Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsMonday 13th March 2023
(1 year, 8 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-VIII Eighth marshalled list for Grand Committee - (9 Mar 2023)
Lord Naseby (Con)
My Lords, I take issue with my noble friend, as I have spent most of my political life involved in housing. We have a situation in the country, which is relevant to this amendment, of huge pressure on local authorities to help families who are homeless. The numbers are going up every month at the moment, and this amendment would at least ensure provision for a small section of society—possibly younger people or single-parent families—who find themselves in a situation that is nothing to do with their own original arrangement with the mortgage lender. It is entirely appropriate for our society to say that there is a means of helping them in a transitory manner to get them settled.
The most worrying aspect is in proposed new paragraph (b), which the noble Lord highlighted. This is not a new problem but a growing one, with unregulated entities on the fringe of the mortgage market. Any of us who has done any work in this area knows that it is quite a difficult area to control, but the FCA has not got a handle on it yet and it needs to.
I am not going to say any more, but I very much hope that my noble friend on the Front Bench will take this issue away, think about it and recognise that, if we do not take action, the local authorities where these people live will have even more pressure on them to find a home for the relevant family.
Baroness Bowles of Berkhamsted (LD)
My Lords, I rise to say a word in support of my noble friend Lord Sharkey. There are some more generalised and wider issues around this problem. We have the situation quite often—in fact, it is perhaps the norm nowadays—that whoever extends credit, whether for a mortgage or another thing, is not necessarily the same organisation that ends up holding it later on. It may be securitised, sliced, diced and sold on, or it may be sold on to a vulture fund because they are in trouble. The same sort of thing has happened with student loans, which have essentially been sold to vulture companies.
This raises the issue of what the Government’s terms are when they are doing the selling. I fully understand that they say they have to get the best value for the taxpayer, or whatever it is, but you cannot have value for the taxpayer at the cost of usury on a minority, and that is the situation that has arisen. It could impact on some with student loans, if the pressure to pay is different from how it was when the loans were elsewhere.
I have two questions. First, what are the Government going to do along the lines outlined by my noble friend to assist mortgage prisoners? More generally, what are they going to do when looking at mortgage terms that allow it to be sold on to anybody without any safeguards and other types of selling on, whether in distress or otherwise, that likewise essentially dispense with any kind of consumer credit or similar kinds of protections?
I am sure the Minister will recall that when we were talking about bounce-back loans and we had to dispense with some consumer credit protections, I warned that we might get bad behaviour as a consequence. This is part of the same picture and why we have such protections there in the first place, yet nowadays they are being seriously circumvented.
Lord Tunnicliffe (Lab)
My Lords, I do not come to this debate with a predetermined position but to listen and take a view after we have looked at the circumstances and listened to the Minister’s response. I would value a copy of the report that the noble Lord, Lord Sharkey, spoke about. I have a lot of sympathy for these individuals and note that their problems are undoubtedly exacerbated by—I do not know how to describe it—the Truss impact on loan rates in the UK, which must fall particularly heavily on those individuals. I await the Minister’s response.
Baroness Bowles of Berkhamsted (LD)
My Lords, I was waiting to hear what the noble Baroness, Lady Noakes, said on this amendment. I am afraid I cannot support her this time, although we agree on a lot of things. I accept that this is a hard call. The way I look at it, this goes back to our discussion about whether you follow rigid rules or you want people to think about what they are doing. Ultimately, there has to be a desire for people operating in financial services to think about what they are doing in all circumstances. Therefore, I see that as a proper override.
What has been portrayed as the ultra-right wing libertarian approach of just doing things and then being for the high jump if you get it wrong—that is a caricature, I accept—relies on your having done what is right in principle. Some things will not be fair if you merely follow a rigid set of rules. Therefore, it is right that there is a “fair and reasonable in the circumstances” backstop. It is right that if such things happen, there should be discussions about what it means for the generality.
However, it is not right for the FCA to have an automatic override and say, “We’re right, and our rigid rules derived from principles”—because they abandon principles once we have rules—“can never be wrong”, and that people should not have been thinking actively about these things, particularly while they were dealing with customers and individuals. I understand where the noble Baroness is coming from, but I cannot support this. I plug again that we should expect that extra level of thought. This again goes to the heart of having a duty of care. It is the same argument. A duty of care does not mean, “I just do what I’ve always done and got away with” or “I just do what everybody else appears to have done, turn the handle and don’t think about it.” It is a fundamental principle of caring for the consumer that at least the ombudsman can continue with. I heartily think that we need a dash more of it in the Financial Conduct Authority.
Viscount Trenchard (Con)
My Lords, I support my noble friend Lady Noakes in her amendment. As she has explained well, Clause 38 requires the FCA, the FOS and the FSCS to co-operate and to consult with each other in exercising their statutory functions. However, it is important that FOS decisions with wider implications do not diverge from FCA rules, or there may be unintended consequences, and predictability and consistency may be negatively affected.
As my noble friend just said, this does not mean that the FCA or the FOS should act without thinking very carefully about what they are doing. Her amendment takes account of that and would be likely to encourage real thought about the consequences of making a particular decision in any case. Besides, Parliament never intended the FOS to be a quasi-regulator. UK Finance has recommended that the FCA should be given a power to overrule a decision by the FOS where it believes that the decision could have wider and perhaps unforeseen implications. My noble friend’s amendment would deal effectively with this potential problem.
Of course, the granting of additional powers to the FCA strengthens further the case that the FCA must be properly accountable to Parliament, and I regret that I have not yet heard my noble friend the Minister acknowledge that, as drafted, the Bill does not provide adequate arrangements for this. I firmly believe that a properly resourced joint committee is how to achieve that.
Baroness Bowles of Berkhamsted (LD)
My Lords, I signed all the amendments in the name of the noble Lord, Lord Vaux. We were both members of the committee looking at the Fraud Act 2006 and digital fraud. Although these amendments are not exactly what we recommended, they fairly represent the mood after what we had heard. We could not make them all exact recommendations. Some of them are difficult; there is difficulty between my noble friend Lady Kramer’s amendment and this set of amendments. I did not weigh them up beforehand, but it will be very difficult if you just allow a broad, “Well, you ought to have known” provision for the bank.
It is not a question of who you are and what you know. Some pretty intelligent people have been defrauded and you can be caught at a bad moment, but how do you prove that it was a bad moment, if you are being scammed? Say the scammer claims that a child is in trouble and says, “Send money now, mum.” Every now and then, the scammer is going to be lucky, and the message is going to arrive to a mum whose kid is off somewhere doing something, and it will look genuine. You might have been very worried about the circumstance in the first place. How do you prove that kind of thing, if the provision is going to assume that you are a sensible, intelligent person and you ought to have known? How do you discriminate against those who are not intelligent and sensible and who are vulnerable for whatever reason?
There is a lot to be said for my noble friend’s amendment, but at the same time there is the issue, which we discussed in the committee, whereby you do not want everybody to think that it is all right and that they are covered. Do you need some kind of hurdle? How do you encourage people? We need to see whether we can in some way nuance that, to make it clear that we are protecting the most vulnerable, including those with a circumstance that they might find themselves in, even though they would not have been vulnerable at other times—but then you do not want to make it even easier for scammers. People can think that it is a victimless crime, but it is not a victimless crime at all. Even if people get compensation, collectively we are all going to pay for it.
We also talked in the committee about why the proposal is just for Faster Payments. Yes, it is an easy target, because of the instantaneous nature of it. But what if, when you go into a bank to make a transfer by CHAPS—and a mortgage is the obvious kind of payment in that regard—somebody comes in with you and coerces you? What steps are taken at the counter? I have been in with someone who was doing a big CHAPS transfer for the purpose of a mortgage—it happened to be my son—and nobody questioned what I was doing there. There may have been a familial resemblance, and they may have thought that it was okay, but there was no one saying, “Would you mind just stepping aside?” No one asked him who I was, what the relationship was and why I was with him. It would be good to have some more checks to make sure what is happening, checking that the money is going to a genuine solicitor’s account and those kinds of thing. To have other payment methods included is not unreasonable, although I accept that these are big chunks of money. We also discussed in the committee the culpability of the receiving banks, if they have dodgy accounts that they have not checked out thoroughly, and have not joined up two systems to check the nature of the account and whether it is right.
As we go forward, it would be nice if we could agree that there was some kind of flavour of these amendments that the Government could bring forward so that we do not have to do anything on Report. Perhaps there could be assurances that that kind of balance, and the sorts of things that have been said in the report from the committee, are taken on board. A lot of work went into that issue. There are many ways in which we can do things—it does not always have to be through legislation—but all these points are very valid ones for what needs to be done. I think that is probably all that I need to say, but I recommend that the sense of these amendments is taken forward.
Baroness Bowles of Berkhamsted (LD)
My Lords, I may have had the unique experience among us here of having to chair the committees that did some of the anti-money laundering directives. It is right that the noble Lord, Lord Moylan, points at the origins and the fact that we have carried through some things that were not necessary.
We have to go back to where it all began. He was quite right that it was with the Financial Action Task Force, which related to foreign nationals. We had a problem in the EU with what that meant—foreign vis-à-vis the EU—and tried hard to construct ways in which we could exempt the whole of the EU. There were words that would do that, but they did not get past the civil liberties committee people. We kept running up against being told that we could not discriminate. It was very difficult, because two committees were involved—my committee, the Committee on Economic and Monetary Affairs, and the civil liberties committee. Most of the time, because we were a bigger committee, we managed to outvote the civil liberties people, but there were one or two places where they had unique responsibility and, unfortunately, things such as discrimination were theirs, not ours.
I am telling this story because, if we want to solve this problem—if we say, “Okay, now we’ve had Brexit, we don’t need to stick to the rules that were made in the EU”—what can we do? Can we actually do what FATF said and discriminate within the UK against people who are in the UK but foreign? Where does that leave us with our discrimination laws? I cannot solve that, but I wonder whether the Minister knows the answer—because if the answer is that we are not hidebound and can do what FATF said, let us do that and put the focus where it should be.
It is very difficult to do a risk-based approach. I am all for it, and I think that the banks should do more of it. However, as the noble Baroness, Lady Noakes, has explained, it is costly. In fact, these things are outsourced; you fill in all the forms, somebody somewhere else ticks the boxes and the bank jolly well does not know its client any better. Then two or three years later, they ask you for all the same forms again, and they do not notice if you have done it exactly the same.
When the anti-money laundering regulations first came out, we seemed to get up to speed in the UK very quickly, and we started getting all this rubbish very quickly. I got the Belgian versions, because I still had Belgian bank accounts. I got a nice little form with tick-boxes on, so I photocopied that and started sending it to some UK banks, asking them why they could not do the same thing, although it did not get me anywhere. Recently, all the EU banks have stepped up, and my son has had a lot of trouble with the Irish banks, because he was working in Ireland—and he had even more trouble once he was no longer working in Ireland and came back to the UK, even though he has Irish nationality. He has had to close his accounts, because he just could not operate them.
So there are some issues here that need to be handled. I thought, going through this and trying to remember the discussions we had, that the noble Lord, Lord Moylan, got the closest by saying that if they are already having some check, such as through the tax authority, then that is a proper and non-discriminatory way to take people out of it. It is hard to think of anything better than that, other than just taking everybody out.
It is true that these regulations were really meant for catching politicians in dodgy countries who had access to ways to bypass the normal systems and checks for moving large sums of money between countries—for pilfering it. It is very difficult to talk about who they might have been without having carefully prepared your notes—although I know we have parliamentary privilege. They were not meant to affect ordinary people. Under the FATFA provisions, it was never meant to be ordinary people or ordinary politicians in generally law-abiding countries, shall we say, where politicians are not given extraordinary access to start siphoning off money from the central bank and suchlike. I do not think there is anyone in our central bank who can do that—perhaps the chief cashier; I have not thought about that—but that is who they were meant for.
Like others, I do not have confidence that our regulators will necessarily break cover and do something dramatically new if we ask them to revise this. It will be a problem that they are entrenched in the rules they have and the thinking of the other regulators who they keep meeting when they go places. It needs something very clear in legislation—something like the amendment from the noble Lord, Lord Moylan, if we can check out the point about discrimination. It is very difficult for us, as PEPs, to vote on things such as this, but it is causing a lot of distress to a lot of people. It is potentially devastating when you cannot complete on your house purchase and such things, and when things are happening randomly. It needs to be attended to. I really do not see why the Government cannot put their foot down and say to the banks and regulators that this must be done in a way that truly reflects who the targets are.
Lord Jackson of Peterborough (Con)
I will speak very briefly in support of the amendment moved by my noble friend Lord Moylan and those spoken to by my noble friend Lady Noakes. All noble Lords have spoken very well, and there is clearly consensus here. The specific issue here has trundled on for 10 years. I remember that when I served as treasurer of the 1922 Committee, this was an issue taken up by both the then chairman and, as mentioned by the noble Baroness, Lady Hayter, by Sir Charles Walker. I naively believed that we had resolved this issue by about 2017-18; obviously, that is not what happened.
This is about the limits of a permissive regulatory regime. It is clear that the Treasury and the regulatory bodies involved have not taken a blind bit of notice of the cross-party support in Parliament. This is not a niche issue that affects just us. In my case, I was affected because I was told by my mortgage provider that I was not going to be permitted to make mortgage payments, let alone make any withdrawals from a bank account. But this is also an issue of the civil liberties of our family members and extended family members. On that basis, we must take a very tough stance.
I come back to the particular point from the noble Baroness, Lady Bowles, about what we have the ability to do now that we are outside the EU—although my noble friend Lord Kirkhope is right that we must not recapitulate the arguments about Brexit. The noble Baroness’s point was astute, in that there is no proper risk analysis and risk assessment of all of these individual cases. A generic policy is applied across all individuals.
Frankly, let us be honest: the UK is one of the most open and transparent political systems in the western world. The noble Baroness, Lady Fox, is absolutely right that people are not attracted to public service if the fallback position is, “You’re a liar, a cheat, a crook and a thief if you go into public service”. It is important that, after 10 years, we make that appropriate point.
If we do not adopt my noble friend Lord Moylan’s rather benign amendment, a future Government may well take a much more draconian approach to this, both for the regulators and for the individual financial institutions. On that basis, they have a vested interest in sorting this situation out because, when the Financial Action Task Force proposals were published in 2012, they were not about asking people like the noble Baroness, Lady Hayter, to produce a premium bond certificate from 1957—I scarcely believe that it was 1957; I thought it might be a lot later.
This is an opportunity, and I hope that my noble friend the Minister makes, or at least commits to, those changes. This is not the first time that I have been compared to a brothel keeper—although that is normally in the other House—but my noble friend Lord Moylan makes a good point. This is an opportunity to right this wrong. This is not about us and it is not a niche issue: it is about civil liberties, decency, honesty, openness and transparency. We need action from Ministers on this.
Lord Moylan (Con)
I know the answer to this. It is because the FCA said in 2017 that a council was not a parliament or similar body. Those words appear in the task force recommendation. By declaring that a council was not a parliament or a similar body, members of councils immediately fell out of the regulatory scope by virtue of the guidance as it was changed at that time.
Baroness Bowles of Berkhamsted (LD)
This may not be something that the Minister can answer straightaway, but she has just finished by saying that the law enforcement agencies still wanted to keep the provisions. It would be good if she could tell me which and why, and on the basis of what evidence. How many parliamentarians have been done for money laundering, for example, and how many have featured seriously in inquiries? If that information is not to hand, I should be very happy to have it explained in detail in writing. I am still a bit perplexed, because my understanding of FATF was the same as that of the noble Lord, Lord Moylan: that is to do with foreign politicians, not our domestic politicians, or has FATF been updated? Oh, the noble Lord has it on his iPad.
Lord Moylan (Con)
It is the website with the 2021 version of the recommendations.
Baroness Bowles of Berkhamsted (LD)
So I cannot reconcile what the Minister has just told us with what is in FATF. If it needs detailed and arduous explanation, I am quite happy to have it in writing, but on the face of it, it is irreconcilable.
Earl Attlee (Con)
Further to the questions of the noble Baroness, Lady Bowles, can the Minister point to any illegal activity on the part of a parliamentary PEP that has been detected as result of the money laundering regulations?
Baroness Penn (Con)
I absolutely take that point. It comes back to the appropriate and proportionate enforcement of these regulations. I know that that is something noble Lords have raised previously, but we need to continue to work to ensure that it takes place.
Baroness Bowles of Berkhamsted (LD)
This goes back to when the Minister mentioned the FATF provisions. I thought she mentioned the risks in business relationships. All the stuff we get as PEPs is our personal stuff; it is nothing to do with business relationships. I have not been interrogated about anything to do with the London Stock Exchange, of which I am a non-executive director; I am interrogated about my father’s will and that kind of stuff.
Again, I am happy—in fact I would almost prefer—for the Minister to write the replies because it is hard to put together quoted bits and pieces, even when we get them back in Hansard. It seems that the whole risk assessment business is being set aside at the behest of the security agencies, which just like the idea that they have another captive load of people and that they may be able to track something with money—which I doubt, because these forms go to an outsourced place, they are filed, and nobody ever looks at them. There is no “know your client” going on. They may look at one or two, but I do not see how it adds up at all, even taking that security aspect into account, because if anybody was really a security threat, there are other ways of vetting.
Baroness Fox of Buckley (Non-Afl)
I am confused. I always encourage people to find out what is happening in this House by telling them to look at the speeches and follow Hansard, but now I am dreading anyone watching this because we have a government Minister implying that the security services at looking at us, particularly our private financial affairs, because we are high risk. Why? I do not think that is true. I want to denounce the notion that because you are in the House of Lords you are more likely to be doing something such as that.
