Health and Care Bill

Lord Sharkey Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Borwick (Con)]

Briefly, I support Amendment 176 from the noble Lord, Lord Hunt. I first declare two interests as a patron of thyroid charities, particularly the Thyroid Trust, whose leader, Mrs Lorraine Williams, has done great work on behalf of patients. I should also declare that I once suffered from Graves’ disease, with an unpredictably hyperactive thyroid gland. This may have been one of the few parts of my body that was hyperactive, but it was surgically removed and, ever since, I have taken daily levothyroxine. However, some patients cannot take levothyroxine but need liothyronine instead. It is a shame that some patients have been unable to get that drug when they need it so badly. I know that the NHS must control total drug costs, but the history of its control of that particular drug has perhaps not been perfect. The fault is originally that of the manufacturer, not the NHS, but it is patients who have suffered. The amendment of the noble Lord, Lord Hunt, would solve this problem.

[Lord Sharkey (LD)]

My Lord’s, I shall speak to Amendments 178 and 240, and I remind the Committee of my interest as chair of the Specialised Healthcare Alliance.

Amendment 178 deals with innovative medicines and medicinal products. The debate on this amendment is very timely, given the recent conclusion of NICE’s review of its methods and processes and the current consultation on the innovative medicines fund. Both the review and the IMF consultation are to be welcomed. It is clear that they will result in improvements in the system of assessing medicines and medicinal products, particularly in respect of analysing and addressing uncertainty and incorporating more real-world evidence into decision-making. However, it is also clear that both the IMF proposals and the outcome of NICE’s review are at risk of falling short of the hopes of many patients, clinicians and the life sciences sector more generally in a number of important ways.

First, there is still a lacuna in NICE’s approach to considering treatments for rare disease. For ultra-rare diseases—those affecting fewer than 1,000 people—NICE retains its highly specialised technologies process. For more common conditions—those affecting more than 25,000 people—NICE has its separate technology appraisal process. But for patients with rare diseases—those affecting between 1,000 and 25,000 people—there is no process, and so treatments for these patients have to be considered instead through the unsuitable technology appraisal process. This gap sets us apart from other countries, such as the more generous ASMR system in France and the AMNOG system in Germany for evaluating rare disease treatments.

It was therefore very disappointing to see that the case for the rare disease modifier was again rejected in NICE’s review. It was rejected on the grounds that society does not value treatments for rare disease more highly than those for more common diseases. Those representing rare-disease patients would contend that the fact is that these treatments are inherently costly. The Government accept this in relation to ultra-rare disease, so why do they not do so for rare disease treatments? I would be grateful if the Minister could address that specific question when he replies.

Secondly, NICE’s own consultation looked favourably on reducing the discount rate at which NICE assesses the future costs and benefits offered by a treatment, saying that such a change

“could make a particularly big difference to some treatments, like gene therapies.”

However, NICE has now said that this change would not be possible, due to the views of “system stakeholders”, and this has disappointed many people. When the Minister replies, I would be grateful if he could expand on what “system stakeholders” really means in this context. Who is NICE talking about and why did it assign conclusive weight to their views?

Thirdly, the system in England still fails to formalise the input of patients and clinical experts in the way that, for example, the SMC in Scotland does through its patient and clinical engagement process.

Finally, proposals for the innovative medicines fund now move far beyond the originally planned narrow focus on autoimmune and rare diseases. This causes some SHCA members to worry that rare diseases will get less attention than originally envisaged.

These proposals fall short of the hoped for bridge between the MHRA’s licensing process—which reforms are speeding up in some cases—and NICE’s reimbursement process. Without such a bridge, earlier licensing will not deliver benefits to NHS patients, and ultimately companies will lose interest in making bespoke licensing applications to the MHRA. The Government’s own figures—the life sciences competitiveness indicators, published by the Office for Life Sciences—demonstrate that it is already the case that the per capita uptake of new medicines remains lower and slower in this country than in comparable countries.

Our Amendment 178 suggests that the Government review the situation by the end of the year, when we will have a good half year of experience of the changes to NICE and the operation of the IMF, and when we will be able to see that the hoped for improvements have materialised. I hope that the Minister will consider this suggestion.

I now turn to Amendment 240, which seeks to probe the Government’s actions to improve awareness of rare diseases among healthcare professionals. There are more than 7,000 rare diseases, and it would clearly be impossible for every healthcare professional to receive training on every single one of them. However, as the Government’s rare disease framework notes, healthcare professionals can improve their awareness of rare diseases more generally, be more alert to considering them and be provided with the educational resources that help them recognise rare diseases in patients. Healthcare professionals can also be better supported to help signpost patients with rare disease to information about their condition and to help them understand it.

In a 2016 survey by Rare Disease UK, it was found that 70% of patients were not provided with sufficient information on their condition following diagnosis, and that 35% of patients given information did not understand the information that they were given.

More recent surveys demonstrated that these challenges continue. The Government’s national conversation on rare diseases in 2019 found that almost one in five people living with a rare condition reported that a lack of healthcare professional awareness of their disease was the number one challenge that they faced, and healthcare professionals themselves identified it as the second biggest challenge they faced behind only the well-known difficulties in obtaining an accurate diagnosis. I accept that healthcare professional regulators can do only so much to make improvements, but it would be helpful to understand from the Minister what steps they might be able to take to help better embed rare disease content in training frameworks.

Finally, there is a wider question of how the Government currently track progress in increasing awareness of rare diseases among healthcare professionals. How do the Government do that? I look forward to the Minister’s reply.

[Baroness Meyer (Con)]

My Lords, in speaking to Amendment 266, I shall not speak for long because everything has been said. The noble Baroness, Lady Finlay of Llandaff, explained the problem very clearly as did other speakers.

The only reason I want to speak is that in April last year I spoke in favour of the Private Member’s Bill introduced to this House by my noble friend Lady Wyld which sought to prevent cosmetic procedures being performed in England on people aged under 18 unless under the direction of a medical practitioner. The Bill was passed with cross-party and government support. As a result, children are now better protected. It is high time that we protected the population at large. When one hears of all the side-effects and that people can buy a product online and inject it into themselves or somebody else, it feels like the wild west, and the consequences can be quite dramatic, as we have heard. I very much hope that the Government will be able to support this amendment. This is not complicated and needs to be done quickly.

Health and Care Bill

Lord Sharkey Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 11th January 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, with 6 million people in England waiting for operations and routine procedures, many of whom are in pain, I make no apology for moving my amendment at the start of this grouping, which seeks to ensure that the 18-week waiting time target is maintained as a key part of the NHS mandate. This group also covers key amendments on the commissioning role of integrated care boards in relation to specialised healthcare services, and on the duty of ICBs to share best practice on innovation and the quality of services.

On waiting lists, the pandemic has resulted in a huge backlog of care and treatment, compounding pre-existing challenges. The 18-week waiting time standard has not been met by the NHS since 2016. Instead, we have a situation where the NHS’s latest planning guidance sets out plans to eliminate only waits of 104 weeks, to reduce waits of 78 weeks and to support an overall reduction in 52-week waits. Even as a temporary measure this should be unacceptable, and at best we should have a commitment and a plan to restore performance.

Last week’s report from the Health and Social Care Select Committee described the unquantifiable challenge faced by the NHS in addressing the backlog, with 300,000 people now waiting for more than a year for treatment for surgery, such as hip or knee replacements. We know the devastating suffering that the long delays in diagnosing cancer and other diseases such as heart conditions or stroke are causing. The Secretary of State himself said that the waiting list might grow to 13 million, and that was before the current omicron wave, which has only exacerbated this challenge. His promise in November to publish the Government’s plans to meet the workforce requirements needed to address staff shortages and the record waiting lists has yet to materialise.

Of course, this is not just about elective care. In emergency departments, waiting lines in October 2021 were the worst since records began, with one in four patients waiting longer than four hours to be admitted, transferred or discharged, and with trolley waits at a record high. October last year saw the highest number of 999 calls on record. There is a serious risk that the ongoing crisis in emergency care could derail the elective recovery programme.

Although the problems are manifold, prioritisation of the elective backlog is understandable. However, a focus on those areas most amenable to numerical task risk effectively deprioritises other equally important areas such as primary care, community services and mental health services, which all play a crucial role in keeping people healthy and out of hospital. It would be helpful if the plans around recovery in other aspects of care, with some sort of target or at least objective spelled out, were also made known—access to GPs being a primary example.

We know that workforce shortages are the key limiting factor on success in tackling the backlog. Without better short and long-term workforce planning, the 9 million additional checks, tests and treatments will not be deliverable. NHS England’s chief executive, Amanda Pritchard, told the Select Committee that the NHS currently has 93,000 vacancies for NHS positions and shortages in nearly every speciality. The social care workforce has, at present, 105,000 vacancies and a turnover rate of 28.5%, rising to 38.2% for nurses working in social care. Changing the way the cap is calculated will not help this, and of course discussions on both the cap and the need for a credible and systematic workforce plan in the light of the current chronic staff shortages will follow later in the Bill.

The waiting times focus of my amendment, which seeks to insert a new paragraph into Clause 3(2), is tangible and measurable, as are the constitutional targets. In the context of the huge challenges the NHS faces, the 18-week waiting time target remains vital. The discipline it imposes helps focus the entire system on the needs of patients. It drives behaviour and focuses funding, and it facilitates the organisation of seamless care for the patient, from the GP practice through diagnostic tests, out-patient care and, ultimately, if needed, to in-patient treatment. It gives leaders at local level in particular the leverage they need to unblock barriers to speedy care, such as delayed discharges from the hospital—another key issue on which we will focus later in the Bill.

The second part of my amendment reinforces the importance of the target for care for people with rare conditions and mental health conditions, which can all too often be Cinderella areas—overlooked in favour of more common conditions. I have a personal interest, which I declare, as vice-chair of the Specialised Healthcare Alliance, a coalition of more than 100 patient-related charities, groups and corporate supporters campaigning for improvements to care for patients with rare and specialised conditions, and for greater awareness of their needs, treatment and support.

The amendment also underlines the need for speedy diagnosis for this key group of patients. The SHCA chair, the noble Lord, Lord Sharkey, has added his name to my amendment and will speak on the importance of this in his contribution. He will also speak to Amendment 19 in this group, to which I have also added my name, which would ensure that ICBs

“commission specialised services in line with national standards”,

that their performance in this regard is published and monitored, and that there are safeguards that will operate if this commissioning role is removed from an ICB.

On treatment standards, can the Minister reaffirm that despite the current situation, every patient legally retains the right to treatment within 18 weeks? If so, what steps can patients take if the NHS does not deliver in line with this requirement? Can he assure the House that the Government have no plans to weaken this legal right and are fully committed to returning the NHS to an 18-week standard?

I am also speaking to Amendment 60 from my noble friend Lady Thornton, which would insert a new subsection, within the proposed new sections in Clause 20 on ICBs, to ensure that innovation and best practice on the quality of services

“is shared … openly and prevents individual trusts and foundation trusts from refusing to share beneficial developments or improvements through any issues around competition between organisations.”

This is crucial in helping to overcome any obstacles linked to the autonomy or independence of the organisations evolved.

We also support Amendment 215 from my noble friend Lady Merron, which would insert an important new clause after Clause 80, requiring the Secretary of State to publish an annual report to Parliament

“on waiting times for treatment in England, including disparities”

across the country. It is vital that this report also details the steps taken to ensure that patients, in line with their rights under the NHS constitution, are able to access services within minimum waiting times.

We also note Amendment 21 from my noble friend Lord Davies. He will be fully aware of Labour’s support in commissioning from the NHS as the preferred provider. His amendment is borne out of the right motivations but, I am afraid, misses the point that there are many social enterprises, charities and community organisations whose delivery of healthcare is vital to the functioning of the NHS and social care—for example, in end-of-life care—and we fully support the key role that they play.

