Lord Sharkey debates involving the Cabinet Office during the 2019 Parliament

Wed 14th Apr 2021
Thu 28th Jan 2021
Financial Services Bill
Lords Chamber

2nd reading (Hansard) & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 2nd reading
Wed 30th Dec 2020
European Union (Future Relationship) Bill
Lords Chamber

3rd reading & 2nd reading (Hansard) & Committee negatived (Hansard) & 3rd reading (Hansard) & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords & 2nd reading & Committee negatived

Critical Benchmarks (References and Administrators’ Liability) Bill [HL]

Lord Sharkey Excerpts
Lord Sharkey Portrait Lord Sharkey (LD)
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My Lords, I thank the Minister, the Economic Secretary to the Treasury and their teams for their engagement with us on this short but complex Bill. The input from the Ministers and their teams has unravelled a lot of that complexity and answered a lot of questions. We broadly support the Bill.

The need to replace Libor has been well flagged. As the Minister has noted, the FSB made it clear in 2014 that the continued use of Libor represented a potentially serious systemic risk. It made this judgement in response to cases of what it described as “attempted manipulation” of the rate

“and declining liquidity in key interbank unsecured funding markets.”

The imminent end of Libor has already been well flagged, at least to major players. Ideally, the Ibors would be replaced by risk-free rates, such as SONIA, but it has been obvious for some time that there would be existing, continuing contracts that would be unable to transition easily or in a timely fashion—or, perhaps, at all—to the new RFRs.

As the Minister has explained, the provisions of this Bill enable the FCA to address the problem. It gives powers to the FCA to allow, for some as yet unspecified categories of tough legacy contracts, continued use of synthetic Libor after the demise of the index at the end of this year. The Bill also provides some narrowly drawn legal protections for the administrators of the synthetic Libor.

It is worth noting that the Bill does not include in its scope the synthetic Libor mechanism itself. There has been no parliamentary scrutiny of this mechanism. Consultation is not the same as, or equivalent to, parliamentary scrutiny. It is regrettable that Parliament has not had the opportunity to scrutinise this mechanism and its likely consequences, or any alternative mechanisms, such as the linear transition mechanism mentioned in paragraph 28 of the FCA’s recent technical note. There is a very large gap in our scrutiny system where financial affairs are concerned. The exercise of unscrutinised power by the FCA illustrates the need, once again, for a dedicated financial affairs select committee.

The measures in the Bill are intended to produce an orderly end to the existing regime and to provide a temporary bridge for some exceptional contracts. I have been impressed by the depth and quality of the work that has gone into preparing for transition and for creating the synthetic Libor. I have no issues with the fundamentals of the proposals, but some questions remain, and I would welcome the Minister’s clarifications.

The first question is to do with timing. Why was the end of this year chosen as the cut-off point? What discussions have we had with the US authorities about synchronising our moves away from Libor? Would it not have been better and simpler to act together and give more time for contracts to be transitioned, reducing the number of those moving to a synthetic Libor substitute.

My second question is also to do with timing—in this case, the timing of the formal announcement of who may use synthetic Libor. As things stand, the FCA’s consultation on the matter does not close until the end of this month. Only after that will the FCA issue a formal policy paper setting out the rules for qualifying for the use of the synthetic Libor. That is two months before the general expiry of Libor—not long to prepare if the rules do not allow your contract to qualify. Why has it been left this late?

When I asked the Minister about this in our meeting on Monday, he pointed to the fact that the enabling powers in the Financial Services Act 2021 became active only in April. But we had been preparing this transition for long before that, and the Government cannot seriously have expected their proposals to have been overturned during the passage of that Bill. Surely, it would have been possible to at least have the consultation ready to go as soon as the Act was passed, or even to consult as it was being debated—something the Government have done in the past. I know the FCA has signalled that the rules may allow wide but time-limited scope, but can the Minister reassure us that it does not foresee the disruptive exclusion of significant tough legacy contracts from the synthetic regime?

My next question is about the absence of safe harbour provisions. The narrow immunity on offer to the administrator may not, of course, prevent an outbreak of lawsuits. New York has dealt with this problem more comprehensively than we propose to do by adopting safe harbour provisions.

