Savings (Government Contributions) Bill

Lord Sharkey Excerpts

2nd reading (Hansard): House of Lords & 3rd reading (Hansard): House of Lords & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard): House of Lords
Thursday 12th January 2017 Lords Chamber

[Lord Sharkey (LD)]

My Lords, the provisions in the Bill appear at first glance to be quite straightforward. The Bill sets up the mechanisms to create lifetime ISAs and a Help to Save scheme. As the noble Baroness, Lady Drake, noted, the total cost to government in 2020-21 of the LISA is estimated at £830 million. The total cost to government of the Help to Save scheme in the same period would be £70 million. This is a very small amount. Can it really be correct? I would be grateful if the Minister could confirm that the impact assessment has this right. If it is right, does it not say something about the scale and ambition of the scheme? Does it not amount to tinkering?

According to the impact assessment, both schemes are driven by a desire to increase the level of household savings. In particular, the LISA will help young people to save flexibly for the long term and provide help with buying a first home. Help to Save will help working families on low incomes build up a rainy-day savings fund. All this sounds laudable, but there are some obvious questions and worries about both schemes.

The first worry is that neither scheme seems particularly likely to have much real impact. Both could be characterised as yet more confusing tinkering with the housing market and the tax system. Both are ways of avoiding directly addressing fundamental problems and both add to the complexity of an already very complex system. Neither scheme faces up to what is a major problem for households; namely, the level of debt that they already hold.

This debt is now again as high as it was in 2008. In the year to 30 November 2016, consumer debt rose by 10.8% and there are fears that, especially among less well-off households, some of this rise is being used to fund normal living costs when real wages are declining. The expected rise in inflation would make this problem worse. It may be true that increased debt-fuelled consumer spending is driving current economic expansion, but this is not a sustainable position. And it is true that for many households, particularly the low-income households targeted by Help to Save, paying down debt is a better option than saving.

The Government have correctly identified two real problems: the difficulty that most people now have in buying a first home and the lack of any financial cushion for those on low incomes. But the solutions to these problems need to be systemic and enduring; they need to be more than tinkering. To solve the housing problem, we emphatically do not need more demand-side schemes; we need more supply. Nothing else will have, or has had, any significant effect.

In July last year, your Lordships’ Economic Affairs Committee, of which I am a member, published a report which addressed the housing crisis. The report was called Building More Homes and, unsurprisingly, that is what it recommended. In particular, it noted that the private sector, as currently incentivised, would not build the number of homes needed, that the Government had no real prospect of reaching its target of 1 million new homes by the end of the Parliament, and that this target was itself much too low. The Committee recommended among other things that the cap on local authority borrowing to build homes be lifted. Only by doing this did we see any prospect of any real relief to our housing crisis. We did not feel that the many existing demand-side initiatives were likely to have much real effect. Most of these initiatives simply push those near the ownership threshold over the line. They probably contribute to price inflation and certainly do not provide large-scale or comprehensive help across tenure types.

I feel that this will be true of the LISA scheme in the Bill before us. It is not just that the measure is more demand-side tinkering, which it is; there is another serious problem and it is one of confusion. This issue was raised frequently as this Bill went through the Commons. The potential for confusion arises, as many noble Lords have said, from making a choice between a LISA, an employer’s pension scheme and auto-enrolment. How is this important choice to be made? Who will offer impartial guidance?

On 9 October last year, the Government announced their intention to create a new, single public financial guidance body to provide debt advice, and money and pensions guidance. This new body will replace the Money Advice Service, the Pensions Advisory Service and Pension Wise. The consultation was launched on 19 December last year and closes on 13 February. This new replacement single body will not be in place before autumn 2018. The LISA will be introduced next April and Help to Save a year later, at the latest—both before the new financial guidance body is in place. This seems like bad timing.

The Government clearly do not believe that the current financial guidance system is working well, and they will replace it. But in the meantime, it creates further financial complexity for individuals by introducing these new products. This is surely dangerous, especially if it leads to individuals making wrong decisions about pension provision or if low-income households are encouraged to take up Help to Save when they would be better off paying down debt. This is not a small or trivial problem. For many low-income households, saving may be an unsatisfactory and expensive substitute for debt repayment. Who will these households turn to for impartial advice?

The Bill itself is silent as to who will manage the LISA and Help to Save schemes, although it says that LISA account holders will be able to transfer their holdings between plan managers. It also talks of “account providers”—plural—for the Help to Save scheme. This all sounds as though there will be more than one provider for each scheme. However, in the Commons, on 17 October, Jane Ellison explained that both schemes would in fact be administered by,

“a single provider, National Savings & Investments”.—[Official Report, Commons, 17/10/16; cols. 607-8.]

Why is this? Why are the Government introducing a monopoly supplier across both these products and what is the point of the transfer provisions in this Bill if there is no one to transfer anything to? I would be grateful if the Minister could tell us why the Government have chosen to establish these monopolies. Can she say whether the Government considered commercial or mutual alternatives? If they did, why did they reject them or, if they did not consider them, why not?

It seems to me particularly important that we have answers to these questions in view of the provisions in paragraph 3(2) of Schedule 1, which seems to give the Treasury unlimited powers over claims for LISA bonuses and—more alarmingly—allows delegation of these powers to HMRC. This seems intrinsically unhealthy and probably not acceptable to potential commercial or mutual providers. Can the Minister say whether the Government have discussed these provisions with potential commercial and mutual plan managers and if so, what the response was? Schedule 2 gives the Treasury more or less the same powers to amend by regulation the details of the Help to Save product. It is extremely odd that Schedule 2 contains an entire section—part 3, paragraph 9—that defines an authorised account provider for Help to Save when there is to be only one monopoly provider. Is this a case of the Government changing their mind as the Bill progressed through the Commons, or of the Government preparing the ground for the introduction of multiple providers? I hope that it is the latter. The Minister was asked about this situation in the Commons, in particular why credit unions could not be providers of Help to Save schemes. There was no convincing or clear answer. When challenged, the Minister asserted that multiple providers would not offer value for money. As Gareth Thomas observed, no costings were produced to justify this claim; in fact, no evidence was given for it at all.

