Financial Services Bill

Baroness Bowles of Berkhamsted Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 28th January 2021 Lords Chamber

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

My Lords, I declare my interests as set out in the register.

I have been in this House for five years, wondering what happens about our most important industry. Diligently commenting on unamendable statutory instruments, or having yet another debate about regulators’ failure, does not really cut it for parliamentary scrutiny. In a similar length of time, I negotiated the 40 complex sets of post-financial crisis legislation in the EU. I do not expect to do that again, but it is good to see a Bill, and it is attracting two substantial maiden contributors. The problem is that to keep up on Basel 3.1 and separate out investment firm prudential regulation, it runs ahead of the consultation that is still open, implementing the division of powers in isolation from whatever comes from the consultation, deliberately fixing the path.

It did not have to be this way. The SIs revoking provisions when regulators’ replacements have been drafted could instead contain those changes, but the truth is that the Government have decided the future. Regulators are indulged, Parliament ignored. The excuse is made that the division of powers is just returning to the original FiSMA 2000, despite that being out to consultation. Apart from it not turning out well then, and the prioritisation of industry consultation over Parliament, financial services were not without EU involvement in 2000. There was already EU banking and insurance legislation. The Financial Services Action Plan was laid out in 1999 and broadly completed by 2004, with co-ordinating financial supervisory bodies well established.

It is true that the UK was on its own with the FSA’s supervisory mistakes, and cheer-led the Basel blundering, but since the financial crisis, there is so much more detailed and complex legislation than there was in 2000, so much more EU, public and parliamentary consultation and scrutiny. The FiSMA 2012 amendments were done in that setting. Now the light is switched off, and we fall back on arrogant, secretive policy-making, which is no way to be world-leading in the modern age.

It is not transparent what UK regulators and the Treasury get up to in the international standards bodies. Supervisory-led bodies have not always got it right. They got Basel II wrong. We do not know but just hope that they have got it right now. They suffer from groupthink, and then regulators implement and mark their own homework. That is why there must be big, public conversations involving Parliament.

Some legislatures, such as the EU and the US, get to scrutinise and confirm alignment with international standards once they have debated them. In the EU, regulators are regularly reviewed and peer-reviewed. In the US, the US Government Accountability Office conducts an independent annual study of financial regulations and the federal agencies. In this Bill, the Government tie our hands and legs before the scrutiny race starts.

The Explanatory Memorandum says that accountability measures have been included, meaning the scant “matters to consider” provisions for when the regulators are making rules. These “have regard” lists are too short—there are other matters of policy to consider—and there is no measure of how the regulators are accountable, other than by their own explanations and a bit of shouting by us if it has all gone wrong and still more Gloster, Connaught or GRG reports turn up. Heaven knows how anyone thinks that skeleton primary legislation can give certainty for other major jurisdictions to find us equivalent, when substantive policy can be changed in the blink of a regulator’s eye. No wonder they say that they do not know what is planned. They never will.

It is not easy being a regulator, but things have been missed too often, even when newspapers and Parliament have drawn it to attention, so we need regular independent reviews, rather like a Section 166 inquiry on regulators, with oversight on follow-through. Statutory regulator’s consultations are for industry, and there is nothing in the Bill that marks a position for Parliament. There is no access to data for industry or Parliament to independently check or challenge fair basis of the rules.

The Bill separates different types of financial institutions that have previously been swept together under banking legislation. The regulators should be given a specific direction to do more of that for small and non-systemic banks and for different categories of insurance, especially captives and reinsurance, as Ireland has. That would be useful for partial equivalences, too. The FCA’s financial system integrity objective needs backing with failure-to-prevent offences. We need duties of care, better treatment of small businesses in commercial contracts and to make the regulator’s statutory panels transparent, independent and able to consult, not secretive, selective and steered. I do not agree that FiSMA 2000 is the right model. It is arcane, it failed then and it is still secretive and shallow now, diminishing the UK. I will try to make it better.