I do not think the Minister can answer my second point, but I think we would all feel that it is a generalised accusation rather than specifically going after individuals who might be doing things that are wrong based on evidence, which nobody here objects to. Never mind the families; I have got to the point now where it is not just the families. I am sitting here feeling embarrassed, thinking, “Oh god, somebody is basically saying that the security forces think that we are all up to no good”. If the public find that out, it is said by a Minister and it is the general atmosphere, that is not good, is it? I usually put my speeches up on social media; I am not putting this one on. I do not want anyone to know about this conversation, because it will discredit the reputation of this House far more than anything else.
Baroness Penn (Con)
My Lords, I have already set out for the Committee, and I repeat now, the reasons why UK domestic PEPs may be at greater risk of money laundering. For example, in the general sense, the positions of influence that we have can put us at greater risk. I have also tried to set out—and will set out in writing for noble Lords—the approach that we are taking to look at risk in this area. I will share any further details that I am able to.
Baroness Bowles of Berkhamsted (LD)
Following on from what has just been said, I would quite like the Minister to rephrase what she said: that we are at greater risk of money laundering. I cannot let that stand on the record.
Baroness Bowles of Berkhamsted (LD)
I can let stand that we might, in some instances, be at greater risk of being targeted for various things, and I hope that we also have a greater capacity for repelling such actions, given the experience of people in the House and having done the sorts of things that we have done throughout our lives. I am not prepared to accept that kind of statement with any acquiescence whatever on my behalf or, by the sound of it, on behalf of colleagues here.
Baroness Penn (Con)
I am very happy to clarify for the Committee and anyone who may be reading our proceedings, that we, due to our positions of influence, are at greater risk of being targeted by those who may seek to engage in money laundering.
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsWednesday 1st March 2023
(1 year, 8 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-VI(b) Amendment for Grand Committee (Supplementary to the Sixth Marshalled List) - (1 Mar 2023)
Lord Deben (Con)
My Lords, much of what we have just heard would be very much supported by the group of people with whom I work. We do not want to reduce the protection of either group of which we are speaking, particularly small people asking for redress.
The ombudsman service needs reform; there is no doubt about that. We really have to discuss putting some stakes in the ground about not blaming people for things they would never have thought of at that point because we now think of them. I am afraid that my noble friend Lord Lilley’s amendments do not help us in that direction. In other words, all the issues I would want to raise about the ombudsman are not covered by these amendments. Similarly, it is true about the protection of people from the effect of investigation, even when that investigation turns out not to be justified.
I finish by reminding the Committee of the original discussion we had. We need a system that people see to be fair and is shown to work effectively for small as well as big people. I do not think these amendments will help this, but I hope we will be able to have changes. I do not think that you should accept any changes just because you want changes, and I submit that these are the wrong changes.
Baroness Bowles of Berkhamsted (LD)
My Lords, I am speaking later than I would have in the debate, due to the absence of my noble friend Lady Kramer. The Committee will be pleased to know that I shall not try to say everything that I would have said, as well as everything that she would have said.
It is well known from the previous FSMA that I support independent review. I had an earlier amendment to this Bill suggesting the use of the NAO, to which the noble Lord, Lord Bridges, referred. I am pleased to support his amendments, which I have put my name to and which lay out a much more thorough range of new provisions. At this stage, I should probably remind the Committee of my interests in the register, in that I am a director of the London Stock Exchange, as I am going to talk about my regulator.
The UK would not be alone in having independent review of financial regulations as part of its accountability. That was one outcome of the review of the financial crisis in Australia. I have been around this argument many times, and today it has already been eloquently explained by the noble Lord, Lord Bridges, so I pose instead the question: what happens without an independent review? One thing that is certain is that there will be complaints about regulations and, by and large, the regulators will defend their work. Parliament’s committees will try to scrutinise, but that is a public process—or it has been called the political process. They are well adapted to do the kind of inquiry that they do and often get into the nub of the matter. But as we have found out in the Industry and Regulators Committee, it is difficult to get industry to state in public what its issues are with the regulators. As I have pointed out with amendments and speeches on previous days, the Government do not give any legislative status to the parliamentary reports, so there is scrutiny but no consequence, which is not accountability.
Additionally, within intensively supervised frameworks, such as that which exists, probably uniquely, in the financial services sector, there is genuine concern on the industry side about regulators’ retaliation or suspicion if they complain. I acknowledge that the heads of the regulators have said that this would not happen, and would be wrong, but that does not allay concerns or whispers about this most crucial of relationships between industry and its regulators, where every word is guarded. There are also genuine concerns that explanations require public disclosure about investigations or other difficulties that firms may have faced in compliance, which they would rather not put in the public domain—for example, out of commercial confidentiality about future plans and not for reasons of bad behaviour.
Industry will therefore instead bend the ear of government through many of the private channels that it has, whether through the Treasury or at Cabinet level—for example, as it has about international competitiveness. The Government may choose to act, as they have in that instance. Meanwhile, the public channels remain uninformed or unconvinced, because—and I refer again to the experience of the Industry and Regulators Committee—we were given evidence of only operational inefficiency and not of rules that caused any lack of competitiveness. How is public trust to be maintained under these circumstances? How is there to be the legitimacy that has been spoken about? How are reviews to get through the confidentiality concerns in a way that the public trusts?
The Minister has sat tight on review in all the previous debates on this Bill and the previous one, saying that the Government have given themselves powers to satisfy those requirements—powers to ask the regulator to review its rules. I do not object to that, but it hardly has any independence or new eyes. There are powers to seek independent reviews but as we know from experience, because those powers have been around for a while, such reviews have not been used quickly or frequently. They tend to follow a sequence of disasters, as the Gloster review did, and not to be done in any checking or anticipatory way. I understand why that is, because government must keep a certain distance and look for some systemic concern rather than one-off causes, but that distance leaves a gap.
Of course, there are powers to intervene by way of directions, which need to be used with care if the independence of regulators and international respect for them are to be maintained. None of those powers satisfactorily address how there should be checking in a way that permits private submissions but remains free of it looking as if government either is interfering too much and getting too cosy with industry, which is what it will look like if the Government use their powers to intervene as much as might be needed, or never acts until there has been substantial damage, when it really is too late.
I would also be interested if the Minister would inform the Committee of the level of resources and number of personnel that the Treasury is able to put behind its own monitoring, and whether it is free from reliance on industry and consultancy involvement. It is no good if it is just sent back to the same people, who will give the same information as comes in through the private channels anyway. How is that meant to be independent? I hope the Minister will take account of the fact that calls for independent review, as well as enhanced parliamentary scrutiny, come from all sides of the House and need to be addressed. There should be some serious conversations before we get to Report.
I will briefly say a few things about the amendments put forward by the noble Lord, Lord Lilley but I agree entirely with the noble Lord, Lord Tyrie. It would be a dreadful shame if one of the major achievements of this Parliament after the last financial crisis were watered down or, even worse, set aside. I fear that, as has been explained, that could well be the case. When the noble Lord, Lord Lilley, introduced his previous amendments, I said that I am not totally against a libertarian approach—one where you have to take care, and if you get it wrong then you are for the high jump—but that is not what is presented here. This proposal would make it extremely difficult for the regulators. It does not fit with the kind of regulatory system we have, with its underfunded regulators. It is a way to make it easy to set aside what the regulators have done. Given what I just explained about the relationship that firms have with their regulators—one of the reasons why, regrettably, they will shy away from legal action—it will not necessarily overturn that.
I do not agree with the predictability and consistency objective, for the reasons that others have explained: we want agility and change, and have to adapt to circumstance. If something comes to court, surely it could remain that a judge ultimately applies it, but that would be in the light of circumstances and an acknowledgement that circumstances change and regulation necessarily proceeds.
Likewise on a good-faith defence and reasonableness, my take on the senior managers regime is that the whole point is to make individuals be proactive, rather than just coasting along in what has been a comfortable way of life—how things have always been done. It has meant they have to engage their brain, think about it and update in the light of circumstances. Just saying, “There was a set of rules and I complied”, is not meant to be enough; you have to take account of what is going on.
Is there not a conflict here to some extent between people on the one hand talking about wanting principles-led regulations and, on the other, talking about that being vague? There are complaints that there are too many rules, yet it is industry compliance departments that are first off the blocks saying, “Where are the rules? Give us the rules! I want to know where to put my tick”, so I am not sure which section of the market this proposal is supposed to serve.
Baroness Penn (Con)
My Lords, I would never want to speculate as to future parliamentary timetables. My noble friend Lord Naseby talked about the importance of listening to those who are impacted by the provisions of the Bill. He spoke about the City, and we have heard various points of view in that respect. I would add consumers into that mix, too. I say to noble Lords that the Government have consulted extensively on the approach we are taking in the Bill, and we have received a number of responses on this specific issue in both future regulatory framework review consultations that took place. Although I absolutely recognise that a small number of respondents were supportive of further consideration of such a body, the vast majority were focused on how existing mechanisms for accountability to Parliament and government and engagement with stakeholders could be strengthened. The Government therefore decided, in response to those consultations, against creating a new body, and focused on ensuring that the mechanisms for Parliament and government to scrutinise the regulators are effective.
Baroness Bowles of Berkhamsted (LD)
Will the Minister clarify what the questions were in the consultation? My recollection was that it was relatively open. Obviously, at that stage, industry was focused on its very important relationship with government—one cannot overestimate the importance of that—and it answered questions saying that it was happy with parliamentary scrutiny, but I have no recollection of there being a suggestion as to whether there should be another body that enabled any kind of regular review. Since that time, industry bodies have said that it would be a good idea, so it seems a bit inconsistent to claim that the consultation cleared the way to say that none was required.
Baroness Penn (Con)
My Lords, I was simply pointing out that this Bill is the result of two rounds of consultation. The Government are criticised for bringing forward proposals without sufficient consultation. I note the noble Baroness’s points but, even in the context of those questions, there were bodies that put forward the kinds of ideas that we are discussing today. However, in the balance of responses to that consultation, they were not the dominant voice or viewpoint from the range of different people who responded to us.
Baroness Penn (Con)
That is not what I am saying. One of the things that I was referring to with regard to the powers in the Bill was an amendment tabled in the Commons stages to try to respond to further questions about how we can facilitate accountability. I think I have been clear to all noble Lords in this Committee that that is a question that the Government will continue to consider and to engage with noble Lords on, whether it is about strengthening parliamentary accountability or other measures that help to provide the information and resources that people need to do that work. The Government will continue to reflect on those points.
Baroness Bowles of Berkhamsted (LD)
I am sorry to interrupt, but I find it slightly strange that the Minister is saying the Government will continue to interact with us. All that that interaction has been so far is “No”.
Baroness Penn (Con)
In Committee, we are discussing the different proposals that have come from noble Lords to solve these problems. I am trying to set out where the Government have previously considered these questions and the thinking behind our approach in the Bill, demonstrating that where we have been able to, for example in the introduction of Clause 37, we have made amendments to the Bill further to take into account some of these issues. When it comes to the specific proposals we are talking about, it is right that I set out that this has been considered by the Government, including through public consultation.
Baroness Penn (Con)
It would be best to set out in writing for noble Lords the specific areas of the consultation that sought to address the issues we are discussing today. As I have said, in response to those consultations, certain respondents put forward proposals in this area, so it is not right to say that it was not a topic for consultation. However, as my noble friend wants clarity on the record, I think that would be best delivered in writing.
Baroness Bowles of Berkhamsted (LD)
Perhaps I could intervene on this important point. In the first consultation, there were some respondents—I confess, I was one of them—who put forward notions of there being independent scrutiny. There were possibly some other organisations, I do not know, of the kind that come forward with policy ideas. But I suggest that the majority of respondents tended to be from the industry, and it is not usual for industry to invent new ideas in their responses to consultations. I asked some of the industry bodies about this at the time, and that was the response I got. They said that they thought that, as I had led the way, they might want to pick it up in later consultation—but by the time you get to round two, it is much more concentrated on what will be in the Bill and “Do you agree with this?” It does not say “And, by the way, what have we left out that might have been a good idea?” Industry does not spend its time and risk putting in responses about that kind of thing.
I should be very interested to hear the analysis of the type and numbers of people who responded. Frankly, we have to rely on what we are told. Once upon a time, you used to know who had responded and could judge, and if the weight of the responses came from industry, I am not surprised that there was nothing in there. If the weight of the responses from the non-industry part had some good ideas, perhaps the Minister could tell us.
Baroness Penn (Con)
As I have said, I will set out further detail on the consultation process in writing. It is worth just noting that this question was also considered by Parliament through the Treasury Select Committee in its report The Future Framework for Regulation of Financial Services, which said that
“The creation of a new independent body to assess whether regulators were fulfilling their statutory objectives would not remove the responsibility of this Committee to hold the regulators to account, and it would also add a further body to the financial services regulatory regime which we would need to scrutinise.”
Baroness Bowles of Berkhamsted (LD)
I think the Minister has just said that she will engage but that the answer is still “no”.
Baroness Penn (Con)
I have set out why the Government have concerns and that we should have further conversations to explore the issues that have been raised. I believe that is neither a “yes” nor a “no”.
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsMonday 20th February 2023
(1 year, 9 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-V(a) Amendment for Grand Committee (Supplementary to the Fifth Marshalled List) - (20 Feb 2023)
Baroness Bowles of Berkhamsted (LD)
My Lords, it is a pleasure to open day five in Committee on the Bill. First, I will relay apologies from my noble friend Lady Kramer, who is not in her place, having had knee surgery last week. She is recovering well and will return as soon as she has permission from her surgeon.
Several of today’s groups concern accountability, both how regulators are accountable to Parliament and then, as with this first group, what that accountability to Parliament means. Is it more than a hot-seat grilling every now and then? What happens to the output of that accountability?
Here I challenge the Government, who have made much of the regulators’ accountability to Parliament in the consultations but then, during the passage of the 2021 Act, said that that accountability has nothing to do with government. We can all see through that. The examples that the Government have set are: failing to reply to committee reports in the allocated time; failing to find parliamentary time for debates on committee reports; and even failing to attend Lords committees, including such important committees as the Economic Affairs Committee and the Industry and Regulators Committee, which engage in financial services matters, and on both of which I and other noble Lords present have served for many years—so we know what we are talking about.
The question is: do the Government want to be part of this scrutiny or not? Do they want the regulators and Parliament to form their own arrangements together and maybe gang up on the Government? I have had experience of organising that in order to challenge the European Commission, and I can see similar seeds being sown here. This is the last chance saloon for the Government to stand by their advertising on parliamentary scrutiny.
I have eight amendments in this group, but it is really four for each of the FCA and PRA instances. I can be brief on the detail. They all relate to the independent reviews of regulators’ rules that can be commissioned by the Government. Amendments 78 and 145 insert into the Government’s powers of review the possibility to seek thematic review as well as reviews of specific rules. They do not compel the Government to do this; it is an empowerment. The Government would still have control over what they choose to implement, but it seems a reasonable power to have. The noble Baroness, Lady Noakes, has supported this amendment so, to go by the commentary that has been made, if we two agree then there must be something in it. It may well be that a thematic review would in fact be more useful for general issues rather than having to identify specific rules, which might not be comprehensive. I would want this if I were the Government.
Amendments 81 and 148 are related and more prescriptive, in that they require the Treasury to establish a rolling programme of thematic reviews and report annually to Parliament on that programme and any changes made to it in the light of other reviews that might be carried out for other circumstances. They also require a work programme for the next three years, along with indicative timetables. The Government would still have control of the programme, but a programme is required.
I have tabled these amendments because somebody should be, if you like, regulating the regulators. My attempt during the passage of the previous Bill to establish an oversight body failed to inspire the Government. These amendments highlight that all the responsibility therefore falls on government, and it is what a responsible Government might be expected to do.
Amendments 79 and 164 include parliamentary committee requests as a potential trigger for the Government to commission an independent review. Again, this is not a compulsion, as the power to seek that independent review would still reside with the Government. The Government claim that there is parliamentary oversight of regulators; this would be a small step in recognition of that, while respecting the work of committees and the evidence that they collect.
Finally, Amendments 80 and 147 require the person appointed to do the independent reviews to be approved by the Treasury Select Committee, as well as by the Treasury. If Parliament is to be regarded as having oversight, these are the kinds of things that endorse that status. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
The noble Baroness mentioned Amendment 164 but I wonder whether she meant Amendment 146, because Amendment 164 is in a later group.
Baroness Noakes (Con)
My Lords, I support Clause 27 and, in particular, its new Clause 3RC of FSMA, which allows the Treasury to require the regulators to review their rules. As the noble Baroness, Lady Bowles of Berkhamsted, said, I have added my name to her Amendment 78 because it is important to widen out the scope of the reviews which the regulators will have to carry out. I also support her Amendment 145 for the same reason and should have added my name to it as well, so that we cover both the PRA and the FCA.
A lot of the things that regulators do are grounded in the specific rules that they apply, which is the focus of new Clause 3RC, but it should also be possible for the Treasury to tell the regulators to review, for example, the cumulative impact of rules as they affect innovation or new market entrants or any particular segments of the financial services industry. The Bill as drafted simply does not give the Treasury that power.
My Amendment 79A in this group seeks to involve more parties in the review-initiation process. At the moment, it involves only the Treasury and the regulators. My amendment is designed for other voices to be heard and responded to by the Treasury; it would require the Treasury to “consider any representations made” by various sources. I have included all the statutory panels attached to the regulators, including those created by the Bill. These panels ought to have good insights into how the rules work in practice and their opinions on which should be reviewed should be heard, so my amendment says that the Treasury must consider representations from representative bodies, which would include all trade and consumer bodies involved in the sector.
