Financial Services and Markets Bill [HL] Debate
Full Debate: Read Full DebateBaroness Noakes
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(1 month, 1 week ago)
Grand Committee
Lord Stockwood (Lab)
My Lords, the purpose of the government amendments in this group is to ensure that the relevant provisions of the Bill operate clearly, consistently and in line with the Government’s original policy intent. They are technical and corrective in nature and do not change the underlying policy of the Bill. However, it is important that noble Lords understand the purpose of the amendments so that they can agree that they are minor and technical, so I will explain them briefly.
Amendments 56, 60 and 63 make minor, technical corrections to Schedule 2, which, taken with Clause 13, abolishes the Payment Systems Regulator and gives broadly equivalent functions to the FCA. Amendment 56 removes a duplicative provision from new Section 131Z9 to the Financial Services and Markets Act 2000 that is already covered by new Section 131Z19. Amendment 60 corrects a cross-reference so that the Bill refers to the correct FCA payment system powers when setting out how the Competition and Markets Authority is to determine an appeal.
Amendments 61, 62 and 63 ensure that references to the chair of the PSR, which will be obsolete after the PSR is abolished, are deleted in the correct places in Schedule 1ZA to the Financial Services and Markets Act 2000, which concerns the FCA’s constitution and governance.
Amendments 143 to 145 are also minor and technical amendments. Amendment 143 and 144 ensure that Section 66A of FSMA is amended in a coherent and orderly way, regardless of whether the amendments to that section made by Clause 27 are commenced first or the amendments to that section made by Clause 36 are commenced first. Amendment 145 amends subsection (4) of new Section 55AA, inserted by Clause 29(3), to ensure that the language used there is consistent with the language used elsewhere in FSMA. The amendment simply replaces the words “is in force” with “has effect”. These amendments do not change the policy or legal effect of the affected clauses. They are drafting amendments for the purposes of coherence and consistency only.
I now turn to Amendments 147 to 150, to Clause 33. Clause 33 allows firms to apply for senior approval, subject to conditions or a limited period; they are known as permitted conditional applications. This helps support a more flexible approvals process. Amendments 147 to 150 are technical amendments that fix an error in the original drafting and will ensure that the framework operates as intended. Without these amendments, there is a risk that decisions will not be properly formalised and that the period for determining applications will not be applied consistently.
Amendments 147 and 149 provide that the period for determining permitted conditional applications is the same as for other senior manager applications. Amendments 148 and 150 provide that regulators must give written notice when they approve a permitted conditional application. Taken together, these amendments will ensure that the statutory framework works clearly and consistently in practice.
In summary, this group of government amendments makes technical corrections to ensure that the Bill works as intended. I hope that noble Lords will join me in supporting them.
Baroness Noakes (Con)
My Lords, I have given the Minister notice that I intend to object to these amendments, so if he presses them, I will object and therefore they will not pass. It has been the custom of our House that when the Government table amendments to Bills, they notify all Members of the House—because the Government cannot determine which Peers might be interested in which amendments—and explain the amendments. It may well be that some of these amendments are technical and mean simply the correction of errors, but Members of your Lordships’ House should have the opportunity to consider them properly.
I became aware of this only late last week, when I suddenly realised that several government amendments had been put down—these and others—and that I had had no letter. I do not believe that anybody else has had a letter. Because of that, we ought to maintain the customary practices of your Lordships’ House. As I said, I will object to these amendments if they are put.
My Lords, unfortunately, I was unable to speak at Second Reading—like the noble Lord, Lord Vaux of Harrowden, as he mentioned on Monday—but I am delighted to be back in time to speak in Committee. I declare my interest as an employee of Marsh, an FCA-regulated firm.
The amendment in my name in this group, Amendments 69B and 73A, propose that our financial regulators move from a five-year to a three-year strategic planning cycle. At its heart, this is a straightforward proposition: regulators must keep pace with the world they regulate. In financial services, the rate of change has accelerated to such an extent that a five-year strategy can quickly become outdated. When the FCA and the PRA last set their strategies, few could have anticipated the speed and scale of the developments that followed. The volatility seen in digital assets, the rapid emergence of artificial intelligence in financial decision-making, the growing importance of cyber resilience to financial stability and the impact of geopolitical tensions on global markets have all evolved far more quickly than expected. Yet regulators remain bound by frameworks conceived for a very different environment.
