FSA Investigation into LIBOR

Lord Tunnicliffe Excerpts

Thursday 28th June 2012 Lords Chamber

[Lord Tunnicliffe]

My Lords, I thank the Minister for repeating the Statement made in the other place. I would like to open by saying a little about the role of this House. It is probable that we will have to take account of today’s events in amendments to the Financial Services Bill. My view of the first day in Committee on the Financial Services Bill was that it was pretty apolitical and very much about getting the right result for the country. I hope that we can carry on in that way. We will do what we can to co-operate on bringing in any changes. We must, through the usual channels, make sure that there will be time to scrutinise properly.

Turning to yesterday’s events, the first area I shall touch on is what is to be done. The Government have claimed that the Financial Services Bill would have created a different result and would have markedly improved the situation. In the Statement, there is no illustration of what that means. I would value the Minister setting out briefly what parts of the Bill are going to change. I have done my best to try to understand the Bill, and I do not see the obvious areas, but if they are there, we will help get them into law and make sure they happen. If the Minister will set those things out, it would be valuable to the House.

Secondly—I shall stop the numbers because they will go on for ever—the regulation of LIBOR and its derivatives was rejected in the other place by the Minister. I am not quite sure what the Statement says. I think it says that the Government are thinking about it. I would hope that the Minister would be a little firmer than that. Surely these things, which are so important, must come into the regulatory regime and must do so soon.

The Statement talks about criminal sanctions. Criminal sanctions are extraordinarily difficult to bring about because of the burden of criminal law. It is fair to say that you cannot find them in the current legislation, and yes, okay, it is our fault—I hope my leaders do not hear me say that. One of the reasons is that it is extraordinarily difficult to bring criminal sanctions into an area such as this where the criminal burden of proof is so high, but if the Minister can illustrate with a few examples what criminal sanctions the Government are thinking about, once again, we will listen to his remarks very attentively.

Let us move on to the victims. The Statement referred to, I think, millions of families and thousands of businesses. These people have probably lost out financially. What are the Government proposing to do about recompensing them? Are they going to bring in any law, or at least address the balance between shareholders and customers in this very difficult area of financial services? This is a scandal akin to the PPI scandal, and we have to recognise its size.

There is the issue of balance. Forgive me, but I will keep coming back to it. There is the concept that the law should contain a duty of care to customers. We are not yet at that point in the Bill, but I would welcome the views of the Minister about whether we should move across that spectrum towards customers having legal rights if, through their processes, the financial institutions they are trading with have put them at an unreasonable disadvantage. It will be difficult to frame, but we have to think about this balance and we have to be in a situation—for a number of reasons that I will come on to—where victims have real care. Finally in this section, the Financial Services Bill is a good vehicle. It will need co-operation, but we encourage the Government to do it. We must do it in a highly scrutinised way.

What is going to happen to those responsible? I am sure that if there are criminal routes, they will be taken. I point out to Members of the House that, frankly, this is not for the Government. Criminal actions and criminal prosecutions are for the appropriate prosecuting authorities, and I hope we can trust those authorities to pursue any criminal sanctions with due vigour. We would expect nothing less of them, and we will be deeply critical if they do not. The FSA probably has powers short of criminal sanctions against individuals to stop them holding office and so on. It would be valuable if the Minister could lay out a little detail. Are they available? How will they be applied?

The real sanction in this case will be in the hands of the Barclays board. It is for that board to act, and to show it is acting, in a way that sends a message that this bank is going to change how it behaves. The tests set out by the Chancellor are incomplete. It is not a matter of what the chief executive knew or when he knew it; it is what action he took to make sure that he was seeking to know and that there were processes in place to assure him that proper responsible actions were being taken by his traders. Donald Rumsfeld ruminated on this. I cannot quote him exactly, but he said something quite profound: you are responsible not just for your errors but for foreseen risks and also for foreseeable risks. Foreseeable risks are risks where, by having the right structures and systems, you can look into the future and make sure that you have got it right. That is what good auditors do, it is what good risk managers do, and it is what this bank should have been doing. It should have seen these risks much earlier.

We come finally to culture change. I have been in the culture change business. I have not run a great bank, but I ran what I consider to be a great institution that is responsible for 2 million people a day and for their lives. Less than a year before I took over, it had killed 31 people. The result was that the boss at the time was fired, after a proper inquiry, his boss was fired, and I ended up head of that organisation. The key change we made was to ensure that everybody was personally responsible. If a death occurred on the Underground, it was my responsibility. It was my responsibility not to check the particular area, but to be able to assure myself that I had done all that was reasonably practical for such a thing not to happen. Indeed, on most occasions one finds that one has learnt something or has to do something more, but all the way through the management chain individuals have to be personally responsible. That burden of responsibility to probity failed in this case.