My noble friend the Minister may well say that the Treasury will of course consider any representations made to it in respect of the review of rules and that it is quite unnecessary to put that into statute. I accept that, but only up to a point. The relationship between regulators and their sponsoring departments is often much too close and certainly has the potential to shut out anything that might be uncomfortable for either the regulators or the sponsoring department, or both. That is why the second leg of my amendment requires the Treasury to “inform the body” making the representations if it decides not to require a review.
I do not believe there should be any power for outside bodies to tell the Treasury what it should do, but there needs to be something to counteract the imbalance of power that the Treasury has. Transparency is often the best remedy and it is, in effect, what I propose in my amendment by requiring the Treasury to respond with reasons for not pursuing a particular review. If Ministers do not like the idea of transparency by the Treasury, my noble friend will need to be very persuasive when winding up this debate.
Lord Harlech (Con)
I am sorry; at this stage, I will have to take that back to the department and write to my noble friend.
On Amendments 80 and 147, tabled by the noble Baroness, Lady Bowles, the new rule review powers inserted by Clauses 27 and 46 concerning the appointment of an independent person are in line with the practice of other powers in the regulatory framework. For example, the appointment of Dame Elizabeth Gloster to investigate the FCA’s regulation and supervision of London Capital & Finance plc was approved by the Treasury. The Government do not consider that it would be appropriate to require that appointment to be subject to approval by a parliamentary committee, which, as I have mentioned, can already undertake its own inquiries.
Amendments 81 and 148 were also tabled by the noble Baroness, Lady Bowles. The primary role of the Government in the regulatory framework is to ensure that the regulators operate effectively and in accordance with the framework, as set out by Parliament in legislation. Where there is a case for external review of the rule-making of the regulators, the Bill provides powers to enable this.
Section 1S of FSMA and Section 7F of the Bank of England Act 1998 already permit the Treasury to appoint
“an independent person to conduct a review of the economy, efficiency and effectiveness”
of how the FCA and the PRA use their resources. In addition, Section 77 of the Financial Services Act 2012 allows the Treasury to direct an investigation into relevant events, such as the FCA’s regulation and supervision of London Capital & Finance plc.
The Bill further strengthens these accountability arrangements with regard to specific rules through Clauses 27 and 46, allowing the Treasury to direct the regulators to review their rules. In addition, as we have already discussed in this Committee, Clause 37 inserts new provisions into FSMA which permit the Treasury to direct the FCA and the PRA to report on performance where that is necessary for scrutiny of the discharge of their functions. Clause 47 modifies FSMA so that these provisions also apply to the Bank of England in relation to its regulation of CCPs and CSDs.
Finally, as I have already mentioned, Parliament is already able to conduct thematic reviews where it considers these necessary. Clause 36 is designed to support this scrutiny by requiring the regulators to notify the Treasury Select Committee of their consultations and to respond to representations to consultations by parliamentary committees. We will discuss noble Lords’ views on the operation of those specific provisions later today.
With that, I hope I have provided sufficient reassurance to the noble Baroness to withdraw Amendment 78, and that she and my noble friend do not move the remaining amendments when they are reached.
Baroness Bowles of Berkhamsted (LD)
My Lords, I am afraid that the Minister has not given me any reassurance. I think the only thing I have learned is that the Treasury is all at sea and does not understand what parliamentary scrutiny is actually about. It has to have effects and consequences. It is no good saying that Parliament can do its own inquiry and its own report and it is a very pretty document—yes, quite a lot of people praise such reports from time to time—but nothing happens. The attitude of the Government is that these reports can be completely ignored, that there is nothing in them that they wish to do—they do not want anybody else to have any ideas. That is a poor state of affairs.
There are some things that the Treasury does all right. I agree that, for example, when it appointed Dame Elizabeth Gloster to investigate the FCA, it appointed a good person and there has been a good report. I think that in general the people who have been appointed by the Treasury have been reasonably okay, but that does not mean that the responsible committee should not be able to have a view. I can think of instances in other departments where totally unsuitable people have been appointed to do some reviews.
What is wrong with Parliament having a say? I do not think that the constitutional point, as made by the noble Lord, Lord Tunnicliffe, has been understood. We still do not know how high a barrier this “public interest” is. The public interest is just what the Treasury thinks from time to time, by the sound of it. I do not think that there are sufficient safeguards there for when the regulators, as the noble Lord, Lord Forsyth, said, are, in essence, marking their own homework. This is something that has gone wrong in the past.
Yes, Section 1S is there but it is not used often enough. It is a last resort when you have had a whole history of errors and similar things happening and then there is a review. The whole idea of regular review is to make sure that you can intervene before big things happen, that there is the ability to nudge if something is heading off in the wrong direction. You can say that the review is, “All clear: it’s going well”. Why is there such a fear of them?
We will continue this discussion, because there are many formulations in which this can be done. If the Government do not want to have responsibility for it, maybe there has to be some kind of independent body to do it. While Parliament may be ready and willing to do it, what is the point when you are going to ignore what Parliament says? That is not parliamentary scrutiny; scrutiny must have a purpose and must lead to a result.
As this stage is exploratory I will, of course, withdraw my amendment but, as we go through the rest of this group, I hope that some enlightenment will dawn on the Treasury that these are not issues that can be just left. There is a body of opinion around the Committee, on all sides and none, that something has to be done. Most certainly, I will support things returning on Report.
Lord Tunnicliffe (Lab)
Can I say a couple of words about regulation and regulators? This is usually a political divide and I am proud to be on my side of it. I believe that society is the richer for good regulation; I am against bad regulation but in favour of good regulation. When one has good regulation, the problem is often that it is poorly executed. These financial regulators do the execution, so processes to hold them better to account have to be a good thing. That may include the distasteful fact—it may or may not emerge—that they are underresourced. Certainly, this sort of debate will bring out those sorts of issues.
I have to be careful here, but my general view is that this is really a rather good group. I shall consider it carefully and discuss it with colleagues across the House between now and Report to decide on the extent to which we will support it. I strongly recommend that the Minister does as asked and enters discussions with us, to see how much of this can be agreed and included in the Bill. We had a similar tussle two years ago when we did a big chunk of this and tried to draw in the regulators more. The regulators put down on paper that they were willing to talk to us more. The problem was that we did not have mechanisms in the House to take advantage of that. This would be a game-changer, by breaking through into that area and creating processes to have proper accountability and scrutiny—supervision is the wrong term—of these enormously powerful regulators, which are vital to the success of our financial markets, in terms of both opportunities and appropriate restraint to avoid catastrophes.
Baroness Bowles of Berkhamsted (LD)
My Lords, I strongly support the proposals for a Joint Committee. As ever, the noble Baroness, Lady Noakes, has researched this well. I know she has been looking at it for a long time, because we talked about it back when we debated the 2021 Bill. I commend the thoroughness with which she has done that. I also welcome the amendment by the noble Baroness, Lady Lawlor. One thing about that proposal is that it would be slightly larger at 12 members, instead of nine. It is a different committee, as has been explained. I have done this kind of scrutiny and we really need to think what volume of it there will be—especially now, post Brexit.
After the financial crisis, when I was chair of ECON in the European Parliament, we did 40 pieces of major financial services legislation—directives or, if that Parliament wanted them to be more direct, regulations. That is a huge number, and the volume of rules that came out from them is even more huge. It is an enormous task for the regulators doing those rules and for those who have to scrutinise them. My committee, which did that scrutiny work in the European Parliament, had the advantage of doing the legislative side first and then moving on to the rules. Nevertheless, it had some 60 members so could specialise in small groups, rather as we do with a Committee of the whole House; we self-select a group. Some people would do banking, some would do funds and some insurance. There would be a happy band, probably only five or six, who developed extra expertise in the self-selecting sub-committees. Of course, within that idea of self-selection, you could run parallel informal sessions at the same time.
With our small committees, we will not have the ability to do that. There is no way we can emulate it, as we have already said. Nevertheless, we should think about the size of the committee we might want. I thought having 12 was better than nine, but maybe the number has to be odd. If you go to 13, that is not a happy number so let us up it to 15. Maybe that is as far as we can push it.
I think that a lot of the work of such committees will not be everyone wanting to get in on questioning somebody. An awful lot of such work is an awful, dreadful grind of going through document after document, and documents explaining the documents, then asking somebody what the hell it all means anyway. That is time-consuming. We should have a few more people concentrating on that, maybe with the opportunity to specialise. If we rotate the committee membership frequently we might lose that expertise, although in this House at least we do not seem short of people who can turn their minds to these kinds of things. I know that that is more of a comment, but maybe we can bear it in mind as we debate among ourselves what we will do on Report.
Baroness Penn (Con)
Perhaps I could finish my point; we will also come to this issue in the next group. In seeking to ensure that the relevant committees of Parliament have the information that they need to do their jobs, the Bill references the TSC, but I acknowledge that other committees in Parliament have done this role in the past or may wish to do it in future. That is something we will want to reflect on in our discussions of both this group of amendments and the next one. I recognise the point that has been made to me and will, I think, be made to me again in our debate on the next group. Although there is precedent for the TSC—indeed, it has set up its own sub-committee on this matter—I completely see the value of contributions of committees from this House or, if Parliament determined it, Joint Committees. We want to reflect carefully on how we can ensure that we are able to facilitate that also.
The noble Lord, Lord Vaux, invited me to reflect on this discussion and discuss with noble Lords between Committee and Report if and how we can take the thoughts and ideas further. That is something that I would be very happy to do. We will reflect on the points raised during this debate and consider them carefully before Report.
I wanted to make two points regarding this group. First, it is for Parliament to determine its committee structure and it has the ability to determine that, including the establishment of a Joint Committee, through existing procedure. Establishing a Joint Committee through statute is the exception rather than the rule and reflects the specific circumstances of the Intelligence and Security Committee. It is, I think, the only committee that has been established by statute in the last 100 years or so.
The other point, which we will discuss further, is that although we do not want to determine the correct committee structure, we do want to ensure that committees have the information they need to do their work. We have put clauses in the Bill to reflect that but, as I believe we will come on to, we will want to consider whether they fully reflect the work done in both Houses to scrutinise the regulators.
Baroness Bowles of Berkhamsted (LD)
I do not know whether the Minister is going to come on to this, but I hope she will also say something about what I called the consequences of scrutiny and what my noble friend called accountability. We can set up all the committees we like within the permissions of the parliamentary structure, but the point is what the Government then do and take notice of. There is no point in doing it otherwise. That is what we want to hear: how are they going to, as I would say, put wheels on it so that the reports are acknowledged? We are not saying that the Government or the regulators have to take everything but they at least need to comment and such things. Will the Minister say something about that, please?
Baroness Penn (Con)
On that point, the noble Baroness referred to the Government responding, but we are broadly discussing the committee’s scrutiny of the regulators and the Government’s role as well. The Bill provides a specific power to ensure that the regulators respond to representations made to them by parliamentary committees in response to their consultations. That clause is not limited to the Treasury Select Committee but applies to any parliamentary committee that makes a representation.
I look forward to debating the next group, which continues the theme, but for now, I hope that my noble friend will withdraw her amendment.
Lord Naseby (Con)
My Lords, I have a couple of quick comments. I have had the privilege of being across the two Houses for coming up to half a century. In my judgment, this Bill, which has a clear objective of growth—a brand-new element that has not been laid on financial services before—means that Parliament needs to show leadership. We are not often asked to show particular leadership but, with this substantial change, we in Parliament need to show leadership. That is what this amendment is all about.
Baroness Bowles of Berkhamsted (LD)
My Lords, I have two rather modest amendments in this group. They are again part of my drawing attention to the fact that there needs to be accountability to Parliament. All they would do is insert that, when a regulator does its consultation and is giving the notification to Parliament, it should mention and draw attention to the fact that issues have been covered by a parliamentary report. I know that the regulator will already have responded to a parliamentary report but it might have been some time sooner.
This is a relevant issue. Any sensible regulator would probably make the comment anyway but that does not mean you cannot put little pieces into legislation here and there that just remind people of the status of parliamentary reports. That is what these two amendments would do, with one for the FCA and one for the PRA. When those notifications come to Parliament, they would have to indicate when they have been covered by a parliamentary report. They would not have to say that they agree with it; one presumes that they would comment on it.
I will not say anything more about the scrutiny—I have said a lot already—other than that I basically agree with everything that everybody has said. We are all agreeing with one another. When the Minister has meetings to work out what concessions can perhaps be made, they will have to be substantial, not a little tweak. They will have to recognise the importance and magnitude of financial services—including the great power that they have, as has been said—and move towards what must be great accountability to measure up to that great power.
Lord Tunnicliffe (Lab)
My Lords, I hope I will be forgiven for not going through my various amendments. Their essence seems to be in the general direction of this group of amendments and I think it highly likely that, between now and Report, the supporters of this group will knock together a cohesive set of amendments to achieve our common objective. I know that the noble Lord, Lord Forsyth, finds it painful but we are agreeing with each other on this group.
One of the problems of society is that people grow old in waves. We are already running out of people who have forgotten about the last financial crisis. It was by a hair’s breadth that the economic system in the world did not fail. It took some brave decisions, in this country in particular and in the United States, to save the world from an economic catastrophe. This is different from the Intelligence and Security Committee but in no way is it less important. It is crucial to this nation.
We are suggesting that we in this House should be a backstop. That is not particularly surprising because that is what we do all the time. When the Government do not have a working majority, I believe that they are much more alert to what happens in this House because, suddenly, they are all there, they have their majority, they have got something through the House of Commons but then it runs into the Lords and new questions are asked. People spend a lot of time worrying about particular points. Yes, our role is a backstop, but we could not be one as the Bill is drafted at the moment because it sees two levels: the House of Commons level and the House of Lords level. This Bill brings us into parity of access. It is not nearly as comprehensive as the proposal from the noble Baroness, Lady Noakes, but it is a basic matter of equity to bring this on to a level playing field.
My next point concerns the issue of volume. The volumes will be very significant. One of the best things that the House of Lords does is its committees, where people actually put the time in. I really am quite pleased that I avoided becoming an MP. I only aspired to it before I knew what it was all about. Once you are an MP—I hope that ex-MPs will interrupt me if I am wrong—the first thing it is all about is getting re-elected. That requires a lot of work in the constituency and all that sort of thing. That is all part of the democratic process but the volumes need the sort of people who are in this House—as the noble Baroness, Lady Bowles, said, they almost self-select—to put the effort and energy in.
Scrutiny is not a negative process. Too often, in the way we run bits of society, it is a single heroic leader passing down the rules, but very good organisations encourage dissent in their top teams—not external dissent but internal dissent where people ask, “Do you really mean that? Have you thought through the consequences of that?” The effect of those processes is extremely benign. Either things get changed for the better or people understand what they are saying better and are able to present it better. Scrutiny is an extremely positive thing.
The mood that has got us here today has been around for years, I would say. We need a discontinuity; this group of amendments is the minimum discontinuity that I believe this House will tolerate. We will all be working across the House over the coming weeks to put together something that cannot be resisted. I hope that the Minister does not floor us by coming forward us early on in discussions with some sensible concessions to embrace the direction of this group.
Baroness Bowles of Berkhamsted (LD)
My Lords, again, I have a few niche amendments in this group. I have never been entirely comfortable with statutory panels. I understand their origins as wise men—undoubtedly, they were supposed to be men then—and that they formalise and take into the structures the voices of experienced people, but I am concerned that either they become about favoured sons or daughters or there is a potential to capture the people on the panels. Neither am I necessarily convinced that having them fragmented is all that sensible, because if you discuss things that may be relevant to big business in isolation from the public interest and smaller business, the big picture that is then put together is left to the regulator.
Those are the issues in my mind as I propose my amendments. I was not going to unpick the panels, but I suggest that every panel should have to have on it some representation of the public interest. That is probably already there on the Consumer Panel, but it is not on some of the others. Amendments 141 and 142 are to make sure that, even when you are dealing in a more specialised context, somebody is there putting the pieces together with regard to the bigger picture. I am not saying that they are supposed to keep intervening and doing the consumer bit when you are on the big business bit, but this is part of making sure that you are not too compartmentalised.
For a similar reason I have, in Amendment 143, proposed empowering Parliament to nominate one person to panels. This is part of Parliament representing the public interest. I am not saying that a parliamentarian should be on that panel, but it could choose to do that. In its wisdom, the European Parliament once chose to do that to me, and to some extent I wish that it had not, because it was a lot of work. When we started having these positions through appointment from the ECON committee, the Commission initially did not like it, then eventually it decided that it did rather like it because it helped to join up the processes and open up transparency and communication channels.
That is the point of suggesting that there be a parliamentary nominee. Again, it is just to make sure that we do not have sameness all the time, with the nominations coming from the same place. That is one way that it could be addressed. If others have other ideas to address the same problem, I am quite happy that those be incorporated, but those were the points of my Amendments 141 to 143. I think I am in common cause with the noble Lord, Lord Holmes, who does not want the panels to be the plaything, if you like, of the regulator, and with the noble Lord, Lord Lilley, who thinks that they are appointing their own examiners. I am trying to address the same problem. Whoever’s amendments we work with, the message again is that we need some change in this area.
Lord Flight (Con)
My Lords, the big change over the last decade has been the explosion in the number of people and the costs of those working in the regulatory context. I would have hoped that this debate and further consideration would look at what really adds very little to this Bill but costs a fortune in terms of people.
