Dormant Assets Bill [HL]

Baroness Noakes Excerpts

Committee stage
Monday 21st June 2021 Grand Committee

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the noble Baroness, Lady Barker, made a very important point about impact. I will come back to it in a moment in my remarks.

In the first instance, we heard from the noble Lord, Lord Bassam of Brighton, and the noble and learned Lord, Lord Etherton, about the timing of reviews to look at whether the structure is working effectively now and will work effectively at some date in the future. I want to probe the Minister a little further about the situation now and the current operation of the system. Specifically, I want to ask her whether the Government think that the existing powers to investigate, measure and check are sufficient.

As I understand it—I stand to be corrected—under the present system, money from the fund is passed to recipient bodies or recipient groups by what are called distributors, which have clear responsibilities to decide which bodies are worthy of funding and should get the money, and, after the funds have been passed over, to ensure that the proceeds are spent properly, effectively and in accordance with the way envisaged at the time of the grant. Again, as I understand it, there are currently four distributors: Big Society Capital, Access, Fair4All Finance and the Youth Futures Foundation.

The work of these four distributors is overseen by the Oversight Trust, which has no power to determine where the money goes but is charged with ensuring that the distributors have effective procedures in place to ensure good governance and proper performance of their duties. Clearly, the Oversight Trust has a very important role to play in maintaining public trust and confidence in the dormant assets scheme.

Can my noble friend enlighten me on three points? First, can a new distributor be appointed or dis-appointed? Who decides that and initiates it? If a decision is made to go ahead, what powers, if any, does the Oversight Trust, which is responsible for monitoring that body, have in making that final decision? That is my first question: can we remove or add distributors? How do we do it? What role does the Oversight Trust have in that process?

Secondly, and more generally, are the Government satisfied that the Oversight Trust has the powers necessary to fulfil this important role? For example, are distributors required or obliged to collaborate and co-operate with the Oversight Trust to ensure that it performs its duties effectively?

Thirdly—this point was made by the noble Baroness, Lady Barker—what role, if any, does the Oversight Trust have in measuring the impact of what the distributors are doing? Do we look in any way at whether the distribution policy being followed by one of the four groups now in power to do this makes sense for our society, or are they free as a bird? It would be helpful if the Minister could say a little about that.

Finally, it must be of importance, as we begin to see the expansion of the whole scheme—I think every Member of your Lordships’ House thinks that it is a good idea in principle; I certainly do—to ensure that the governance structure is adequate for the increased responsibilities that will be placed on it. I hope that my noble friend the Minister will be able to reassure me on these points when she replies to the debate.

[Baroness Noakes (Con)]

My Lords, Amendment 45 in this group is in my name. As has already been pointed out, it differs from the other amendments in the group, which call for reports, as it is a targeted amendment focused on ensuring that the scope for new asset classes being added to the dormant assets arrangements under the Bill is kept under review. The other amendments are broader and seek reports on the impact and operation of the scheme. I do not support littering legislation with reports on the impact of Bills—that is what the post-legislative scrutiny process is for—so I do not support the other amendments in the group.

I was going to point out to the noble and learned Lord, Lord Etherton, that his amendment is ineffective because Clause 31 deletes Section 14 from the 2008 Act, but he got there first. I would just explain that Section 14 was put in in the very specific context of the first Bill, the then Dormant Bank and Building Society Accounts Bill. At the time, there was considerable controversy about whether a voluntary scheme would work. There was much scepticism about whether banks and building societies would yield their assets, which is why that specific reporting section was put into the 2008 Act. It reported within a few years. It has been some time since I looked at that report but, broadly, it concluded that it had been effective. Not absolutely every bank and building society is in the scheme but, in terms of value, substantially the whole amount are.