A three-year cycle offers a more realistic and proportionate approach. It is not an arbitrary shift. It better reflects the pace of change in financial services, aligns more closely with the Treasury’s spending review cycle and mirrors the planning horizons adopted by many firms. It also corresponds more closely to the time it takes for innovation to move from novelty to something requiring clear regulatory oversight. Some may argue that a five-year cycle provides greater stability, but stability should not be confused with rigidity. A strategy that is clearly out of date does not offer certainty; it risks losing credibility. True stability lies in a framework that is regularly reviewed and refreshed, so that it remains relevant and dependable. Nor would a shorter cycle create unnecessary disruption. It would not require regulators to constantly change direction; rather, it would ensure that their strategies are revisited at appropriate intervals and updated where necessary. That strikes the right balance between continuity and responsiveness.
There is a practical consideration. Industry participants have consistently highlighted that five-year strategies can be overtaken by events well before their conclusion, making it harder for firms to plan with confidence. In reality, regulators have already had to adapt to unforeseen shocks—whether economic, geopolitical or technological —outside the normal review cycle. For that reason, this is not a radical proposal but a pragmatic one.
It is important that financial regulation does not rely on a planning horizon that no longer reflects the realities of the market. The FCA and the PRA are strong institutions, but even the most capable regulators cannot be expected to operate effectively within five-year strategies in a period of such rapid change. A three-year cycle is a measured reform. It would help to ensure that regulation remains responsive, credible and accountable, while fully respecting the independence of our regulators.
These are probing amendments. As such, can the Minister say why the Government chose to fix five-year periods for strategy reviews? I believe that is too long, so I look forward to hearing his thoughts on that. I also support the amendments in the names of my noble friend Lady Noakes and the noble Baroness, Lady Bowles of Berkhamsted. I beg to move.
Baroness Noakes (Con)
My Lords, I will speak to Amendments 70, 71, 73, 74 and 76 in my name. I thank the noble Lord, Lord Vaux of Harrowden, for adding his name to Amendments 70, 73 and 76.
At first sight, Clause 16 looks like a bit of “motherhood and apple pie” legislation. After all, what is not to like about five-year strategies, which are what most businesses do in the UK and internationally? A closer look at Clause 16, however, reveals a bit of a mess. The position we have at the moment is that the PRA is required to determine a strategy, and it does this by way of annual business plans. There is no requirement in statute for the FCA to do anything but it has routinely issued annual plans; last year, it issued a five-year strategy as well. So this is clearly a slightly messy area, and the Government are right to try to tidy it up.
I fear, however, that the solution in Clause 16 will make things worse. First, the requirement for a strategy seems to be a static one, requiring a five-year strategy to be set and then replaced when the five years have nearly run out. The subsections of new Sections 1JZA and 2E, to be inserted by Clause 16, envisage that the strategies can be revised or replaced, but it is unclear what the trigger for that is other than when the Treasury issues new recommendations in a remit letter. In the business world, strategies are kept under review and are often revisited annually—certainly more often than every five years. I believe that Clause 16 needs a positive requirement for the regulators to keep their strategies under review, if only to confirm their continuing validity. My noble friend Lord Ashcombe’s Amendments 64A and 73A would partly get round the problem by shortening the period, but they still envisage a static strategy; it would be three years and then, at two years and nine months, you would do another one, which is not a satisfactory approach to drawing up strategies.
The Explanatory Notes explain that these strategies are expected to be
“high level and focus on the FCA’s and PRA’s top priorities”.
That is fine, but it is not very useful for the regulated firms that want to know how the regulators’ actions will affect them in practice. If these five-year plans are anything like the FCA’s five-year strategy—all 20 pages of it are full of drawings, photographs and big letters—firms will be very disappointed. The FCA’s four priorities of being a smarter regulator, fighting financial crimes, supporting growth and helping consumers are so high level that they mean nothing to regulated firms.