During the Report stage of the Financial Services Bill 2021, the noble Baroness, Lady Noakes, who I am glad to see in her place, proposed, in Amendment 6, such a safe harbour provision. The Government rejected the amendment, and the Minister explained why, saying:

“Amendment 6 may seem to solve those problems by seeking to give the Treasury powers to make regulations providing for contract continuity and safe harbour through secondary legislation, having had more time to consider these matters. The Government are of the view that, if legislation were needed to address this, it should be in the form of primary legislation. Further legislation providing for safe harbour, as proposed by these amendments, while consistent with the provisions already in the Bill, may be considered by some parties to represent a significant intervention in the contractual rights of parties using critical benchmarks. Primary legislation would therefore be preferable, to provide all parties with an appropriate level of transparency. Crucially, given the volume and value of contracts impacted, making such a provision in secondary legislation would carry a risk of legal challenge to the Government’s exercise of their powers. Any such challenge could bring further uncertainty and disruption, which is precisely what these amendments are seeking to mitigate.”—[Official Report, 24/3/21; col. 923.]


That was not a rebuttal of the notion of safe harbour. It was simply an explanation of why primary legislation would be a better way of achieving it. Well, we are now discussing primary legislation. Did we consider using safe harbour provisions similar to those adopted in New York and, if we did, why we chose not to use them? Did Her Majesty’s Government identify any benefits provided by the safe harbour approach that would not accrue under our scheme?

Next, there is the issue of a possible cliff edge at the end of the year. In the first Peers’ meeting with the Economic Secretary to the Treasury, we were told that there may be a difference of 10 basis points between the old Libor and the first runs of the new synthetic Libor. The very helpful FCA technical note on the end of year impact says in paragraph 23:

“We do not know precisely or with certainty what the difference between synthetic LIBOR on 4 January 2022 and panel bank LIBOR on 31 December 2021 will be.”


Does this not raise the possibility of significant market disturbances and disputes? The mechanisms proposed for generating synthetic Libor outputs have been published by the FCA in its draft notice of 29 September. Can the Minister say whether these mechanisms for determining synthetic Libor can be adjusted to produce a smoother, less step-like transition, if this looks to be desirable? If that cannot be done, can the Minister say what reactions he expects in the markets as a result of a variation of 10 basis points or more at the beginning of the new year. Can he also say what a realistic upper bound of this differential might be?

I have one further question: will there be some contracts which will never be able, or will decline, to transition to RFRs? If there are, what characterises them? Do we have any idea of how many there might be in number and value, and what does the FCA propose to do about them?

I realise that I have asked a lot of questions. I entirely understand if the Minister does not have time to answer them all this evening, but I would be very grateful for a written response before we get to Committee.

Financial Services Bill

Lord Sharkey Excerpts
Moved by
15: After Clause 40, insert the following new Clause—
“Access to Sharia-compliant financial services including student finance
(1) Within six months of the passing of this Act, the Treasury must make provision by regulations to facilitate the availability of Sharia-compliant financial services in the United Kingdom, including availability to students who are eligible for the Government’s student finance provision of Sharia-compliant finance products for paying tuition fees and for student maintenance on equitable terms with students accessing the Government’s student finance provision.(2) Regulations under this section are subject to the negative procedure.”
Lord Sharkey Portrait Lord Sharkey (LD) [V]
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My Lords, Amendment 15 is in my name and those of my noble friends Lady Sheehan and Lady Kramer, and I am grateful for their support.

The amendment addresses the issue of the provision of sharia-compliant student finance, of which there is none. Because Islam forbids interest-bearing loans, that prohibition is a barrier to our Muslim students going on to attend our universities. We debated this extensively in Grand Committee so I will not rehearse the arguments in detail, but I will remind the House of the timescale involved.

The problem became clear in 2012 when tuition fees were significantly increased, and it became worse when maintenance grants were replaced by maintenance loans. In 2014, the Government published their report on the consultation that they had undertaken. That consultation had attracted 20,000 respondents, a record at the time. The Government acknowledged that the lack of an alternative financial product to conventional student loans was a matter of major concern to many Muslims. The report also identified a solution: a takaful, a well-known and frequently used non-interest-bearing Muslim financial product. The Government explicitly supported the introduction of such a product.

That was seven years ago. There is still no sharia-compliant student finance available, nor have the Government ever offered a detailed reason for this long delay or indicated when it might come to an end. As I mentioned in Grand Committee, I have repeatedly asked the Government the reasons for this lack of action. I have never had a substantive response. There was no substantive response from the Minister in Grand Committee a month ago and no explanation for the delay nor any indication of a date by which the takaful would be available. There was absolutely no sense of urgency. It was as though the plight of these Muslim students was not really important or worth taking seriously.

I made the point that I had written to the Minister on 4 January this year asking for a report on progress and making some suggestions. There had been no response by then, and there was no response until 5.15 pm yesterday evening, 14 weeks after my email. The Minister of State for Universities apologised for the three-month delay without offering an excuse or an explanation and her reply was completely formulaic, containing no substantive answers. It contained no indication of when sharia-compliant student finance would be available. I was struck by the casual contempt for our Muslim community that this response so clearly signalled—an absurdly unfriendly and unfeeling response with no attempt to reassure or comfort the Muslim community. In fact, if you look at the Government’s record on all this, it is very hard to see it as anything other than discrimination against our Muslim community—not just discrimination but a failure to engage and to explain.

