Financial Conduct Authority Redress Scheme

Debate between Ian Swales and Tessa Munt

Thursday 4th December 2014 Commons Chamber

[Ian Swales (Redcar) (LD)]

I rise to join the chorus of thanks to the hon. Member for Aberconwy (Guto Bebb); we all owe him a great debt for his relentless spearheading of our efforts in this long saga. Only a handful of constituents have come forward to tell me that they have been affected by this problem, but I have a very strong feeling that they are only the tip of the iceberg. I think that there are a lot of business people out there who are frightened of their banks and of what might happen to their business reputation if they come forward, or who are so unsophisticated that they do not even know that they have a problem. I think that there are many affected businesses that we do not hear from.

Having said that, I have certainly seen the problem. I welcome what has been done so far with the direct redress scheme, but I still think that it has taken too long. During this period we have seen business collapses and even suicides, although not in my constituency. There are still huge issues remaining. Many Members have spoken of the problems with the consequential loss scheme, and I wish to add my voice to that.

I want to talk in greater detail about the banks’ behaviour and what they have done to my constituents. I will talk about one constituent, Mr Stephen Lilley, who operates a single retail shop in a seaside village. I am sure that he would not regard it as an insult if I described him as unsophisticated as far as these products are concerned. Indeed, such is their complexity that I regard myself as unsophisticated, despite being a qualified accountant.

[Tessa Munt]

It has always struck me that it would be completely logical to require bank staff and independent financial advisers to be qualified to a certain level in order to flog these things. Surely “unsophisticated” means anybody who does not have an equal qualification when buying one of these things.

[Ian Swales]

My hon. Friend makes an interesting point. I think that even small businesses, such as those mentioned by my hon. Friend the Member for Brecon and Radnorshire (Roger Williams), probably should have had independent financial advice to deal with their own banks, which is a completely unacceptable situation.

I think that Mr Lilley’s case has wider implications, although I could equally have used those of other constituents, such as Roy Myers, Martin Johnson and Peter Broom. Mr Lilley took out a loan for his business. He was asked to put up as security his house, his son’s house, the commercial property, a share portfolio and the goodwill of the business, which he did. It was a swap product with the additional liability of a credit line, which was not declared at the time. I think that we all know how complex these products are. It was a derivative product that was priced in US dollars and then converted back to pounds. Mr Lilley had unknowingly fully indemnified the bank for these facilities, including the credit line, which they were not aware of. They have, through a pro bono arrangement, had some very expert advice on their situation. I should say that Mr Lilley made it clear to his bank from the start that he wanted a simple, declining balance loan, but that was never offered to him. He was very keen to repay the loan and not to take out a long-term arrangement, but that is what he did.

Mr Lilley has now been offered an alternative product—a cap—by the independent reviewer. The expert whom Mr Lilley is using believes that it is a regulated product, but the independent reviewer is not regulated to deal with the product, so right from the start there is a question of legality about his being offered that alternative product. At a meeting with HSBC on 24 October, the independent reviewer admitted that he was paid by HSBC, which brings the independence into question. Until that date, Mr Lilley did not know that there was an additional credit line in place, although it is some years since the original arrangement. The failure to disclose that puts a real question mark over whether it was contrary to section 1 of the Fraud Act 2006. It has been impossible to ascertain when the credit line was put in place or by whom. Moreover, the relationship manager was, in effect, selling a regulated mortgage because domestic properties were involved, and they were not qualified or regulated to do so. There is a whole issue about the legality of what the banks were doing. Mr Lilley and his family turned out to be guarantors of the extra credit line, which was secured against their homes, and under an “all moneys” charge they would have full liability. They have consistently asked for information about this, but the bank has still failed to provide it.

On 21 August 2013, an adjudication was agreed, part of the terms of which were that the swap was cancelled. Today, well over a year later, the swap is still in place. This is a small business person running a single shop—a mom and pop business, as the Americans like to call it. He has had to lodge two homes, business premises and a share portfolio worth far more than the loan that he took out. Because of the way that the bank has structured these products, it will not release any of the collateral. Mr Lilley would like to get some of his share portfolio back to help finance the problems he has as a result of the loan, but the bank will not release it. That is because it is itself using the assets that have been lodged for wider purposes. There is an underlying scandal going on.

