Financial Services and Markets Bill

Lord Vaux of Harrowden Excerpts

Committee stage
Monday 13th March 2023 Grand Committee

Moved by

[Lord Vaux of Harrowden]

202: Clause 68, page 84, line 27, leave out paragraph (a)
Member’s explanatory statement
This amendment would remove the limitation that APP mandatory reimbursement is limited to APP scams made via the Faster Payments system, so that all APP scams must be covered regardless of payment system used.

[Lord Vaux of Harrowden (CB)]

My Lords, it is an unexpected feeling to be zapping through groups at some speed. In moving my Amendment 202, I will speak to the various other related amendments in my name in this group. I am very grateful to the noble Baroness, Lady Bowles, for her support.

I greatly welcome the introduction of the requirement in Clause 68 to improve the current voluntary arrangements under the contingent reimbursement model, or CRM, for the reimbursement of losses resulting from authorised push payment, or APP, fraud. My amendments attempt to apply some of what we learned during the inquiry by the Fraud Act 2006 and Digital Fraud Committee, which reported at the end of last year, but I should stress that these are my amendments, not those of the committee.

The committee’s inquiry heard that the current voluntary system has led to a wide range of inconsistent outcomes for victims. In fact, the very process of claiming can add to the trauma for victims, especially when they are not applied consistently or fairly. At one extreme we have TSB, which has chosen to reimburse all fraud victims; at the other, we heard of banks that, because they are not signed up to the CRM at all and do not reimburse victims, have no incentive to try to prevent fraud going through their systems. We heard that some banks are now seen by fraudsters as a soft touch.

Levels of reimbursement vary widely even within the CRM and the scheme does not publish league tables, so consumers cannot see which banks are more likely to reimburse and which are not. That lack of consistency and of clarity over the circumstances in which reimbursement will be made leads to greater uncertainty and trauma for victims. Importantly, the lack of consistency also leads to different levels of incentivisation for banks to take the steps necessary to protect their customers. Any new mandatory scheme needs to address that and make things fairer for victims, but at the same time it needs to be balanced against the risk of unintended consequences. That is what my amendments try to achieve and I turn to them specifically.

As currently drafted, the rules will apply only in respect of fraud carried out using the Faster Payments scheme. I am sure the Minister will explain that this is because this will cover the majority of frauds by number. She is quite right; that is true. However, other payment methods are often used by fraudsters, such as CHAPS. Although smaller in volume, those other payment methods often involve larger, more life-changing sums. CHAPS is used for large payments, such as house purchases. Many frauds involve overseas payments.

Amendment 202, together with Amendment 207, would widen the scope of the reimbursement provisions so that all payments are covered, regardless of the method. I am sure the Minister will tell us that the Bill does not prevent the scheme being widened to other payment methods, but I am concerned by this statement on the PSR website:

“We are working with Pay.UK—the operator of the Faster Payments system which is how APP scams are carried out”.


That shows no recognition that the problem is wider than just Faster Payments. APP scams are carried out using all payment methods, not just Faster Payments. I wonder whether the real reason for restricting the changes to Faster Payments is because it allows the PSR to subcontract its responsibilities under Clause 68 to Pay.UK, the operator of the Faster Payments system. The Minister will be aware that concerns have been raised by the Treasury Select Committee in the other place about this approach. What are her thoughts on the PSR subcontracting its responsibilities to Pay.UK?

The Bill leaves the details of the reimbursement scheme entirely to the PSR, so Amendment 204 sets out some matters that it should consider when creating the new compulsory requirement. First, the key problem with the current situation is the lack of clarity for victims in how reimbursement decisions are made and the inconsistency of those decisions. Proposed new paragraph (a) of Amendment 204 therefore says that the PSR must consider

“how to ensure that the parameters used to determine whether or not reimbursement should be made are transparent and applied consistently”.

If that does not happen, we will not have moved much further forward, so that key point should be stated in the Bill.

I turn to proposed new paragraph (b) of Amendment 204. I have long felt that the bank that is more in the wrong in a fraud situation is the receiving bank—the one that, in effect, processed the stolen money on behalf of the fraudster. Although it is not in the Bill, the PSR apparently intends that the liability for reimbursement should be split 50:50 between the paying and receiving banks, with a mechanism to change that split in certain circumstances. I am content with that proposed approach as a starting point. Proposed new paragraph (b) of Amendment 204 simply puts in the Bill that the split must be considered but, as we move forward, the PSR and the industry should look to refine this. Importantly, discussion of how to split the reimbursement between the banks must not make things more difficult for victims.

Proposed new paragraph (c) of Amendment 204 says that the PSR should consider how

“mandatory reimbursement is likely to affect the behaviour of consumers”.

Our fraud committee deliberated long and hard on whether to recommend blanket reimbursement; in fact, we were criticised for not doing so. We recognised that there is a case for mandatory blanket reimbursement but concluded that such a policy could fall foul of moral hazard and lead to increased levels of fraud, including, potentially, directly to new avenues for APP reimbursement fraud. Our recommendation therefore was that this needed to be explored further and a solution should be found that creates a level playing field for all consumers.

