Financial Services Bill

Lord Sharpe of Epsom Excerpts

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

[Lord Sharpe of Epsom (Con)]

My Lords, I draw attention to my entries in the register of interests. I join in the congratulations to my noble friend Lord Hammond on an excellent maiden speech. I will focus on his remarks about the regulator’s promotion of financial industry competitiveness, a theme expanded on most eloquently by my noble friends Lord Bridges and Lord Hunt. In order to achieve that, the regulatory framework must be robust, but the regulator must be nimble, agile, appropriately resourced and with carefully defined powers. It also needs to be accountable, as many noble Lords have noted. I look forward to the results of the current consultation into the wider framework for regulation and note that it is due to close by the end of next month.

Much of the current Bill before us is welcome and I support it, but I wish to raise some questions ahead of the Financial Conduct Authority having yet more powers delegated to it. I note that in the debate in the other place, which has been referred to a number of times, this theme was explored with reference to parliamentary scrutiny. That is a valid concern, but my concern is also to do with the FCA’s enormous existing remit and whether that is now simply too big to manage.

I will cite a couple of examples of where I think that perhaps this is the case. First is MiFID II, the market in financial instruments directive. Part of this dealt with the unbundling of commissions paid for stock market research. The FCA was the architect of these rules, but the French regulator recently noted that they have “profoundly changed” the research landscape and that this has had a negative effect on the quality of research available on smaller companies and therefore, by implication, the capital allocated to those companies. In the UK, the independent and not-for-profit CFA Institute has made similar points. The FCA has said that there is no evidence of this, but both the French and Germans have now changed the rules to exempt smaller companies from this part of the directive. There is no equivalence there, and I cannot recall a previous incidence of a French regulator changing rules to allow less regulation than our own.

Another example is that, last week, two opposition Members of the other House published a letter criticising the FCA’s customer protection skills with regards to the handling of advice given to British Steel pension holders. They alleged that the FCA lacks “sufficient vision” to tackle issues facing consumers and urge the regulator to use the full strength of its powers of enforcement to tackle rogue advisers. I am not particularly familiar with this case, if I am honest, but a swift Google would suggest that they have a point.

However, on the subject of enforcement, the most famous insider trading case launched by the FCA took eight years, cost in the order of £20 million, involved at least 40 investigators who pored over vast amounts of data and in the end secured two of five convictions, confiscation orders of £1.7 million and the longest custodial sentence that was handed down was four and a half years. It has been argued that regulators are discouraged from starting this type of investigation, because of the difficulty of winning, but the FCA has publicly regarded this as a success. It was a partial success perhaps, but at what cost, particularly to those acquitted individuals whose lives were on hold for eight years?

Other investigations that the FCA has conducted into funds management firms suggest that poor product knowledge, excessively high staff turnover and poor handover continuity make relatively straightforward investigations, which are launched perfectly legitimately, run for much longer than they need to. This has a deleterious impact on staff morale and massively increases compliance costs. Large firms can bear those costs with relative ease, but what of the SMEs that the sector relies on for competition and innovation?

I am sure that the FCA will argue that I have cherry picked a few instances which show them in a less than optimal light—perhaps I have. But I could have drawn on a number of other examples, for example, the Gloster report published in December referred to by the noble Lord, Lord Sikka, or the Parker report, also published in December. They were much more complex cases, so I have not used them here. They did not require much effort to find. These examples illustrate only a small part of the FCA’s incredibly wide remit, but the skills and knowledge required to investigate and appropriately regulate each of these examples is discrete and detailed.

So it is hard to escape the conclusion that the FCA is trying to do too much with too little. Yet we are debating delegating additional powers—for example, handing over the power to manage the orderly wind-down of Libor, which, as the briefing documents note, is used to benchmark an eye-watering $400 trillion-worth of contracts. There is no room here at all for mistakes of any kind, although I should note that the FCA is consulting the industry widely on this.

