Financial Services (Banking Reform) Bill

Debate between Lord Eatwell and Lord Flight

Tuesday 15th October 2013 Lords Chamber

[Lord Eatwell (Lab)]

It would probably be helpful if I spoke now, and also introduced the amendment which is grouped with this one. I am grateful to the noble Lord, Lord Sharkey, for mentioning the comments that I made at Second Reading, but I feel that his amendment, while it raises a series of valuable issues, conflates some of them in a way which is not entirely helpful.

The first point is the one that he also made, which is that there has been no fundamental thinking at all about the structure of banking in this country. The whole discussion about ring-fencing which occupied us last week is a modification of the existing structures of ownership, rather than encouragement to develop an entirely different and more competitive banking structure. That is a key issue which underlies the amendment in the name of the noble Lord, Lord Sharkey, and the one that is in my name and that of my noble friend Lord Tunnicliffe. Where the issue has been conflated is that regional banking, to which he referred, should be separated from the issue of competition. Either or both can be promoted, but they have to be seen as separate entities. For example, the chief executive of Santander has recently written in the Financial Times that she would like to see a significant increase in regionalisation in its activities. That, of course, is not necessarily an increase in competition, but is a more regional focus of the single entity.

It is, however, encouraging, with respect to the regional issue, that the Governor of the Bank of England argued in Leeds a couple of weeks ago that he was very much in favour of an increase in regionalism in British banking, and I wonder whether the Government agree with him in this respect. The key issue underlying this is not regionalism so much. After all, if we look across Europe, it was the small regional banks which failed in their dozens, particularly of course in Germany. The issue is of relationship banking, and the return to a close relationship between the lending entity—which used to be the manager of the bank—and the community in which he or she is located. For example, that was an important force in the development of the science park in Cambridge. At that time, Barclays Bank played an important role in the funding of the science park. The manager, who took something of a punt in this respect, was of course then promptly moved on, because it was felt that he had overstretched his remit. I am very sympathetic to the idea of regionalism, but we have to see it in the context of a secure structure, without creating the rather weak structures which collapsed in other countries. We have to focus especially on the issue of relationship banking.

I now turn to the amendment in my name and the name of my noble friend Lord Tunnicliffe. This amendment seeks to look in particular at competition, with which the noble Lord, Lord Sharkey, began his discussion. As he pointed out, while at the beginning of the financial crisis it was argued that banks were too big to fail, they are now much bigger than they were then as a proportion of the overall UK market. The “too big to fail” issue is even more important today than it has been in the past.

There is no doubt whatever that the regulatory system itself—as well as various other aspects of banks’ activity, including the payments system, to which we will return later—has been a very effective barrier to entry. Only one significant deposit-taking bank—Metro Bank—has been introduced into the UK system over the last five or six years. We need to tackle this issue of competition. It was striking that the banking commission argued in the second volume of its report that,

“a market study of the retail and SME banking sector, with a full public consultation on the extent of competition and its impact on consumers”,

should be commenced immediately. It continued:

“We make this recommendation to ensure that the market study is completed on a timetable consistent with making a market investigation reference”,

to the competition authority,

“should it so decide, before the end of 2015”.

The Government’s response to the parliamentary commission on this point does not state that they reject this recommendation. Instead, they imply that they will fulfil it. However, what has happened? Nothing; absolutely nothing. They are bringing forward the OFT market review of small business banking, but this was not talking about small business banking. They are not putting in place a market review of the retail banking sector as a whole. Why on earth not? That is what is necessary, and what this amendment calls for.

The Government say that they are in discussions and that they are engaging with the problem. We would like to see some evidence of that. It is just not enough; it is too piecemeal, and not transparent. A proper review of competition in the banking sector is required. This amendment would secure that review in the manner which the commission recommended.

[Lord Flight (Con)]

My Lords, I declare an interest as a director of Metro Bank. I support Amendment 102, in the name of the noble Lord, Lord Eatwell. The Government are now well aware of the competition issue, but no particular policy has been formulated for how to deal with it. This legislation offers the opportunity to require that that should be prescribed. I will say more about competition in a minute.

