Bank of England (Economic Affairs Committee Report)

Lord Turnbull Excerpts

Thursday 2nd May 2024 Lords Chamber

[Lord Turnbull (CB)]

My Lords, I thank the noble Lord, Lord Bridges, for his skilful chairmanship of the committee and the support we had from the start. I congratulate the noble Lord, Lord Moynihan, on shoehorning so many interesting insights into the conventional constraints of a maiden speech.

In many ways, this was a difficult investigation. Serious criticism was made of the Bank’s performance by many serious people, particularly for the period 2020 to 2022. The focus of concern was that inflation, which had been kept close to 2% for over 20 years, suddenly took off and the Bank appeared to have lost control. By contrast, virtually no one advocated withdrawing operational independence or dropping or even recalibrating the inflation target. At least for now, the priority for the Bank was seen to be to rebuild its credibility by getting inflation back to 2% before looking at anything else.

What concerned the EAC was that we were repeatedly told by people in the Bank that there was always robust debate in the MPC, and alternative views were expressed. In March 2020, the Bank rate was reduced to 0.1% and no change was made to interest rates for 18 months, until December 2021, and at that time all votes were unanimous. During this period, inflation rose from 1.5% to around 5%, on its way to a peak of 11%, before the Bank reacted, and even then it reacted only cautiously. Where was the robust debate? In economics there is the concept of revealed preference: look at what people do rather than what they say.

The dominant narrative was that, after Covid, the economy was teetering on the verge of recession and inflation was likely to stay low. The forces that had pushed prices up were labelled as transitory: once the initial hit had ended, inflation would return naturally to its previous level. What this narrative missed was that there was a different story to be told: the sharp rise in inflation reduced the incomes of families and companies, and they would be anxious to try to recoup these losses, although in doing so they would perpetuate inflation. Also, during the Covid lockdown, people’s and companies’ bank balances—that is, broad money—increased substantially, so as soon as they were released to do so, households and companies started to spend again and had the money to do so. This was before supply chains could be fully restored. The result was a sharp rise in inflation which is taking time to be brought under control.

What we have seen would be regarded as groupthink. Was there enough diversity within the MPC to explore different scenarios, raising questions about the process by which members are selected? They say nostalgia is not what it used to be, but has the inaugural MPC appointed in 1997 ever been bettered for its range of experience?

In his memoirs, the late lamented Lord Lawson regretted the fact that, in 1988, he had underestimated the strength of the recovery and the upward pressure on prices. He particularly regretted the use of the word “blip”. Did the present Governor of the Bank of England make the same mistake with his use of the word “transitory”? How was it that there was so much focus on the narrative that interest rates needed to be kept low and so little attention to an alternative scenario in which, with supply lines disrupted, this sharp increase in spending would lead to a sharp increase in inflation?

The answer may be found in the report the Bank commissioned from Dr Bernanke on its forecasting. In it he drew attention to the excessive focus on a central forecast and the lack of investigation of alternative narratives. We should bear in mind the maxim of George Eliot: prophecy is the most gratuitous form of error. Dr Bernanke’s recipe for this was that alternative scenarios should be looked at more, as the Bank had failed to realise that we were in a different world and that it was not in Kansas any more.

In mitigation, the Bank has claimed that it did no worse than other central banks. This may tell us that there was groupthink within not only the Bank of England but the community of central banks, all of which bought in heavily to the idea of a transitory inflation increase, while their economies were teetering on the edge of recession.

One of the issues addressed in the EAC report was the way the remit letters of the MPC, FPC and PRC expanded, with a proliferation of secondary objectives to be taken into account and have regard to. The danger of this was that the focus on the primary objective—containing inflation—would be diminished, and management of resources would be spread more thinly. We therefore recommended that these remit letters should be pruned—in particular, that the references to the Government’s objective of net zero should be taken out. A number of our witnesses argued that the Bank had no instruments that could be brought to bear on the net-zero objectives, and that this should be left to the Government. In response to our report, the Chancellor agreed with this recommendation, although this has brought howls of protest from environmental interests—more of which we heard only two or three minutes ago. In our session with the Chancellor, we urged him to go beyond a light trim of the remit letters, and to see whether more radical pruning could be undertaken.

One of the trickiest issues we encountered, and to which we were unable to develop a conclusive response, was the relationship between fiscal and monetary policy. In 1997, it all looked remarkably simple; the Treasury was responsible for fiscal policy, and as a result took over responsibility for debt management, and the Bank was responsible for the operation of monetary policy and decisions on interest rates. In retrospect, this clear separation was an oversimplification. As the noble Lord, Lord Blackwell, has pointed out, monetary policy has effects on the economy similar to fiscal policy, and vice versa.