In addition, we have to look at the bonus structure. We do not talk about bonuses bluntly enough. Frankly, you introduce bonuses to change behaviours. You change behaviours in what is arguably an acceptably benign way. You get people to work longer hours, with more vigour, to be more inventive and so on, but unfortunately a bonus culture will push you to the edge of regulation. When you do that, you have to make sure that the systems are in place to prevent that push beyond the edge of regulation. That requires enormous care and is an enormous responsibility for the board.

The culture must change in the banking industry and it must change from the top. This board must be seen to take decisive action, as indeed must all boards. This is a very, very serious day. This leaves a stain on Britain. Let us be frank about it: before today, people believed that bankers were greedy and stupid, and, sadly, they now know that they are dishonest. For the financial centre of Europe, that is a pretty unhappy combination. We are calling for the strongest punishment for those who have broken trust and broken the law, tough regulation to prevent such practices and a culture change in our banking industry. We must get our economy working, and we must remove this stain on our reputation and repair it. We on these Benches will do all we can to bring that about as quickly as possible.

Open-Ended Investment Companies (Amendment) Regulations 2011

Lord Tunnicliffe Excerpts

Monday 12th December 2011 Grand Committee

[Lord Newby]

My Lords, this is a fascinating example of the industry asking for regulation that the FSA seems to have been slow to introduce. This is an almost unique experience for the sector, which is normally grumbling that there is too much regulation.

I am intrigued that it is being introduced here purely under domestic legislation rather than within the ambit of any EU cover, and I wonder whether there is any prospect of OEICs, in this regard, being the subject of any of the many EU directives that are currently on their way down the track or being discussed. I note that, at the moment, the jurisdictions that already have this additional regulation are a mixed bag and include Jersey, Ireland and Luxembourg. I find it slightly surprising that it has taken some time for both the UK industry and the Government to get round to implementing this legislation, given that its benefit is that it will improve the competitive position of OEICs in the UK. It seems extremely sensible. I want to confirm what I think the Minister said: that there is no suggestion that this is being introduced because there has been any difficulty with any existing OEICs. Is it purely as a pro-competitive rather than as an anti-competitive measure?

[Lord Tunnicliffe]

My Lords, I make it clear from the outset that we support this order. I am looking forward to the Minister’s answer to the noble Lord’s questions about how the regulations fit in with the EU—questions which are particularly apposite at this moment. I will content myself with a few comments on the impact assessment and two or three questions.

The impact assessment is absolutely fascinating. From my reading of it—and I am happy to be corrected here—the net benefit of the regulations will be between £18 million and £360 million, which is a pretty wide range that will involve lots of sums to prove that. The only point that I feel I can take from the impact assessment is that, in all credible scenarios, the introduction of a protected cell regime will be favourable, and I think that we can all be satisfied with that.

I have just a few questions. First, new Regulation 11A(4) provides for an exception, which is referred to in the Explanatory Note. However, for myself I cannot quite see what sorts of transactions or assets the exception refers to. Like all exceptions, one is always slightly worried that the exception ends up negating the intent of the order. I am sure that it does not, but I pose that question for assurance.

Secondly, as I understand it—once again, I could be wrong—there will be a period in which PCR products and non-PCR products will be on sale at the same time. I may have misunderstood that, but if I am right in that assumption, what actions are the Government taking to ensure that there is no confusion in the marketplace during that period of overlap? I will be happy if there is no period of overlap, but if there is one then it is important that we do not introduce confusion through these very sensible regulations.

Finally, I like reading impact assessments, which is a little burden that I have to carry. The wonderful thing about impact assessments is that I always sense that they are written by rather more junior people— I was going to say with rather less care, but care is perhaps the wrong term—as you get that little hint from things. On page 10, the impact assessment states:

“The UK fund regime has been viewed as less favourable by managers and investors for a number of reasons, with the lack of a PCR being one of them”.

Perhaps the Minister could enlighten us as to what other reasons exist and what, if anything, he is doing about them.

[Lord Sassoon]

My Lords, again those questions were short, sharp and to the point. Let me go straight to trying to answer them.