The situation facing the NHS as it struggles to address waiting times and lists is dire, yet the recent NAO report on waiting times recovery pointed to some reasonable projections indicating that, far from improving on the current trajectory, the position will be even worse in March 2025 and beyond. That takes into account all the Government’s promised funding. The situation has echoes of the 1990s; Labour was able to address the challenges then, under different circumstances, but the current challenges are even harder. By 2010, the situation had improved to such an extent that demand for private healthcare had dropped. Now we see the opposite, with people having to pay to jump the queues.

Targets were an important part of how improvement was achieved through Labour’s three terms, backed by greater investment and a genuine commitment to public service solutions. The NHS responded to the confidence placed in it but today, there is no plan and no commitment, and totally inadequate funding to address the waiting times issue—the issue that patients are usually most concerned about. The NHS Mandate and the NHS constitution contain crucial rights and standards of care for patients and stakeholders, ensuring that the NHS has basic stability, knows what is expected of it and can be judged on its performance. We must keep the 18-week target and make sure that it is not fudged away. I beg to move.

[Lord Sharkey (LD)]

My Lords, I declare an interest as chair of the Specialised Healthcare Alliance. I will speak to Amendment 6 and 19. I added my name to Amendment 6 and I wholeheartedly support the points made by the noble Baroness, Lady Wheeler, in her eloquent opening remarks. I will make a few brief supplementary points on rare and less common diseases.

Proposed new subsection (2A)(b) in Amendment 6 refers to waiting times for a rare disease diagnosis and is intended to probe the Government’s ambitions in this area. The Government’s rare disease framework noted that it can take years to receive a final and definitive diagnosis of a rare disease and that some people living with a rare condition may never receive one at all.

In 2019, the Government’s national conversation on rare diseases found, perhaps not entirely surprisingly, that getting the diagnosis right was the number one challenge in rare disease care. But the process of getting this diagnosis has been called, entirely understandably, an odyssey—many journeys, many ports of call, and many difficulties. This odyssey frequently involves multiple referrals, inconclusive tests and even incorrect diagnoses before a final definitive diagnosis is arrived at.

The rare disease framework makes a very welcome commitment to making improvements in this journey. I would be grateful if the Minister could say what concrete steps are being taken to bring about the desired improvements to arrive at Ithaca much earlier and in better shape. For example, the rare disease framework talks of a need to improve diagnosis rates. How is this to be measured and what is the baseline to be? Is there a target that the Government are working towards? If there is, when is it expected to be reached? The framework also commits to making use of advanced diagnostics to improve the speed of diagnosis. Can the Minister say what new technologies are being deployed and which are under active consideration? Finally, the spending review announced funds for a new newborn genetic screening programme. What might we expect in terms of a timeline for the piloting of this programme and its wider implementation if the benefits are proven?

I turn to Amendment 19, in my name and that of the noble Baroness, Lady Wheeler, for whose support I am grateful. We have around 3.5 million people with rare or less common diseases or complex conditions. This number grows as our population ages. Many of these people require specialised treatment of one kind or another. Currently, these treatments are provided by the specialised commissioning team of NHS England. In total, there are 149 specialised services directly commissioned by NHS England, and in 2018-19 £18 billion or so was spent on these services.

There are some problematical aspects to the large-scale direct national commissioning of this very large range of specialised services. The NHS points to these in its paper of last January, Integrating Care: Next Steps to Building Strong and Effective Integrated Care Systems across England. It said that

“these national commissioning arrangements can sometimes mean fragmented care pathways, misaligned incentives and missed opportunities for upstream investment and preventative intervention.”

The paper goes on to propose a new model whereby the provision of some specialised services can be delegated to be more responsive to place-based needs and local collaborations.

The NHS proposes that there will be four principles underlying this new approach to the delivery of specialised services. The first is that all specialised services will continue to be subject to consistent national service specifications and evidence-based policies determining treatment eligibility. The second is that strategic commissioning, decision-making and accountability for specialised services will be led and integrated at the appropriate population level. The third is that clinical networks and provider collaborations will drive improvement, service change and transformation across specialised and non-specialised services. The fourth is that funding of specialised services will shift from provider-based allocations to population-based budgets, supporting the connection of services back to base.

Amendment 19 is a probing amendment to allow us to ask a few detailed questions about how these principles will operate in practice. The first is to do with the ability of ICBs to commission specialised services in line with ongoing national standards. How will this ability be assessed, and by whom? Can the Minister confirm that being judged to have the appropriate ability will be a transparent decision and an absolute condition of delegation? Following this, can the Minister also confirm that there will be at least an annual published review of ICBs’ performance in the commissioning of these specialised services? Can the Minister tell us what the circumstances are in which such a delegation of specialised commissioning may be withdrawn? What is the legal mechanism for doing that? Finally, there is the question of money. How can we be sure that the appropriate funds are spent by ICBs on specialised commissioning? Is a ring-fencing of funds being considered, for example?

I close by noting the many successes of the NHS specialised commissioning group and its frequent and very welcome engagement with patient groups and the Specialised Healthcare Alliance.

Financial Services Bill

Lord Sharkey Excerpts

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

[Earl Howe (Con)]

My Lords, Amendment 8 concerns mortgage prisoners, an issue that the Government take extremely seriously. We are committed to finding practical and proportionate solutions to help this group but, as Motion B in my name makes clear, the amendment is not one that the Government can accept. As explained in Reason 8A, the amendment is neither a proportionate nor a practical response to this complex issue, and this is why the Government cannot support Motion B1, tabled by the noble Lord, Lord Sharkey.

In our previous debates, my noble friend Lord True set out the FCA’s analysis of this complex issue. To recap briefly, according to FCA data, there are 250,000 borrowers with inactive lenders. Of these, analysis suggests that 125,000 borrowers could switch mortgage providers if they chose to, even prior to the introduction of the FCA’s new rules. Of the 125,000 who cannot switch, the FCA estimates that 70,000 are in arrears and so would struggle to access a new deal even in the active market. The FCA therefore estimates that there are 55,000 borrowers who may struggle to switch but are up to date with their payments. Its data show that, on average, the 55,000 borrowers with inactive firms who have characteristics that would make it difficult for them to switch but are up to date with payments are paying around 0.4 percentage points more than similar borrowers with active firms who are now on a reversion rate.

As the Economic Secretary set out on Monday, the reason these borrowers are unable to switch is not that their mortgage is with an inactive firm; it is that they do not meet the risk appetite of lenders. For example, they may have a combination of high loan-to-value, be on interest-only mortgages with no plan for repayment, or have higher levels of unsecured debts, non-standard sources of income or a poor credit history. Similar borrowers in the active market are also very unlikely to be offered deals with new lenders.

My noble friend Lord True has previously set out the significant work undertaken by the Government and the FCA in this area, which has created additional options to make it easier for some of these borrowers to switch into the active market. If we look at Amendment 8, we see that what it proposes would be a very significant intervention in the private mortgage markets and in private contracts. It would bring with it a risk to financial stability as it would restrict the ability of lenders to vary rates in line with market conditions. The ability to vary standard variable rates allows lenders to reprice products to reflect changes to the cost of doing business and could therefore create risks with significant implications for financial stability. On top of that, the amendment is not fair to borrowers with active lenders in similar circumstances as it targets only borrowers with inactive lenders. Indeed, this cap would be deeply unfair to borrowers in the active market who are in arrears or unable to secure a new fixed-rate deal because it would not include them.

So, at the most basic level, I just do not think it is right to introduce such a significant intervention for those with inactive lenders which could cut their mortgage payments far below the level of someone in a similar financial situation who happens to be with an active lender. Nevertheless, while the Government are opposing this amendment today, I want to reiterate our commitment to finding any further practical and proportionate options for affected borrowers, supported by facts and evidence.

On Monday, the Economic Secretary set out what further steps the Government and the FCA are taking and I want to repeat those commitments today: namely, that

“the Treasury will work with the FCA … on a review to its existing data on mortgage prisoners”.

This will ensure that we have the right data

“on the characteristics of those borrowers who have mortgages with inactive firms and are unable to switch despite being up to date with their mortgage payments. The FCA will also review the effect of its recent interventions to remove regulatory barriers to switching for mortgage prisoners and will report on this by the end of November, and … a copy of that review”

will be laid before Parliament.

“The Treasury will use the results of the review … to establish whether further solutions can be found for such borrowers that are practical and proportionate.”—[Official Report, Commons, 26/4/21; col. 87.]


Within the significant constraints that I have noted, I want to reassure the House that the Economic Secretary, as the Minister responsible for this area, will continue to search for any further solutions that may provide support for borrowers with inactive lenders who are unable to switch. But, again, they must be practical and proportionate. The Economic Secretary has also confirmed that he will write to active lenders and encourage them and the wider industry to go even further and look at what more they can do to ensure that as many borrowers as possible benefit from these options.

I hope I have convinced the House that the Government are taking the appropriate next steps and have demonstrated our commitment to continuing to work tirelessly on this. Therefore, I ask the House not to insist on this amendment and I beg to move.

Motion B1 (as an amendment to Motion B)

[Lord Sharkey]

Moved by

Leave out “not”.

[Lord Sharkey (LD) [V]]

My Lords, I was very disappointed that the Government felt unable to accept our amendment, which would provide relief for mortgage prisoners. I was disappointed, but the mortgage prisoners themselves were devastated by what they heard on Monday in the Commons. Many have called me, some in tears and all in obvious distress. None of them could understand why no solution had been offered by the Government and none could credit the arguments used by the Government in rejecting our—or, as they saw it, their—amendment. I entirely understood their point of view, their distress and their fears for the future.

--- Later in debate ---

[Lord Sharkey (LD) [V]]

My Lords, I thank all noble Lords who have spoken in this brief debate. I listened carefully to the Minister’s thorough reply. I was struck again that there was no acknowledgement of any moral responsibility for the condition of the mortgage business. I was totally confused by his explanation of dealing with Cerberus. I point again to the fact that UKAR wrote to the Treasury Select Committee explaining that it had been misled by Cerberus about its treatment of people who became mortgage prisoners.

I would like to place on the record that, contrary to what the noble Earl said, I have never said the FCA has done or was doing nothing to help relieve the plight of the mortgage prisoners. I know that is not the case, and I have always been careful not to say that.

I do not think there was any convincing explanation offered for why this problem has been allowed to run for over a decade. There was no comfort for mortgage prisoners in what the Minister had to say—or, at least, none in prospect. Regrettably, it is clear the Government are unwilling to meet us, and they have not proposed their own amendment in lieu of ours. Obviously, we have reached the end of this episode in this long and distressing tale. The Government remain, in my view, directly responsible for the major injustice done to our mortgage prisoners and the suffering they are experiencing.

We will, of course, return to this issue at every opportunity and willingly join and co-operate with any initiatives the Government and the regulator may want to consider. In particular, we would like the Treasury to release the data the LSE says its needs to complete its analysis of possible solutions. I would be grateful for that at some point. Perhaps the Minister could write to me and tell me the Treasury is prepared to do that and is doing that. But for now, I beg leave to withdraw.

Motion B1 withdrawn.

Financial Services Bill

Lord Sharkey Excerpts

Report stage
Wednesday 24th March 2021 Lords Chamber

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, Amendment 1 is in my name and that of my noble friend Lord Eatwell. I thank the noble Lord, Lord Sharkey, and the noble Baroness, Lady Bennett of Manor Castle, for adding their cross-party support on this important issue and look forward to their contributions to the debate. I also thank the noble Baroness, Lady Penn, the Deputy Leader of the House, the noble Earl, Lord Howe, the noble Lord, Lord True, and their officials for making time to discuss this issue after Committee, which has helped us considerably and shed some light on the complex set of consultations that the FCA and the Treasury itself are conducting over the next few months, all of which are happening, of course, during the pandemic and at a time of significant change in duties and responsibilities in all quarters.

In his excellent speech in Committee, my noble friend Lord Eatwell set out the case for the introduction of a duty of consumer care to be placed on financial services providers, which he argued would strengthen the FCA’s consumer protection objective and introduce requirements to ensure that firms operating in the financial sector should not profit from exploiting a consumer’s vulnerability, behavioural biases or constrained choices. I can do little better than rehearse his main points again. Markets in financial products sold to individuals, households and small businesses are seriously inefficient, mainly because of asymmetric information, as the seller of the product typically knows much more about the risks involved in making a particular investment or other financial transaction than does the consumer.