While I support the principle behind the amendment in the name of the noble Lord, Lord Sharkey, I have strong reservations about regional banks. I remind noble Lords that, going back to the second half of the 19th century, when an industry got into trouble the regional bank failed and the whole region became depressed, often for a decade or more. The principle at that time, led by individuals such as Walter Bagehot, was to create national banks to spread the risk. Therefore, I am not sure that regional banks are particularly the answer.

Government policy has been anti-competition going back to at least Barings. I remember more than 10 years ago having an extensive debate with the late Sir Eddy George when he was Governor of the Bank of England, because it was stated policy that lender of last resort facilities would apply only to banks that were too big to fail. It seemed to me completely the wrong way round in that it gave smaller banks a disadvantage in terms of what they had to pay for deposits. Lots of them, such as Hambros, closed down. It created the great risk, for which we subsequently paid the price with the banking crisis. Elements of uncompetitive measures have been the big—very much higher—capital ratios that smaller banks have been obliged to have in relation to mortgage lending; the costs of the payment system; and the difficulty of getting a banking licence. If I may boast, I think that Metro Bank is the first new high street bank to have been set up in 120 years.

However, I therefore have some sympathy with the second part of the amendment of the noble Lord, Lord Sharkey. What he is saying, in my language, is that we want high street banks that will get dug into their communities and will naturally get involved with sponsoring activities in those communities. That is exactly what Metro Bank is doing. It is very good business to do it and very popular. When we open branches, there are queues of people waiting to come in and open accounts because they are so fed up with the appalling service that they have had from the banking oligopoly for the past few years. It was, indeed, very much an oligopoly. I think it was Lloyds that first decided that you could cut all service and just leave people with telephone numbers to dial. The other banks all followed, with a very substantial boost to profits as a result. For customers, however, it has been one of the biggest factors in making the large banks so unpopular.

I think the outlook is encouraging. Metro Bank plans to have something like 6% of the nation’s deposit base by 2020, which is not that far away. There are other new banks coming up. I believe that the face of the banking scene, even if the Government do not do much about it, will look very different in some 10 years’ time. One of the issues is that the big banks are simply too big to manage. The have archaic silo systems, which are an enormous problem to them. Their activities are simply too large. The requirement for increases in capital will lead to them shrinking their balance sheets and, rather like the old-fashioned huge department stores in the US, it is inevitable that business pressures will lead to their decline.

I attended an interesting meeting that was addressed by Andrew Bailey, the head of the PRA, this morning. He made the point that perhaps the regulator had been wrong to require small new banks to have much higher capital ratios against certain forms of lending. The logic for that was that new banks were more risky—fair dice—but its net effect simply increased the oligopoly strength of the existing large banks. The PRA is looking constructively at making capital ratios, as far as possible, the same across the board, whether banks are large or small. So the PRA is very much on to the need for more banking competition and for it to be supportive and helpful to new banks, as opposed to having rules that hinder them.

The Government, too, have seen the point and are keen on more banking competition. It seems to me, however, that they have not thought about it adequately and have not made up their mind about what more should be done, other than expressing a wish for more competition. That is why a requirement to look into the subject would be no bad thing. However, as I said, while I fully support the principle of more high street banks doing the things that high street banks always did, I am less comfortable with the amendment of the noble Lord, Lord Sharkey, which I think is overprescriptive.

--- Later in debate ---

[Lord Flight]

I clearly did not make my point correctly. I was simply trying to say that I have seen reactions to anti money-laundering arrangements, namely HSBC sacking all its US clients and 26 embassies in the UK being blacklisted by the FATF and having problems getting bank accounts. By the way, 10 of those embassies belonged to members of the EU. It is right to focus on anti money-laundering for the reasons which noble Lords correctly pointed to, but people do not take account of the other side of the coin. What is happening, as I described—and it will increasingly happen—is that people who come from countries that have been FATF-blacklisted will find it impossible to get a bank account, although they may be completely innocent.

[Lord Eatwell]

My Lords, I have an amendment in this group and it may be for the convenience of the Committee if I speak to it now. Before doing so, I would like to make two comments about the discussion that has gone on so far. First, Amendment 55 in the name of the noble Lord, Lord Deighton, which includes the meaning of what is a bank, requires very careful exposition by the Minister, because if it says what it appears to say then it seriously undermines the whole discussion about the senior persons regime that we have been having up until now.