First, my noble friend Lord Newby asked about the interaction with Europe and what else is coming from Europe. The main thing that I see is an up-side opportunity in the link to the UCITS directive and the push to make sure that UK and other fund managers are able to sell products safely on a pan-European basis. I am not aware of any particular threats, but I am aware that, given the ongoing work that is looking again at the UCITS directive, there is further opportunity to complete the single market. UCITS 4 has just been implemented, and the UCITS 5 proposals that are expected from the Commission in 2012 are likely to include consumer protection measures on, for example, the use of depositories, so these regulations are part of a piece. As my noble friend said, these regulations are certainly pro-competitive but, as I touched on in my opening remarks, they also act to protect investors—they work for both the provider and the user of these products. Just to be absolutely clear, the regulations are being introduced not as a reaction to some disaster or something having gone wrong but because there is an untidiness and lack of clarity that we should tidy up ahead of the game.

I will answer the questions of the noble Lord, Lord Tunnicliffe. First, on new Regulation 11A(4), this refers to assets and liabilities which belong to the sub-funds; they do not belong to the umbrella company but have been billed to it for practical or legal reasons. They then have to be pushed down to the sub-funds. For example, there are certain generic costs such as Companies House fees and VAT for which the umbrella company, as the only entity with legal personality, is responsible but then needs to attribute to the sub-funds. It is put in there not as a means of driving a coach and horses through; it is there to deal with appropriate liabilities in particular, which have to be allocated down below the umbrella.

There was then a question about the transition period. The Government certainly recognise the importance of clarity for consumers. This is one reason why the protected cell regime will become mandatory after the transition period. In that transition period, the FSA rules require OEICs that are unprotected to make this clear in their prospectuses. Once an OEIC has converted, it will declare that it is protected. The FSA considers this approach to be proportionate and appropriate, given the low risks involved.

Lastly, there was a question about the impact assessment and the comment on page 10 about the UK regime being “viewed as less favourable”. Incidentally, this was not an impact assessment that I signed off myself so I had the pleasure of reading it afterwards. I am sure that when the noble Lord, Lord Tunnicliffe, mentioned junior people signing it off, he was referring not to my honourable friend the Financial Secretary or the officials who draft these things but to the authorship. The authorship is every bit as expert as is needed. It is great, anyway, to know that some people read the fine print. This is a long preamble to answering the noble Lord’s question.

The other major reasons why people might see the UK regime as less favourable concern perceived tax treatment of funds. The Government are taking steps to address this. For example, only last week the Government announced that they intend to improve the operation of the tax regime for property-authorised investment funds. This will mean that under some circumstances, investors may exchange their units in a dedicated PAIF feeder fund for units in the PAIFs, and vice versa, without incurring a charge to tax on capital gains at the time of exchange. This was a specific response to industry representations and will improve the competitiveness of the UK funds regime. We are responsive to other issues out there, which are generally around taxation.

I hope that that deals with the Committee’s questions. This is legislation that strengthens investor protection in a way that brings considerable benefits to the competitiveness of the UK as a domicile of funds. I therefore commend these regulations to the Committee.

Financial Restrictions (Iran) Order 2011

Lord Tunnicliffe Excerpts

Monday 12th December 2011 Grand Committee

[Lord Newby]

My Lords, I thank the Minister for the clear introduction that he has given to this measure which seems, broadly speaking, to be proportionate. I have just one question. To what extent will Iranian banks be able to continue doing business here direct with companies as opposed to with UK financial sector bodies? I think that the Minister said that they will be able do that. If so, have the Government given any consideration to freezing the operations of Iranian banks so that they simply cannot do any business out of the UK?

[Lord Tunnicliffe]

My Lords, the Minister will be delighted to know that we support this order. I would like to thank him for his introduction and to say that he has certainly satisfied any questions that I might have had on the technical side of the banking—not that I am particularly qualified to be able to ask him any questions on that. This is, essentially, a foreign policy issue and I will say a word or two on what has led to this very strong action, which we support.

We are contemplating a nuclear-capable Iran, the consequence of which would be dire. It would destabilise the region; it would cause other states to react; it would probably put the non-proliferation treaty under pressure—perhaps terminal pressure—and, of course, it would lead to an increased possibility of the use of nuclear weapons. The military solution that has been talked about in some international circles is no less dire. The idea of a simple, surgical strike is almost certainly unreal and we may well see ourselves in military conflicts whose breadth and depth are quite appalling to think about, stretching from Hezbollah as one actor through to Saudi Arabia, the Emirates, Israel, US facilities in the area and, as ever, the Strait of Hormuz.