“Recommendations to FCA and PRA: systemic risk
In section 9Q of the Bank of England Act 1998 (recommendations to FCA and PRA), after subsection (2) insert—“(2A) The Financial Policy Committee may make recommendations to the Pensions Regulator, FCA and PRA about financial stability and systemic risk from investment strategies in Pension Funds, including concentration, risk modelling, margin, collateral and stress testing.(2B) The Financial Policy Committee may request a joint annual report from the Pensions Regulator, PRA and FCA about investment strategies in Pension Funds, and the outcomes of any risk modelling and stress testing, and to highlight aspects of investment or otherwise that may present a risk to financial stability or systemic risk.(2C) The report must be sent to relevant Parliamentary Committees.””
Baroness Bowles of Berkhamsted (LD)
My Lords, this is probably an appropriate time to remind the Committee that I am a member of the international Systemic Risk Council and a director of the London Stock Exchange. My three amendments in this group are inspired by the events of last September, when it became necessary for the Bank of England to intervene in the gilt markets, and by the subsequent inquiries into and analysis of liability-driven investment, especially leveraged liability-driven investment.
The Lords Industry and Regulators Committee recently published a 22-page letter to Ministers—it is more like a mini-report—following its investigations into LDI. Among its suggestions was that, like the PRA and the FCA, the Pensions Regulator should come under the “comply or explain” category for recommendations made by the Financial Policy Committee; I am aware that this suggestion was also floated in the Economic Affairs Committee’s session with Sir Paul Tucker. This is exactly what my Amendment 149 would do, together with the necessary context—in this case, regarding
“systemic risk from investment strategies in Pension Funds, including concentration, risk modelling, margin, collateral and stress testing.”
I have also included specific mention of the FCA and the PRA, both to clarify their roles in relation to systemic risk from pension funds and to emphasise that pension funds need to be considered in that context because it is inevitable that there will be far more correlation and groupthink than there would be among other groups of funds. The collective size of pension funds and their substantial role in gilt investment is not going away; the specifics of the Pensions Regulator’s rules and accounting standards relating to pension scheme valuation have driven and will drive that correlation, even if adjustments are made. It would take too long to cover all the things that have come to light but one reason why such an amendment is necessary is to clarify that it is an ongoing source of systemic risk that must be routinely monitored.
It is true that, in 2018, the Financial Policy Committee noted the fact that leverage in pension funds was greater than in hedge funds. It also noted the substantial concentration—indeed, almost a cornering of the market—in index-linked gilts. The claim is that the FPC then worked with TPR, the FCA and the PRA on stress tests. Further analysis by TPR in 2019 highlighted again that there was significant borrowing and leverage in large defined benefit pension funds but, again, it left out analysing the smaller end of the market, where operational challenges were greatest. TPR said that it could not impose on the small schemes, while we heard from L&G in the Industry and Regulators Committee that it got the okay for its pre-existing buffer of 100 basis points.
Frankly, nothing got changed. Nothing was done on leverage. The Bank sat happily by as sponsor companies effectively ran off-balance sheet hedge funds in their pension schemes. Nothing was done about the concentration in index-linked gilts and—guess what?—when the glitch came due, to the mini-Budget, the part of the market that was cornered found it had nobody else to sell to. So, it was a pretty bad job all round. Meanwhile, many are patting themselves on the back because the mark-to-market valuations, following accounting standards based on gilt discount rates, make it look as if liabilities have dropped more than the drop in asset valuations, so they say that the losses do not matter. It is, of course, an illusion: the pensioners are paid out of real assets and the losses will be paid for, down the line, by the sponsor companies and the taxpayer via tax relief. That will be measured in very many billions.
To put in some real figures, pension schemes had assets of £1.8 trillion. Losses are put at £400 billion by the Pension Protection Fund; others reckon it may be £500 billion. The ONS will tell us the actual figure next month. That £400 billion or £500 billion has to be replaced, whether through sponsor contributions or growth. All that will be tax advantaged in some way, thus a loss of maybe some £100 billion to the public purse, without any increase in pensions from which tax would be recouped. None of this is escaped through buyout.
Whether you are a back-patter or a sharper analyst, we cannot afford a repeat and routine reliance on Bank of England intervention. There has to be increased diligence. As part of that, the specific need for the Financial Policy Committee more thoroughly to consider pension funds should be up there in lights and in legislation. That is the basis for the proposal in my Amendment 149.
It will be noticed that I have then amended my own amendment with Amendment 149A, which would also bring accounting standards and the endorsement board under the auspices of the Financial Policy Committee. This is not a totally off-the-wall suggestion because the Bank of England used to have a role in accounting standards back in the day, before Basel standards took over for banks. Nowadays, the Bank is not interested in accounting standards because it does its own calculations. That is, in fact, a quote from an important person at the Bank, who I will not embarrass today because it was made privately, but Andrew Bailey also told the Treasury Select Committee that he did not understand arcane pension fund accounting.
However, accounting standards can substantially affect the economy, financial stability and systemic risk, and there is no systemic oversight. After the financial crisis in the US, Bob Herz, then chair of the Financial Accounting Standards Board, asked to be given accountability to Congress. In the UK, we accept international standards created by the IASB, a private body, after review by the unaccountable endorsement board, which has no financial stability or systemic risk remit or experience.
Liability-driven investment and concentration in gilt investment was driven by the predominant use of gilt discount rates in accounting standards for valuing pension scheme liabilities on corporate balance sheets. The volatility that gave to corporate balance sheets drove towards investments that would match and counteract that volatility—that is, towards gilts and, in particular, away from equities. Indeed, as given in evidence to the Work and Pensions Select Committee, the extent of this is such that the London Stock Exchange listings are the most foreign-owned and most subject to foreign takeovers of any major exchange.
Matching accounting standard valuations has dominated thinking to the extent that the FTSE group of 100 CFOs has written to the Work and Pensions Select Committee, essentially saying, “We’d rather invest in gilts than in ourselves.” Meanwhile, as I have said, the “nothing to see here” illusion in the attitude to pension scheme funding—despite asset losses and because the gilt-linked discount rates on liabilities has made them look smaller—prevails even at the Bank of England over its own pension scheme.
Baroness Penn (Con)
My understanding is that that is what the FPC does. One of the mechanisms by which it does it is through its stress tests; it operates regular stress testing of the banking system and has also undertaken stress tests of the non-bank system. For example, in the latest Financial Stability Report in December 2022, it included a specific chapter on market-based finance. In 2023 it will run for the first time an exploratory exercise to test the resilience of the financial system against a scenario focused on the risks associated with market-based finance. This is one route by which it seeks to explore and seek out what those risks could be, to help inform understanding of those risks and future policy approaches that should be taken to mitigate them.
As I have said, much of the work needs to take place at an international level, but I accept the point made by the noble Baroness, Lady Bowles, that we also need to take unilateral action at home to reduce domestic vulnerabilities where it is effective and practical to do so. That work is ongoing.
I hope I have dealt with the noble Baroness’s amendments and reassured noble Lords that the Government are conscious of the risks—including systemic risks—that can be posed by the non-banking financial sector. With the FPC, we are undertaking further work to ensure that we can better understand and explore those risks, and take domestic action where possible to mitigate them, but also lead the work internationally to ensure a co-ordinated response.
Baroness Bowles of Berkhamsted (LD)
I thank all noble Lords who have spoken in this debate. I will reply to some of the points, but I will start with the Minister’s response. I am a little disappointed in two things. The main point of these amendments is to draw attention to the fact that, while the Bank of England and the FPC maybe had the powers to do things, they did not do them. As the noble Baroness, Lady Noakes, and I said, they did not do them after having spotted that the problems were there.
They did something pretty de minimis—some stress tests that basically followed what the industry was already doing—and left out the smaller end of the market. Had they put their thinking caps on, they might have realised that that is exactly where you would have problems with providing collateral. They did not do it because the Pensions Regulator said, “We can’t put this onus on the small schemes”. Maybe that was a comply or explain type of answer, but they just took it as given.
The fact is that, once again, they are shutting the stable door after the horse has bolted. I am saying that they need to be more proactive. They have to stop being scared. This was not an issue where, by doing something first, we would have put ourselves at a competitive disadvantage with industry in other countries; that is why you do “hug a mugger” or “let’s do international rules”. I understand it for insurance companies, where there is big competition and if we do something and they do not do it in Europe, there will be issues.
By the same token, if you think you are ever going to get something agreed about insurance companies globally, you will hear some rude expressions. For starters, in the United States it is state-based, and they do not do Solvency II, so it will be very difficult to get that agreement on non-bank financial institutions, which basically means insurance companies. There is absolutely no reason to prevaricate and hide behind NBFI when you are taking about our specific defined benefit pension schemes. It is just an excuse, and I do not buy it. I do not buy it from the Minister, the Chancellor, the regulators or the Bank of England.
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsMonday 6th February 2023
(1 year, 9 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-IV(b) Amendments for Grand Committee (Supplementary to the Fourth Marshalled List) - (6 Feb 2023)
“Prevention of fraud objective
In section 1B of FSMA 2000 (FCA’s general duties), in subsection (3) at the end insert—“(d) the prevention and detection of fraud perpetrated in or through financial services.””
Baroness Bowles of Berkhamsted (LD)
My Lords, in this group, we return to the issues of fraud and encouraging the financial regulators to be more active. Fraud now accounts for nearly half of all crime and there are still issues around ensuring that there are preventive steps.
I have three amendments in this group, which I offer in order to probe the best way to engage the regulators more actively in matters of fraud. I thank the noble Lord, Lord Vaux, for his support on two of my amendments; I also thank the noble Lord, Lord Naseby, for his support on one of them. I note the overlapping of some of my amendments with those in the name of the noble Lord, Lord Hunt.
My first amendment in this group, Amendment 67, would add an additional operational objective for the FCA in
“the prevention and detection of fraud perpetrated in or through financial services.”
As I have indicated on previous days of our debates, there are questions about where best to place requirements so as to ensure that they are effective. In this case, I put it high in the layering of the objectives, although the requirement of the FCA is in fact only to do things that advance one or more of its operational objectives. As has been said previously, this allows the regulators to pick and choose, and underlies what the public and many parliamentarians see as manifest failure.
With that in mind, I concluded that it perhaps needed to be a strategic objective because that cannot be dodged. After all, fraud is already a significant factor undermining payment systems—in particular, the faster payment system—and calling into question the general sustainability of instant payments.
With that strategic thought, I proposed Amendment 73, which would add to the definition of “relevant markets” in the FCA’s strategic objective. My addition—proposed new paragraph (d)—would include
“the financial markets and the markets for financial services, whether regulated or not, in matters of fraud.”
Given the role of banks, the PRA should also have a similar objective, although my thinking is that it would need to be wider than its applicability to rule-making. I hope that, collectively, we will be able to return to the issue of best placing when it comes to Report. The fact is that our financial services regulators are, or should be, well placed to discover fraud beyond the confines of specifically regulated financial services. There may be freedom in those services being unrestrained, but that does not mean cheating and fraud, as with the Libor rigging case, for example, and other matters that have been discussed earlier.
Baroness Penn (Con)
I absolutely note the noble Baroness’s point. That same principle has informed our approach to proceeds under the Proceeds of Crime Act, so this has happened elsewhere in Government.
I was going to note that, previously, the FSA was able to keep all the income it took from penalties and use it to subsidise the levy it charged on the firms it regulated. That was changed because, when the regulators took a large amount of money from those they had fined, they reduced the charges they made on those firms. In thinking about these issues, we would want to avoid similar unintended consequences in the future.
I close by saying that I have heard noble Lords’ strength of feeling on this debate. As I said on the previous group, I am always open to meeting noble Lords to discuss issues further. We have different ways in which we think those issues can be tackled, but it is always right to see what more we can do. The noble Lord, Lord Hunt of Kings Heath, suggested perhaps having a co-ordinating meeting on fraud, particularly to cover the specific issues raised in the different Bills before your Lordships. I will endeavour to take that forward ahead of Report.
Baroness Bowles of Berkhamsted (LD)
Your Lordships will be pleased to know that I cannot possibly go through everything, yet again, that has been spoken about. I thank all noble Lords who have spoken in this debate. The Minister must have heard the concern from all sides of the Committee.
The only bit of good news that I can hang on to from what was said is that more work is being done on data sharing between banks. That is important. The list of roles of the FCA just proves that it does not have a great deal of power to do things within financial services in general. It can do things with regulated bodies, but that is very limited, as we discussed previously, so I will not go into it again. It can do things with bodies that are pretending to be regulated but are not, but we are for ever bashing up against this regulatory perimeter, one way or another. That just does not deal with fraud, because fraudsters are well aware of it and are going to use it.
We have tried to cover various different types of fraud. Fraud by and in financial services surely should be caught, even if it is by a regulated entity but in an unregulated area. The financial services regulator should still be able to prosecute the entity, not just through cases that deal with criminal matters which it can take; there should also be some regulatory approach. Then there is fraud in which financial services are the final vehicle. Financial services are in a special place because, ultimately, how can you monetise your fraud? You have to put it through a bank or somewhere else, no matter whether it was started or perhaps enabled by a telecoms company, online platform and so on. Ultimately, financial services firms have a special duty for extra vigilance, because that is where this all funnels down.
I agree that probably more has been done to capture these things in financial services than in some of the online platforms and telecoms companies. I will not go through the whole of the very thick fraud report, but there are issues in it that go across the piece. That is part of the problem. We have this complete alphabet soup of organisations that are supposed to be helping us address crime, and fraud in particular, in different ways. However, it is not well co-ordinated, and fraud falls between the gaps, and so it is with the financial services side of it.
One thing that was in the report from the Fraud Act committee was about engaging regulators more in the fight—that is, regulators in general—through having regulatory offences. Here, the imagination has to be used. We should not just pin down regulators to doing very small things within a tiny regulated bit, while everywhere else people can either get away with it or it has to go over to less specialised people to deal with. There are big holes, and we will have to come back to this.
At the bottom of it, there are issues around the funding. You will have to fund regulators more if they are to address fraud more. I do not see any harm in the recycling of fines. They should not be recycled so as to say “Right, now the levy is less”, but they could be recycled specifically for prosecutions. Given that you can turn a profit from them and that you are helping individuals who have had their money stolen, it is very bad if the Treasury does not look at that more favourably. Everybody is crying out for this, but we acknowledge that you have to have money to do it.
For now, I will obviously withdraw my amendment. However, we will have to come back on Report with one or two amendments aimed at furthering things, unless the Minister is able to persuade the rest of the Treasury that it needs to act in this area, as there would be ways in which it could ring-fence the financing and turn a net profit.
Baroness Penn (Con)
The points that I gave in reply to the noble Baroness’s specific question on PPI and interest rate hedging products were in the context of the consumer duty as written, with the reasonable expectations provision in there. However, of course I take seriously the point raised by the noble Lord, Lord Sharkey, and I will write to the Committee to further expand on that.
Baroness Bowles of Berkhamsted (LD)
My recollection from the passage of the 2021 Act was that the final wording was government wording, put in as a concession to amendments from my noble friend Lord Sharkey. The government amendment said that a duty of care, or variations thereof, could be consulted on. Was it the Treasury’s, or the Minister’s, expectation at the time that it would be severely diluted? Was that the point of those extra bits?
Baroness Penn (Con)
I think I said directly what was required of the FCA, and the FCA has fulfilled its obligations under that Act. Furthermore, the FCA is not of the view that it has diluted the approach; it has taken a different approach from the duty of care. I have attempted to set out some of the reasoning and thinking behind the approach it has chosen to take versus the alternatives that were put to it. I am happy to write further.
Baroness Penn (Con)
I do not have a breakdown of the different responses to the consultations. However, as I said, in its feedback statement on a previous consultation on the duty of care, the FCA noted that industry stakeholders did not support a statutory duty of care. It also noted that a number of consumer groups did not support a statutory duty of care. I can point back to when that was considered in 2019 as not being a single view from a single source of consultees.
Baroness Bowles of Berkhamsted (LD)
One is a number, as I was always taught when I was training as a patent attorney. It might mean that one consumer organisation did not agree, but the vast majority did.
Baroness Penn (Con)
The noble Baroness has made her point.
I was turning to the private right of action, which was also consulted on by the FCA. It has concluded that it will not be beneficial at this time to introduce a private right of action, as it sees benefit in giving firms time to implement the significant changes that the duty entails without the threat of private action.
However, the FCA has committed to keeping this matter under review. The FCA has the power to introduce a private right of action through its rules, without the need for legislative change, if it considers it appropriate to do so in future. In addition, as noble Lords know, consumers will remain able to seek redress via the Financial Ombudsman Service where they believe a financial services firm has breached the consumer duty.
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsWednesday 1st February 2023
(1 year, 9 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-III Third marshalled list for Grand Committee - (30 Jan 2023)
Baroness Bowles of Berkhamsted (LD)
My Lords, there are many good suggestions in this group of amendments. Indeed, they are all good and they are all very supportable. It is particular pleasure to follow the noble Lord, Lord Holmes, because with the amendment on the determination of authorisations he has put his finger on a specific problem that interferes with the day-to-day running of businesses, or those hoping to run new businesses, and is at the heart of competitiveness. So without addressing those kinds of issues, we will not get anywhere. This lies behind similar amendments in my name, in a later group, relating to efficiency.
I hope that, given the number of amendments, and no doubt contributions, from noble Lords from all sides, the Government and the regulators will acknowledge the need and the parliamentary appetite for further accountability through formal reporting and, as I point out in my Amendment 121, for independent performance metrics. I thank the noble Lord, Lord Naseby, for signing that amendment. Of course, it is a probing amendment directed at the FCA. To be thorough, there would need to be another one replicating it for the PRA, but I had tabled enough amendments already. I am conscious also that the noble Lord, Lord Bridges, has proposed a more fully developed model, with an amendment in a later group creating an office for financial regulatory accountability. I have signed that amendment.
