Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019

Debate between Earl of Kinnoull and Lord Leigh of Hurley

Monday 18th February 2019 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I remind the House of my interests in financial services, particularly in international financial services for quite a long time.

Many of the speeches in this debate have given the Government a poor grade on things. However, it is important to remember business, which is at the centre of this. I always find that there is some confusion about what equivalence is. For financial services, there are 11 directives or regulations which give rise to powers to grant equivalences, 35 countries have taken advantage of that, and 279 equivalences have been granted—those are the figures from October on europa.eu. I gave evidence in respect of one of those 279 to try to get an equivalence for Bermuda—a successful achievement—some years ago, so I am very familiar with the process and also extremely familiar with how important it is for international business to have that equivalence.

The areas that are covered by equivalence, where obstacles and barriers are lowered or removed by granting it, include: accounting and auditing; capital requirement measurement; risk exposure measurement; and reliance on other markets’ regulators that reduces the amount of senior management time that is taken up, making sure that regulators feel comfortable with whatever the business is that you are running within their regulatory environment. It is therefore very important indeed that we have this instrument in place, if there is a disorderly Brexit, in the first instance. I agree with many of the points that have been made about how the Government’s performance has not been that good on this, or indeed on other statutory instruments. However, this is vital for business and is a key part of our economy, so I hope that the House will hurry it through.

[Lord Leigh of Hurley (Con)]

My Lords, I welcome this statutory instrument. I note that paragraph 77 of the consolidated impact assessment states:

“This does not remove the general need to review and improve legislation, which HM Treasury remains committed to doing in due course and where appropriate”.


Following the debates we had on the Financial Services (Implementation of Legislation) Bill, there are areas which might improve the financial services community and be for the benefit of the public and companies seeking to raise capital without the confines of some EU regulations; in particular, for small companies and for existing public companies that are seeking to raise capital from existing shareholders. At the moment, due to the expensive costs of a prospectus, they are prohibited from so doing. Although I have never prepared an impact assessment, I cannot imagine how one can be prepared in this sector, because there are so many potential benefits that might arise from this. I refer your Lordships’ House to my registered interests.

Official Listing of Securities, Prospectus and Transparency (Amendment etc.) (EU Exit) Regulations 2019

Debate between Earl of Kinnoull and Lord Leigh of Hurley

Monday 18th February 2019 Lords Chamber

[The Earl of Kinnoull]

Yes, I am sorry, we have now decided that they are distinguished lawyers—and others of the huge number of advisory people in London who help people get access to capital. There were a lot of notes in November and more in December, and what is interesting is that they have all been positive on this SI. So I am not sure what a full consultation would have produced in excess of the current SI. Anyway, that is what we have, and I very much hope that it too will sail through shortly.

[Lord Leigh of Hurley (Con)]

I very much agree with the noble Earl, Lord Kinnoull. His remarks were spot on. This has been around for some time, everyone in the industry is adamant that it is necessary for ongoing financial services success, and there is no quibble about its importance. The only quibble that I might have with the noble Lord, Lord Adonis—who has explained that he is not a financial services expert—is about what he was focusing on in note 10: the underestimate of 2,113 firms having to bear the cost of £700 each. Of course, the £700 is calculated assuming that firms will use lawyers at £330 an hour in each and every case. I can assure noble Lords that my firm, for one, will not be.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Earl of Kinnoull and Lord Leigh of Hurley

Wednesday 17th January 2018 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, I declare my interests as set out in the register of the House, particularly those in respect of financial services.

I greatly respect the noble Baroness, Lady Stern, and the other noble Lords who have signed the amendment, but I wholly disagree with it. If we in this Chamber sought to legislate for Scotland in a matter of devolved competence without consulting or without the consent of the Scottish Parliament, all of us know what a hullabaloo would be raised immediately. We would be reading about it in every newspaper; the media would be full of it. Indeed, the media are fairly full of warnings from the Scottish Government. I know the same to be the case in Wales. I was with the EU Select Committee recently. We visited the Welsh Parliament and, in the course of the day, the same point was made to me by, I think, every political party.

As a Parliament, we developed the Sewel convention to cope with this very situation. That has been put in the memorandum of understanding, and the October 2013 version of it states that,

“the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature”.

Indeed, we put it into statute in, for instance, the Scotland Act 2016, which has of course now been litigated. I have here the Miller judgment. In his outstanding judgment, the noble and learned Lord, Lord Neuberger, rather elegantly reminds us in paragraph 144 that the Sewel convention was not invented recently but that its substance was in effect between, for instance, the UK and Southern Rhodesia in the 1960s. The Sewel convention represents something that this Parliament has had for a long time, and it stretches out to our overseas territories as well as to our devolved Administrations here.

In the final paragraph of five pages considering the convention, the noble and learned Lord says:

“In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK parliament and the devolved legislatures”.


I repeat all that and make a meal of it because I have to say that the six countries named in the amendment are proud and sophisticated places. Money laundering is rightly a devolved matter for them. Bermuda, for instance, is especially highly developed. Its GDP per head is much bigger than that of the UK, and it was not mentioned once in the Panama papers. Therefore, were we to legislate without even consulting these parliaments, let alone asking their consent, it would be deeply wrong. Just as with Scotland and Wales, our overseas territories would feel angry, which is why the Sewel convention is and has been a good thing. Westminster has the power to intervene and should exercise it were things badly awry. However, I have to say that evidence of “awryness” is in fact the other way. I looked yet again at the Wikipedia article on the Panama papers; about halfway down a long and extensive article, there is rather a good league table of banks that have been involved in the affair. Four of the top 10 banks listed in the league table were based in Luxembourg; none of the top 10 banks was based in any of the countries listed in this amendment. Therefore, there appears to be a bit of work to do at home, in the EU.