Secondly, given that the FCA’s strategic objective is about promoting competition in the market, thereby improving consumer outcomes, it can either regulate each individual financial product to ensure that the consumer is probably informed, or it could adopt the principle enshrined in Amendment 1 and make general rules, including the power to introduce a duty of care owed by authorised persons to their consumers. The case for a duty of care for consumers was argued very strongly at the time the current regulatory structure was set up; indeed, I was present in many of those debates. But, absent primary legislation or changes to it, the FCA has, perforce, adopted the first option and attempted to deal with each consumer detriment issue as it arises. However, by its own admission, this has not gone very well. From its consultation entitled, Our Future Approach to Consumers in 2017, through to the feedback statement published in April 2019, the FCA has wrestled with the issue of duty of care and is still wrestling today, with a review scheduled to start, we understand, in May 2021.

My noble friend’s case was that the status quo is failing and a new approach is urgently required for two main reasons. First, new products are always coming on to the market, which means that the FCA is always playing catch-up to introduce new rules and has to take time for appropriate consultation and so on to deal with the new threats to consumers. The rush to get a handle on “buy now, pay later” products in this legislation speaks volumes about that approach. Secondly, financial products are now available with one click via the internet, with all that that implies about the failure of the conventional approaches of “know your customer” and the need for careful concern about going through the paperwork and understanding the terms and conditions of what you may be signing up to. In short, fintech, with all the benefits it can bring—well argued by the noble Lord, Lord Holmes— signals the end of the current FCA regulation as we know it. The case for a duty of care approach is unanswerable.

Amendment 1 provides the FCA with the means to end its failure to meet its consumer protection duty through dogged adherence to a failing competition objective. The enactment of the power to introduce a duty of care for consumers would rightly place responsibility for ensuring that markets function well firmly on the shoulders of those who have the information required to attain that goal. If the FCA has the power to introduce a duty of care for consumers, it could finally begin to live up to its strategic objective.

Far too many consumers are being treated inappropriately, whether by the mis-selling of products, by the denial of rights or by obstruction of responses to complaints and so on. If the Government wish to improve on the consumer protections previously enshrined in EU legislation, the introduction of a duty of care on consumers is a safe and sure way forward. It is a way to ensure that markets function well for the benefit of the consumer, as it should be.

I am sure that, in responding to this debate, the noble Baroness, Lady Penn, will try to persuade us that there is no need for this amendment, as future consultations to be carried out by the FCA and the Treasury will cover all these points in detail and so all will be well. Indeed, either or both of these exercises may require primary legislation—that is quite likely—and we will be back again in a few months’ time debating the same issues all over again, when the Treasury has decided on its responses to the consultations and brings forward legislation to implement another generation of regulatory frameworks. I put it to the Government that, while the wording of the amendment may not be perfect, the intent—particularly the wording of subsection (2),

“that firms should not be profiting from exploiting a consumer’s vulnerability, behavioural biases or constrained choices”—

is worth holding on to and action should be taken now. I give notice that, in the absence of a positive response today, I am minded to test the opinion of the House on the amendment. However, if the Minister is prepared to commit to bring this back at Third Reading, with an agreed wording, we could work with her to settle this issue. I beg to move.

[Lord Sharkey (LD) [V]]

It is a pleasure to follow the noble Lord, Lord Stevenson of Balmacara, and to support this amendment. The noble Lord has made a strong and compelling case for both parts of the amendment. The case for and against a duty of care was discussed extensively in Grand Committee and I do not propose to revisit the arguments in detail.

In his speech in Grand Committee, the noble Lord, Lord Davies of Brixton, made a simple but important point:

“The truth is that the industry has a systemic tendency to malfeasance.”—[Official Report, 22/2/21; col. GC 112.]


I listed in Committee some of the many serious instances of malfeasance over the last couple of decades—I am sure that they are familiar to us all—which amply demonstrate the truth of the observation made by the noble Lord, Lord Davies. There can be no doubt that the temptation to malfeasance and the opportunities for malfeasance grow, and are deeply rooted, in the huge inequality of arms. The noble Lord, Lord Eatwell, emphasised that in Committee, as the noble Lord, Lord Stevenson, has just noted. There can be no doubt either that the culture within parts of the financial services industry is, to say the least, not oriented to serving the best interests of consumers. John Lanchester has graphically described the industry as treating its customers as “an extractive resource”. All this is true in an industry that is highly regulated. This inevitably leads to the conclusion that the regulatory regime is obviously and severely deficient.

The FCA has consulted on the duty of care at least eight times in the last five years and is about to do so again, starting in May, apparently. It is not clear, given the Treasury’s current consultation on the FSFRF, why we need two consultations covering the same ground. I know that some respondents to the HMT consultation have already proposed a new duty of best interest or duty of care. There is no reason to suppose that this new, and much delayed, FCA consultation will come up with anything more than equivocation, fence-sitting or long grass, if its previous efforts are anything to go by. Last time round, the FCA found that most respondents considered levels of consumer harm to be high and that change was needed to protect consumers. None of the financial services respondents wanted a duty of care, but 92% of consumers did, in a popular survey commissioned by the FCA’s own consumer panel.

The industry resists a duty of care for obvious reasons of self-interest, sometimes presented as a concern that such a duty would increase costs ultimately to the consumer. This does not say much for our financial services’ belief in competition, nor does it acknowledge the fact that, for example, PPI was sold at a commission rate of 87% or that the industry has had to find the funds to pay over £50 billion in redress for PPI alone.

Financial Services Bill

Lord Sharkey Excerpts

Committee stage
Wednesday 10th March 2021 Grand Committee

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, financial regulation has to ensure that consumers are well protected. It is with this principle in mind that I move the amendment in my name. I thank the noble Lords, Lord Sharkey and Lord Holmes of Richmond, for their support. We have also had an aperitif, in the sense that Amendment 127 in the name of the noble Lord has already been debated in an earlier group, although its main focus is aligned with the amendments in this group and I look forward to his comments.

The recent report of the UK Mortgage Prisoners group referred to by the noble Lord, Lord Holmes of Richmond, when he spoke on the earlier group of amendments, is graphic and shocking. It makes the case that the Government need to come forward promptly with a fair deal for the 250,000 or so mortgage prisoners who have been stuck for some 10 years paying higher interest rates than they needed to. The All-Party Parliamentary Group on Mortgage Prisoners has kept this issue alive, having been contacted by hundreds of mortgage prisoners who describe the worry and stress that comes from being trapped as they are. This is a shameful episode.

I am grateful to the Economic Secretary to the Treasury for meeting my noble friend Lord Tunnicliffe, myself and others last month. The Economic Secretary told us that he has a keen interest in settling this matter. He explained that there are difficulties including moral hazard, which means that it is not easy to sort. However, while the issue continues, considerable injustice is occurring. The Government may well be right to say that the SVRs currently paid by mortgage prisoners are only a little higher on average than the SVRs of other lenders but, particularly during the pandemic, small differences matter. In any case, the assertion that the Government make that the differences are rather minor does not ring true in the light of the report from the all-party group. Its case studies, which include nurses, teachers, members of the Armed Forces and small business people, suggest that, for all those who are trapped and struggling with the consequences of the Government’s decisions when money is tight and margins matter, these things need to be sorted.

Surely the true comparison is that if mortgage prisoners were with an active lender and of course up to date with their payments, they would have access to a range of products to transfer to, which would give them a lower fixed rate for their mortgages. In the other place when this issue was discussed, the savings available were said to be in the order of £5,000 a year. That is not an inconsiderable sum. Why are these people being singled out for this penalty?

The problem also seems to be the inability to access the best market-matching deals, compounded by the fact that the prison effect is reinforced by the inability to prevent mortgages being sold off to so-called vulture funds, which are often unregulated. This matter has been left unresolved for far too long. The inability to seek out new deals and to limit costs is causing stress, and in some cases has caused families to lose their homes. As the Government have been involved throughout this process, is it too much to ask them to explain what the plan is, and what the timetable for resolving the incarceration of these prisoners will be?

In its recent report, UK Mortgage Prisoners says that it has put the record straight on what it calls a “Government made scandal”. It is for the Government to defend themselves on that charge. UK Mortgage Prisoners complains that the Government have “effectively ignored the issue” and that, where the FCA has intervened, it has done so in a limited and ineffective manner. Its asks seem very simple: an immediate cap on SVRs for closed mortgages; introducing a tailored mortgage product for those affected; giving credit to prisoners who have for a decade or more made overpayments; stopping penalty charges for any excess arrears; and adjusting credit ratings going forward. Those are five simple steps for 250,000 people whose lives have quite simply been blighted.

[Lord Sharkey (LD) [V]]

My Lords, I declare an interest as co-chair of the APPG on Mortgage Prisoners. Mortgage prisoners exist almost entirely because the Treasury made a terrible mistake when it sold the first tranche of former Northern Rock and B&B mortgages to an unregulated American vulture fund called Cerberus. Cerberus is the name of the multi-headed dog that in Greek mythology sits at the entrance to the gates of hell. That is not an inappropriate name, in view of what happened next.

Three things are needed to rescue mortgage prisoners. The first is to reduce immediately to comparable market rates the SVRs that they pay. The second is to make sure that transfers to much less expensive fixed-rate deals are properly available to them. The third is to make sure that new classes of mortgage prisoners cannot be created in the future.

Amendment 99, moved by the noble Lord, Lord Stevenson, to which I have added my name, deals with the first of those things. My Amendments 116 and 117 deal with the second and third. Amendment 99, as he has so clearly and forcefully explained, would protect the thousands of mortgage prisoners stuck paying high standard variable rates. It would introduce a cap on the standard variable rates paid by customers of inactive lenders and unregulated entities. That would provide immediate relief for thousands of mortgage prisoners, and could give space for longer-term solutions to be found. It would help mortgage prisoners who took out loans with a fully FCA-regulated high-street bank which were then sold on to vulture funds.

Money-saving expert and consumer champion Martin Lewis supports this proposal, and on Monday he released a statement saying:

“While the government chose to bail out the banks in the financial crisis, it has never bailed out the banks’ customers who were victims of that collapse. Mortgage prisoners have been left paying obscene interest rates for over a decade through no fault of their own. They have been completely trapped in their mortgages and unable to escape the financial misery it causes … Coupled with the devastating impact of the pandemic on people’s finances, urgent action is needed to prevent the situation from becoming catastrophic. The independent LSE report I funded has a cogent argument as to why an SVR cap isn’t a balanced long-term solution. Yet in lieu of anything else, I believe for those on closed-book mortgages it is a good stopgap while other detailed solutions are worked up, and I’m very happy the All-Party Parliamentary Group on mortgage prisoners is pushing it. This would provide immediate emergency relief for those most at risk of financial ruin. No one should underestimate the threat to wellbeing and even lives if this doesn’t happen, and happen soon.”


The Government will no doubt say that some mortgage prisoners are already paying rates lower than 3.5%, so rates do not need to be capped. But those sold on by the Government to vulture funds like Cerberus are paying high rates. In the package sold by the Government containing more than 66,000 mortgage loans, 52% were paying rates between 4.5% and 5%, and 37% were paying rates of over 5%, when the mortgages were securitised.

The Government could have set strict conditions when selling the mortgages on the interest rates which could be charged. But when they sold £16 billion of mortgages to Tulip and Cerberus, they imposed only a 12-month restriction on increases to the standard variable rate. These have long since expired and the chief executive of Tulip Mortgages told the Treasury Select Committee that the firm now had

“complete discretion to set the interest rate policy.”

On the sale to Heliodor, the Government claimed that the organisation which bought the loans would be required to set their standard variable rates by reference to the SVR charged by a

“basket of 15 active lenders”.

But when you read the details of the securitisation agreements for the mortgage loans sold, you will find that, actually, the Government have required the SVR to be set only at the level of the third highest of the 15 active lenders. This is absolutely critical, as the third highest SVR is actually 4.49%. The lowest SVR among those 15 active lenders is 3.35%, and the average SVR weighted by market share is 3.72%.