My amendment suggests that the FCA report its performance against a set of statistics developed and periodically updated by the National Audit Office, in consultation with consumer representatives, through which the FCA’s achievements and progress may be objectively evaluated. The idea for the amendment developed out of discussions that we had in your Lordships’ Industry and Regulators Committee when we were looking at competitiveness in financial services, particularly in the insurance sector, as well as the wider discussion about competitiveness.
The issue with reports by the regulators is that, even within a given topic, they are setting their own exam questions and then grading themselves on how well they have passed. There is a constant need to get different specifics and granularities as new issues arise, and that is not necessarily being done—for example, reporting on authorisations, as I have mentioned. The committee had some discussions with the NAO, finding it very helpful and astute, and there are always lots of interesting things in its report that at times already challenge what the regulators have said about themselves and how they have spent their resources. It sheds light on things that—shall we say?—have certainly been exaggerated by the regulators in the past.
It is clear from the number of amendments in this group and elsewhere that to address problems comprehensively within the structure of FSMA is quite difficult and convoluted, needing many amendments that make it ever more difficult and convoluted. That is one reason to have an external body that can look over everything and cut through some of the obfuscation and difficulty one has in trying to put something comprehensive into FSMA and needing about eight amendments to do it. My fundamental question is: does the Minister recognise that need for an independent body of substance that can update what is reviewed and measured around regulatory performance and is free from the regulators’ own glossing, and if not, why not?
I need touch only briefly on my other two amendments in this group, Amendments 157 and 158. They simply suggest that when respondents to consultations do not wish to be named—that is perfectly reasonable—there should nevertheless be an indication of the nature of the respondents so that we can see how many have come from industry and how many from elsewhere. That is done sometimes; it is done routinely in some departments but in others it is never done. It is just good governance because, without revealing the identity of individuals or companies, you can nevertheless see what the universe of respondents truly looks like.
Baroness Noakes (Con)
My Lords, I have Amendments 83 and 84 in this group and I have added my name to Amendments 66, 115 and 116 in the name of my noble friend Lord Holmes of Richmond. I did not add my name to some of the other amendments in this group but I think a pattern of considerable agreement is emerging from all parts of this Committee as to the things that we need to address. Perhaps we have not quite honed in on how to find the one solution to that, but the purpose of Committee is to explore these things.
My noble friend Lord Holmes of Richmond’s Amendment 66 aims at much the same target as Amendments 45 and 63 in the name of the noble Earl, Lord Kinnoull. I support what both said in introducing their amendments. I understand what the noble Earl, Lord Kinnoull, is seeking to achieve but it is not enough just to tell the FCA or the PRA to monitor and measure what they are doing in certain areas. We need to go further, and into regular and focused reporting, which is why I particularly wanted to support my noble friend Lord Holmes’s Amendment 66. Of course, the two issues are not mutually exclusive, and I can see the start of a way forward to an amendment on Report that encapsulates many of the issues arising in respect of the competitiveness and growth objectives.
I am particularly concerned that the regulators will pay lip service to the new objective: we will get pages of elegant words in their annual reports but whether they will amount to anything useful in terms of information is something of a moot point. I also believe that relatively few people actually read the annual reports of the regulators, much as not many people read the annual reports of listed companies. If noble Lords are in any doubt about the capacity of the PRA to write a lot of words without saying much of substance, they need only look at the PRA’s discussion document on how it will respond to this new competitiveness and growth objective. It runs to 70 pages but there is virtually no meat in there at all. We need hard data in a regular report which will get attention in Parliament and elsewhere, which is the other main theme that will emerge from our Committee: how we can start to build a proper system of accountability. However, reporting by the regulators is an important building block in there.
My Amendments 83 and 84 also concern the competitiveness and growth objective, but this time in the context of consultation on new rules. These amendments amend new Sections 138I and 138J of FSMA, as inserted by Clause 29, so that the PRA and the FCA have to include an explanation of the impact of how the competitiveness and growth objective has affected whatever new rules are brought forward. Whenever new rules are proposed, there is an important opportunity to consider their potential impacts on competitiveness and growth. As we know, regulators do not need many excuses to create new rules, but every time they respond to real or perceived risks with another addition to the rule book, they will end up imposing costs, and costs are ultimately borne by consumers. They can also have the effect of slowing down or hampering innovation, so it is important that, at the point before new rules are introduced, we have the opportunity to review the impact of those rules on competitiveness and growth in the UK. I like ex poste reporting, but I also like ex ante analysis and, if necessary, action to change rules before they have an adverse impact.
I have also added my name to my noble friend Lord Holmes’s Amendments 115 and 116 because they would give hard data on how speedy the regulators are in handling new approvals, which is an important area. Amendment 116, which would require information on various kinds of regulatory decisions made by the FCA, could usefully be extended to the PRA because it, too, seems to drag its feet on those areas.
Anybody who has worked in a bank will have a story about how long it took to get directors and key executives approved. Last week the Financial Times reported that a digital asset technology company was forced to register in Switzerland because the FCA was too slow to deal with its UK authorisation application. We really must have regulators in the financial services sector that work efficiently and effectively if the UK is to remain a successful financial centre. We need the kind of reports covered in these amendments to form part of a suite of information on which Parliament can start to hold these regulators to account more effectively.
The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)
My Lords, there is a large number of amendments to cover in this debate, so I aim to be succinct. While these amendments cover a range of issues, they all relate to reporting requirements on the regulators to enable effective scrutiny and oversight of their work.
First, on Amendments 45 and 63, in the name of the noble Earl, Lord Kinnoull, and Amendment 66, in the name of my noble friend Lord Holmes, the Government agree that it is vital to have appropriate public metrics to ensure that the operationally independent regulators can be held to account for all aspects of their performance, including against their new growth and competitiveness objectives. FSMA establishes multiple channels for this, including annual reports. The regulators also voluntarily publish a range of data—for example, on operating service metrics. Specifically, Clause 26 will require the FCA and the PRA to report on their performance against the new growth and competitiveness objective, as part of their annual reports. That sets out for my noble friend Lord Bridges the existing reporting done by the regulators—but the Government recognised the need to go further in requiring the regulators to publish information, which is why we added Clause 37. It provides an additional mechanism for the Treasury to require the regulators to publish information, including performance data, on a more regular basis, where the Treasury considers it necessary to support scrutiny of performance.
The broad approach is that FSMA requires the regulators to report on how they have discharged their functions and that the decisions on publishing operational metrics are appropriate for the operationally independent regulators to determine, working with government, where appropriate. It is impossible to predict how the power in Clause 37 requiring regulators to publish information on a more regular basis may be used, but I reassure noble Lords that the Treasury will work with stakeholders, industry, consumers and Parliament to understand the evidence base for whether it is in the public interest to exercise this power and the kinds of situations in which it would be desirable to do so. That power also includes a number of safeguards to ensure that it is exercised appropriately.
However, locking specific, detailed metrics into primary legislation would result in a static framework unable to adapt and respond to wider changes, and impose fixed requirements which may not be possible or appropriate for the regulators to report on. Clause 37 provides a more flexible—and therefore future-proofed—mechanism for ensuring appropriate scrutiny. Similarly, Amendment 121, tabled by the noble Baroness, Lady Bowles, seeks to impose a requirement to report against metrics determined by the National Audit Office, along with consumer representative bodies. Again, embedding this in primary legislation would not be the most effective approach. The NAO is already able to examine and report on the value for money of spending by public bodies, including the FCA and the PRA, and it reports its findings to Parliament. The Government consider that the setting of specific reporting requirements for these bodies goes beyond the scope of the NAO’s remit.
Baroness Bowles of Berkhamsted (LD)
May I interrupt the Minister? The whole point of my amendment—whether it be the NAO or otherwise—was specifically to address the fact that the criteria might need to be changed, so it would not be a fixed list but would develop depending on circumstances. Perhaps the Minister does not think that the NAO is the body, but the question I posed was about this in general. There is a difference between it being an independent body and it being the Government. Given all the other powers that the Government have to direct the regulators, it could look like a conflict of interest if it is not done with a greater degree of independence. The fact that the Minister said that Clause 37 needs to be used with discretion seemed to recognise that that potential tension and conflict might be wrong. Would it not be better to have an independent body involved?
Baroness Penn (Con)
I thank the noble Baroness for teeing me up to answer the question that she posed at the end of her remarks. I understand her point about trying to have a more flexible framework of criteria and the NAO being one idea for an independent organisation that can do that. She will know that the Government considered this as part of the future regulatory framework review and found that there are substantial practical costs and resourcing obstacles to overcome in making such a body operationally effective. Such a body would also duplicate existing accountability structures and potentially undermine the regulators’ operational independence.
In considering that question, the Government concluded that the existing avenues for stakeholders to provide input, feedback and challenge through public consultation are appropriate, supported by strengthening the statutory panels, independent challenge and cost-benefit analysis.
In addition, the Treasury and Parliament will continue to assess the work of the regulators in their oversight role, strengthened by a number of the measures in the Bill. That position was supported by the TSC report The Future Framework for Regulation of Financial Services, which said:
“The creation of a new … body … would not remove the responsibility of this Committee to hold”
the FCA and the PRA
“to account, and it would also add a further body to”
the regime that Parliament would need to scrutinise. The Government therefore concluded that the Treasury, as the department responsible for financial services policy, is best placed to assess whether, as a backstop, further reporting is required by the regulators and to direct them to publish this if necessary and appropriate.
I fully appreciate that the Committee will want to continue to explore this question in discussing these amendments and further amendments as we reach them, but I think it is helpful to set out that the Government considered this question as part of their consultation and work in the development of the Bill. Careful thought has been given to it. We have been open to making improvements: indeed, I believe Clause 37 was an improvement made when the Bill was in the House of Commons, so we are open to further thoughts, having already given this quite a lot of consideration.
Turning to Amendments 83 and 84, I hope I can reassure my noble friend Lady Noakes that Sections 138I and 138J of FSMA already require the FCA and the PRA to provide an explanation of how their draft rules advance their objectives as part of their public consultations. The Government’s policy intention is that this requirement extends to the new secondary objectives. However, I thank my noble friend for raising this issue. We will consider whether the legislation could be made clearer on this point before Report.
I move to Amendments 113 and 114, tabled by the noble Baroness, Lady Kramer. The Government recognise that the Bill represents significant reform, and it will be important to provide an assessment of its effects on the system. However, we think it would be inappropriate to task the regulator with this assessment. In line with Cabinet Office guidance, within three to five years of Royal Assent, the Government will submit a memorandum to the Treasury Select Committee with a preliminary assessment of the impact of the Act in practice, to allow the committee to decide whether it wishes to conduct further post-legislative scrutiny.
Turning to Amendments 115, 116 and 196, tabled by my noble friend Lord Holmes, I am aware that the speed and effectiveness with which the regulators process applications for authorisation and other regulatory approvals remains an area of concern for both Parliament and industry, and the Committee has reflected that to me again today. I welcome the report published by TheCityUK last week about this important issue and, just as importantly, the constructive way in which the regulators have engaged with that feedback from the sector.
The Government share these concerns. In December, the Economic Secretary wrote to the CEOs of the PRA and the FCA setting out the importance of ensuring that the UK has world-leading levels of regulatory operational effectiveness. In their replies, both CEOs committed to publishing more detailed performance data on authorisation processes on a quarterly basis going forward. The FCA, in particular, has an extensive programme of activity under way to improve the timeliness of its approvals. It recruited almost 100 new authorisation staff in the last financial year, streamlined its decision-making processes and is digitising its application forms to make the process smoother for firms. The power in Clause 37, which I mentioned earlier, for the Treasury to require additional reporting from the regulators could be used to hold the regulators to account on the important issue of authorisations raised by these amendments, but, as I say, there is a commitment by the regulators to publish more detailed quarterly information on this matter. However, the Government will continue to engage in discussions with the regulators on continuing to improve operational efficiency.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will make three brief observations. First, in this context, we are looking at the mandate that we are giving the regulator. One obviously could look at rules by some ex ante supervision, but that is not how this will work. Leaving it all to accountability after the horse has bolted is not the right way to proceed. It is very important that we give attention to the scope of the mandate.
Secondly, there is an obvious illustration as to the scope of the mandate in the proposal from the noble Baroness, Lady Noakes: proportionality. I would be astounded if anyone disagreed with that proposition, because only a fool would argue that you should make disproportionate legislation.
It seems to me that, in looking at this, we ought to know how the people given the mandate by Parliament intend to operate. Do they intend to produce consistent and predictable rules? I would imagine that they do intend to. They may agree with many of these objectives, but it is very important for the Committee to know the Government’s view of the form of regulation—the mandate—before we decide on what should happen. We also need to know how they are going to do it, because you always ask your agent how they will do something. If we were informed, there might be much less dispute.
Baroness Bowles of Berkhamsted (LD)
My Lords, I have Amendment 70 in this group, which was also referenced by the noble Baroness, Lady Noakes, who supported and signed it. It would insert a regulatory principle of efficiency that the PRA and FCA must ensure that their supervisory and approval interactions are efficient from the perspective of the regulated entities and in comparison with regulators in comparable countries. Clearly, it overlaps with some of the issues that we have already discussed, but it gets to the heart of the matter as to how and for whom the regulators are thinking, and whether they recognise what their impact is.
My Amendment 122 establishes that a corresponding report is required, which must include how they have undertaken this efficiency comparison, including the periodicity of the comparison and its outcome.
Amendment 144 is another go at inserting the same principle into the bank’s supervisory roles. It will not have escaped the notice of those who have read all the amendments that a similar amendment also appears in other places and formats, in part as a response to the layering of objectives to make sure that they actually happen. The point is really to find the best place for this, not to keep repeating it, but I had several bites at the cherry.
As I said, the substance of my amendment has already been discussed in the previous group, but I wanted to bring out the perspective point. The regulator itself might be very efficient at the expense of the industry it regulates—for example, by using the same template letter at the start of institutional approval processes, without any regard for proportionality or without saying anything useful about what might already have been presented at an extensive, exploratory, preliminary meeting. I recognise the traps that the regulators are trying not to fall into, but this has to be looked at from the other side.
As I said before, when the Industry and Regulators Committee was looking at competitiveness, there was a constantly repeated complaint from industry about delays over routine approval matters, including staff appointments, which caused delay and costs in day-to-day matters. These issues keep coming up, both in real life and in the amendments from noble Lords from around the House, including from the Government’s side. I therefore hope that the Minister and Government will help us to address them as we proceed on the Bill. It is obviously a matter to which we will return on Report, probably in more than one way. Therefore, some preliminary discussions with the Minister would be very useful.
I must also comment on the proposals from the noble Lord, Lord Lilley. If you look at all his amendments, you will see that he is also a victim of the need to insert the same thing all over the place in FSMA in order to make it happen—and I appreciate that there are bigger and more developed amendments to come. My concern is whether the amendments achieve the objectives they set out to. I see the attractiveness of predictability, but I think that some of the concepts underlying these kinds of amendment are about reintroducing thinking in the regulator and in industry. By having layer on layer of complex rules, starting at the top, drilling down, then making the next one slightly different and providing lots of tick boxes, you can get certainty. But everybody says they want principles. I thought the idea was to have principles and then to discover that, if you did not take some reasonable precautions, there may be some regulatory actions against you. I have had these kinds of conversations with some of the authors of these proposals.
This almost goes back to where it used to be, when there was unlimited liability, but you took a little more care, because you might be for the high jump. You had to think about what you would do and consider the harm, instead of looking at a set of rules, against which you could put a little compliance tick that took away the thought and judgment that should be going into what you are doing in such an important industry. This cannot be tick-box. I fear that this is driving in the same direction. If I heard correctly, even the noble Lord, Lord Lilley, talked about these broad principles needing more detail underneath.
These amendments do not solve what some of those who have spoken in this group have told me that they want them to solve. I fear that this will be static rather than agile, yet after Brexit we keep saying that we want our regulators to be agile to new things and able to adjust. One cannot be both agile and wholly predictable, because you have to respond to new circumstances.
Baroness Bowles of Berkhamsted (LD)
My Lords, I have several amendments in this group. Amendment 48, which has already been referred to, seeks to add “sustainability” in as a sort of foil to the international aspect. Amendments 49 and 59 seek to remove the bits in brackets relating specifically to financial services, which is more of a comprehension issue. Amendments 51 and 60 propose another placing of the efficiency amendment in case it might sit better within the competitiveness and growth objective.
There is another very dangerous thing going on here, on which I agree with the noble Baroness, Lady Noakes—we agree more often than people would think. To some extent I support her Amendment 47, as I will explain later.
As has already been said, my Amendment 48 seeks to add in “sustainability” so that the competitiveness and growth objective would be “subject to sustainability and aligning with relevant international standards”. We have been talking about the need for balance and I felt that that, potentially, was a balance that we wanted. That also seemed a suitable place in which to write sustainability into the Bill. Perhaps we could choose other words, because I meant it to cover sustainability in financial terms and in a humanitarian and environmental context, too. I am not clear that some of the things which are said to be covered actually are covered.
When we were talking about position limits, I believe that the Minister said that taking humanitarian matters into account was something that the FCA could do. I cannot see anywhere among its objectives or anywhere else where that comes about. I can see that there can be market integrity things on position limits, but not whether you want to think about whether you are causing people to starve. There are things that we expect to be taken into consideration—it is not a subliminal matter, but just by implication—but they are not there if you look for the words. From experience of looking at things when they have gone pear-shaped and the regulators want an excuse, it seems to me that they will be asking where it says those things.
