Banking Misconduct and the FCA

Martin Whitfield Excerpts

Thursday 10th May 2018 Commons Chamber

[Martin Whitfield (East Lothian) (Lab)]

I beg to move,

That this House welcomes the public disclosure of the Section 166 report into the conduct of RBS Global Restructuring Group (GRG); is concerned about the fundamental difference of tone and emphasis between the summary produced by the Financial Conduct Authority (FCA) and the full report; believes this calls into question the strength and independence of the regulator; notes that the concerns raised in the debate on 18 January with regard to the financial services sector, which is not limited to RBS and its advisors, not only persist, but are amplified by the conclusions in the report; calls on HM Treasury to instruct the FCA to move on to phase 2 of the investigation into the root causes of the conduct of RBS GRG by a body independent to the FCA; and once again calls for an independent inquiry into the financial services sector and the associated industries that have allowed misconduct to thrive, and the establishment of an independent mechanism for redress for businesses.

I would like to start by paying tribute to the Backbench Business Committee for enabling this debate to take place and to the enthusiastic work of the all-party parliamentary group on fair business banking and finance, of which I am vice-chair and which is led by the hon. Member for Thirsk and Malton (Kevin Hollinrake). I would also like to take the opportunity to thank the hon. Members for Stirling (Stephen Kerr), for Edinburgh West (Christine Jardine), for Glasgow South West (Chris Stephens) and for Dumfries and Galloway (Mr Jack), who supported my application for this debate. I also thank those who have travelled down today to listen to the debate live from the Public Gallery.

This debate follows on from the one led by my hon. Friend the Member for Norwich South (Clive Lewis) in January. It demonstrates what an important issue this is for not only our individual constituents but the whole economy. For many, the foundation of the problem is illustrated by bank closures. Indeed, in my constituency, bank closures and the disappointing remission of free-to-use ATM machines are breaking down trust in the banking industry. Ensuring that consumers have access to finance is fundamental to the ethos of community banking.

Today’s debate rightly shifts attention to financial misconduct and considers the section 166 report, but it also stands as a timely reminder to the entire banking sector that the consumer must always be at the centre of its operations. Access to finance is so important to local businesses in East Lothian and across the UK. Whether wronged by commercial lending policies not fit for purpose or hit disproportionality by bank closures, businesses are being badly let down by the industry.

Regarding financial misconduct, a lot has happened since January, and we are not simply here to cover an old story.

[Layla Moran (Oxford West and Abingdon) (LD)]

I am extremely grateful to the hon. Gentleman for giving way. Does he agree that it is not just businesses that suffer? It is also families and people’s mental health. Nigel and Julie Morgan, who are here with us today listening to the debate, have been adversely affected by this issue for years. It is that which we have to bear in mind.

[Martin Whitfield]

I am grateful for the hon. Lady’s intervention. It is right to say that, behind every one of these statistics, there are individuals, families, businesses and employees—who have their own families—who have suffered as a result of all this. I will come on to that in a moment.

The release of the section 166 report into Royal Bank of Scotland’s Global Restructuring Group not only underlined the toxic culture that existed in the GRG but, critically, identified the systemic failures that allowed such conduct to thrive.

Today I intend to focus on three key points. The first is dispute resolution, which has been covered extensively, and the all-party parliamentary group will deliver a report on it in the near future. Secondly, I would like to look at the associated industries involved in this scandal. Thirdly, there is the need for a full public inquiry into the treatment of businesses by financial institutions.

As the debate progresses, I would ask hon. Members to keep at the forefront of their minds the very simple notion of the balance of power and, indeed, the abuse of power, because that is ultimately what we are addressing here, not just with RBS but across the entire ecosystem of commercial lending. We have only to look at the HBOS Reading fraud to understand how corrupt the system can be and how that can thrive if it goes unchecked year after year.

[Kate Green (Stretford and Urmston) (Lab)]

I congratulate my hon. Friend on opening this important debate. Does he agree that one issue is the continuing refusal of many in the banking sector to accept their responsibility and their determined deflection of blame back to their customers?

[Martin Whitfield]

My hon. Friend makes a very important point. There is genuine anger about banking businesses not taking responsibility for their actions and not looking to rectify the damage that was done in the past. That is what is fundamentally undermining the confidence that people and businesses have in the banking sector.

