Financial Services Bill

Pat McFadden Excerpts

2nd reading & 2nd reading: House of Commons & Programme motion & Programme motion: House of Commons & Ways and Means resolution & Ways and Means resolution: House of Commons
Monday 9th November 2020 Commons Chamber

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

I thank the Minister and his officials for the information they have shared about the measures in the Bill over the past couple of weeks. I have, of course, been riveted by the Bill in recent days, but I confess that I had to put it down for a while at 5 o’clock on Saturday to watch CNN when something more exciting than the Bill came through on the news.

[Harriett Baldwin (West Worcestershire) (Con)]

Will the right hon. Gentleman clarify whether that is where all his colleagues are this evening? I note that he does not have many behind him. In fact, his Benches are empty.

[Mr McFadden]

There is a phrase: I am not my brother or my sister’s keeper. They will have to answer for themselves.

The backdrop to these measures is formed by two significant events in recent years. The first of those is not Brexit but the financial crash of 2007 and 2008, which exposed the risks being run in the financial services industry and the huge knock-on effects for the rest of the economy when those risks go wrong. That experience prompted a global rethink about banking regulation, the capital levels that banks and other financial institutions are expected to hold, resolution measures in the event of banking failure, and the balance of obligations between the industry and the state. Much of that rethinking was expressed in the series of directives with which the Bill deals and in the Basel process on capital rules.

For all the complexity in the detail of these things, at root the questions are quite basic. First, how much capital should institutions hold as insurance against things going wrong? Secondly, who should be on the hook if things do go wrong? And thirdly, how do we insulate the wider economy from the consequences of instability in financial services? It is on these questions that much financial services regulation has focused over the past decade. The UK has been a key player in this process at both a European and a more global level. These are not things that have been imposed on us; we have played a significant role in the design of the measures that we are onshoring through the Bill.

The second event is, of course, Brexit and the consequent withdrawal from the European regulatory institutions responsible for the oversight and implementation of these directives. By definition, the process requires a recasting of regulatory responsibilities in the UK, and much of the Bill is concerned with that. The key question, then, is not so much the onshoring of the regulations themselves, but what happens next. Do the Government intend to diverge significantly from the rulebook, and in which direction will they go?

[Jonathan Edwards]

I am grateful to the right hon. Gentleman for setting the scene. Many of us are concerned that the Basel III regulations did not go far enough—that is, they did not really solve the “too big to fail” issue. We need to be very careful that we do not water down the proposals. Does he agree with that position?

[Mr McFadden]

I do, and I will talk later about the Basel III regulations; certainly Basel II did not prove to be any kind of protection against what happened in 2007 and 2008.

The other issue that we will have to consider is the role of Parliament in debating and deciding these matters. The approach that we will take is to ask at each stage what these measures will mean for the UK financial services industry, for the wider economy and for consumers. Do they guarantee robust regulation in the public interest, or do they expose the consumer to greater risk?

There is a particular onus on the UK to get this right, because we are a medium-sized economy with a globally significant financial sector. There are obviously crucial benefits of that to the UK: the huge number of jobs generated around the country by financial services; the investment that comes into the country through being a world leader in the sector; and, of course, the tax revenue that goes towards supporting our public services. But, as we have also learned, there are risks if things go wrong, and it is in no one’s interest for the post-Brexit regulatory system to result in a race to the bottom, where the public are exposed to greater risk in the name of increased competitiveness.

We know that parts of the financial services sector will be knocking on the Minister’s door. They will not put it in terms of watering things down; they will tell the Minister that they could be so much more competitive if only he changed this rule or that rule, or gave them this or that exemption. Of course, we do not argue that any rulebook should be frozen in time. Regulation must adapt to circumstances and innovation, but these things are there for a reason. Capital has to be held against lending and other products for a reason. These rules are the public’s insurance policy against the risks involved in the enormous capital flows that go across countries and between financial institutions. They are the as yet untested firewall against a repeat of what happened across the globe a decade ago.

[Bim Afolami]

What is the right hon. Gentleman’s view on an expanding, ever more complex set of measures obscuring good supervision and prudential management of the financial services sector? To what extent would he welcome any efforts—whether cross-party or by the Government—to simplify regulatory standards while also ensuring that they continue to be robust? There is a danger for many in different parts of the industry not of watering things down, but of such complexity making it very difficult to manage a business on an ongoing basis.

