Banking StandardsWritten evidence from Lloyds Banking Group
Lloyds Banking Group (“Lloyds”) welcomes the opportunity to contribute to the Parliamentary Commission on Banking Standards’ call for evidence into the Government’s draft Financial Services (Banking Reform) Bill.
Executive summary
Recommendations of the High-level Expert Group (HLEG) on banking reform (the Liikanen Report) are worthy of careful consideration—given the similarity of the objectives between the Liikanen Report and the Independent Commission on Banking (ICB), it is worth assessing whether it is possible to harmonise some of the recommendations, for example around “de minimis” exemptions and risk management products
Simple risk management products should be allowed to be provided alongside corporate lending relationships—simple risk management products, such as interest rate and foreign exchange hedges, are needed by corporate customers of all sizes and reduce credit risk from those customers to the RFB—thus allowing banks to lend more and support the economy. We would suggest strict limits on the simple derivative products that can be sold by the RFB; allow them to be sold to any Mid-Cap and larger Corporate inside the RFB; with firm requirements to mitigate market risk; and with very strong conduct regulation safeguards over their sale to smaller and less sophisticated business customers.
Flexibility in governance arrangements is appropriate for predominantly ring-fenced banks—we welcome the recognition in the White Paper of the case for greater flexibility where the “overwhelming majority” of a group’s banking activity would fall within the ring fence. It makes sense for the board that oversees the overwhelming majority of the bank’s activity being the board that is directly accountable to the group’s shareholders.
Harmonisation with the Recovery and Resolution Directive (RRD) on loss absorbency proposals is important to ensure the continuity and stability of banks’ funding—the RRD and the Government’s proposals take different approaches to limiting the effect of bail-in on the cost of wholesale funding, while depositor preference as suggested in the Government’s proposals would appear to be incompatible with the current RRD. Consistency is necessary to ensure that banks can access necessary funding sources.
A long transition period is required—given the complexity of the changes required to implement ring-fencing, setting an implementation date of 2019 as suggested in the ICB’s Final Report is reasonable. There may be circumstances (such as third party consents which will not be granted and overseas Regulatory approvals which are subject to delay) which may delay implementation beyond 2019 for reasons outside of a bank’s control. We would welcome confirmation that transitional/grandfathering provisions will be in place to accommodate such circumstances.
Objectives and general approach
1. Does the draft Bill successfully give effect to the objectives set out in paragraph 1.3 of Sound banking: delivering reform and is it the most efficient and effective means of delivering those objectives?
The draft bill provides a useful and flexible framework for implementation of the objectives set out in paragraph 1.3 of Sound banking. However, in terms of whether the draft Bill successfully gives effect to those objectives (and the underlying principles of the ICB report, as further developed in the June White Paper) it would be necessary to see the draft (or intended content) of the secondary legislation and Regulatory rules before a full assessment could be made.
A combination of ring fencing, enhanced resilience of the capital structure and credible resolution schemes would reduce both the probability and impact of bank failures and in particular help to safeguard the key economic functions performed by UK retail and commercial banks. These measures could also reduce the risk of contagion from difficulties in investment banking to UK retail banking and minimise the distortion of incentives at both retail and investment banks.
The ICB’s recommendations, which would be implemented through the draft Bill and other European legislation such as the Capital Requirements Directive (CRD IV) and the RRD, deliver these objectives. As noted in question 2 below, however, other options would also give effect to the stated objectives.
2. Do any of the recommendations of the Independent Commission on Banking (ICB), which the draft Bill seeks to implement, need revision as a consequence of developments since the ICB’s report?
We consider that the publication of the Liikanen Report as an important development that should be taken into account by the Parliamentary Commission.
Consistent with the objectives of the ICB, the Liikanen proposal that proprietary trading and some categories of financial institutions be placed in a separately capitalised and funded subsidiary would: reduce the complexity and interconnectedness of the “deposit bank”; prevent trading activities from being cross-subsidised by customer deposits; and enhance resolvability. At the same time, subsidiarisation rather than full separation preserves any synergies between retail/commercial and trading activities. Furthermore, the recommendations recognise that not all categories of financial institution pose the same risk to the activities of the “deposit bank”.
Lloyds considers that the “de minimis” boundary proposed by the HLEG (i.e. not mandating separation for banks without significant market-making activities) is consistent with the objectives of the ICB recommendations, when taken together with the enhanced capital requirements and the RRD/living wills. If this proposal were to be adopted in the UK, this would still meet the objectives of the ICB but would ensure that UK banks are on more of a level playing field with European counterparties.