Returning to the competitiveness and growth objective, the more I look at it, the less I like it, not from the point of view of the competitiveness and growth bit but for all the other drafting around it. This is where I agree: what on earth is this “subject to international standards” doing there?” It gets sprinkled around quite liberally in legislation. When I was an MEP, I learned very soon after I got to Brussels that the Treasury wanted “alignment with international standards” put liberally into EU legislation as a way to try to cut down EU degrees of freedom. Now, here we are, post-Brexit, trying the same trick on ourselves and handing it to unelected bodies. Much as I did not object to the EU system, we are where we are. I do not think it is right. If we think recently in terms of LDI and so on, we hear the Bank of England saying, “Until we have the international rules on non-bank financial institutions, we have not done anything”, when something that is a complete viper’s nest is going on that is completely within everything to do with the United Kingdom. That shows us—we will come to this later on with some of my financial stability amendments—that it is looking for support and to hugger-mugger together with the rest of the regulatory organisations rather than putting the UK first and thinking clearly about what we want.
Are we now trying to control the regulators as we tried to tie the EU? We do not need it to control the regulators because they largely control what goes into the international standards, and those international standards have far less parliamentary scrutiny than anything done by UK regulators for the UK. I accept that the Treasury has a seat at the table and therefore knows what is going on, but it is very difficult to scrutinise what goes on at Basel and the other international organisations. You can get our regulators to explain what they agree with and claim victories where they put things in, but to get any explanation in time to be able to react to it and to influence it is extremely difficult. I tried this while I was chair of ECON in the European Parliament when we were doing the capital requirement rules. We forced one or two meetings with them, but they did not really want to know, and we are going to be in even more difficulty trying to follow those kinds of things within the UK’s parliamentary system.
Here we are signing up blind to something rather than signing up after scrutiny. That is what happens in other countries, notably the EU and the US, which have a whole system, including parliamentary procedure, to determine whether they are going to sign up to the international rules.
There is nothing wrong with political statements being made which say that the broad expectation is for us to be in alignment with the international standards, but I do not see what that does without any kind of caveat around it within primary legislation. It makes a mockery of us trying to scrutinise anything when we know that what we will be getting is just what the regulators have decided with other regulators, at a different level over the UK’s head.
As I mentioned on the last group, I also put my amendments on efficiency here, so I will not go into those again. We can discuss among ourselves where they fit best.
My final point relates to the words in brackets, which I address in my Amendments 49 and 59. Simply, when I read this part of the Bill, it did not read as if the financial services references were in there because that was the bit that the regulators were empowered to do; I thought that it was possible to make it read as if some kind of preference could be given to financial services over and above other things. I know that that is not the intention, so my only objection to these words is to ask whether the Government are absolutely sure that they read properly. I am not suspicious of the motives but, if one of my assistants had written this back in my patent attorney days, I would have been thinking that it was not quite right and asking if we could rephrase it. So there is nothing more suspicious to it than that.
I do not think that those words are actually needed because, as the noble Baroness, Lady Noakes, said, they can only influence financial services. Financial services must serve the economy and must serve other businesses. So you could, theoretically, enhance the economy within financial services by putting up all your charges to the rest of industry. One hopes that competitiveness and competition laws would stop that from happening, but you could have that interpretation. Somebody might be able to hang something on those words if they are still there.
That explains my amendments. I do not think there is anything too untoward; I would be interested to hear from the Minister about international standards. I accept that we have them in other pieces of legislation, but if we have got it wrong somewhere else, we do not need to keep repeating it.
Lord Holmes of Richmond (Con)
My Lords, I speak briefly to give full-throated support to the amendments in the name of my noble friend Lady Noakes. This tying to international standards seems odd, at best, for at least two reasons: first, this is attached to the competitiveness objective and not run through all objectives, not least the primary objectives; and, secondly, this objective, even before it has been launched, is fettered and shackled through this connection to international standards and the ISSBs that they are under. That seems curious, in that it seems to run counter to the espoused purpose and intention of the Bill. I would be very keen to hear my noble friend the Minister’s comments when she comes to sum up on those points.
Baroness Noakes (Con)
I thank all noble Lords who have taken part in this debate, which has turned out to be a rather more interesting one than I thought we might have on this subject. It has raised a lot of very interesting points. The noble Baroness, Lady Kramer, challenged us on why we do not keep referring back to the financial crisis. There is a very simple reason: we are in a different world now. As we know, financial regulation was overhauled both in the UK and internationally. The banks have far more capital but, more importantly, significant changes have been made to ensure that they can fail safely. We are not talking about carrying the inherent risks which came to fulfilment in the early part of this century. Constantly harking back without recognising the huge changes that have happened since then is just not helpful.
I thank my noble friend the Minister for explaining which standards are intended to be covered by this. That is a helpful statement to have on the record. However, I confess that, while I completely accept the notion that we will want generally to comply with international standards—we lead them quite a lot of the time—as far as I can tell, the regulators spend at least half their lives on airplanes to exotic parts of the world to have meetings about international standards. I am not sure that that is a very good use of their time.
It could be that we do not wish to follow particular standards, even though being in a leadership position would imply that we would generally do so. It continues to trouble me that the wording says
“subject to aligning with relevant international standards”,
as if we align with them automatically, not merely as our default position. I am not entirely convinced that my noble friend has explained to my satisfaction that this wording gives sufficient flexibility to allow international standards to be ignored when relevant to the UK. I completely accept that whether or not international standards are followed will be primarily determined by our regulators, in the light of what is necessary. I may well want to revisit this on Report but, for this evening—which has gone on for rather a long time—I beg leave to withdraw.
Baroness Bowles of Berkhamsted (LD)
Before the noble Baroness sits down, I mentioned that I wrestled with this in the EU. There it says “having regard to”, which I would have thought was the appropriate wording: we have regard to it and usually do it, but do not have it in binding language.
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsMonday 30th January 2023
(1 year, 9 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-III Third marshalled list for Grand Committee - (30 Jan 2023)
“FCA powers beyond designated activities
(1) This section applies to any person (P) conducting or purporting to conduct any financial services and markets activity, including advisory services, whether or not that activity is designated or regulated, provided that P—(a) occupies a position in which they are expected to safeguard, or not to act against, the financial interests of another person (CP), or in which there is significant asymmetry of information,(b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position—(i) to make a gain for P or another, or(ii) to cause loss to another or to expose another to a risk of loss.(2) A person may be regarded as having abused their position even though their conduct consisted of an omission rather than an act.(3) If the conditions set out in subsections (1) and (2) are met, the FCA has the following powers in relation to P—(a) a power to require the supply of information;(b) a power to make investigations (including the making of reports);(c) a power of entry into premises controlled by P;(d) powers of inspection, search and seizure with respect to premises controlled by P;(e) a power to make a private or public statement of censure;(f) a power to impose monetary penalties.(4) The Treasury may by regulations make provision about enforcement in connection with the powers included in subsection (3), and may make such modifications to the provision in subsection (3) as the Treasury considers appropriate.(5) If the conditions set out in subsections (1) and (2) are met, P is liable—(a) to account to CP for any gain P has made directly or indirectly by the transaction, and(b) to indemnify CP for any loss or damage resulting from the transaction.(6) If the FCA is satisfied that the conditions set out in subsections (1) and (2) are met, it may order P to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the FCA to be just, having regard to the profits appearing to the FCA to have accrued to P.(7) The FCA has the power to institute criminal proceedings, including under section 4 of the Fraud Act 2006, provided that the conditions set out in subsections (1) and (2) are satisfied.”
Baroness Bowles of Berkhamsted (LD)
My Lords, the amendments in this group address matters of fraud or misrepresentation that occur around and because of the regulatory perimeter and have been factors in various recent scandals. Amendment 38 establishes a regulatory offence for fraud by abuse of power and reaffirms FCA power to undertake criminal prosecutions for fraud. I thank the noble Lord, Lord Naseby, for his support on that amendment. Amendments 39 and 198 deal with instances where there are forms of deception or inadequate or lack of information that can mislead about regulated status but which are not caught by existing offences.
A central feature in various scandals has been the abuse of a position of power and/or a belief that an entity was regulated and therefore all its activities had some seal of approval. It has later been discovered that there is no regulatory, supervisory or any other cover and no redress via regulators. The list of examples is extensive, and includes Lloyds Bank’s business support unit, HBOS Reading, Blackmore Bond, London Capital & Finance and RBS’s Global Restructuring Group, but there are many more.
Smaller but nevertheless still substantial businesses have been particular targets: bankers taking advantage of business lending being outside the regulatory perimeter, seemingly not covered by the integrity objective or anything else, which I and other noble Lords have laid out in detail and has been covered by the APPG on Fair Business Banking and others.
The FCA explained in excruciating detail how the asset stripping in the GRG case fell outside its objectives and its own created interpretations, and Andrew Bailey, then CEO of the FCA, said that even if the SMCR had been active at the time, it would not have been covered by it. Later, he hedged and said that maybe it would have applied, but it would all depend.
In its final report, the FCA concluded that there was no case to rule senior RBS managers not fit and proper, because the bar was too high. The fact is that the relationship that businesses and individuals have with their bank is a special one: finance, loans, mortgages, outgoings and income, available capital and other assets, trading accounts, major clients, cash flows—all such things are known by the bank, indeed required to be known, to access finance. But little is known about the bank’s assessment criteria. The relationship is inherently asymmetric in both power and information, and can and has been abused repeatedly.
The relationship with your bank is the lifeblood of businesses, especially small businesses, the homes of which are often subject to a charge. It is known what you are good for and can be taken for. Consumers have had additional protections that businesses do not.
Amendment 38 is specific to abuse of power within financial services and it uses the same wording that appears in Section 4 of the Fraud Act 2006 for fraud by abuse of power. The Fraud Act conditions are that if a person is in a position in which they are expected to safeguard, or at least not act against, the interests of another person, or where there is asymmetry of information, and there is dishonest abuse of that position to make a gain or cause loss to another, it is a criminal offence. My amendment replicates those Fraud Act provisions and introduces a corresponding regulatory offence.
Subsection (7) of my amendment reaffirms the power of the FCA to institute criminal proceedings under Section 4 of the Fraud Act. I say “reaffirm” because the FCA has power to prosecute beyond offences explicitly listed in FSMA, as confirmed in Regina v Rollins [2010] UK Supreme Court 39, in which the court found that the FSA’s powers to prosecute criminal offences were not limited to the offences referred to in Financial Services and Markets Act. The FSA always had been able to bring any prosecution, subject to statutory restrictions and conditions, provided that it was permitted to do so by its memorandum and articles of association, which were so permissive. The FCA, in essence, has the same articles and legal position as the FSA did then, but seems to need both more tools and more encouragement.
Various particularly relevant offences continue to be singled out and put into FSMA. Adding an offence of fraud by abuse of power is therefore long overdue, given the power and asymmetry of information that I have already explained. We know that the bar is high for criminal prosecution—to the extent that some rely on that, a chain of command and shared responsibility to eliminate mens rea and the ability to obtain a conviction, hence my suggestion that there is also a regulatory offence.
Turning to the other amendments in the group, Amendment 39 is also about when a regulated person carries out unregulated activity, the boundary is not clearly understood, and a customer may not know when they have strayed into riskier waters. A common thing may be to see headed paper or a website displaying, as required, that a person is regulated for a given activity, but the limiting language is not always going to be meaningful to the ordinary person. As we discovered in the Gloster report, even the FCA got it wrong.
Baroness Bowles of Berkhamsted (LD)
I thank the Minister and other noble Lords who have spoken and intervened in this debate. We have strayed a little from my amendments into the general issues of fraud, which will come up in later groups because I think the body of opinion is that not enough is yet being done to prevent fraud.
The Minister suffers to some extent from exactly the same tunnel vision as the FCA, in that it wants to deal only with those things that are convenient, and it is not looking for the enemy and the evil within—and within regulated entities. One would have thought that those banks that defrauded business customers were reputable institutions, and that deception is not addressed at all by anything that the FCA is doing or that the Minister has said. It is doubtful whether it can be addressed even by the senior managers regime, because again, that has been diluted and spread around in such a way that you have the same problem as trying to find mens rea with a board.
The FCA may have done all the things that the Gloster report required but most of those were to do with things that were operationally bad within the FCA; they were not necessarily going to do anything to address the kind of “enemy within” fraud in banks, on their customers, that I outlined in my first amendment.
There is an urgent need to do something about this. It is ridiculous to say that there is a role or any integrity in our financial markets when this kind of thing can go on and be unpunished. The FCA may indeed be able to take a criminal offence if it ever finds the guts to do so, but I was giving it a regulatory offence here, which would be much easier for it to do, and at least there would be punishment and maybe more awareness through reputational damage within the banks so that that they would do something about it. I am not convinced that it cannot happen again. This is special—the inherent asymmetry of power and information—and this appears to be totally disregarded both by the FCA and by the Minister.
The other two amendments also plug important gaps that, no matter much you tweak Section 24, are not covered by it; therefore they can be used and abused. So I am far from satisfied that the Minister or the FCA is in any way serious about trying to tackle the type of fraud that I am discussing here. We will come on later to other kinds of things—there are other ways to do it. However, to say it is caveat emptor everywhere does not leave us in a good state when the next scandal comes along and everybody says, “There’s the rotten UK banking system again. Don’t do business in the UK—your own bank might fleece you.”
Due to lack of enthusiasm, obviously I will withdraw this amendment for now. However, I will not leave this issue alone, because it is quite clear that the Government have not understood the seriousness of this for businesses—small businesses and profitable businesses—which are being scammed by their own banks. However, with the leave of the Committee, I beg leave to withdraw the amendment.
Baroness Penn (Con)
The noble Baroness touches on one possible difference in documentation needing to be provided where something is regulated versus where it is voluntary. That comes back to the question of SME lending having increased costs for banks and alternative finance providers. This can be passed on to businesses in the form of higher fees and interest rates, and it can affect the availability of credit for small businesses. The noble Baroness, Lady Kramer, mentioned start-up banks and challenger banks. When we have discussions elsewhere on other issues related to financial services regulation, we also discuss how we create a more competitive environment in the banking sector, as smaller banks can struggle to deal with regulations. This is a general point about balance.
Baroness Bowles of Berkhamsted (LD)
I am sorry to intervene again, but I am also intrigued about what the extra cost is of this coming into regulation. We are not suggesting that there should be great big oversight mechanisms which mean that the FCA would have to do a lot more—until problems occur, when there must be a route to justice. Is the Minister saying that banks will make less profit when they cannot cheat their customers, and that is where the cost comes from? I do not understand it. The suggestion was that it might be documentation, but the cost of that is the same wherever the documents go. What is this extra cost other than banks having to behave responsibly?
Baroness Penn (Con)
In relation to Amendment 40, there are benefits—which we have heard about—and costs to any activity being brought within the regulatory perimeter. I think that point is fairly well accepted. The noble Lord, Lord Tunnicliffe, asked me for further details on that, and I will write to the Committee.
On my noble friend’s Amendment 219, there are costs related to bringing disputes through the courts system as opposed to other dispute resolution mechanisms. There can also be benefits to that mechanism, but it is not enormously contentious to say that there are both costs and benefits to these solutions, which need to be weighed up when we consider them.
Baroness Penn (Con)
I understand my noble friend’s point, and of course the Government also consider that when we look at what to bring into the regulatory perimeter or the right of redress, both as a route of redress and as a point of deterrence. The Government take all those factors into account when considering this question.
Baroness Bowles of Berkhamsted (LD)
If I may ask one more question, one area that might be interesting for comparison, especially if we are looking at the Consumer Credit Act, is what the difference is between the loans of £25,000 to small businesses and bounce-back loans, where the conditions of the Consumer Credit Act were dispensed with. Can we have a comparison to see whether they have fared better or worse? That will perhaps show us where the true costs of regulation and lack of regulation lie.
Baroness Penn (Con)
The noble Baroness makes an interesting point. However, bounce-back loans were designed for a specific set of circumstances, and the aim of disapplying the Consumer Credit Act provisions was to do with the speed of being able to get bounce-back loans out to customers. The noble Baroness has indicated that there can then be some regulatory cost to having those protections in place. That is an interesting point, which I am sure people will want to think about in the consultation that is under way on the Consumer Credit Act and the direction of travel there.
Baroness Bowles of Berkhamsted (LD)
I must point out that I was fearing that the true cost was with the small businesses.
Baroness Penn (Con)
The true cost of the protections afforded under the Consumer Credit Act—
Baroness Penn (Con)
To be honest, I am not sure that I totally follow the noble Baroness’s point.
Baroness Young of Old Scone (Lab)
My Lords, I very much enjoyed what was just said by my fellow countryman. I will talk to Amendment 69 in the name of the noble Baroness, Lady Sheehan, which I have also put my name to. The amendment adds nature to the new regulatory principle on net-zero emissions. I also recognise everything that the noble Baroness, Lady Hayman, said about needing an objective rather than a regulatory principle. However, if we are to be stuck with a regulatory principle, it needs to address the twin existential crises we are facing globally and as a nation: climate and nature decline.
I must confess that I was kind of taken aback by the two previous speakers. The fact that climate and nature are such major things and go hand in hand, with one not being able to be resolved without the other, is now so commonly recognised globally by the business and financial communities and by Governments that I felt there was a whiff of quill pen coming from the other side, which is most distressing. The reality is that our financial institutions have a key role in enabling the financing of decarbonisation of the economy but also in promoting nature-based solutions. It is partly about making sure that the natural environment is lending its full hand to solving the climate change crisis, because we need every lever in the kit—every tool in the toolbox—to step up to that challenge. The financial institutions have a key role in that.