Fortunately, actions taken to date that are short of military actions are being successful. Most commentators seem to view them as successfully holding Iran some two years away from capability. This order is part of that widespread non-military action that international states are taking to keep Iran away from that capability. Nevertheless, the seriousness of this order and the reaction to it in Iran is illustrated by the probability that the attack on the British embassy in Tehran was stimulated by it. I pay tribute to the bravery of our staff in Tehran during the violence that they were subjected to in that difficult situation.

Having looked at the FCO’s statement, it seems to me that the order has a twin-track set of reasons. The first is the International Atomic Energy Agency's latest report on Iran, highlighting fresh concerns. In situations such as this, I always like to try and turn to the source information. The document that it refers to has 25 pages and is quite chilling reading, if one knows anything about nuclear weapons. The general view is that nuclear weapons are about getting enough nuclear material but they are much more difficult than that. They are about clever explosives, hydrodynamics and all that sort of thing. Just flicking through the report, the chilling thing is to see the amount of energy that Iran is apparently putting into that technical side of making a bomb work.

Sadly, one of the problems with the IAEA is that while it is a very capable body, at the end of the day it does not have the ability to instruct people to do things. If you actually read its resolution, it uses words such as press, stress, urge, express and commend. The only thing that it decides to do is to remain seized of the matter, so I would be grateful if the Minister could express to me just how widely this concern, which I think was expressed on 18 November this year, has been followed up by other countries. Can he flesh out any more detail of the actions on it that other countries have taken?

Taxation of Equitable Life (Payments) Order 2011

Lord Tunnicliffe Excerpts

Tuesday 7th June 2011 Grand Committee

[Lord Tunnicliffe]

My Lords, I, too, thank the Minister for his concise overview of the position and for introducing the order. We support the action that the Government have taken on this whole issue, and we accept that, although we may have different views about the approaches taken, speed is of the essence and the order should go through. We know that during the passage of the primary legislation there was some debate on the quantum, but ultimately Governments are in the business of making decisions and we recognise the decision to set the payment scheme at £1.5 billion.

In the original debate there was some concern about the allocation to the group of with-profits annuitants. The general principle that they should be protected against the comparison at 100 per cent was consensual. However, as my noble friend Lord McKenzie said in the debate:

“If relative loss is calculated on a gross-of-tax basis and the post-1992 with-profit annuitants are kept whole on this basis, will not the tax exemption go further than full reimbursement?”.—[Official Report, 24/11/10; col. 1152.]

I accept the case that has been made for simplicity but, in terms of the balance between the two pots, are the Government comfortable that this has not created an anomaly between the with-profits group and the non-with-profits group?

I join the noble Lord in seeking further information on the progress of payments but, aside from that question and perhaps the matter of an enhanced progress report, we support the order.

[Lord Sassoon]

My Lords, first, I thank my noble friend Lord Newby and the noble Lord, Lord Tunnicliffe, for their helpful contributions to this short debate and for supporting the order. The making of the order is a crucial step towards making the first payments at the end of the month.

I shall address the questions that have been raised by my noble friend Lord Newby, followed up by the noble Lord, Lord Tunnicliffe, about how the timetable will unfold. As I said, the first payments will commence by the end of this month. It is then expected that payments to all traceable accumulating with-profits groups and conventional with-profits policyholders will be made over the first three years of the scheme. Payments to with-profits annuity policyholders for past losses will be spread over the first five years of the scheme, while annual payments for future losses will commence in year one and continue for the lifetime of the policyholders. All individual policyholders can expect to hear from the scheme in the first year—that is, by June 2012. As I think I said, for certain classes of policyholder closure of the process will be within three years; for others, five years; and for one class, as I identified, over their lifetime. I hope that that makes the position clear in respect of the several different classes of policyholder.

In response to the question of the noble Lord, Lord Tunnicliffe, on why tax relief is being granted on payments to with-profit annuitants who will have received 100 per cent of their losses covered by the scheme, losses for with-profit annuitants have been calculated on a gross basis. As I have just said, unlike other policyholders, those annuitants will receive their payments over time and we will not be paying any interest on those payments between the date of the calculation—December 2009—and the date of receipt. Disregarding the payments for tax will offset the effect of that payment schedule and the absence of any interest. It is important to note that these payments are in respect of losses that go back over nearly two decades and it would be an incredibly complex and burdensome task to work out what the tax positions for individuals would have been at the relevant time. As has been recognised, the scheme needs to be simple and not unduly complex. In recognition of that, we have decided to make the payments tax free. In the round, we do not believe that this will result in overpayment for with-profits annuitants, given the offset that I have identified.

