Financial Supervisory Framework: EUC Report

Lord Harrison Excerpts

Thursday 12th January 2012 Lords Chamber

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[Lord Harrison]

That this House takes note of the report of the European Union Committee on The EU Financial Supervisory Framework: An Update (20th Report, HL Paper 181).

[Lord Harrison]

My Lords, I present the report entitled the EU Financial Supervisory Framework: An Update produced by the European Union Sub-committee on Economic and Financial Affairs and International Trade which I have the honour to chair. The global financial crisis has demonstrated that the existing structures for supervising financial institutions and monitoring systemic risks are inadequate. This in turn has triggered a debate on how best to redesign the financial supervisory architecture of the European Union. Consequently, in September 2010, the EU passed legislation which laid the foundation for a new EU supervisory architecture. The new framework has two strands. The first is the overarching European Systemic Risk Board, which has responsibility for macroprudential oversight of the EU financial system and for assessing and proposing ways to reduce systemic risks in the financial sector. Below the ESRB are the three European Supervisory Authorities: the European Banking Authority, the European Securities and Markets Authority and the European Insurance and Occupational Pensions Authority. These ESAs strive to harmonise and co-ordinate the work of member states’ national regulatory bodies. They draft and implement technical regulatory standards, and mediate between national supervisors where conflicts arise. When an emergency situation is declared by the Council, the ESAs have enhanced powers to co-ordinate member states’ responses and, if necessary, to make binding decisions on national supervisory authorities or indeed on individual financial institutions. In general, however, financial institutions continue to be supervised by national authorities.

The committee examined the proposed legislation setting up the new EU financial supervisory system in its 2009 inquiry on the future of financial regulation and supervision. After the new ESAs were established on 1 January last year, we decided to return to the topic by taking evidence from the UK national regulator, the Financial Services Authority as well as from the European Banking Authority. We wanted to discuss how matters had progressed and to explore key issues that we had previously raised with the Government in our area report. This report was published in July and the Government’s response, for which we are grateful, was received in September.

The committee’s key conclusions were as follows. First, we affirmed support for the single rule book, operable across the member states. Given the cross-border nature of many financial services, it is important that national supervisors apply the same regulatory standards enforced with the same powers across all the member states. However, the financial sector is a global industry and we asserted that global co-operation is also essential to ensure that risks are minimised rather than simply relocated. The committee was anxious to enshrine the principle that day-to-day supervision of financial institutions should remain at the national level and we stressed that this should be reflected in any new legislation proposed at the EU level. However, we noted that there were some situations in which the ESAs could and should override national supervisors, especially in response to an EU-wide crisis or emergency. Our witnesses sought to assure us that there were safeguards in place to prevent such powers being used routinely or inappropriately, and we expressed the hope that this will indeed be the case. Furthermore, we expressed the wish to be consulted if the Government were ever to envisage asking the Council to declare an emergency and, similarly, to be informed forthwith if they detected that another member state or ESA was likely to request that an emergency be declared.

We also endorsed the principle that national supervisory authorities should occasionally intervene in exceptional circumstances to impose temporary restrictions on certain financial activities in order to ensure general financial stability. We welcomed the co-ordinating role of the ESAs to ensure that such actions take place in a uniform and co-ordinated way across the European Union. However, in our view ESAs should only have the power to temporarily ban certain activities or products in a crisis when an emergency has been declared by the Council. Where the legislation setting up the ESAs allows for the ESAs to be granted enhanced powers in certain areas without the need for the Council to declare an emergency, we argued that future sectoral legislation should only confer such powers as the exception, not as the rule.

One such exception to the principle, in our view, related to short selling and credit default swaps. Given the highly cross-border nature of this trade, we argued that giving ESMA such intervention powers might be necessary to preserve financial stability in the European Union. I wonder whether the Minister has pondered the far-reaching consequences of this ban on CDSs and on short selling. In relation to contributing to macroeconomic stability, the committee stressed the importance of information-sharing among the supervisors. We also welcomed assurances by the EBA that bank stress tests would be strengthened in the light of the failure of these tests in 2010. Indeed, we concluded that the rigour of the stress tests would be an important measure of the independence of the EBA.