However, we also already have government commitments on the natural environment in this country: the Environment Act targets. That was the first time we have had statutory nature conservation targets in this country, which the Environment Act introduced and which become binding on government at midnight tomorrow night. We have to recognise that, if we have big bucks that are directed by the financial institutions and by investment, they absolutely have to tackle both climate change and nature conservation.
We should not look at this as a sort of dead-weight cost on the regulatory process or the financial markets because these investments in nature and climate are vital for our future economic growth. They are the heartland of our future economic growth; the jobs of the future are green jobs. We are behind the curve at the moment; the director-general of the CBI and others are all commenting that we are falling behind and losing our international competitiveness because we are not being vigorous enough in getting investment streams into climate change and nature. So we need the regulators to drive green growth and green investment really hard, for both net zero and nature recovery, to give businesses the confidence to invest.
These are very big bucks: the director-general of the CBI was absolutely clear that, in the past two years, the UK has lost its market share in green tech, which is equivalent to a potential value of £4.3 billion by 2030. Globally, an estimated $32 trillion of investment is needed by 2030 just to tackle climate change. So we are talking about big bucks, big investment, big jobs, big economy and big growth, and we were on it until a very small number of years ago. We have to get back on it to be able to hold our heads up in the international economic community.
So I hope that some of the things I have heard tonight are not government policy and that the Government are still absolutely clear about their commitment to action on the twin crises to turn them into opportunities. So, if the amendment moved by the noble Baroness, Lady Hayman, on regulatory objectives is not adopted, I ask the Minister at least to ensure that the regulatory principles reflect that commitment.
Baroness Bowles of Berkhamsted (LD)
My Lords, I had not intended to speak on this subject, but I very much agree with everything that has been said, especially by the noble Baroness, Lady Young, just now, about the lost opportunity if we do not take climate change and embedding it in financial services seriously. ESG investing is the big growth area at the moment, and what message are we giving if we say, “Well, we’re not really that interested in the ‘E’”? I am not sure about the “S” and the “G” either. We will potentially lose out.
It is not as if this will be an environmental tax on every business, or as if it has to be woven into every last little bit of financial services, like some chain round their neck. I spend some time looking at the general duties of the regulators, and, if I were to say anything about the positioning of this, I would say that it is not necessarily high enough up in the hierarchy because it is entirely forgettable within the layering that we have. I object to the notion that we are still in an era where we can do damage and compensate; you cannot compensate for a ruined planet. That is very much old thinking. It is almost centuries old in my book.
The FCA’s general duties state:
“In discharging its general functions, the FCA must, so far as is reasonably possible, act in a way which … is compatible with its strategic objective and … advances one or more of its operational objectives.”
What we are talking about here is a secondary operational objective, but the whole thing could be forgotten. If you ask me, it should be in the strategic objective, which is the only thing that cannot be rubbed out, because that is where we are at. We can go through this lovely list. Integrity gets rubbed out when it comes to SMEs—we have been through that debate—so climate things will be rubbed out if you want to be one of the rough-and-tumble financial firms that wants to deal with gas and oil exploration. Money is needed for that to work it all through and make sure that there are no stranded assets.
What is the big problem with what I would call a measly secondary objective? I understand the competitiveness and growth objective, which seems to be liberally sprinkled throughout to try to give it some kind of priority, but you have to balance that with sustainability in its broadest sense. All these things are about balance. We cannot have a Climate Change Act that says we will do things and then just ignore it in our biggest industry. It is the biggest case out there and we need something on it here. I will look at this again on Report and the Minister jolly well knows where I will put it.
Baroness Kramer (LD)
My Lords, this has been such an enjoyable debate, although I fear that the Government may not be listening as much as they should. When I first looked at this Bill, I was absolutely shocked that the word “sustainable” was not in front of “economic growth”. That seemed quite extraordinary in the era in which we live. It is a very old-fashioned, limited kind of approach that does not recognise the significant intertwining between finance, economic growth, the future of the planet and meeting our targets on climate change and protecting nature. It is extraordinary that it was removed.
I want to pick up the comments of the noble Baroness, Lady Lawlor, in particular. I disagree with her purpose but in one thing she is exactly right: as this Bill is currently written, that international competitiveness objective will largely drive us to try to compete with Asian financial centres that, frankly, could not give a single hoot about climate change and nature. That is why, frankly, the way in which the Bill is currently structured is so weak. As my noble friend Lady Bowles, who knows about this even more than I do, said, we have seen how the FCA deals with secondary operating objectives—I forget the exact phrase—in the past. Occasionally, it might pay attention to them if it suits it but they are certainly not embedded in its culture and do not light the core of its thinking or drive most of the decisions it makes.
I very much support the amendments led by the noble Baroness, Lady Hayman, and joined by others, as well as Amendment 69 in the name of my noble friend Lady Sheehan. However, I will talk in particular to two of the other amendments: first, that from the noble Lord, Lord Tunnicliffe, which asks, as the noble Lord, Lord Vaux, said, that we get this green taxonomy in our sustainable disclosure requirements fast because we desperately need that structure and strategic update.
This is in the context that the European Union already has its sustainable financial disclosure regulations; noble Lords may notice that the initials are exactly the same, bar one letter, which is part of my general concern in all this. Financial investors based in the UK are now using that as their template. As far as they are concerned, having to run one regime if they fall under EU regulations and a different one if they fall under UK regulations would be a nightmare. They are now wondering whether they are being pushed to choose between the two.
In its consultation on sustainable disclosure requirements, the FCA very helpfully provides a chart of how you can cope if you are trying to be under what is contemplated for the UK regime while also dealing with the EU regime. I honestly think that that is in there because the FCA thought that it would be helpful, but I recommend that somebody go and look at it, because it is a nightmare. You can see that it will be incredibly difficult and very costly for companies that work in both arenas to deal with these different alignments.
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsWednesday 25th January 2023
(1 year, 10 months ago)
Grand CommitteeRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 80-I(a) Amendments for Grand Committee (Supplementary to the Marshalled List) - (24 Jan 2023)
Lord Naseby (Con)
My Lords, I was one of the 34 who took part in the debate on secondary legislation, and I previously had the privilege of being on the Public Accounts Committee for some 12 years.
The debate on those two reports was an absolute watershed. Here is a golden opportunity to ensure that this Bill, which is so fundamental to the growth of our country, particularly the City of London, at a particular time can be pioneering. I am sorry to load that on to my noble friend; at any other time it might not be loaded on to her.
The key elements are there: secondary legislation basically means that those of us here in Parliament, in both Houses, have an opportunity to debate any changes made to a Bill. If I had to take issue with the noble Lord, Lord Sharkey, it is that he has in his amendment, at proposed new paragraph (b), the word “significant”. One company’s “significant” might be insignificant to another, and vice versa, so I do not think that is quite the right word to use.
We will go through this Bill in detail. Others have made their points, but for me—I did previous work with two quoted companies and a friendly society in the role of chairman—this is an opportunity. We must recognise that growth for our country is fundamental. That fundamentality is, to a fair degree, influenced by the Bill before us.
Baroness Bowles of Berkhamsted (LD)
My Lords, for the purposes of Committee I declare my interests in the register, in particular as a non-executive director of the London Stock Exchange.
I will comment only briefly in this debate because, as others have said, it touches on some issues that run throughout the Bill. This is a matter of great importance: how we transpose the legislation and get the benefits of that transposition into UK law. If we have the flexibility, we ought to be able to use it, but financial services are our largest-earning industry, and I believe it is right that Parliament has to be able to keep track of what is going on and why when there are changes, and, as has already been pointed out, to have its attention drawn to significant changes.
If this amendment comes round again on Report, I would also like to see in it a report on the resulting change to the regulatory perimeter. Quite a lot of change is already going on and it is not necessarily something that we have had our eye on. Some of this change will be entirely at the behest of the regulators rather than in the hands of government. We will come across this later. It was always clear with EU legislation—maybe irritatingly so, in some instances—that the regulator “shall” do something, which did not give it any room for manoeuvre if it thought something did not need to be done. It looks like we will give our regulators the bits of wriggle room and the flexibility that we want, but it is wholly right that there should a report back to draw to the attention of our House and those who scrutinise this the intended difference in the regulatory perimeter, among other things, so that we can watch it and see how it goes.
I will return to the regulatory perimeter in many ways, because one of the problems is that once something is inside that perimeter, a whole truckload of things that were not really necessary might come along. AIFMD might be a good example of that. It is a whole load of extra reporting: where has it gone, what has happened to it, and has it done anything?
At the same time, if bad things are going on, you want there to be some kind of powers of intervention. It should not be a whole caboodle, with lots of rules and regulations and reporting on one hand but nothing on the other. We need to be able to do the things that are in the middle and bridge that gap. Given the way the edges of what is or is not a financial service are getting more and more blurred, what with the big tech industries and so on as well as the more nimble fintechs, we need that ability to ensure that where there is harm there is a route for action, without it having to mean that the whole kitchen sink of reporting is thrown at it across the board.
Lord Davies of Brixton (Lab)
My Lords, I thank the noble Baroness, Lady Noakes, for pointing out that the process here differs from that in the retained EU law Bill. Could the Minister in her response set out more clearly the differences between the process here and the process in the other Bill, and the reasons for the differences?
Baroness Noakes (Con)
My Lords, I will speak to the amendments from the noble Baroness, Lady Worthington. I do not support them, because I think that what the Government are trying to do in this Bill is moving in the right direction.
We have to remember that derivatives are basically a success story. It is a huge financial activity. The total value of derivative trading is sometimes estimated to be a multiple of global GDP. Of course, commodity trading is only a relatively small part of that, but it is important because the advantages of trading allow effective risk management, price discovery and market efficiency. Those are the sorts of things that actually help consumers, at the end of the day, so we must be very wary of trying to interfere in what is fundamentally a successful part of our financial infrastructure.
Of course, speculation is involved in derivatives, there is risk for some counterparties—and sometimes systemic risk—in derivatives, and sometimes they are extremely complicated as individual instruments, even to understand. But they are part of and underpin something that works well for markets overall. We should intervene in that only if absolutely necessary.
My own view is that the changes in the Bill probably do not go far enough to take the dead hand of EU prescriptive regulation away, but they are a solid move in the right direction. As the noble Baroness, Lady Worthington, pointed out, they replace a mandatory regime with a permissive one that allows the rules to be designed for the particular markets. In particular, the changes in Schedule 2 will allow the FCA to transfer responsibility for setting position limits to trading venues, if indeed position limits are needed. For some time now, the FCA has not been enforcing excesses on position limits in respect of the majority of contracts, and the world has not come to an end.
I think Amendments 21 and 22 are a step backwards in trying to preserve a mandatory EU regime. So too is trying to drag over-the-counter derivatives into that regime, because—as the noble Baroness pointed out—it has been found that they are extremely difficult to identify. Their removal from the regime was almost universally supported in the consultation that the Government carried out on changes to the derivatives regime.
Amendment 41 from the noble Baroness, Lady Worthington, is about putting additional information in annual reports and accounts. There are already obligations on companies to report things that are material to an understanding of the financial position of those companies. They are required to describe their trading model and the operating segments that are relevant to them, but they are not required to identify income streams from particular instruments that they operate. There is a good reason for that. Annual reports are already very long, complicated and difficult to understand, and the noble Baroness is asking for information that in very many cases will be wholly irrelevant to an understanding of the financial position or operations of the companies that involve some trading. For many, it is embedded in their marketing activities for the products they engage in. I do not support any of the amendments put forward by the noble Baroness.
Baroness Bowles of Berkhamsted (LD)
My Lords, I congratulate the noble Baroness, Lady Worthington, on venturing into commodities. I remember many happy hours—I call them that—when I was chair of ECON, discussing commodities with the chair of the CFTC, Gary Gensler, in particular, and the chairs of the agriculture committees in the Senate, which deal with a lot of the derivatives. It is an impossible task to get a grip on everything, but that does not mean you should not try to get a grasp of things that might go wrong.
Baroness Bowles of Berkhamsted (LD)
If I may drag the Minister back to where she was just finishing off, in her response to me and the noble Baroness, Lady Worthington, she said that the UK would continue to observe its G20 commitments, which I do not doubt, and that various agricultural products and so on would definitely still be within scope. However, it says here in legislation that the FCA “may”. It does not say, “Apart from the fact that we are observing G20, and agriculture is still in”—it just says “may”. Where does it say in primary legislation that there will be guidance—or whatever the appropriate word is—as to how these things will be dealt with by the exchanges in the circumstances that give rise to concern? Otherwise, looking at our legislation—at least, our primary legislation —I see that we would not have that certainty, and it is proper that we have it.
Baroness Penn (Con)
It might be wise for me to write to the noble Baroness to address that specific point. Under the overall framework for the regulators, they need to make their rules in a way that is consistent with international standards, to which the noble Baroness referred. That would be the additional way in which one would have that reassurance, but it is worth writing to set out the point for her with more clarity.
The noble Baronesses, Lady Bowles and Lady Worthington, talked about whether the FCA, in acting to advance its objectives, would have sufficient grounds to intervene in these markets. The Treasury is confident that it would, and an example of humanitarian grounds for intervention was given. We are confident that the FCA could intervene on humanitarian grounds, acting in line with its objectives, but perhaps I will also write to the Committee to expand on that further.
The noble Lord, Lord Sikka, somewhat pre-empted me: I was just about to turn to Amendment 41. I am afraid that the Government will disagree with the noble Lord and the noble Baroness. Arguments were advanced by my noble friend on this point. Amendment 41 would require all listed companies to disclose how much revenue they make from trading commodity derivatives. However, listed companies are already required to publish comprehensive information about their operations and finances as part of their annual reports. The Government view that as sufficient.
It may be worth turning to the questions asked by the noble Baroness, Lady Kramer, on government Amendment 28, if the Committee is happy for them to be addressed here. Does the power in Clause 3 allow the Treasury to amend primary legislation to give us or the regulator new powers? The power in Clauses 3 and 4 to modify legislation, including to create new powers for the Treasury or regulators, is limited to retained EU law, as set out in Schedule 1. Clause 3 powers cannot amend primary legislation.
The powers in Clause 4 can be used to move provisions from retained EU law into primary legislation. The power in Amendment 28 applies where the Treasury is making transitional amendments to retained EU law or restating it. It is designed to allow, for example, the Treasury to give itself a power to update a definition or threshold in legislation. This mirrors delegated powers for the European Commission in retained EU law. While it would be possible to deliver the same outcome by reuse of the powers in Clauses 3 and 4, the Government consider it more appropriate to create a specific power to allow for such updates to be made, where they consider it appropriate. When creating such powers, His Majesty’s Treasury will have the ability to specify the procedure for any statutory instruments made using the new power. The Treasury will follow the same approach to determining the appropriate procedure as it has in the Bill. Where the Treasury exercises the power to create further powers, the instrument doing that will be subject to the procedure specified in Clause 3(9), which, in the vast majority of cases, will be the affirmative power.
Lord Naseby (Con)
My Lords, I am not going to repeat what my noble friends Lady Noakes and Lord Trenchard have said, but I certainly think that His Majesty’s Government—I am a very loyal member of the governing party—need to recognise that this is a once-in-a-lifetime opportunity in this Bill. Therefore, for me, the driving force should be to ensure that in doing what we are doing—I accept that it is important to mention designated activities—we should be driven by the need for growth for our economy, good competition and innovation. Those things are so key to the future of this country, the City and the whole of the financial services area that we need to be a little bit careful. I think that my noble friend Lady Noakes’ proposal is a perfectly valid one. The Government can have another look at it, but I do not think that it is necessary.
Baroness Bowles of Berkhamsted (LD)
My Lords, I have some questions which arise from what the noble Baroness, Lady Noakes, said. If we want to go back to before the EU had the single market in financial services, we need to know how it worked with short selling. Unfortunately, I do not know how it all worked in the UK back then. When we started to do, or were forced into doing, the short selling regulation, I was told repeatedly from all sides in the UK that we did not need it but that naked short selling was banned. A lot of the concern was about short selling when you had not actually located where you would be able to get the share from for delivery. After the regulation was done, you had to know where you were going to get it, and it was a little firmer. However, I was assured that the wording was more or less the same as was applied, so how did we apply it? We did not have a designated activity regime.
There may be lots of little snippets around in financial services where you just need a simple rule like that—that you cannot do naked short selling but covered short selling is fine—without having lots of regulation, reporting and things around it. How are we going to do this? Would we do a designation just for a one-line piece of information? This is a genuine question, because absurdities begin when you have to invoke something that then requires complex rules. As soon as you go beyond the simple principle of no naked short selling, it will become a much bigger thing, as the European regulation did. There are other drivers for that, and it may be that more than just not doing naked short selling is necessary. My question is, within this designated activities regime, how do you do just one simple, little thing?
Financial Services and Markets Bill
Baroness Bowles of Berkhamsted ExcerptsTuesday 10th January 2023
(1 year, 10 months ago)
Lords ChamberRead Full debate Financial Services and Markets Act 2023 View all Financial Services and Markets Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 7 December 2022 - Clarification of Schedule 2 (Transitional amendments): Large print edition - (7 Dec 2022)
Baroness Bowles of Berkhamsted (LD)
My Lords, I declare my financial services interests in the register and my membership of the international Systemic Risk Council.
This Bill falls short on accountability. During the passage of the 2021 FSA, I suggested regular independent reviews akin to the Australian system—a more advanced vision than the sporadic reviews in this Bill, which are reliant on government initiation. Why not have rolling and thematic reviews and regulators reporting to Parliament under independent assessment criteria, such as from the NAO?