I focused my amendment on bringing in other asset classes because it took a long time for this Bill to come forward after the 2008 Act. It was 13 years before more asset classes appeared, which is just too long. Indeed, my noble friend the Minister admitted as such at Second Reading when she said that the industry had been “nudging”—a polite term—the Government to get on and get this Bill done. I do not think that we can necessarily rely on the Government to prioritise or be proactive about the source of new funds coming into dormant assets, which is why I suggested a periodic report specifically on asset classes to keep up that pressure.

When the Dormant Assets Commission, which was set up to be independent of government, reported about four years ago it identified a number of additional assets. It decided to concentrate on the financial services sector, but even within that it noted, as we discussed at Second Reading, that a number of sources of assets in the financial services sector have not yet been brought within the scheme’s scope. The report also outlined a long list of assets outside the financial services sector, ranging from Oyster cards—I was astonished to find that there are 42 million cards with a balance on that have not been used for more than a year—to a large amount of money in unclaimed gambling winnings, which I find surprising. There are also lots of balances on things such as telephone accounts and energy accounts. There are lots of forms of dormant assets hanging around; they ought not to be retained by the companies that hold them but ought to be released for the kind of good works that are fostered by this Bill and the 2008 Act.

I hope that one day the Treasury will be shamed into no longer being the only body keeping its dormant assets out of the scheme, in the form of National Savings & Investments accounts. I believe it amounts to something close to state larceny for the Treasury to insist that it can keep dormant National Savings & Investments money because it has been used to fund public expenditure. It is not the Treasury’s money to keep. However, I acknowledge that shame is not something generally found in the Treasury, so we may have to wait a very long time to see those assets come within the scheme.

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Moved by

[Baroness Noakes]

50: After Clause 26, insert the following new Clause—
“Examination by Comptroller and Auditor General
(1) The Comptroller and Auditor General (“the Comptroller”) may carry out examinations into the economy, efficiency and effectiveness with which Reclaim Fund Ltd has used its resources in discharging its functions.(2) An examination under this section may be limited to such functions (however described) of Reclaim Fund Ltd as the Comptroller considers appropriate.(3) Before carrying out an examination under this section, the Comptroller must consult Reclaim Fund Ltd.(4) The Comptroller may report to the House of Commons the results of any examination carried out under this section.”

[Baroness Noakes (Con)]

My Lords, I thank the noble Baroness, Lady Bowles of Berkhamsted, for adding her name to the amendment.

At Second Reading, I asked the Government whether they would switch from using private sector auditors for Reclaim Fund Ltd to using the Comptroller and Auditor-General. I was disappointed that my noble friend the Minister did not reply to that when she wound up the debate; nor did she write to me following the debate. However, the Government’s Back-Benchers are well aware that they are generally not the priority of Ministers and I do not hold it against her.

At Second Reading, my primary focus was on switching the statutory audit arrangements. All limited liability companies, apart from very small ones, are required to be audited by statutory auditors. The Companies Act 2006 opened up the possibility, for the first time, of the appointment of the C&AG to companies in the public sector. That was in response to a report by Lord Sharman, who sadly has now retired from the Liberal Democrat Benches. I hope that my noble friend the Minister will explain what arrangements will be made for the statutory audit of Reclaim Fund Ltd, now that it is fully within the public sector. It has been audited by private sector auditors to date. I continue to believe that it should be audited by the C&AG.

Last week, I had a helpful meeting with my noble friend the Minister and her officials. They said that the audit would be carried out by the C&AG in future and that the power for this existed under the National Audit Act 1983. This left me a little confused because that Act does not deal with the statutory audit of companies incorporated under the Companies Act. I hope that my noble friend will be able to clarify the position today. In the first group, she referred to value-for-money auditing—I shall come to that in a moment—but she did not refer to statutory audit.

My reasons for shifting the financial audit of Reclaim Fund Ltd from private sector auditors were partly because it would be cheaper but mainly because the National Audit Office carries out value-for-money work, not just financial audits. I believe that there are strong grounds for believing that the activities of Reclaim Fund Ltd would benefit from a value-for-money audit. For example, I believe that the ultra-cautious approach to the investment of the huge funds that are retained within the company has not optimised the income of the company. It has offices in St James’s Square, which, I wager, is not the most cost-effective location. Every penny that is either spent unwisely or represents forgone income translates into less money flowing to the good causes that should be funded by the dormant assets.