Briefly, as regards reporting on the progress of the scheme—an issue that was briefly touched on by the noble Lord, Lord Tunnicliffe—progress will be tracked and evaluated throughout the lifetime of the scheme, and I envisage that a number of reports will be produced, including in relation to the management of contracts, operations and risks. I am happy to give reassurance that the Government will give Parliament regular updates on the progress of the scheme.

We have come a long way in the past year to redressing the losses that Equitable Life policyholders have suffered over the past decade. Following the coming into effect of the order, a communications strategy is in place so that all recipients will be informed that their payments are to be tax free, and that they do not have to report them for tax purposes. In addition, HMRC helplines, and the staff at payment scheme call centres will be provided with lines to take so as to answer any questions on the tax treatment of these payments. I am grateful for the Committee’s support.

Budget Responsibility and National Audit Bill [HL]

Lord Tunnicliffe Excerpts

Monday 8th November 2010 Lords Chamber

[Lord Tunnicliffe]

My Lords, I thank the noble Lord, Lord Sassoon, for introducing the Bill so clearly—he confirmed that, fortunately, I have managed to read it with reasonable accuracy—but he also introduced a number of other points and promises in relation to a framework agreement and potential memorandums of understanding. It is very important that he should produce those, in draft at least, before the Committee stage.

I will touch on other contributions to the debate. Like the noble Lord, Lord Barnett, I was pleased that it was largely non-political or at least non-party political. The noble Lord, Lord Newby, had a little poke at us but made the important point that we all want to work together so that reports, as we have in the NAO, enjoy public confidence. He also brought out the whole issue of what the non-executives will really do.

The noble Lords, Lord Turnbull and Lord Burns, put the political interference issue in perspective, using the rather nice term “wishful thinking”, which is probably a fairer way of reflecting how politicians have been involved—in practice, somewhat reluctantly—with responsibility for forecasts. Broadly speaking, we support the OBR because of the extent to which it will take politicians out of that. The noble Lord, Lord Turnbull, made important points about the need to challenge and to have consistent presentation so that data are easier to use year by year, policy by policy and change by change.

A bit uncomfortably I even found myself agreeing with many of the points made by the noble Baroness, Lady Noakes. I, too, would like to see two Bills. Indeed, we are proposing that there should be two Bills. We take the point that writing one’s own school report has a certain lack of comfort about it. We will be probing and pressing strongly in Committee the whole issue of who audits the auditors—who does the peer review—to achieve an appropriate mechanism for a review of the whole thing. I think that her contribution was very useful. Many noble Lords came forward with the idea that we must have more clarity of what the non-executive directors do.

The noble Lord, Lord Myners, moved on to the issue of independence, which is key to this proposal. This is about the Treasury’s involvement. I know that the Treasury is a wonderful place, but when I was a public servant the word “Treasury” gave one a little cold feeling round one’s heart. It has an ability to permeate its influence through the staff and the charter. The general point made by the noble Lord, Lord Myners, about the Treasury, the staff and the charter is important. I am sure that it is not the Government’s intention to influence the OBR through the charter or the staff, but there may be another Government, with a different attitude, who may find those tools usable.

The noble Lord, Lord Myners, mentioned the word “sustainability”. The word “sustainability” is one of the most worrying things in the Bill, because it is presented as if it is a well defined term. It is not; it is very much a matter of what outcomes you want to be sustainable. We will need to probe that in Committee.

The noble Baroness, Lady Browning, and the noble Lord, Lord Touhig, clearly have enormous experience of the NAO and I thank them both for their contributions. We will be reading them with care to see whether there are points that we need to probe in Committee through amendments. I have to say that, at first look, the NAO part of the Bill seems fairly straightforward, but it is important that we have the experience of two such contributors to make sure that we get enough depth.

The noble Lord, Lord Burns, as well as putting the whole issue of politicians’ involvement in its proper perspective, raised the big question of how we solve this problem: what are the appropriate degrees of separation and what do we mean by “independence”? He called it “remit creep”; I would call it “mission creep”. It is important that we probe what the size of the mission should be in the Bill. I shall be reading Hansard with great care. The noble Lord started to flesh out what these non-executives might do and made the important point that, in the Bill, not only do we need the word “independent”—it happens not to be there, but at least the concept is—but we must have the resources, the money and people.

The noble Lords, Lord Higgins and Lord Barnett, both asked the real question: do we need this at all? We on these Benches think that we do, as a step forward, but there is the whole issue of what it adds and how it usefully contributes. It will have a good brand, but it also needs review, audit and debate involving those who have different points of view.