The framework consultation touted parliamentary scrutiny as a safeguard, but that is deceptive when the Government have blocked adequate parliamentary influence. Committees have modest power through public interrogation, and Ministers now regularly avoid attending Lords committees. Should parliamentary reports not get specific attention in review processes, not least to reflect public interest, which is left faint among the numerous industry hotlines to Downing Street? The Government cannot hide behind regulatory independence when they fix the regulatory perimeter and key policies, appoint regulators and control reviews. Failure is on the tab of government—maybe a different one further down the track, but the collective reputation of the UK in financial services is on the line.
We have just had an example of that with the market turmoil from DB pension schemes. At its root is the setting aside since 2005 of EU rules requiring pension scheme investment to be vanilla because pension schemes have only light-touch supervision and trustees are mainly ordinary folk and not financial experts. Trustees were thus left at the mercy of unregulated, liability-shirking advisers and the hapless Pensions Regulator.
I have been involved in investigations through the Industry and Regulators Committee, giving evidence to the Work and Pensions Committee and participating in conferences, where polling on the biggest loser in the debacle put the reputation of the UK top. Gilt turmoil is a named issue in papers for international organisations looking at systemic risk.
The timid excuse is that we are waiting for international agreement relating to non-bank systemic risk—that is outrageous, given that this is a UK-created and UK-specific issue of financial stability, with a regulators’ muddle, gaps and an issue that the Financial Policy Committee should have been all over. In evidence to the Economic Affairs Committee, Sir Paul Tucker questioned the point of the Financial Policy Committee if all it does is report. Now, there is some pulling up of socks, again after the event. Systemic risk exists in many funds, but the corralling and correlation of risky investment strategies in pension schemes with emphasis and concentration in gilts is uniquely ours, uniquely crafted and well-known where it should have mattered. It is not black swans and larger buffers; Bank of England yield tables show turmoil well under way at under 40 basis points’ change, and the transposition dirty secret has long been protected by the Treasury and its alumni.
The Bill also touches on issues of cryptocurrency and critical third parties, a reminder that financial services are not really penned in to entity and activity-based perimeters. As the IMF said, we are already into the era of reimagining regulation, otherwise it is not possible to cope with fintech or big tech which blur and exploit the boundaries of regulation. Online brokerage mimics the addictive features of social media, targeting the vulnerable. We regulate gambling but we do not even have robust age verification for online investing. Fraud is at epidemic levels and respects no regulatory boundaries. Far from having agile principles and simple regulation, we have a rigid perimeter and rule dinosaur, which is fostering fraud and revelling in the abuse of position and asymmetry of information. Regulators are operationally inefficient, underfunded, late and thwarted on enforcement.
Financial services are the food of the economy. Where there is harm, there should be justice—and not just where it is regulated. I will be offering amendments.
Financial Services (Miscellaneous Amendments) Regulations 2022
Baroness Bowles of Berkhamsted Excerpts(2 years ago)
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Baroness Bowles of Berkhamsted (LD)
My Lords, I thank the Minister for the introduction. It does not matter how many times I read these kinds of explanations about what is going on, I still find them totally incomprehensible and I doubt I am alone.
I have two very short questions. First, does this mean that for a period there was a lacuna when neither EU nor UK regulators held sway and Gibraltar was doing its own thing while having access to the UK as it always had done? If that was the case, did the Gibraltarian financial services authorities know? I cannot tell whether there was such a lacuna or not.
Secondly, on the temporary permissions relating to STS—I declare an interest as an erstwhile director of Prime Collateralised Securities ASBL, which looked over such things as STS to check them out—is this how it will be for ever? Will we extend this by another two years every two years? Does this happen until the UK regulators think they need a change and do something different? It seems to me that we did an awful lot of temporary permissions. I do not like to think that we will have to do them all over again every two years, because that will take an awful lot of parliamentary time. I would like to get a handle on whether this is the way of the future or whether there will be an end to these temporary permissions.
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for introducing this SI. It seems that she and I agree that it is really two SIs, covering Gibraltar and securitisation.
To take Gibraltar first, as far as I can tell, the SI simply clarifies the application of UK regulation to Gibraltar. The Money Laundering and Terrorist Financing (High-Risk Countries) (Amendment) (No. 2) Regulations 2022 set out a new list of high-risk third countries in relation to which enhanced due diligence requirements apply under the principal money laundering regulations. Gibraltar has been added and Malta removed; the changes apply from 12 July 2022. Will this SI assist Gibraltar in getting off the high-risk list? If so, how will the UK regulatory authorities be involved? I am trying to understand this; how different will the regulation of financial services firms in Gibraltar be from, for example, the regulation of a financial services firm in Birmingham?
The second part of this SI seems solely about extending the present transitional arrangements for a further two years. The clearest statement of this is in the de minimis assessment—I like the assessments, when I get round to reading them, because they tend to be written in easier language:
“This SI is required to address this misalignment of dates in order to prevent looser due diligence requirements for EU STS securitisations than UK ones. This SI will also prevent additional administrative burdens on firms which could arise from the absence of an exemption for EU STS securitisations from the clearing obligation. This instrument will help”—
I would quibble with that word—
“bridge this gap until a permanent framework for designating equivalent jurisdictions with regard to securitisation regimes is in effect and an assessment of the EU can be undertaken under it.”
Am I right in my precis? When and how will
“a permanent framework for designating equivalent jurisdictions”
be determined?
Financial Markets: Stability
Baroness Bowles of Berkhamsted Excerpts(2 years ago)
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Baroness Bowles of Berkhamsted (LD)
My Lords, the mini-Budget caused sharp falls in the value of sterling, gilts and confidence in the UK’s rating. Despite policy reversals, there is substantial residual damage in people’s pockets and pension funds.
But this was not just an economic event. It triggered a systemic financial stability event, leaving question marks over regulators. The devil was liability-driven investment funds—LDI—and, as if we learned nothing from the great financial crisis, financial engineering that hides behind three-letter acronyms eventually leads to four-letter expletives when it blows up. So what was lurking, and why? The Pensions Regulator—TPR—has overly favoured investment in gilts, which steered funds away from higher-yielding productive investments. The accounting practice also developed of requiring net present value of liabilities, based on gilt interest rates, to be used in both pension scheme valuations and sponsor company accounts. That transferred artificial volatility to both scheme and company balance sheets.
Ways to smooth that volatility were therefore sought. LDI emerged and, with it, borrowing and leverage using repo and derivatives. Gilts were subject to repo—that is, sold but with retention of interest, a buy-back agreement and margining—and the cash used to buy further investments. Along with interest rate swaps, this quashes the accounting volatility and the pension fund gets to hold equities that regulatory edicts had inhibited. This sounds a bit like regulation-dodging, but the practice was actively encouraged by TPR. Alas, it also exposed pension schemes to cash margin calls. They were borrowing short against long liabilities—maturity transformation, just like Northern Rock, with shades of the great financial crisis again.
Then excess set in and, instead of buying equities with the borrowed money, more gilts were bought and underwent repo and so on. They were often leveraged four times, or seven times, as admitted in a TPR survey, or, anecdotally, 13 times. In 2018, the Bank of England Financial Stability Report noted that leverage and exposure to derivatives in pension funds was far greater than in hedge funds. It advised liquidity buffers and stress-tested market moves to 100 basis points based on historical review. My thoughts were that it did not think widely enough, not even to taper tantrums. The Bank pointed to international concern about systemic risk in non-banks but, despite the known UK-specific circumstances of DB schemes and a systemic feedback loop on gilts should there be a falling market, direct action was not—maybe could not—be taken. So the systemic trigger event happened. There was a spiral of margin calls and, although the Bank intervened to purchase gilts, the fire sale of assets within pension schemes cost many of them around 25% of asset value.
Now we come to the funny money accounting illusion where the TPR, FCA and BoE all say that, due to the recent rise in gilt yields, the net present value of liabilities has dropped, deficits have narrowed and pension schemes are in a better position for buyout. Rejoice they may, but assets—out of which pensions will actually be paid, both now and in the future—have dropped by 25%. That hole will be felt.
Was LDI, at least in its simplest embodiment, a smart move? Possibly, but there is the issue that pension scheme borrowing is not legal. TPR hides behind the sophistry that repo is a sale and repurchase, though the BoE and FCA more honestly call it borrowing. Thus, in pursuit of buyout or accounting niceties, employers, trustees and regulators have embraced the contrivance of dubious legality to evade primary principles in legislation, with the Pensions Regulator, the FCA and the BoE seemingly oblivious to those primary principles. It is an accident waiting to happen again.
Baroness Penn (Con)
No, it is correct. The noble Lord seems to know how it is composed, so we are transparent in how that number is reached. I would like to make a little progress.
Baroness Bowles of Berkhamsted (LD)
I am sorry, I know that the Minister keeps being interrupted, but maybe it should all come at once. She mentioned that the Bank of England had powers to intervene. I would be very interested to know what preventive powers she thinks the Bank of England could have used to intervene on LDI and leverage. It put it in its Financial Stability Report, but genuinely, I do not know what powers it has to intervene over something that is not covered by FiSMA. It is DWP and there is another regulator, yet it is causing a systemic glitch that could happen again.
Baroness Penn (Con)
The noble Baroness is right that there is more than one regulator at play in this space. That point was also made by the noble Lord, Lord Davies of Brixton. If the noble Baroness will forgive me, I will come on to some actions taken after the 2018 stress test shortly.
The noble Lord, Lord Tunnicliffe, asked what the forthcoming Bill will do to promote financial stability. Allowing us to tailor our financial services regulation to the UK’s situation and needs will mean that we can create the best regulation for our circumstances. In a world where financial services are evolving all the time, with new developments and technologies requiring regular changes, the measures in the Bill will mean that UK regulations can remain up to date and effective.
It is also the role of the Government to ensure that their own decisions lead to trust and confidence in our national finances. Our responsible approach to managing the economy meant that we went into Covid and the current economic crisis with strong public finances, allowing us to intervene to support people’s lives and livelihoods. In that context it is important to acknowledge that, while well intended, the recent growth plan had unintended consequences for economic volatility.
Mistakes were made, and we have taken steps to fix them. Most of the tax measures in the growth plan have been reversed and the associated volatility dissipated. However, we are still faced with a profound economic crisis, with global inflationary pressures driven by increased demand post Covid, elevated energy prices after Putin’s invasion, widespread labour shortages and, in response, central banks across many major economies raising interest rates.
My right honourable friend the Chancellor of the Exchequer has been clear that we will take the measures needed to restore confidence and trust in the UK’s public finances and to deal effectively with the economic shocks that are being felt across the globe. In doing so there will be difficult decisions to take, but I hope that I can reassure the noble Lord, Lord Tunnicliffe, and others, that in taking them, this Government will protect the needs of the most vulnerable.
Specifically on recent events, the FPC noted in its July Financial Stability Report that the worsening global economic outlook had caused markets to be volatile in recent months. Since July, global inflationary pressures have intensified further. Specifically on the intervention by the Bank of England, all noble Lords will be aware that in late September there was elevated uncertainty in the UK bond market that resulted in gilt yields rising rapidly and significantly. LDI funds, many of which held leveraged positions in the gilt market, faced significant margin calls as a result. In some cases, these calls exceeded the cash buffers that they held, forcing them to raise cash by selling gilts into a falling market. Large sales of gilts into an already illiquid market led to yields increasing even further, in turn triggering further margin calls and forcing further gilt sales to try to maintain solvency.
This would have led to a spiral of falling prices but increasing pressure to sell gilts, so, within its remit, on Wednesday 28 September, the Bank of England started temporary purchases of long-dated UK government bonds, with the aim of restoring orderly market conditions. In line with the Bank’s statutory financial stability objective, the purpose of these operations was to act as a backstop to restore orderly market conditions and reduce any risks from contagion to credit conditions for UK households and businesses while the appropriate adjustment takes place. This operation was fully indemnified by the Treasury.
It is worth remembering that the Bank’s intervention served to keep the gilt market stable so that funds had time to adjust their positions in line with the changed market conditions. The speed and scale of repricing far exceeded historical moves, and therefore fell outside the expectations of risk management plans or regulatory stress tests. Throughout the intervention, the Bank worked with LDI funds and pension schemes as they built their financial resilience ahead of it coming to an end. Market conditions have since improved. The Bank’s usage of the scheme, at under £20 billion, was significantly below the maximum size permitted under its maximum daily auction size and below the increase in the indemnity provided by the Treasury. This stress in the LDI sector highlights the necessity of ensuring that the appropriate risk oversight and mitigation systems are in place for market-based finance.
I shall try to address the question asked by the noble Baroness, Lady Bowles, and the noble Lord, Lord Tunnicliffe, about what has happened since the 2018 exercise that looked at this. Since then, the Bank of England has worked with other domestic regulators, including the Pensions Regulator and the FCA, on enhancing monitoring of the risks. That included working with the Pensions Regulator on a survey of DB pension schemes in 2019 and prompting work to improve pension liquidity risk management. As the FCA noted in its letter to the noble Lord, Lord Hollick, and my noble friend Lord Bridges in March this year, the FCA contacted the largest LDI fund managers to ask them what plans they had in place to deal with increased volatility. It also probed large managers on the speed with which they could call money from underlying pension funds in the event of stress.
In response to many noble Lords, including the noble Lords, Lord Sharkey, Lord Sikka and Lord Davies of Brixton, and the right reverend Prelate, the Government recognise that there will be lessons that need to be learned from the market volatility seen in recent weeks. The regulators are working with the industry to improve their resilience to market shocks, and it remains a focus of the Government and regulators to ensure that we have a robust regulatory system.
In addition to the ongoing monitoring of systemic risks by the FPC, His Majesty’s Treasury and UK financial regulators have been working internationally as part of the Financial Stability Board, as I previously noted, to develop global approaches to identify and address vulnerabilities in market-based finance. The noble Lord, Lord Sikka, asked why we take a different approach to the regulation of banks versus non-banks in the financial system. Part of that is the international nature of the non-banking part of our financial system.
The Bank of England has also committed to working with the Pensions Regulator and the Financial Conduct Authority to ensure that appropriate levels of resilience are in place to mitigate risks to UK financial stability. As the Pensions Regulator chief executive emphasised earlier this month, DB pension schemes were not and are not at risk of collapse due to rapid movements in the price of gilts, and savers should not make any hasty decisions about their pension pots.
I turn to pensions. As I have just stressed, defined-benefit pensions remain strong, and members of those schemes that were invested in LDI funds are not at risk of losing out as a result of either the aforementioned volatility or interventions made by the Bank. Indeed, the independent Pensions Regulator issued a statement on 12 October for trustees of defined-benefit and defined-contribution schemes and their advisers, which communicated its expectations on matters for trustees to consider in relation to managing schemes and supporting savers.
The noble Lords, Lord Sharkey, Lord Best and Lord Campbell-Savours, and my noble friend Lord Young of Cookham, rightly mentioned the housing market, and I want to respond directly. The fact is that interest and mortgage rates have been rising since last autumn in response to global trends. This is not a UK phenomenon, with the US Federal Reserve having raised its base rate since March 2022 and the ECB taking similar steps. In the UK, around 75% of residential mortgages are on a fixed rate and therefore, in the short term, shielded from rate rises. However, I know that, for those on variable rights and those who are seeing their own fixed-rate deals coming to an end in forthcoming months, there will be significant concern. Where mortgage holders fall into financial difficulty, FCA guidance requires firms to offer tailored forbearance options. While it is important to note that the pricing of mortgages is a commercial decision for lenders in which the Government do not intervene, the Government do offer support through Support for Mortgage Interest loans for those in receipt of income-related benefits and protection in court through the pre-action protocol.
Similarly, the setting of rates is a commercial decision for private landlords in which the Government do not intervene. However, we understand that many people will be worried about the impact of rising prices. My noble friend Lord Young of Cookham spoke more broadly about the reform needed in the private rented sector in order to provide more security to tenants in that sector. I agreed with much of what he had to say. Indeed, the Government’s programme of work to reform the private rented sector continues through, for example, our commitment to ban Section 21 no-fault evictions. We heard ideas from my noble friend Lord Young and the noble Lords, Lord Best and Lord Campbell-Savours, for other changes that we could potentially make in housing. I will take those back to the department and ensure that they are looked at carefully.
The noble Lord, Lord Sharkey, asked whether the local housing allowance would be uprated. He will know that, as part of our response to Covid, the rates of local housing allowance were increased significantly to the 30th percentile of the market, with 1.5 million households gaining just over £600 a year. We have maintained those rates at an elevated level last year and this year in order to ensure that claimants can continue to benefit from this. This is reviewed annually, and I will not comment further on the uprating of benefits.
More specifically, many noble Lords spoke about the difficulties that vulnerable people are facing this year with the rising cost of living. The Government absolutely recognise that and are focusing our support most heavily on those households. People are facing a difficult time. We have put in place an energy price guarantee and further support for those on income-related benefits, pensioners and those with disabilities. There is also discretionary support for local authorities to provide help in their local areas.
I am conscious of the time so I will begin to wrap up. Many noble Lords used this debate as an opportunity to look ahead to the Chancellor’s Autumn Statement. I welcomed the constructive efforts by the noble Lord, Lord Liddle, to make suggestions not just about areas of spending that should be prioritised but about ideas for tax reform to help to fund them, which always needs to come alongside. I will only say to him, on his suggestion for equalised pension tax reform, that we have heard in this Chamber in recent weeks about the challenges of keeping GPs and others in their roles because of the tax treatment of their public sector pensions, and the idea might perhaps be a bit more complicated than it may look at first sight.