Financial Services Bill

Lord Agnew of Oulton Excerpts

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

Moved by

[Lord Agnew of Oulton]

That the Bill be read a second time.

[The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)]

My Lords, as set out in the register of interests, I declare shareholdings in Close Brothers, Hampden & Co and Ovington Investments—the last of which I have significant control over.

The financial services sector drives growth and generates millions of jobs in every corner of our country. It has secured our reputation as a dynamic and world-leading financial centre and it contributes vast sums to the public purse—money that has helped this Government support millions of individuals and business through the pandemic.

Now that we have left the European Union and begin our recovery from Covid-19, we commence a new chapter in the sector’s story. As the Chancellor set out in his wider vision for the UK’s financial services sector in November, we remain committed to ensuring that the UK maintains the highest regulatory standards and remains an open and dynamic global financial centre. This is even more important now that we have left the European Union. Having left, the UK must assume full responsibility for its financial services regulation. The Economic Secretary has assured the other place—as I can assure noble Lords—that this will be underpinned by an unwavering commitment to high-quality, agile and responsive regulation, with a focus on safe and stable markets.

There will inevitably be some areas where the UK will take an approach which better suits our markets. To capitalise on this opportunity, we will fundamentally review our financial services regulatory framework to ensure that it is fit for the future. A consultation on this is open as we speak. The Financial Services Bill should, therefore, be understood as a key part of a wider process—the important first step in taking back control of our financial services regulation. It does so in a way that delivers our international commitments, is consistent with the highest standards of regulation and provides certainty and clarity for this important sector.

The Bill has three overarching objectives: first, to enhance the UK’s world-leading prudential standards; secondly, to promote openness to international markets; and, thirdly, to maintain the effectiveness of the financial services regulatory framework and sound capital markets. I will briefly set out each of the Bill’s measures, and how they contribute to these objectives. Much of the content is highly technical. I will do my best to explain each measure, but we have provided detailed explanations of each measure in the Explanatory Notes.

The Bill intends to enhance the UK’s world-leading prudential standards and to protect financial stability. Clauses 1 and 2, together with Schedules 1 and 2, empower the Financial Conduct Authority—the FCA—to create a tailored prudential regime for investment firms. Investment firms are currently part of the same prudential regime as banks, even though they do not typically provide banking services and therefore do not pose the same risks to financial stability. This Bill will allow the FCA to set prudential requirements which are more appropriate for investment firms. The reforms are similar to changes being taken forward in the EU, which the UK strongly supported while we remained a member.

The UK’s financial services regulators have the technical expertise and market understanding necessary to set complex rules for firms. I thank the Delegated Powers and Regulatory Reform Committee for its work in scrutinising the Bill’s approach to the delegation of powers and welcome its conclusion that there was nothing necessary to draw to the attention of the House.

The regulators will also be guided by the statutory objectives established in the Financial Services and Markets Act. Their independence ensures that they will not be swayed by political considerations. This Bill introduces a new accountability framework. It will require the FCA to consider the most significant public policy issues relevant to the regime, including the UK’s international competitiveness, and publicly report on how consideration of these factors has affected its rules. In addition to the existing accountability mechanisms in the Financial Services and Markets Act, this will allow Parliament to scrutinise the work of the regulators.

This approach aligns with suggestions made by the EU Financial Affairs Sub-Committee to the Chancellor in March last year, when it recommended giving the UK’s regulatory regime more flexibility. However, I can reassure noble Lords that systemically important investment firms and all banks will remain subject to internationally agreed prudential standards, namely the Basel banking standards. Clauses 3 to 7, along with Schedules 3 and 4, will enable the prudential regulatory regime for these firms to be updated in line with the latest Basel standards, endorsed by the G20. This will build on the existing regime and increase the UK’s resilience to economic shocks, meeting our international commitments to protect the global financial system. In a similar way to the prudential regime for investment firms, responsibility for making the detailed firm-facing rules will be delegated, in this case to the Prudential Regulation Authority. This will also be subject to a new accountability framework.

As noble Lords will be aware, promoting financial stability goes wider than prudential regulation. The Libor benchmark is referenced in upwards of $400 trillion-worth of contracts across the financial system and beyond—from complex derivatives to household mortgages. I am sure that noble Lords will recall the Libor scandal of 2012, which saw many banks attempt to manipulate the Libor benchmark for their own gain. Since then, significant improvements have been made to the administration of the Libor benchmark by its administrator, and to the regulation of benchmarks in the UK. This is in part due to the important work of the Parliamentary Commission on Banking Standards, which includes a number of Members of this House.

