Arch Cru Compensation Scheme

Alun Cairns Excerpts

Wednesday 19th October 2011 Westminster Hall

[Alun Cairns (Vale of Glamorgan) (Con)]

It is a pleasure to serve under your chairmanship, Mr Owen. I want to congratulate and pay tribute to the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) on securing the debate and on the way in which he introduced it. He set an absolutely right tone to try to uncover the scandal and seek justice for many innocent investors.

This debate is the first opportunity to air serious issues that have cost some 20,000 people significant sums in respect of a fund once valued at £400 million. The title of the debate relates to the compensation scheme, which is the obvious priority of investors. However, there is also a need to interrogate the background, which raises questions about the scale, source, timing and conditions of the scheme.

The investors’ starting point in the financial scandal was to receive and consider advice from their independent financial adviser. As the hon. Gentleman suggested, the funds were clearly advertised and marketed as cautious managed. That would have sounded reasonable and fitted the risk profile of many private investors across the country.

[Jonathan Evans (Cardiff North) (Con)]

May I be the first on this side of the Chamber to pay credit to my hon. Friend for his tenacity in assisting people in bringing this matter before the House?

The point that my hon. Friend is making specifically relates to the decision made by investors. I have constituents who have invested, including one who wrote to me only yesterday to tell me that he invested £120,000—the totality of his pensions and savings—primarily because he wanted to be in cautious-managed funds that were safe. That highlights the regulatory failure to which my hon. Friend is alluding.

[Alun Cairns]

The cautious-managed issue is a common theme throughout regarding the Arch Cru funds. Cautious managed, from my time in financial services, would be argued as an investment category that fits the majority of people across the United Kingdom. However, investigation shows that the Financial Services Authority does not regulate the risk classification of funds, which is assessed by the Investment Management Association. I find that staggering, considering that that is a fundamental element in the decision-making process of any investor. The IMA is merely an industry managers’ representative body. The FSA has told me that classification is not a regulated activity, so it does not have the powers to amend the classification of funds. However, the FSA needs to be reminded of its statutory objectives, specifically the one relating to maintaining market confidence.

The reality of the investment was that it was not cautious managed. The open-ended investment company invested in unconventional investments, as we have heard. Cell companies were formed and floated on the Guernsey stock exchange, investing in private equity and shipping loans, among other high-risk transactions. As that was a recognised exchange, it circumvented the FSA radar, although FSA rules banned such illiquid investments in open-ended funds. Therefore, it was no surprise that in March 2009, almost three years after they were launched, the funds were suspended.

However, the situation is not that simple. The FSA identified issues with the funds in October and November 2008, but the funds were permitted to continue to trade. It conducted an advanced risk responsive operating framework test at the time, which should have highlighted the issues, particularly pricing concerns. Yet, the funds were only suspended four months later.

Capita became the authorised corporate director, and had failed to act. It had responsibility for corporate governance and daily pricing, and control over the underlying assets. It initially denied having control of the underlying assets, but the auditors’ report from Ernst and Young showed that it held more than 75% of the shares. I suggest that Capita mispriced the funds before suspension due to its failure to exercise control to value the underlying assets accurately. There was a breach of the investment mandate and a pursuit of a reckless investment strategy by Capita’s designated fund manager.

Clearly, that negligence led to Capita’s £54 million compensation offer—70% of the value of the funds at the time of suspension, together with the remaining assets from the valuation on 31 March. That has been criticised as unlikely to hold up. Investors are being asked to accept an offer without knowing what they will receive, as that depends on the value secured on the sale of the remaining assets, which will take years. That is an obvious disparity and injustice.

The auditor was Moore Stephens. It surely should have identified the issues, but it has still yet to offer any form of explanation, let alone compensation. The Guernsey regulators also have some explaining to do and have to accept their part of the responsibility and liability.

[Sir Alan Beith]

Does my hon. Friend know whether the FSA consulted the Guernsey authorities or sought their assistance at any stage?

[Alun Cairns]

My right hon. Friend raises a good point. I have raised that issue with the FSA, which said that it was beyond its jurisdiction. However, to my mind, protecting UK investors is certainly its priority and should fall within its jurisdiction.

To date, there has been no explanation of the logic behind the £54 million offered, and the conditions are somewhat restrictive. Having recently met with the FSA, I know that the reasons behind the current delay concern third-party rights, which I understand. However, it has taken more than two and a half years from suspension to get to the current stage.