Finally, we reflected on the United Kingdom’s influence. The UK is the centre of financial services in the European Union and we emphasised the importance of the United Kingdom Government and the FSA taking leadership roles. We commended the FSA for its constructive approach in seeking to engage with the ESAs. Yet we were concerned that the Government’s proposal to abolish the FSA and replace it with the Financial Conduct Authority, the Prudential Regulatory Authority and the Financial Policy Committee could compromise the UK’s leadership role. We called on the Government to explain what structures and mechanisms they planned to put in place to ensure that the new bodies work together effectively to present a cohesive and unified face as well as ensuring that the residual task of the seceding FSA should be covered by the United Kingdom’s new national supervisory structure.

Although the Government’s response broadly reflected the committee’s point of view, there were some differences of emphasis. The Government continued to express concern about the use of the triggers for ESMA’s intervention powers in relation to short selling and credit default swaps. On the question of keeping the committee informed about any such emergency, the Government stated that they would inform it as far as is possible about a Council declaration of an emergency, or of subsequent use of emergency powers by the ESAs, in a form consistent with any restrictions resulting from the possible confidential nature of such decisions—perhaps that could be elaborated. On the domestic supervisory role of the United Kingdom, the Government stated that they would legislate to require establishment of a statutory memorandum of understanding between the Treasury, the Bank of England, the PRA and the FSA, and would support the further use of memoranda of understanding to frame the new regulators’ relationships with other UK authorities. I look forward to the Minister’s reply, which I am sure will explain the Government’s position in more detail.

So where do we stand today? Events have moved on since the report was published, in particular as the euro area crisis has deepened, and the new bodies have played a high-profile role. For instance, the European Banking Authority’s December assessment that European banks needed €115 billion of funding to withstand financial shocks underlined not only how serious the crisis had become but also the EBA’s active and interventionist role. Moreover, the UK Government’s reported demand, in negotiations at the Brussels summit in December, that the EBA remain in London demonstrated not only how important this body has become to the Government but also the potential isolation that they face as a result of not joining in with the other 26 member states. However, the collapse of Dexia in October, in spite of the fact that it had comprehensively passed the EBA’s stress tests as recently as July, once again called into question the effectiveness of its system of bank stress tests. ESMA’s role in the regulation of high-frequency trading, over-the-counter derivatives and credit rating agencies, as well as its power to ban certain activities or products, continues to be subject to intense debate, as does EIOPA’s controversial assessment of the solvency of pension funds.

Are the Government sure that British experts are available for use with the new structures? Do we have sufficient resources accorded to the new supervisory authorities to ensure that they do their work?

ESMA has had responsibility for credit rating agencies since 1 June of last year. This forms a new and important departure, and I would welcome the Government’s response to this development within the single market in financial services.

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[Lord Harrison]

My Lords, social commentators often identify a dank dark day in January after the Christmas celebrations, before the summer, as the time when the nation becomes its most despondent. I rather feel, along with the pathetic fallacy articulated by the romantic poets, that in bringing this debate before Parliament I might identify and echo a mood that is consonant with such depression.

What I am very pleased to say is that this has been an important debate and I welcome the contributions offered by each and every Member—particularly the late contribution of the noble Baroness, Lady Wheatcroft, who listened patiently to what was said. In contrast, I feel stimulated about the debate and I am quite sure that we will have to return to it in our examinations of these new and important authorities that will have such importance to the United Kingdom, the European Union and more widely.

Noble Lords should forgive me if I do not comment on every contribution, each of which was valuable. However, perhaps on a lighter note, I congratulate the noble Lord, Lord Hannay, on the subtle welcome he gave to the six-month Danish presidency of the EU by his reference to “Hamlet”. Perhaps he might provide such ingenuity on 1 July later this year, when the Cypriots take over the presidency, with a simple reference to “Othello”.

Motion agreed.