The Financial Stability Board—the international body that monitors the health of global financial markets—has made it clear that the continued use of certain interest rate benchmarks such as Libor represents a potentially serious source of systemic risk. The decline of the inter-bank lending market has meant that Libor and other similar benchmarks are increasingly reliant on the judgments of panel banks, rather than on actual transactions. The FCA’s voluntary agreement with the Libor panel banks, requiring them to continue contributing to the benchmark, so preventing the premature collapse of Libor, will expire at the end of this year. After this point, there is a risk that Libor will become unrepresentative, which may cause disruption. Clauses 8 to 19, and Clause 21, along with Schedule 5, give the FCA the powers it needs to oversee the orderly wind-down of critical benchmarks—including Libor—thereby reducing significant risks to market stability. This includes powers to provide for the continuity of Libor for those contracts which are unable to transition away from it. Alongside this, clause 20 will extend the transitional period for benchmarks with non-UK administrators from the end of 2022 to the end of 2025.

I turn to the Bill’s second objective: to promote openness to overseas markets. Clauses 22 and 23, together with Schedules 6 to 8, establish a framework to provide and effectively maintain long-term market access between the UK and Gibraltar for financial services firms, now that we have both left the EU. This delivers on a ministerial commitment made to Gibraltar and recognises our special, historic relationship. The arrangements will preserve Gibraltar’s regulatory autonomy and enable it to choose where it wishes to access the UK market, on a basis of alignment and co-operation.

Clauses 24 to 26, together with Schedule 9, simplify the process under which overseas investment funds obtain permission to be marketed in the UK. These changes will supplement the current regime, which requires the FCA to assess every individual fund. The changes will introduce a system under which the Treasury can determine whether a specific category of funds from another country has equivalent regulatory standards to those in the UK. This means that funds in this group wishing to market in the UK can undergo a simpler process, due to the confidence provided by the equivalent regulatory standards of their home country. This will increase choice for UK investors and maintain the UK’s position as a centre of asset management. The current regime will remain in place for overseas funds located in countries which have not been found equivalent. Clause 27 and Schedule 10 amend markets in financial instruments regulations to update the equivalence provisions for investment firms based outside the UK.

The Bill’s third objective is to maintain the effectiveness of the financial services regulatory framework and sound capital markets. Clause 28 introduces a streamlined process for the FCA to remove an inactive firm’s authorisation and position on the public register. This will improve the accuracy of the register and reduce the risk of fraud. Clause 29 will make small changes to market abuse regulations to make the regime more effective while reducing some of the administrative burden on firms. Clause 30 raises the maximum sentence for criminal market abuse from seven to 10 years, bringing it into line with other economic crimes.

I would like to pause at Clauses 31 and 32, along with Schedule 12. These clauses were added by the Government by amendment in the other place.

It has recently become clear that some provisions in the Proceeds of Crime Act 2002 are creating challenges for some e-money institutions and payment institutions, such as Revolut, Worldpay and TransferWise. They currently need to submit a defence against money laundering request to the National Crime Agency to seek consent before proceeding with any transaction where there is suspicion of money laundering, however small. Standard banks do not have this administrative burden. In certain circumstances they are exempt from submitting a request for transactions under £250.

The £250 threshold exemption was originally introduced to allow those with frozen accounts to pay for their day-to-day living expenses. While the transactions may be under suspicion, these low-value reports provide little useful information for law enforcement, so processing them is not a good use of resources. E-money and payment institutions must submit a large number of these requests for low-value transactions. This is burdensome and, again, a poor use of law enforcement’s time and resources. This Bill therefore equalises the treatment of banks and payment and e-money institutions in this respect. Importantly, e-money and payment institutions will still be required to submit reports of suspicious activity to law enforcement.

Similarly, we have expanded the scope of account freezing and forfeiture powers in the Proceeds of Crime Act 2002 and the Anti-Terrorism, Crime and Security Act 2001 to include accounts held at payment and e-money institutions. This will ensure that law enforcement agencies are able to quickly and effectively freeze, and activate forfeiture of, the proceeds of crime and terrorist property when held in payment and e-money institution accounts; this mirrors their existing powers with banks.

Clause 33 will ensure the continuation of existing powers assigned to HMRC to access information on who really owns and benefits from overseas trusts with links to the UK. The Government are also taking proportionate and effective action elsewhere to prevent the misuse of these trusts, including recent changes expanding the requirement for non-UK trusts to register with the HMRC trust registration service.