The latest and final sale of the Treasury-held mortgages was announced in February. The book was sold to Davidson Kempner Partners and Citibank, with funding by PIMCO. The Government said that the SVR was going to be charged by reference, again, to a basket of 15 active lenders, but there are no details about how this will work in practice. If it reflects the practice in earlier sales, it will not actually provide any protection to customers. The Government will also say that the FCA has changed the affordability test to enable mortgage prisoners to switch to a different lender. But the progress has been very slow, with only a very small number of lenders willing to use these new flexibilities.

The cap on the SVR proposed by this amendment would provide immediate relief to mortgage prisoners who have been overpaying for the past 13 years. It would protect all mortgage prisoners, including those who are unable to switch. It would give time for other solutions to help mortgage prisoners to be developed. The SVR cap would apply only to mortgages owned by inactive lenders and unregulated entities. It would have no impact on active lenders competing to attract customers.

The cap is supported by the campaign group UK Mortgage Prisoners, as the noble Lord, Lord Stevenson, said. Members of the group have stated that this amendment is the difference between feeding their children and themselves or continuing to rely on food banks. The Government created the problem of mortgage prisoners and it is their moral responsibility to rescue them from the significant detriment that many still face. I urge the Government to accept the amendment in the name of the noble Lord, Lord Stevenson.

I now turn to Amendment 116, which would extend access to fixed interest rates to all mortgage prisoners, enabling them to gain control and certainty over their monthly mortgage payments. When the time came for the nationalised Northern Rock and B&B mortgages to be sold by the Government back to the private sector, they could have pursued an approach which ensured that these customers were in fact protected. They could have sold them to active lenders or secured a commitment from purchasers to offer these new customers new deals.

The risk to these customers was identified. In January 2016, the noble Lord, Lord McFall, wrote to the Treasury, UK Asset Resolution and the FCA to say that the customers affected by these sales should be protected, offered a fair deal and given access to fixed rates. UKAR responded that, by returning these mortgages to the private sector,

“the option to be offered new deals, extra lending and fixed rates should become available”.

But this requirement was not written into the contract when mortgages were sold to funds such as Cerberus, with the BBC reporting that UKAR is now claiming to have been “misled” by Cerberus.

A UKAR spokesman told BBC “Panorama” that Cerberus had the ability to lend to the former Northern Rock customers and that UKAR believed that it intended to do so. They said:

“The reply to Lord McFall sent on behalf of the UKAR board of directors was based on information presented to UKAR and the board had no reason to disbelieve this at that time.”


At the very best, this is evidence of catastrophic incompetence. At worst, it is evidence that UKAR heartlessly pursued profit over care for mortgage customers.

Consumer champion Martin Lewis lays responsibility for the treatment of mortgage prisoners squarely with the Government. He said that the Government

“have sold these loans to professional debt buyers who do not offer mortgages and left these people in these types of mortgages, which have been too expensive, crippled their finances and destroyed their wellbeing.”

Financial Services Bill

Lord Sharkey Excerpts

Committee stage
Monday 8th March 2021 Grand Committee

Moved by

[Lord Sharkey]

80: After Clause 40, insert the following new Clause—
“Sharia-compliant financial services
Within one year of the passing of this Act, the Secretary of State must publish an assessment of the availability of Sharia-compliant financial services in the United Kingdom, including financial services to support students.”

[Lord Sharkey (LD) [V]]

My Lords, Amendments 80 and 88 are probing amendments. Their purpose is to allow the Committee to debate access to Sharia-compliant student finance. I raise this issue because there is no such access.

Noble Lords will know that Islam forbids interest-bearing loans. This prohibition can be and is a barrier to Muslim students going on to attend our universities. I first became aware of this when I visited the Preston Muslim Girls High School as part of the Lord Speaker’s Peers in Schools programme. I talked about the work of the House and tried to answer the girls’ questions. There was one question I could not answer: why was there no Sharia-compliant system of student finance?

Many of the girls came from deeply religious backgrounds and would not be able to accept interest-bearing loans. This meant that they could not go on to university, which they were certainly qualified to do. Ofsted rated their school as outstanding on every measure. The headteacher explained to me that, when tuition fees were low, many Muslim students were able to attend university financed by family and friends, but, since 2012, this had become much more difficult because of the very large increase in fees and the real rate of interest now payable on student loans. The situation became even worse when maintenance grants were replaced by interest-bearing loans.

The Government have known about all this since 2012. In early 2014, the then Department for Business, Innovation and Skills consulted on the issue. The consultation generated an astonishing 20,000 responses. The Government’s report on the consultation noted:

“It is clear from the large number of responses … that the lack of an Alternative Finance product as an alternative to conventional student loans is a matter of major concern to many Muslims.”


This same report also identified the solution: a Takaful, a well-known and frequently used non-interest-bearing Muslim financial product. The Government explicitly supported

“the introduction of a Sharia-compliant Takaful Alternative Finance product available to everyone”.

That was six years ago, and nearly four years ago we passed enabling legislation in the Higher Education and Research Act 2017, but there is still no Sharia-compliant student product available. Over the past five years, I have repeatedly pressed the Government to act. I have spoken in debates in the Chamber; I have asked Questions, oral and written, and I have written directly to the Minister. I last spoke about the issue at length in the Queen’s Speech debate in October 2019. Soon after that, the Minister, the noble Baroness, Lady Berridge, wrote to me saying:

“The position remains the same as when the Government responded to your PQ in July. We will set out plans for implementation as we conclude the Post 18 Review. This will ensure that students in receipt of an Alternative Student Finance package are not disadvantaged compared to other students in receipt of mainstream student support.”


As I had heard nothing further, I emailed the Minister on 4 January this year. I pointed out that, since her letter to me, one more student cohort had entered higher education, and another was now preparing to do so, but there was still no available Sharia-compliant student finance. I asked her for an update on implementation. I asked whether we were still waiting for a formal response to the Augur review and suggested that we should not. I pointed out that the Government had recognised the problem more than six years previously and had had the power to deal with it for four years. I sent this email on 4 January and I have had no reply.

We are having this debate as students are considering their university choices for next September. Once more, there will be devout Muslim students who, though qualified, will not be going to university because of the lack of a sharia-compliant student finance product. It is very hard to understand or excuse the Government’s behaviour over this issue. They know the problem, acknowledge the need to act and have taken the powers to introduce the remedy, yet nothing has happened. It is shameful that the Government have allowed so much time to elapse and that they display such a casual neglect of and disregard for our Muslim community.

At the World Islamic Economic Forum in 2013, David Cameron promised to introduce a sharia-compliant student finance scheme, saying:

“Never again should a Muslim in Britain feel unable to go to university because they cannot get a student loan—simply because of their religion.”


When will the Government finally make good on this eight year-old promise? I beg to move.

[Lord Naseby (Con) [V]]

My Lords, I am absolutely delighted to support my friend, the noble Lord, Lord Sharkey, who has clearly positioned the problem. I have had the privilege of working in Pakistan—which is almost totally Muslim—and India, which has a very significant Muslim population, as well as Sri Lanka, where a big majority of the minorities are Muslim. Locally, they do not seem to have a problem in dealing with this issue; can we not learn from them, particularly Pakistan? We have high commissioners here, so why do we not at least find out from them what the problem is in relation to the UK—and get their help?

This issue is increasing. The sharia families who are really strong in their faith increasingly want to send their children to university—that is part of the philosophy of that faith—and here we are, years down the track, making it very difficult for them. We must do something about it. In towns and cities such as Luton, Leicester and some of the other major ones in the north of England—let alone London—there are students and families who do not know what to do about it. We have to take some action.

It goes further than that, does it not? We want students from overseas; we are seeking them. There are sharia-compliant students from the Muslim fraternity overseas who want to come. I really do not see why this is so difficult to do, so I say to my noble friend on the Front Bench: Her Majesty’s Government need to solve this problem; sit down with the sharia-compliant banks and, if necessary, with the high commissioners to seek their support and help; and solve this problem.

Frankly, it is an embarrassment for any of us who have good friends in that community—as I do and I guess most of your Lordships may well do—to find that potential students are not able to pay their tuition fees and receive student maintenance grants without being penalised or having to find some method to go around the scheme, where the senior mothers and fathers are doing that at all.

As such, I make a plea to my noble friend on the Front Bench: this is not a party-political issue or anything like that—this is just good and straightforward. The problem is known about and has taken years to be solved; can we please take a significant step forward?

--- Later in debate ---

[Lord True (Con)]

My Lords, as has been eloquently expressed, these amendments relate to sharia-compliant finance and specifically to the availability of sharia-compliant student finance products. This is an area where the Treasury and the Department for Education are in close contact. The Government are committed to ensuring that all students in England with the potential to benefit from further and higher education are able to access it. I know from this debate and from others that many noble Lords of all parties are keen to see action on this.

On the specific amendments, which the noble Lord, Lord Sharkey, stated are probing, Amendment 80 seeks to require the Treasury to publish an assessment of the availability of sharia-compliant financial services, I can assure noble Lords that the Government are committed to ensuring that no UK customer is denied access to competitive financial products because of their faith. As referred to in the debate, the United Kingdom is indeed the leading western hub for Islamic finance, a position we have maintained for several years now. Treasury Ministers and officials conduct regular engagement with key stakeholders in the Islamic finance sector to inform our policies.

Amendment 88 seeks to add access to sharia-compliant student finance to the FCA’s objectives within Section 1B of the Financial Services and Markets Act 2000. It would be ineffective to add this objective because student loans are exempt from FCA regulation, meaning that the FCA would not have the powers to fulfil this duty. Additionally, student finance provision is a devolved matter while the FCA is our UK-wide regulator. Finally, as I have explained, work is under way in government to ensure that all eligible students are able to access student finance.

A number of noble Lords commented on the pace of this work. As the noble Lord, Lord Sharkey, said, the Government published a consultation in September 2014 into a potential model that could form the basis of a new student finance product. The Government signalled in the consultation response that they would need to take new primary powers to enable the Secretary of State for Education to make alternative payments in addition to grants and loans. These were secured in the Higher Education and Research Act 2017. The Government have also carried out work with the Islamic Finance Council UK on an alternative student finance product for tuition fee and living cost support compatible with Islamic finance principles.

As has been stated, the implementation of alternative student finance is currently being considered alongside the review of post-18 education and funding. The interim report of that review was published on 21 January and the review is due to conclude alongside the next multi-year spending review. The Government will therefore provide an update on alternative student finance in due course. We should not underestimate the scale of complexity here. The Department for Education is trying to replicate a system of student finance that delivers the same results as now where students do not receive any advantage nor suffer any disadvantage through applying for alternative student finance.

I am sure that our colleagues in the departments concerned have heard the concerns expressed by noble Lords. I hope that, for these reasons, the noble Lord, Lord Sharkey, will feel able to withdraw his amendment.

[Lord Sharkey (LD) [V]]

I thank everybody who has spoken in the debate on this group. I confess that I should have said clearly at the beginning that my amendments and their text were not the issue; the amendments were simply the fossilised remains of my scope negotiations with the Public Bill Office and a means of introducing the subject of sharia-complaint student finance.

I must say that I am, as usual, extremely disappointed by the Minister’s evasive and unconvincing response. It is a great pity. I still do not understand why there has been such a long delay in addressing this serious problem. The Minister has not offered a reason for the delay except to point at various complications. Perhaps I should remind him that the takaful version of the Help to Buy mortgage system was introduced from a standing start in six months. This has taken nearly seven years, and we have not got there yet. I simply do not understand why this is going to be prolonged and why the Minister cannot give us any assurance about a firm date for the introduction of a sharia-compliant student product.

I also do not understand—I never did—why the Augar review is at all relevant; perhaps the Minister can explain why at some other point. However, I understand that the Muslim community continues to suffer a direct disadvantage without any good reason or plausible excuse. The Government are acting in a completely mean-spirited and heartless way. They are failing in their moral duty, failing to fulfil their explicit promises and failing to provide any real comfort that they might eventually do what they should have done long ago. They are behaving neglectfully and really rather disgracefully. We will return to this issue later.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

Does the Minister wish to speak further? No? Does the noble Lord, Lord Sharkey, wish to withdraw his amendment?