[Damian Green (Ashford) (Con)]

The hon. Gentleman will obviously concentrate most of the time on activities inside banks themselves. Will he also touch on one of the issues raised by my constituents, who, like many others, have been affected by this—the activities of insolvency practitioners? There seem to be deep problems there as well.

[Martin Whitfield]

I am grateful for the right hon. Gentleman’s intervention. I am just moving on to talk about the fact that although there are very legitimate objectives at the turnaround units that many banks have operated, they are so easily manipulated to carry out systematic asset stripping of small and medium- sized enterprises. Indeed, it is the surveyors, insolvency practitioners, turnaround consultants, Law of Property Act receivers, lawyers and accountants that support financial institutions and enable and facilitate the systematic abuse that was so clearly laid bare in the section 166 report who must also be held to account for these failings.

[Norman Lamb (North Norfolk) (LD)]

The hon. Gentleman mentioned the section 166 report. I understand that the second phase has now been brought in-house into the Financial Conduct Authority. Promontory has ended its role. There is a concern on the part of many people that there will be a lack of transparency. There is a concern about a further possible cover-up of really serious wrongdoing.

[Martin Whitfield]

Again, I am really grateful for that insightful interjection. There clearly is a concern about transparency. Beyond the single events—tragic as many of these are—the overall story and picture that people are taking away about our banking industry is its being heavily influenced by hidden-door decisions, by delayed reports and by people, frankly, trying to protect themselves rather than shining a light on what has been happening to try to make the system better for the future.

Here we are again, talking about past misconduct. However, this is the catch, and it was mentioned early on: for business owners across the country who have lost their livelihoods, their homes, their marriages and, quite often, their health, this is not an issue of past misconduct; it greets them every single day when they wake up and haunts them at night when they go to sleep.

The impact of this scandal has been so profoundly damaging that people have taken the appalling decision to end their lives because they cannot face things any more. It is the responsibility of this House and of the financial services—it is genuinely the responsibility of everyone—to ensure that there are answers to these questions so that, hopefully, and at last, some people and some families can find some peace.

[Nick Herbert (Arundel and South Downs) (Con)]

The hon. Gentleman rightly draws attention to the appalling stress that has been placed on individuals. That has happened in my constituency due to RBS and the Britannia building society acting entirely unfairly towards my constituents. Apart from the behaviour of the banks, is there not an issue about the ability of such individuals to obtain redress, and the failure of our institutions—such as the FCA and the ombudsman—to be able to offer satisfactory relief to individuals so badly affected?

[Martin Whitfield]

Again, that is an excellent intervention. It is almost as if planned, because I am about to turn to the question of dispute resolution.

The FCA’s recent consultation into extending the Financial Ombudsman Service clearly sets out the complex landscape of commercial disputes, but it also identifies what it can and cannot do as a regulator to bridge this gap. The all-party group is very clear that it cannot possibly support the proposed extension of the Financial Ombudsman Service as a stand-alone solution to problems that have beset the business community for so long. Even with extended powers, it will not be sufficient to cover complex cases or those that sit outside the regulatory perimeters. The FCA’s consultation makes it very clear that it has limited powers and that a complete solution must include action by the Government and this Parliament. It is not an either/or; we need both.

[David Hanson (Delyn) (Lab)]

This is not a partisan point, but one about the current and previous Governments: schemes executed by the Government, such as the enterprise finance guarantee scheme, have been misused by RBS, but RBS has been retained under some element of public ownership, if not control, so will my hon. Friend call on the Government to look at the schemes they have operated and at their performance in helping to support colleagues and constituents such as mine?

[Martin Whitfield]

Again, I am grateful for that intervention. Clearly, at the end of the day, this goes to the question of a public examination of what has happened and where things have gone wrong. RBS is obviously still held by the public through the shares we bought when we bailed it out, but even without that, there is still a responsibility to make sure that the banking and financial sectors apply rules and laws equitably, fairly and transparently, and do not seek to put down small and medium-sized businesses to their own benefit.

[Joanna Cherry (Edinburgh South West) (SNP)]

I endorse what the hon. Gentleman is saying because there is a real issue about redress. The lives of my constituents Mr and Mrs Neave have been ruined by this UK banking episode. I have seen their reams of correspondence with the FCA and the ombudsman, yet all these organisations ever seem to say is that there is no case to answer. People then turn to their MPs, but there is nothing we can do. Is not the time ripe for the UK Government to ensure redress, perhaps by way of a tribunal process or something like that?