Secondly, on the amendments tabled by my noble friend Lord Brennan and his colleagues, it seems that it is incumbent on the Treasury between now and Report to produce a written report demonstrating the noble Lord’s claim that these amendments are unnecessary; showing that the current regime is fully in accord with the latest FATF principles; and therefore providing the comfort which my noble friend might seek if his amendments are indeed unnecessary. Perhaps the noble Lord could also take in some of the points made by the noble Baroness, Lady Noakes, as there are areas that the noble Baroness wants to be sure are equally well covered. Particularly with respect to the issues raised about anti money-laundering and prevention of terrorism principles, it is crucial, as those principles are conveyed into legislation, that we are absolutely clear—and the legislation is clear and explicit—on this matter.

Amendment 100, which is in my name and that of my noble friend Lord Tunnicliffe, proposes to introduce a licensing regime to apply to all approved persons. The noble Lord, Lord Newby, made the extraordinary remark that this would weaken what was elsewhere in the regime as set out in the Government’s amendments. However, I was heartened to hear the noble Lord, Lord Turnbull, use the word licence as I did, and to hear him quote almost word for word the specification of,

“minimum thresholds of competence … integrity, professional qualifications, continuous professional development”,

and so on, which is included in our amendment.

Amendment 100 would significantly strengthen the requirement for approved persons to be suitably qualified in this country, to be licensed and to face the possibility of having the licence removed. Doctors, teachers and lawyers all require some form of professional licence, so why not approved persons in banking? If the noble Lord really undertook to understand this amendment he would realise that it fits precisely with the goals of the commission and would significantly strengthen the quality of regulation and approval of those working in the banking sector in this country.

Public Service Pensions Bill

Debate between Lord Eatwell and Lord Flight

Tuesday 12th February 2013 Lords Chamber

[Lord Eatwell]

My Lords, it may be for the convenience of the House if I refer to the amendments tabled in the name of myself and my noble and learned friend Lord Davidson, since the government amendments are substantially responses to the points that we made in Committee. I want to make it clear why we feel that the situation has, let us say, not moved on far enough.

Let me deal first with Amendments 37, 38 and 39 because they make a proper, logical story. They seek to remove from Amendment 36 the role of the authority in deciding whether an adverse effect on the pensions payable has in fact occurred. In other words, the authority has to decide whether its measures should be challenged in consultation. This is as if, in a game involving Manchester United, penalty decisions against it were to be made by Sir Alex Ferguson. I am sure that he, as a talented football manager, would then make a decision on a reasonable basis. However, with all due respect to that distinguished person, do we think that these decisions would be made in a way which was balanced? I could choose any other football manager, including Mr Wenger, who apparently never sees things that happen on football pitches.

I refer to balance because in Committee the noble Lord, Lord Newby, in setting out the criteria that he applied in these circumstances, said that he wanted to achieve a sensible balance between members’ protection and the role of the authority. It seems that while the proposed new clause in Amendment 36 provides for a significant protection for members of the scheme, it is still not balanced in that it leaves the authority with the responsibility for deciding that its own measures have had an adverse effect on those members. In those circumstances, even the most reasonable person is likely to be reluctant to feel that measures which they are taking have a negative impact upon the scheme. Our amendments simply remove the role of the authority so that the new clause would say,

“containing retrospective provision which appears … to have significant adverse effects”.

In those circumstances it seems to me that the authority, facing the responsibilities that the noble Lord referred to, and without the protection of the statute giving it the decision-making responsibility—a decision-making role or power—would take a more balanced and reasonable view. These amendments are to encourage reasonableness on behalf of the authority.

Moving backwards, our Amendments 22 and 23 refer to what is now Clause 12, which deals with the employer cost cap. The problem with this clause is in subsection (7), where it is recognised that steps to change the cost cap may result in an,

“increase or decrease of members’ benefits or contributions”.

In other words it may decrease members’ benefits so that the action of using the cost cap to encourage efficiency and efficient management of pension schemes may result in the retrospective diminution of benefits which members feel that they have accumulated.

The key question is whether Amendment 36 covers that eventuality. The eventuality that it covers is,

“where … the responsible authority proposes to make scheme regulations containing retrospective provision”.

