Financial Services (Banking Reform) Bill

Lord McFall of Alcluith Excerpts

Monday 11th November 2013 Lords Chamber

Moved by

[Lord McFall of Alcluith]

To move that this House takes note of the number and complexity of amendments tabled by Her Majesty’s Government at Committee Stage of the Financial Services (Banking Reform) Bill, and of the case for measured consideration of the Bill.

[Lord McFall of Alcluith (Lab)]

My Lords, why does my Motion state, “measured consideration”? If we go back to Second Reading on 21 July, the noble Lord, Lord Deighton, the Commercial Secretary, stated that,

“the Bill is a central part of the Government’s response to the financial crisis of 2007-09”.

In responding for the Opposition, the noble Lord, Lord Eatwell, said that this is the most significant reform of the finance ever, but he added:

“This Second Reading is being conducted largely in the dark”.—[Official Report, 27/7/13; col. 1343.]

The President of the Supreme Court, the noble and learned Lord, Lord Neuberger, in a speech last month entitled Justice in an Age of Austerity said:

“Partly because there are so many perceived problems in society, there is a welter of ill-conceived legislation—poor in quality and voluminous in quantity. The result is little more than the illusion of action without much in the way of the reality of achievement, coupled with uncertainty and confusion about the law … it brings the legislature, even the rule of law, into disrepute”.

He could have been talking about this financial services Bill. I have news for the House; indeed he was.

When introduced to the House of Commons in February 2013, the Bill was 20 pages and 25 clauses long. When introduced to the House of Lords in July 2013, it was 35 pages and 21 clauses long. Now, before us, we have 170 pages and 127 clauses.

The noble and learned Lord, Lord Neuberger, continues:

“I mean no criticism of parliamentary drafters or of MPs or Peers. The pressure on them is such that they cannot do their jobs properly, as they themselves have made clear. Let me take a very recent example. Exactly a week ago, the House of Lords considered the Financial Services (Banking Reform) Bill, in what was optimistically described on the Parliamentary website as ‘the first chance for line by line scrutiny, in the Lords’. Lord Turnbull, a cross-bencher, pointed out that the ‘total amendments [run to] 116 pages and government amendments accounting for 95 pages of that: more than three times the length of the original Bill. That tells us something about the process of legislation. We are dealing with amendments to amendments to amendments which are in turn amending statutes that have already been amended more than once’.

‘Lord Higgins, a Conservative, said that ‘the way that the Bill is drafted … makes it extremely difficult for the House to work out what is happening from moment to moment on an unbelievably complex matter’. Lord Phillips of Sudbury, a Liberal Democrat, described ‘the complexity of both the Bill and the amendments’ as ‘quite barbaric’, and Lord Barnett, for Labour, said that he had ‘enormous sympathy’ with the view of Lord Turnbull ‘that he has never seen such a shambles presented to any House’. He immediately went on to say:

‘As Chief Secretary to the Treasury, I had the misfortune for five years … to take two Finance Bills a year through, mainly because the first Bill had to be amended because it had not been properly scrutinised; it had been guillotined by all successive Governments. Yet I have never seen anything remotely like this Bill’”.

As the noble and learned Lord, who is the President of the Supreme Court, said:

“So here we have a Parliamentary debate on a Bill whose importance could scarcely be greater, a debate and a Bill which are condemned from all sides of the political divide as plainly unsatisfactory, and where a former Minister indicates that the problem is not new. Examples abound”.

He adds:

“I appreciate that life gets ever-more complex, but that reinforces, rather than undermines, the need for simplicity in legislation”.

The Government may say that they have put these amendments down in order to respond to the recommendations of the Parliamentary Commission on Banking Standards. However, there is universal dismay among the members of that commission at the haste with which the Government are pushing the Report stage to 18 November. I quote from the Times last Thursday, in which the chairman of the commission said,

“a government move this week to ram the Bill through the House of Lords would not leave peers necessary time to consider amendments”.

He continued:

“This legislation is being rushed. It’s hugely complex: amendments piled on amendments piled on amendments. We must get this bill right, and the Lords need more time to do it”.

He adds:

“The bill would be a botched job, were we not to take the time to get it right”.

We have a number of substantial differences with the Government regarding the direction in which they are going. For example, we want a statutory basis for the remuneration code, to better align risk and reward. Leverage ratios have been at the core of all financial crises since the time of the Ark. Mervyn King, the former Governor of the Bank of England, was very clear when he said:

“Leverage is the one issue that matters above all others”.

It is not for politicians to decide, and that is what the Government are doing at this very moment. There are also the issues of electrification of the ring-fence, and of general powers. The chairman of the commission, Andrew Tyrie, said,

“the Government’s amendments would render the specific power of electrification virtually useless”.—[Official Report, Commons, 8/7/13; col. 75.]

The noble Lord, Lord Lawson, and I have been interested in the issue of the auditors’ code. We need a basis of communication between auditors and the regulator if we are to ensure that we can make sense of banks’ business models, now and in the future. The noble Lord has been very keen on the issue of prop trading, which the Government have dismissed.

The commissioners accept in principle much which needs to be in secondary legislation. If that could be provided—even in draft—so that we know exactly what the Government have in mind, and we can form our opinion accordingly, it would be a step forward. However, that needs time so that everyone can understand it.