[Lord Sharkey (LD) [V]]

I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

Financial Services Bill

Lord Sharkey Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 24th February 2021 Grand Committee

[Lord Holmes of Richmond (Con) [V]]

My Lords, it is a pleasure to take part in day two in Committee on the Financial Services Bill. In doing so, I declare my interests as set out in the register.

I speak on this group to support my noble friend Lady Noakes’s Amendments 10 and 26. I shall not detain the Grand Committee too long. I have written an extensive article on this subject—if anyone is interested, it is at lordchrisholmes.com. All the amendments in this group seek to answer a straightforward question: who watches the financial watchdogs? If I had had a more expensive education, I could do the Latin for that, but fortunately I simply had an expansive education.

It seems to me that the start point is not whether we need more or less scrutiny and accountability but what the right level of accountability is. What are we seeking to achieve? In the EU/UK process, the debate has been characterised as being between principles and prescription. That seems a somewhat false characterisation. For me, the start point of purpose would make a lot more sense. What are we trying to achieve via our regulatory approach—to the FCA and the PRA—to enable it to be to that extent and no more? We also hear of proportionality. I support the two amendments in the name of my noble friend Lady Noakes because they are elegant and leave space for detailed thinking to be done rather than for it needing to be rushed through in the Bill.

Some of that thinking needs to rest around the three Cs of capacity, consistency and co-ordination. Does any potential scrutiny have the right people, the right skills, the right experience and the right amount of time to undertake the task? On consistency, are the scrutinisers and the regulators there all the time, day in, day out, not merely when there is a significant regulatory failure or something that seems of particular political significance? Co-ordination speaks for itself, each regulator being a constituent part of a greater sector in terms of financial services and beyond that across the whole family of regulators, inspectors and ombudsmen.

In any solution that may come out of this, the greatest amount of energy seems to be around the Treasury Select Committee and a potential sub-committee. This has a great deal to recommend it, but even if we consider the first C of capacity, there would seem to be at least a challenge on this.

A similar argument, but with the addition of the right level of expertise, in my view, has been put forward in an excellent report from the All-Party Parliamentary Group on Financial Markets and Services, which was published on 18 February. It argues that a sub-committee of the Treasury Select Committee, supported by an expert panel, could be effective in this space. As has been said, it is not for the Government to prescribe what approach Parliament takes but, in this Financial Services Bill, the opportunity should be taken to provide that space and those options for such a scrutinising body to be constructed.

We have the opportunity to move a million miles away from part of the parliamentary scrutiny that we currently have—the annual report to Parliament via the Minister. We can move towards doing effective scrutiny in the 21st century in real time, rather than via the rear-view mirror: Parliament partnering with academia, the private sector and all the relevant expertise, deploying all the necessary elements of technology to enable effective and efficient scrutiny of our financial regulators for the benefit of us all.

[Lord Sharkey (LD) [V]]

My Lords, many of the amendments in this group share the aim of increasing or providing for the first time proper parliamentary scrutiny of some financial services regulatory regimes and of those who enforce them. Some amendments deal with the problem of absent or insufficient scrutiny on a grand scale and I strongly support their intent. This Government often seem to think that parliamentary scrutiny is best avoided or diluted. Our DPRRC, SLSC and Constitution Committee have regularly warned the Government against using skeleton Bills, against behaving as though consultation is a substitute for real parliamentary scrutiny and against using rule-making as camouflage legislation.

This Bill contains a particularly alarming example of the evasion of scrutiny in allowing the Treasury to revoke rules by SI by giving the regulator the power to make legally binding rules without any parliamentary involvement. That is completely unacceptable, as the Government must know. I strongly support Amendments 10 and 26, tabled by the noble Baroness, Lady Noakes, as a means of restoring some proper scrutiny. As the noble Baroness clearly explained, these amendments are not prescriptive as to the form of parliamentary scrutiny needed; they simply set out the principles that must guide construction of the scrutiny mechanisms. This is the equivalent of making an invitation to the Government that they should not refuse. It is an invitation to serious and substantive discussion about the way forward and it rightly, given the serious and far-reaching consequences, gives an appropriate incentive to resolve the issue quickly and collectively. I urge the Government to begin immediate cross-party talks on the issue.

By contrast with some of the amendments in this group, our Amendment 22 has modest and narrowly defined ambitions. As the Bill stands, Clause 3 lists the provisions of the CRR that the Treasury may revoke by regulation. There are 42 of these categories of provisions, all of them significant. Clause 3(4) makes these revocations conditional on their being or having been adequately replaced by general rules made, or to be made, by the PRA, or to be replaced by nothing at all if the Treasury thinks that that is okay. The Treasury appears to be the sole judge of what may or may not be an adequate replacement. In any event, Parliament is completely bypassed in this system. But all this means is that the Treasury can revoke provisions by SI before it has published the replacement rules or even decided what they will be. This sounds like a perfect recipe for disorderliness and uncertainty and it means that Parliament will have no opportunity to consider these new rules in a legislative setting. We get to see what has been dropped, but not necessarily what the replacement rules may be. This is another example of making law by making rules that Parliament has not been able to scrutinise.

Our amendment proposes a simple way round this. It would require any revoking SI to carry not only full details of what was being revoked but the full text of the replacing rules, except, of course, where no replacement was envisaged. These new rules can and will reshape important parts of our financial services regulatory regimes, and it is quite wrong that Parliament should be unable to scrutinise them.

I hope the Minister will be able to accept our amendment or to give us an assurance that revoking SIs will contain the full text of any replacement rules.

[Lord Blackwell (Con) [V]]

My Lords, in addressing this group of amendments, I want to speak also to Amendment 85 in my name. As I set out at Second Reading, I should draw attention to the fact that I was chairman of a regulated bank until the beginning of the year, although my interests now are solely as a shareholder.

I agree with other speakers that parliamentary accountability for the regulators is important now that the UK has its own regulatory agenda outside the European Union, and it is missing from this Bill. However, the regulators have been established by Parliament to enable independent expert bodies to exercise delegated powers, and we need to be careful that in providing for the necessary parliamentary oversight we do not create structures that impinge on the political independence of the regulators and their ability to take a considered, apolitical view, undermine their expertise or turn Parliament effectively into the day-to-day regulatory body if it is required to approve every rule in advance. That would make the regulators simply a working body for Parliament rather than independent regulators in their own right.

A number of speakers have talked about regulatory capture. From my experience over many years, it has not felt like the regulators have been captured by the industry, but neither have they always been right, so scrutiny is important. My amendment seeks to strike the right balance of delegation and oversight by suggesting parliamentary scrutiny of rules after the event—ex post—rather than it trying to second-guess the regulator ex ante by approving rules in advance. I therefore take a different view from my noble friend Lady Noakes on Amendment 10 and some of the other amendments. If Parliament sought to approve every rule in advance, the regulators would lose their independence, and we would lose the benefits of speed and expertise. We need to recognise that, often, rules need to be made to fix a problem, and if that problem needs fixing, the regulators need to act rapidly. They obviously need to consult as far as is possible, but to set in process a whole session of approvals by Parliament would handicap them in taking action when they needed to, and it would jeopardise their political independence.

Under my amendment, if a parliamentary committee felt that the rules were inappropriate or not working properly, it could make its views known to the regulator, and I suspect that in many cases the regulator would sensibly take note of that. Ultimately, it would be up to the Secretary of State to propose changes to regulations if the regulator was not acting in accordance with the framework that Parliament set out and intended. The point was made that that might need primary legislation; my understanding is that, under this Bill, Her Majesty’s Treasury can enact a lot of changes in regulations through secondary legislation, which can be done much more rapidly.

As my noble friend Lady Noakes said, what the amendment cannot signify is exactly what the form of parliamentary scrutiny will be and therefore that cannot be written into the Bill, but, since we are having this debate, I would advocate that the scrutiny function when Parliament comes to that is best carried out by a Joint Committee of both Houses, with appropriate technical support.

Experience suggests that a Joint Committee is the best way to avoid politicising the debate. It can draw on the experience in this House while enabling the elected Members in the other place to have their legitimate role in parliamentary oversight. As and when it is appropriate to decide on the form of parliamentary scrutiny, I hope that this can be taken into account.

I know that these matters are still under consultation. I look forward to my noble friend the Minister’s response, but I support the weight of the speakers so far that this is a matter that needs to be dealt with, if at all possible, during the course of this Bill.

Financial Services Bill

Lord Sharkey Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 22nd February 2021 Grand Committee

Moved by

[Lord Sharkey]

1: Before Clause 1, insert the following new Clause—
“Duty of the FCA to make rules introducing a duty of care
(1) The Financial Services and Markets Act 2000 is amended as follows.(2) After section 137C, insert the following new section—137CA FCA general rules: duty of care (1) The power of the FCA to make general rules includes the power to introduce a duty of care owed by authorised persons to consumers in carrying out regulated activities under this Act. (2) “Duty of care” means an obligation to exercise reasonable care and skill when providing a product or service.(3) “Consumer” has the meaning given in section 2(3) of the Consumer Rights Act 2015.”(3) The FCA must make rules in accordance with section 137CA (FCA general rules: duty of care) of the Financial Services and Markets Act 2000 which come into force no later than six months after the day on which this Act is passed.”Member’s explanatory statement
This amendment would impose on financial services providers a general duty of care to their clients.

[Lord Sharkey (LD) [V]]

Amendment 1 would require the FCA to

“make rules introducing a duty of care … owed by authorised persons to consumers in carrying out regulated activities”

under FSMA 2000. The Government understand the value of a duty of care; they are about to introduce exactly that in the forthcoming online harms Bill. They understand the immense harm that can be done to consumers without this duty, especially in complex and asymmetric environments.

We have already seen too many examples of the immense harm inflicted by our financial services industry on ordinary consumers—I am thinking here of PPI, which was a product sold to consumers at an 87% commission rate. The scandal ended up costing £53.8 billion in redress and administration costs. I am also thinking of mis-sold interest-rate hedging products and the general and widespread unfair treatment of small businesses in financial difficulty. There was also the long-running saga of overcharging for overdrafts and of leaving loyal customers languishing in poor-value products.

The existing rules did not prevent any of these things, which is not a surprise. There is no explicit requirement in FSMA or in the FCA’s principles for business for firms to prevent harms to customers. The FCA’s “treating customers fairly” business principle is substantially weakened by the legal principle in FSMA that consumers should

“take responsibility for their decisions”.

This fails to take into account the imbalance in power and information between firms and their customers.

Things are not getting any better. Recent examples of misbehaviour include the banks’ response to the authorised push payment fraud, inadequate assessment of affordability by payday lenders, the scandal in Woodford Investment Management, sales of risky investment products on the boundary of the FCA’s perimeter and the outrageous behaviour of some insurers during the pandemic trying to welsh on their business interruption policies.

The Minister will be aware of the Banking Standards Board’s annual survey of 29 member banks’ behaviour and competence. There was some welcome improvement in these areas between 2016 and 2017 but none since. In 2019, 13% of employees of these banks said that they had seen instances of unethical behaviour being rewarded and 14% felt that it was difficult to make career progression without flexing their ethical standards.

The FCA knows all this, of course, and has occasionally acted. However, within the existing legal framework it often takes many years for the FCA to respond to firms’ harmful practices. An example of this is the treatment of loyal general insurance customers, which the FCA is only just beginning to tackle.

Then there is the question of the high-cost short-term credit sector. Wonga may have gone, thanks largely to pressure from this House, and after intense pressure from Parliament there is now a price cap on rent to own. But problems persist with, for example, doorstep lending, guarantor loans and new, automated overdraft products.

The FCA tackles unacceptable practices slowly and piecemeal, allowing harm to persist for many years. It was particularly late in spotting the rapid growth of buy now pay later and its potential for harm. I believe that the Government have said that they intend to address this problem and I hope that they will use this Bill as an opportunity to do that. I would be pleased if that were to be the case, but the slow and cumbersome engine of primary legislation would not have been necessary had a duty of care extended over the sector.