Changing the cost cap may have retrospective consequences but does not contain retrospective provision. Much as we welcome the general intent of Amendment 36, then, it does not deal with one of the significant cases of retrospection that still deface the Bill. Amendments 22 and 23 are designed to protect the benefits of pensioners against retrospective effect, perhaps unintentional, when there is some change in the cost cap. We are delighted to see the noble Lord, Lord Sassoon, here performing duties that were formerly performed for him.

Those two amendments are necessary unless the Minister can find a way for Amendment 36 to refer not simply to regulations containing retrospective provisions but to regulations that have retrospective consequences. That would be a way, I suggest, to transform Amendment 36 from a rather imperfect structure to one that would deal with retrospection throughout the Bill.

The amendments that I and my noble and learned friend have tabled are in the spirit of Amendment 36 and indeed of the Government’s laudable attempts to remove the retrospective elements—the ones, that is, which are unnecessary and potentially harmful to members; I understand that there are technical retrospective elements that are necessary—but I feel that they have not yet managed to achieve what the whole House wishes to achieve. Our amendments would contribute to that goal.

[Lord Flight]

My Lords, I should be grateful if the Minister could comment on the extent and the manner to which the Government’s amendments to the ability to make changes and to make retrospective changes affect the fundamental issue of affordability. I apologise for raising this issue yet again but it is fundamental. We start, as everyone knows, from the OBR advising that there will be a cash flow deficit of £15.4 billion by 2016-17. My related question to the Minister is: what is the Government’s estimate of the additional cash flow deficit costs of both increasing longevity and, more particularly, the new single-tier pension proposals made by the DWP? It strikes me that two separate silos have been working on this, with the Treasury in one and the DWP in the other. Precisely what the effects of the loss of employer and employee NI contributions and the ending of contracting out will be on the deficit of pay-as-you-go public sector schemes seems to some extent to be a mystery.

I think it was in Committee that the Minister advised that he felt the estimates I suggested were too high; thus I would be grateful if he would comment on what the Government’s estimates are. My revised estimates, done with the assistance of Michael Johnson, who many noble Lords will know has done significant work on the subject, are that there is an additional cash flow cost from longer longevity of the order of £2 billion per annum, and there may now be an additional £3.4 billion resulting from the loss of public sector employers’ NIC rebates with the ending of contracting out and a further £4 billion per annum as a result of public sector employees continuing to enjoy an enhanced occupational pension as if contracted out while still being entitled to further accruals under the new single-tier state pension, once it appears. In contrast, private sector employers who are contracted out will be permitted to change their scheme rules, effectively to reduce pensions paid, without trustee consent. As I have said, I cannot believe that the prospect of a potential cash flow deficit of some £24 billion per annum will be acceptable to whoever is in power at that stage, given the state of the public finances. Dare I say that it seems that not only the Opposition but the Government are ignoring the affordability issue with regard to this legislation as it passes through both Houses of Parliament?

I would be grateful for a response to the question about to what extent room for manoeuvre is being reduced by the government amendments. Secondly, what is the Government’s revised, post-OBR estimate of the total cash flow deficit cost of the arrangements under the Bill?

Public Service Pensions Bill

Debate between Lord Eatwell and Lord Flight

Monday 21st January 2013 Lords Chamber

[Lord Eatwell]

My Lords, I will speak also to Amendments 118ZA, 118B, 118C and 119A in this group, which in my name and that of my noble and learned friend Lord Davidson. Clause 20(1)(b) is about consultation and reporting in the context of the responsible authority proposing,

“to make scheme regulations containing retrospective provision which appears to the responsible authority to have significant adverse effects in relation to members of the scheme”.

We are particularly concerned that “significant” is not defined and could be open to interpretation. We do not want the responsible authorities to, let us say, be let off the hook when it comes to consulting on changes that might have an adverse effect on members, especially given that the provision relates to that continuous bugbear in this Bill, retrospective changes. In particular, the protections that are present in Clause 20 do not apply to adverse retrospective changes to any of the non-protected elements of public service schemes—they only kick in if the adverse effect is deemed significant. Amendment 116A would ensure that the protections in Clause 20 apply to any proposal to make an adverse retrospective change.

