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19 Jan 2009 : Column 1456

Lord Davies of Oldham: I am grateful to both noble Lords who have contributed to this short debate. I will do my best to answer the specific questions involved. The noble Viscount, Lord Eccles, raises some fundamental points with regard to the Government’s intentions for these provisions and explains why he wants his amendment considered sympathetically. Clause 47 provides the authorities with the means to place restrictions on the nature of partial transfers that they may effect through the use of the property transfer powers provided by this part of the Bill. The making of the restrictions has the potential to provide bank stakeholders with greater certainty about how the property transfer powers will be used to effect partial transfers. As was clear from the previous debate, we are all concerned about certainty and clarity in what all who have considered them recognise are complex and difficult issues.

To this end, the Government have recently consulted on what secondary legislation should be made under Clause 47. At this stage we are proposing that the power should be used to place restrictions on reverse property transfers. This restriction is designed to provide certainty to creditors transferred to a bridge bank that they will not be moved back to the residual bank. Consultation on this, and indeed a wide range of matters relating to partial transfer safeguards, is of course ongoing. As my noble friend indicated in the previous debate, we have consultations which are still to be concluded. We will keep the House fully informed of such developments, certainly in the context of our further consideration of the Bill on Report.

The problem that we have with the amendment in the name of the noble Viscount, Lord Eccles, is that it would remove the power for the Treasury to make orders on restrictions which apply to all partial transfers. In essence, the amendment would not allow the Government to make general restrictions on all partial transfers. It would allow us to make restrictions only to individual types of partial transfer.

We believe that the power to make a wider range of different types of restriction is useful and ultimately beneficial to the market. Given the nature of the powers, stakeholder interest and the technical complexity of the issue, the Government consider it appropriate to take a power in the Bill to provide for restrictions to be made as the authorities deem appropriate. In particular, it should be noted that these powers can be used only to restrict—not, I hasten to add, broaden—the nature of the partial transfers which can be made.

I remind the Committee that the special resolution regime is a new legislative proposal. Experience may show that partial transfers should be more or less restricted than initially thought, to respond to continuing market reaction to these powers, or to the authorities’ developing practical expertise in resolving banks in difficulty. At the very least, the nature of the restrictions will need to be updated in line with innovation in the financial markets. Given this position, which I am sure commands the understanding of the Committee, we believe that the clause as drafted is ultimately helpful to stakeholders in allowing different forms of restrictions on the use of partial transfers.

However, the noble Viscount raised one or two issues. He is absolutely right, of course, that the resolution of the Bradford & Bingley problem was different from

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the situations provided for in the Bill. That resolution was conducted under a different Act which is due to expire in the very near future. That Act does not contain the powers for a bridge bank tool, which is provided for in the Bill and which I am sure commands considerable support. The reference to Bradford & Bingley was included to demonstrate the benefit of a partial transfer approach in general terms. The industry supported the way in which the Bradford & Bingley issue was resolved.

I was asked whether the Bank of England agrees with partial transfers. The answer is yes. All the authorities, especially the Bank of England, support the need for partial transfers. All agree that we need the flexibility best to meet the special resolution regime objectives. The benefits include increasing the chance of a private sector purchase, which is the objective of this part of the special resolution regime, particularly if it wanted to purchase only part of any such property. I was also asked by the noble Viscount whether partial transfers did not mean that costs were necessarily lower. Partial transfers offer the opportunity to leave bad assets behind—I think that he conceded that point—to enable them to be wound up in an orderly manner. This may well be fully in line with the SRR objectives, including, not least, the protection of public funds.

The noble Lord, Lord Higgins, pointed out a difficulty with statutory instruments, which I recognise; namely, that they are not amendable. However, we need the ability to update these safeguards as market practice develops. The Committee will recognise that we have provided for expert advice to be offered to the Government. Inevitably, we are faced—no one can foresee a future different from the past in one respect—with the increased rapidity of change and fluctuations in market activity and market practice. We need a flexibility that primary legislation can never convey. That is why we feel the need in this area to indicate that we will be using secondary legislation.

It is also the case, as my noble friend indicated earlier, that we still have refinements and developments to make on the nature of secondary legislation, on which we are in active consultation. We will make the position as clear as we can as the Bill progresses through the House. I hope that the noble Viscount will feel that I have given him a reply that explains why his amendment would be restrictive; more restrictive than we want the legislation to be. Therefore, I hope that he will feel able to withdraw the amendment.

