Financial Services and Markets Act 2000 (Consumer Credit) (Designated Activities) Order 2014

Lord Newby Excerpts

Monday 10th February 2014 Grand Committee

Moved by

[Lord Newby]

That the Grand Committee do consider the Financial Services and Markets Act 2000 (Consumer Credit) (Designated Activities) Order 2014.

Relevant document: 18th Report from the Joint Committee on Statutory Instruments.

[Lord Newby (LD)]

My Lords, I am pleased to introduce the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 and the Financial Services and Markets Act 2000 (Consumer Credit) (Designated Activities) Order 2014. With the Committee’s permission, I will refer to them as the regulated activities amendment order and the designated activities order.

A well functioning consumer credit market is vital to the economy and to society. However, the market is not functioning as it should and consumers are not being properly protected. The current licensing regime run by the Office of Fair Trading and established under the Consumer Credit Act 1974 lacks the capacity and powers comprehensively to tackle consumer detriment. It cannot keep pace with this fast-innovating market. That is why we are moving the regulation of consumer credit to the Financial Conduct Authority from this April. We will make sure that the regime is proportionate and supports a sustainable and competitive credit market. The Government laid statutory instruments last summer to provide the framework for this regulatory transfer. However, there remain a small number of largely technical issues to address to ensure that the transfer runs smoothly and is proportionate for business. I shall set out how the statutory instruments we are considering today will address these outstanding issues.

The regulated activities amendment order addresses the following principal points. As regards local authorities’ credit activities, they are not required to hold a consumer credit licence under the current regime. The Government set out in their March 2013 consultation their intention to preserve this status quo. Local authorities will need to be FCA-authorised only where this is necessary for compliance with the consumer credit directive. This will minimise burdens on local authorities and avoid gold-plating. To further minimise burdens on local authorities, the instrument provides that those which require authorisation should be eligible for the FCA’s limited permission regime, where costs and regulatory burdens will be lower.

As regards the provision relating to the retained Consumer Credit Act provisions, the Financial Services and Markets Act, on which the new consumer credit regime is based, provides for a rule-based approach to allow more flexible and responsive regulation of this market. The Government have already repealed many provisions in the Consumer Credit Act and associated secondary legislation so that they can be replicated in FCA rules. However, the Government decided to carry forward a number of important consumer rights and protections from the CCA where they cannot be replicated easily under the Financial Services and Markets Act.

In the longer term, however, the Government are confident that many of these provisions can be replaced by rules-based consumer protections. This instrument therefore places a requirement on the FCA to review retained CCA provisions by 2019. It will recommend to government which remaining such provisions can be repealed and replaced with FCA rules, taking into account the implications for consumer protection and burdens for firms. The FCA will report to the Treasury, but the order requires the Treasury to lay a copy of the report before Parliament. This review was proposed in the Government’s March 2013 consultation and was well received by respondents from both industry and consumer groups. Ultimately it will help to ensure that the consumer credit regime is based on the powers and requirements set out in FiSMA, unifying the basis for conduct regulation of financial services in the UK.

The order also makes provisions relating to peer-to-peer lending. The Government are keen for regulation of this sector to balance the protection of consumer borrowing and lending through the platforms with a proportionate regime that can support the growth of the sector.

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[Lord Tunnicliffe (Lab)]

My Lords, I welcome these two orders. It is the duty of Her Majesty’s Opposition to study secondary legislation and then to oppose it where we find errors and faults, but I have to say that I have not been as successful as the noble Lord, Lord Sharkey, in finding questions to pose to the Minister, so at least my words will give him a little time to collect together his notes on those technical areas. While we welcome the orders, my honourable friend in another place did ask one or two questions which seemed to be answered satisfactorily. As far as I can tell, the orders do their job. With the permission of the Committee, I should like in a sense to celebrate these orders because they represent the last hurdles of effecting the transfer of responsibilities for consumer credit from the OFT to the FCA. Over the past many months, we have all been concerned about the consumer credit market, in particular its grey areas and payday lending.

I, too, have studied all 49 pages of the impact assessment, although I did not find the same inconsistencies as the noble Lord. I did pick up an implication that the resources to be devoted to the area seem to be tripling from around £10 million per annum to £30 million, and I would be grateful if the Minister could confirm the extent to which new resources are being made available for this new activity. What does this represent in terms of resources and people at the FCA devoted to the consumer credit market? Will it involve the transfer of people from the OFT? Will it involve new and perhaps more capable people working in this market? Will there be a change in attitude and culture on the part of those working in this area?

As has been pointed out, there are some detailed areas, but the really serious evil here is the loan sharks, the rogue lenders and the payday loans market. That market is pretty worrying at every level, from the one-person operator through to major organisations. It involves probably some of the most vulnerable consumers in the land, who are people making decisions in very difficult and stressful circumstances. If ever a market needed intelligent, proactive government regulation, it is this one, and I hope that what the Government have designed will do it.

I would be grateful if the Minister could say a few words about how the regulators will be more proactive. The documentation makes the point that the FCA can be forward-looking and create regulations quickly. I would be grateful if the Minister could expand on that and give me some reassurance—in response to a point made by a colleague—that the new unit will be able to strangle products at birth; in other words, will be sufficiently proactive to sweep the market for the emergence of new products and move quickly to kill them before they do the social harm that we know they can do.

One of the aspirations of these changes is to bring rogue firms under control, which I think we all welcome. The problem is that it might increase opportunities for illegal operations. I feel as though I am in a pantomime now and saying, “Look behind you”, because notes are at the Minister’s right hand. To what extent will the unit work with the police where it sees the early emergence of illegal operations and stamp them out before they can create the evil which we know happens in communities under stress?

[Lord Newby]

I am grateful to both noble Lords who have spoken. Even by the standards of statutory instruments, these are extremely opaque, but the powers they contain are important and, as the noble Lord, Lord Tunnicliffe, said, tidy up and, one hopes, finalise the secondary legislation that is needed to effect their transfer.

The noble Lord, Lord Sharkey, asked a number of questions about the extent to which SMEs could be adversely affected by the regulations. While there may be some impact on lending to SMEs by some non-bank lenders, we would expect it to be extremely small. The stock of lending to business that is consumer credit is estimated to be, at most, 5% of total lending to SMEs. If we are talking about a small proportion of that 5% disappearing, it is a very small impact. We believe that the Government’s wider initiatives, such as the Funding for Lending scheme, will over time far outweigh the negative impact of the transfer. It is worth bearing in mind that SMEs, like any other consumers, can enter into credit agreements that may drive them into unsustainable levels of debt. The enhanced consumer protection that we hope and expect will flow from this transfer will benefit SME debtors.