Allowing the provision of risk management products to non-bank clients from inside the “deposit bank” is a sensible way to ensure that banks are able to continue to provide essential non-speculative services to its SME and corporate customers. Separating hedging from the rest of the client relationship can increase credit risk and thereby reduce lending volumes (with knock-on implications for economic growth) and increase both complexity and risk for both the deposit bank and corporate customers. The RFB would pass market risk to third parties under collateral arrangements, and use central clearing where available.
3. Do the powers in the draft Bill and the Government’s stated intentions for their use give effect to the ICB’s recommendations? Are any deviations justified?
With the exception of certain loss absorbency recommendations which are to be implemented through European legislation (see question 22 below), the draft Bill provides a framework to give effect to the ICB’s recommendations on ring fencing, but, as much of the detail will be confirmed in secondary legislation and Regulatory rules it is too early to say whether the proposed legislation will meet the Government’s stated intentions.
4. What should be the timetable for implementation of these measures, and should it be set out more clearly?
Given the complexity of the changes required, we consider 2019 for full implementation to be reasonable (with a later implementation date of 2025 as set out in the White paper for Pension scheme related requirements). It would be desirable to have the dates included more explicitly in the legislation, as currently no dates are specified in the draft.
There may be circumstances (such as third party consents which will not be granted and overseas Regulatory approvals which are subject to delay) which may delay implementation for reasons outside of a bank’s control. We would welcome confirmation that transitional/grandfathering provisions will be in place to accommodate such circumstances.
We would welcome sight of the draft secondary legislation at the earliest possible time, however in the interim, a clarification of both the timing and intended content of the secondary legislation would be very helpful, in particular to guide implementation planning.
5. The draft Bill proposes continuity objectives on the PRA and FCA. Are these appropriate and compatible with their other objectives?
While it is not entirely clear as drafted, we understand the continuity objective to relate to vital services within the system as a whole, rather than services at any particular bank. If this understanding is correct, then the continuity objective would be compatible with the Government’s goal of allowing RFBs to fail without recourse to the taxpayer.
Banking standards and competition
6. What will be the impact of the proposed changes in the draft Bill on banking standards in the UK more widely?
7. What will be the impact of the separation of retail and wholesale banking on the culture prevailing within each?
Questions 6 and 7 are answered together.
The introduction of ring-fencing has the potential, if carefully executed in the legislation, to help rebuild consumer trust in the banking sector and more clearly separate the different cultures of retail/commercial and investment banking. Ring-fencing will prevent investment banks from being able to be supported by retail/commercial banks, with consequent impact on the risk culture and remuneration in the investment bank. It should also be noted that investment banking has a different business model and culture as it is done deal by deal; retail and commercial banking is about relationship banking through the cycle.
8. What will be the impact of the ring-fence on competition, both in retail and investment banking, and in other areas of financial services?
One of the most important considerations from a competition perspective is whether banks are competing on a level playing field:
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(ii)
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Delegated powers and accountability
9. The draft Bill grants a large number of delegated powers to the Government. Are the principles under which delegated powers are to be exercised sufficiently clear?
The principles are not always clear or at least—they are not in any way referenced back to the principles of the Vickers report as developed by the June White Paper. By way of example, the Government is given wide discretion to define additional excluded activities (other than dealing in investments as principal)under Section 142D and similarly wide discretion to impose prohibitions under Section 142E in relation to transactions; establishment of branches and restrictions on shareholdings. Much of the detail in these areas as developed by the White paper is not specified in the draft Bill. Whilst we welcome there being scope for flexibility in secondary legislation (and regulatory rules) this must come with a degree of certainty as to the approach that will be taken in the key areas—not least so that detailed implementation planning can commence with a degree of certainty as to the direction of travel on these key areas. Detailed implementation planning will inevitably be delayed until this clarity is provided, which may in turn cause difficulties in banks meeting the 2019 timeline.
10. Does the scope of the delegated powers in the draft Bill represent an appropriate balance between flexibility for the Government to respond to changing conditions and accountability to Parliament and the public?
The draft Bill grants the Government considerable flexibility to adjust the ring fence to changing conditions. While some flexibility is desirable, it is important for the stability of the banking sector and its ability to support the economy that:
(i)
(ii)
11. Is there sufficient clarity about the Government’s intended use of delegated powers, both to enable public understanding and to enable affected banks to prepare for the proposed changes?