I do not often disagree with the noble Baroness, Lady Kramer, but I am a little concerned by her Amendment 203, which says that

“reimbursement … cannot be refused on the basis that a victim … ought to have known that the payment order was executed subsequent to fraud or dishonesty.”

If someone really should have known but went ahead anyway, this feels reckless to me. We need people to take some basic level of precaution and we need to help them do that.

Proposed new paragraph (c) of my Amendment 204 tries to address this difficult area by saying that the PSR must consider how the reimbursement policy might alter the behaviour of potential victims. If the effect is that people stop taking any care to avoid fraud, because they are going to be reimbursed anyway, the policy might make it easier for the fraudsters; it might increase fraud, which would be an extremely undesirable unintended consequence. At the same time, we need to move away from victim blaming and ensure that, unless consumers have acted irresponsibly, they are reimbursed. There is a delicate balance here and it is something that the PSR should consider carefully and keep under review.

Finally, proposed new paragraph (d) of Amendment 204 says that the PSR must consider how appeals can be made. I hope this is self-explanatory.

Amendments 205 and 206 attempt to bring some transparency to the process. Amendment 205 would enable consumers to see which banks are most susceptible to fraud; in other words, which are doing less to protect their customers in the first place and which are better at reimbursing customers who become victims. This is important. If we want to incentivise banks to do the right thing and behave well, shedding daylight on how they perform is the best way to ensure it. Customers will be able to vote with their feet.

There is also a danger that banks might react to mandatory reimbursement by changing their behaviour in a way that disadvantages vulnerable consumers—deciding that it is too risky or expensive to provide services to those seen as more vulnerable to fraud, if the reimbursement process is seen as too one-sided. Later today, we shall talk about PEPs, which are a good example of how the banks are reacting to overzealous regulation.

Similarly, we need to avoid a situation in which the reimbursement process puts off new entrants into the system or innovation in payments. Amendment 206 requires the PSR to keep the situation under review and to report annually on the impact that the requirement is having, including whether it is causing any change in the behaviour of the payment service providers. Fraud is constantly changing—fraudsters are constantly finding new ways to get around rules and find victims—so the amendment requires the PSR to make changes to the requirement as it considers necessary, taking account of the actual impacts to keep protecting consumers better.

I will finish with a couple of general points. First, it is critical that people are properly and fully informed and educated about the changes. Clause 68(3)(b) mentions that, which is welcome, but in relation only to the draft requirement, not the final requirement. UK Finance and others have raised concerns about whether the full six-month timeframe is sufficient to ensure that that information and education process happens.

--- Later in debate ---

[Baroness Penn (Con)]

My Lords, I recognise the keen interest across this Committee in the provisions in the Bill to tackle financial crime and fraud more generally, and, in this group of amendments, on tackling APP scams specifically and the related work of the Payment Systems Regulator to introduce mandatory reimbursement. The noble Baroness, Lady Bowles, said that she hoped that the sense of the amendments could be taken forward, or that the Government could provide reassurance to noble Lords that it will. I hope to be able to do so.

Measures in the Bill not only enable the Payment Systems Regulator to act on APP reimbursement regardless of the method of payment used, but also have a specific requirement mandating, within a specific timeframe, that they are taken forward under Faster Payments. We have sought within the Bill both to provide further powers for the regulator and to specify that it needs to act within a certain timeframe on the form of payments, which currently represents the largest form of fraud, not only by volume—97% of payments by volume—but by value. The figures I have are that Faster Payments account for approximately 85% of the value. The noble Lord and noble Baroness also mentioned CHAPS. That is the next highest in value, but it is about 4%, so it is right that we prioritise action on Faster Payments first. That does not rule out further action on other forms of payment further down the line.

I appreciate that we often have a debate on what needs to be in a Bill versus powers that, in this case, we are giving to the regulators to make rules. We have also heard during this debate about fraud how dynamic that situation can be, so enabling the regulator to update its response to approaching these questions through its rules is the right approach in this situation.

None the less, a lot of detail of the Payments Systems Regulator’s approach is in the public domain, and I hope it would reassure the noble Lord, Lord Vaux, on a number of his amendments that the approach being taken is consistent with many of the recommendations made by his committee. Indeed, having its proposals out for consultation on how mandatory reimbursement should work has provided an opportunity for all interested parties to comment.

Turning to the specifics in the amendments and hopefully updating the Committee on work that the PSR is taking in relation to each, I begin with Amendments 202 and 207, tabled by the noble Lord, Lord Vaux, on the scope of the requirement on the PSR to mandate reimbursement. As I have noted, under this legislation the PSR could act in relation to any designated payment system, but with a specify duty on Faster Payments which, as I said, accounts for 97% of scams by volume today. We expect the PSR to keep under review the case for action across other designated payment systems, in collaboration with the Bank of England and the FCA.