[Martin Whitfield]

Absolutely. On dispute resolution, the introduction of a tribunal would be an important and essential step forward, giving access to people and businesses that at the moment struggle to gain access to the courts.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

My constituent Mr Kashourides, who has no confidence in the FCA or the ombudsman, has himself brought legal action against RBS, but he has been asked by a judge to pay £150,000 as a surety for costs, because the lawyers that RBS employs are very expensive. Does my hon. Friend agree that a tribunal would be the best way forward?

[Martin Whitfield]

Absolutely. The cost of bringing a case to get rectification is so important.

The FCA has repeatedly said that it does not have the powers to deal with commercial lending and that it is up to Parliament to decide if it wants those powers to be extended. However, in various statements, the Treasury has repeatedly stated that this is a matter for the FCA and that if the FCA feels it needs more powers, it should ask for them. All that is happening is that this hot potato is being kicked between two different areas, and we are not getting answers that, in reality, are satisfactory to anyone. I would appreciate clarification from the FCA on the parameters of what it needs in order for it to ask for more powers. At the moment, we are seeing the widespread and systematic destruction of British businesses, which in my mind certainly seems to qualify as a reason to request additional powers.

The lack of mechanisms for redress and of action in general has severely undermined public confidence in the integrity of our system, and it is time that we tackled this head-on. We are therefore calling today for a full public inquiry into the ecosystem of commercial lending, and particularly into the treatment of businesses in financial distress. This cross-departmental issue covers both the Department for Business, Energy and Industrial Strategy and the Treasury, so it is too wide-reaching to come under the remit of just one Select Committee in Parliament.

I will briefly turn to the role of professional advisers and the wider issue of commercial funding. I welcome the focus that section 166 has placed on the inherent conflict of interest that exists between financial institutions, surveyors, lawyers and insolvency practitioners. For too long, we have focused solely on financial institutions, but not on the professionals that support them, often in the form of secondments from within the walls of the very financial institutions themselves. Frankly, it beggars belief that this is an accepted industry practice. The mechanisms involved in taking control of businesses and their assets are operated via LPA receivers and insolvency practitioners.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Does my hon. Friend agree with me that these professional practitioners are quite often working hand in glove with the banks? Does he also agree that the fees, particularly in insolvency practice, are very high, which, on top of the issue with the banks, can push businesses under?

[Martin Whitfield]

I am grateful to my hon. Friend for that intervention, and I would draw attention to the very basic case of those owning a business that has constantly paid back its loans on time and maintained contact with the bank, who may suddenly, through a simple slip of a pen in the valuation or revaluation of the business by part of the bank’s organisation, find themselves in breach of their loans—and they lose their business. That is not a question for the shareholders or for the directors; with a movement of a pen, their business becomes the bank’s.

RBS has been at pains to point out that the Promontory report did not find any evidence of deliberate under- valuations, but in any event the report could not in many cases find any evidence about how valuations were conducted, and there is a suggestion that they were simply made up. These valuations could then be used to appoint an insolvency practitioner, subject to huge costs, and a cosy relationship between a surveyor, an insolvency practitioner and a bank suddenly means that another family business has been lost.

[Jo Stevens (Cardiff Central) (Lab)]

My constituent Kashif Shabir, whom I have spoken about in several debates on this issue, has been the victim of exactly that, with Lloyds bank and Alder King surveyors in Bristol, resulting in the loss of his £10 million business. Does my hon. Friend agree with me that the bosses of both those organisations, Mr Horta-Osório and Mr Martyn Jones, should now proactively take steps to offer—

[Jo Stevens]

I apologise, Madam Deputy Speaker. Does my hon. Friend agree that the banks and the surveyors should proactively take steps now to offer redress to my constituent and to many other constituents of Members on both sides of the House?

[Martin Whitfield]

Absolutely. I agree with that proposal, because the banks and the surveyors have professional responsibilities to their clients and those they serve, and such responsibilities apply equally by omission as by action.

To conclude, from its early inception, banking was engineered to become a focal hub of community engagement. There was a societal bond of trust, which was represented by the strong institutions on our high streets. In recent years, however, this has become synonymous with mistrust and deceit. Consumers right across the country have been let down not just by a few specific banks, but by an industry that has developed and become polluted by a toxic culture of misconduct.