There are only three protected elements in Clause 20(5): the extent to which the scheme is a career average defined benefit scheme—the main purpose of the Bill—members’ contribution rates and benefit accrual rates. However, this means some very important elements of a pension scheme are not protected, most notably the definition of pensionable earnings, early retirement rights and ill-health benefits. If a responsible authority decides to make adverse retrospective changes to something as important as ill-health retirement benefits, or indeed to the definition of pensionable earnings, which will of course knock on to the final pension provision, it is unacceptable for such adverse retrospective changes to be excluded from the protections in Clause 20.

When this issue was addressed in another place the Minister complained that the effect of the amendment would be to make any,

“adverse change to member benefits subject to the additional protections in clause 20, regardless of how minor that change might be”.

He then said that,

“we believe that almost all retrospective changes will either be minor or technical in nature, or beneficial to members”.—[Official Report, Commons, Public Service Pensions Bill Committee, 20/11/12; col.407.]

That is a welcome belief but it is not knowledge: it is merely a belief. Having members’ protections over such things as ill health and pensionable earnings hanging on a belief is entirely unsatisfactory. Given that the Minister has already made concessions or, to put it better, positive statements about the way in which he will bring forward amendments to the insidious retrospective measures in the Bill, I ask him whether the measures on retrospection will also apply to this matter.

Amendment 118ZA in my name adds to the definition of the “protected period”, as it is called, to accommodate the different closure date of the local government pension scheme. Clause 16 closes the local government pension scheme on 1 April 2014, but all other schemes are closed on 5 April 2015, one year later. However, Clause 20 defines the protected period as one of 25 years beginning on 1 April 2015. This means that there is a window of a year in which the protections under Clause 20 will not apply to the local government pension scheme. This amendment would correct what seems to be a drafting error by ensuring that there is no such peculiar window in which the protected elements of the local government pension scheme are not, in fact, protected, as the Government clearly seem to intend, by Clause 20. By aligning the protected period for the local government pension scheme with the other schemes in the Bill, they will all come to an end and all be dealt with and covered at the same time.

The Minister in the other place was sympathetic to this argument. I am therefore somewhat surprised that the Minister here is not reflecting that sympathy by tabling an appropriate amendment to this oversight in the non-alignment of the two schemes.

Amendment 118B again refers to protection. As we have said, Clause 20 lists various protected elements of the scheme. This amendment would overcome some of the deficiencies that we have already indentified by adding the definition of pensionable earnings, ill-health benefits and retirement rights to the protected list. This overcomes the problem of their being subject to the significant adverse consequences of retrospection. This would be a simpler advantage to dealing with some of the issues to which I have referred.

The Minister in another place argued that his rejection of an amendment like this rested on wishing to maintain flexibility in the arrangements. I do not think that that is a very satisfactory argument. Flexibility is often an attractive characteristic of legislation, but not when it is achieved by undermining the pension rights of members of a pension scheme. Let us remember, these are some of the less well paid members of our community who serve us through a variety of public services. Achieving flexibility by reducing their rights does not seem to me to be a very respectable activity.

Retrospection again rears its ugly head as regards Amendment 118C. The amendment seeks to leave out Clause 20(6), which provides that all the “protected elements” under Clause 20 will not be so protected if a change is required by or as a consequence of a change in the employer cost cap. When we last discussed cost caps, we saw that the definition of the cost cap was entirely in the hands of the Treasury. Therefore, it would be quite possible to place the cost cap at such a position as would lead to a consequential loss of protection under Clause 20.

Once again, the Minister has made a lot of sympathetic noises about the perhaps unfortunate consequences that the current definition and specification of changes in the cost cap bring to this Bill. I hope that his earlier commitment to doing something about the cost cap will carry through to Clause 20 and the various protections that it provides.

Finally, given that we are continuing the same theme into Clause 21, Amendment 119A again refers to the incorporation of “significant” with respect to “adverse effects”. The point is that “significant adverse effects” are designed in the Bill to trigger the use of an affirmative resolution procedure for any changes to scheme regulations. In particular, Clause 21 provides:

“Scheme regulations are subject to the affirmative procedure”,

only,

“if … they amend primary legislation, or … contain”—

and here we go again—

“retrospective provision”,

which would,

“have significant adverse effects in relation to members of the scheme”.

Given the way that retrospection runs continuously through this Bill, creating major uncertainty among members of these schemes, the very least we can expect is that any adverse effects should be subject to an affirmative procedure.