[Mr McFadden]

Nobody should be wedded to complexity for complexity’s sake. As I said, beneath the complexity, the issues are actually not that complicated. They are about the safety of insurance and resilience when things go wrong, and that is what we are focused on, rather than defending complexity for complexity’s sake.

The second thing that we will have in mind as we debate the Bill is the broad question of what financial services are for. The Chancellor set out green goals for the UK financial services industry in his statement today, and we welcome, for example, what he said on green gilts. But those green goals are not mentioned in the accountability framework set out in the Bill. Indeed, in schedule 3, the accountability framework states that the regulator must have regard to

“relevant standards recommended by the Basel Committee”.

The hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) was right to say that that should be a minimum, not a maximum, given the importance of resilience and robust regulation. The regulator must also have regard to

“the likely effect of the rules on the relative standing of the United Kingdom as a place for internationally active credit institutions and investment firms to be based or to carry on activities”

and

“the likely effect of the rules on the ability of…firms to continue to provide finance to businesses and consumers”.

Nothing there speaks of the green goals. Do the Government intend to amend the Bill as it progresses, to reflect the statement made by the Chancellor today? There is an opportunity here to put regulatory power behind the goal of net zero and, indeed, broader social and governance considerations for the greater public good. As it stands, the Bill is silent on that—it does not do that yet. When will the Bill be reconciled with the statement that we heard this afternoon?

Thirdly, we will want to ensure that the UK maintains the highest standards when it comes to transparency, money laundering and corruption. We have already had the report from the Intelligence and Security Committee referring to the “London laundromat”, where illicit funds can be washed and corrupt financing rendered more obscure. The UK’s globally significant financial services sector must not be tainted with any sense that this is an easy place for illicit or corruptly obtained finance to be washed through different institutions. As the Bill progresses, we will seek to ensure the highest possible standards with regard to these issues. Of course we want a successful, globally competitive financial services sector, but it has to be based on clean money, honest endeavour and socially responsible goals.

I turn to some of the individual measures in the Bill. As the Minister said, clauses 1 to 7 deal with new prudential regulation requirements, the implementation of the Basel rules and the new accountability framework, which I quoted from a moment ago. As I said, the schedule on the accountability framework states that, when making these new rules, the regulator must have regard to the likely effect on the “relative standing” of the UK as a place for firms to be based or carry on activities. I want to explore that with the Minister. Does that clause about the relative standing of the UK mean that, every time a regulated entity says, “We don’t want you to do that because it will affect our competitiveness in relation to other countries”—and they are liable to say that quite a lot when regulatory proposals are put forward—the regulators have to keel over and give in? How does this point to the UK being a leading player in the kind of environmental or social regulation that can help to ensure that the power of our financial services sector is a force for good? What is the guarantee that the provision does not, in fact, become a deregulator’s charter, on the basis that we should not do things that some in the industry could claim put us at a competitive disadvantage relative to other countries? The wording is crucial. The accountability frameworks, Parliament’s role in them and what they should cover will be the subject of significant debate as the Bill progresses.

On capital ratios, the FCA has estimated that total pillar 1 capital requirements will decrease by 5%. What is the justification for decreasing the capital requirements when we know that over-leveraging was a key cause of the financial crisis? How can the Government ensure that the onshoring of these powers does not result in a chipping away of the public’s insurance policy on financial risk? Similarly, in relation to Basel reforms, the Bill’s impact assessment talks of

“flexibility to tailor the actual detail of these subject areas to the UK.”

Given the weakness of the Basel rules in the past, it is clear that they should be seen as a floor, not a ceiling. Adherence to international standards is a minimum, not a maximum to be wriggled out of when we get the chance, so what exactly is the flexibility to be used for?

Clauses 8 to 19 deal with LIBOR and the governance of benchmarks. For my sins, a few years ago I served on the cross-party Parliamentary Commission on Banking Standards, which was established in the wake of the LIBOR scandal, which exposed manipulation, mutual favours and price setting based on conjecture rather than actual trades. The benchmark was abused to benefit traders, rather than markets or the end consumers of those trades, so it is right that it goes, but so many contracts around the world have been based on it that the Bill has to put in place a system for dealing with such so-called tough legacy contracts. The principles behind benchmarks should be clear: they should be based on actual trades and costs and should be insulated against manipulation for personal gain by those who submit the information to the benchmark in the first place. That will be the task of the FCA.

