Financial Guidance and Claims Bill [HL]

Lord Young of Cookham Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 11th September 2017 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I support my noble friend, who has drawn a strong parallel with the experience of Pension Wise, with which she was heavily involved. She made the point that it is not only those who might be termed traditionally vulnerable people who are at risk from the ingenuity of impersonators but those who might be more sophisticated.

I should like to make a brief reference to paragraph 17 of the memorandum that the DWP sent to the Delegated Powers Committee. It says:

“Deferring the announcement of the name will also help protect the new body’s brand and reduce the likelihood of the setting up of ‘imposter’ websites as a means of deceiving and defrauding the public. Imposter websites could put members of the public at risk”,


and,

“were an issue when the Pension Wise brand was launched”.

If they were at risk before the naming of the body, what will give strong protection once the body is named? That seems to be the thrust of my noble friend’s amendment, which I support.

[Lord Young of Cookham (Con)]

My Lords, the co-pilot is back. I thank the noble Baroness, Lady Drake, for tabling this amendment, which would make it a criminal offence to falsely claim to be giving pensions guidance, money guidance or debt advice on behalf of the single financial guidance body. She set out very clearly the devastating impact that misleading or criminal advice can have on people’s lives. Both she and the noble Baroness, Lady Kramer, identified the ingenuity and adaptability employed by scammers and fraudsters to con people.

I was very interested in this amendment and made inquiries to see who would be caught by it. Clearly, people who claimed to give advice on behalf of the SFGB, or whatever it is called, would be caught but, as it stands, I understand that it would not cover someone pretending to give advice on behalf of a delivery partner. The noble Baroness may like to think about that.

Protecting people from financial fraud and scams is important, and I say to my noble friend Lady Altmann that the Government take it very seriously. Anyone who has served in another place will have seen at first hand the devastating impact that this can have on people’s lives. We will come on to cold calling when we reach Clauses 16 and 17.

Ensuring that people have confidence in the financial guidance and debt advice provided by, or on behalf of, the SFGB will be central to its success and to the success of other government policies to improve people’s financial well-being. This is a matter that we have explored in depth with the existing service providers—the MAS, TPAS and Pension Wise. As the noble Baroness said when she moved her amendment, of those three, only guidance provided under the Pension Wise banner is covered by a specific measure making it an offence to falsely claim to give such guidance. The MAS and TPAS rely on existing criminal offences.

In response to the speeches made, we have considered very carefully whether to go down the Pension Wise route and create a new, bespoke offence to cover all the single guidance body’s guidance and advice services. We have weighed up whether there is evidence to suggest that a bespoke offence would have any greater effect than existing criminal offences, taking into account that the Pension Wise offence has never been used in a prosecution.

There are already criminal offences that would cover imitation of the new body; again, the noble Baroness referred to these. For example, if an individual was misled by someone dishonestly claiming to give guidance or advice on behalf of the body with the intention of causing financial loss, this would amount to an offence. In England, Wales and Northern Ireland a person could be prosecuted under Sections 1 and 2 of the Fraud Act, and in Scotland such conduct would likely amount to the common-law offence of fraud.

In addition, under the Consumer Protection from Unfair Trading Regulations 2008, Regulation 9 makes it an offence to advertise or market a service in a manner that deceives or is likely to deceive the average member of the public. If that advertising or marketing causes or is likely to cause an average person to take a decision they would not have taken otherwise, again, this is an offence. This would make it a criminal act, for example, for scammers to use the logo of the new body.

Offences under the Fraud Act are subject to a maximum term of imprisonment of 10 years and offences under the Consumer Protection from Unfair Trading Regulations carry a maximum term of imprisonment of two years. As a deterrent, both maximum terms are significantly greater than the maximum 12 months envisaged by the amendment.

For these reasons, and having listened to the arguments, our assessment is that there are already existing offences which will provide for the single financial guidance body to take action against people claiming fraudulently to be delivering its services or using the body’s brand and reputation to mislead members of the public. Where people seek to scam and defraud by falsely claiming to be acting on behalf of the body, they will be liable to prosecution under existing offences, leading to the possibility of a custodial sentence. We believe that the protections in existing offences are sufficient and I therefore urge the noble Baroness to withdraw her amendment.

[Baroness Drake]

I thank the Minister for his response. I am not sure all my questions were answered, particularly on how to protect from the mimicking of existing bodies that go into the organisation, while they still have credibility, until the new body’s name becomes absorbed by the public. However, in responding to his points, I borrow the phrase of the noble Baroness, Lady Kramer: the Bill needs to be belt-and-braces in terms of it being a criminal offence to mimic this body.

The new body’s guidance will influence people’s decision-making—that is why it is being set up. It recognises a market failure and many consumers who would use the guidance service could be at risk if they go in the wrong direction and to an organisation which is mimicking it. I note the Minister’s point that my amendment would not cover all the circumstances of the criminal offence, but the fact that my amendment could be improved is not a reason for not having explicitly in the Bill a provision that expressly says it is a criminal offence to mimic this body.