[Lord Higgins]

The noble Lord was right to say that that is what the noble Lord, Lord Barnett, said. I do not think that it was what I said overall; I just had a qualification with regard to particular parts.

[Lord Tunnicliffe]

I apologise to the noble Lord to the extent that I misinterpreted his words. I certainly agreed with two important points that I think he made—he may have to correct me again. I apologise; my note-taking may not be very good. I think that he strongly made the point about publishing assumptions. That is an important point, which we should have clear either in the MoU or in the Bill. I think that he raised at least a question mark as to whether the charter will be helpful or—I cannot think of a better word—sinister as a way in which to control the OBR. That needs to be clarified. Finally, the noble Lord made an important point about the OBR looking at the CSR and describing its outcomes. At least in those areas, we enjoyed some common ground.

The noble Lord, Lord Barnett, has his way of looking at these things and asked some questions of the noble Lord, Lord Sassoon, the answers to which I await with interest. He, too, asked about the word “sustainability”, which is in the Bill as if it has a clear meaning. That is a point that we will really have to mine.

We like the idea of the creation of an independent and credible OBR. It would be an important step forward in transparency and open government and an important addition to the democratic institutions. On this side of the House, we think that it is a good idea and we are prepared to co-operate to the full with the Government to achieve it. We are not prepared, however, to co-operate in the production of a seriously flawed institution. To do so would both ruin a good idea and potentially bring the whole project into disrepute. “Disrepute” is a strong term but that at least in part happened during the unfortunate events before the Summer Recess.

It has become clear in the debate that the Bill fails on this objective. We do not criticise the Government’s objective but we are critical of its execution. Perhaps Ministers were diverted from their laudable goal by their advisers; perhaps Sir Humphrey was meddling. What seems to come through is that the Treasury needs to hang on to its tools of control. Have the Government considered alternatives? Across the road, in Dean Trench Street, there is an internationally respected economic forecasting organisation, the National Institute of Economic and Social Research, a body that is already substantially publicly funded. The institute is recognised as being totally impartial and one of the best forecasting organisations in the world. A suitable contract could have handled all the confidentiality issues and much public money would have been saved. Instead of setting up a new quango, why did the Government not simply contract out the OBR to the institute? Are there good reasons for not doing that or is it because the Treasury would lose control? Why did the Government not consider going to the other end of the spectrum and placing the OBR under the control of Parliament, just as the Congressional Budget Office in the United States is under the control of Congress? The OBR would then be able to perform the range of services to Parliament and the Executive that the CBO provides in the US.

It is important to understand that the OBR is not and will not be a policy-making institution. It is therefore not part of the political process. The OBR is in the assessment business, not the making-policy business. Why, therefore, are so many control mechanisms built into the Bill? My noble friend Lord Eatwell compared the powers of the Comptroller and Auditor General set out in the Bill with those of the OBR. I compare the role of the two and their independence. Independence depends—as I said, I once worked in the public sector—on how one is appointed and how long for, how one is paid and how secure one is in that role.

The Bill strongly brings out the difference between the C&AG and the chairman of the OBR. With regard to status, one is appointed by the Prime Minister, while the other is appointed by the Chancellor. One is agreed to by the chair of the Public Accounts Commission; in the case of the OBR, it is just a matter of consent. The C&AG will serve for 10 years, while the chair of the OBR serves for two times five. Two times five is not 10, because a lot happens between those two fives. Termination is difficult in the case of the C&AG but, while it is quite difficult for the chairman of the OBR, it will not be difficult between those terms of office. At that point, the Chancellor and his concerns will come very much to the forefront of the individual’s mind when contemplating his further five years of employment. The individuals there now will be above these influences, because we know them as individuals, but we have to think in the longer term.

In matters such as pay, the pay of the C&AG can be indexed, whereas the pay for the OBR will be determined by the Treasury. The money for paying the C&AG comes from the consolidated fund; the money for the OBR comes through the Treasury. The terms and conditions of staff in the National Audit Office are determined by the NAO; in the OBR, they are determined by the Minister for the Civil Service. The finance in relation to the NAO and the C&AG comes from the public accounts commissioners—finance is pretty well independent when it comes to the National Audit Office. In the case of the OBR, it comes from the Treasury, which will have an influence on resources.

Finally, we have the staff of the OBR. I think that the Minister said that he saw them as civil servants coming in and out of the office. It is important to bottom out just who these people are going to be. Will they be an independent group, as, very clearly, the staff of the NAO are, or will they be people who, while doing their best to be totally independent, are influenced by their prior career and by where their career will be in future? All this needs to be questioned. We are not convinced that this organisation has sufficient independence.