In relation to Amendment 204, on issues that the PSR should consider as part of its approach, I assure the Committee that the PSR has set out how it has considered these issues in its consultation. For example, as discussed, the PSR is proposing that the cost of liability is split equally between the sending and receiving banks, recognising that both parties have a responsibility in preventing fraud.

On Amendment 205 on the publication of data, the PSR is currently consulting on a measure to require payment service providers to report and publish fraud and reimbursement data. I was surprised to hear Green support for league tables. I did not know that they were supportive of them on schools, but in this case that data is important and the transparency we are talking about helps noble Lords keep track of how effective these provisions are once they are implemented.

Amendment 206 is on a duty to review. The PSR regularly reports on the discharge of its functions through its annual report and has committed in its consultation to a post-implementation review of its action on APP scams, to assess the overall impact of its measures for improving consumer outcomes. The Government will also monitor the impacts of the PSR’s action and consider the case for further action where necessary. While the Government recognise the intention behind the noble Lord’s amendments, we do not think it necessary or appropriate to further circumscribe the actions of the regulator in primary legislation at this stage, given the extensive consultation the PSR has undertaken on this matter and its responsibilities and expertise in this area as the independent regulator.

On Amendment 203, tabled by the noble Baroness, Lady Kramer, and spoken to by the noble Lord, Lord Sharkey, the Government’s intention, as already expressed in the legislation, is to ensure that more victims of APP scams across the Faster Payments system specifically, and wider payments systems in general, are reimbursed, and to enable the PSR to act in this area. The Government recognise that no one sets out to be defrauded and that APP scams are, by their very nature, convincing and sophisticated.

None the less, we also recognise that many banks take action to engage with their customers ahead of making a payment, and that questions of liability can be complex. As the noble Lord, Lord Vaux, set out, a blanket approach to mandatory reimbursement raises questions of moral hazard and the potential for APP reimbursement fraud itself to become an area of difficulty. This is a difficult balance to strike. While this amendment is well meaning, it will not help achieve effective resolution in these cases. We are confident that the PSR has the appropriate objectives, expertise and powers to develop proposals for APP scam reimbursement that both ensure strong protections for victims and incentivise banks to engage effectively with their customers to prevent fraud. In its consultation on its reimbursement approach, the PSR stated its intention to require firms sending payments over the Faster Payments system to fully reimburse all consumers who are victims of APP scams, with very limited exceptions. The PSR considers that this will ensure that victims are reimbursed in the vast majority of cases. In that regard, the PSR has already signalled its intention to set a high bar for customer liability—higher than currently applies within the existing code of voluntary reimbursement.

We do not believe that this amendment will improve outcomes for customers beyond the provisions already set out in the Bill, and it could impede the work of the regulator, which has already consulted on the proposals. I hope that noble Lords genuinely feel reassured by the level of detail in which the PSR and the Government have thought through these proposals, and acknowledge the ability to have a dynamic response in this area. I therefore hope the noble Lord can withdraw his amendment.

[Lord Vaux of Harrowden (CB)]

Can the Minister comment on the Treasury Select Committee’s recommendation on the PSR, effectively subcontracting its responsibilities to Pay.UK?

[Baroness Penn (Con)]

I apologise to the noble Lord; I did have an answer for him on that. The Bill is clear that the Payment Systems Regulator has the duty to act on mandatory reimbursement. The PSR has the relevant powers and expertise, as well as the appropriate discretion, to determine the most effective approach in that area.

--- Later in debate ---

[Lord Vaux of Harrowden (CB)]

I thank all noble Lords who have taken part in this short debate. I think the comments from the noble Lord, Lord Sharkey, set out the difficulty in finding the right balance to ensure that victims are not blamed and are reimbursed, unless they have really been irresponsible, versus the question of moral hazard and the issue of potentially making fraud worse. That will just have to be kept under review.

While I am reassured by a lot of what the Minister said and what the PSR has said publicly, the Government might want to think more seriously about Amendments 205 and 206 on transparency and review. The PSR may say that it will do a post-implementation review, but this has to be consistent and carry on happening, because fraud keeps on moving and changing. It is similar to the statistic that 85% of fraud, by value, is Faster Payments, but what we are doing now may change that. This will hopefully incentivise the banks to lock down the ability to carry out fraud over Faster Payments.

There is nothing specifically in here to prevent fraud, but we are providing an incentive to do that. Fraudsters are very good at moving, and if they move on to CHAPS or overseas payments—the Bill itself introduces stablecoins as a new method of payment—we can see that the situation will move. This has to be not just a one-off, post-implementation review; it has to happen regularly and be reported on. We must see which banks are doing better and which are doing worse. It is a question of not just who is reimbursing better but how many frauds they are suffering. If a bank is suffering greater levels of fraud, it is a clear sign that it is not taking as strong action to prevent it as other banks are. The only way to see that is for it to be reported on.

While I am unlikely to chase the other amendments, we might want to return on Report to Amendments 205 and 206 on transparency, reporting and review. With that, I beg leave to withdraw Amendment 202.

Amendment 202 withdrawn.