There are two strands to my argument: first, it should be expressly in the Bill that it is a criminal offence to mimic, impersonate or imitate the service of the single financial guidance body; and, secondly, there must be some reference to the legislation under which that would be an offence. A Bill would normally refer to the legislation or spell out specifically new legal provisions about the criminal offence. At the moment, however, the Bill is silent on the issue. That is a gap in the Bill. I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, I shall speak also to Amendments 65 and 66. They bear on the financing arrangements for the new single financial guidance body. We have talked about how the money is to be raised and the change from the current arrangements, with a move away from a straight levy system within the financial sector to an arrangement whereby money goes to the Government and into the Consolidated Fund before being paid out in grants.

The amendments are not meant to be taken word for word, but probe the way in which the case for this funding is built up. Amendment 64 would make sure that the single financial body did not underestimate the amount of money it would require by virtue of not having sufficient information to hand about the costs that it would be likely to have to meet given the aspirations for it. An earlier amendment referred to assessing this on the basis of the likely number of those in need of financial advice being the main element in building up the funding envelope. Obviously, there is difficulty in trying to assess that. This amendment adds a little more in terms of the consultation and guidance.

It would be to the advantage of the Bill if it provided for a little more accountability for the funding received. We set out in the amendments the specifics, which may well be covered by other points that the Minister may raise when she responds. At the moment, there is nothing very much in Bill about monitoring the use of the funding and making sure that the information gathered is published, particularly for Parliament, so that due scrutiny can take place.

Amendment 66 deals with how funding is to be established for the national regions. There is nothing exceptional in what is being said in terms of the mechanics—I am sure that the Bill is drafted with due concern for the proprieties involved. A number of the bodies that will be in partnership with the SFGB, or funded by it, already operate in Scotland, Wales and Northern Ireland and offer direct services themselves. If the Treasury is to get information on that, as is specified in Clause 11(1), it will need information which it is not clear that it will be able to get—or, if it is, I have not spotted it—on the costs and expenses of the existing bodies operating existing services in Scotland, Wales and Northern Ireland and how that matches what the devolved Parliaments think should be spent there. There is a lacuna there on which I look forward to hearing a response. I beg to move.

[Lord Young of Cookham]

My Lords, it is the co-pilot again. I thank the noble Lord for tabling these amendments to Clauses 8 and 11. Clause 8 provides for the Secretary of State to give financial assistance to the single financial guidance body; Clauses 9 and 10 provide for those expenses to be recovered respectively from the levy on pension schemes and through the financial services levy.

At Second Reading and in earlier Committee debates, the noble Lord has questioned this funding framework and the money trail, suggesting that it represents a fundamental change in the way in which things are done currently and that it would radically alter the way in which people operate, particularly in respect of the services provided by MAS. I am not sure that the changes are that fundamental, but, in any case, we think that they are both necessary and beneficial.

One criticism of MAS made by the Farnish review was that it lacked accountability for the activities it delivered and the money spent. As the noble Lord suggested, we need to learn lessons from our experience with MAS. These funding clauses provide a basis for strong accountability and governance arrangements. We want the body to have a clear focus on undertaking its statutory functions. As happens now with the existing organisations, the body will prepare an annual business plan setting out its planned activities and the associated budget required to deliver its proposals. That plan will be discussed and agreed with the DWP.

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Wales is different because there is no history of a funding operation for debt advice. It has always been done from an England and Wales perspective, and I hope that the sense of what the Minister is saying is that that will be allowed to continue under these arrangements and there will be an allocation of funding which matches up locations. But it is very hard to operate. I do not want to go into too much detail here and am happy to brief the Minister separately, but the StepChange team in Cardiff, for instance, operates a specialist service for the whole of the United Kingdom, dealing with vulnerable customers who are having everyday difficulties. When any of the advisers in StepChange comes across somebody with a particular physical or mental capacity problem, that case is often handled in Wales and paid for out of the Wales funding. It would be wrong if that was to be disturbed, and I hope that consultation can be at the heart of this. I am sure we will be able to get round that.

[Lord Young of Cookham]

I have some in-flight refuelling. We are working with the devolved authorities on a final agreement and will write with more detail once discussions with the devolved authorities are completed.

[Lord Stevenson of Balmacara]

Gosh—that was worth waiting for! I look forward to any information that can be provided on a more direct basis, preferably soon, but I think we have covered enough ground there.

Finally, some good points were made about the need for flexible funding solutions when there are crises, and I would like to read those in Hansard. This is very recent history, so it will be in the forefront of the minds of the bodies concerned. When the FCA was going through an accreditation process regarding debt management companies, it became fairly clear that about 50% of them were going to go out of business, leaving many people with debt management plans paid for through these commercial companies, but which those companies were going to withdraw from. MAS was able to organise substantial additional funding to all the bodies concerned to cope with that. That would not neatly fit into an annual financial cycle, so it is important that we have flexibility at the edges. I am completely open to that being done by government grant or by the holding of reserves, but it is important that it be built into the systems. However, as long as that point has been taken, and I gather it has been, I beg leave to withdraw the amendment.