We have looked at the work of the Treasury Select Committee and have suggested that the three tests are independence, credibility and robustness. The committee asked similar questions in paragraphs 126, 128 and 132 of its report on the OBR. Independence and credibility are crucial. We believe that the Bill as drafted fails these three crucial tests. However, we see the potential of this good idea, which is why we are prepared to work with the Government to create an OBR that passes the three tests. At the end of his speech, my noble friend Lord Eatwell advanced a concrete proposal on behalf of the Official Opposition. It would be a major step forward if the Minister could accept that proposal. The proposal remains on the table. We are ready to consult as to the particular all-party forum that is used to design the new OBR. It need not take time. It could well be done before Christmas. We are ready to accept that the OBR’s interim structure is satisfactory for the time being.

Private Finance Projects (EAC Report)

Lord Tunnicliffe Excerpts

Wednesday 3rd November 2010 Lords Chamber

[Lord Tunnicliffe]

My Lords, it is the lot of a Whip, whether a government Whip or an opposition Whip, that by the time a topic has cascaded down to one’s level, one usually finds oneself talking about a subject that one had not heard about 48 hours before. It is therefore a refreshing change, although it is perhaps going to be a painful one, to find myself talking about a subject in which I have had very considerable personal involvement. I shall declare my interests in PFI; I was managing director of London Underground and subsequently its chairman between 1988 and 2000, a period in which it was a leading player in PFIs. London Underground bought a fleet of Northern Line trains on PFI, handed over management of its power and communications systems, both telephone and radio, to the private sector, had a very successful ticketing programme, to which I shall return, and had the infamous London Underground PPP, of which I will admit to being the architect. I say that because it has been explained to me that success has many parents, whereas failure is an orphan, so there will be little contention of my claim to be the architect of the London Underground PPP.

I shall touch on the contributions of other Peers before I start. I thank the members of the committee for the work they have done on this report, and the noble Lord, Lord Vallance, for his presentation of it. I am very respectful of the report and greatly welcome its contribution. I thank the committee for finding the new term—PFP—which I shall try to use in future in this confusing terminology. I shall touch on a number of the points made by the noble Lord, Lord MacGregor, but we have a joint confession to make that during that period he was at one point my boss, so there is some coresponsibility in this Chamber. I thank the noble Lord, Lord Lipsey, for his quote from the NAO. It is probably a good summary of where we are on what we now call PFP. It is like the curate’s egg, but there is a lot of good in this egg as well as some problems. On banking issues, I would be trespassing on areas where I have no in-depth knowledge. The noble Lord, Lord Newby, brought up risk. I shall spend a little time on it. It is ill understood in the realm where PFPs happen.

The Opposition’s position on the report is in many ways the Government’s, in so much as it is contained in HL 114. I am sorry that the noble Lord, Lord MacGregor, found the Government’s response dismissive. I will concede that on some issues there should have been more reflection and more depth, but one is between a rock and a hard place in trying to get the response out quickly—we are grateful for the commendation—and responding in depth. Tonight is only the beginning of what will be a continuing debate on how the new Government will respond to the issues brought out in the report.

The first area that I would like to touch on, which is touched on gently in the report, is what I will call government pressure on public sector managers to use the private road for procurement. In the 1990s—I will limit myself to that time because I have no direct personal experience—the pressure at official level was not gentle, it was brutal. You were flatly faced with the fact that if you wanted your project, it had to be done the private way. I tried all I could to make sure that our submissions were honest and fair and balanced, but when you think of that pervasive pressure right the way through the system, it is not surprising that questions are asked as to whether the right public sector comparator was used, et cetera.

Treasury pressure is touched on in the report, but possibly the strongest paragraph is paragraph 61 in which the Government are asked to commit to not bringing institutional pressure on parts of the public sector to use private procurement. So, the first assurance I seek from the Minister is that best value for money will be the principal consideration when deciding whether to use a PFP procurement road. In responding to that question, I would like him to reflect upon the need for there to be practical public alternatives if that evaluation is to be made in an even-handed way.

All Governments fail to see—they say the words but they do not enact them—that investment in infrastructure is investment in what makes our country work. That is quite different from present consumption. The actuality of finding the money for investments from public sources is extremely difficult for a public sector manager; he is driven in this private direction. It was seen as almost the only way for investment to be brought into the business one was responsible for.

