Financial Services Bill — House of Lords, 2021-01-28
Topic: Domestic Commerce
Andrew Sharpe (Conservative, Centre-right): My Lords, I draw attention to my entries in the register of interests. I join in the congratulations to my noble friend Lord Hammond on an excellent maiden speech. I will focus on his remarks about the regulator’s promotion of financial industry competitiveness, a theme expanded on most eloquently by my noble friends Lord Bridges and Lord Hunt. In order to achieve that, the regulatory framework must be robust, but the regulator must be nimble, agile, appropriately resourced and with carefully defined powers. It also needs to be accountable, as many noble Lords have noted. I look forward to the results of the current consultation into the wider framework for regulation and note that it is due to close by the end of next month Much of the current Bill before us is welcome and I support it, but I wish to raise some questions ahead of the Financial Conduct Authority having yet more powers delegated to it. I note that in the debate in the other place, which has been referred to a number of times, this theme was explored with reference to parliamentary scrutiny. That is a valid concern, but my concern is also to do with the FCA’s enormous existing remit and whether that is now simply too big to manage. I will cite a couple of examples of where I think that perhaps this is the case. First is MiFID II, the market in financial instruments directive. Part of this dealt with the unbundling of commissions paid for stock market research. The FCA was the architect of these rules, but the French regulator recently noted that they have "profoundly changed" the research landscape and that this has had a negative effect on the quality of research available on smaller companies and therefore, by implication, the capital allocated to those companies. In the UK, the independent and not-for-profit CFA Institute has made similar points. The FCA has said that there is no evidence of this, but both the French and Germans have now changed the rules to exempt smaller companies from this part of the directive. There is no equivalence there, and I cannot recall a previous incidence of a French regulator changing rules to allow less regulation than our own Another example is that, last week, two opposition Members of the other House published a letter criticising the FCA’s customer protection skills with regards to the handling of advice given to British Steel pension holders. They alleged that the FCA lacks "sufficient vision" to tackle issues facing consumers and urge the regulator to use the full strength of its powers of enforcement to tackle rogue advisers. I am not particularly familiar with this case, if I am honest, but a swift Google would suggest that they have a point However, on the subject of enforcement, the most famous insider trading case launched by the FCA took eight years, cost in the order of £20 million, involved at least 40 investigators who pored over vast amounts of data and in the end secured two of five convictions, confiscation orders of £1.7 million and the longest custodial sentence that was handed down was four and a half years. It has been argued that regulators are discouraged from starting this type of investigation, because of the difficulty of winning, but the FCA has publicly regarded this as a success. It was a partial success perhaps, but at what cost, particularly to those acquitted individuals whose lives were on hold for eight years Other investigations that the FCA has conducted into funds management firms suggest that poor product knowledge, excessively high staff turnover and poor handover continuity make relatively straightforward investigations, which are launched perfectly legitimately, run for much longer than they need to. This has a deleterious impact on staff morale and massively increases compliance costs. Large firms can bear those costs with relative ease, but what of the SMEs that the sector relies on for competition and innovation I am sure that the FCA will argue that I have cherry picked a few instances which show them in a less than optimal light—perhaps I have. But I could have drawn on a number of other examples, for example, the Gloster report published in December referred to by the noble Lord, Lord Sikka, or the Parker report, also published in December. They were much more complex cases, so I have not used them here. They did not require much effort to find. These examples illustrate only a small part of the FCA’s incredibly wide remit, but the skills and knowledge required to investigate and appropriately regulate each of these examples is discrete and detailed. So it is hard to escape the conclusion that the FCA is trying to do too much with too little. Yet we are debating delegating additional powers—for example, handing over the power to manage the orderly wind-down of Libor, which, as the briefing documents note, is used to benchmark an eye-watering $400 trillion-worth of contracts. There is no room here at all for mistakes of any kind, although I should note that the FCA is consulting the industry widely on this Many in the City believe that the FCA has the appropriate powers but does not use them often enough. On 21 December last year, the Times noted: "The Financial Conduct Authority has fined only ten wrongdoers this year, its lowest scalp rating since its creation in 2013. It has meted out only £183.6 million in penalties, its third lowest total fines tally." I am quite sure that Covid will be cited as one reason for this, but the police carried on policing. Can that be a valid excuse, or is this because of the vast complexity of its role? Here, on complexity, I cite a June 2019 IEA report that claimed: "The amount of data being collected under MiFID II is now beyond the ability of the UK regulators to assess in any meaningful way." I do not believe that the nuts and bolts of regulation, including enforcement, should be subject to political interference, but I think we should ask whether the FCA’s current remit is too broad. Is there a case to be made for smaller and more specialist regulators, particularly as financial markets become ever more complex? I am also concerned that regulated firms lack effective rights of appeal against the FCA’s decisions. As the Government themselves have noted in the past, such rights—and I quote from a BEIS consultation—are "central to ensuring robust decision-making and holding regulators to account in the interests of justice" We have seen the results of failed or inadequate regulation before and they are recent and raw, as the noble Lord, Lord Davies of Brixton, noted. Post Brexit we have an opportunity to design and implement a system that does all the things the Government want, all the things that the industry needs, and all the things that the country deserves. We should do it properly and urgently, not least because we know where the blame for failure will land.