4 pm

Lord Higgins: I am sorry to come back on this, but I still have not understood this rather simple point. As I understand it, the Government would make a property transfer instrument, and presumably they determine the terms of that instrument. Subsequently, apparently, they make an order that restricts the terms of that instrument. Is this simply in case they have second thoughts? Why is it not all done in the initial instrument?

Lord Davies of Oldham: We are seeking to be flexible; I hope that the noble Lord will recognise that we are seeking to be flexible in a direction that ought to

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command the support of the Committee. After all, we are talking about the nature of restriction. The noble Lord is right. Are we making provision against the eventuality that we might need to effect legislative change quite rapidly, which we could not possibly do through primary legislation and, therefore, which would involve a need to change a statutory instrument? We are seeking legal certainty for the market. The market can look at the legislation and know what cannot be transferred under a partial transfer. It is of the greatest importance that the market should recognise that. The noble Lord, Lord Higgins, will appreciate that where the Government think that they might have to think again it is always against the parameter of moving towards reducing restrictions. I hope that the noble Lord will accept that, in that respect, the Government are seeking to respond to a changing market in a positive way, with the overall objective of trying to give legal certainty in an area that we all recognise is complex, difficult and potentially rapidly changing.

Viscount Eccles: I thank my noble friend Lord Higgins and I thank the Minister for his explanation. I assure the Committee that I am not looking to make trouble, as it were. I am looking to see how there could be more certainty. Market certainty is not just legal certainty; it is broader than that. I remain puzzled as to why, if the subsection read, “An order may apply to transfers of a specified kind, or made or applying in specified circumstances”, that would not in fact be quite adequate for the purpose of restriction under the system of partial transfers.

While thinking not only about my amendment but about the whole discussion of partial transfers, I should like to ask the Minister whether there could possibly be—one would hope that there never could be—a restriction made in an order that said that only good assets were to be transferred in a partial transfer? It seems to me that there will be circumstances in which, first, it will be very difficult to know how to make a split between the good and the less good and, secondly, in which it would be sensible to take a mix of assets and not simply to look for the good ones.

Lord Davies of Oldham: I understand the noble Viscount’s point. I hesitate to be too specific. The Committee will appreciate and he will recognise that we are talking about these issues of restrictions in terms of the constraints on them. We are working with the grain of his argument. Perhaps the noble Viscount will allow me to respond directly in writing to his question. Otherwise I trust that the broad tenor of the Government’s thinking is sufficiently acceptable for him to withdraw his amendment.

Viscount Eccles: I am grateful to the Minister for that reply. I refer him again to paragraph 1.14 with which I started, which is the basis of the comfort that I seek. Meanwhile, I withdraw the amendment.

Amendment 79A withdrawn.

Amendment 80 not moved.

Clause 47 agreed.

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Clause 48 : Power to protect certain interests

Amendment 81

Moved by Baroness Noakes

81: Clause 48, page 23, line 14, leave out paragaphs (a) to (c) and insert—

“(a) “security interest” means any legal or equitable interest of any right in security (but not a title transfer collateral arrangement) created or otherwise arising by way of security including a charge, mortgage, pledge or lien and including, in relation to Scotland, a heritable security,

(b) “set-off or netting arrangement” is an agreement or arrangement between two or more parties under which Obligation 1 can be set off or netted against Obligation 2 to discharge or reduce the amount of Obligation 2 or different claims or obligations can be converted into a single net claim or obligation (incuding under a close-out netting provision or a title transfer collateral arrangement), whether by contract, operation of law or otherwise, whether on a bilateral or multilateral basis and whether through the interposition of a clearing house central counterparty, settlement agent or otherwise,

(c) “set off” includes, in relation to Scotland, compensation, retention and/or balancing of accounts, as the case may require,

(d) “close-out netting provision” means a term of an arrangement, or any legislative provision under which on the occurrence of a specified event, whether through the operation of netting or set-off or otherwise—

(i) the obligations of the parties are accelerated to become immediately due and expressed as an obligation to pay an amount representing the original obligation’s estimated current value or replacement cost, or are terminated and replaced by an obligation to pay such an amount; or

(ii) an account is taken of what is due from each party to the other in respect of such obligations and a net sum equal to the balance of the account is payable by the party from whom the larger amount is due to the other party;

(e) “title transfer collateral arrangement” means an agreement or arrangement, including a repurchase agreement, evidenced in writing, where—

(i) the purpose of the agreement or arrangement is to secure or otherwise cover obligations owed to the collateral-taker;

(ii) the collateral-provider transfers legal and beneficial ownership in collateral to a collateral-taker on terms that when the relevant obligations are discharged the collateral-taker must transfer legal and beneficial ownership of the same or equivalent collateral to the collateral-provider.”