Our amendment would oblige the Government at last to fulfil the promise they made to the Muslim community in 2013. It would oblige the Secretary of State to facilitate the availability of Sharia-compliant financial services for students who are eligible for conventional student finance on equitable terms with students accessing these conventional products, and to do so within six months of the passing of this Act so that the next Muslim student cohort did not have to face a conflict between faith and education.

I very much hope that when the Minister responds he will be able to do better than Minister Donelan. I hope he will be able to tell the House when the Government will introduce the sharia-compliant student financial product. I hope he will set a date that will allow the next cohort of devout young Muslims to go on to university. If the Minister cannot do that—if he cannot say when he will fulfil his Government’s 8 year-old promise to our Muslim community—I will seek to test the opinion of the House. I beg to move.

Baroness Fookes Portrait The Deputy Speaker (Baroness Fookes) (Con)
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My Lords, the noble Lord, Lord Stevenson of Balmacara, has withdrawn so I call the noble Baroness, Lady Sheehan.

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Lord True Portrait Lord True (Con)
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My Lords, I am grateful to all those who have spoken in this short debate. As has been said, Amendment 15 seeks to require the Government to make regulations to facilitate the availability of sharia-compliant financial services in the UK, including a sharia-compliant student finance product, within six months of the passing of the Bill.

Institutions across the United Kingdom have been providing sharia-compliant financial services for nearly 40 years, and the United Kingdom is the leading western centre for Islamic finance. I do not believe that anyone would dispute that the United Kingdom is a world leader in this area. This Government continue to promote the growth of this sector, supporting domestic financial inclusion and our connections with key markets abroad. With respect, I think that, in this context, the charges from the noble Lord, Lord Sharkey, of “casual contempt” for the Muslim community and of discrimination were a little misplaced.

Student finance is not regulated by the FCA. I did, however, listen very carefully and respectfully to the noble Baroness, Lady Sheehan, who spoke from a position of personal commitment. I can assure the noble Baroness and the noble Lords that the Government wish to extend the reach of the student finance system so that everyone with the ability to benefit from higher education can do so. That is why we have legislated to make a system of alternative payments that is compatible with Islamic finance principles possible.

As I said in my remarks in Committee, a range of complex policy, legal and systemic issues need to be resolved before a Sharia-compatible product can be launched. Despite these challenges, the Department for Education has been working with specialist advisers to establish an appropriate product specification that meets the requirements of Islamic finance.

I also heard the concerns raised in Committee, and by the noble Lord, Lord Sharkey, again today, that it is not clear enough when the Government will take the next step. Since Committee, when I was concerned to hear those criticisms, I have discussed the matter with the relevant Minister in the Department for Education. Based on this, I can report that this matter is being considered as part of the wider review of post-18 education and funding.

I hope, therefore, that noble Lords will appreciate that it is not the right time to act until the wider strategy on post-18 education has been settled. I appreciate that some noble Lords, including those who have spoken, would like to see faster progress here—the question of when was put. I am able to reassure the House that there will be an update on this work as part of the review of post-18 education and funding when it is published, which will be at the next multi-year spending review. The Government will conduct the next spending review later this year. Further details on the nature of that spending review will be set out in due course.

On that basis, and with the commitment to progress as part of the review, I hope that the noble Lord will accept the assurance that the Government are committed to making progress on this very important issue and feel able to withdraw his amendment.

Lord Sharkey Portrait Lord Sharkey (LD) [V]
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I thank all noble Lords who have spoken in this brief debate and I thank the Minister for his response. I point out, however, that we legislated to take powers to do this four years ago. Nothing has happened since. I remind the Minister, too, that the Help to Buy system was up and running within five or six months—and that was Islamic finance.

I also note that references to the post-18 education review seem to me—and have always seemed to me, as I said in my letter to the Minister, to which I did not get a response—completely irrelevant. We want students, Muslim or not, to be treated equally. If there is a change, after the post-18 Augar review, to the way that student finance happens, it should apply to Muslim and non-Muslim students equally: there should be no need to wait to establish the principle that Muslim and non-Muslim students should have equal access to finance. There is no need to wait.

I note, finally, that the promise of an update is not a promise to do anything at all, and does not even come close to setting a date by which these cohorts of Muslim students can gain access to finance and go on to university. In the Minister’s response there was no promise and no clarity, just talk of commitment. But after 13 years of this promise, talk of commitment is not enough, and I wish to test the opinion of the House.