Rather confusingly, however, in the closing stages of the Bill in the Commons the Minister displayed an evident sympathy for using credit unions and a willingness to reflect on the idea. Can the Minister, therefore, update the House on the Government’s thinking on alternative providers for both schemes, and in particular on credit unions as providers for the Help to Save scheme? Can the Minister commit to allowing credit unions to be providers, and to allowing and encouraging alternative providers for both schemes?

--- Later in debate ---

[Baroness Neville-Rolfe]

I take note of the noble Baroness’s point. There is a balance here. I have set out why we have got to where we have got to. Indeed, I look forward to debates on the statutory instruments for this Bill in the fullness of time. I am sure nobody has ever said that before.

The noble Lord, Lord Sharkey, asked about other providers. He referenced a discussion in the other place about the involvement of credit unions. We have appointed NS&I as the scheme provider to remove significant administrative and compliance costs associated with allowing different providers to offer accounts. An option where we fund NS&I to provide accounts while allowing other providers to offer accounts on a voluntary basis would not provide value for money, but—this answers his question—we shall not rule out the option for a range of providers to offer accounts as long as they deliver national coverage. We felt that the credit union did not do that. That is why the Bill has been drafted to accommodate different models of account provision, although other models are not in the current plan.

[Lord Sharkey]

I am grateful to the noble Baroness for that answer and I understand the position the Government have taken. Are there ongoing conversations with credit unions and other commercial suppliers of both these schemes?

[Baroness Neville-Rolfe]

I believe that the Economic Secretary to the Treasury has had some discussions of which the noble Lord may be aware, but I should not want to suggest that we are about to change the situation. I have made it clear that the provision is written in an appropriately broad fashion. I can also confirm that the Government are not restricting the number of lifetime ISA providers. Provision will be open to any provider with the appropriate HMRC and FCA approvals.

When it comes down to it, this money Bill is all about supporting people who are trying to save, whether through increased support to those on low incomes through Help to Save or through the increased flexibility and choice for younger savers offered by the lifetime ISA. This is a Bill that supports people trying to do the right thing—those who want to save and to be financially prepared for the future. I am therefore pleased to commend this Bill and to ask the House to give it a Second Reading.

Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015

Lord Sharkey Excerpts

Monday 2nd March 2015 Grand Committee

[Lord Newby (LD)]

My Lords, I shall speak also to the draft Financial Services and Markets Act 2000 (Miscellaneous Provisions) Order 2015. I am pleased to introduce these statutory instruments.

The Government have fundamentally reformed regulation of the consumer credit market, transferring regulatory responsibility from the Office of Fair Trading to the Financial Conduct Authority on 1 April last year. The FCA is better resourced and more empowered than its predecessor and has been equipped with flexible rule-making powers to ensure that it keeps pace with developments in the market. The FCA regime is already having a significant positive impact and is helping to deliver the Government’s vision for an effective and sustainable consumer credit market that is able to meet consumers’ needs.

The raising of standards will improve further as the FCA undertakes authorisation assessments to assess firms’ fitness to trade—a process that has already begun for those industries regarded as the riskiest, including payday lending—and these instruments to be debated today help to support the effectiveness of the FCA’s regulatory regime.

First, the e-commerce order provides the FCA with powers to tackle credit firms, including payday lenders, which abuse their rights under the e-commerce directive to evade FCA rules. As noble Lords will be aware, the Government have taken robust action significantly to improve protections for consumers in the payday lending market. The Government transferred regulatory responsibility to the FCA’s powerful new regime and legislated to require the FCA to introduce a cap on the cost of payday loans.

The Government strongly welcome the payday lending rules introduced last year by the FCA, including limits on rollovers and the use of continuous payment authorities, and tougher requirements around affordability assessments. On 2 January, the FCA’s cap on the cost of payday loans came into force, as required by the Government. Consumers are far better protected under the FCA regime. The FCA has a wide-ranging enforcement toolkit to take action where wrongdoing is found, and the rigorous authorisation process for payday lenders is under way.

FCA regulation is already having a dramatic impact on the payday market—indeed, the FCA found that the volume of payday loans fell by 35% in the first six months since it took over regulation. These data are from before the cost cap took effect in January.

The Government are committed to preventing the gaming of the FCA’s regulatory regime, including the risk that lenders seek to relocate abroad and lend back into the UK. The important powers in this order will protect UK consumers by giving the FCA powers to take action against credit firms that abuse their rights under the e-commerce directive to establish themselves in another EEA member state but lend primarily to the UK. The powers will enable the FCA to require credit firms to comply with FCA rules—including, in the case of payday lenders, the price cap—or require them to seek full authorisation to continue carrying out their activities. The order therefore represents an important reinforcement of the FCA regulatory regime, helping to protect UK consumers from unfair costs and harmful practices.

I turn now to the miscellaneous order. This order will address a number of technical issues to ensure that consumer credit regulation strikes the right balance between proportionate burdens on business and providing robust protections for consumers. In particular, the order makes several provisions to minimise unnecessary regulatory burdens on firms.