The Bill underlines the Government’s commitment to helping people in debt rebuild their finances. Clause 34 gives the Government the full range of powers they need to effectively implement statutory debt repayment plans, part of the Government’s breathing space debt respite scheme. These changes will mean creditors can be compelled to accept different repayment terms. They will also allow for the administration of the scheme and repayment plans to be funded by a charging mechanism and will allow debts owed to the Government to be included in a statutory debt repayment plan. This will support the Government’s work to ensure that those in problem debt can make repayments to a manageable timetable.

Clause 35 relates to the Help to Save scheme, which supports those on low incomes to build up savings. Help to Save accounts have a four-year term, during which the Government pay a bonus of 50% on up to £50 of monthly savings. At the end of the four years, customers will be asked to provide instructions about where they want their savings transferred to. This clause gives the Government the power to introduce successor accounts for Help to Save customers who do not provide instructions in future, where this is necessary. For now, the Government propose to support these disengaged customers by transferring their savings into the same account where the bonus has been paid, reuniting these customers with their savings.

Clause 36 makes amendments to the packaged retail and insurance-based investment products regulation, known as the PRIIPS regulation. This EU regulation has been widely criticised for its potential to mislead consumers. The Bill will allow the FCA to clarify the scope of the regulation, addressing significant uncertainty that exists now, along with some other helpful changes.

Clause 37 finalises reforms to the European market infrastructure regulation, which the UK supported as a member state. Clause 38 confirms the legal effectiveness of the financial collateral arrangements regulations and makes associated amendments to the Banking Act 2009. Finally, Clause 39 will make the appointment of the chief executive of the Financial Conduct Authority subject to a fixed five-year term, able to be renewed once. This is in line with other high-profile roles in the financial services regulation field.

In summary, this Bill is a necessary and important step in ensuring that our financial services regulatory framework delivers for the UK now that we have left the European Union and the transition period is over. It forms part of a wider programme of regulatory reform that will be guided by what is right for the UK’s financial services industry. It will support economic prosperity across the country, ensure financial stability, market integrity and consumer protection. It will ensure that the UK remains a world-class financial centre. I beg to move.

--- Later in debate ---

[Lord Agnew of Oulton (Con)]

My Lords, I thank noble Lords for their help in the thorough scrutiny of this Bill, both in this Chamber today and outside it. First, I offer my congratulations to my noble friend Lord Hammond of Runnymede, both on his speech and on the timing of his arrival at the beginning of this important piece of legislation. I also congratulate the noble Baroness, Lady Shafik, whom I have had the pleasure of meeting on one occasion. I know she will bring great wisdom to this House.

As I have said, this Bill represents the first step in a wider programme of reform and work to deliver the ambitious vision for financial services that the Chancellor set out in November. My noble friends Lord Hammond, Lord Hunt and Lord Bridges, among others raised the issue of how to appropriately balance the UK’s competitiveness as a global financial centre with the need to ensure the safety and soundness of the market. It cannot be a race to the bottom, and I take the point of the noble Baroness, Lady Kramer, that we cannot be a first-class global financial centre if we try to race to the bottom, bearing in mind her comments about Janet Yellen. We need to show to the rest of the world that this will be a soundly regulated environment.

As the Chancellor stressed in his November speech, the Government are committed to maintaining and enhancing the UK’s position as a global hub for finance. We will continue to consider appropriate ways to further this ambition in the way we approach this legislation. This is demonstrated by the inclusion of a duty on the regulators, when making the prudential rules covered by the Bill, to have regard to the likely effect on the UK’s competitiveness.

The noble Lords, Lord Oates and Lord Naseby, and the noble Baronesses, Lady Hayman, Lady Sheehan, Lady McIntosh, Lady Ritchie and Lady Bennett, underlined the important role that the financial services sector must play in our efforts to tackle climate change and its impact. To reassure noble Lords, green finance will remain integral to financial services legislation in the UK. The Chancellor made a number of green commitments in his November speech. The noble Lord, Lord Reid, noted that net zero was not explicitly addressed in the Bill, but this Government can show a substantial track record in tackling carbon in our economy. I believe that we are one of the fastest reducers of carbon emissions of any G7 country. The regulators already consider climate change as a risk to the economy, including through climate change stress tests, which assess the impact of climate-related risks on the UK’s financial system.

My noble friends Lord Holmes and Lord Leigh of Hurley spoke on the importance of fintech. The UK is building on its existing strengths as a leading global destination to start, grow and invest in fintech. We will shortly have Ron Kalifa’s report on this important issue and I am sure that this House will debate it further once the report is available.