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Lord Davies of Brixton Portrait Lord Davies of Brixton (Lab) [V]
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My Lords, these amendments are all on the same broad theme. As the previous speaker mentioned, there is a broad consensus that something needs to be done to provide a formal role for parliamentary scrutiny in the work of financial regulators. I do not want to detain the House, but I will take the opportunity to emphasise points that I have made at earlier stages. The basic question, to me, is: who regulates the regulators? The question is why we should trust the regulators; the answer is openness and engagement. Clearly, we have a particular interest here but can, I believe, contribute massively to the work of the regulator.

For us to raise these issues is not to question the expertise or good will of the people who serve on the regulators’ boards or work in their offices. It is simply wrong to assume that, once appointed, they can be left to get on with the job. As is apparent in the debate, there is clear consensus about the need for scrutiny. That is not contested. Obviously, there are clear reasons why they would benefit—the expertise of this House is a factor—but my particular concern is to establish systems that minimise the risk of regulatory capture. This is the experience, widely found, whereby regulators tend to become dominated by the interests they regulate and not by public interest.

I emphasise that this is not about corruption; it is more, in my mind, a social and cultural problem. I do not think the concept, in theory, is contested. The answer is to strengthen and develop the widest possible involvement of all sorts of bodies in the work of the regulators. Clearly, Parliament has a particular role and these amendments explore possible approaches to it. I hope the Minister can say a bit more than what was in the letter. Does the Minister consider regulatory capture to be something that occurs, and where the systems that are established address it and minimise the risk?

Lord Sharkey Portrait Lord Sharkey (LD) [V]
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My Lords, I will speak to Amendments 18, 19 and 20 in this group. I support them all but prefer the more prescriptive Amendment 20. In these matters, it seems to me that ambiguity is not our friend. Wide latitude in interpretation can easily frustrate intent. As my noble friend Lady Bowles has so forcefully explained, that intent here is to ensure that Parliament has some effective scrutiny role in the activities and rule-making of the PRA and the FCA, by requiring that the information Parliament may need to do this is properly supplied. At present, this is absent or insufficient or likely to be post hoc and ineffective.

This is a specific example of a much larger problem in the relations between the Executive and the legislature. There is an increasing tendency for the Executive to bypass, or try to bypass, Parliament or to reduce scrutiny to formulaic rituals with no real influence on outcomes, such as our SI procedures. The seriousness of this tendency has been commented on fairly widely and frequently in the past few years.

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Moved by
21: After Clause 40, insert the following new Clause—
“Interest rates for mortgage prisoners
(1) The Financial Services and Markets Act 2000 is amended as follows.(2) After section 137FD insert—“137FE FCA general rules: interest rate for mortgage prisoners(1) The FCA must make general rules requiring authorised persons involved in regulated mortgage lending and regulated mortgage administration to introduce a cap on the Standard Variable Rates charged to mortgage prisoners and to ensure that mortgage prisoners can access new fixed interest rate deals at an interest rate equal to or lower than an interest rate specified by the FCA.(2) In subsection (1)— “mortgage prisoner” means a consumer who cannot switch to a different lender because of their characteristics and has a regulated mortgage contract with one of the following types of firms—(a) inactive lenders, or firms authorised for mortgage lending that are no longer lending; and(b) unregulated entities, or firms not authorised for mortgage lending and which contract with a regulated firm to undertake the regulated activity of mortgage administration;“new fixed interest rate deals” means the ability for the consumer to fix the rate of interest payable on a regulated mortgage contract for periods of 2 years and 5 years;“Standard Variable Rate” means the reversion rate which is a variable rate of interest charged under the regulated mortgage contract after the end of any initial introductory deal.(3) The general rules made under subsection (1) must set the level of the cap on the Standard Variable Rate at a level no more than 2 percentage points above the Bank of England base rate.(4) The general rules made under subsection (1) should make new fixed interest rate deals available to mortgage prisoners who meet the following criteria—(a) are up to date with payments or have aggregate arrears of no more than one monthly payment in the past 12 months,(b) have a remaining term of 2 years or more,(c) have an outstanding loan amount of at least £10,000, and(d) have not received consent to let the property.(5) When specifying the interest rates for new fixed interest rate deals required by subsection (1) the FCA should specify rates for a range of Loan-To-Valuation (LTV) ratios taking into account the average 2-year and 5-year fixed rates available to existing customers of active lenders through product transfers.(6) The FCA must ensure any rules that it is required to make as a result of subsection (1) are made not later than 31 July 2021.””Member’s explanatory statement
This new Clause would require the FCA to introduce a cap on the Standard Variable Rates charged to mortgage prisoners and, under specified circumstances, ensure their access to fixed rate interest deals.
Lord Sharkey Portrait Lord Sharkey (LD) [V]
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My Lords, Amendments 21 and 37B are in my name and those of the noble Lord, Lord Stevenson of Balmacara, and my noble friend Lady Kramer, and I am very grateful for their support. I declare an interest as co-chair of the APPG on Mortgage Prisoners. The plight of these mortgage prisoners was discussed extensively—

Baroness Penn Portrait Baroness Penn (Con)
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My Lords, due to the technical issues that the noble Lord, Lord Sharkey, is having, I suggest that we adjourn for five minutes until a convenient moment after 8.28 pm.