Many in the City believe that the FCA has the appropriate powers but does not use them often enough. On 21 December last year, the Times noted:

“The Financial Conduct Authority has fined only ten wrongdoers this year, its lowest scalp rating since its creation in 2013. It has meted out only £183.6 million in penalties, its third lowest total fines tally.”


I am quite sure that Covid will be cited as one reason for this, but the police carried on policing. Can that be a valid excuse, or is this because of the vast complexity of its role? Here, on complexity, I cite a June 2019 IEA report that claimed:

“The amount of data being collected under MiFID II is now beyond the ability of the UK regulators to assess in any meaningful way.”


I do not believe that the nuts and bolts of regulation, including enforcement, should be subject to political interference, but I think we should ask whether the FCA’s current remit is too broad. Is there a case to be made for smaller and more specialist regulators, particularly as financial markets become ever more complex? I am also concerned that regulated firms lack effective rights of appeal against the FCA’s decisions. As the Government themselves have noted in the past, such rights—and I quote from a BEIS consultation—are

“central to ensuring robust decision-making and holding regulators to account in the interests of justice”.

We have seen the results of failed or inadequate regulation before and they are recent and raw, as the noble Lord, Lord Davies of Brixton, noted. Post Brexit we have an opportunity to design and implement a system that does all the things the Government want, all the things that the industry needs, and all the things that the country deserves. We should do it properly and urgently, not least because we know where the blame for failure will land.

Financial Services Bill

Lord Sharpe of Epsom Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 24th February 2021 Grand Committee

[Baroness Sheehan (LD) [V]]

My Lords, it is always a pleasure to speak after the noble Baroness, Lady McIntosh. We are often in agreement. The point that she raises about ESG is pertinent and, sadly, it is not mandatory. We are seeing a continued increase in the billions of pounds and dollars being spent on fossil fuel infrastructure.

The young people whose futures will be mostly affected by what we do today are increasingly calling for action across all sectors, as demonstrated by the worldwide UNDP poll of 1.2 million people that I cited at Second Reading. I should also put on record that the poll carried out by YouGov last October at the behest of Global Witness showed that two-thirds of the British public want the UK to be a world leader on climate change. In fact, the highest percentage of those was recorded in Scotland at 69%.

The Bill depicts the landscape that will drive the investment of billions of pounds at a crucial juncture in our country’s history to reshape our future financial services post Brexit. The legislation will form the basis of how investment decisions will be regulated as we spend massive amounts of taxpayer money to build back better post Covid. Serendipitously, the Bill also comes at a time when we will be in pole position to provide global leadership through COP 26 and the G7. Italy, our co-host for COP 26, will then host the G20. We have an opportunity to showcase the route map presented to us by the Climate Change Committee’s recent report to get us to net zero by 2050, while steering a course to meeting the Paris goals. What an opportunity.

The Covid-19 pandemic has focused minds on what can happen when we push natural ecosystems too far, and I agree with every word of the contributions of the noble Baroness, Lady Bennett. However, the timeframes to get innovative technological solutions engineered to scale to tackle climate change are substantially longer than those needed for vaccines—and they were long enough and overturned by human endeavour, hopefully just in time. Decisions have to be taken now if we are to reach net zero by 2050, and we have to get it right because we are in the last chance saloon.

Governments do not have the sums that will be needed, so we need private sector money too, and pots of it. However, business needs certainty and absolute clarity about which way the wind is blowing politically.

It is getting clarity from one quarter. Here is an extract from the letter sent by BlackRock CEO Larry Fink in 2021 to client CEOs. I remind the Committee that BlackRock’s assets under management come to, give or take, $7 trillion. This is what he said:

“BlackRock is a fiduciary to our clients … This is why I write to you each year, seeking to highlight issues that are pivotal to creating durable value—issues such as capital management, long-term strategy, purpose, and climate change.”


He went on to remind client CEOs:

“In January of last year, I wrote that climate risk is investment risk.”