By its nature, the draft primary legislation leaves significant areas to be clarified by secondary legislation and regulation. As mentioned above we would welcome clarity around the direction of travel on the key areas—either in a confirmatory paper or in an early draft of the secondary legislation and an overview of the content of ring-fencing rules. In particular it is unclear how the Treasury will use the delegated powers to implement the changes in terms of excluded activities e.g. whether an RFB’s treasury activities for balance sheet management will be permitted; whether simple risk management products will be permitted; and in the Regulator’s ring-fencing rules—how operational and economic separation will work in practice in areas such as group service provision; intra group contracts; governance and restrictions on shareholdings. However it would be helpful (and assist implementation preparations and planning) to have clarity that it is the current intention that the Regulator’s ring-fencing rules will implement proposals as described the White paper without significant amendment.
Banks therefore do not yet have sufficient clarity to take concrete steps to prepare for implementation.
12. The draft Bill provides for review of the ring-fencing rules by the PRA every five years. Does the proposed review mechanism provide sufficient accountability?
As noted above, we recognise the need for the ring fence to be able to adapt to changing circumstances. On the other hand, it is important that the banking sector not remain under continuous regulatory and legal uncertainty, which would undermine its ability to support the economy.
As mentioned above—the manner of future amendments to the ring fencing rules requires some consideration as care needs to be taken that Regulators do not introduce any material changes without appropriate consultation, impact assessments and lead-in times for implementation.
The ring-fence
13. Is the power to be able to exempt certain categories of deposit-taking firms from having to establish a ring-fenced bank appropriate, and on what basis should the conditions for exemption be set?
In order not to create an additional regulatory barrier to entry into the banking sector, we support the Treasury taking the power to exempt smaller deposit-taking firms from ring fencing requirements. The threshold proposed in the White Paper (£25 billion in deposits from individuals and SMEs) appears sufficient to achieve this goal. As noted earlier, however, ring fencing and additional capital requirements will be a modest barrier to expansion beyond this size.
We would also note that the Liikanen Report introduces another type of exemption on the basis of the quantum of a bank’s trading assets, either as a percentage of total assets (15–25%) or an absolute threshold of €100 billion. Banks below this threshold, that were also able to demonstrate resolvability, would not be required to separate proprietary trading activities from the rest of the Group. As noted in question 2, we believe this is consistent with the ICB’s objectives and avoids unnecessary disruption for institutions that are primarily retail and commercial banks.
14. Is the range of core and excluded activities defined in the draft Bill appropriate and sufficiently broad? Are the Government’s stated intentions for using powers to define further core and excluded activities appropriate?
The draft Bill currently only defines one “core” activity, namely individual and SME deposit-taking, and one “excluded” activity, namely dealing in investments as principal. However, the bill allows the Treasury to define additional activities in either category, or to make exemptions as appropriate. We understand from the Policy Overview and the HMT White Paper that the Government intends to clarify its position on core and excluded activities through secondary legislation and we look forward to reviewing this draft legislation when available.
15. Which categories, if any, of customer should be permitted to deposit with a non ring-fenced bank?
It is important that if any exemptions are made to the principle of having deposit-taking inside the RFB, that the customers concerned (individuals or SMEs) are able to withstand potential disruptions in key economic services. We therefore agree that for individuals, there should be an appropriate threshold of free and investable assets and also that qualifying individuals should be required to actively choose to bank outside the ring fence. In other words, the default option would be to have individuals and SMEs inside the RFB and for Corporates to have the option to choose.
16. The Government is considering whether to allow ring-fenced banks to offer simple derivatives to their customers. Should they be allowed to? If so, what safeguards would be necessary?
The White Paper proposal to allow RFBs to sell simple risk management products purely to SMEs was administratively tidy but, we believe, the wrong way around. There is a good economic case for allowing RFBs to provide very simple risk management products—interest rate and foreign exchange hedges—alongside lending to its corporate customers, particularly mid-caps and larger corporates who for example will be more likely to be exporters. Such simple risk management products are needed by customers and reduce credit risk from those customers to the RFB—thus allowing banks to lend more and support the economy. The RFB would pass market risk to third parties under collateral arrangements, and use central clearing where available.
So we would suggest strict limits on the simple derivative products that can be sold by the RFB; allow them to be sold to any Mid-Cap and larger Corporate inside the RFB; with firm requirements to mitigate market risk; and with very strong conduct regulation safeguards over their sale to smaller and less sophisticated business customers.
17. Are the proposed corporate governance arrangements between the ring-fenced bank and the wider group sufficient to ensure the independence of the ring-fenced bank? Are these arrangements compatible with directors’ duties and principles of accountability?