At the moment, both regulators annually set out the detail of what they plan to do for the following year. Can the Minister say whether this will continue once the Bill becomes law? There will be no requirement in law for either the FCA or the PRA as a consequence of the Bill, and, given the lightweight content of the FCA’s five-year plan and the Government’s intentions for only high-level strategies, it would be a serious error if the regulators were not required to publish their detailed annual plans as well.
These are deficiencies in Clause 16 but they are not covered by specific amendments, mainly because, when I drew up my amendments, I was working on the naive premise that asking for a five-year strategy was a sound, if unexciting, proposition. As I have explained, I now see that as flawed in many ways. For this reason, I fully support the Clause 16 stand part notice in the name of the noble Baroness, Lady Bowles; I am sorry that I did not have time to add my name to it.
On the amendments that I have tabled, I will start with Amendment 70, which requires the FCA’s strategic priorities to include its secondary competitiveness and growth objective. The equivalent provision for the PRA in new Section 2E, inserted by Clause 16, says that the strategic priorities of the PRA include secondary objectives, whereas the drafting of new Clause 1JZA for the FCA does not extend to the secondary objectives. The Minister has helpfully written to me today to say that the Government sort of accept that but that they will work up their own amendment. I thank him for that and I look forward to seeing the text of that ahead of Report.
Lord Stockwood (Lab)
I think this is part of a broader discussion. I am informed that this takes into account existing practices for how the reviews and overviews take place. Unless we decide, in the following debates, that we need an amendment to provide parliamentary overview, this will apply to the current regulatory framework as the oversight currently exists.
Baroness Noakes (Con)
I may be being a bit dumb, but I did not understand that at all.
Lord Stockwood (Lab)
I do not want to get confused about this. My understanding is that this is already existing practice, but I will take this away and write to the noble Baronesses just to confirm that this is exactly correct. We are trying not to defer from the practice as it exists today, but I will write to clarify that.
Lord Stockwood (Lab)
We will have to come back to these points at a later date. This is a broader conversation on oversight, and points have been made on this subject outside the Room. I hope noble Lords will allow me to come back to these points, as I think this will come up in further debates both during and after Committee.
Turning to Amendments 72 and 75, the Government agree that regulation should be proportionate and support the objectives behind these amendments. Indeed, the Bill forms part of the Government’s broader effort to reduce the burden of regulation on businesses, ensuring that the UK has a regulatory environment that supports growth while maintaining high standards. The Government have made a commitment to cutting the administrative burden of regulation by 25% by the end of this Parliament. The financial services regulators are actively contributing to this agenda. For example, the PRA is implementing new insurance reporting requirements that will cut paperwork by one-third, contributing to savings for firms of £66 million per year, and the FCA has proposed removing some transaction reporting that would save firms over £100 million per year.
However, the Government do not think it would be appropriate to impose a requirement that every long-term strategy must include a full review of all regulations and a plan for eliminating them. A universal rule review exercise each time a strategy is prepared or revised would not be proportionate and would reduce the regulator’s capacity to focus on other priorities. There are existing requirements in FSMA which require the regulators to keep their rules under review and to publish statements on policy and on their approaches to reviewing the rules. The Government consider that this is a proportionate approach.
Amendments 71 and 74 seek to require the FCA and the PRA, when preparing and revising their long-term strategies, to consult persons they consider would be affected, including those they regulate. I understand the intention behind these amendments. If the regulators are to produce long-term strategies that are meaningful and credible, it is clearly important that they are informed by engagement with those who are affected by them. The Government have a clear expectation that the regulator’s strategies will be informed by that engagement.
Baroness Noakes (Con)
Can the Minister explain why that is not included in the Bill? The Government expect them to engage with the industry. One would normally write consultation expectations into legislation. That is the normal practice. Why was it not done in this case?
Lord Stockwood (Lab)
Again, we will have to come back to that point. One of the things we are trying to consider is how we do not overburden by creating more regulation, but we will have to review that point and come back to the noble Baroness.
Lord Stockwood (Lab)
That is correct.
Amendments 71 and 74 seek to require the FCA and the PRA, when preparing or revising their long-term strategies, to consult persons they consider would be affected, including those they regulate. The Government have a clear expectation that the regulators’ strategies will be informed by engagement with industry, consumer representatives and other stakeholders. However, adding a statutory consultation requirement could lead to long delays between a new Government setting direction through a recommendation letter and the regulators putting a strategy in place.
