fit. Moreover, the non-executives will continue to be a majority on the court and will also continue to meet together as a group after each meeting of court, in line with best practice. As was discussed earlier today, court contains a high quality non-executive majority and is therefore well placed to oversee the work of the Bank.

It is entirely appropriate that court, as the governing body of the Bank, should be responsible for exercising these oversight functions.

[Baroness Kramer]

I hate to stop the noble Lord, Lord Bridges, in his flow, but could he confirm that, under the proposed structure, if the officials of the Bank collectively believe that an area is not appropriate for investigation, they need the support of only one non-executive director?

[Lord Bridges of Headley]

As the noble Baroness points out, that would obviously be the maths. We will probably have to have further discussion on this, but I would like to come back to the powers.

It is entirely appropriate that court, as the governing body of the Bank, should be responsible for exercising these oversight functions. The Bill is putting in place a model which is widely regarded as best practice in the United Kingdom. It also completes the model that the Treasury Select Committee recommended in 2011, and was subsequently endorsed by the PCBS in 2012. That model is a streamlined unitary board, with express powers to commission performance reviews. Parliament would still see copies of the reports of any performance review published by the court, just as would be the case for reports published by the Oversight Committee. Parliament’s powers are not being reduced and the Treasury Select Committee can summon any non-executive director to give evidence.

--- Later in debate ---

[Lord Bridges of Headley]

My Lords, it is clear that I still have some persuading to do. I would argue that those powers have not changed in the sense that they have been transferred from the committee to the court.

[Baroness Kramer]

The Minister said that the powers have not changed, but would he agree that who exercises the powers has changed significantly? Officials had no opportunity to exercise those powers; they were the powers only of non-executive directors. Now they can be easily exercised by the officials plus one NED.

[Lord Bridges of Headley]

As the noble Baroness rightly points out, obviously her maths is correct and there would be robust discussion. This comes back again to the quality of those who are on the court and their ability to persuade people that such a review is necessary.

That is all I wish to say on this matter.

Bank of England and Financial Services Bill [HL]

Debate between Baroness Kramer and Lord Bridges of Headley

Monday 26th October 2015 Lords Chamber

[Lord Bridges of Headley]

My Lords, I begin by thanking all those who have spoken and for their excellent contributions. I am very conscious that the hour is late, so I am delighted that the noble Lord, Lord Davies, says that I do not have to respond to every single one of his points, as we would all need our sleeping bags if I were to do that. I think that the noble Lord also said that this Bill is exciting, and on a typically dull day in your Lordships’ House, I am sure that we could all do with some excitement to pep up our lives. Let me assure noble Lords that if I fail to respond to points that have been made, my door is open and I will certainly either write or meet to discuss them.

Let me start by addressing points that were raised by the right reverend Prelate the Bishop of Portsmouth and my noble friend Lord Naseby. They both stressed the importance of the diversity of business models, especially mutuals and credit unions. I agree entirely with the noble Lord, Lord Davies, on the need for diversity. As noble Lords will know, the PRA is required to have regard to differences in the nature of and the objectives of businesses. This important recognition of diversity is preserved under the new arrangements, but I would be delighted to meet and discuss these matters further.

My noble friend Lord Lawson talked about ring-fencing, as did the noble Lord, Lord McFall. Let me tell your Lordships that the implementation of the ring-fence is obviously the primary responsibility of the PRA, but we are monitoring the way in which firms are implementing it. There is no evidence to date that firms are gaming the ring-fence, and as noble Lords know, we discussed at length whether it was necessary to have full separation during the debates on the banking reform Bill, but obviously we decided to go for ring-fencing. The Government remain of the view that it is appropriate.