The FCA has published eight papers in the last five years dealing wholly or in part with the question of duty of care, but it still has not developed a clear view or a recommendation. In its consultation feedback paper of April 2019, the FCA noted:

“Most respondents consider that levels of harm to consumers are high and there needs to be change to better protect them.”


It then sat on the fence about what this change should be, reporting that none of the financial service providers favoured a duty of care. Mandy Rice-Davies would have known what to say to that.

In any case, as the FCA’s consumer panel noted,

“Much of the debate on a duty of care has centred on legalistic arguments about whether there is a ‘gap’ in protection. What matters is whether consumers get the treatment they want and expect from their financial services providers.”


The consumer panel commissioned Populus to ask individual and small business customers about their experiences. The research showed that the customer is not at the heart of business decisions and that 92% of respondents were in favour of a duty of care in financial services.

While sitting on the fence, the FCA has also managed to hit the ball into the long grass. It promised to initiate yet another consultation on the issue, initially due last year but now postponed. In the meantime, levels of financial vulnerability grow. The FCA’s latest Financial Lives survey, published 11 days ago, makes grim reading. It notes that Covid-19 has reversed the previous positive trend in vulnerability. Between March and October last year, the number of adults with characteristics of vulnerability increased by 3.7 million to 27.7 million. That means that over half of all adults are financially vulnerable—a truly alarming figure.

The same survey also notes that unsolicited approaches have increased during the pandemic, increasing the risk of fraud and scams. Over a third of adults say that they have received at least one such approach and 1.4 million say that they have paid out money as a result of a possible Covid scam. Unsurprisingly but regrettably, people with characteristics of vulnerability have been the more susceptible: 12% paid out money, compared with 1% of the non-vulnerable. None of this will get any better when the furlough and business support arrangements come to an end. Financial pressures and desperation will inevitably increase; vulnerable people will be disadvantaged, treated unfairly and scammed.

Dealing with all this would be made significantly easier if the FCA were to impose a duty of care on service providers. The idea has widespread support. In May 2019, the Treasury Select Committee published its report on the inquiry into consumers’ access to financial services. Paragraph 210 of the report says:

“All retail financial services, no matter which sector of the industry they operate in, should be acting in their customers’ best interests at all times. If the FCA is unable to enforce such behaviour in firms under its current rule book and principles, the Committee would support a legal duty of care, analogous to that in the legal industry, creating a legal obligation for firms to act in their customers’ best interests.”


The FCA’s own financial services consumer panel, responding to the FCA’s discussion paper, said:

“A new duty is required to improve the position of all consumers … including those who need more support.”


The Money and Pensions Service said:

“MaPS remains convinced that a formal ‘duty of care’ on financial firms could provide a better balance between firm and consumer responsibilities and help deliver extra protection and better treatment to vulnerable consumers.”


StepChange is in favour, as is Fair by Design, and so are many organisations with direct and in-depth experience of the financial catastrophes that can be visited on the poor and the vulnerable. I am grateful for the explicit support and encouragement in pressing for a duty of care from Age UK and the Alzheimer’s Society and I am especially grateful to Macmillan Cancer Support for its unfailing help and advice. I am also indebted to the former chair of the FCA’s consumer panel, Sue Lewis, for her support.

Despite all this support, the Government will no doubt resist the idea of introducing a formal duty of care. When this issue was raised at Report in the Commons, John Glen addressed it by saying simply:

“As the FCA is already taking steps to ensure that financial services firms exercise due care and regard when offering products, services and advice, a statutory duty of care, as proposed by new clause 21, is not necessary.”—[Official Report, Commons, 13/1/21; col. 366.]


He did not say what these steps were or make any assessment of their actual or likely effectiveness. Today the Government may add to John Glen’s reasons for rejecting a duty of care and may advance the argument that they need to wait to give the SMCR time to work. Surely five years is long enough—five years in which there has been just one successful conviction. The FCA’s consumer panel points out that this is essentially a category error and notes:

“The SMCR is primarily a supervision tool—it will be a valuable mechanism to ensure that firms are complying with a new duty.”


The Minister may also pray in aid the reinforced, better-resourced and more active FOS. It is true that FOS dealt with around 250,000 cases in 2019-20. In these cases overall, one-third of judgments were in the consumers’ favour. This is evidence enough of large-scale misbehaviour, but the figures are much worse for products aimed at the financially vulnerable: 89% for guarantor loans, 84% for doorstep loans and 78% for logbook loans.

This is not—absolutely not—evidence of successful regulation. Every one of these judgments is evidence of a failure to sell the right product to the right individual or small business, to explain it clearly or to handle a complaint properly. The FCA’s current rules and principles are failing to stop this tidal wave of mis-selling, malfeasance and malpractice. We need a new approach that focuses on prevention of harm and delivers extra protection and better treatment for vulnerable customers. We need a duty of care and I beg to move.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I declare my interests as in the register. I support all the amendments in this group and what has already been expertly said by my noble friend Lord Sharkey. I will comment on the duty of care later, but first I will introduce my Amendment 72, which calls for warnings relating to non-regulated activity.

The issue here is one where firms that are authorised in respect of regulated activity also conduct unregulated activity, and customers are misled by the fact that the firm is authorised for some activity into thinking that the authorisation is some kind of guarantee of quality. It is what Dame Elizabeth Gloster called in her report “the halo effect”, and about which she said again to the Treasury Select Committee a couple of weeks ago that something should be done.

One thing that is done by the Bill is enabling unused authorisations to be more easily cancelled, but that does not solve the problem when there are still used authorisations. This is a problem that has long been known about and does not affect only unscrupulous businesses. Therefore, the amendment aims to make it quite clear to consumers what the situation is in three ways.

First, authorisation must not be referenced in any communication, including on letterheads or websites, as a reputational guarantee regarding non-regulated activity. In practice that should mean the ending of straplines. Secondly, when non-regulated activity is being conducted, that must be made clear, together with an explanation that it means that access to the Financial Ombudsman Service and/or Financial Services Compensation Scheme is not available. Thirdly, it would be an offence to imply that a non-regulated activity is covered by an authorisation.

The first two provisions relate to authorised firms aiming to stop the halo effect in as far as that is possible. I do not expect firms to write to clients saying, “This is the rogue side of our business”, but I hope that clients will be more aware that that might be so. The third point is a general point and would apply beyond regulated firms, but my aim is to catch passive implications, so that active steps to inform have to be taken.

The amendment has been drafted to make the point clear, rather than as a perfect draft to weave in among other regulatory provisions, and I hope that the Minister will take up the idea and recognise that reducing a problem by eliminating surplus authorisations does not reduce the problem to its smallest possibilities.

Turning now to the duty of care, I want to add that a duty of care should apply to the regulators as well. Of course, they say that they act in the public interest, but they are every bit as aggressive about protecting themselves—of all things from the public and from liability—as the firms that they supervise. My view of this is simple: “If you don’t live by it, you don’t really understand it”.

If one examines the responses to the FCA’s discussion paper in July 2019, the majority were in favour, two of the main reasons being that it was critical to triggering a fundamental culture change away from asking “Is this within the regulations?” and into “Is this right?” Secondly, it would give a duty to avoid harm that would incentivise firms to evaluate consumer risk at every stage.

What is not to like in that? It seems that just a handful of respondents did not want any more than was already in those principles about treating customers fairly. But they were very much in the minority and, sadly, it seems that some of those in favour of a duty of care are not in favour of it being actionable. I am in favour of a duty of care, I am in favour of it being actionable and I am in favour of it applying to regulators as well, because something is going wrong all round and, frankly, I find the FCA’s hesitancy a matter of serious concern.

--- Later in debate ---

[Baroness Penn (Con)]

My Lords, I believe that contribution has put another side of the argument. It is the balance between these two perspectives that the Government seek to strike. We also think the FCA is in the right position to strike it, with its obligations to protect consumers and its detailed understanding of the markets that it regulates.

[Lord Sharkey (LD) [V]]

My Lords, I thank all noble Lords who have spoken on this group and I note a largely positive view of a duty of care. I thank the Minister for her response. Her counterpart in the Commons took 58 words to respond to a similar proposition; the noble Baroness took more than that, but notwithstanding the length of her response I was not convinced by any of her arguments. Many of them seemed much like medium to long grass.

The case for a duty of care still seems clear and urgent. Essentially there are, as we said, five key reasons for adopting the duty. The first is that FSMA does not protect consumers adequately; the second is that the FCA is always playing catch-up. The third reason is that poor behaviour by firms continues, as I set out in my opening remarks. The fourth is that getting redress after the event is time-consuming and very stressful, and the fifth is the incentive for real and lasting cultural change in our financial services industry. All these seem to be conclusive arguments in favour of a duty of care.

The Minister’s arguments against seem to have a strange Alice in Wonderland quality to them. They amount to saying that it is not in the consumer’s best interests that financial services firms should be obliged to act in the consumer’s best interests. That simply cannot be right. We will return to this issue on Report but, in the meantime, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Baroness Neville-Rolfe (Con) [V]]

My Lords, I will speak to Amendments 6 and 7 in my name and that of my noble friend Lord Trenchard, who has a lifetime of experience in the financial services sector and understands the whole issue of competitiveness and UK influence from banking for many years in Japan. I am so sorry that because of procedural changes he is now unable to speak to these amendments.

I refer to my interests in the register, particularly as a non-executive director of Secure Trust Bank plc in Solihull and of Capita plc and as a member of this House’s EU Financial Affairs Sub-Committee. I was especially sorry to miss Second Reading of this very important Bill.

These amendments—like the one moved by my noble friend Lord Blackwell and those in the name of my noble friend Lord Bridges—introduce a competitiveness objective for the FCA and PRA. My Amendment 7 also applies to the Bank of England itself. My amendments differ because they spell out aspects of competitiveness that I know are important from a lifetime in business and from nearly three years as UK Minister attending the Competitiveness Council in Brussels.

Of course, consumer protection, stability and standards are important, but they are very well looked after in the structure of financial services regulation, even if the regulators do not always deliver or enforce properly, as we have heard from the noble Baroness, Lady Bowles. I come from a different perspective. Those of us with an understanding of economics know that needless red tape, inefficiency and lack of care for UK interests end up hurting UK consumers with prices that are higher than they need to be, delays that frustrate, and a failure to get things right first time. These also hamper innovation and productivity growth, two of the best ways to both benefit consumers—and I come from a consumer background—and stay ahead internationally.

This matters today even more than in the past. Financial services are the leading sector in the British economy, not only in London but in many other areas of the UK: Edinburgh, Cardiff, Newcastle and Birmingham, to name but a few. In the wake of coronavirus, Brexit and international competition, we need to treasure and enhance our leading position. France, the Netherlands, Germany, Ireland and Luxembourg are trying to steal our lead—but ineffectively, as this hurts their business and consumers and encourages investors and services to move to New York or Singapore. As Mr Barney Reynolds has argued, we must look again at the legacy of EU law, and I know my noble friend Lord Trenchard will have more to say on his ideas on another day.

We must not forget one point: small and entrepreneurial businesses are the backbone of this country. Everyone should remember that the big, powerful multinationals find it relatively easy to adapt to new regulations, rules and requirements, and to lobby for arrangements that suit their interests.

We must also create a benign climate for innovation, which is a vital part of improving efficiency. There is one great example: the Financial Conduct Authority’s so-called “sandbox”—clear, simple and easy regulation for fintech. Thanks for this are due to the current Governor of the Bank of England, but Mr Bailey and I were promoting this as good practice in India four years ago. It is dispiriting that there are not more such initiatives.

As my amendment states, we need “efficiency” and “competitiveness” in the interests of UK plc to feature in the purview of our regulators. A competition objective is not enough; indeed, it can sometimes harm smaller players, driving them bankrupt and causing problems for their customers, as bigger institutions mop up and take over their client base. Competitiveness is sometimes wrongly associated with bad aspects of globalisation. That is wrong: UK competitiveness is what this country now needs to strive for to support the UK base, rather than encouraging the sale of wonderful companies such as Arm to overseas interests. Alex Brummer has argued this forcefully in a series of books, and I agree with him.