I have a constituent who invested several hundred thousand pounds of his retirement money into the funds, but there will be constituents of other hon. Members present who had invested far smaller sums, and which may be even more significant to them individually. A figure of 70% of the valuation at suspension is completely inappropriate, given that all that our constituents had done was to invest in a regulated, cautious-managed fund with a regulated, authorised corporate director and approved auditors. The delay conflicts with the timing of a possible legal challenge. Investors need to act soon to fall within the legal time frame set out by the courts.

In considering criticism of the FSA, it seems hardly just that, having failed in its responsibility to regulate, it has the responsibility to investigate and negotiate a compensation package for the people whom it failed in the first place.

[Mark Durkan (Foyle) (SDLP)]

The debate shows that we have a fund that was a scam and regulation that was a sham. We have a problem not just with the FSA’s dereliction of regulatory oversight, but with its deviance and connivance in the deed with Capita. This debate is an opportunity for Parliament to blow the whistle. The FSA is now blatantly offside, and surely it is up to the Minister and the Treasury to make it clear that the deed cannot stand and the deadline must not stand.

[Alun Cairns]

The hon. Gentleman has made an extremely powerful point. This is the first debate on Arch Cru, and certainly on the FSA and its change to the successor bodies. Those who have responsibility for this matter need to bear in mind the strength of feeling among investors and the number of people who have turned up to this debate. This issue will not go away until investors feel that they have received justice.

The regulator, the Financial Services Authority, arguably failed in its duty as did the investigators and negotiators. Clearly, there was a position of conflict. It angers me that at every meeting and in every communication, the FSA points its finger at the independent financial advisers. In view of the FSA’s four strategy objectives, passing the buck to the IFAs is wholly inadequate. The pricing and fund performance would have been integral to the advice provided by any independent financial adviser.

In a meeting last week, the FSA told me that the obligation of suitability lies with the IFA. It is unrealistic for IFAs to have the capacity to interrogate individually all marketed funds, products and pricing strategies, or to speak to the financial directors and auditors of every firm on which they advise, when the FSA, with all its resources, failed to protect investors from wrongdoing in this respect.

[Guy Opperman (Hexham) (Con)]

Independent financial advisers may be being criticised, but is my hon. Friend not surprised that the Serious Fraud Office has not been more involved in this patently criminal investigation?

[Alun Cairns]

I pay tribute to my hon. Friend for the role he has played in uncovering many of these issues. I will come on to the Serious Fraud Office in a moment.

[Sammy Wilson]

I accept the hon. Gentleman’s defence of the independent financial advisers. None the less, the only interface that many investors have is with an independent financial adviser. Is there not an obligation upon them at least to check out the funds on which they advise? Is there not some responsibility there?

[Alun Cairns]

I am grateful for that valid point. Clearly, IFAs cannot be excluded from all responsibility, but we need to bear in mind the context in which they are working. If they are looking at the strategy and pricing of a fund classified as cautious managed, we need to recognise the context in which that advice is being given. Therefore, the failure of the FSA to set the right context in which an IFA can make recommendations is fundamental to the issue.

There is another conflict. The FSA regulates the authorised corporate directors and Capita acts as the authorised corporate director for more than 300 firms. Taking action against Capita could create difficulties, leading to panic in the marketplace. The FSA has powers under section 166 of the Financial Service and Markets Act 2000 to instigate an independent investigation into organisations that take such responsibilities. Will the Minister tell us whether any such action has been taken by the FSA?

The Arch Cru affair is a minefield of accusation and counter-claim. My hon. Friend the Member for Hexham (Guy Opperman) referred to the Serious Fraud Office. I was alarmed to discover that two of the three main directors or partners who established the Arch Cru funds—Robin Farrel1 and Robert Addison—are still operating, albeit under a new name of Arch Global. Allegations have been made to the Serious Fraud Office about how Arch funds were invested in a property company with common directors. Student accommodation was bought on the open market at one price, only to be sold to the Arch investors shortly afterwards for an inflated sum. I have no knowledge of whether or not those points are true, but they clearly need to be investigated.

As for compensation issues, the auditors and the Guernsey Financial Services Commission certainly need to be pursued by some authority, be it the FSA, the Minister or other parties.