Returning to Amendment 116A about the use of “significant” in defining “adverse effects”, I beg to move.

[Lord Flight]

My Lords, I rise to speak to Amendment 117A, which—if I may put it thus—heads somewhat in the other direction from the amendment in the name of the noble Lord, Lord Eatwell. As I understand it, Clause 20 says that for 25 years you will not be able to make any changes other than as a result of consultation and agreement among the various parties. The clause refers to the changes containing a provision which,

“changed the protected elements of the scheme”—

defined as where,

“the scheme is a career average revalued earnings scheme”,

in relation to contribution rates and to “benefit accrual rates”, or where the “responsible authority” proposes to make scheme regulations containing retrospective provision which appears to the “responsible authority” to have “significant adverse effects” in relation to members of that scheme. As I said, the protected period is defined as 25 years. My understanding is that although this clause may not cover every detail, it is in effect saying that other than by agreement, no changes can be made which come under the two defined areas for 25 years.

My amendment to reduce that period to 12 years was not entirely random: it was basically part of a previous amendment suggesting a post-2006 review by the OBR of fiduciary valuations. However, the fundamental point is that whatever Government are in power, they will be obliged to make major amendments. We started off with a cash-flow deficit of £15.4 billion by 2017. However, the ONS has advised that the longevity assumption is six years shorter than it ought to be, so that adds another £7.2 billion; and now that we have the government single pension proposals, the public sector pension schemes will not get the contracted-out NI contributions, which worsens the cash flow by about another £5 billion. So, we are going to have a cash-flow deficit per annum of approaching £30 billion.

If anyone thinks that that is sustainable in the present environment of deficits which are well above maintainable levels, they are not seeing reality. I repeat: whoever is in power in the next five years will be obliged to review the whole aspect of public sector pensions if the cash-flow deficits turn out to be at the sort of levels that now look likely. Limiting the protected period to 12 years is hopeful—not being able to change any of the key elements for 25 years is just unrealistic.

Financial Services Bill

Debate between Lord Eatwell and Lord Flight

Wednesday 5th December 2012 Lords Chamber

[Lord Eatwell]

My Lords, I am very grateful to the noble Lord for having clarified some obscurities in the Bill that arose from the use of the generic term “the Bank” to refer sometimes to the court and sometimes to the executive. However, the noble Lord has just said something which has disturbed me. He said that, for clarification, when the term “Bank” is used, this does not necessarily mean the executive; it may mean the court. It seemed to me that he was acknowledging that an uncertainty remained. Perhaps I misheard. I should be very happy if I did, because the sort of clarification that he has set out is very welcome.

[Lord Flight]

My Lords, there is one area in this territory on which I would appreciate some clarity. The principle of returning the oversight of banks to the central Bank, which I think has been widely supported, has, to my mind, always been about the concept that the central Bank ought to be in regular contact with banks, that it ought to know what is going on and that it ought to be able to head off practices that are clearly potentially damaging to the banking system. However, I am not clear how the staff of the Bank and the staff of the PRA will interact. One would have thought that quite often it would be the staff of the Bank who were having regular dialogue with banks and learning what was going on and what might be going wrong, but it is the PRA—to some extent a sort of cuckoo plopped into the middle of the Bank of England—that essentially has the legal tasks. Therefore, we have clarification of the definitions of “Bank” and “court” but below what I call the executive level I am still not entirely clear where the staff of the Bank or the staff of the PRA will be carrying out supervisory activities.

Financial Services Bill

Debate between Lord Eatwell and Lord Flight

Monday 26th November 2012 Lords Chamber

[Lord Flight]

I think that I was interrupted right the way through, as a matter of fact.

[Lord Eatwell]

My Lords, the government Front Bench should calm down and allow us to conduct this discussion broadly under Report mechanisms but in a way which takes us forward on what, as my noble friend has said, is an enormously complicated Bill.

I am afraid that I think the proposal of the noble Lord, Lord Flight, is unfortunate and I cannot support it. It is unreasonable to provide this sort of protection to financial advisers, who should take full and appropriate care in the advice that they give. If they have taken full and appropriate care, they will be able to defend themselves at a later stage against the problem that the noble Lord, Lord Phillips, raised a few minutes ago, but I think it inappropriate that they should not be sensitive to potential comeback for advice which is inappropriate and misconceived.