For example, the order adjusts the working definition of a “domestic premises supplier”. This definition is important because it requires firms selling goods in a customer’s home to comply with the higher regulatory standards in the FCA’s “full permission” regime, thereby helping to protect consumers from the pressure-selling of goods or services on credit. However, it is important that this definition is drawn correctly to minimise unnecessary regulatory burdens on businesses and support the provision of goods and services to consumers.

The order ensures that firms providing goods or services in a home where no attempt is made to sell other goods or services, or anything extra provided is free of charge, are not regarded as “domestic premises suppliers”—for example, where a mobility aid supplier simply visits the customer’s home to measure up before a contract is signed, or where a kitchen supplier delivers and installs an item after it has been ordered. These firms can therefore benefit from the FCA’s lower-cost “limited permission” regime.

The order also makes a number of other technical adjustments to ensure proportionate regulatory burdens. For example, it ensures that solicitors—who are already subject to their professional regulatory regime—will not require FCA regulation when undertaking credit activities incidental to the firm’s professional services. I beg to move.

[Lord Sharkey (LD)]

My Lords, I will speak only to the first of the two orders before us. This order has the usual eye-catching name for such things: the Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015. A better and clearer name for the SI would be: “Closing a Gigantic Payday Lending Loophole”, because, as the Minister said, that is exactly what the SI does.

On 9 December 2013, in response to amendments put down by the noble Lord, Lord Mitchell, and by me, the Government finally accepted the need for strict control of payday lending. The FCA rules that followed capped the cost of payday loans and limited the number of permitted rollovers. They also created the conditions for real-time data-sharing by lenders in order to reduce the incidence of multiple simultaneous loans. The Treasury and the FCA are to be congratulated on that. Together, with some prompting from your Lordships’ House, they have entirely changed the nature of the payday loan sector in the United Kingdom. What started out as outrageous and cruel usury has been reduced to more or less sensible costs and more or less sensible limits. The capacity of payday lenders to inflict terrible damage, as they were doing, on the most disadvantaged has been severely reduced, and I am pleased to be able to say that many payday lenders have simply shut up shop in the UK as a consequence of the new regime.

I do not think that the situation is ideal yet because, for many of us, the number of rollovers is too high, there is not yet a proper real-time database of loans outstanding and there is no mechanism for automatically preventing multiple simultaneous loans. Of course, as we speak, payday lenders are busy changing their business models in ways that will require continued vigilance on our part. We will have to see how all that works out.

In the debate of 9 December 2013, I raised for the first time the question of what seemed to me a gigantic loophole in the proposed new regulations. This was the loophole to do with the e-commerce directive, which we are discussing. As the Minister said, this directive would allow any payday lender to avoid our regulation if they were based elsewhere in the EEA and were trading in the UK only electronically. This would mean that any payday loan company could continue to operate in the UK but entirely outside our rules, caps and limits if it were based in the EEA and had no bricks and mortar presence here in the UK.

I asked the Treasury at the time what it intended to do about this. I had subsequent conversations with the Minister and officials about the problem. This order is, as the Minister correctly said, the solution to that problem. It closes the gigantic loophole in the regulations. If payday loan companies based abroad now try to use the e-commerce directive to avoid UK regulation, they can now be stopped from operating in the UK or forced to comply with our rules if they want to continue to operate in the UK. This is a very good and very necessary step forward, and I am delighted that the Government and the FCA have acted.

As the Minister said, this new order adds to the protection against the immoral and unscrupulous exploitation of the most vulnerable people in our society. However, it is a Treasury order and it is written in the Treasury’s normal, deathless—meaning, obvious-on-the-face-of-it—prose, which means that there are just a couple of questions that I would like to ask the Minister.

New Regulation 11A lists the kinds of activities that the order will apply to. Can the Minister say whether this list includes debt management companies? I know that he is aware of the wholly unacceptable charges and practices of some companies operating in this sector.

New Regulation 11B (2)(a) seems a little ambiguous. It says that the authority must be satisfied that the incoming provider,

“directs all or most of its activity to the United Kingdom”.

The question is: how is “most” to be interpreted here? Does it mean “most” by weight of advertising, “most” by number of customers or “most” by the value of lending to those UK customers? How will the authority arrive at a measure of whichever interpretation of “most” it wants to use? I very much hope that my noble friend the Minister will be able to say that the FCA will be able to use all or any of the above interpretations and that it will be able to use, as a conclusive determination, whatever measures it considers reasonable.

Those are details but, in this area, detail is often absolutely critical. However, I do not want the detail to overshadow my congratulations to my noble friend the Minister and the FCA. They have closed a potentially very damaging loophole in the payday regulations.

[Lord Tunnicliffe (Lab)]

My Lords, I start by welcoming the noble Lord, Lord Sharkey, to our debates. The noble Lord, Lord Newby, and I feel flattered that we are now three instead of our usual two on these instruments. The noble Lord, Lord Sharkey, and colleagues on my Benches are to be congratulated on the campaign they have waged on this issue. The noble Lord’s description of the e-commerce directive and a gigantic loophole is absolutely valid, and I join him commending the Government on closing that hole. However, we believe that this is only part of the way forward. The payday scandal has been attacked in the sense that many unscrupulous operators have been driven out of the market, and that will go further, but we wish to promote safer and more ethical forms of lending. We will try to ensure that co-operatives and mutual ownership models are able to compete on a level playing field. We will look to give greater power to local authorities to eliminate the spread of payday lending shops in town centres, and we will want to investigate ways in which to support mutuals—for example, by improving the regulatory structure in which they operate and making available support from the British investment bank. The sad fact is that we have problems in our society that mean that short-term loans are needed. It is not just about driving out the bad guys; it is about creating opportunities for a new breed of good guys. We already have credit unions to turn to as an example.