The noble Baronesses, Lady Kramer and Lady Noakes, asked how the Government’s remit will work under the new system. The FCA and the PRA will now be required to have regard to their remit letters when producing or updating long-term strategies. The regulators will continue to be required to respond annually to remit letters, setting out the actions to which they will respond. The noble Baroness, Lady Neville-Rolfe, asked about non-executive directors; I will write to her on that as I do not have the answer to hand.
The accountability of the financial services regulators is clearly an important matter of huge interest to the Committee. I have heard a range of views today on exactly what this should look like, and we will continue to debate this issue in relation to subsequent clauses. However, regardless of views on the wider matters of transparency and accountability, I am confident that the majority will agree that long-term strategies will add to our understanding of the regulators’ strategic priorities and approach, which must be a good thing. I therefore ask that Clause 16 stands part of the Bill.
Baroness Noakes (Con)
I have some questions for the Minister. Does he believe that the FCA’s five-year plan provides a model for what the Government have in mind for compliance with Clause 16, if it becomes law? I will start with that question.
Baroness Noakes (Con)
Does the Minister believe that the FCA’s five-year plan, which started last year, is the model on which Clause 16 has been based? Is the Minister expecting that sort of document to be produced in response to Clause 16?
Lord Stockwood (Lab)
What the clause is trying to represent is that this is the starting point. There is definitely work to do and it needs to be improved.
Lord Stockwood (Lab)
What we have set out in answer to that question is that there is clearly a need for greater transparency and thinking about what the five-year plan looks like. In terms of the interaction with the Treasury, the hope is that we can get it into a position where it has greater clarity and certainty about long-term planning. It will be an emergent process, to ensure that it is improved on.
Baroness Noakes (Con)
I put it to the Minister that this clause has no specificity around it: no ability for the Treasury to agree the format or content of a five-year plan; no requirement for consultation; and no requirement for the involvement of parliamentary committees. We are being asked to give a blank check with these rather vague requirements. There are words in the Explanatory Notes about the Government expecting these to be “high level”, which is why I asked for the Minister’s reflections on what is clearly a very high-level document from the FCA. I am not getting any sense of what is likely to come out as a response to that.
Linked to that is my second question. I asked earlier what the Minister’s response would be to the question of whether annual plans were required. At the moment, both regulators produce annual plans for what they will do in the year, which provide a very rich source of information for the regulated community on what they can expect. If we are to have those levels of detail, it may not matter at all if an airy-fairy five-year strategy document is produced, full of drawings, pictures and stuff like that. If, however, we will not have anything else, and if the Bill takes out the one existing requirement on the PRA to produce annual plans, then we have a problem.
Lord Stockwood (Lab)
I can clarify that an annual plan is required and will still be required. Let me write to the noble Baroness to confirm that.
Baroness Noakes (Con)
Can I conclude my remarks with a plea to the Minister? He has taken away a number of issues arising from this debate, on which he will be writing one big letter or several medium-sized ones. It is normal, when something as contentious as this arises, for all Members of the Committee to be copied in on any such letters, not simply the one noble Lord who raised a specific query.
Lord Stockwood (Lab)
The sense is that it creates an administrative burden. We are trying to cut down on regulation as part of trying to accelerate growth, and we believe that that is the right balance.
Baroness Noakes (Con)
Do we not want to reduce regulation on regulated firms, rather than regulators?
Baroness Noakes
Baroness Noakes (Con)
My Lords, Amendment 77 calls for a review of the regulatory principles in Section 3B of FSMA 2000. I am grateful to the noble Lord, Lord Vaux, for adding his name to it. My amendment calls for the Treasury to review the regulatory principles and, in particular, identify those that are duplicated or no longer required. As we have already discussed in outline and will discuss further in a later group next week, FSMA currently requires the FCA and PRA to have regard to the regulatory principles in their general functions, but Clause 17 downgrades this by confining them to the new five-year strategy documents.