I repeat: climate risk is investment risk, says the CEO of BlackRock. He went on to issue what can only amount to a stark warning: if you risk saddling your investors with stranded assets, with no demonstration of how you are moving to de-climate risk your operations, there will be consequences.

The writing is on the wall. The Prime Minister knows this. Here are his words from last November:

“This 10-point plan will turn the UK into the world’s number one centre for green technology and finance, creating the foundations for decades of economic growth.”


He went on to describe his 10-point plan as

“a global template for delivering net zero emissions”,

ahead of the UK hosting the COP 26 climate summit in Glasgow this year. Someone should tell the Prime Minister that his Government are attempting to put through a Financial Services Bill, in 2021, which is devoid of the words “green”, “net zero” or “climate”.

I was delighted last December when the Prime Minister announced that the UK will end all support to overseas fossil fuels projects. How could I not be, when it is one of the asks in my Private Member’s Bill, the Petroleum (Amendment) Bill? The Prime Minister should know that then to allow 17 fossil fuel projects to be railroaded through to beat an arbitrary deadline before COP 26 is not really showing that he gets it. For example, there was a headline in the Telegraph on 6 February this year:

“Major Brazilian oil and gas project could get UK backing despite promised end to fossil fuel funding”.


Are we really going to allow UK Export Finance support for the east Africa crude oil pipeline? These investments, using UK taxpayers’ money today to fund what will amount to stranded assets tomorrow, are nothing short of immoral.

As if those examples of the abuse of UK taxpayers’ money on fossil fuel projects abroad were not bad enough, we still have the threat of the go-ahead for the first deep coal mine in the UK for 30 years, in Cumbria. How is that “powering past coal”? These examples alone, if they are allowed to go ahead, show a deplorable lack of fiduciary duty on the part of our Government. These amendments, which refer to climate risk, are sorely needed.

A good number of them are about mandating the FCA and the PRA, and strengthening their structures to ensure that all investment organisations that fall under their jurisdiction have regard to climate-related financial risk and protect Britain’s international reputation by having regard to her international and domestic commitments. I support the intent behind them and look forward to the movers bringing them back on Report, in amalgamated form. There is cross-party support for many of these amendments.

I single out Amendment 48, in the name of my noble friend Lord Oates and the noble Baronesses, Lady Hayman, Lady Jones of Whitchurch and Lady Altmann, as important. Bringing forward by two years the date by when the recommendations of the final report of the task force on climate-related financial disclosures come into force, to 2023, will send the right signals.

Amendment 17 in the name of the noble Baroness, Lady Bennett, amends Amendment 16 to include the United Nations Convention on Biological Diversity. I have every sympathy with the intent behind the amendment, especially in light of the recent excellent Dasgupta review, The Economics of Biodiversity, but I agree with the noble Baroness, Lady Bennett, that this is such an important issue that it might be better tabled as a stand-alone amendment.

In conclusion, if one looks at the first page of NASA’s “Vital Signs of the Planet” fact page—and I urge noble Lords to have a look at it—it tells us that we are hurtling towards disaster unless we transition away from burning fossil fuels to power our way of life. Vulnerable communities and developing nations, many of them already exposed to the worst physical impacts of climate change, can least afford the economic shocks of a poorly implemented transition. We must implement the changes we need in a way that delivers the urgent change that these communities need without worsening their dual burden. We have alternatives proven to deliver at scale, so let us use the opportunity presented by the Bill to address the urgent need to unlock private sector finance and give the actors therein the confidence to accelerate the investment needed to deliver net zero by 2050.

[Lord Sharpe of Epsom (Con)]

My Lords, I draw attention to my interests in the register, specifically the directorship of a research company that has published extensively on environmental, social and governance matters. I am also chairman of the Conservative Party’s investment committee. We are currently shortlisting fund managers for our long-term funds, and I reassure noble Lords that ESG rigour will be a key factor in our decision-making.