The commission was established in June 2012 to examine both culture and standards in the financial services industry, particularly the banking industry. What did we find? We found a culture which was rotten, and we found standards which were abysmally low. Financial services will not change overnight as a result of even the finest legislation passed here, because fostering a culture of caution, prudence and service to clients is a generational task. That has not been done. However, if we pass legislation without adequate scrutiny, it will be imbued with complexity and will therefore lack both clarity and coherence. The noble Lord, Lord Brennan, a seasoned commercial lawyer, was very clear in Committee when he said:

“Everybody will look at what they are required to do and what the consequences are if they do not do it… The Bill should say what it means and mean what it says”. — [Official Report, 24/7/13; col. 1375.]

If the Bill does not do that with sufficient clarity then there will be no individual accountability of bankers, which was at the core of the rottenness of the system. They did not see, they did not tell and they did not hear, so that clarity is really important.

--- Later in debate ---

[Lord Newby (LD)]

My Lords, on the substance of the Motion of the noble Lord, Lord McFall, as the House knows I am one of the Government’s spokespeople on the Bill, as well as being Deputy Chief Whip.

The Government tabled 155 amendments at Committee stage. By my reckoning, 116 of them were to respond to the report of the Parliamentary Commission on Banking Standards and were welcomed by members of the commission. The remainder set up the payments systems regulator, and were equally welcomed across the House. All but one of the amendments were tabled more than a week ahead of the Committee stage debate, and with an open letter of explanation addressed to the participants. I believe that this was a classic example of good practice.

Off the Floor, my noble friend Lord Deighton and I and other Treasury Ministers have had highly constructive and productive discussions with those interested in the Bill, and we continue to do so. Committee stage finished on 23 October. Usual practice would have been to have Report stage start a fortnight later on 6 November; instead, it will be on 18 November. That is a degree of measured consideration.

That is the substance of the matter. I will address two further issues. The first is that of the Chief Whip adjusting our future business in response to events. The Chief Whip had to rearrange our provisional forward business but, as she made clear last week at the Dispatch Box, she did so only because of the pressure in the House to delay Part 2 of the lobbying Bill—a position not initiated by the Government. In order to have a proper pipeline of parliamentary debate and proper progress of government business, it is necessary to have legislative business next week. The Financial Services (Banking Reform) Bill was waiting for Report. It was well beyond the necessary minimum interval between stages, and the Opposition Chief Whip made no alternative proposal. I think the Chief Whip not only did the best she could in the circumstances but acted entirely properly and reasonably.

I cannot but regret that the Motion we find ourselves debating was tabled by the noble Lord, Lord McFall, not only minutes before House up on Friday afternoon, but without first agreeing a slot for the debate with the Chief Whip, or even consulting her. I realise that in theory every Lord has equal access to the Order Paper. Of course they do in theory, but that is not how we work in practice.

[Lord McFall of Alcluith]

Let me correct the Deputy Chief Whip. As a member of the Parliamentary Commission on Banking Standards, I was left in the dark regarding the Chief Whip’s negotiations with the usual channels. I was informed on Friday of the situation. I got on to the Table Office at about 1.30 pm and one of the first things I said was, “Contact the Government Whips so that they know this is going on on Monday”. I would have not needed to have done that if there had been proper channels of procedure between the Whips’ department and our department, and also the Parliamentary Commission on Banking Standards under the chairmanship of Andrew Tyrie, who has expressed deep regret at this situation. This Bill is different from all other Bills. The Government set up the Parliamentary Commission on Banking Standards. This is not government legislation; this is legislation that the Government are implementing as a result of a year-long inquiry that they set up. It is unique and different from all other aspects.

[Lord Newby]

My Lords, my understanding—and I have not been a Whip as long as a number of noble Lords in their places at the moment—is that if a noble Lord wishes to bring a Motion of this sort, the normal practice is to discuss it with the usual channels before laying it. That did not happen in this case, and I greatly regret it. It is for the good order of the House that that is how we do our business. That is not the substance of our debate this evening, although we have to look to at how we do our procedure.

There are a number of outstanding issues between the Government and the Parliamentary Commission on Banking Standards. It is proposed that the relevant Treasury Ministers should meet representatives of the commission within the next 24 hours. That offer has been made. Having looked at the outstanding issues, I believe that it will be possible to make progress on most of them, but not necessarily on every last one. That can be done within the next 48 hours. The number of issues between the Government and the Parliamentary Commission on Banking Standards is relatively small because we have dealt with so many of them already. I strongly urge members of the commission to go ahead with that process in the confident expectation that we will be able to reach an agreement on many of the outstanding issues in the very near future.

--- Later in debate ---

[Lord Newby]

My Lords, the usual channels are always open.

[Lord McFall of Alcluith]

My Lords, the Parliamentary Commission on Banking Standards has been very open with the Government in everything we have done, and courteous in all our exchanges with them. In light of the heavyweight presence on that commission, in light of the reception it has received in the country and in the knowledge that if anything will change cultural standards in the UK’s financial services, it will be the recommendations of this commission, I should like the Government to reflect on the situation. The Minister should take it back to the Chief Whip and come back and say, “This commission has the best interests of Parliament and the country at heart. It wants time to look at it in a measured way and it is as simple a request as that”. It would be done courteously, and if it needs me to go to the Chief Whip and supplicate, I will be quite happy.

Motion agreed.