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Lord Sharkey Portrait Lord Sharkey (LD) [V]
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I was saying that we have made no progress in Committee on the mortgage prisoners problem, and the situation seems frozen. On the one hand, there are 250,000 mortgage prisoners, subject to real, undeserved and unwarranted financial pressure, which is likely to increase when Covid concessions lapse or are withdrawn. On the other hand, the Government and the FCA seem intent on minimizing the problem and are engaged in what seem to me to be futile and unproductive arguments with the mortgage prisoners over exact figures.

The alleged 0.4% premium paid by mortgage prisoners above the average SVR illustrates the point. We do not only believe the figure to be wrong for the reasons that I set out in Committee, which were not refuted by government; we also believe that such discussions are very largely a distraction and lead nowhere. SVRs are not the norm in mortgage lending but are the literally inescapable norm for most mortgage prisoners. Only around 10% of customers with active lenders pay these high SVRs, and more than 75% of those who do switch to new and much lower fixed rate deals within six months of moving to an SVR. Mortgage prisoners have been stuck with usurious SVRs for over 10 years.

Solving the mortgage prisoner problem certainly requires reducing this usurious SVR, but it also requires giving the mortgage prisoners access to normal fixed-rate mortgage deals. I regret to say that there has been no real progress in either of these areas. In all the discussions about the problem, I have never heard the Government admit responsibility for causing it in the first place. I have heard repeated assertions that the Government are trying to find a solution. I have heard John Glen, the Economic Secretary to the Treasury, say that he remains open to considering practical solutions, and I know that the Chancellor told Martin Lewis that he would keep working on the issue and was committed to finding a workable solution.

However, I have heard no admission from the Government that they caused the problem in the first place—and no admission of moral responsibility for devising a proper, just and timely solution. Certainly, nothing so far proposed or actioned has delivered effective relief to the 250,000 prisoners. I again make the point that these people are not the authors of their own misfortunes: the Government are.

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Baroness Penn Portrait Baroness Penn (Con)
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My Lords, once more we will need a brief adjournment due to technical issues. I beg to move that we adjourn until 8.30 pm. Or do we have the noble Lord?

Baroness Penn Portrait Baroness Penn (Con)
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Ignore me. Please go on, Lord Sharkey.

Lord Sharkey Portrait Lord Sharkey (LD) [V]
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Thank you. I think I was talking about Amendment 21 being prescriptive; it sets out exactly what must be done and by whom.

It has two sections. The first reduces the currently usurious SVR paid by mortgage prisoners by capping it at two percentage points above the bank rate. This is what, in the end, Martin Lewis thought was necessary. He said:

“Yet in lieu of anything else, I believe for those on closed-book mortgages it is a good stopgap while other detailed solutions are worked up, and I’m very happy the All-Party Parliamentary Group on mortgage prisoners is pushing it.”


He also said:

“This would provide immediate emergency relief to those most at risk of financial ruin … No one should underestimate the threat to wellbeing and even lives if this doesn’t happen, and happen soon.”


This is all necessary, but not sufficient. SVRs are not the normal basis for mortgages, as I have already mentioned. What is needed is access to fixed-rate mortgages, as provided by normal active lenders to 90% of mortgagees. The second part of Amendment 21 sets out how that is to be done.

This is, of course, all very prescriptive, and we understand the Government’s reluctance to write such details into the Bill. That is why we have also tabled Amendment 37B. This amendment takes a simpler and non-prescriptive approach. It places the obligation to fix the problem squarely on those who caused it—the Treasury. It is explicitly fuelled by the overwhelming and undeniable moral responsibility that the Treasury has for the terrible situation in which mortgage prisoners have long found themselves. The amendment sets out what must be achieved to relieve mortgage prisoners, by whom and by when, but it does not say how. It leaves that entirely for the Government to work out.