Constraints on time mean that I may not be able to address all the issues raised in detail, but I will write to any noble Lord to whom I am not able to respond today. I start with the first objective: to enhance the UK’s world-leading prudential standards and protect financial stability. It would be remiss of me not to acknowledge the strong views across the whole House on the issue of regulatory oversight and the delegation of powers to regulators. It will be the Government’s job over the next few weeks to try to reassure this House that we have got the right balance. We have heard much on this from the noble Baronesses, Lady Kramer, Lady Noakes, Lady Altmann and Lady Bowles, the noble Viscount, Lord Trenchard, the noble Lords, Lord Sharkey, Lord Blackwell, Lord Tunnicliffe, Lord Desai and Lord Sharpe, and the right reverend Prelate the Bishop of St Albans—quite a wide spectrum.

I do not, however, accept the suggestion that anything in the Bill undermines Parliament’s role in relation to financial services regulation. The Financial Services and Markets Act 2000 creates the existing UK model for financial services legislation. It sets the objectives for the PRA and FCA and confers broad rule-making powers to give them the tools that they need to meet those objectives. It also specifies the mechanisms for Parliament to scrutinise the regulators’ success in meeting the objectives that are set for them. Through the FSMA, Parliament therefore establishes the appropriate architecture to guarantee that our financial services sector is well regulated. Parliament entrusts the detailed rule-making needed to deliver this to the UK’s independent and expert regulators. Our role is to give them the right objectives to ensure that they prioritise the safety and soundness of our financial system.

While the original FSMA model is 20 years old, following the financial crisis there was a thorough review of our approach to financial services legislation. We made significant changes to the regulatory architecture, splitting responsibility for prudential and conduct regulation and establishing a Financial Policy Committee with a remit to identify, monitor and take action to address systemic risks to the UK’s financial system. We also made regulatory changes, such as ring-fencing retail parts of banks from their investment and international banking activities. However, there was no change to the principle that independent and expert regulators are best placed to make detailed rules, albeit with the appropriate parliamentary scrutiny. The International Monetary Fund, the OECD and wider academic literature consider the FSMA model to be world leading. The Government likewise continue to believe that it forms the appropriate basis for our financial services regulation. However, they also recognise that it is important to balance the regulator’s role as a rule-maker with a greater level of democratic oversight and accountability.

The approach that the Bill seeks to take in relation to prudential measures builds on our respected FSMA model of regulation. We are consulting on the broader approach to regulation. This will close shortly on 19 February. However, it is necessary to act now on these elements of prudential regulation to ensure that we keep pace with international developments. In relation to these specific measures, having considered the issue, the other place reached the view that the Bill gets the balance right.

The approach taken here will ensure that our regime has the agility and flexibility needed to respond quickly and effectively to emerging challenges. There is a balance to be struck between the level of detail put down in legislation and regulators’ ability to respond to a changing environment. We are seeking to help UK firms seize new opportunities safely and responsibly. The accountability framework we have written into the Bill provides appropriate strategic policy input and democratic oversight from the Government and Parliament in these specific areas. Through this accountability framework and related provisions, Parliament will set the policy framework within which the regulators operate. For example, it will require the PRA to have regard to the effect of the Basel rules on the provision of finance to the real economy. The Bill places obligations on the regulators to report on how the matters specified in the Bill have influenced the rules that they make. Various mechanisms are available to Parliament for further scrutiny—for example, calling the regulators to appear before the relevant committees. As my honourable friend the Economic Secretary said in the other place, the make-up of these committees is primarily a matter for Parliament, and not the Government, to determine.

I hope these points have addressed some of the issues and concerns raised by my noble friends Lord Naseby and Lord Blackwell. I look forward to discussing this further in Committee, with my other government colleagues, to see what assurance we can provide for noble Lords that we have the right approach.

My noble friends Lord Northbrook and Lord Blackwell asked about the FCA’s use of Libor powers. The FCA published a consultation on 18 November, on the use of its power to provide for the continuity of Libor after panel banks withdraw their contributions. The Bill will mean that the FCA is required to publish, and have regard to, statements of policy when exercising its power to change the methodology of a benchmark. Industry respondents have noted that our legislation marks an important step in the wind down of Libor, but we also recognise their suggestions that it may be beneficial to provide additional legal protections to limit the potential for litigation associated with the application of a synthetic Libor. In Committee in the other place, my honourable friend the Economic Secretary stated that the Treasury was committed to looking into the issue further and providing industry with the reassurance that it needs.