On the second order—and I thank the Minister for showing us how the two orders fit together—the Explanatory Memorandum makes perfect sense, except for the part of it that he explained, which I am left having trouble understanding. Paragraph 7.1 says:

“To extend the scope of the limited permission regime in relation to ‘domestic premises suppliers’”.

I see the importance of extending the scope to domestic premises suppliers. I went to the order—and you know that you are driven to your limit when you actually read the order—and I found that,

“domestic premises supplier” means a supplier who … sells, offers to sell or agrees to sell goods, or … offers to supply services or contracts to supply services … to customers who are individuals while the supplier, or the supplier’s representative, is physically present at the dwelling of the individual”.

I am gripped of the importance of the regulations applying in those circumstances. The key issue is the caveat in sub-paragraph (3B), which says:

“A supplier who acts as described in sub-paragraph (3A) on an occasional basis only will not be a domestic premises supplier unless the supplier indicates to the public at large, or any section of the public, the supplier’s willingness to attend”,

and so on. It seems that the differentiation is on whether they advertise or not. If I have got that wrong, I would be grateful to the Minister for writing to me. I cannot see how the words of the provision translate to the picture that he has just described, with what I would have thought was almost peripheral to suppliers not being covered rather than this specific thing, whereby,

“unless the supplier indicates to the public at large”.

I do not know what that means other than that they are in the advertising business.

Finally, does the Minister know of any specific instances where the issues that the order remedies have manifested themselves, or is this anticipatory and intended to stop a problem before it arises? Is he satisfied with the FCA’s performance as a regulator so far, since it took up those responsibilities from the OFT?

Financial Services: Cold Calling

Lord Sharkey Excerpts

Monday 17th November 2014 Lords Chamber

Asked by

[Lord Sharkey]

To ask Her Majesty’s Government what steps they are taking to bring organisations which make cold calls connected with the promotion, or sale, of financial services or products under the regulation of the Financial Conduct Authority.

[Lord Newby (LD)]

My Lords, the FCA’s financial promotion rules apply to regulated financial services and products, and cover all forms of financial promotion, including cold calling. On consumer credit, the FCA requires regulated firms that accept business from unregulated lead generators to take reasonable steps to ensure that the business operates in compliance with legal requirements. The Information Commissioner’s Office can also issue a penalty of up to £500,000 to any organisation that breaches the legal requirements around cold calling.

[Lord Sharkey (LD)]

My Lords, 31 million adults say that they have been offered fee-charging debt management via cold calls and texts. When these calls are from intermediaries, as they usually are, they are not in fact regulated by the FCA. As a result, the callers are not obliged to tell of the existence of free debt management services, which would be the case if the calls came directly from the debt management companies. The FCA already bans cold-call selling of mortgages. Will the Government consider doing the same for payday loans and fee-charging debt management services?

[Lord Newby]

My Lords, all debt management companies themselves are required to advise on free debt management options at their first contact with a potential customer, so even when lead generators are being used there should be no cases in which people sign up for advice without having been told about the free alternatives. That is the key requirement. The circumstances that led to the banning of cold calling on mortgages a number of years ago, around the right to buy, were very different from the broader considerations that apply more generally.

Debt Management Organisations

Lord Sharkey Excerpts

Monday 28th July 2014 Lords Chamber

Asked by

[Lord Sharkey]

To ask Her Majesty’s Government what steps they are taking to ensure that debt management organisations serve the interests of their clients.

[Lord Newby (LD)]

My Lords, the Government have given the Financial Conduct Authority responsibility for protecting customers of debt management firms. Debt management firms are subject to binding FCA conduct rules and must treat customers fairly. FCA prudential and client money requirements are also being introduced to protect customers’ money. The FCA will thoroughly assess every debt management firm’s fitness to trade as part of the authorisation process from October this year.

[Lord Sharkey (LD)]

My Lords, half of the clients of fee-charging debt management companies do not know that there are equivalent free services. These clients are mostly recruited by cold calling and 31 million cold calls were made last year. The FCA says that it does not regulate these calls. Can the Minister say who does regulate them and are cold callers required to advise of the existence of free debt management services?

[Lord Newby]

On the second part of the noble Lord’s question, debt management companies will be required under the new rules to signpost consumers to free debt advice, which will be a major improvement. There are two elements of regulation of cold calling and unsolicited text messages. The ASA has some responsibility in that area and it has already taken action to ban payday lenders’ use of unsolicited text messages. As with its regulation of other financial services markets, the FCA is committed to ensuring that cold calling by phone, text or e-mail makes the identity of the firm and the purpose of the communication clear to those being called.

Queen’s Speech

Lord Sharkey Excerpts

Wednesday 11th June 2014 Lords Chamber

[Lord Sharkey (LD)]

My Lords, in last year’s debate on the Queen’s Speech I spoke about the situation in Cyprus. I thought we were then looking at the most favourable prospects for reunification that we had yet seen and I called upon the Government to increase their involvement. A year later, my cautious optimism seems not to have been entirely misplaced. Detailed negotiations are under way. The FCO has been very active and deserves congratulations for that. It has continued its informal dialogues with the diasporas, talked to civil society organisations and taken the bold step of inviting the Turkish Cypriot leader and his negotiator to London. This is the first time that Turkish Cypriots have been invited formally to London and it is a welcome step. None of this means, of course, that negotiations will be easy or successful.

