Draft Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018

Richard Bacon Excerpts

Monday 19th November 2018 General Committees

[Mr Richard Bacon (South Norfolk) (Con)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I have two or three questions for the Minister. First, in relation to cold calling and the general consensus that there is a great deal of mistrust of CMCs—even though, as the Minister said, there is a place for the CMC model—can the Minister explain what the current status of a person making a cold call would be? I speak from personal experience, because for some reason they have recently started targeting me. Not having experienced it much before, I must have had six or a dozen calls in the past five months, and for some reason, they always refer to an accident on 24 January or a date in early March. I remember thinking at the time, “Is the person making that call currently committing an offence and, if not, will they be under these regulations?” If they refer to an accident that did not take place, some sort of misleading or fraud is plainly going on. Is a crime being committed, or will a crime be committed, either by the person who makes the telephone call or by the promoters or owners of the business? If not, perhaps the Minister can explain why not.

Secondly, I refer the Minister to the BBC magazine programme “You and Yours”, which had an item today—perhaps not coincidentally, because this instrument is before the House today—that included the director general or executive director of the trade body that represents CMCs. They pointed out that many banks were misleading their own customers when they inquired directly whether they had payment protection insurance claims. Those people were told categorically by a series of high street banks that they did not have claims, but discovered subsequently that they did. In one case, a listener had phoned up asking whether he had a claim, knowing full well that he had PPI because he had the piece of paper from 20 years ago, and was told by the bank that he did not. He later got the obligatory apology from the high street bank. My second question is this: to what extent, if at all, does the instrument cover the banks? I assume that they are covered separately by the FCA, but perhaps the Minister could confirm that.

Thirdly, I was interested to hear that solicitors are exempt from the regulations. I was particularly prompted to think about this when the hon. Member for Oxford East mentioned the figure of £16 million, which I understand to be the cost of the scheme. The reason is that some years ago, when the coalminers’ compensation scheme was going on, there was a solicitor in Doncaster, in Yorkshire, who was heavily involved in processing claims for people who had been made medically unfit for work or had become ill in one way or another through working in a coalmine. That solicitor was paying himself a salary of £16.7 million a year. I remember that well, because I got the permanent secretary of the Department of Trade and Industry, as it then was, to confirm on the record that the Government’s policy in managing the scheme was not to make multimillionaires of solicitors in Doncaster, although that was its effect.

[Caroline Flint (Don Valley) (Lab)]

I feel that I have to intervene. The hon. Gentleman is right; not just in Doncaster but in other coalmining areas solicitors took advantage of the situation. Even though the Government were paying them for their services in handling the claims, they took compensation money from the individuals concerned. Does he agree that it is important that the Government look at every possible scenario where such loopholes can be found? If we do not think about loopholes ahead of the game, I am afraid that some of these characters will find them.

[Mr Bacon]

That is precisely my concern. In my latter years on the Public Accounts Committee, where I was sent to the salt mines for 16 years, the right hon. Lady—I will call her my right hon. Friend for these purposes—served alongside me. Indeed, we went jointly to Commonwealth workshops overseas.

[Caroline Flint]

We don’t need to go into that.

[Mr Bacon]

Especially not the Blue Lagoon nightclub. The right hon. Lady has an exceptional grasp of nightclubs overseas that host good live music. I will go no further than that.

[Caroline Flint]

For the record, will the hon. Gentleman confirm that I left rather early and that he stayed until the early hours of the morning?

[The Chair]

Order. I could never have believed that a debate on claims management companies could get so interesting. However, I feel that the debate is moving off the core issues. If we could return to them, that would be helpful.

[Mr Bacon]

I agree, Mr Bailey. I will make one further point, to which the right hon. Lady alluded. We cannot assume that the solicitors who continue to engage in the process and are exempt because, in the words of the Minister, they are regulated separately through the Solicitors Regulation Authority, will all be as high-minded as one would hope they would be as solicitors of the Supreme Court. They might not be. My concern is not that we have dual regulation. Like the Minister, I very much hope that we avoid dual regulation. My concern is that we avoid creating opportunities for regulatory arbitrage.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

For my sins, I think I served in Committee for both the Compensation Act 2006 and the Legal Services Act 2007. The point is that claims management companies were brought under regulation in 2006. Solicitors got a hefty improvement, or increase, in their regulation the following year.

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[Mr Bacon]

I understand my right hon. and learned Friend’s point. He speaks with authority as a former Solicitor General. I hope that the Minister can reassure us that any regulation by the Solicitors Regulation Authority or by the Financial Conduct Authority for what is essentially the same activity but carried out by different parties—whether solicitors or others—should mirror and match, so that opportunities for regulatory arbitrage do not emerge.

I endorse the earlier point about a five-year review period, which seems to me to be generous, if not naive. We should keep a close watch on it. With that, I will make no further remarks.

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[John Glen]

The Government believe that claims management companies fuel speculative claims for redress, that consumers struggle to understand the services that they offer, that there is a lack of transparency around how they operate, and that they offer poor value for money.

[Mr Bacon]

That is an answer to a question, but not the question, “Why aren’t they just banned?” I mentioned not the ICO, but the Solicitors Regulation Authority—

[John Glen]

I will come on to that.

[Mr Bacon]

Good, because I would still like to hear an answer to whether, in making the phone call, the person, who plainly has my name and number and who refers in the opening sales pitch of the conversation to an accident that did not take place, is committing a crime now, or will be under the new regulations.

[John Glen]

I will move on sequentially through the points made.

On the question about why the Government are not banning all cold calls, which I think is behind all this, we are determined to tackle CMC cold calling and pensions cold calling, but a balance needs to be struck between ensuring that consumers are adequately protected and providing the right conditions for the legitimate direct marketing industry to operate. I recognise that there is a debate about the extent of the coverage and which sectors should be covered, but we took a view about what should be included at this time so that we could make progress and lay the order. We are actively prepared to consider further sectors that should come under the order.

The hon. Member for Oxford East raised the issue of the interim regime’s funding. The FCA is making a one-off levy from April 2019, and it will continue to collect fees from industry. Having recently closed a fees consultation, it will release a policy statement later this year about the funding mechanism for that transition period.

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[Mr Bacon]

On the Minister’s previous point, when he said that calling would be an offence, he did not say whether it would be a criminal or a civil offence. Could he do so?

[John Glen]

It would be a criminal offence, but I will be happy to clarify the situation exactly in a letter to my hon. Friend subsequently. I think that I have covered the point about the SRA and regulatory arbitrage.

A point was raised about other sectors—this point came through a lot in the passage of the main legislation —by the hon. Member for Garston and Halewood. The Government are actively examining the extent of the coverage. According to my initial statistics, in 2017-18 financial products and services claims made up 79% of CMC turnover and personal injury made up all the remaining turnover. A point that has often come up is about coalminers. If they do not already come under personal injury, we will be able continually to observe, and possibly extend, coverage, based on whether a discrete additional category is needed.

In relation to the next steps on this regulation, if the Committee approves the order today, the regulation will transfer to the FCA on 1 April 2019. The FCA regularly updates its rulebook. It is a robust regulator, which I have frequent dialogue with, and is subject to scrutiny.