The use of QE has muddied the waters further. Although decisions on the quantum of QE were ostensibly taken by the Bank as extensions of its responsibility for monetary policy, this has had a major impact on the distribution of income and wealth in society, normally regarded as concerns of fiscal policy. QE raised the value of assets for those who possessed them, and increased the cost of acquiring assets for those who did not have them, such as first-time buyers. QE has had major effects on the structure of UK debt, making it much more vulnerable to movements in short-term interest rates. The long length of UK maturities had always been regarded as a major advantage of UK debt management. As QE is unwound, there will be major losses, the cost of which will fall to the Government. We need better information on what those costs are.

I was surprised that both the Treasury and the Bank clung so vehemently to the doctrine that fiscal policy was the Treasury’s domain and monetary policy was the Bank’s domain, despite the fact that the policy of each had implications for the other party. Looking again in history, I am reminded that in 1993 the then Chancellor, now the noble Lord, Lord Lamont, consciously undertook an exercise of rebalancing, because it was felt that our membership of the ERM had forced us to hold interest rates higher than the economy required, and that at the same time fiscal policy was too loose. There was a conscious effort to ease monetary policy while tightening fiscal policy.

The process of looking to find the optimum balance of policies will be more difficult to achieve if each party sticks rigidly to its own domain. Maybe what is happening is that the Chancellor wants to avoid any possible submission that he is leaning on the Bank to keep interest rates low in order to reduce the Government’s own debt servicing costs. But this pursuit of value has the disadvantage that collaboration between the two institutions is made more difficult. As I said, the committee was unable to resolve this conundrum, so it remains in the to-do box of both institutions.

Financial Services and Markets Bill

Lord Turnbull Excerpts

Committee stage
Wednesday 1st March 2023 Grand Committee

[Viscount Trenchard (Con)]

My Lords, I declare my interest as a director of two investment companies, as stated in the register.

I too congratulate my noble friend Lord Bridges and his supporters on their most interesting proposal to set up an independent office for financial regulatory accountability. The Bill as drafted does not secure sufficient change in the way the regulators carry out their duties and the speed with which they will work to simplify and improve the rulebook. In particular, I welcome the provision in Amendment 162’s proposed new subsection (2): that the office “must prioritise” analysis of regulations that reduce competition, negatively affect competitiveness and add compliance costs. In other words, the office will be bound to identify regulations such as the myriad anti-competitive and cumbersome regulations adopted by the ESAs in recent years.

I support my noble friend’s amendment and believe it would augment but not replace the work of an FSRC, such as my noble friend Lady Noakes and I proposed in Amendment 86. As such, it would mitigate further the regulators’ lack of accountability to government following the transfer of significant rule-making powers. This is most likely to be a good thing, although alone it does not do enough to improve the deficit in accountability to Parliament.

I would like my noble friend Lord Bridges to tell the Committee whether he envisages the office working alongside a Joint Committee such as the FSRC and whether he would consider amending his Amendment 165 to replace the Treasury Committee of another place with a suitable Joint Committee. I agree entirely with what the noble Lords, Lord Hunt and Lord Vaux, said about the need for a new Joint Committee.

Along with my noble friends Lord Sandhurst and Lord Roborough, I have put my name to Amendments 169 to 174, so eloquently proposed by my noble friend Lord Lilley. In common with my noble friend, I am not a lawyer; I am a banker. I was proud to work in the City of London when I joined Kleinwort Benson as a management trainee in 1973 because, by and large, the City was an honest place and its leading firms were well regarded. We knew the importance of the old maxim, “My word is my bond.” The banks did not maintain vast compliance and legal departments. During my banking career, I have seen the relative size of these departments increase massively as a proportion of total staff. This itself has had a negative effect on the culture of our leading firms, reducing the emphasis on innovation and business development and increasing the number and influence of those employed in compliance and legal, and of the interlocutors with the regulators.

We believed that Brexit would enable us to return to our simpler, less cumbersome, common law-based regulatory system. These proposals will enable this and encourage agility and precision in the drafting of rules. The regulators operated in this way after the Financial Services and Markets Act 1986, and this is how the FSA was empowered to act under FSMA 2000. But by then, the EU acquis on financial services was beginning its period of rapid expansion, so most of the rules since then have actually been made at statutory level by the EU. FSMA 2000 already accepts that judicial review is an inadequate safeguard against unduly harsh decisions by the regulators, and it gives the final say on enforcement decisions to the Upper Tribunal. These proposals would ensure that the regulators act predictably and consistently. They would ensure that they are no longer above the law—now even more important, as a result of their greater rule-making powers.

I believe that the opportunity costs of the current regulatory system are too high. Legitimate financial business, such as providing new products for consumers, is not being done because of regulatory uncertainty. These amendments would ensure that the wording of the rules is more thoughtfully drafted than it was under EU regulation and would reduce compliance costs. The rules would be based on common law methodology. The wording would be applied to facts on the basis of their natural and ordinary meaning. The renamed financial adjudication service would reach decisions not only on its own subjective opinion but on the basis of the growing body of case law deriving from decisions of the new first-tier tribunal.