--- Later in debate ---

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I thank the hon. Member for East Lothian (Martin Whitfield) for bringing forward this important debate. Like me, he is an officer of the all-party group on fair business banking and finance, which I co-chair. I also speak today on behalf of Jon and Kerry Welsby and others in my constituency who have suffered as a consequence of the apparent bank-induced failure of business services company Mouchel.

As the motion states, the problems in the banking sector are not restricted to RBS—I will offer evidence to the House later that will widen this debate—but I will deal first with RBS. It is clear that the senior management are directly responsible for what happened, but there are also serious questions that the regulator, the FCA, needs to answer, particularly about how it intends to hold these individuals to account through phase 2 of its inquiry and about the reasons for the fundamental difference in tone and substance between the conclusions of the full report and those of its summary. Its summary sets out its key conclusions, and although it identifies isolated examples of poor practice, it lists eight separate areas where RBS was cleared of blame before later highlighting areas in which widespread inappropriate treatment had occurred.

The full report, released eventually by the Treasury Committee some 15 months later, stated:

“Our central conclusions are that there was widespread inappropriate treatment of customers by GRG”,

that

“in a significant proportion of cases...we assessed”

these businesses

“as being potentially viable”

and that

“the treatment appears likely to have caused material financial distress…for the most part”

as

“a direct result...of the priorities GRG pursued.”

[Martin Whitfield]

Is it not indicative of the problems of transparency that the delay between the release of the initial report and the full report was unacceptable and that it was only eventually released because of the efforts of Committees of the House and Members of this Chamber?

[Kevin Hollinrake]

The hon. Gentleman makes a strong point. We should thank the Treasury Committee and its Chair for their work.

As I said, these issues are not restricted to RBS. Many will also be familiar with the HBOS Reading scandal, where former bankers and their advisers were jailed for a total of 47 years in 2017 for activities that took place over a decade earlier, prior to the takeover by Lloyds in 2008.

I have recently been sent by one of those convicted, Mr Michael Bancroft—this was kindly facilitated by my hon. Friend the Member for Stratford-on-Avon (Nadhim Zahawi)—hitherto unreleased documents, including the Project Lord Turnbull report, authored by Lloyds senior manager Sally Masterton, which alleges that senior managers within the bank were aware of the fraud prior to the takeover and the £14 billion Lloyds and HBOS rights issues, yet they took clear, deliberate and documented action to conceal it. Let us be clear: if this is true, it could potentially make the rights issues and the takeover fraudulent. Those named as culpable for non-disclosure in the report include chief executive Andy Hornby, chairman Sir Dennis Stevenson, former CEO James Crosby, corporate CEO Peter Cummings, and the auditors and reporting accountants, KPMG. The all-party parliamentary group will have a full copy of the report and Members will be given access to it. Status, seniority and background cannot be a barrier to justice or to holding to account those who are ultimately responsible for the devastation caused to so many lives and to the wider economy.

--- Later in debate ---

[Martin Whitfield]

I thank the Minister for his response, but I also want to thank the 18 Back Benchers on both sides of the House who have spoken with a single voice. We are concerned about our constituents, who have been let down by the banking system. At the moment, we are in a cul-de-sac of regulation and dispute resolution, and this is going nowhere.

I hear what the Minister said about awaiting the report. By my calculation, it will be out in August, by which time other reports will be available. May I book an August slot now, Madam Deputy Speaker, should we need to return? Let us hope we do not need to return to this, but our constituents are not going away and we, acting on their behalf, are not going away either. I look forward to having such a discussion in August, when we may have a more positive response about a public inquiry and an independent tribunal and about the responsibilities of other professionals connected to the banking service.

Question put and agreed to.

Resolved,

That this House welcomes the public disclosure of the Section 166 report into the conduct of RBS Global Restructuring Group (GRG); is concerned about the fundamental difference of tone and emphasis between the summary produced by the Financial Conduct Authority (FCA) and the full report; believes this calls into question the strength and independence of the regulator; notes that the concerns raised in the debate on 18 January with regard to the financial services sector, which is not limited to RBS and its advisors, not only persist, but are amplified by the conclusions in the report; calls on HM Treasury to instruct the FCA to move on to phase 2 of the investigation into the root causes of the conduct of RBS GRG by a body independent to the FCA; and once again calls for an independent inquiry into the financial services sector and the associated industries that have allowed misconduct to thrive, and the establishment of an independent mechanism for redress for businesses.