Baroness Noakes: Amendments 81 and 95 amend Clause 48 by rewriting the definition paragraphs for security interests, set-off netting and similar arrangements. The amendment was drafted by the City of London Law Society in conjunction with the Scottish Law Society, so I claim absolutely no credit for it. I have a detailed technical note of explanation which the City of London Law Society prepared, but I am aware that it has been available to other noble Lords, it is available publicly, and that the Treasury will have received it. Therefore, in order not to delay the Committee I had not proposed to read it out.

These amendments have the backing of banking representative groups such as the BBA and LIBA, and are supported by several large banks with which we

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have been in contact. I also understand that the amendment has been discussed with the Treasury and others in the expert liaison group. The Government have tabled their own amendments in this group, which cover some of the same ground and to which the Minister will speak. I should say, in the expectation that he will resist my amendments, that we will accept the government amendments, but it is not the end of the story.

I am sure that the Minister is aware that the banks and lawyers who have been engaged with this issue, while welcoming the moves that the Government have made with their amendments, are not convinced that the government amendments go far enough. The City of London Law Society recently submitted further comments to the Treasury. In particular, I understand that there is a desire to see the wording in Clause 48 made to conform to definitions used in regulation 3 of the Financial Collateral Arrangements (No. 2) Regulations 2003 and regulation 2 of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999.

These are not mere technical issues of drafting preference. An eminent lawyer with whom I was in contact last week said that they are of considerable practical and legal importance in achieving the necessary level of certainty and confidence in the financial markets. Therefore, I anticipate that this is not the end of the story and that we will almost certainly need to return to this issue on Report. In the mean time, I hope that the Government will accept the importance of having legally watertight definitions of these terms in the Bill, because that will drive what is to be covered by the regulations made under the clause. I hope that the Minister will respond by stating the position as the Government now see it.

Will the Minister address specifically the issues relating to Scottish law? There are some specific Scottish words in my amendment, and another issue has arisen since I tabled it on whether there needs to be a reference to trusts used in Scotland as an alternative to contracts, because Scots law does not accommodate equitable transfers. Do the Government accept that something is needed in Clause 48 to reflect the Scots law dimension? I assure him that his answer will be read with interest north of the border. I beg to move.

The Chairman of Committees (Lord Brabazon of Tara): I should point out that if this amendment is agreed to, I cannot call Amendments 82 to 87.

Lord James of Blackheath: I wish to speak to Amendment 85, which is based on my great concern, from experience, of the confusion that arises in any offset arrangement at the closing out of a business. The clause completely underestimates the extent of the hazard which is initiated and which causes untold suffering and confusion to all parties in trying to bring about a satisfactory resolution of any transfer of a bank’s ownership in these circumstances. The Insolvency Act 1986 is extremely explicit on the rules governing offset. It has become a matter of custom and practice and is very well policed and overseen by the insolvency practitioner profession, which, to my knowledge, has produced no great dissent during its 23 years of life.

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I invite the Minister to consider an actual case in which I was involved. You have to bear in mind that on the day that you close out a huge transaction such as this, a lot of people will rush to complete transactions against the clock. Let us suppose that on the morning of the day when you are going to close the whole deal, you receive a transfer of half a billion pounds’ worth of funds from America, representing a combination of consideration and debt repayment for a subsidiary of a company that banks with the bank with which you are dealing. To whom does that half billion belong in the hours leading up to and through the completion process? There are at least half a dozen applicants for the ownership of that money. If the Government now try to introduce a provision that effectively gives them the right to direct where that half billion goes, they will spend the rest of their natural life in litigation.

The situation is complex. First, the assumption is that the company being sold is owned by a company which banks with a syndicate of banks, because all these loans are syndicated. Some £200 million of the £500 million is due to be the consideration, but when, only two hours away from the company being sold or restructured, the banks get the half billion pounds, they will try to imply that the whole amount belongs to them to divide according to whatever ratio they represent in sharing the overall debt of the company to the banks. That immediately opens up the possibility of a challenge by the shareholding owners of the company that has effectively sold the company in question, and beyond that is the question of who provided the funding to the company. Perhaps it was a subsidiary owned in America—which is what happened in my case—with £300 million of debt to the American subsidiary. What about the American banks? Would they not have a claim? They would have lawyers queuing up to have a go on that one.