This is why I have tabled an amendment for Committee that focuses on value-for-money audits alone. Value-for-money audits are a routine part of auditing in the public sector, and those bodies that are in the public sector but are not government departments usually have the C&AG specified as their auditor by statute. However, some, like Reclaim Fund Ltd, are not set up like this and value-for-money audits generally proceed on a voluntary basis. I assume that this will be the basis underpinning the upcoming VFM audits that my noble friend referred to earlier.

As there have been some difficulties in getting the NAO into some bodies in the past, it has been necessary from time to time to make statutory provision for this. However, these have generally been big beasts rather than a small company such as Reclaim Fund Ltd. My amendment is drafted on the basis of what is now Section 7D of the Bank of England Act 1998—inserted by the Bank of England and Financial Services Act 2016—which was necessary to get access for the C&AG to carry out value-for-money audits in the Bank of England. Obviously, it would be best if the C&AG did both financial and value-for-money audits on Reclaim Fund Ltd.

I very much look forward to hearing what my noble friend the Minister says. I beg to move.

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

My Lords, I added my name to this amendment because I support entirely the objective that has been so well outlined already by the noble Baroness, Lady Noakes. Like her, I share the view that both the statutory audit and the value-for-money audit should be provided for. I will defer to her superior knowledge in terms of which bodies tend to be routinely audited or where there is a degree of optionality, or, at least, life is made difficult so that you have to have something like Section 7D of the Bank of England Act 1998. I too had a meeting with colleagues and the Minister in which I believe it was said that the audit would be by the Comptroller and Auditor-General, but I am not sure now whether that is absolutely the case, given what the noble Baroness, Lady Noakes, has said.

It is very important that we have, for the record, a knowledge of exactly what is expected to happen and whether there is any optionality about it. If there is some kind of optionality, then it is necessary to have an amendment of the kind proposed by the noble Baroness, Lady Noakes. The record has to be clear as to what will happen. I am sure the Minister has all the best intentions, but it is obviously not quite such a clear-cut situation as we have been led to believe. If no fulsome response is available at this point in time, then it is absolutely necessary that we have the information about that well in advance of Report so that we can know whether there is still a need for the amendment.

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There is no need for a bespoke arrangement for RFL under the Bill, as the legal basis for the Comptroller and Auditor-General value-for-money assessments already exists. In fact, the inclusion of an RFL-specific power could potentially confuse matters by cutting across Section 6 of the National Audit Act and could create an unhelpful precedent in relation to the existing National Audit Act provisions, which have worked effectively to date. For the reasons I have set out, I am not able to accept this amendment and I hope that my noble friend will therefore withdraw it.

[Baroness Noakes (Con)]

My Lords, I thank my noble friend the Minister for her comments, which seem to have addressed all the points I was seeking to make. I think it is important that all bodies in the public sector are subject to public sector audit for various reasons—not least value for money, the subject of my amendment. I am grateful to her for setting that out in detail and I do not mind what she calls me on that basis. I beg leave to withdraw the amendment.

Amendment 50 withdrawn.

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

My Lords, this is a probing amendment standing in my name and that of my noble friend Lady Kramer. I also support the similar aim in the amendment of the noble Baroness, Lady Noakes.

As I indicated at Second Reading, I was surprised at the level of funds kept back from distribution in order to cover possible repayments. It was 40% that alarmed me but, as the Minister explained subsequently in our meeting, it was actually 60%, which is even more alarming. That is travel in the right direction, but it still seems to be excessive prudence.

With regard to bank and building society account assets, even if there were no change in the status of Reclaim Fund Ltd, there is a change of status in that the Government are essentially a guarantor and can provide a loan to cover a deficit. That makes a difference and it should be utilised, whether by influencing the risk appetite, which is where I have directed my amendment, or by specific guarantee, as the noble Baroness, Lady Noakes, suggests.