I turn to the issue of dividend payments, raised by my noble friend Lord Northbrook. The PRA proposed rules on dividend payments are entirely consistent with the ring-fencing legislation and the recommendations made by the Independent Commission on Banking. There has not been a watering down of what are very robust requirements. The ring-fenced bank will be required to be legally, economically and operationally separate from the wider banking group and will have to interact with entities in the wider group on an arm’s-length basis. It is entirely appropriate that excess profits from the ring-fenced entity can be used to capitalise the parent company. This must be viewed in the context of the significant extra capital that the ring-fenced banks will be required to hold. Only excess capital above and beyond this would be eligible to be moved to the parent company. The PRA has rightly retained the power to prevent these payments, which the ring-fenced bank must inform the PRA of in advance if it feels that they would impact on the resilience and resolvability of the ring-fenced bank. There is no threat that these rules will result in a poorly capitalised ring-fenced bank.

I am sure that we will return to that issue, as we will to the next one I wish to address, which is the oversight function and committee and groupthink, which the noble Baroness, Lady Kramer, and others referred to. Let me start by saying that the court will have the ability to appoint independent experts to manage reviews as well as the continued ability to delegate to a sub-committee, including a sub-committee of non-executives. The balance of non-executive and internal members will ensure external challenge, while the abolition of the oversight committee will ensure that the statutory oversight functions are the responsibility of the whole court. It is worth noting that Andrew Tyrie has welcomed this change. I suspect—although I do not want to put words into his mouth—that Mr Tyrie, like me, sees this as an issue of transparency and accountability, both of which I believe are improved by this Bill. The noble Lord, Lord Eatwell—who has had a lot more experience of these issues—described the Bill as,

“opaque and not fit for purpose”;

I dispute that, but I am sure we will return to that issue in Committee.

I would like to refer briefly to one of the problems caused by the oversight committee. I shall just quickly outline this, if I may. In 2013-14, the foreign exchange market investigation sought to establish whether any bank officials had been involved in or aware of FX market manipulation. As your Lordships may know, the Bank governors initiated an extensive internal review on this and made regular briefings to court. In March 2014, when it became clear that an independent investigation would be appropriate, the oversight committee took over the investigation, appointing the noble Lord, Lord Grabiner QC. That was a good use of the oversight functions, but in practice the executive needed to join the oversight committee discussions for them to function and be effective, both as the investigation progressed and once attention turned to delivering recommendations. It would have been better, in practice, to make the oversight function the responsibility of the whole court, which is what we are now doing.

I turn now to the question—which I believe the noble Lords, Lord Davies and Lord Sharkey, asked—of why the number of non-executive directors will be reduced to seven. This is to make the court a smaller, more focused unitary board, as I said at the start. The Bank’s 2014 report Transparency and Accountability at the Bank of England said that,

“consistent with best practice in the private sector, the Bank sees the value of continuing to evolve towards a slightly smaller body, with a non-executive chair and majority”.

It cited the Walker report—the review of corporate governance in UK banks and other financial entities, published in 2009—which identified the optimum size of a board as between eight and 12 people.

On the subject of the board, the noble Lord, Lord Eatwell, raised concerns about the shift of financial stability strategy from the court to the Bank. Under current legislation, the court is responsible for determining the financial stability strategy, but this Bill will make the Bank responsible for determining the strategy. The noble Lord suggests that this was a shift to an “amorphous entity” and may serve to weaken the production of the strategy. This Bill ensures that aspects of its preparation can be delegated, so that the full expertise of all relevant areas of the Bank can feed into production of a single overarching strategy for delivering the Bank’s financial stability objective. The court, as the governing body of the Bank, will retain ultimate responsibility for the strategy, as it has now.

I turn now to those who have made an eloquent defence of the reverse burden of proof. I would like first to address a small point that the noble Lord, Lord Eatwell, raised about lobbying. Concern has been expressed that the Government have removed this provision in response to lobbying from big banks. I wish to be very clear. We are aware of the views of the banks on this matter. It is no secret and no surprise that they were not in favour of the reverse burden of proof policy, but the Government did not discuss their intention to make this change with any Bank before they made their decision.