While we come at the issue from different angles, I really do want my noble friend the Deputy Leader to listen to those of us who are seeking a change to the Bill to bring in considerations of “competitiveness”. So I will finish with the word’s dictionary definition:

“1. Possession of a strong desire to be more successful than others … 2. The quality of being as good as or better than others of a comparable nature.”


What could be better than that?

[Lord Sharkey (LD) [V]]

My Lords, Amendment 2, in the names of the noble Lords, Lord Bridges and Lord Blackwell, and the noble Viscount, Lord Trenchard, provides an opportunity to reopen an issue that was settled in 2012 by Parliament deciding against adopting a version of what their Lordships now propose.

Their amendment does not come as a surprise, not just because this Bill provides an obvious vehicle for its proposals but because it fits into the usual timescale of loss of institutional memory. Prior to 2012, we had a “have regard” on competitiveness built into FiSMA 2000; it required the FSA to have regard to

“the international character of financial services and markets and the desirability of maintaining the competitive position of the United Kingdom”.

This “have regard” was widely seen as contributing to the financial crash of 2007-08, which is why FiSMA was amended in 2012 to remove it.

During the discussion around and preceding its removal, there were some very forceful observations; three deserve particular attention. The first was from the Treasury, which, in its 2010 report, A New Approach to Financial Regulation: Judgement, Focus and Stability, said that there was strong evidence that

“one of the reasons for regulatory failure leading up to the crisis was excessive concern for competitiveness leading to a generalised acceptance of a ‘light-touch’ orthodoxy, and that lack of sufficient consideration or understanding of … complex new financial transactions and products was facilitated by the view that financial innovation should be supported at all costs.”

Pension Schemes Bill [HL]

Lord Sharkey Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd March 2020 Grand Committee

[Baroness Bowles of Berkhamsted]

My Lords, I am conscious that, in the two groups we have already discussed, we have touched quite thoroughly on the background that inspired my amendment. The Minister has explained several times that it is the intention that this legislation is flexible, that because of the ability to make regulations it can develop over time and that many of the things that noble Lords have already been pressing for are potentially in the mind of government. There was a similar discussion at an all-Peers meeting a couple of weeks ago, which several noble Lords—in particular, the noble Baroness, Lady Sherlock—were at and which inspired this probing omnibus amendment that puts together all the things we discussed in that meeting and a few more. I do not see that it in any way competes with the amendments about the content of regulations or the SCA being the dashboard regulator.

The purpose of this amendment is to discuss how to make certain that there will be joined-up, end-to-end coverage by the regulator and the regulations—or in supervision, as the noble Baroness, Lady Sherlock, expressed it. Again, I am sure that it is the intention for a lot of this to happen—there are certainly enough powers in the Bill to do it—but there is nothing yet in the Bill to make it certain. I acknowledge that things have been said but that is not the same as having something in the Bill.

It has been said that a lot of these things might develop as a result of consultations with industry groups. If industry groups decide that they do not want some of this, what happens? There needs to be a basic obligation that these things will be covered—in particular, as my amendment envisages, if we are getting to the point where we have commercial dashboards. If these things are not resolved by the time we get them—it looks as if we might be getting them anyway, not after a delay—I do not think that it is satisfactory to have nothing in the Bill.

To ensure end-to-end regulatory coverage for the process of loading information on to dashboards to the dashboard itself and for any consequential actions arising from the dashboard, my wish list, or probing list, covers: dashboard operation; information; data; advertising and revenue generation; redress mechanisms; fraud mitigation, which the Minister has already mentioned; content; presentation; assumptions; valuations; projections; risk; comparison; third-party revenue charges; and commissions and their effect on projections.

Noble Lords said on the previous group that it is difficult to have information about charges because they are done in different ways and are the be-all and end-all. That in particular is why I have said that the effect of the charges should be given because that is where you can assess them. If there are lots of different mechanisms and they can make things weaselly wordy or look wrong, they should not be able to disguise the cash effect of the charges that can be extracted. That is probably more important than saying what the charges are. I do not think that this is in conflict with anything else that has been said today.

However, what happens if there is a data breach? That might be a matter for the Information Commissioner. It might be automatic or a matter for redress by the financial ombudsman. These mechanisms are all out there. How will they join up? We want to know for certain that they will. Nothing in my amendment suggests how this must be done; it just says that it must be done.

While mentioning the FCA, we need to be clear that unless it is told categorically in legislation or regulations that something is regulated, it will not consider it as within the regulatory perimeter. As I have said previously, it regards that as a matter for government and Parliament to authorise. An example is that although the FCA covers conduct in banks—which, as we well know, are also heavily regulated by the Prudential Regulation Authority—banks can do quite a lot that, although they have that heavy regulation, falls outside the regulatory perimeter for conduct. Commercial lending is one example. People tend to trust regulated entities but then do not realise that things that do not have that supervisory and conduct backing can be done. It is necessary to dot the “i”s and cross the “t”s here.

For example, it might be that the phrase “Click here to transfer your pension” would be covered, but as the noble Baroness, Lady Altmann, hinted in her previous suggestions, would it be against the regulations to say, “Click here and buy a Maserati”? It was once suggested that that might happen with pensions freedoms. What about equity release for double glazing and conservatories, which feature heavily in the advertising about equity release? If we do not cover advertising and the FCA does not, who does? It must be covered. It cannot be left open. My amendment aims to draw attention to these matters through my list. I will obviously be interested to hear the reply.

However, when it comes to drafting regulations—again, this has relevance because the Minister has already mentioned it—there should not be too much left to the regulatory rules. They can create holes, especially after the regulator has consulted the people it is attempting to regulate. I touched on that in a debate last week, when I explained how regulators’ rules—FCA rules, to be precise—had watered down the generality of “fit and proper” as a test for behaviour. It is by no means the all-encompassing test that was originally intended; it was narrowed down by the rules of the regulator.

When it comes to pensions, I therefore want a belt-and -braces approach. As I said, I have attempted to draft something that sweeps together all the concerns in a probing, omnibus-type way; I will not go through the list because quite a lot of it has already featured in our debate today on previous amendments. I do not aim to say how it is to be done but I suggest that when there is to be a commercial dashboard, the regulations must be done for all these things. I believe that that is what the Government say they will do, but it is better to have it on a piece of paper inside the Bill. I beg to move.

[Lord Sharkey (LD)]

My Lords, my noble friend’s amendment, among other things, speaks about advertising. The underlying question about advertising, however, is surely why allow it at all? That was touched upon by the noble Lord, Lord Vaux, and the noble Baroness, Lady Altmann. You can see the benefit, obviously, to commercial dashboard providers: another revenue stream and/or the cross-selling of their products. However, it is hard to see why the customer would want yet another advertising channel while there are already thousands—perhaps tens of thousands—of advertising channels. What really is the benefit to the consumer; or perhaps more accurately, what really is the risk-benefit balance for the consumer created by the existence of advertising on commercial dashboards? What assessment have the Government made of this risk-benefit balance? If the answer is none, perhaps they should consider doing exactly that. I am curious about whether the Government have, in fact, indicated to potential commercial dashboard providers that they will be able to run ads on their dashboards. Is there some implicit quid pro quo going on here?

[Baroness Drake]

My Lords, I have some sympathy with the noble Baroness’s amendment in wanting to set out in regulation, rather than rely on regulatory rules, some of the things that will be required to make the dashboard function well. I suspect that there are three drivers behind that sentiment. One is that, in this market, the providers are particularly dominant: there is not an equality of arms when it comes to seeking people’s opinion or influencing government policy. Secondly, the FCA itself recognises that it is very difficult to get a functioning market and that it needs to think more and more about intruding in controlling providers’ supply-side behaviour. Thirdly, although the Government understandably want to rely on consultation, those consultations can be dominated by the providers in this market.

Very often, some of the raw consumer issues somehow do not come to the surface and the consumer groups often do not have sufficient resources to do the kind of detailed analysis that a submission requires to pull out some of the fault lines when these things are looked at through a consumer perspective. Members of the public are not going to participate because they simply do not understand what the issues are in relation to their interests until they experience them. I therefore have a lot of sympathy, leaving aside the precise wording of this amendment. The Government need to understand that sense of those three sentiments that often drive many of these amendments: the providers are over-dominant; even the FCA recognises the need for greater intrusion on providers in the supply-side; and consultation is often not an effective remedy for sufficiently capturing the consumers’ interests. Therefore, the more that is put in regulation, the better.

--- Later in debate ---

Moved by

[Lord Sharkey]

79: After Clause 124, insert the following new Clause—
“Consumer protection on pension drawdown or transfer
(1) Pension scheme providers must not comply with an application of a member of a scheme to transfer their funds out of the scheme into another pension or to exercise the right to take a cash equivalent transfer (under section 94 of the Pension Schemes Act 1993) unless –(a) the member demonstrates that he or she has received independent financial advice from an authorised or regulated independent adviser pertaining to the proposed transfer out of the scheme or exercising the right to cash equivalent, or (b) 60 days have elapsed since the application was made in writing, or(c) the member has provided responses to approved questions laid down in regulations to ascertain whether the member has detailed knowledge of the scheme to which rights are being transferred and whether the provenance of the transfer request originated from an unsolicited phone call or other unsolicited communication.(2) The condition in subsection (1)(a) may be satisfied by written confirmation from Pension Wise that they have given guidance to the member either orally or by other means relating to this transfer or cash equivalent transfer request.”

[Lord Sharkey]

My Lords, many of the problems faced by our pensions system are to do with drawdown and transfer, some of which we have just discussed. This amendment would introduce a cooling-off period to help to reduce these problems and increase the frequency of taking independent financial advice and Pension Wise guidance.

The FCA recently surveyed our pensions landscape in its excellent Sector Views, published two weeks ago. The introduction noted:

“Key issues causing consumer harm include unsuitable advice, the sale of unsuitable products, poor value across the value chain and pension scams.”


The gravity of these things led the regulator to conclude:

“From a wider perspective, the prospect that consumers may not get a retirement income that meets their needs or expectations remains the central challenge.”


This is entirely appropriate, given the scale of consumer harm.

The review estimates that unsuitable transfers out of DB schemes could collectively result in losses of up to £20 billion-worth of guarantees over five years, that consumers making unsuitable product choices in retirement could also collectively lose £20 billion from unsuitable investment strategies over five years, and that more than 15 million consumers of NWP pensions and retirement income products could be affected by poor value pension products. The compound effect of high charges could lead to consumer benefits being reduced by more than £40 billion over five years.

All this is worrying enough, but on top of this, there are the scams. Consumers who are scammed lose, on average, 22 years’ worth of pension savings. That is around £82,000 each. There are also warnings for the future from Australia’s more mature DC market. There we see that economies of scale are not being passed on to consumers and that poorly governed investments in alternative asset classes are leading to lower returns. There are also higher costs associated with the proliferation of small pots, created each time a worker moves jobs.

All these factors are at play now in the UK, and we have special factors of our own to contend with. For example, the FCA has found that 29% of pension transfer advice was unsuitable and that 23% was unclear— or, to put that another way, more than 50% of transfer advice was unsatisfactory. The FCA planned to write to 1,841 financial advisers about potential harm in their DB transfer advice. That is 76% of all advising firms—a truly alarming development and an unacceptably large number.

The problem with bad advice is a present and clear danger; so is the problem with unadvised and unguided drawdowns and transfers. Since we last addressed this problem in the Financial Guidance and Claims Bill, FCA data suggests that more than 645,000 people have accessed their pensions. Of these, only a tiny 15% are believed to have had a Pension Wise appointment before accessing their benefits. More than half of the pensions accessed by savers for the first time between April 2018 and March 2019 saw the saver withdraw the maximum amount. Perhaps even more worryingly, the FCA’s latest data shows that for retirees taking a regular income from their pensions, 40% were taking out cash at an unsustainably high withdrawal rate of 8%-plus. This 40% rises to 63% for those with funds of less than £50,000. That is the road to destitution.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Sharkey, and my noble friend Lady Altmann for tabling this amendment because it provides me with an opportunity to update the Committee on the progress that the Department for Work and Pensions, the Financial Conduct Authority and the Money and Pensions Service have made on delivering the stronger nudge to pensions guidance. As noble Lords are aware, this is a requirement of Sections 18 and 19 of the Financial Guidance and Claims Act 2018.