This is my first outing in Grand Committee, so I crave a little forbearance. I will make a few general points before turning to the specific. First, as regards climate change and full disclosure, the industry is moving in the right direction anyway, and I think that that needs to be acknowledged. For example, I read that the Investment Association, which represents 250 members managing £8.5 trillion, intends to quiz companies at their AGMs on the quality of their climate-related reporting and will relate any of those inadequacies to their members. This is partly a commercial imperative: customer attitudes have shifted materially and will no doubt continue to do so. For example, assets under management at ESG ETFs—that is, exchange traded funds—rose from $54 billion in November 2019 to $174 billion a year later. Those are not large amounts of money in the broad investment sphere, but they show the direction of travel.

Therefore, I was very pleased that this Government have committed to the highest of standards. On 9 November last year, the Chancellor of the Exchequer was unequivocal on this. He said that he wants

“an open, attractive and well-regulated market”

which will continue

“to lead the world in pioneering new technologies and shifting finance towards a net zero future.”

I welcome that and, referring back to some of the work that my company has done in areas such as fast fashion and marshalling scarce water resources—and here I echo the noble Baroness, Lady McIntosh—I believe that these standards should be applied not just to carbon emissions but across the ESG piece.

I also agree with the noble Lord, Lord Oates, and his quote from Jes Staley that the industry absolutely should push the climate agenda. However, in order to build the open, attractive and well-regulated market that the Chancellor described, I believe that we need to be very careful with some of the proposed climate change-related amendments at this stage. I have considerable sympathy with the argument of the noble Baroness, Lady Hayman, about embedding the principles into the Bill, particularly those amendments that the noble Lord, Lord Oates, grouped together in his second group, including Amendment 14. A series of well-meaning amendments at the margin perhaps do not seem individually onerous, but they may end up being counterproductive, and I would like to try to explain why.

The worry we should have is that, if we overcomplicate this at this stage, the rules are more likely to be honoured in the breach than in the observance and/or work to the benefit of other regulatory regimes. I would not like to see the difficult issues we are debating here shifted into other jurisdictions. As always, the main beneficiaries of that would be compliance departments; it would naturally favour larger players and ultimately, as I said earlier, end up being counterproductive, partly by stifling innovation. This is also an important consideration in the context of equivalent discussions with the EU.

Financial Services Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Monday 1st March 2021 Grand Committee

[Baroness Hayman (CB) [V]]

My Lords, it is always fascinating to follow the noble Baroness, Lady Noakes. I certainly do not have her level of expertise in financial institutions but, listening to her, I worried that the phrase that the noble Lord, Lord Oates, used about the battle between urgency and complacency was actually rather relevant. We have a very short period of time in which to change the dynamics of what is happening to our world through climate change. I am sure that these amendments could be better drafted, and we may need her technical knowledge and experience to help us find the correct levers to do what Amendments 28, 31 and 32 set out to do, but, frankly, we cannot afford simply to say that this will not work. We have to find ways that will work, which is why I am interested in, and listened carefully to, the powerful and compelling case made by the noble Lord, Lord Oates, in introducing these amendments.

We have to find a way in which to make explicit and transparent the risks contained in continuing investment in existing fossil fuel projects or new ones, and that funding new fossil fuel projects is essentially of the highest risk and should be funded out of equity if it is to go ahead. The risks relate not only to continuing investment contributing to climate change, which itself creates systemic risk through increasing emissions, but to the certainty of these assets becoming stranded, as the noble Lord, Lord Oates, said. That is not in the long term—we are talking about the reasonably predictable future.

A recent report by Finance Watch, Breaking the Climate-finance Doom Loop, highlighted that to limit warming to 1.5 degrees we can emit only a further 500 gigatonnes of CO₂. There are currently fossil fuel reserves which, if all were extracted, would emit 3,000 gigatonnes. If we are to have any hope to meet what are not just the aspirations of what the noble Baroness calls the “green lobby” but are actually our national and international treaty obligations, we have to change. Despite the fine words that have been spoken since Paris, $2.7 trillion in funding has been provided since that agreement to the oil and gas industry, with UK banks contributing significantly.

