Financial Conduct Authority

Michelle Thomson Excerpts

Monday 1st February 2016 Commons Chamber

[Michelle Thomson (Edinburgh West) (Ind)]

Thank you, Mr Hoyle. I add my thanks to the hon. Member for Aberconwy (Guto Bebb) for the work that he has done through the all-party parliamentary group and more widely. People whom I knew in a previous life before I came to this place are very appreciative of that work. I will address my remarks primarily to the fact that the FCA process of redress simply does not work for businesses that are forced into insolvency as a result of being mis-sold interest rate hedging products. The concept of hedging is well understood to mitigate risk, but those products were structured to be a “heads I win, tails you lose” for the banks.

As many in the Chamber will be aware, mis-selling has caused many unnecessary insolvencies across the country, with simply devastating consequences for individuals and their families. Many companies are in administration, some have had all their assets sold and some have been liquidated, often with the banks still pursuing the directors for personal guarantees and their family homes. In England and Wales, the process under unregulated Law of Property Act receivership is similar, and many people have been made personally bankrupt as a direct result of the mis-selling. The situation should not have occurred in the first place.

Unfortunately, the review process instigated by the FCA is of little use to the individuals—our constituents—who lost their businesses, their homes and their life’s work to the scandal. The first issue is that the process fundamentally does not address, or provide a solution for, insolvent businesses that have suffered from bank misconduct. The former Business Secretary stated in May 2013, after the FCA scheme had been launched, that there were

“unresolved issues surrounding the mis-selling scandal, including how businesses have been forced to close because of the products the banks sold in the first place.

This includes deciphering who will be able to help the businesses in administration, when their assets have been taken away from them, and who will be in charge of finding a solution for them.”

It is clear from that statement that that was an acknowledged fatal flaw in the FCA review system from its inception. Where a business is forced into insolvency, the business owner loses control over the process. Even if the insolvency practitioner decides to pursue a claim against the bank, the redress goes to the bank. One quite simply could not make it up.

The second issue is how the redress process was administered. There has been a distinct lack of transparency about the details of the deals between banks and the FCA, and how the deals varied from bank to bank. How can fairness be guaranteed or trusted when different rules apply to different banks, none of which is transparent, and where gagging orders are commonplace? How can fair treatment be ensured for the 3,000 SMEs that won compensation from the banking review but received no benefit because they were already out of business?

As it stands, the FCA review allows the banks successfully to sidestep all responsibility for their actions, manipulating the system and using the process of insolvency to disregard the principle of the review. Rather than business people receiving redress for their loss, the banks can quite happily admit that they have mis-sold a product and pay the redress to insolvency practitioners. Insolvency practitioners do not have the tools to deal with the scenario. Their primary duty is to the creditors, which results in the lion’s share of the redress going back to the bank. Directors, shareholders and unsecured creditors, including HMRC and local councils, bear the brunt of the pain. It is a paper exercise in which the only benefactors are the insolvency practitioners, who make a tidy sum in fees, and the bank, which is essentially allowed to pay itself back for its own misconduct.

Some, such as the banks and the FCA, may argue that the businesses would have been insolvent anyway. I am sure that that is true for some of them, but, as we know, cash flow is the lifeblood of any business. Sustained, extensive pressure to make high interest payments over several years is, without doubt, a major—indeed, often the sole—contributory factor in a business’s success or failure. To dismiss it as otherwise is not only misleading, but insulting to the thousands of business owners who have lost their life’s work to this scandal. Despite constant calls for engagement and dialogue, business owners who have lost everything are systematically ignored. It is important to acknowledge at this point that, fundamentally, this is not just about regulation or governance, but actually about people. The banks have admitted mis-selling and the business people have been exonerated, but those people still find themselves in a position of powerlessness and total frustration.

There are still difficulties. HMRC now treats owners differently, as they know that consequential losses are not paid out. These systemic issues need to be addressed. Those who have lost so much are often left with nothing more than the energy, drive and determination to fight this tooth and nail. Unfortunately, neither the regulator nor the law gives them the tools or even the voice to fight. On the contrary, their voices are stifled and their pleas for help are ignored. Would it not be more constructive to give them a fair deal in terms of compensation and recovery, so that the business people who have lost everything can use their energy and drive to rebuild their businesses, thereby doing their bit to contribute to our overall economic recovery? To do that, they need our support—the support of lawmakers and regulators—because the banks are not, simply on their own initiative, doing the right thing. With its decision to drop the inquiry into banking culture, the FCA is not doing the right thing either.

The third issue concerns the ability of individuals to take action; only private individuals can take such action. Although a bank may have breached its regulatory duties under the FCA regulations, it can be sued only for breach of contract, not for regulatory breaches—