It is extremely easy to talk about risk at a theoretical level, but in the real world it is not like that. When you have big projects and you are in the public sector, you do not say “you take the risk” and that is the end of it. In practice, with a big project you are in what I describe as a deadly embrace. Yes, the survival of your supplier depends on your behaviour towards them, how you push risk and how you prosecute the route, but your ability to trade tomorrow depends on that supplier. The worst example in my professional career was not in private sector procurement; it was in the acquisition of 85 trains for the Central Line. That company threatened to go broke about a year and a half into the project. Our problems were so extreme and our options so few that we seriously considered buying the factory off the receiver and going into train manufacture. In the end we did a deal with one of the co-parents and paid the money for a parent company guarantee to see the project through.

It is a fact of life that in these big projects risk migrates to the party of substance, and that is the public sector. The real risk transfer is extremely modest. The value of private sector initiatives is the way in which small behaviours are incentivised to the public good. I will touch more on that later. For this reason I question the value of the off-balance sheet charades that we have played in this area. The report very much gets to the nub of this. I confess that my Government did not perhaps answer these questions in the required depth. This is brought out particularly in paragraphs 59 and 60. I would like the Minister to answer the challenges in those paragraphs with much greater clarity and much greater depth. Public/private finance capital is, frankly, part of the real balance sheet, and at least it must be exposed in a clear way so that we can see what has happened.

The rest of the report shows guarded support for PFI. I share that view. We have had good experiences. One of the worst things about having Her Majesty’s Government as your banker is that they are stunningly unreliable. They will promise you money one year—sometimes just before an election—and suddenly it is withdrawn the next year. The ability through the PPP to assure a partnership and funding is very much demonstrated by today’s Oyster card. That development is possible because of a long- term relationship. That programme started 25 years ago. It was translated into the private sector in the late 1990s and flourishes because the private sector has money to develop it and because the partnership works relatively well.

Whole-life costings work. When we acquired the Northern Line trains we discovered, largely because it took them a year and a half extra to build the damn things, that for the first time in all the time we bought electric trains—and we have been buying them for 100 years—the manufacturer suddenly discovered that he could make them more reliable and easier to maintain, which was not exactly surprising because the manufacturer was going to make all the money out of the deal by repairing them and maintaining them. It was a complete re-design. The concentration of whole-life costing was absolutely invaluable.

Finally, I come to my experience, in a sense. The Underground PPP was a ludicrous failure and so on and forth, but its failure was more complex than the report suggests. I put that down to two things. First, the special purpose vehicle—Metronet in particular—was a very unsatisfactory business structure. We really should have seen that. We were trading with an enterprise that was owned by its suppliers, and its suppliers were making their profits between them and the enterprise, not through a share of the profits of the enterprise. Whenever you bring a consortium together, you must make sure that the owners make their profits in the consortium, not in the supply arrangements. Secondly, the Treasury guarantees were probably reasonable in the circumstances, but the Treasury did not have the right tools of transparency so that it could monitor the risk of those guarantees being called in. The conclusion I draw from this is not that we should not do big complex private deals—they may, in fact, be the right vehicle—but that public sector teams of extremely high quality are necessary to do such deals.

I would like an assurance—the noble Lord, Lord MacGregor, touched on this—that if the Government contemplate such a deal in the future, they will first make sure that they have a team of the weight, the intellectual horsepower, the experience and the breadth necessary not just to look at the lines of the deal, as lawyers do, but to see behind the deal and address how people are going to behave with the various incentives. I ask the Government not necessarily to be deterred by the LU experience but to learn from it. I hope that the Minister will take account of that.

The one area in which, from my experience, I thought the report was weak—I have a slight difficulty with this, because I have nothing to add to it—is the problem of the preferred bidder. The complexity of PFP deals means that they take a long time to put together and are quite costly. The private sector has this device of saying, “You have to come to a preferred bidder status with someone, otherwise we cannot afford to continue”.

It is a real dilemma. The case for having a preferred bidder makes sense, but the problem is that the reality of having an alternative goes out the window. I do not know how, in future, the public sector will be able to establish value during the preferred bidder stage, but be able to find an escape route. But the report lets the process off lightly by not going more into the trap of the preferred bidder. I hope that the Government will think more on that whole issue.

In conclusion, I welcome the report, which gives valuable input to the debate. I would ask the Minister to respond to the report and to the emphasis that I have made. I encourage him to use the report—I think that the noble Lord, Lord MacGregor, touched on this—as source material in the training of public sector teams involved in this work. This very good document, which covers the past, can help people to learn the skills necessary to ensure that the public sector will get best value out of these schemes.