Financial institutions are in the process of quantifying climate-related financial risks, but it is widely recognised that this will take considerable time. Rather than waiting until the middle of the decade when we have made progress in quantifying the risks via the TCFD and climate-related financial risk disclosures, we could start to make changes to the existing capital requirements regulation now, to reflect what we all know are risky investments, even if we do not know the exact quantified risk. Prudential regulations are designed for just such a situation, to regulate markets and ensure long-term stability.

We have to make it very clear what the risks are, because there is danger of interpretation of risk from the transition from brown to green being considered in the light of it being a sudden cut-off of one and a change to the other, so that people avoid any change. We need a measured and adjusted transition. To do that, we need to be aware of risks on all levels.

Finally, I will say a word or two on taxonomy: how we actually define green and brown. In previous Committee debates, the noble Earl the Minister said

“we need to be able to define what we mean by ‘green’.”—[Official Report, 24/2/21; col. GC 225.]

He commented that it will take time to analyse the risks and produce the taxonomy. It is important that we recognise that that taxonomy needs to include a definition of what is a brown asset as well as what is green. We need to look at how we drive investment away from brown, as well as directing it to green.

The New Economics Foundation recently wrote to the Chancellor, saying that

“limiting the taxonomy to green activities will not necessarily encourage a move away from financing activities that undermine climate goals. We equally need the taxonomy to classify carbon-intensive and other unsustainable activities. Importantly, the taxonomy design should not be decided behind closed doors. There must be transparency and public consultation to ensure that a wide range of expertise and perspectives from across civil society and academia feed into the UK’s Green Technical Advisory Group.”

It would be very good to understand government thinking on this issue and on the timing of the work of the green technical advisory group, and I hope that the noble Earl will comment on this when he winds up or, if that is not possible, write to me in the future.

[Lord Sharpe of Epsom (Con)]

My Lords, I refer to my interests in the register. It is a pleasure to follow the noble Baroness, Lady Hayman, and my noble friend Lady Noakes, who spoke eloquently on the capital requirements. I was planning to do the same, but she has said much of what I was planning to say, so I shall confine myself to a brief question about Amendment 31.

Amendment 31 refers to

“existing fossil fuel production and exploitation.”

I wonder whether all the possible consequences have been considered. The noble Lord, Lord Oates, spoke eloquently on mining, and I, too, claim mining ancestors: my great-grandfather was a coal miner in Seaton Burn in Northumberland. The noble Lord also mentioned stranded and abandoned communities. I wonder whether the amendment, as drafted, would also apply to companies that are actively engaged in the complex process of decommissioning existing facilities, particularly those in the North Sea. In many cases, those are the same companies that are involved in exploitation and exploration. Again, my noble friend Lady Noakes spoke very eloquently about hypothecation when it comes to lending to some of these types of companies. With that in mind, were the potential regional effects of rationing capital to these businesses considered, because that is the likely net effect of the amendments? I suppose that that would have particular reference to and relevance in Scotland.

I am sure we all hope for a world free from fossil fuels, but I am 100% confident that, regrettably, we will need them for a while yet—although it is probably worth stating that they have other uses apart from just being burned. As my noble friend Lady Noakes also pointed out, it is fair to say that financial institutions have a refined—no pun intended—approach to assessing fossil fuel-related risk and are perfectly capable of valuing stranded assets. The proof of that is to be found in the valuation of companies such as BP and Royal Dutch. If, as the amendments imply, we would prefer no lending at all to fossil fuel companies—which is a perfectly legitimate point of view—should we not just say that and agitate for a multinational agreement to that effect, perhaps at COP 26, rather than introduce it via the back door through amendments such as these?