Mr Lilley’s loan agreement says:

“In the event of HSBC’s insolvency or default or that of any brokers involved with your transaction positions may be liquidated or closed without your consent. In certain circumstances you may not get back the actual assets which you lodged as collateral and you may have to accept any available payments in cash.”

That means: “Your home may be at risk if the bank does not keep up the repayments. Even if the loan is up to date, if the bank or any brokers become insolvent, the bank may call in your assets.” That is a very onerous condition. The bank can do this because in 2007 the FCA changed the client asset rules, which contain two important clauses. CASS 3.1.5 says:

“the firm is given a right to use the asset, and the firm treats the asset as if legal title and associated rights to that asset had been transferred to the firm subject only to an obligation to return equivalent assets to the client upon satisfaction of the client’s obligation to the firm.”

In CASS 3.1.7, the position becomes even clearer:

“the asset ceases to belong to the client and in effect becomes the firm’s asset and is no longer in need of the full range of client asset protection. The firm may exercise its right to treat the assets as its own by, for example, clearly so identifying the asset in its own books and records.”

That starts to explain why the banks are so reluctant to offer shorter-term products, or different products, as part of the redress scheme: it is because they are using these assets in their own balance sheets. Between 2007 and 2008, when the regulations changed, RBS added £700 billion of assets to its balance sheet—equivalent to about half the UK economy. I suspect that an awful lot of houses and businesses are on RBS’s balance sheet and people do not even realise it. As a major shareholder of RBS, the Treasury needs to examine this, particularly as the Bank of England is saying that it is more likely to let banks fail in future. Many people could find themselves losing businesses and assets they did not even know were part of a bank’s balance sheet.

The operation of the compensation scheme, the behaviour of the banks, and, importantly, as the hon. Member for Wyre Forest (Mark Garnier) said, the behaviour of the FCA and question marks over its independence, mean that the scandal is continuing. It really is time for the Government to conduct a truly independent inquiry.

Water Bill

Debate between Ian Swales and Tessa Munt

Monday 25th November 2013 Commons Chamber

[Tessa Munt (Wells) (LD)]

I apologise for not being present for the opening of the debate; this was because I was attending a Committee elsewhere in the House.

I want to address three areas: fracking, flooding on farmland and flood insurance. I shall start with flood insurance. Much of the patch that I represent is at or below sea level, and it is prone to flooding. Many planning permissions on land in areas that have already flooded are in existence now, but I want to concentrate on future developments. In large parts of my constituency, it would be hard to build any sort of home or business without it being on the flood plain. Would the Minister consider encouraging local authorities to look at the townhouse model? Homes should be built on stilts in flood areas, or at least with garages at ground floor level so that people are not put at risk through flooding and so that goods and property can be moved to upper floors more easily to avoid damage.

I have a minor suggestion for the Minister. It was suggested earlier that the water companies should be a statutory consultee, but would it also be possible for representatives of the Association of British Insurers to clarify the insurance situation on new property proposals being put before development committees, when they involve developments in areas of flood risk? In that way, developers would be forced to use design to mitigate the risk, and purchasers would understand the risks and insurance costs involved, as well as knowing that they would be able to get insurance for their home or business.

Turning to flooding on farmland, I should like to pay tribute to my hon. Friend the Member for Newbury (Richard Benyon), who took the trouble to visit my constituency when he was the Minister with responsibility for this issue. He visited the Axe and Brue valleys in April this year and met more than 100 farmers and smallholders whose homes, stock and businesses had been severely affected by months of flooding. The farmers made it clear that the rivers, rhynes and waterways had suffered over the past 13 to 15 years because they had not been cleared or maintained. They had been neglected in the areas served by the Axe and the Brue rivers. There were problems with silt, blockages and overgrowing. In Somerset, money usually goes to the areas surrounding the Tone and Parrett rivers, but it is important that all our waterways should be maintained and improved.

The Environment Agency’s six aims and objectives recognise wildlife, flora and fauna, but there is no recognition whatever of the value of productive land. There should be, particularly at a time when food production is so important and we desire to be self-sufficient, or at least self-supplying. That point was also highlighted regularly. I hope that the Minister will use this opportunity to ensure that the residents and businesspeople in my part of Somerset get the dredging that they need and the ongoing maintenance that they deserve from the Environment Agency. I also hope that the agency and the Government will recognise the value of productive land, and that there is a response to the need to protect agricultural interests as well.

