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House of Lords

Wednesday, 27 November 2013.

3 pm

Prayers—read by the Lord Bishop of Wakefield.

United Nations: Secretary-General

Question

3.07 pm

Asked by Lord Judd

To ask Her Majesty’s Government what is their strategy in relation to the appointment of the next Secretary-General of the United Nations, and what criteria should be paramount in that appointment.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, we do not expect discussions on the current Secretary-General’s replacement until the start of 2016. No candidates have emerged yet and, as such, we believe that it is too early to speculate on a successor to Ban Ki-Moon. However, we would want to see a proven leader who is fully committed to the values of the UN, with sufficient political authority and expertise as well as the ability to lead and manage such a large and complex organisation.

Lord Judd (Lab): In our highly interdependent but highly unstable bipolarised world, is it not true that the UN has a potentially more significant role than ever and that the appointment of the Secretary-General is therefore an absolutely crucial international appointment? Should not the criteria for that appointment have maximum possible international agreement and be transparent—irrespective, of course, of gender? Does the Minister agree that the days when we can cobble together some sort of compromise behind closed doors in the Security Council or the P5 are over and that credibility depends on as much transparency and international agreement as possible?

Baroness Warsi: I thank the noble Lord for his question. I pay tribute to the work that he has consistently done with the UN Association going back many years and for being persistent in relation to this question. It is important for us to keep focusing on how we can improve these international appointments and the elections that take place for them. We continue to focus on the fact that we want the best candidate for the job, but the candidate must also command the greatest possible support from the international community as well as that of the P5. We must conduct the process in a way which does not form divisions within the international community to ensure that the office bearer, once elected, has the greatest amount of support rather than undermining them through the process.

Baroness Falkner of Margravine (LD): My Lords, given that by 2016 it will be nearly 70 years since the establishment of the United Nations, does my noble friend agree that it would be helpful if we could see a

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woman at the helm after all this time? On criteria, does she accept the general view that the two terms a Secretary-General gets may not be adequate given the desire for regional representation? Could we possibly contemplate from the United Kingdom the Canadian proposal for a longer single term—similar to that recently proposed for the House of Lords, incidentally?

Baroness Warsi: Of course, I would be delighted to see a woman in the position of UN Secretary-General. Indeed, this House has produced some fantastic international appointments in the past—we have only to look at the noble Baroness, Lady Ashton, to see what amazing work she is doing on the international scene. However, I come back to what I said at the outset: it is important to have a transparent system and to make sure that we get the best possible candidate for the job, who may well be a woman. It is important also that we maintain consensus during the process, because UN reform is a difficult enough subject without the Secretary-General having to do the job when he does not command the support of the General Assembly.

Lord Hannay of Chiswick (CB): My Lords, can the noble Baroness tell the House that the Government will do their best to prevent what is called regional pre-emption—that is, the presumption being established ahead of time that a particular region will provide the next Secretary-General? That, of course, narrows the candidate list enormously. If the Government were to push hard against that with other influential members, that would count. Will she also consider the possibility that, on this occasion, we might try to broker a gentlemen’s agreement between the five permanent members that none of them will exercise a veto at the next election?

Baroness Warsi: The process that the noble Lord mentions involving the concept of a regional rotation has of course happened in practice, but the UK has never endorsed the idea of a formal rotation. We believe that every region should have the opportunity to put forward a candidate—no region should be denied that. The noble Lord will be aware of the speculation as to which region that will be next time round. Going back to the issue of consensus, it is important that the discussions between the P5 take place in accordance with protocol in a way that builds consensus so that we do not end up with public splits which could damage the process.

Lord Dykes (LD): Does my noble friend further agree that real reform of the United Nations cannot be done without the Security Council being modernised in a much more fundamental way to reduce the traditional excessive dominance of the United States and some of her close allies?

Baroness Warsi: We of course agree that the United Nations Security Council has to be reformed. Many proposals have been put forward for both its operation and its membership. I think that it needs to go further than that. As the Minister with responsibility for the UN, I have been pushing for a United Nations that is much more responsive and competitive, and that in a

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difficult economic climate gives us better value for money, improves its performance management and makes better use of IT. Much could be done to reform the UN.

Lord Stern of Brentford (CB): Does the noble Baroness agree that our credibility on openness would be much greater if we did not tacitly collude in the IMF for Europe and the World Bank for the United States?

Baroness Warsi: I think that the noble Lord’s question may go beyond the remit of this Question, but I am quite prepared to read it in Hansard, consider it and write to him formally.

NHS: Clinical Commissioning Groups

Question

3.13 pm

Asked by Lord Hunt of Kings Heath

To ask Her Majesty’s Government what discussions they have had with NHS England regarding proposals to change the funding allocation formula to Clinical Commissioning Groups.