On Monday, I attended a lecture at the LSE given by Dr Kudret Özersay, the Turkish Cypriot chief negotiator. Dr Özersay was frank about the difficulties but he was cautiously optimistic. He made a compelling point about the conditions for success. Clearly, the first condition is the production of a federal, bi-zonal, bi-communal plan acceptable to the political leaderships of both sides. However, if this plan is to gain popular approval in a referendum on both sides, it must pass one other test. Will acceptance of the plan produce a better state of affairs for the people of the north and the south, or, as Dr Özersay put it, will both sides recognise the harm to them involved in rejection of the plan? This was clearly not the case for the Greek Cypriots with the Annan plan.

The international community has a role to play here, especially the guarantor states and the EU. We cannot and should not intrude upon the negotiations—any solution has to be by Cypriots for Cypriots—but we can encourage and help make clear the benefits of reunification. Britain and the EU here have an opportunity to redeem past mistakes—Britain for allowing the divided island to join the EU in the first place; and the EU for the post-accession broken promises that it made to the north.

The situation in the eastern Mediterranean grows increasingly unstable and dangerous and the BBC is reporting that ISIS is now fighting for Tikrit after taking Mosul. This growing instability is a reminder that we need a Cyprus settlement this time around—not only because failure will undoubtedly provoke a deepening and hardening of the divisions on the island but because, regrettably, the behaviour of Turkey is becoming more worrying.

Turkey’s stability and orientation are vitally important to NATO and to the interests of the West in general. Turkey’s development has been hugely impressive: from authoritarian, agrarian and poor to democratic, industrial and relatively wealthy, but inclining once again towards authoritarianism. There is a sad record of imprisonment of journalists, of restrictions on the freedom of speech and of executive interference with the police and the judiciary. There is the danger of a deepening division between the secular west and the pious Anatolian heartlands. This is greatly to Turkey’s disadvantage, not only in its relations with the West but economically.

Admiration of western values has long been a driving force in Turkey, both politically and culturally. However, unfortunately, the attraction of the West and of the EU has declined significantly in recent years. Prime Minister Erdogan’s then chief adviser, Yigit Bulut, recently called the EU,

“a loser, headed for wholesale collapse”.

Turkey’s last EU Minister and chief negotiator said:

“Turkey doesn’t need the EU. The EU needs Turkey. If we had to, we could tell them ‘Get lost, kid’”.

All this is bad news for the EU, for the West and for Turkey. Our influence has been allowed to wane.

Given the public hostility of France and Germany and the long delays in the accession negotiations, it is no wonder that many Turks no longer see the prospect of EU membership as either realistic or desirable. This is a cause for concern. The West needs Turkey as a friend and an ally. Her Majesty’s Government have always understood that, while others have not. We are currently engaged in persuading our EU partners of the merits of reform, and the merits of Turkish accession may not sit easily alongside these discussion. Nevertheless, I urge Her Majesty’s Government to persist in their strong advocacy of Turkish accession. Europe will be weaker and more vulnerable without it.

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

Lord Sharkey Excerpts

Monday 10th February 2014 Grand Committee

I hope I have reassured the Committee that these SIs will help to ensure that the Government’s plans for fundamental reform of consumer credit regulation run smoothly, and strike the right balance between improving consumer protection and ensuring that regulation is proportionate.

[Lord Sharkey (LD)]

My Lords, I shall speak to both orders. The first takes up little more than a page, while the Explanatory Memorandum attached to it takes up 49 pages. The second order takes up 30 pages and the Explanatory Memorandum for that also takes up 49 pages, but is essentially the same text as the first one. That is not a complaint: the Explanatory Memorandum is a model of its kind—it is clear, thorough and indicates clearly areas of doubt or uncertainty.

There is one area of doubt or uncertainty arising: the effect on SMEs—not as providers of credit but as customers of credit providers. The impact assessment estimates the cost of the measures over 10 years at £336 billion and the benefit at £689 million—an estimated net benefit of £353 billion. However, the impact assessment does not say how this net benefit is distributed. That is my first question: are SMEs net beneficiaries or is all the benefit delivered elsewhere?

The impact assessment also makes it clear that it expects a shrinking of the credit market. It estimates that 9,000, or 20%, of credit organisations will exit the market. It is true that these organisations represent only a small percentage by volume of total credit, but is this lost lending concentrated in the SME sector? That is my second question to the Minister. We know that net lending to SMEs continues to decline. Can the Minister provide some general reassurance that the measures before us will not make the position worse?

The note in paragraph 53 on page 13 of the impact assessment makes the point that the FCA’s most effective regulatory tools and framework to be brought about by these orders will be,

“effective in tackling known consumer detriment occurring in the non-mainstream lending market such as: payday loans, credit brokerage, debt management and home collected credit”.

That is an important improvement and I welcome it, especially as it will apply to payday loans. However, at first reading there seem to be some areas missing from the list. The impact assessment notes in paragraph 25 on page 8, as a rationale for intervention,

“that the market is not functioning as well as it should and the regulatory regime cannot keep pace with the market”.

However, as far as I can detect, no explicit mention is made anywhere in the orders or the Explanatory Memorandums of crowdfunding or peer-to-peer lending. As the Minister knows, these are rapidly growing credit areas, and ones that offer additional opportunities for SME funding. Can the Minister confirm for the Committee that crowdfunding and peer-to-peer lending will fall within the ambit of these orders? I think I heard the Minister say that that is the case for peer-to-peer lending, but I should like to know whether it is also the case for crowdfunding.

Before I conclude, I should like to ask the Minister a little more about the effects of these orders on payday lenders. The Minister has previously confirmed elsewhere that under the terms of the EU e-commerce directive, the UK has no power to cap the cost of payday loans extended by companies based in the EEA and trading only electronically in the UK. However, I notice in paragraph (5)(e) on page 16 of the second order that the authority has the power to prohibit the entry into credit agreements by an EEA authorised payment institution if that institution,

“engages in business practices appearing to the Authority to be deceitful or oppressive or otherwise unfair or improper (including practices that appear to the Authority to involve irresponsible lending)”.