When your Lordships’ Financial Services Regulation Committee reported last year on the secondary competitiveness and growth objectives for the PRA and the FCA, it took eight pages of our report to describe the web of objectives, principles and “have regards” that the regulators have to live with. In fact, the eight pages covered only some of the “have regards”. The FCA told us that it had around 80 “have regards”, on top of the Chancellor’s remit letters and the regulatory principles themselves. The PRA said that its number was 25. My Amendment 77 should probably have required a review of all the “have regards”, and if I bring it back on Report I may well extend it to that.
In Committee, my amendment is focused on the regulatory principles, because, via Clause 17, these have become a contentious part of the Bill. There are currently eight regulatory principles in Section 3B, plus a vestigial reference to a ninth, and they include some very significant ones, such as proportionality, which we will also be discussing later in Committee. There were seven in the first iteration of FSMA, but they have been changed many times over the years and only three of the current principles directly read across to the original list—namely, efficiency and economy, proportionality and consumer responsibility—which suggests that not all the Section 3B principles are enduring in nature. We should expect the regulatory principles to represent the essential elements of how regulation should operate in practice and have some form of enduring quality. It is relatively clear that Section 3B of FSMA does not meet that test.
Baroness Noakes (Con)
My Lords, I thank noble Lords for taking part in this brief debate on what is, I think, an important area.
The Minister said that the Government have already reviewed the regulatory principles and found them to be absolutely fine. I find that quite remarkable, given that they clearly duplicate other requirements and that some are, frankly, almost incomprehensible; they have grown up over the years in various ways. As the Minister knows, the burden on my remarks was on the proliferation of have regards and not just the regulatory principles, which we will be debating in the context of the Government’s clear desire to downgrade the way in which they operate and to reduce the ability of Parliament to hold the regulators to account. We will return to that issue.
This is an important area for the Government to look at again. They say that they have reviewed all the have regards—there are many of them throughout FSMA—but I cannot believe that they have concluded that no change to the legislation is required. It beggars belief, because the have regards clearly overlap in some areas and are restated in others. I continue to believe that a proper review should be undertaken. I will remind myself of what the Government’s so-called review has already found, because I am not sure that I remember the details of it at the moment—I will check up on it between now and Report—but, as I indicated earlier, I may well return to this theme on Report, if not with this specific amendment. With that, I beg leave to withdraw the amendment.
Baroness Noakes (Con)
My Lords, the noble Baroness, Lady Kramer, was kind enough to refer to the committee I chair. I will offer a few comments on this area.
First, in line with what I said on the previous group of amendments, I do not believe that this is a regulatory principle in any real sense. It is certainly not one directed just at the PRA and the FCA; for example, the system-wide exploratory scenario, which the noble Baroness referred to, is being undertaken by the financial stability arm of the Bank. She referred to Sarah Breeden—that is her area, and she is not in the PRA or the FCA.
The noble Baroness, Lady Bennett of Manor Castle, read out some headlines from the Financial Times. She is right that there is a lot of noise around private credit. It is all based in the United States at the moment. It is often said that what starts in America comes to the UK, but there are a lot of differences between what has happened in the US, including what has gone seriously wrong, and what has happened here. It is encouraging that the Bank of England has taken the initiative to carry out the system-wide exploratory stress scenario—it is the only central bank in the world to do so.
There was criticism that this was voluntary, and that is because the players in the private credit market are not regulated organisations and so they have no obligation under existing law to provide information. However, it is my understanding that the degree of involvement of the organisations taking part that are not directly regulated by the PRA or the FCA—or are not involved in the activities we are discussing—has been satisfactory.
One thing I considered tabling for this Committee was the question of whether the Bank of England has sufficient powers to get the information from the non-regulated sector if it needed to do so. I would be grateful if the Minister could reflect on that question. All the time the information is being adequately obtained voluntarily, I do not see any need to legislate for it; I am just not aware of whether there is a backstop power, and I ran out of brain power for drafting an amendment to find out about that. I am grateful to the noble Baroness for giving me a cue to raise this issue.
A lot of issues arise in relation to the impact of private credit on the existing regulated organisations—banks and insurance companies—but it is also fair to say that, although there is not complete transparency on what the second-order impact would be if there was a stress in this situation, there is a lot of awareness and supervisory engagement with the key players, as was explained to us during the conduct of the inquiry that my committee undertook. The committee did not find such a scary situation as has been portrayed by other Members of the Committee this afternoon.