We welcome the recognition in the White Paper of the case for greater flexibility where the “overwhelming majority” of a group’s banking activity would fall within the ring fence. In such a case, not having flexibility would lead to an impossible situation whereby the Group board was not in control of the majority of the operations of the Group. In practice, this would be almost impossible to operate, with severe implications for the responsibilities and duties of the Group Board to shareholders.
We would note that the “de minimis” proposals of the HLEG, whereby a Group without significant trading activities would not be required to separate, would avoid the governance issues discussed here.
18. How appropriate are the proposed restrictions on exposures and operational dependencies between the ring-fenced bank and the rest of the group? Will these result in a sufficient degree of independence and resilience?
The draft Bill provides that the RFB must be able to act independently of the rest of the Group and that as part of this, its dealings with the non-ring-fenced portion of the Group must be on an arm’s length basis and disclosed to the regulator. Furthermore, the rules would restrict disbursements from the RFB to the rest of the Group, which would prevent the RFB jeopardising its own capital position in support of the non-ring-fenced bank.
19. Will it be possible to effectively monitor and police the ring-fence, given the degree of regulatory discretion the draft Bill proposes?
While the Bill as currently drafted grants regulators considerable discretion, we would expect that secondary legislation and regulation would be drafted with the ease of monitoring and policing in mind.
20. How effective will the provisions on corporate governance for ring-fenced banks be in promoting a wider improvement of standards? Should other measures also be considered?
Sound governance arrangements have a role to play in restoring trust and confidence. The focus on governance has brought about positive changes but it is difficult to say whether this is due to the codes themselves or down to Directors learning the lessons for themselves. Bank Boards need to provide the leadership and, critically, ensure that they have overriding responsibility for financial soundness, customer treatments and standards/ethics. In this regard, it is important that the Board provides appropriate oversight of the “tone from the top”.
Significant progress has been made in enhancing and refining corporate governance practices in recent years. These should now have time to become established. If there is an appetite for further change, we would highlight:
There is an opportunity to reduce the current proliferation of codes and standards by consolidating the various initiatives and removing duplication/overlapping requirements.
A greater emphasis on the collective responsibility of the Board, consistent with legal principles.
Greater clarity on the precise accountabilities of the Non-Executive and Executive Directors.
Depositor preference
21. Is the proposal to prefer insured deposits in the event of a bank insolvency justified? Is there a case for broadening the scope of deposits which benefit from this protection?
The Policy Overview expresses support for the concept of insured depositor preference, whereby in a resolution scenario, the FSCS would be given priority over senior unsecured creditors. On the other hand, paragraph 2.40 also notes that the proposal to introduce depositor preference is subject to ongoing developments in relation to the RRD at the EU level.
We would note that depositor preference would appear to be incompatible with some of the objectives of the current version of the RRD, namely to minimise the impact of bail-in on banks’ wholesale funding costs. Specifically, the RRD suggests that bail-in should cover a wide a range of creditors (including deposit insurance schemes) so as to prevent the full cost of bail-in falling on any particular class of liabilities, such as senior unsecured funding. Depositor preference would be directly contrary to this logic, by exempting the FSCS and thereby narrowing the pool of potentially bail-in-able liabilities. Depositor preference would thus increase the cost and reduce the availability and stability of bank funding.
By the same logic, we would oppose any extension of depositor preference to cover pension funds or other individual types of counterparties. Such an extension would worsen the encumbrance of the RFB’s assets and therefore make the position relative to the cost and availability of funding more challenging, with consequent impacts on the broader economy.
Capital levels
22. Does the draft Bill adequately implement the ICB’s recommendations on loss absorbency requirements?
The ICB’s recommendations in relation to loss absorbency included:
A ring-fence buffer of 3% CT1 equity.
A resolution buffer of up to 3% of RWAs in additional loss absorbing capacity.
Primary Loss Absorbing Capacity (PLAC) of 17%, where PLAC consists of equity and non-equity capital plus “bail-in bonds” with a remaining term of at least 12 months.
Bail-in of unsecured debt with a term of 12 months at time of issue.
Depositor preference for FSCS-insured deposits.