I am not suggesting that a reclaim fund should take an outlandish view of risk, but the fact is that it should not be necessary to be ultra-cautious, because the consequence of extraordinary and unexpected reclaim amounts would be the triggering of a loan from the Treasury rather than a call on the Financial Services Compensation Scheme. I am well aware that protection of such compensation schemes can feature as a large factor in the mind of the regulators when they give advice about what would be the right approach. We know this to be a fact when it comes to the Pensions Regulator; I have discussed that extensively on another Bill, although that is not in the Minister’s purview. It could well have been a factor in the Financial Conduct Authority’s computations and its part in advising on the provisioning. I would like to know whether that is the case and whether there is any suggestion of reviewing that in the light of the change in status and the removal of access to the Financial Services Compensation Scheme and its replacement with the availability of the Government’s loan.

I recognise the need to protect the public purse, about which the noble Lord, Lord Bassam, is concerned in his amendment, but a loan is not a giveaway; it is a mechanism to smooth the unexpected and remove the need for an excessively cautious risk appetite. That is the direction I am coming from in my amendment: to allow the loan possibility to influence risk appetite and change it from an ultra-cautious to a mid-range approach. The noble Baroness, Lady Noakes, has taken a more formalised accounting approach and I have no problem with that as a mechanism. The point on which we concur is that being ultra-cautious needlessly keeps funds doing nothing. That is wasteful when the loan facility or another mechanism exists. I beg to move.

[Baroness Noakes (Con)]

My Lords, I have Amendment 53 in this group. It is very much on the theme of Amendment 51, which the noble Baroness, Lady Bowles of Berkhamsted, just spoke to. As she said, the common ground between us is that the amount of money kept back in Reclaim Fund Ltd as reserves for repayment claims is much too high. Like her, I was shocked when I found out that the company started off by holding back 60% of the funds transferred from banks and building societies. The fact that it is now 40% is no great comfort.

When the then 2008 Bill was debated in your Lordships’ House, the Government could offer no estimate of the amounts that would be held back, but the kind of figure that we talked about was 10%. Surprisingly, that is not a million miles away from the experience to date, which is between 5% and 7%. The ultra-cautious reserving policy adopted by the company has meant that around £500 million has been held back. Just think what could have been achieved in the voluntary sector if even half of that had been released.

Nothing in the 2008 Act required this to happen, but the Act did require any reclaim fund to embed in its articles of association the transfer of money for good causes being subject to ensuring that it could meet repayment claims that are prudently anticipated. The issue is about the judgments that have been made for these prudently anticipated repayment claims.

I understand that the calculation of the reserves has been made using actuarial advice. With apologies in advance to the noble Lord, Lord Davies of Brixton, I was once told that people became actuaries rather than chartered accountants because they found chartered accountancy too exciting. That may well account for the fact that an extreme version of prudence has been at work in this provision.

When the Dormant Assets Commission reported to the Government in 2017, it too was concerned about the amounts held back for both repayment claims and a capital reserve. Both appear to be ultra-prudent. So far as the repayment reserves are concerned, the Dormant Assets Commission recommended using commercial reinsurance against the tail risks driving the extent of this provision. Now that the company is firmly in the public sector, it makes little sense to carry on preparing accounts as though it were a free-standing organisation needing to guard against extreme possibilities for future payments.

The plain fact is that, if Reclaim Fund Ltd overdistributes its funds and runs out of money due to unexpectedly high repayment claims, the Treasury will have to step in. I will comment later on the problems I see with the power in Clause 27 to lend money to the company, but I believe that the crucial issue is that the Treasury now de facto stands behind the company. It should now be run from a financial management perspective in that light. It would not make sense to buy commercial reinsurance for the company’s tail risks because the public sector can bear such risks on its own balance sheet, which is why the Government rarely, if ever, buy commercial insurance.