Amendments 21 and 37B give the Government a clear choice. Amendment 21 prescribes a detailed method of solution; Amendment 37B says what the Government must achieve but leaves the mechanism to them. The Government caused the mortgage prisoner problem, which has caused and continues to cause much suffering to many families. I hope that the Government will recognise their moral responsibility and adopt Amendment 21 or Amendment 37B.

This has all gone on much too long, and it has caused, and continues to cause, far too much misery and desperation. If the Minister is not able to adopt either amendment, or give equivalent assurances, I will test the opinion of the House. I beg to move Amendment 21.

Lord Stevenson of Balmacara Portrait Lord Stevenson of Balmacara (Lab) [V]
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My Lords, I speak in support of the amendments just proposed by the noble Lord, Lord Sharkey, which I have signed. One’s heart goes out to him—it must be very difficult to make a speech of this complexity and passion with all these breaks. Despite the technical difficulties, however, he has made the case for action very well, and as co-chair of the all-party parliamentary group on these issues he is very well briefed on the situation faced by these fellow citizens of ours, and the extra costs that they face. It is indeed a very difficult situation, and one hears a lot of despair when one talks to these people.

I am sure that when he responds the Minister will, as the noble Lord, Lord Sharkey, hinted, dwell at length on the numbers of this group in various categories. There is of course a debate on how the prisoners can be split up—I think that the only thing that we agree on is that the total is probably about 250,000. As with the noble Lord, Lord Sharkey, however, my argument is not about the numbers. Simply put, it is clear that a significant number of people, through no fault of their own, cannot exercise the choices about their mortgage that the rest of us can. While some would argue that this is the direct fault of the Government, I think that someone needs to take responsibility for providing a fair outcome for those who are in a position to take advantage of it.

As the noble Lord, Lord Sharkey, says, this group of amendments offers two options: one that focuses on what the FCA might do within the parameters set by the Bill and another—37B, a late amendment that we drafted for Report—that suggests that the Treasury might wish to take powers to act in the way that is most suitable for it. Both have merits, in their ways. As the noble Lord, Lord Sharkey, said, they have detailed implications that need to be followed through carefully. My preference would be for Amendment 37B, for the very good reasons set out by the noble Lord, Lord Sharkey. If, as he said he might, the noble Lord decides to test the opinion of the House, we will support him.

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Lord Sharkey Portrait Lord Sharkey (LD) [V]
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I thank everybody who has taken part in this extensive debate. I particularly thank the noble Baroness, Lady Bryan, for her powerful contribution and her clear understanding of the problems that mortgage prisoners suffer, and have suffered for so very long.

I was sorry to hear the Minister again talk about the 0.4 percentage points and assert that it was a meaningful figure. At this point in the debate and at this time of the night, all I can do is say that we disagree fundamentally with his analysis. We think it is completely wrong and we think we have the evidence to show it is.

In some ways, more important than all that is that the tenor of the debate, or the tenor of the contributions made by the Minister and the noble Baroness, Lady Noakes, was notable for the fact that they do not assume any kind of responsibility on the part of the Government for the situation these people find themselves in. There is no hint of moral responsibility and no sense that, really, it is up to government to find the solution. As it happens, the noble Baroness, Lady Noakes, finished her speech, I think, by recommending that we leave all this to the FCA and the Treasury to find a solution. The fact is that we have left it to the Treasury and the FCA to find a solution, and they have not found a solution at all.

Nothing in the Minister’s speech suggests that a solution is on the horizon. He talked about the loosening of the affordability checks, but I repeat what I said in my speech: so far, the loosening of those affordability checks has helped 40 households. He had the opportunity to try to correct that figure; he did not take it. It is 40 households so far. This is not the solution, and nothing else is proposed by the FCA or the Treasury to solve the problem that still exists.

I conclude by saying that it is the Government who have caused this problem; it is the Treasury. There is a moral responsibility. People’s lives are ruined, have been ruined and will be ruined if this situation continues. It may be that the proposals we have put forward are not perfect—although I certainly dispute that they amount to significant market distortion, if any—but, nevertheless, they would bring relief to these people. There are a lot of them, they are in bad shape and their lives are difficult, and it is no fault of their own. I would like to test the opinion of the House.

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Moved by
25: After Clause 40, after “business,” insert “consumer protection,”
Lord Sharkey Portrait Lord Sharkey (LD) [V]
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I will be brief. Amendment 24 continues the themes underlying Amendments 18, 19 and 20, proposed by my noble friend Lady Bowles. The amendment concerns the provision of vital information, as did those amendments. The noble Baroness, Lady Neville-Rolfe, has explained the purpose of her amendment with her usual force and clarity, and I agree with every word she said.