Does this provision apply to payday lenders based in the EEA and operating only electronically here in the UK?

[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?

Taxation: Personal Thresholds

Lord Sharkey Excerpts

Monday 20th January 2014 Lords Chamber

[Lord Newby]

No, I simply do not agree with the noble Baroness. The Government are considering a number of measures which will help people on low incomes, of which a potentially significant increase in the minimum wage is perhaps the most significant.

[Lord Sharkey (LD)]

My Lords, now that our economy is growing again, can the Minister say what more the Government can do to help those who need it most, in particular the long-term youth unemployed?

[Lord Newby]

My Lords, the most important thing the Government can do as the economy grows is to ensure that the macroeconomic framework is conducive to greater growth. There has been a 300,000 fall in the claimant count within the past year, so that is the single biggest thing that the Government can do to promote the continued reduction in unemployment and long-term unemployment. Youth unemployment has been falling now for five quarters. It is not falling fast enough but a raft of measures, including improved vocational education and an expansion of the apprenticeship scheme, have been designed specifically to tackle that long-standing issue.

Financial Services (Banking Reform) Bill

Lord Sharkey Excerpts

Monday 9th December 2013 Lords Chamber

Moved by

[Lord Sharkey (LD)]

21: After Clause 123, line 9, at end insert “, and to preventing multiply sourced simultaneous loans and rollovers”

[Lord Sharkey (LD)]

My Lords, I rise to move Amendment 21 and to speak to Amendment 20. I congratulate the Government on bringing forward their amendment to cap the total cost of payday loans. I am grateful to the Minister and to his officials for meeting me to discuss the issue and for providing us with copies of the letters between the Financial Secretary and the FCA.

Amendment 20 clearly has the right intent but it raises several important questions as do the letters between the Treasury and the FCA. Nowhere in the Government’s amendment or in their correspondence with the FCA is there any mention of the problem now discussed by the Minister of multiply sourced simultaneous loans. The Financial Secretary says in his letter to the FCA that the main aim of the cap is to ensure that PDL customers do not pay excessive charges for borrowing and to minimise the risk to those borrowers who struggle to repay and to protect them from spiralling costs, which make their debt problem worse. In short, far fewer payday loan customers should get into debt problems.

Simply imposing a cap, as I think the Minister was acknowledging, will not produce this result if borrowers can take out multiply sourced simultaneous loans. If borrowers can do this, any cap will be ineffective in controlling indebtedness. My amendment, as the Minister has said, proposes a ban on these multiply sourced loans, as is the case in Florida. I think I heard the Minister say that the FCA will consider the problem caused by multiply sourced simultaneous loans when he considers the mechanism of the cap. I see the Minister is nodding in agreement that that is the case.

My amendment also proposes a ban on rollovers, as the Minister has said. That is also the case in Florida. I remind noble Lords that in Florida no loan may be taken out until all previous loans have been settled in full and then only after a 24-hour cooling off period. Rollovers are banned in Florida because they are the chief way of luring borrowers into a spiral of increasing debt. Here in the United Kingdom, 28% of all payday loans are rolled over and 50% of payday loan revenue, according to the OFT, comes from these loans. The FCA does not appear to understand the problem with rollovers. In its October proposals it suggested that rollovers be limited to two. It provided no evidence to suggest that this would have the desired effect and it is pretty obvious, I think, that it would not. Five days ago, the financial services consumer panel recommended in evidence to the FCA that rollovers be limited to one. I think the case for rollovers being banned is very strong. Will the FCA explicitly consider banning rollovers and will it publish its cost benefit analysis—the one the Minister talked about—of the relative merits of banning rollovers and limiting them to one or two only?

The Treasury letter to the FCA raises other questions. The Financial Secretary states:

“The Government is also committed to ensuring that you can access the information you need to design the cap. The Government will bring forward secondary legislation to allow you to collect information to support your new duty as soon as possible”.

The Minister has tried to explain what some of this information might be, but I should be grateful for more clarification on exactly what the FCA is going to be looking for and also confirmation that the Government will publish a draft of the proposed secondary legislation well before bringing it to Parliament.

In his reply to the Financial Secretary’s letter, Martin Wheatley of the FCA says that it is possible for firms in other EEA member states to provide a payday loan service through the internet to UK consumers within the electronic commerce directive. He went on to say that this is not something that the FCA can mitigate. What does that mean? Does it mean that the FCA cannot cap such transactions and, if it does, what is the point of the Government’s Amendment 20? The Financial Secretary’s letter to the FCA makes reference, as the Minister has done, to data-sharing practices. It says:

“There are a number of regulatory interventions in the market which may help to create the right conditions to ensure the cap is effective. For example, the Government shares your concerns that data sharing practices may not be supporting good consumer outcomes”.

This all seems rather opaque and quite a long way from plain English. Does this mean that the Government want credit agencies and lenders to pool data? Does it explicitly include the consideration of establishing a real-time lending database? I should be grateful if the Minister could confirm to the House that the answer is yes in both cases.

The whole matter of a cap turns on effective implementation and the evidence suggests overwhelmingly that we need a real-time database of loans to do exactly that, but the level of the cap is also critical. Amendment 20 requires the FCA to secure,

“an appropriate degree of protection for borrowers against excessive charges”.