My Amendment 53 could have tried to replicate an internal public sector reinsurance arrangement, but that felt rather artificial. Instead, it would give the Treasury power to guarantee the liabilities of the company, which it de facto does anyway now that it is in the public sector, and to tell the company how much of that guarantee can be taken into account when it makes its determinations under the 2008 Act about how much to anticipate on a prudent basis. It is now the Treasury’s responsibility to determine how much can be released for good causes. It must not hide behind an artificial construct of a limited liability company making its own judgments because, in the context of the public sector, the broad shoulders of the sector is bearing the risks anyway.

Amendment 51 in the name of the noble Baroness, Lady Bowles, basically links the power of the Treasury under Clause 27 to lend money to a reclaim fund when it calculates its provisions for liabilities. I do not think that that works in accounting purposes because, whether or not it is drawn down, the availability of a loan has no impact on the calculation of a liability. A loan is about funding—that is, cash flow—rather than the amount that is or may become payable.

In fact, I believe that the loan power in Clause 27 may be pretty useless. If the directors consider that they are unable to meet their liabilities as they fall due and there is any uncertainty about their financial forecasts, it may well be that the correct course of action for them is to place the company into liquidation. A loan would make sense only if the company had a strictly short-term need for cash but was confident that other funds would flow in from more dormant assets in the future to make up any hole in its accounts.

In any other case, liquidation is the obvious route because directors bear personal responsibility if they trade while insolvent. The Treasury would almost certainly want to avoid liquidation, with the possibility that repayment claims were not met, and would in practice have to recapitalise the company rather than lend money to it if a major loss emerged. So Clause 27 may well be a bit of an illusion, but it is certainly not the basis for reduced provisioning for repayment claims.

[Lord Davies of Brixton (Lab)]

My Lords, I am going to live up to the caricature—I thank the noble Baroness—and will speak up for prudence. I find this a difficult issue. For me, it will be resolved only if we have access to the advice—I presume that it was made to the reclaim company rather than to the Government because this is a decision by the reclaim company—so I would be interested to know whether it is possible to see the advice that it has received.

It would also be useful to have a bit more information on the mechanics of how the reserving works. It is possible that, as the fund rolls forward, money that was required for reserving date one becomes available because of the way that the fund operates at date two and the reserve is more about when the money becomes available rather than an absolute bar on the availability of funds for charitable causes.

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[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

The noble Baroness, Lady Noakes, has asked to speak after the Minister.

[Baroness Noakes (Con)]

My Lords, I hear what my noble friend the Minister has said—that she was speaking to my amendment and that of the noble Baroness, Lady Bowles, which both rely on the loans to reduce the amount of reserving. That is not what my amendment said at all. Mine was based on more explicitly recognising that the Treasury de facto now stands behind the company and that anything else is a complete fiction.

My noble friend talked about industry needing confidence in the scheme being independent of government. Frankly, the whole world has changed: the Treasury now owns 100% of the capital and it has been reclassified as public sector. The fact of life is that this is a public body and its “separate legal entity” nature is just a fiction.

If the Treasury wanted to release more for good causes, it could. That is at the heart of the issue; anything else is some form of dissembling. So I personally am not satisfied with the Minister’s response today. I do not think meeting the chief executive of the Reclaim Fund Ltd will get us any closer to the heart of the matter. The issue is: why will the Treasury not step up to the plate and recognise that it now carries responsibility for the amounts released, and that in public sector terms there is no good reason to withhold significant sums for tail risk?

[Baroness Barran (Con)]

I accept that I am not going to convince my noble friend this afternoon. Although she may see the fact that Reclaim Fund Ltd is a separate legal entity regulated by the FCA as a fiction, I respectfully disagree. She will decide whether she wishes to meet those from Reclaim Fund Ltd. The reason I felt that it might be helpful is that it may clarify to what extent the current level of reserving is “excessive”, as it was described in the debate this afternoon.