Critical Benchmarks (References and Administrators’ Liability) Bill [Lords] — House of Commons, 2021-11-18
Topic: Domestic Commerce
Patrick Bosco McFadden (Labour, Centre-left): No, it does not mean that. It means just over one-tenth of 1%, as there are 100 basis points in 1%. Twelve basis points, or just over a tenth of 1%, might not sound like a huge margin, but when we are talking about contracts worth up to £450 billion, small differences in rates can add up to a lot of money. To illustrate that, let us consider the position of mortgage holders. There are an estimated 200,000 mortgages based on LIBOR. My next question to the Minister is why have those mortgages not moved away from LIBOR in the years since the regulator encouraged contracts to do so? What has left them stuck on LIBOR before the approaching deadline of the end of the year? Will the move to synthetic LIBOR mean that these mortgages will pay rates of 12 basis points higher than if the move had not taken place The FCA published a Q&A on these matters earlier this week, which stated that "there may be a small increase in your mortgage payment in January 2022 compared with your mortgage payment in December 2021." It looks as though a payment rise is on the way for those 200,000 mortgages. That, of course, comes alongside a very live debate in the Monetary Policy Committee about changes to the Bank rate. Does the Minister think that those who hold mortgages based on LIBOR, which, in the buy-to-let sector, means about one in 20 mortgages—that is not an insignificant proportion—realise that that change, which was flagged by the FCA the other day, is coming as a result of the Bill? Have the Treasury or the FCA estimated what the total cost of that might be to UK mortgage holders That brings us to the potential for legal action over the changes envisaged in the Bill. That is the difference between this proposal and what the Minister referred to as changes in the Bank rate, because this change is being brought about through legislative action whereas Bank rate changes are as a result of a decision by the Monetary Policy Committee. The question of legal action arises because if contracting parties have agreed a contract on the basis of one benchmark, might they take legal action if the move to a new benchmark ends up costing them more As I understand it, proposed new article 23FA(6) in clause 1 attempts to close off the possibility of legal action as a result of a contract moving from LIBOR to synthetic LIBOR—the ghost of LIBOR—which, in this example, would close the door on any potential legal action from disgruntled mortgage holders. I would be grateful if the Minister confirmed that that is the correct interpretation of proposed new article 23FA(6). To make this matter even more complex, proposed new article 23FA(7) in clause 1 leaves open the possibility of legal action, as long as the basis for it is not action taken under clause 1 of this Bill—that is, it is not simply the move from LIBOR to another benchmark authorised by the FCA. Again, I would be grateful if the Minister confirmed that my understanding of that is correct In the equivalent American legislation—LIBOR is used all around the world—there is what is known as a safe harbour provision: a mechanism to prevent contracting parties from engaging in legal action as a result of these changes. Will the Minister explain why the Government rejected that option for the UK? What is the difference between the restrictions in proposed new article 23FA(6) in clause 1 and the safe harbour legislation that has been put on the statute book in the United States? Clause 2 also deals with legal action. It insulates from legal action the administrators of benchmarks, who in this case will work on behalf of the FCA, who, in turn, will work on behalf from Parliament, assuming that the Bill is passed. We can see the logic of insulating a public agency from legal action if it is carrying out a duty that stems directly from legislation, but the same clause states that it does not remove liability entirely—for example, over the exercise of discretion or timing of the publication of a benchmark. Will the Minister explain to the House, under clause 2, just how insulated from legal action are the FCA and the administrators that are authorised as a result of the Bill Underlying all that is the question of why we need this legislation at all. Around a year ago, the Minister and I spent many a happy hour debating the Financial Services Act, both on the Floor of the House and in Committee. That Act, as we will both fondly remember, authorised the publication of the alternative benchmarks in the first place, so why, after our spending all those happy hours putting that Act through Parliament, have the Government concluded that they have to return with further legislation? What was it about the Financial Services Act that left the picture incomplete? How do we know that this is the last piece of the jigsaw and that the Treasury will not have to come back a third time to fill in other potential gaps There is also the important issue of the timescale or longevity of these measures. They are being sold by the Government as a transitionary process—a bridge from LIBOR to a world without LIBOR—but, as long as they are in place, we have SONIA, LIBOR’s replacement, operating alongside the ghost of LIBOR in the form of synthetic LIBOR. Is all this just kicking the can down the road or do the Government really have an exit plan for these tough legacy contracts? If they have not been able to move these contracts away from LIBOR now, when, for years, the regulators have been flagging that they should do so, why does the Minister think that they will move away from the ghost of LIBOR It is now almost a decade since the original scandal of LIBOR rate manipulation was uncovered. The Financial Services Act, which gives rise to the powers that we are debating, talked about a transitional period of up to 10 years while this new alternative benchmark might run alongside others that have succeeded LIBOR, so it is conceivable that it could take the best part of 20 years to go from the uncovering of the original scandal to the final move away from LIBOR. What is the likelihood that the Minister, who has been very long-serving in his post, or his successor will have to come back to the House with more legislation on this matter because, even after all that length of time, it is not enough to wind down all the contracts that we are talking about We will not oppose the Bill today because we understand that continuity of contracts is in the public interest, but it is not clear to us how temporary a regime this is. I would be very grateful if the Minister could respond on exactly why this legislation was needed in the first place and how long it may last, and to the other questions that I have put to him this afternoon.