I ask noble Lords to let me explain why the Government believe that the reverse burden of proof should be superseded by the duty of responsibility. I am sure we will return to this in Committee, but I would like to make some points now. In the interests of fairness and regulatory coherence, it is vital that the regime is rolled out consistently across the industry. Otherwise, a senior manager in a small building society would become subject to the reverse burden of proof, but one in a large investment firm that did not quite meet the criteria to be PRA-regulated would not. That is not fair, nor is it proportionate. While misconduct by firms of any size can seriously impact on the welfare of consumers or on market integrity, the potential impact is larger in the case of the large investment firm than the small building society.

Secondly, it would clearly not be proportionate to apply the reverse burden of proof across the financial sector, including to the small organisations that will now make up the majority of firms which will come under the regime, and which pose more limited risks to market integrity and consumer outcomes. The reverse burden of proof makes it much harder for such firms to recruit senior managers, since they cannot offset the personal risk attached with high remuneration. This is particularly problematic for credit unions, for example, which provide vital services to vulnerable people.

Our solution is a tough statutory duty for senior managers to take reasonable steps to prevent regulatory breaches in the areas of the firm for which they are responsible, applied consistently across all authorised financial services firms and coupled with the other elements of the regime. This will deliver the intended benefits of the reverse burden of proof in a much more proportionate way. I draw your Lordships’ attention to my phrase “coupled with other elements of the senior managers and certification regime”. It is important that we do not underestimate the step change that the other reforms recommended by the Parliamentary Commission on Banking Standards, and those noble Lords who were part of that, will deliver.

As I pointed out earlier, the SM&CR marks a move to a situation where firms and senior managers must take responsibility for how a firm conducts its business. Crucial among the provisions that deliver this are the statutory statements of responsibility that each senior manager must keep up to date, sign and submit to the regulators, setting out clearly the areas of the firm’s business for which they are responsible.

The noble Lord, Lord Eatwell, raised the issue of transparency. I argue that these steps will mean that there can never be any doubt for the individual concerned, the firm or the regulators what each senior manager can be held accountable for. This makes a statutory duty to prevent regulatory breaches in these areas a powerful incentive for senior managers to run their businesses well and a formidable enforcement tool if they fail to do so. Let us not forget that if a senior manager does not fulfil this duty, the regulators can and will enforce against them. Penalties could include prohibition and/or an unlimited fine.

I will briefly touch on the point that my noble friend Lord Flight made. I believe that he is concerned about the mounting cost of regulation. The PRA and the FCA are committed to implementing the SM&CR in a proportionate way, particularly for small firms. The SM&CR will lead to a significant reduction in the number of appointments subject to prior regulatory approval, from just more than 200,000 approved persons to just more than 100,000 senior managers. The extended SM&CR will not include the obligation to report to regulators all known or suspected breaches of rules of conduct for employees. Feedback during the SM&CR implementation process for banks has shown that these obligations can have significant cost implications for firms, quite apart from their other burdens on firms or the individuals concerned.

I turn to the other major issue discussed, which is the issue of the NAO conducting value-for-money studies. The noble Lord, Lord Bichard, was concerned that the mechanism built into the Bill to protect the Bank’s independent policy-making goes too far and could impede the NAO’s ability to conduct independent value-for-money reviews. I note the noble Lord’s extensive experience in this field. His concerns are well argued and should be taken very seriously. No doubt we will debate them and I look forward to meeting him to discuss this in due course. However, pulling in the other direction are equally serious concerns for the vital policy-making independence of the central bank, where drawing the line between what does and does not constitute policy is particularly complex.

We have had to strike a balance in the Bill to protect the independence of two vital public bodies. That is why the Bill requires that, in the event of disagreement between the NAO and the Bank over the definition of policy, the NAO must make public the disagreement, ensuring that the process will be transparent and open to full public and parliamentary scrutiny. I hope that noble Lords will understand the desire for this balance and I look forward to discussing the mechanism we have chosen to achieve this in more detail in meetings and in Committee should that be useful.