The Bill’s second objective is to promote openness between the UK and international markets. The noble Lord, Lord Butler, spoke about the markets in financial instruments directive and the investment firm prudential regime measures. I can confirm that the FCA has already published its first consultation on the details of this regime. I will write to the noble Lord further on his wider questions, which extend beyond the Bill specifically. Likewise, I will respond to the question of the noble Lord, Lord Jopling, about our relationship with the USA, in writing. I reiterate the point I made at the beginning: we have a common interest in having a regulatory framework that is attractive to large markets such as the United States. Similarly, I will write to the right reverend Prelate the Bishop of St Albans on his questions surrounding the access to Gibraltar.

The noble Earl, Lord Shrewsbury, the noble Lords, Lord Reid, Lord Gadhia, Lord Northbrook, Lord Holmes and Lord Hodgson, and the noble Baroness, Lady Altmann, spoke of equivalence, in our new relationship with the EU. In November, the Chancellor announced as many equivalence decisions as we could for the EU and EEA member states, in favour of openness and it made sense to do so. Equivalence is an autonomous, unilateral mechanism, and our preference has always been for a full set of mutual decisions for both the UK and the EU. We remain open for further discussions with the EU on the decisions. The UK and the EU have agreed to structured regulatory co-operation for financial service based on a shared commitment to preserve financial stability, market integrity and the protection of investors and consumers. A memorandum of understanding will be agreed in discussion between the EU and the UK in March, to establish a framework for this co-operation. However, I accept the realpolitik of the situation and that, as many noble Lords have said today, we must not put all our hopes in that particular expectation. We need to use our new-found independence to create a regime that can have a successful relationship with the EU, but if it is not prepared to reciprocate, we need to move on to deal with that.

I will say a little bit more to the noble Baroness, Lady Kramer, on delegated powers. Several other jurisdictions largely use regulator rules to regulate financial services; indeed, the EU is the outlier in this regard. This means that the EU is used to assessing regulator rules and practice as part of its equivalence assessments. There is no reason why it would not be able to assess the UK in the same way, if the will is there. There is no suggestion that the US would not accept this as a proper and responsible regulation.

I say to my noble friend Lord Leigh of Hurley that the Government are continuing to work together with the Financial Services Compensation Scheme, the PRA and the FCA on the issues he outlined. I will ask officials to write to him specifically on the example he gave about the scam to which he was subjected, and this strange anomaly about the regulator not being able to deal with it because he was not actually a customer. That deserves a detailed response.

The Bill’s third and final objective is to support the maintenance of an effective financial services regulatory framework and sound capital markets. I greatly appreciate the efforts of colleagues on the opposite Benches, particularly the noble Lord, Lord Tunnicliffe, in engaging with the Bill. The noble Lord, Lord Stevenson, and my noble friend Lady Altmann spoke about bills of sale and logbook loans. I am grateful to them for raising the issue. I will write to my noble friend Lord Naseby on the issues he raised regarding home-collected credit and the perhaps mistaken conflation with payday lending.

I restate my commitment, and that of all my government colleagues, to work constructively with the noble Lord, Lord Tunnicliffe. I have found him to be a very constructive interlocutor and I want to try to maintain that dialogue over the next few weeks.

From economic crime to buy now, pay later, which the noble Baroness, Lady Ritchie, raised, it is important to stress that the Government are firmly committed to protecting consumers. Chris Woolard, the former interim CEO of the FCA, is undertaking a review of the unsecured credit market, including buy now, pay later. This report is due shortly. If it concludes that regulation is necessary, we are ready to take quick and proportionate action to implement it.

I can assure my noble friends Lord Jopling and Lord Naseby, my noble and learned friend Lord Garnier, the noble Lords, Lord Hendy and Lord Rooker, and the noble Baronesses, Lady Ritchie and Lady Bennett of Manor Castle, that the Government are committed to making the UK a hostile place for illicit finance. The UK is internationally recognised as having some of the strongest controls worldwide for tackling money laundering and terrorist financing. In 2019 the Government published the landmark economic crime plan, which brought together the Government, law enforcement and the private sector in closer co-operation than ever before, to deliver a whole-system response to economic crime.

I listened intently to the comments of the noble Lords, Lord Rooker and Lord Davies, and the noble Baroness, Lady Coussins, regarding the statutory debt repayment scheme measure. I confirm that implementing this scheme remains a key priority of this Government. We will consult of draft regulations as soon as possible after the Financial Services Bill receives Royal Assent.

Now that we have left the EU, this comprehensive package of measures represents the UK assuming responsibility for making its own laws in this area. The Financial Services Bill is a first step towards achieving that goal. I beg to move.

Bill read a second time and committed to a Grand Committee.