[Ian Swales]

Does my hon. Friend agree that failure to dredge does not often result in a cost to those who should be dredging, and that it mainly results in a cost to the insurance industry? Does she think that something should be done about that?

[Tessa Munt]

My hon. Friend is absolutely right. It would be so much better if we could get the dredging programme sorted out, because it would get rid of the need for massive insurance claims. In my area, if water can reach the pumps, it can be pumped away. Because of the lack of dredging, however, it cannot reach the pumps. It is possible to see the pumps from the flooded areas, but the water cannot reach them and therefore cannot be taken away. Dredging would cure that problem.

My final area of concern is the risk that fracking for shale gas poses to our rivers and groundwater in terms of pollution and water stress. The Bill already amends the 2010 environmental permitting regulations that cover fracking activities, making it an excellent opportunity to address these concerns and strengthen the existing regulatory framework. The House has heard repeatedly that our regulatory regime for fracking is the most stringent in the world, and it is true that, if properly implemented and enforced, the existing regulations could mitigate many of the risks posed by fracking. However, although fracking has been taking place for years, this particular new technology that is planned for the UK brings more serious risks that we cannot properly assess at this early stage. Even the best regulatory regime can only mitigate risk; it cannot eliminate it. That means that a water pollution incident cannot be ruled out. It is therefore of considerable concern that it is not clear who would be liable if something does go wrong. One of the main risks from fracking is pollution of groundwater, which can occur because of faults in production wells. Groundwater clean-up is very costly and can take decades. For example, the contamination of a chalk aquifer near St Albans in Hertfordshire in 2000 led to an extensive contamination of the public drinking water supply, and the cost of the clean-up, which took a decade, was about £16 million.

Even if liability for pollution can be proven, there remains a risk that fracking companies could go bankrupt, leaving taxpayers or water companies with the costs. That has been a major issue in the case of Scottish Coal, whose liquidators have been given permission to abandon coal mines and polluted land without carrying out restoration or in any way controlling pollution from the sites. Instead of identifying and addressing these risks, it appears that the opposite direction of travel is being taken. Not only is there pressure to simplify and streamline regulation, with the Environment Agency committing to, for example, a dramatic reduction in the time it takes to issue permits to fracking operators, but there is evidence to suggest that existing regulations are not being adequately enforced. For example, at Preese Hall, the Environment Agency did not issue environmental permits for the disposal and management of flow-back waste water; it only discovered after the site had been hydraulically fractured that the flow-back fluid should be classified as radioactive waste.

If experiences in the United States have taught us anything, it would be that we need a strict regulatory regime. We cannot rely on putting our faith in the industry behaving well on a voluntary basis. In a groundbreaking peer-reviewed study of aquifers overlying the Marcellus and Utica shales in Pennsylvania and New York, Osborn et al, 2011, uncovered systematic evidence of methane contamination of drinking water linked to shale gas extraction.

In England, a third of all our domestic water supply comes from groundwater reserves, which are also essential for industry and farming. It is vital that we go as far as possible to mitigate risks in advance and ensure that we make provision to cover the full costs of clean-ups. With that in mind, I ask the Minister to ensure the Bill addresses these issues by implementing a liability guarantee. Such a guarantee would ensure the public purse and the taxpayer are not hit when anything goes wrong.

My next big concern is the amount of water that is required for the production of shale gas. Shale gas exploration and production is a highly water-intensive industry, and the process of fracking requires enormous volumes of water. At Preese Hall up to 8,400 cubic metres—about the equivalent of three and a half Olympic-sized swimming pools—is required per well. The fracking process may have to be repeated several times over the life of the well to keep the gas flowing. With proposals for thousands of sites, each with multiple wells, the potential drain on our already stressed rivers and groundwater could be huge.

I ask the Minister and his Department to consider the Bill as an opportunity to address these concerns by reforming the abstraction regime for taking water from the environment. That should go a long way to ensuring that additional pressure on water resources from fracking does not result in the over-abstraction of water from areas already under water stress. If the Government choose to exploit this new resource, we can make sure that we do so in a way that does not place unacceptable risks on the environment or on the public purse. Such an approach will also guard against unnecessary resource risks to our communities, our countryside and our businesses.