My Lords, here I am again with another issue that I want to raise. It does not necessarily look like it, but this is another constitutional amendment. Digital money and stablecoin are coming. As I have said in the House before, I am not King Cnut but I am concerned that both the industry and the regulators treat stablecoin as merely a change in plumbing in the payments system. I understand the desire for the UK to be an attractive place for stablecoin companies and the need to build a substantial sterling stablecoin sector. What concerns me is that, at scale, it has huge consequences for the taxpayer to carry the liabilities, and it determines who has their hands on the levers of economic power. I will not pursue that last issue; it would take about 10 minutes and the Committee is beyond coping with that.
In October, the FCA will publish regulations for the non-systemic stablecoin players but, on Monday, the Bank of England launched its policy statement and draft rules for systemic stablecoin. The document is clearly a loosening of rules previously under discussion, but my attention was grabbed by the Bank’s confirmation that it will introduce a central bank liquidity facility for systemic stablecoin. In other words, if there is a run on stablecoin, the taxpayer is on the hook. It is true that liquidity facilities are offered to the banks but to extend this to stablecoin is a major decision. I am not saying that it is right or wrong, but a decision on this scale, with the liabilities that are consequent, is above the pay grade of the regulator. This should be a decision in which Parliament is fully engaged. I beg to move.
Baroness Noakes (Con)
My Lords, the Financial Services Regulation Committee has also been looking at stablecoin, so I have a few words to say on the topic.
I go back to my earlier point: this is not a regulatory principle that can be applied by the FCA and the PRA. It has very little to do with them, as it is the financial stability part of the Bank of England that has issued the policy. The backstop is just one part of the arrangements, as the noble Baroness, Lady Kramer, will be aware. A very significant part of the assets of stablecoin issuers also need to be held in unremunerated form at the Bank of England—30%, which is a significant amount of money. If the noble Baroness is worried about the cost to the taxpayer, she might also reflect on the gain to the taxpayer for all the time that there is not a crisis because the Bank of England has access to free money, which is part of the whole deal.
The stablecoin package needs to be looked at as a whole, rather than one small part of it being picked out. The noble Baroness may still disagree with it, but it is a calibrated package which balances the risks, including keeping one-to-one asset backing, which will also go a long way to allaying her concerns.
I agree with the noble Baroness, Lady Kramer, that digital assets are a serious issue and that they deserve proper scrutiny. We come at it from a slightly different perspective. I note the point made by my noble friend Lady Noakes that this is not a matter for regulatory principles.
This week, as we have heard, the Bank of England published its final policy statement and draft code of practice for sterling-denominated systemic stablecoins. This may go some way to supporting institutional scale-up, but we are concerned by the general reaction, which has been that the fundamentals have not changed and that the prevailing regime we are left with could still leave UK issuers less attractive internationally.
We are very grateful for the work of the Financial Services Regulation Committee, under my noble friend Lady Noakes, with the help of her very distinguished committee. Yet again, it features in almost every part of this Bill. Its report, Stablecoins: Waiting for Regulation, makes it clear that the UK, in its view, is lagging behind the US and EU on stablecoin regulation. Stablecoins and other forms of digital money are no longer simply niche products or theoretical innovations; they have the potential to become part of the wider payments and financial infrastructure.
The danger now is that we risk creating, or at least allowing to persist, a regulatory grey zone. Firms need clarity on the duties, expectations and requirements that they will have to meet. That is why we are calling for a much clearer digital asset strategy from the Government. We need Ministers to take a position of leadership in this area. It is not enough to simply respond to developments as they arise in different parts of the digital stratosphere. We have tabled amendments alongside the noble Lord, Lord Ranger, who is somewhat expert in this area and is not here today, to probe the Government on the wider question of digital assets and digital finance strategy. We will come to those amendments in a later group. I do not want to pre-empt that debate now—not at this late hour, with so few people in Committee on such a hot day.
This amendment touches on the same underlying point: that the Government need to provide clarity and certainty. They need to provide leadership, whatever that is. I would be grateful if the Minister can briefly explain the Government’s position on stablecoins, and— in response to the point that the noble Baroness, Lady Kramer, has rightly raised—explain how stablecoins will help growth and competitiveness.