The draft Bill empowers the Treasury to require the regulator to impose specific debt requirements on both ring-fenced and non-ring-fenced banks, which would in turn allow the imposition of the PLAC requirement. It should be noted, however, that in addition to traditional (or newly defined) subordinated loss-absorbing debt categories—where regulators have traditionally provided their banks with targets—as drafted, other forms of debt could also be required, in any amount [and at any time]. As such, the powers could be seen to go far beyond what is required to implement the policy in the HMT White Paper or the ICB Final Report, and some review of the proposal for control over the levels of non-subordinated debt may be required to ensure the going-concern operation of banks is not adversely impacted.
The Policy Overview notes that the scope of bail-in and depositor preference will be dealt with through the RRD and that the buffers can be implemented through the Capital Requirements Directive (CRD) IV. It should be noted that the RRD describes bail-in requirements in terms of a percentage of liabilities, while the ICB’s recommendations were in terms of a percentage of RWAs. This potential inconsistency would need to be addressed so that the requirements on banks are clear. Please also see our previous comments on Depositor Preference in Q21.
23. The draft Bill gives the Government power to direct the way in which the regulators can implement loss-absorbency requirements. How appropriate and well-designed is this power?
As noted above, the draft Bill empowers the Treasury to allow regulators to require banks to issue any form of debt in any amount. While this would allow the implementation of the ICB’s recommendations on PLAC, Treasury and regulators would have the flexibility to significantly alter either the form or content of banks’ debt requirements. It would be helpful to have clarity on this as soon as possible and in particular confirmation that the intention is that the Treasury and Regulators would use this discretion only in line with the previously stated principles as set out in the ICB report and June White paper.
24. Is the Government’s stated intention for the design of loss-absorbency requirements workable? Will it provide a sufficiently well-capitalised banking system? In particular, how justified is the intention to allow an exemption for assets held in overseas operations?
The resilience and loss absorbing capacity of banks will be significantly enhanced by the stated intention to implement the ring-fence buffer and PLAC of 17%. We agree it makes sense for regulators to give further consideration as to whether PLAC would need to be held against Non-EEA assets.
25. Is the Government justified in its decision not to implement the ICB recommendation for a higher leverage ratio than is required by Basel III?
We agree with the imposition of a leverage ratio as a back stop and understand that the issue is still under consideration by the Basel Committee. Because of their calculation logic, Leverage Ratios can give a distorted view of retail-based banks with large volumes of low-risk assets. Hence we would encourage the Basel Committee/Government to consider developing bank-specific targets for this ratio.
Resolvability
26. Will the UK authorities have the necessary tools and powers (as a result of this legislation and other initiatives) to be able to resolve a large failing ring-fenced or non-ring-fenced bank, while maintaining financial stability and minimising the risk to public funds?
It is important to remember that a RFB would be a much safer entity and so would be much less likely to need to be resolved. It will be insulated from the greater interconnectedness of investment banking activities. Applying the enhanced Basel III capital and liquidity standards to such a subsidiary would create an especially well-capitalised and well-funded entity, contributing to, and benefiting from, economic stability.
In the unlikely event that the RFB needed to be resolved, it would be simpler by virtue of being less interconnected. The Special Resolution Regime already provides for a number of resolution options, including use of a bridge bank and temporary public ownership.
27. What is your assessment of the Government’s preferred design of “bail-in” powers needed to improve bank resolution? How likely is it that the Recovery and Resolution Directive will deliver effective bail-in powers?
As noted above, the Government’s proposals specify PLAC (and by extension bail-in-able debt) in terms of a percentage of RWAs, while the RRD uses non-equity liabilities. A further difference is the scope of liabilities that would be subject to bail-in. Both the RRD and the Government’s proposals seek to limit the effect of bail-in on the cost of wholesale funding, but take different approaches. The Government excludes short-term liabilities (with remaining terms of less than one year) while the RRD takes the approach of bailing-in a wider set of liabilities, with original maturities of greater than one month. While both approaches have merit, and ultimately the impact on wholesale funding costs is an empirical question, we are currently inclined to support the RRD approach.
In line with this view, we have some difficulties with the proposal being put forward by the Bank of England that, for practical reasons in a resolution situation, it may be necessary to allow a Resolution Authority to prefer one category of creditor over another, where both those creditors legally rank pari passu.
As to the RRD, we are confident that there is considerable impetus for the EU to deliver a crisis management regime that includes automatic conversion or right-down of capital instruments at the point-of-non-viability (PONV), and a senior debt bail-in tool for use in resolution of a failed bank. However we foresee it as likely that the RRD formulation of the senior debt bail-in tool will place limitations on the use of this tool so as to clearly detach it from the treatment mandated for capital instruments, and to restrict the role of the tool to use alongside the other post-PONV resolution tools. We believe this to be a sensible approach in order to ensure investors continue to perceive a real distinction between junior and senior debt instruments.