Before that, however, I would like to talk briefly about the take-up of Pension Wise guidance, which is a very positive story. The service is on target to exceed 200,000 guidance sessions this financial year, more than tripling those in its first year of operation. Recent Financial Conduct Authority data suggests that 52% of personal and stakeholder pensions accessed for the first time in 2018-19 received either regulated advice or Pension Wise guidance. That clearly demonstrates that the work the Money and Pensions Service, Government and the industry are already doing to promote both Pension Wise guidance and regulated financial advice is working.

I would like to talk about the measures in the Financial Guidance and Claims Act 2018 which were designed to further increase the take-up of Pension Wise guidance. Sections 18 and 19 require the Government to deliver a stronger nudge to pensions guidance. As the Committee is aware, MaPS is testing options for the best way to do that, in a way that complements the suggestions made by the noble Lord, Lord Sharkey, during the passage of the Act that his amendment was

“designed to be a nudge, rather than any kind of probably unenforceable or counterproductive compulsion.”—[Official Report, 31/10/17; col. 1294.]

As noble Lords are also aware, the drafting of Sections 18 and 19 was influenced by the Work and Pensions Select Committee. Following trials, those sections will deliver a final nudge to consumers to consider taking guidance prior to accessing their pension.

The Government firmly believe that, to effectively prompt more people to take guidance before accessing their pension where it is appropriate, we need to understand the impact of the nudge, and ensure that we avoid creating perverse incentives. We do not disagree with the principles of the amendment—work is already under way to establish how best to ensure that people thinking about accessing their pensions are encouraged to take guidance. We believe it is essential to use the evidence base that the trials on a stronger nudge will provide, and to consult before implementing the primary legislation in the Act. We would welcome the thoughts of the noble Lord and my noble friend on the proposals in the consultation.

The trials to test the most effective way to deliver on Sections 18 and 19 are due to conclude shortly, and an evaluation report is expected to be published by MaPS this summer. We are working to deliver on the requirements of the Act as quickly as possible, and as such we are already preparing for a public consultation this year. The Financial Conduct Authority will also consult on rules that have regard to these regulations, to make sure that there is consistency between occupational pensions and personal and stakeholder pensions.

The noble Lord seeks to require a member to provide responses to questions before a transfer can proceed. The effect of the amendment is that trustees would have the power to refuse a transfer should members’ responses not meet the conditions which the amendment proposes should be set in regulations. I assure him that the Government are already introducing conditions that seek to safeguard members against the risk of being defrauded. That change will strengthen trustees’ discretion in respect of transfers. Transfers were discussed in the earlier debate on Clause 124. The Government are amending members’ statutory right to transfer, to allow conditions to be imposed for transfers between schemes. That is aimed at ensuring that transfers are made to safe destinations. Non-statutory transfers can still take place, if the scheme rules allow. However, the amendment puts responsibility on members, not trustees, to assess the appropriateness of the receiving scheme. If the questions to be asked of members are specified in regulations, as proposed new subsection (1)(c) requires, an unintended consequence could be that fraudsters will be enabled to game the system. Members could be coached to provide answers that lead to transfers that should have been refused.

As noble Lords will recall, we have banned cold calling on pensions in legislation and established Project Bloom: a joint task force between government, regulators and law enforcement to share intelligence, raise awareness of scams through communications campaigns, and take enforcement action when appropriate. The FCA and the Pensions Regulator launched the latest ScamSmart advertising campaign on 1 July 2019, which has targeted those approaching retirement, as they were identified as being most at risk from scammers. There is also an FCA warning list, an online tool that helps investors check if a firm is operating with the right authorisation and find out more about risks associated with investment.

The noble Lord raised a specific concern about transferring out of DB schemes. Since January 2018, following its work on the British Steel pension scheme, the FCA has been working closely with both the Pensions Regulator and the Money and Pensions Service to ensure that it monitors pension transfer activity in DB pension schemes that might be subject to increased transfer activity. Also since January 2018, the FCA has issued tripartite letters to over 50 defined benefit pension scheme trustees. The tripartite letter reminds scheme trustees of their responsibilities when issuing transfer values to members and requests them to provide data that allows it to monitor scheme activity. On 21 January 2019, the FCA published a new protocol for how the three organisations—the FCA, TPR and MaPS—will work together to share information and work with pension scheme trustees, and that protocol addresses many of the recommendations made in the Rookes report.

I want to touch on one other point raised briefly by the noble Lord, Lord Sharkey. He suggested that the new pension freedoms might be encouraging people to draw down savings too fast, putting them at risk of scams. In fact, the Financial Conduct Authority’s Retirement Outcomes Review did not find significant evidence of consumers drawing down their savings too fast. The study’s findings, published in June 2018, found that most of those withdrawing had some other form of retirement income or wealth.

Clearly, it is of the utmost importance that information and guidance are available to people and that they are aware of it. That is why there are now more opportunities for people to access guidance earlier in the pensions journey. Alongside the stronger final nudge trials, Pension Wise continues to run successful advertising campaigns across multiple channels, as well as working with employers nationally and locally to encourage them to engage with their employees at their place of work. The Financial Conduct Authority’s “wake-up” packs also encourage people to think about their pension options and include signposting to Pension Wise.

I reassure noble Lords that we are very aware of the importance of the need to make progress with implementing the requirements placed on government, the Money and Pensions Service and the Financial Conduct Authority, as set out in the Act. Our aim is to find an effective and proportionate way to do this.

To conclude, I accept that this work might not have progressed as quickly as perhaps noble Lords would like, but that is for a good reason. I believe it is very important to get this right and ensure that the policy is developed based on evidence. We always talk about evidence-based policy and this is a classic example of that. The trials will conclude very shortly and will be followed by an evaluation report. We will consult this year and will seek to lay regulations as soon as possible after that, alongside the rules that will be made by the Financial Conduct Authority.

For the reasons I have explained, I hope that the noble Lord will feel able to withdraw the amendment.

[Lord Sharkey]

I am very grateful to the Minister for that very comprehensive answer. There are one or two observations that I would like to make about components of the answer. We seem to disagree about quite what the reach of Pension Wise is. The Minister quoted a composite figure of, I think, about 52% in Pension Wise and other advice. The figure that I had was, as I said earlier, about 15% using Pension Wise.

I was also interested in the comment about whether the current drawdown rate was sustainable. The Minister might recall that in the original discussions on the pension freedoms Bill, the foreseen sustainable drawdown rate was 3%. Now, it is running at 6% and 8% for pots under £50,000. Although I admit that I might be mistaken about this, I think that the FCA may in fact have said that 6% was not sustainable in the longer term either. Therefore, I think that there are warning signs about the rate of drawdown.

I had one other question about the nudge programme. I know that two schemes are being tested against each other, in an absolute sense as well, but when this programme was designed, did it incorporate a level of success at which a rollout would be justified? I would be interested to know if that were the case—I think it should be—and what the number was for these schemes. What would trigger a rollout nationally of these two small tests? I mentioned the FCA and the investment pathways initiative. Can the Minister write to me with more detail of what is happening with investment pathways; that sounded a very promising way of coming at the problem.

Finally, there is the question of timing. Timing is behind a lot of what I was saying. It is a long time since we started on the Financial Guidance and Claims Bill and debated all this thoroughly here and in the other place. We are still not in a position to do as much as we wanted about providing guidance or advice at drawdown. A very long time has elapsed, and I have demonstrated the harms being done to consumers in the meantime by ill-judged drawdowns or transfers. I continue to worry that these timetables will slip and the harms will continue. I am reassured by the Minister expecting a result from the nudges in summer—which I take to be ending in September—and then to move as quickly as we can to implement it, if it is a success. Perhaps he and I can have a conversation later; I would be interested to know what plan B is, because it is possible that neither of those nudge trials produces what is needed. Having said all that, I beg leave to withdraw the amendment.

Amendment 79 withdrawn.

European Union (Withdrawal) Bill

Lord Sharkey Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Sharkey (LD)]

My Lords, I declare an interest as chair of the Hansard Society, whose briefing has been very helpful in considering the Bill, as has the excellent report from the Constitution Committee. I very much look forward to seeing the imminent report of the DPRR Committee later this week. The Bill represents a massive transfer of authority away from Parliament to the Executive, and such a transfer requires proper constraint via proper parliamentary scrutiny. The question is how Parliament might best secure reasonable oversight and scrutiny of this flood of delegated legislation without frustrating the purpose of the Bill.

Previously, Parliament has insisted that a strengthened scrutiny procedure be inserted into Bills that grant Ministers wide delegated powers: the super-affirmative procedure in the case of LROs; the enhanced affirmative procedure in the case of the Public Bodies Act. There is no such procedure in the Bill, and that is a very serious defect. The Bill adds a novel procedural element to the SI process. It sets up in the Commons a sifting committee to examine all negative SIs, and it will have the power to recommend an upgrade to the affirmative procedure. It can only recommend, though, and that is not sufficient; the committee should be able to require an upgrade. We will want to address this as the Bill proceeds. The Bill contains nothing about how the sifting committee is to arrive at its decisions, and we will want to make good that lack. The Bill proposes a sifting committee only in the Commons. I was glad to hear the noble Baroness the Leader of the House promise to correct that and deliver an equivalent for this House. If a sifting committee in either House decided to upgrade an SI, that should be binding upon the Minister.

I think it is generally acknowledged that Commons scrutiny of SIs leaves much to be desired, but that scrutiny process is left unchanged by the Bill. Sifting is not scrutiny. As usual, detailed and thorough scrutiny will take place in our House, where existing procedures require us to say yes or no—we cannot amend. We will of course be reluctant to invite more visits from the noble Lord, Lord Strathclyde, by exercising frequently, or at all, what may be called the nuclear option. But we should not allow unsatisfactory SIs to grant unsatisfactory powers to the Executive. It would be better to introduce a new power to return an SI to the Commons for reconsideration—a proposal recommended by the noble Lord, Lord Strathclyde, in his report.

It is not just the scrutiny procedures in the Bill that are inadequate, but their scope as well. For example, SIs generated by Clause 17 are not subject to the sifting mechanism, and they should be. There is also the Solicitor-General’s declared intention to use SIs deriving from existing non-Brexit-related Acts to make changes to retained EU law. These SIs need to be brought within the strengthened SI procedures in this Bill. There will be SIs generated by other Brexit Bills. We want all of them to be scrutinised as though they were generated by this Bill. For example, Clause 2 of the Trade Bill contains a negative procedure power to amend retained EU law where that law has the status of primary legislation. The safeguards in the EU withdrawal Bill are absent from the Trade Bill. We will want to change that.

We will also want to look at the urgency provisions in this Bill. As things stand, there are no constraints on the exercise of the “urgent case” power in Schedule 7. Under this power, Ministers can lay a made affirmative instrument which will remain in force unless annulled within a month. We understand why the urgent case power may be needed, but we will also want to understand why in each case. We will require the Minister to explain and justify the use of the urgency power. We will also need to provide safeguards on the use of this power, including defining limits on its use and perhaps involving the sifting committees.

The Bill at least contains sunset provisions. These are for the SIs themselves, not for whatever is enacted via them. It would be impractical to impose a sunset provision on these enactments, but that does not mean that they should not be reviewed. For primary legislation, the Government have to produce a report for Parliament within three to five years of royal assent. We see the case for a similar provision for legislation enacted by withdrawal-related SIs.

This Bill grants Ministers exceptional powers but does not provide for effective scrutiny. That is very dangerous for the quality of the legislation and for the authority of Parliament. I hope we will be able to reduce these dangers as the Bill progresses.