Clauses 22 and 23 establish the new Gibraltar authorisation regime. I share the warmth towards Gibraltar that is felt in all parts of the House. The measures could be described as a necessary consolation prize for taking Gibraltar out of the EU, by ensuring continued market access on a free basis between Gibraltar and the UK.

Clauses 24 to 26 give us a picture of how equivalence will work from the UK point of view, at least in part, by establishing the overseas fund regime, which negates the need for fund-by-fund approval and will instead be based on country-by-country approval and extending the time period for such funds to trade in the meantime. In his statement earlier this afternoon, the Chancellor had more to say about how we will grant equivalence recognition to others, but of course he could not say what would happen to UK companies that sell services overseas, because over that he has no control.

What was announced today dealt with one end of the telescope, because that is the position we are now in. Whatever this can be described as, it certainly cannot be described as taking back control, for we are now dependent on a response from others in respect of the crucial UK companies in the overseas markets in which they want to trade. There is also the question of how equivalence decisions are to be granted. Are such decisions a matter of economic policy or foreign policy—or both? I would be grateful if the Minister addressed that when he responds.

[Jonathan Edwards]

Considering the amount of work that needs to be done on this issue before the end of the transition period, is not the reality that the best we can hope for for the financial sector is some sort of base deal? The negotiations on what the situation may be down the line will then take many, many months, if not years.

[Mr McFadden]

If we read the political declaration, we can see that this was all supposed to be wrapped up by June. We are now approaching mid-November. The hon. Gentleman is certainly right to suggest that the time has slipped.

Subsequent clauses in the Bill go through a number of other EU directives and the onshoring process. They cover the markets and financial instruments regulation, the market abuse regulation, European markets infrastructure regulation dealing with over-the-counter derivatives, and the EU financial collateral directive. I have no doubt we will have a lot of fun with all of them in Committee. On money laundering, we will want to see as strong a system as possible to ensure that the UK is no safe harbour for anyone who wants to wash dirty money, avoid taxes or evade accountability. Again, I am sure the Minister is expecting more discussion of this as the Bill progresses. He and I debated the statutory debt repayment plan a few weeks ago, and Labour supports moves to create this system. It will be particularly important in the light of the increasing debt burden on many families due to the covid pandemic, and the sooner it is in place, the better.

On PRIIPS, the Government propose to remove the performance scenarios. The question, of course, is what they will be replaced with, how useful and accessible the information for consumers will be and what protections will be in place against the mis-selling of products or fraudulent claims. The imbalance of information is always a challenge in financial products because, in most cases, the seller knows more than the purchaser. Regulators have an important duty to be on the side of the consumer when it comes to the marketing of such products, so if the current performance scenarios are to go, they must be replaced with something better that will genuinely help the consumer. Other measures, including the fixed term for the FCA chief executive, have finally found the legislative home for which they have been waiting in the Treasury for some time.

That is, broadly speaking, what the Bill legislates for, but there are important areas, as the Minister said, that are not included. The most obvious is access to cash. Cash use has declined markedly this year, as people have moved to more online shopping and many businesses have moved to card-only payments, but this is not a trend that falls evenly on the population. Most of the population might need less cash or, in some cases, no cash in the future, but we have a duty to ensure access to cash for those who still need it, including many on low incomes for whom cash budgeting is a vital way of making ends meet. If we do not do that, inequality will be sharpened and there is a real danger that cash-dependent consumers will be cut off from important areas of economic activity. The Government have said—the Minister repeated it tonight—that they want to ensure access to cash, but if that cannot be done through this Bill, we urge the Minister to come forward with appropriate measures as soon as possible.

Standing back and looking at all this, I get an overwhelming feeling of it being all deckchairs and no iceberg. The Government can, of course, rearrange the regulatory furniture, and in many areas that is a necessary consequence of leaving the EU, but the bigger policy decision to downgrade financial services in the negotiations was taken a long time ago. The Chancellor talked today about the economic and employment importance of this industry, and he was absolutely right to emphasise that, but the more he emphasises it, the more it begs the question why market access for this crucial sector, and indeed services in general, has not been a negotiating priority for the Government. The truth is that, in this negotiation, services have been thrown under the bus.