Impact assessment
28. Is the impact assessment of the costs and benefits credible and balanced?
In aggregate, a full cost-benefit analysis would probably conclude that the NPV of benefits exceeds the NPV of costs for the reform package in the draft Bill. However, the CBA included in the draft Bill doesn’t fully consider some aspects of both the benefits and costs of the reform package.
On the benefits side, the focus is almost exclusively on how the proposed measures would impact the probability of future crises, rather than the impact of crises should they occur. Depending on circumstances, some measures could have the effect of making a crisis that did occur more severe. For example, bail-in could reduce the availability of funding in a downturn, or depositor preference could enhance the volatility of non-preferred deposits in a downturn, adding to funding requirements in a stress.
On the costs side, the short run impact of some measures is not considered—the proposed 2019 implementation is implicitly assumed to eliminate short run impacts. Some measures proposed could depress economic recovery between now and 2019. For example, the higher cost of senior unsecured funding due to depositor preference and bail-in increases the cost of credit, though the Government’s Funding for Lending scheme seeks to alleviate the cost of funding in the immediate future. In addition, higher capital requirements (e.g. EBA stress tests) in a shorter timeframe would encourage faster de-leveraging.
29. Might there be any other unintended consequences which have not been considered?
As with any complex reform effort, there is the possibility of unintended consequences, most importantly to the supply of lending and the capacity of UK banks to support the economy. There has been growing recognition recently that measures which make banks safer in the long run, such as higher capital requirements, can have damaging side-effects in the short run, particularly when implemented quickly. A long transition period, such as envisioned in the Final ICB report, is therefore essential to help minimise the impact of reforms on the speed of recovery.
International issues
30. What will be the impact of the proposals on the international competitiveness of UK banks?
As noted in question 8, the additional regulatory burden imposed by ring fencing and super-equivalent loss absorbency requirements puts UK retail/commercial banks at a disadvantage relative to European banks that are able to operate in the UK through branches rather than subsidiaries. If the recommendations in the Liikanen report were enacted, the competitive disadvantage would be reduced though not removed.
31. Are the proposals consistent with existing and forthcoming international and EU regulatory initiatives, for example the recent Liikanen Report? To what extent are they likely to be superseded or generate conflicts?
There are several cases of inconsistency between UK and EU regulatory initiatives.
As noted in question 21, depositor preference would appear to be inconsistent with the RRD. Specifically, the RRD suggests that bail-in should cover a wide a range of creditors (including deposit insurance schemes) so as to prevent the full cost of bail-in falling on any particular class of liabilities, such as senior unsecured funding. Depositor preference would be directly contrary to this logic, by exempting the FSCS and thereby narrowing the pool of potentially bail-in-able liabilities. Depositor preference would thus increase the cost and reduce the availability and stability of bank funding.
Likewise, the Government’s proposals specify PLAC (and by extension bail-in-able debt) in terms of a percentage of RWAs, while the RRD uses non-equity liabilities. A further difference is the scope of liabilities that would be subject to bail-in. Both the RRD and the Government’s proposals seek to limit the effect of bail-in on the cost of wholesale funding, but take different approaches. The Government’s proposals exclude short-term liabilities (with remaining term of less than one year) while the RRD takes the approach of bailing-in a wider set of liabilities, with original maturities of greater than one month.
Other
32. What other matters should the Commission take into account?
As ring fencing will inevitably involve the transfer of customers between entities, we welcome the Government’s intent, in Clause 5 of the draft Bill, to amend Part VII FSMA, which is the main legislative method currently available in the UK for transfers of banking business without the need for customer consent. However we have some concerns about whether Clause 5 would effectively address the shortcomings of Part VII.
In particular we consider it is not entirely clear from the current draft of the amendment to section 106 FSMA as to whether the new category of Part VII transfer would still require there to be an element of deposit taking. We assume this is not the case but would welcome early clarification.
In addition we understand that the intention is that the PRA would conduct a pre application review of banking business transfers made under this new section. Any additional detail which could be provided on the intended process would be welcome.
We note also that the amendment to Part VII FSMA does not (and clearly could not) solve the issue of separation of businesses held in overseas subsidiaries and branches where individual customer and counterparty consents may be required. To this end we would hope that the UK Regulator would reach out to its overseas counterparty Regulators to ask for their co-operation when banks approach them to discuss the impacts in the relevant jurisdiction and offer assistance where required.
2 November 2012