A second and much larger piece of evidence comes very recently from the EU itself. On 5 December last year, the EU adopted Council conclusions concerning non-co-operative tax jurisdictions. On page five of the adopted 38 pages I have in my hand, the EU Council affirms that,

“these actions collectively taken by EU Member States are in line with the agenda promoted by the G20, the OECD and other international fora”.

None of the six countries named in this amendment is on the black list.

Annexe 2 of the adopted conclusions lists countries in various categories that have agreed to make changes by the end of this year. It is a large list of countries. In other words, provided that changes are made by those countries, in the EU Council’s view they will be fully compliant with the EU, G20 and OECD thinking in this area. Only two of the six countries in this amendment are even part of that list of co-operative countries. Anguilla, the British Virgin Islands, Montserrat and the Turks and Caicos are not. In that respect, they are doing rather better than Switzerland or Hong Kong, which are. Indeed, 23 countries are making changes to improve transparency. None of the six countries of this amendment is listed. Twenty-two countries are making changes to anti-BEPS measures. Those are sophisticated corporate tax dodges. None of the six countries in this amendment is listed. Twenty-six countries, including Switzerland and Hong Kong, are making changes to amend or abolish “harmful tax regimes”. None of the six countries of this amendment is listed. Six countries, including Bermuda and the Cayman Islands, have agreed to,

“address concerns relating to economic substance”.

Among those six are also Guernsey, Jersey and the Isle of Man, the only time the Crown dependencies appear in the annexe. But, of course, they do not appear in the amendment.

Thus, after all the work of Pierre Moscovici and his officials—and he is no great friend of our overseas territories—and work aligned with that of the G20 and OECD, we are presented with this amendment. Six of the 14 British Overseas Territories have been singled out. Four do not appear on the definitive list at all; two do, and have agreed to take a very small amount of corrective action—the same corrective action that the Crown dependencies are taking, yet their names do not appear. I cannot fathom how this list of names was arrived at. To me, it looks unjust. I leave it to others to comment on mechanical aspects of the amendment, which also look problematic to me—but time is pressing.

The Government and the overseas territories, and indeed the Crown dependencies, have discussed these issues around the table regularly and, over the years, there has been continual incremental progress on this very important issue. The success of this approach can be seen in the work of Mr Moscovici and his very thorough 38 pages, with not one on the blacklist, and only a very small amount of agreed work to be done by a small number. We should continue to take this road, and the amendment is constitutionally wrong and unjust in casting unwarranted aspersions on a number of our loyal overseas territories.

[Lord Leigh of Hurley (Con)]

My Lords, I will not reiterate the many arguments made in Committee on the ineffectiveness of foisting public registers on the overseas territories for tax or law enforcement, but rather pay tribute to the noble Earl, Lord Kinnoull, and my noble friend Lord Naseby for making similar points to those that I would have made. Instead, I rise to make a different point.

I spoke in response to an identical amendment tabled by the noble Baroness, Lady Stern, to the Criminal Finances Bill on 3 April, memorably, as she said, one year after the Panama papers. That amendment was ultimately not moved but it has appeared by and large in the same form today. A similar amendment to the same Bill was moved in the other place regarding the Crown dependencies, which the Opposition Front Bench stated it was keener to legislate for than the overseas territories. The amendment was defeated by the substantial majority of 301 to 180. The interest of the UK, and the interest of fairness, is to achieve a level playing field between the members of the British family of territories. Clearly, it is also the intention of the Opposition Front Bench to legislate for the Crown dependencies, so that clear steer from the other place should be noted and the impact on the Crown dependencies considered. Still, much has changed even in those few months to make the call for public registers possibly less compelling.

Since then, both Crown dependencies that have been assessed by the OECD’s Global Forum—the world’s standard-setter for beneficial ownership, retention and international exchange—have been rated as among the few jurisdictions fully compliant with international standards. Indeed, they have a better rating than the UK. Moreover, since then, the overseas territories’ 2016 exchange of notes with the United Kingdom, under which they agreed to introduce government central registers of beneficial ownership, have come into effect. Those registers are accessible by UK tax and law enforcement on a same-day basis, giving the UK access to information that is unparalleled by any other jurisdiction in the world.

Even more so, partly in response to the debate in this House last year, the Criminal Finances Bill was amended to introduce mechanisms to review the effectiveness of the overseas territories’ and Crown dependencies’ registers and their exchange agreements with the United Kingdom. That amendment, now Section 9 of the Criminal Finances Act, requires the Government to prepare and lay before Parliament a report by July 2019 on the effectiveness of these new systems. This will allow your Lordships’ House to have the full evidence in front of it before taking any further steps. That was most wise. It buttresses the systems that have been adopted in the overseas territories, rather than undermining them; it meets international standards, rather than conflicting with them; and it gives the UK oversight of the overseas territories, rather than pushing them around. David Cameron was quite right and prescient in setting out tax evasion and counter-fraud legislation as a priority, and I pay tribute to him for that prescience—long before “McMafia” was aired.

To legislate now would be to pre-empt that report, which has already been legislated for and which would greatly inform your Lordships’ House on the strengths and weaknesses that might require improvement. Moreover, by legislating now—before evaluating the overseas territories’ systems, as the Government are now required to do—the United Kingdom may jeopardise the good will and unparalleled relationship that it has with those overseas territories and Crown dependencies. I therefore urge your Lordships to show caution in the approach adopted to avoid undermining the progress that has been made. Even in difficult times, with some of the overseas territories named in this amendment having been devastated by recent hurricanes, they have made progress to remain at the fore of international standards. Let us not pre-empt the evaluation that Parliament has already compelled the Government to conduct by approving this amendment.