There is no attempt in the amendment or in the correspondence to define “excessive” or to give guidance about how a judgment of what is excessive is to be arrived at. This seems an important and, perhaps, critical defect in the amendment. Surely the FCA must be given some guidelines in defining excessive for the purpose of fulfilling its duty. For example, we already know that payday loan borrowers in Florida pay, at most, one-third of the costs that such borrowers pay here in the United Kingdom. Will the FCA consider this kind of disparity in its definition of “excessive”? Will the Government set out in writing and publish the guidelines that the FCA must follow, and the factors it must consider, in reaching a definition of what may count as “excessive”?

I turn briefly to subsection (1B) of the Government’s amendment. It states:

“Before the FCA publishes a draft of any rules … it must consult the Treasury”.

I accept that the FCA will consult widely and not just with the Treasury before it publishes these draft rules but I am concerned about what happens after the publication of such draft rules. The FCA’s performance to date is not an obvious guarantee that any such draft rules will be what is required under the Government’s amendment. For its October publication of the draft rules, which the Minister has referred to, the FCA considered all the available evidence and proposed to allow two rollovers but no cost cap of any kind. A month later, the Treasury considered the same evidence and decided that it was sufficient to require the imposition of a cap. In other words, the Treasury appears to believe that the FCA got it wrong, which does not inspire confidence in the judgment of the FCA.

For that reason, and for reasons of openness and transparency, I believe it is important that there is the opportunity and time allowed for detailed public comment on whatever draft proposals the FCA comes up with and, in particular, that Parliament is given the opportunity formally to scrutinise the FCA draft proposals. I should like to know whether the Government will commit to allowing that opportunity and that time for detailed public comment and for allowing Parliament that opportunity to scrutinise FCA draft proposals.

Finally, I should point out that nowhere in Amendment 20 or in the two letters that we have seen is there any mention of a limit on the amount of the loan or of a minimum or maximum term. Will the Government confirm that the FCA will explicitly consider both a limit on the amount and on the term of any payday loan? I repeat that I welcome the Government’s intention in bringing forward Amendment 20 and I look forward to hearing the Minister respond to the questions I have asked. I beg to move.

[Lord Higgins]

My Lords, I want to make two very brief points. The amendment refers to “charges” and to “high-cost credit”. However, the words “interest” or “the rate of interest” appear nowhere in the amendment. I would have thought that there was some case for explicitly including that in the Bill, because the use of the other, rather wider, expressions leaves too much scope for the situation to be fudged. I would be grateful if my noble friend would say something about that.

We have been talking very much about payday loans and their provision; but it has become apparent that a number of charges made overall by clearing banks sometimes can approach, if not exceed, the limits charged by payday loan providers. I would like my noble friend’s assurance that the organisation will take account of that also and, if necessary, deal with the problem of very high overall charges—particularly with regard to unauthorised overdraft charges, for example—made by clearing banks as well as by payday lenders.

--- Later in debate ---

I end by saying—because I think a number of noble Lords slightly question this—that the Government and the FCA are absolutely committed to getting this system in place as soon as they possibly can. The FCA has said it is going to do it. It has already set a very tight timetable. I understand that when the system was introduced in Florida it took longer or at least as long as we are proposing to do it here. There is no lack of commitment to do it but we want to do it right. We want it to work. We do not want to have to change it as soon as we have implemented it because we found we rushed it and it has not worked. That is why the FCA has come forward with a speedy but deliberative approach. We think that makes absolute sense. That is why the deadline is in our amendment. I commend our amendment to the House.

[Lord Sharkey]

Before the noble Lord sits down, perhaps I may prompt him to address the question of payday loan companies operating outside the UK but in the EEA trading in this country. Do they or do they not? Will they be subject to the cap or not?

[Lord Newby]

My Lords, this is a complicated area that we have just begun to start looking at. In order to minimise the extent to which overseas operators might be able to operate in this area, we need to take our time and do the job properly. It is another contributory argument for doing the job in a deliberative manner.

[Lord Sharkey]

My Lords, I am grateful for the answers that the Minister has given, with the possible exception of the last one. I should be grateful if, as these deliberations take place, he would consider writing to us to tell us the latest position on these people trading from outside the country in the country. If that turns out to be possible, we need a radical rethink of exactly what we are about today. Leaving that to one side, I am reassured by the answers that my noble friend the Minister has given but I particularly want to stress that absolutely critical to this working at all is a real-time database. This is not about data sharing or the old system of batch processing. It will work only if real-time data processing and real-time lending information are available to the regulator and the lending companies. I hope that as the FCA proceeds it will come to an understanding that that is absolutely the case and an absolutely necessary requirement. Having said all that, I beg leave to withdraw the amendment.

Amendment 21(to Amendment 20) withdrawn.

Banking: Parliamentary Commission on Banking Standards

Lord Sharkey Excerpts

Thursday 5th December 2013 Lords Chamber

[Lord Sharkey (LD)]

My Lords, I start by warmly congratulating the noble Lord, Lord Carrington of Fulham, on his excellent and insightful maiden speech. He set a formidably high hurdle for those of us who follow him. I also congratulate the most reverend Primate the Archbishop of Canterbury on securing this debate. I congratulate him and his fellow commission members on the reports that they have produced and the use to which they have put them. I know that the commission no longer exists, but listening to its members in the House in the debates on the banking reform Bill, is surely conclusive proof that there is life after death.

I know that it is conventional to praise the work of our committees—sometimes before going on to qualify that praise—but I will make it plain from the start that I have an unreserved and unqualified admiration for the work of the commission and the reports that it has produced. I am struck by the force of its analytical inquiry. I am struck by the force of its criticisms and by the essential simplicity of its recommendations. I am struck, too, by the clarity and simplicity of the language in which all this was expressed.

The commission’s reports deal with all aspects of the banking crisis and many of its recommendations have been adopted by the Government. The focus and debate has, quite rightly, been on legislation to produce better regulation. Although banking culture formed a prominent part of the commission’s report, it played, perhaps, a less prominent part in our debate. It is the issue of banking culture on which I wish to focus my remarks.