Finally, in view of the FSA’s actions and the associated conflicts, I am troubled that section 404 of the 2000 Act can bind the financial services ombudsman to the FSA’s judgment on the level of compensation. The FSA has made its view of the 70% figure quite obvious in its statement. Therefore, even if investors seek to make a claim involving the financial services ombudsman, or if they follow other routes, the FSA can limit the compensation to 70% at a later stage.

[Duncan Hames (Chippenham) (LD)]

Clearly, my constituents will wonder what the point of a financial services ombudsman is if they cannot seek redress through it to get a better deal than Capita is already offering.

[Alun Cairns]

I am grateful to the hon. Gentleman. He underlines the power of the FSA to limit compensation, rather than to uncover and to provide just compensation for people who have been ill-advised and ill-treated throughout this whole process.

These issues need to be reconsidered in an equitable way and without conflict.

[Sir Peter Bottomley (Worthing West) (Con)]

Will my hon. Friend confirm that the vital thing that needs to be done straight away is to lift the deadline so that people can make decisions, knowing that they are not throwing away some future interest? Will he also join me in saying to the Minister that, whatever direct powers the Government may or may not have, they do have the opportunity to call people together to say that the present situation is unfair and not right for investors? They need to find a way to make it possible for MPs, financial advisers and everyone else to say to investors, “This is what you should do now.”

[Alun Cairns]

That pragmatic and practical intervention would certainly set us on the right road to gaining justice for investors. The issue needs to be reconsidered in an equitable way and without conflict. The Minister and the Government should have the responsibility to bring together the various parties. Under section 14 of the 2000 Act, the Minister also has the power to launch a formal investigation, so that those with conflict are removed and the situation is judged objectively and properly. That will be the first step towards achieving justice for investors.

[Mr Robin Walker (Worcester) (Con)]

I congratulate my hon. Friend on the points he is making. On the section 14 inquiry, does he not agree that one of the most important things is for investors and their financial advisers to be able to make an informed decision? An informed decision cannot be made until that inquiry has happened and the real bases of the problems and of any compensation have been set out in detail.

[Alun Cairns]

My hon. Friend makes a valid point. When such problems are combined with questions about the legal time frame, investors who have experienced wrongdoing are in the unenviable position of making decisions about receiving compensation or pursuing it through the courts, without there being a thorough investigation of who is responsible.

I thank hon. Members for their support, and the hon. Member for Rutherglen and Hamilton West for securing this debate. There will be many more such debates until justice is achieved for investors.

--- Later in debate ---

[The Financial Secretary to the Treasury (Mr Mark Hoban)]

I congratulate the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) on securing this debate and on how he introduced it. Despite a barrage of interventions, he managed to maintain his pace and tone and set out a clear narrative of what happened to Arch Cru. I also congratulate my hon. Friend the Member for Vale of Glamorgan (Alun Cairns) on his tenacious pursuit of the matter, as well as the other hon. Members who have taken part in the debate.

I express my sympathy to the many Arch Cru investors who have lost a significant proportion of their savings as a consequence of the events that we are discussing. Regardless of how large or small the investment was, and whether they have lost all their savings or a fraction, they have lost out. It is important to think carefully about the cause and what lessons need to be learned.

As my hon. Friend the Member for Chippenham (Duncan Hames) rightly predicted, I must add a note of caution about Treasury responsibilities in the matter. We do not have investigative or prosecuting powers of our own. The Financial Services Authority is the independent regulator. I have spoken to its chief executive about Arch Cru and sought further information about the FSA’s investigations and the voluntary compensation package, and I will respond as fully as I can to the points made today. Hon. Members clearly have an appetite for a lot more detail. I understand, as I have the same appetite, but enforcement action is ongoing, so there is a limit to what can be disclosed in the House.

As the hon. Gentleman and others have said, the case is complex and involves multiple layers of responsibility. Many investors will initially have engaged with Arch Cru’s UK open-ended investment companies, or OEICs, through their independent financial advisers, with Cru Investment Management conducting the marketing of the OEICs. The management of the OEICs was then the responsibility of Capita Financial Managers Ltd as authorised corporate directors and of BNY Mellon Trust & Depositary (UK) Ltd and HSBC Bank plc as depositaries. Although the legal form is that Arch Financial Products acted as the delegated investment manager, in substance, it approached Capita and proposed that fund structure.