The whole situation is so complex that it seems the only safe way for the Government to deal with it is to knock out paragraph (c) in order to allow the Insolvency Act 1986 to continue to rule. It has never let us down yet and it will guide us with accuracy through any challenge that may come. The Government have a hard enough task already; they should not make it go from the difficult to the impossible.

Lord Stewartby: Perhaps I may raise a very small point on Amendment 82 and seek some enlightenment from the Minister. Amendment 82 would amend the clause to read that “security interests” means “arrangements under which one person acquires by way of security an actual or contingent interest in the property of another”. The amendment seeks to introduce into the clause the phrase “by way of security”. Does that mean by way of the exercise of security or does it mean, as I think it probably does, by way of the taking as security for a liability of an interest in the property? I am sure that the noble Lord will have no difficulty in putting me right on that.

4.15 pm

Lord Myners: We have covered the general purposes clause so I shall start by addressing the questions of the noble Baroness, Lady Noakes, and by presenting

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the Government’s amendments. I thank her for the constructive way in which she has introduced the amendments in her name, and her indication that she intends not to press them to a vote but rather to seek a better explanation and to help shape and influence our thinking as we approach Report. I am confident that we have interests in common and that all parties are committed to seeking the best possible wording.

As I have noted, Clause 48 provides a broad definition of the interests to be protected. This is intentional and ensures that the secondary legislation to be made under the power is not restricted by the technical definitions in the clause. Further detailed technical provision will be unsuitable for primary legislation. In short, this ensures that a broad range of interests can be included within the scope of the safeguard power and seeks to ensure that the safeguard power remains sufficiently adaptable to accommodate innovation in the financial markets.

The Government have received a number of representations from industry bodies and practitioners in relation to the definitions used in this clause. While I emphasise that Clause 48 is an enabling power, so is not the legislation which provides the actual protection, the Government consider it appropriate to amend the definitions to eliminate any outstanding doubt about the types of interests the clause is designed to protect. In broad terms, the amendments do two things. First, they separate the definition of security interests from title-transfer arrangements. Although the economic effect of the two types of arrangements may be either the same or similar, there are significant legal distinctions between the two. For example, a title-transfer security arrangement involves the outright transfer of ownership of the property in question from one party to another. This is not normally the case with security interests, which typically involve the acquisition by a creditor of a right in property which remains owned by the debtor. As a result, the Government consider it desirable to remove the definition of title-transfer arrangements from the definition of security arrangements and to define it separately. Secondly, the Government’s amendments make clear that the power does not treat set-off and netting as synonymous concepts. Although netting arrangements sometimes use set-off, netting can also be achieved through other methodology legally distinct and separate from set-off.

The Government’s intention in bringing forward Clause 48 is not to change the existing legal concepts of security interests, set-off and netting arrangements and title-transfer security arrangements. Rather, the purpose of Clause 48 is to enable protection to be provided for these interests in the context of partial transfers under the special resolution regime, while allowing scope for the enabling power to address changes to these concepts as industry usage continues to develop and innovate. Some may say we have had a bit too much innovation in banking in recent years, but the industry will continue to innovate to meet the needs of its customers and we must be careful that we do not inhibit the benefits that can arise from innovation.

I believe our intention is made absolutely clear by the provision of Clause 48 which indicates that these definitions only apply for the purpose of this section.

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It is hoped, however, that the amendments in my name usefully clarify the intentions of the Government in view of the helpful representations that have been made by interested parties. I hope that the government amendments will be accepted.

It is my understanding that opposition Amendments 81 and 95 would have a similar effect to the government amendments tabled in relation to this clause. Indeed, the noble Baroness, Lady Noakes, indicated that that was the case. These amendments would make technical changes to the definitions used in Clause 48. In particular, they relate to the definitions of “security interests”, “set-off”, “netting” and “netting arrangements”.

While the Government agree with the broad purpose of the amendments, they consider that the amendments tabled in my name offer a more appropriate solution. Noble Lords may find it useful if I explain why the government amendments differ slightly from those proposed by the noble Baroness. In broad terms, the difference is one of level of detail.

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