The noble Lord, Lord McKenzie, raised some very specific questions on Pension Wise. To do him justice and merit, I will write to him to address them specifically. The noble Baroness, Lady Kramer, raised the issue of distinguishing between advice and guidance—a point very well made. The financial advice market review, which published its consultation document on Monday 12 October, recognises that the distinction between advice and guidance is not always consistent with people’s understanding of what advice is. It seeks views on how there could be greater clarity in this respect. As I am sure the noble Baroness knows, the consultation period for this will close shortly before Christmas.

I am very conscious that, at a late hour, I have not done justice to the excellent points that have been made. I look forward in the weeks ahead to debating and discussing these measures with your Lordships in more detail, and my door is always open. I thank noble Lords for their contributions today. To conclude, I would argue that—

[Baroness Kramer]

My Lords, before the Minister sits down, can he comment on the sustainability issue that was raised by the noble Baroness, Lady Worthington, and that I happened to overlook?

[Lord Bridges of Headley]

Indeed I can. These issues were raised and I am more than happy to meet the noble Baroness to discuss them in due course. This issue was raised by the Governor, Mark Carney, in a recent speech, and it is one that the Bank is always looking at. I am happy to discuss that in due course.

To conclude, the reforms in the Bill will strengthen the governance and accountability of the Bank of England, update resolution planning and crisis management arrangements between the Bank and the Treasury, and extend the principle of personal responsibility to all sectors of the financial services industry.

Finally, I return to a point raised by the noble Lord, Lord Sharkey, about the balance on the PRC and the role of the FCA CEO. First, it is right to consider the FCA CEO as external to the Bank: he or she is not a Bank appointee. The legislation therefore ensures that there is a majority of externals on the PRC, since the legislation provides for at least six externals plus the FCA CEO, compared to five Bank committee members. It is also worth noting that, for the PRA board, the legislation requires a majority of externals on the board and includes the FCA CEO as an external for these purposes. The legislation, therefore, will reinforce the independence of the PRC compared with the PRA board.

Taxation: Capital Gains Tax

Debate between Baroness Kramer and Lord Bridges of Headley

Tuesday 7th July 2015 Lords Chamber

[Lord Bridges of Headley]

My Lords, as your Lordships will know, during the last Parliament this Government took a number of steps to tackle avoidance and evasion. Indeed, they were relentless in their crackdown on tax avoidance. HMRC will have secured £100 billion in compliance yield. This includes more than £31 billion from big business and £1.2 billion extra from the UK’s richest people.

[Baroness Kramer (LD)]

May I press the Minister? If the Government are seeking to provide support to working people, will it not be appropriate to begin to align capital gains tax rates with income tax rates, especially for these large, short-term capital gains?

[Lord Bridges of Headley]

The noble Baroness makes an interesting point. As noble Lords know, this Government are intent on helping working people. Last year, we cut income tax for more than 26 million people, took more than 3 million out of income tax altogether and created more than 1,000 jobs every single day. This Government intend to do better still.

Algorithmic Trading

Debate between Baroness Kramer and Lord Bridges of Headley

Monday 6th July 2015 Lords Chamber

[Lord Bridges of Headley]

As so often, the noble Lord speaks with a great amount of insight and experience, I am sure, on this matter.

[Baroness Kramer (LD)]

I wonder if the Minister could answer the question from the noble Baroness, Lady Wheatcroft, on the impact on small investors. Would he not agree that ever higher speed high-frequency trading, together with dark pools, has in effect rigged the trade in financial instruments against small investors?

[Lord Bridges of Headley]

I reiterate that the PRA, and Andrew Bailey in a speech last month, drew attention to a lot of these issues. I hope the noble Baroness takes some consolation from that and from what I said about the FCA. On smaller investors, as I said, the Government are looking at this issue. I draw attention to the Foresight report which said,

“transaction costs have fallen for both retail and institutional traders”.

We therefore need to look at this in a balanced and proportionate way.