The OEICs invested principally in more than 22 Guernsey- domiciled incorporated cell companies, which were listed on the Channel Island stock exchange and required to comply with Guernsey regulations. The cell companies had two independent directors. The administrator of the cell companies was regulated by the Guernsey Financial Services Commission and was responsible, among other tasks, for producing valuations for the cell companies, which were made available to the Channel Island stock exchange. Arch was the investment manager for the cell companies and, of course, the OEICs themselves. Both the OEICs and the Guernsey cell companies were independently audited. That complex structure should make it clear that it is not easy to apportion full responsibility to any single player in the matter.

As part of the authorisation process for UK OEICs, the FSA assesses a fund’s proposition before launch and decides whether it complies with the rules. The FSA then reviews the fund’s prospectus and, after authorisation, continues its normal supervisory activity, which includes visits to authorised corporate directors and depositaries and thematic work such as the monitoring of financial promotions. As hon. Members have identified, the FSA does not regulate descriptions of funds, such as “cautious managed”. It is worth reflecting on what “cautious managed” means. It means that a fund invests in a range of assets with a set maximum equity exposure and a minimum exposure to fixed interests and cash. A minimum percentage of assets must also be held in sterling or euro-denominated assets. That describes what such funds should be.

The FSA is not an auditor and does not check underlying investments or the veracity of share prices. That is the responsibility of others. The regulatory regime is not a zero-failure regime, and the FSA conducts risk-based supervision. It does not visit every firm every year; the frequency of visits depends on firms’ risk and impact. If hon. Members reflect on that for a moment, they will expect more resources to be devoted to a big insurer than to an insurance broker on the high street. However, it is ultimately the responsibility of the firms involved to ensure that they comply with all the relevant rules.

What did the FSA do in this situation? It has been suggested that the FSA let down investors, but its financial promotions monitoring activity picked up some of the issues with Arch Cru OEICs, which were raised with the parties involved. Crucially, in October 2008, during the course of an ARROW inspection visit, the FSA identified issues with the funds, including the fulfilment of the OEICs’ investment objectives. Those issues were raised with Capita Financial Managers, the authorised corporate director, leading to the suspension of the OEICs in March 2009.

On the payment scheme, it should be clear from my opening remarks that the structure underpinning investment in an Arch Cru fund was complex and multi-layered. The FSA could have pursued a comprehensive package of redress, which would have needed agreement from all the parties involved, some of which were responsible for the management of the funds and some for their sale or promotion. Not all those parties are regulated by the FSA or based in the UK. To have put together such a package would have been time-consuming and complex. The FSA has reached agreement with the three parties responsible for the management of the UK OEICs: Capita, BNY Mellon and HSBC. The package was announced in June 2011, and will pay up to £54 million to investors. The amount of compensation takes into account distributions already made to investors and the remaining value of the funds.

The compensation amount also has an element of proportionality, taking into account the fact that while those three parties share some of the responsibility for the losses, they are not solely responsible. Other parties contributed to the failure, and the FSA is currently considering the positions of those other parties. The pursuit of a voluntary settlement with the three parties allows investors to opt to receive payments by the end of this year rather than having to wait several years for the uncertain outcome of a more complex process, which would include enforcement action against the relevant parties. It is a trade-off. Do we want investors, some of whom invested all their funds in Arch Cru, to receive money sooner or later? A question was asked about time scales. People have until the end of next year to decide whether to opt for the package.

The FSA has required the Financial Ombudsman Service to apply the payment scheme to complaints that it receives, under the provisions of the Financial Services Act 2010, which was introduced by the previous Government and supported by us. The provisions ensure certainty to investors and a consistent regulatory approach between the FOS and the FSA. Without them, the FOS would have to consider individual cases on their own merit rather than applying the same principle to every investor. I will explain what the FOS is bound to.

[Alun Cairns]

Will the Minister give way?

[Mr Hoban]

No, I will continue. I have three minutes left and more points to make.

The FOS is bound only in respect of complaints made against Capita, HSBC and BNY Mellon. Complaints made to the FOS about other parties to the investment chain, including independent financial advisers, can still be heard by the FOS. The limitation on the FOS applies only to complaints made about the three parties. That is a clear signal to investors that they can make further complaints about other parties. Investors are free to pursue action through the courts and to challenge the IFA who advised them to invest in Arch Cru funds over whether that advice was appropriate. Numerous people have already done so. If they are not satisfied with the IFA’s response, they can go to the FOS. If a complaint has been upheld but the adviser is no longer in business, investors can also complain to the Financial Services Compensation Scheme and apply for compensation.