Does my noble friend the Minister understand just how important it is that the Bill be made a lot more radical in changing the way our regulators operate? As drafted, nothing much will change. There was no point in Brexit if we continue to apply a bureaucratic, overly cautious and cumbersome regulatory system. These proposals would take us down the right road as a significant step to ensuring the City’s future and reversing the recent decline of some of our most important institutions, such as the London Stock Exchange.

[Lord Turnbull (CB)]

My Lords, I have not spoken before in this Committee, but as one of the surviving members of the Parliamentary Commission on Banking Standards, I want to address an instance where an amendment directly challenges one of the proposals that was incorporated following the commission’s report. Earlier in proceedings—on day three, I think—the noble Lord, Lord Tyrie, addressed Amendment 46, which introduced the concepts of predictability and consistency. He asked, “Who could possibly object?”, and went so far as to describe them as “motherhood and apple pie”. On examination, these principles, particularly predictability, can be seen to be simply duplicating the existing provisions of administrative law, but also as introducing provisions that could limit the scope of the regulator to address new and previously unforeseen problems.

A similar problem arises with Amendment 174 in this group. How could one possibly object to acting

“reasonably and in good faith”

as a defence against sanction under the senior manager conduct regime, the SMCR—the principal sanction being disqualification from practising? By way of a bit of background, the PCBS spent a great deal of time on structural issues—bank break-up, ring-fencing, capital adequacy, liquidity adequacy and so on—but it also attached a great deal of importance to conduct issues, hence the creation of what was then called the senior person conduct regime and is now the senior manager conduct regime.

Is there evidence that this regime has proved oppressive and needs to be relaxed? Quite the contrary, in my view. There have been very few cases, although it has only been fully in force since 2018. Following the 2008-10 financial crisis, Mr Peter Cummings of HBOS is the only senior person to have been seriously sanctioned. One can debate whether that verdict was fair or unfair, but it is undeniable that it is unfair that he should be the only person sanctioned of the big players in those events. I do not think the case for further easing has been made out; more effective application is needed.

The introduction of a defence of acting

“reasonably and in good faith”

would, in my view, be a serious weakening of the regime. Very few people who made serious errors—which were costly to their customers, their own companies or the economy at large—set out intentionally to do harm. The thinking behind this amendment is that it is unfair to sanction people who claim that they did not intend to do harm, even if their actions were genuinely harmful. The protection of consumers is not achieved if those who mis-sell financial products or take what prove to be excessive risks are immune from regulatory action if they can show that they did not intend to do so.

Once again, these amendments look superficially desirable, but they would weaken the SMCR and could cause a lot of damage. The normal pattern in Committee is that an amendment is proposed and others stand up to support it. I want to do the opposite: I urge the Minister to stand firm in rejecting Amendment 174. In any case, I wonder whether the right way to change the underlying philosophy of regulation and the balance between the regulator, the common law and the courts should be to set out a comprehensive proposal, rather than through the accumulation of a disparate set of amendments in this Bill.

[Lord Sandhurst (Con)]

My Lords, I speak in support of Amendments 169 to 174 and 200. These have been proposed forcefully by my noble friend Lord Lilley and are, I suggest, worthy of acceptance.

I speak from the perspective of a lawyer. First, I suggest that three adjustments are needed to the decision-making and supervision of regulators to drive predictability and consistency in rule-making. Amendment 200 would make the regulators’ enforcement committees more independent in their decision-making. This should reduce the number of firms that bring unnecessary challenges to regulatory decisions in the Upper Tribunal.

Secondly, Amendment 173 gives the existing Financial Regulators Complaints Commissioner power to order the correction of regulators’ errors. Currently, the FRCC can find that regulators have acted unlawfully, but the regulators are free to ignore that finding. In fact, the FCA has ignored the FRCC’s only such finding. So, the overarching oversight of the FRCC is toothless; it will, if our amendment is accepted, have some teeth.

Thirdly, we propose a set of adjustments to the supervision of regulators by our judiciary in the Upper Tribunal and courts. Currently, challenges by financial institutions to supervisory decisions in the Upper Tribunal are rare, and rarely successful. That is because the tribunal is reluctant to interfere with regulatory decision-making and lacks a framework within which to consider regulators’ decisions. Judicial review is even rarer. To succeed, firms have to prove that the decision was not just wrong, but unreasonable.

The problem is that because it is so difficult to overturn a decision, firms rarely go to the Upper Tribunal or seek judicial review, so there is no body of jurisprudence by which financial companies can set their practices consistently. The lack of predictability therefore means that firms have to build compliance programmes based in part on guesswork as to how the regulator may react when applying its rulebook in the future. This is particularly so when considering the vaguely drafted rules known as principles.