The assessment of impact is essential to proper scrutiny, but it seems to me that there is an omission in the noble Baroness’s amendment. Amendment 24 requires the Treasury to

“publish an annual report on the impact of measures taken by the FCA, PRA and the Government … particularly on small business, innovation and competitiveness.”

The amendment does not include consumer protection in this list. My Amendment 25 simply inserts this alongside the other particularised areas.

Consumer protection is already an objective of the FCA. The Financial Services Act 2012 inserted new Section 1C, which sets out that the “consumer protection objective is”, rather unsurprisingly,

“securing an appropriate degree of protection for consumers.”

The same Act also imposes an obligation on the FCA to promote competitiveness, one of the specified categories in Amendment 24 of the noble Baroness, Lady Neville-Rolfe. This obligation is qualified and, in some ways, secondary to the consumer protection objective. The Act says that the promoting competitiveness requirement has to be “compatible with the advancement” of consumer protection. Both are important and seem to me to merit the same standing in Amendment 24.

I recognise that the PRA has no such direct obligation to consumer protection. However, its general objective is set out in Section 2B inserted by the 2012 Act, and it clearly implies an element of consumer protection. The Government themselves have a clear interest and involvement in consumer protection directly, if they consider it necessary.

Consumers need protection, perhaps now more than ever: scams multiply, malfeasance grows and people lose their pensions and life savings. The resourcefulness and inventiveness of the dishonest seems to know no bounds. Just as it is important to know the impact of measures taken to regulate financial services in general, and on small businesses, innovation and competitiveness in particular, so it is important to know the impact of measures taken to protect consumers. There are already many of these measures and there will be more as new ways of fleecing consumers are devised. We need to know what we are doing in combating them all—what works and what does not. Amendment 25 would enable this in the way proposed by Amendment 24. I beg to move.

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All the topics raised in these amendments are ones that the Treasury and the regulators consider every single day when making financial services policy. I can also assure the House that the Government are committed to ensuring that the sector has a positive impact, not only for consumers but for the economy as a whole. Given all this, I ask that these amendments be withdrawn.
Lord Sharkey Portrait Lord Sharkey (LD) [V]
- Hansard - -

My Lords, I find myself agreeing with both the noble Baroness, Lady Neville-Rolfe, and the noble Earl, Lord Howe, and so I have nothing more to say except to beg leave to withdraw Amendment 25.

Amendment 25 (to Amendment 24) withdrawn.

Financial Services Bill

Lord Sharkey Excerpts
2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 28th January 2021

(3 years, 2 months ago)

Lords Chamber
Read Full debate Financial Services Bill 2019-21 View all Financial Services Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 13 January 2021 - (13 Jan 2021)
Lord Sharkey Portrait Lord Sharkey (LD) [V]
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My Lords, I shall focus my remarks chiefly on Clauses 3 and 5, and on Schedule 3. Before I do so, I should congratulate the Government on the speed with which they are addressing the matter of Gibraltar’s financial services industry. The Bill has 183 pages, and over 50 of them are devoted to Gibraltar.

With two important and welcome exceptions—debt respite and Help to Save—the rest of the Bill deals with technical and complex matters. In doing so, it raises profound questions about parliamentary scrutiny and the desirability of embodying an international competitive element in our financial services regimes.

Clauses 3 and 5 contain provisions to allow the PRA and the FCA effectively to make law by making rules without any parliamentary scrutiny. Clause 3 lists the provisions of the CRR that the Treasury may revoke by regulation. The list runs to 42 items, all of them significant. Clause 3(4) makes these revocations conditional on their being or having been adequately replaced by general rules made or to be made by the PRA, or to be replaced by nothing at all if the Treasury thinks that is okay. As things stand, it looks as though the Treasury is the sole judge of what may or may not be an adequate replacement. In any event, Parliament is bypassed. There is no provision for parliamentary scrutiny of these new rules, which have the force of law, but these rules can and will reshape critically important parts of our financial services regimes. Clause 5 takes the same lawmaking-by-rule approach to the regulation of credit institutions. Again, there will be no parliamentary scrutiny of these rules.

The Government have acknowledged the need for a discussion about the role of parliamentary scrutiny in the post-Brexit repatriation of powers previously exercised by the EU directly to our regulators without stopping en route at our Parliament. In March of last year, the EU Sub-Committee on financial services, of which I was chair, wrote to the Government about the issue, as the Minister has mentioned. In his response, the Economic Secretary to the Treasury noted that we had highlighted that

“delegating more powers to the financial regulators will require enhanced parliamentary oversight of their activities.”