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I am not a financial expert, nor was that my academic background, nor do I have family involved in the fossil fuel industry, because Northern Ireland did not have a mining base. However, it is quite clear to me that the Financial Services Bill is silent on the climate emergency and carbon issues. Therefore, I favour the amendments in this group in the names of the noble Lord, Lord Oates, and other colleagues.

A recent Bank of England publication states:

“Climate change poses different risks to the stability of the financial system, particularly for the insurance and banking sectors.”


It states that there are physical, transition and liability risks from climate change. Climate change means that we may face more frequent or severe weather events, such as flooding, droughts and storms. Examples of those recent weather events that have been linked to human-driven climate change include the heatwave and droughts in China in the summer of 2013 and the more recent flood events in the UK. Such events bring physical risks that impact on our society and have the potential to affect the economy, and our financial services sector. If these events happen more frequently, people will become more reliant on insurance to cover the costs of damage to their houses and cars.

Transition risks can occur when moving towards a less polluting, greener economy. Such transitions could mean that some sectors of the economy face big shifts in asset values or higher costs of doing business. One example is energy companies. If government policies were to change in line with the Paris Agreement, two-thirds of the world’s known fossil fuel reserves could not be burned. This could lead to changes in the value of investments held by banks and insurance companies in sectors such as coal, oil and gas.

Liability risks come from people or businesses seeking compensation for losses that they may have suffered from the physical or transition risks from climate change.

It is important to tackle climate change and protect the environment. This is very important in the financial services sector; I think the Chancellor of the Exchequer referred to that in the recent past. As I said, there is no reference in the Bill to climate or the ecological emergency, notwithstanding that the UK Government have the chair of COP 26 this year. There is no mention of green finance, climate risk disclosure or the critical role that the financial services industry will have to play if we are to tackle climate change.

How do the Government intend to deal with this matter from a legislative point of view? It is recognised as a clear priority by the Chancellor, although the Minister who took the Bill through the other place did not see any direct correlation between financial services regulation and the impact and risk of climate change. Parliament should determine that role and ensure that these amendments are made to this legislation. The amendments, which I support, would require the Prudential Regulation Authority to have regard to climate-related financial risk when setting capital adequacy requirements, and would ensure that credit rating agencies have to take climate risk into account in setting credit ratings, with particular relevance to fossil fuel exposures. I think of the fact that the Government wish to pursue a new coal mine in Cumbria.

Do the Government not see the benefit in these amendments to have regard to climate-related financial risk when setting capital adequacy requirements? If not, could they specify what their position is? Will they not admit that there is a direct correlation between the climate change emergency, fossil fuels and financial services regulation? Perhaps the noble Earl could provide us with answers when he winds up.

Financial Services Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Monday 8th March 2021 Grand Committee

[Baroness Noakes (Con)]

My Lords, I support the call of my noble friend Lady McIntosh of Pickering for a review of short-selling legislation, although I start from a very different position to her. As she explained, our short-selling rules were acquired via the EU, which is how they found their way on to our statute book. I believe that all EU-derived legislation should be reviewed at some stage; I am not sure this is the most pressing area, but it should certainly be reviewed.

When the EU introduced its short-selling rules in 2012, we had to follow, but it is far from clear that, left to our own devices, the UK would have introduced such rules. The FCA has been clear that the existing powers to trigger a ban on short selling would not be exercised lightly and the bar must be set very high. That must call into question whether we actually need the powers. The trouble with regulators is that, once they have powers, they never give them up voluntarily, even if they can never envisage when they would be used. A review would allow us to look at this again. We ought not to allow regulators to keep draconian powers to intervene in markets without very strong justification.

Against that background, I was particularly disappointed to see that the EU’s temporary—though extended several times—reduction of the threshold for notification of short selling, which expired when we left the EU, was almost immediately reinstated into UK law. That is not a good direction of travel.