The commission was clear that there was, and indeed is, a problem with the culture in banking. It is worth quoting paragraph 754 from volume 2, which states:

“Poor standards in banking are not the consequence of absent or deficient company value statements. Nor are they the result of the inadequate deployment of the latest management jargon to promulgate concepts of shared values. They are, at least in part, a reflection of the flagrant disregard for the numerous sensible codes that already existed. Corporate statements of values can play a useful role in communicating reformist intent and supplementing our more fundamental measures to address problems of standards and culture. But they should not be confused with solutions to those problems”.

In other words, fine talk will not solve real problems—and the problems are very real.

It is a sad reflection that there is no need to rehearse the consequences of the banks’ corrupt culture in any great detail; it is all too appallingly familiar. Nevertheless, we should not forget the scale of the problem with the ethics and behaviours of the banks. There was the mis-selling to SMEs of products that were completely inappropriate; there were the LIBOR and the EURIBOR scandals; there were the HSBC money-laundering scandals; and there is now the possibility of another huge scandal if the allegations about RBS’s treatment of small businesses prove true. All these were bad enough, but much worse was the PPI mis-selling scandal, because it was the clearest example of a deliberate exploitation by the banks of their customers.

John Lanchester wrote in the London Review of Books recently:

“PPI was about banks breaking trust by exploiting their customers, not accidentally, but as a matter of deliberate and sustained policy. They sold policies which they knew did not serve the ends they were supposed to serve and in doing so treated their customers purely as an extractive resource”.

There is a common thread running through this criminal, or near-criminal behaviour. It is a kind of contempt that the banks have had for their own customers. It is clear that the banks have not behaved in the interests of their customers—nor, for that matter, in the interests of the rest of us. The banks are almost unique in doing this, and they are certainly unique in getting away with it. Many huge and complex commercial concerns exist, but they do not systematically loot their customers.

My own long experience as an adviser to the senior management of very large, complex, commercial companies suggests a reason for this. One factor common to all the multinationals I have worked with was a fundamental belief in competition—a word that has so far not played much of a role in our debate. Competition in the service of customers was the key. That belief was not just a form of words, or just the shared view of senior management. It was the belief that defined the company at every level and in everything it did. It formed a strong cultural bond, where the obvious question to ask about anything was: is this really in the interests of our customers? No one in our banks asked this question about the introduction of PPI.

What makes the belief in serving the interests of customers a culture, and not just jargon, is competition. In all normal enterprises, large and small, what keeps companies focused on their customers is competition. If you do not serve the interests of your customers, your competitors certainly will—or at least they will if you operate in a competitive marketplace.

I have heard it argued that our large banks really did want to compete with each other. If that was ever true, it is certainly not true now. They do not compete and they probably will not because they do not need to do it to make money, and they make more money for themselves by not competing. Why do they not need to compete? It is because they effectively form a cartel. The EU Commissioner for Competition said yesterday:

“What is shocking about the LIBOR and EURIBOR scandals is not only the manipulation of the benchmarks, which is being tackled by financial regulators worldwide, but also the collusion between banks which are supposed to be competing with each other”.

He added:

“If you take the opportunity to see the conversations between these cartel traders, you will be appalled”.

A cartel means no competition, and no competition means no need to serve the customer, who does not have many real choices anyway.

It is now a bit easier to switch banks, but where do you go? Which bank is better than the other, which is different, and which has senior management that will put your interests firmly before its own? As long as there is a banking cartel there will be no competition, and as long as there is no competition there will be no reliable driver of sustained cultural change. As long as banks are too big to fail, as long as they are too big to manage, and as long as there are too few of them to be competitive, the chances of real and sustained cultural change are very low.

Of course we will see, as we are beginning to see, banks trying to say plausible things about customer focus. We will see new codes of conduct, new mission statements and reassuring advertising. But the sad fact is that without real competition, the banks have no real and sustained incentive to change, and the consumer has no real choice and no real chance. There is only one way to fix this, and that is to break up the banks. They are too big to fail, so let us make them smaller. They are too big to manage, so to make them easier to manage, let us make them smaller. There are not enough banks to really compete, so let us make more by breaking them up.

I realise that we have had to give priority to fixing the obvious regulatory failures, and we are well on the way do doing this. Now we should turn our attention to failures in culture and in competition. Unless we do this, I fear that in 10 years’ time our successors will be looking at yet another series of banking scandals, and at yet another PCBS report on our failures in both culture and competition.

Financial Services (Banking Reform) Bill

Lord Sharkey Excerpts

Wednesday 27th November 2013 Lords Chamber

[Lord Eatwell]

That is because I think the distinction between commercial banking and investment banking is relevant in this case. One would expect investment bankers to behave honestly and in an appropriate manner in their business transactions. I would not expect an investment banker necessarily to display a duty of care and certainly not a fiduciary responsibility whereas I really would expect a commercial banker to exercise those responsibilities in all circumstances when dealing with families and small businesses.

[Lord Sharkey (LD)]

Before the noble Lord sits down again, I ask for a brief clarification. Ring-fenced banks may well have dealings with local authorities and pension funds, but I think that under the terms of the Financial Services Act 2012 and the FSA rules these are not legally customers; they are eligible counterparties. Did the noble Lord mean to exclude local authorities and pension funds from the protections he sets out in his amendment?

[Lord Eatwell]

I am very grateful to the noble Lord for his comments. I had overlooked that point. Once the House has accepted this amendment, we can move on, perhaps at Third Reading, to add the elements that the noble Lord suggests.