On manufacturing, we have also moved further and further away from the earlier promises of frictionless trade, exact same benefits and all the rest. The fact that these things are not front and centre of the final round of talks is not because agreement on them has already been reached, but because the Government have decided not even to prioritise them. That is a louder testament to where we have ended up in this process than anything in the Bill. This is a series of measures that are trying to compensate for much bigger decisions. This will create more trading friction and more market barriers for our crucial financial services, and for our broader services industry and manufacturing. In the end, no amount of cutting and pasting of EU directives or last-minute vision statements can change that bigger picture.

--- Later in debate ---

[Mr McFadden]

With the leave of the House, I should like to respond to the debate and pick up on a few of the contributions made over the last couple of hours. The hon. Member for West Worcestershire (Harriett Baldwin) spoke of historic turning points, citing the change of presidency and the potentially huge announcement today on a workable vaccine. She is right about those, but I thought it was a bit of a stretch to include this Bill in the same bracket, as a historic turning point.

The hon. Member for Edinburgh West (Christine Jardine) spoke of the importance of financial services jobs in her constituency and in many other parts of the country. The hon. Member for Thirsk and Malton (Kevin Hollinrake), as chair of the all-party group on fair business banking, spoke of some of the past banking scandals, mistreatment of small businesses and so on. The hon. Member for Wimbledon (Stephen Hammond) told us that this might be the first of several such Bills, which gives us all something to look forward to in these long winter nights. He gently and right reminded us of the contrast between where we are and what was promised. He and the hon. Member for Hitchin and Harpenden (Bim Afolami) focused on the issue of accountability frameworks and the role of Parliament. That is very important because—let us be honest—that is what the discussion will be like in the Treasury. We have this big increase in regulatory focus in the UK. We have these existing regulators. We are going to pass a lot of this new power to the regulators through the onshoring of these directives and MPs will be standing up in Parliament saying, “Well, what about our role in this?” I suspect there is some scepticism about giving Members of this House a very active role in these regulations.

Exactly the same discussion took place during the financial crisis. Here, in the United States and in other countries, emergency measures had to be introduced and decisions had to be taken quickly by Executives, and the discussion was: what role for elected politicians? Hon. Members can be sure that there will be significant resistance to giving MPs in this House a big role in things such as capital ratios or whatever else is being discussed.

We will continue to debate these issues. To recap, our approach will be to protect consumers and the wider economy as these measures go through; and to focus on accountability frameworks and try to bring them closer to the policy aims of finance and what it can really do. We have broadened our understanding of that. The Chancellor, whether he meant to or not, has opened the door for us to discuss that through his statement this afternoon on the importance of green finance. Thirdly, our approach will be to try to ensure that this globally significant industry operates on the basis of finance that is clean, that is not a place for illicit funding and stops any race to the bottom on standards.

I look forward to debating these things with the Minister in Committee, but it is impossible not to contrast what is before us with what was promised all the way through and what was said earlier. The announcement today on equivalence is not taking back control; it is the opposite of taking back control. It was a symbol of our lack of control. It was, in fact, an act of unilateral financial disarmament. We decided to give companies operating here, for reasons of market continuity, the right to continue to practise. I understand why that was done, but the fact that we have no guarantee of what the response will be is a symbol of where we have ended up. It is certainly not taking back control. I fervently hope that that move is reciprocated, because that is in the interests of UK companies that are trading abroad, jobs here and this very important industry, but the fact that we cannot guarantee it and have no control over it speaks volumes about where we have ended up in this process.

The announcements on green finance were welcome, but they are not in the Bill. We have to ask why not, given that the Chancellor chose today to make his announcements, just an hour or so before we started debating the Bill. I am sure we will discuss that as we go forward.

To repeat, we have to have a UK-based system as a consequence of leaving the EU, and we will not oppose the Bill because we understand that reality, but that does not balance out or make up for the significant downgrading of our globally important financial services sector in the Brexit negotiations that are taking place at the moment. The fact that it is not front and centre in what we are trying to negotiate speaks volumes about where we have ended up.