There is now an open Treasury consultation on the future of financial services. The call for evidence in this consultation contains 17 key questions. Three of these relate to the issue of parliamentary scrutiny. They are: through what legislative mechanism should new financial regulations be made?; what role does Parliament have to play in influencing new financial services regulations?; how should new UK financial regulations be scrutinised? The consultation closes on 18 February. In practice, it means that the Bill will have left this House by the time the consultation results are available to us. In any case, HMT has indicated that the results will inform yet another consultation, later in 2021, in which the Government will set out a package of proposals. By that time, of course, the provisions in this Bill will have become law and there will no longer be an opportunity for real parliamentary scrutiny of the legally binding rules they will generate.

The Minister emphasised in his closing remarks on Report in the Commons that this Bill is

“just one part of the wider long-term strategy for financial services.”—[Official Report, Commons, 13/1/2021; col. 398.]

Given the narrow and technical scope of the current contents of this Bill, I was glad to hear that, and take it to mean that a second and more comprehensive financial services Bill is in prospect. But the fact is that, by the time we get round to that, the “making laws by rulemaking” procedure will have passed into law. Parliamentary scrutiny of the new rules as laws will have been avoided. We will want to return at later stages to the question of what we can do about this bypassing of Parliament in such critical areas.

I turn briefly to Schedule 3 and the insertion of new Part 9D into the already overloaded and much-amended FSMA 2000, and in particular to new subsection 1(b) of Clause 144C. This seemingly innocuous subsection could bring about radical change in our regulatory regimes. It introduces as a “have regard” in the PRA’s making of CRR rules the notion of international competitiveness for our regimes. This is a highly contested area and the idea has been opposed by many leading figures, including from the party opposite, as being likely to promote conflicts of interest. We will want to examine this in detail at later stages.

During the passage of the Bill through the Commons, there was some discussion of more directly consumer-facing measures. These included imposing a duty of care on the financial services industry and providing significantly more relief for those mortgage prisoners trapped by the Treasury’s dereliction and carelessness in selling on mortgage books to unregulated entities. We will want to return to these issues later in our consideration of the Bill.

We will also want to discuss extending the FCA’s perimeter to take in more of the SME lending market. This is particularly urgent given the terrible position that many SMEs find themselves in as a result of Brexit and Covid-19. We will also want to debate the issue of preserving access to cash in the Covid and post-Covid world. I look forward to the Minister’s reply and to our future debates.

European Union (Future Relationship) Bill

Lord Sharkey Excerpts
3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020

(3 years, 2 months ago)

Lords Chamber
Read Full debate European Union (Future Relationship) Act 2020 View all European Union (Future Relationship) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 30 December 2020 - (30 Dec 2020)
Lord Sharkey Portrait Lord Sharkey (LD) [V]
- Hansard - -

My Lords, this is a bad deal, a bad Bill and a bad way of dealing with Parliament. The deal and the Bill do not address the major component of our national commercial life, our service industries, as was pointed out by the noble Baroness, Lady Donaghy. The Bill is hastily put together and contains at least one howler about IT systems, as was pointed out by the Times. There will be others buried in the detail—detail we are not allowed to scrutinise.

The Bill also contains the mother of all Henry VIII powers in Clause 29. This gives Ministers carte blanche to amend laws without going anywhere near Parliament. The time given to parliamentary scrutiny of this Bill is effectively zero. We could easily have extended the transition period to allow proper consideration. Choosing not to do this was a deliberate political decision to bypass Parliament.

The Hansard Society, of which I am a former chair, published a note on the Bill this morning. It describes Parliament’s role in scrutinising the Bill and the TCA as a “farce”. It concludes that:

“Parliament’s role around the end of the Brexit transition and conclusion of the EU future relationship treaty is a constitutional failure to properly scrutinise the executive and the law.”


This matters not just because the devil is in the detail, as always; it matters because this bypassing of Parliament is directly contrary to the professed aim of Brexit to take back control of our laws—for laws to be determined by the UK Parliament.

As things stand, the Bill will receive Royal Assent today without any effective scrutiny at all. This is an exercise in executive power and not parliamentary lawmaking. It is hard to see who really gains from the Bill and agreement, apart from a faction within the Conservative Party. Certainly, the country as a whole will not gain; the economy will shrink. Our fishing industry feels betrayed. Our car makers will struggle, as cumulation becomes more difficult to work around. And our vital services industries, the engines of our prosperity, will lose out.

The Government have pointed to the tariff-free and quota-free access to EU markets as a sign of success, but that takes no account of the huge additional burden of red tape that will fall upon our businesses. Anyway, all this access is conditional. If the EU does not like our regulatory regimes, it can impose tariffs as it chooses. If sovereignty is to have any real meaning, it must mean parliamentary sovereignty and not executive fiat. If it is to mean that, Parliament must reassert its right and duty to scrutinise and amend. We need to decide how we do that.