There is nothing intrinsically wrong with short selling. It can provide liquidity to markets, improve bid-ask spreads and assist in price discovery; it also offers a route to hedging long-only exposures. There are, of course, downsides, including the potential for unlimited losses, so the risks have to be well understood and managed. We recently saw in the US that some hedge funds got their fingers burned on short selling GameStop shares due to action taken by amateur investors; but that merely highlights the need for sound risk management—it does not speak to short-selling itself being a problem or suggest that powers are needed for market intervention.

[Lord Sharpe of Epsom (Con)]

My Lords, I refer to my interests in the register. It is always a pleasure to follow the noble Baroness, Lady Noakes; it is also something of a challenge as she speaks so authoritatively on matters such as these and I often find myself agreeing with her.

The noble Baroness, Lady McIntosh, spoke compellingly in her introduction to this amendment. She made the point that she has misgivings about the practice. Clearly, for a practice that dates back to the first days of stock markets, short selling retains its ability to attract controversy. Indeed, a short seller was accused of manipulating the share price of the Dutch East India Company in Amsterdam as long ago as 1609. The noble Baroness, Lady Bowles, suggested that it is sometimes regarded as an evil practice, so I felt that it deserved a defender today.

The goals and effects of short selling are often misunderstood and, when markets enter a downturn, many are quick to call for short selling to be banned. While such bans are unfortunate, they have left us with a wealth of data on the effects of short selling and how the practice contributes to the proper functioning of markets. The practice of selling a stock short is always the same but the intention behind it varies considerably. At its most common and passive, short selling is a conservative investment technique used to hedge against risk, as the noble Baroness, Lady Noakes, has just highlighted, but obviously at the cost of forgoing some returns. On the point made by the noble Baroness, Lady McIntosh, about the volatile first quarter of 2020, the Alternative Investment Management Association, which represents 2,000 corporate members in 60 countries, reported that funds which had hedged in this way outperformed the broader market by 20%.

To be sold short, a stock has to be borrowed, and it will usually be borrowed from an asset owner for a fee. The fee helps the returns to the holders of that stock—in practice, anyone who participates in a long-term equity fund and, therefore, probably everybody involved in this debate. The fact of selling the stock helps create valuable liquidity, which is often essential to ensure the smooth functioning particularly of smaller markets, but it also works in reverse during periods of market turbulence. In practice, short sellers are often the buyers of last resort when markets are under pressure; they take profits in their short positions and therefore help to provide stability to markets.

The more controversial end of the short-selling spectrum is that populated by activist short sellers. They are often characterised as predators who create and exploit misery, but that is simply not the case. These investors act as the canaries in the coal mine. Short selling does not directly undermine the health of a company any more than buying its shares improves its fundamentals. Companies are not deprived of funds when investors sell shares, nor do they become financially stronger when investors buy shares in public markets. Short sellers cannot send a good business under. What they can do is expose bad business models, bad management, dodgy accounting, fraud and other bad behaviour. At a more mundane level, they can expose unjustifiable valuations.

There are plenty of recent examples but one will suffice as the regulatory reaction was instructive; here I am very grateful to Jack Inglis, the CEO of the Alternative Investment Management Association, who provided me with some detailed facts. In 2019, Wirecard in Germany famously went bust. It was at the time a member of the main German index, the DAX 30. The first queries into the company’s accounting practices date back to 2014, when short positions began to be initiated. However, when the pressure mounted on the company to explain itself, the German regulator instead went after journalists at the Financial Times who had published a deep dive into the company—and, of course, the short sellers. They filed a criminal complaint against them, accusing them of market manipulation, and, in February 2019, initiated a two-month ban on short selling the shares, citing the need to curb

“a serious threat to market confidence”.

As we all know, the company subsequently went bust, the subject of a multiyear fraud involving €1.9 billion going missing and the CEO being arrested, among other things.

Since then, Germany has become much more circumspect about joining other European states in banning the practice. Indeed, the regulator’s president apologised and paid tribute to those

“journalists, analysts or yes, let it be short sellers, who have been digging out inconsistencies persistently and rigorously.”

In saying this, he was following a long historical tradition—such bans are inevitably repealed.