Lord Hunt of Kings Heath (Lab): My Lords, I beg leave to ask the Question standing in my name on the Order Paper and refer noble Lords to my health interests in the register.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, the Government have been discussing health funding, including progress on the fundamental review of allocations, at regular accountability meetings with NHS England. This NHS England-led review began in December 2012. The independent Advisory Committee on Resource Allocation, ACRA, is providing advice on changes to the formula. NHS England will consider ACRA’s recommendations. Initial views should be available to inform 2014-15 allocations.

Lord Hunt of Kings Heath: My Lords, my understanding of the formula is that it would move resources from areas where people have worse health outcomes to areas where they have better health outcomes. The noble Earl has said that he and his ministerial colleagues are in discussion with NHS England. Can he confirm that this is a decision for NHS England? If that is so, what is the nature of the discussion that has taken place between Ministers and NHS England? Is it being left to NHS England to decide?

Earl Howe: My Lords, very definitely yes. It is precisely to avoid any perception of political interference that we made NHS England responsible for the allocation of resources to clinical commissioning groups. However, we were very specific in the mandate, as the noble Lord will recall, that the principle on which NHS England has to operate is equal access for equal need, with particular attention being paid to health inequalities

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while not destabilising the NHS. Those are the things we discuss in our regular meetings with NHS England but the actual nature of the formula that it will decide in its board meeting next month is entirely up to it.

Lord Patel (CB): My Lords, we know that the single most significant factor associated with poor health outcomes is deprivation, particularly for diseases such as chronic lung diseases, cardiovascular diseases and cancers—and, even more importantly, for chronic diseases in children. Would it not be wrong therefore if the tariff did not include the deprivation in the population when setting it for the community?

Earl Howe: My Lords, the CCG target formula recommended by ACRA this time a year ago was rejected by NHS England for the very reasons that the noble Lord cites: because it did not include an adjustment for deprivation and health inequalities. At a recent Health Select Committee hearing, Paul Baumann, the chief finance officer of NHS England, indicated that the proposed new formula would have an adjustment for a health economy’s unmet need—in other words, an adjustment for deprivation where low life expectancy suggests that people are not accessing health services.

Baroness Manzoor (LD): My Lords, can my noble friend the Minister clarify that responsibility for the development of primary care is to be shared between CCGs and NHS England area teams, particularly as CCGs now control two-thirds of the NHS budget?

Earl Howe: My Lords, at present primary care is commissioned by NHS England and has three broad ingredients: primary medical care, primary pharmaceutical services and primary dental services. However, we are looking at ways of making the whole process of primary care commissioning more creative. That could well involve a joint process by NHS England and clinical commissioning groups.

Lord Campbell-Savours (Lab): In light of what the Minister said before, are we being assured therefore that age and gender will not be given priority over gross health inequalities and needs in areas of social deprivation, such as in the north of England? If that is not the case, surely the principles on which the National Health Service was created are being undermined.

Earl Howe: My Lords, age is and has always been, in the formula, the primary driver of an individual’s need for health services. The very young and elderly, whose populations are not evenly distributed throughout the country, tend to make more use of health services than the rest of the population. Having said that, the formula contains elements relating to unavoidable differences in the costs of providing services due to location alone—that is, the market forces factor—and a number of other measures of adjustment. As I say, we are assured by NHS England that deprivation will feature in the formula that is published for next year.

Baroness Masham of Ilton (CB): My Lords, is the noble Earl aware that in Yorkshire, many of the hospitals which are PFI are very seriously in debt? Is there not a rumour that the poorer north will have its money taken to the richer south?

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Earl Howe: It was for very much that reason that NHS England decided last year not to interfere with the formula but to give a 2.3% real-terms uplift to all CCGs. The last thing we want to do is to take money away from areas where health outcomes are the worst.

Baroness Quin (Lab): My Lords, does the Minister accept that in the north-east of England huge concern has been expressed about the initial proposals? This has been widely and repeatedly trailed in the press in the north-east. While I welcome what the Minister said about tackling health inequalities, can he give us an assurance that the most vulnerable communities and the most vulnerable people will not lose out as a result of this consultation?

Earl Howe: There are two elements to consider here. One is the target allocation, which is what NHS England is currently working on, and the other is the actual allocation—the money given to individual areas. The task for NHS England will be to decide how quickly or slowly to move from current allocations to the target. The key will be not to destabilise any NHS area in that process.

Lord Harris of Haringey (Lab):I do not think the noble Earl answered my noble friend Lord Hunt’s Question about the discussions that have taken place between the Government and NHS England on this topic. Will he tell us what steer the Government have given on these matters?

Earl Howe: We give no steer. As I said to the noble Lord, Lord Hunt, the principles on which NHS England should operate are clearly of concern to Ministers—namely, equal access for equal need, the need to take account of health inequalities in an area, and not destabilising the NHS. We also believe that NHS England should be transparent in whatever it does. Those are legitimate concerns for Ministers, but we do not seek to steer NHS England in any particular direction.

Baroness Hussein-Ece (LD): Will the Minister reassure me that child and adolescent mental health services will be given sufficient weight in these discussions?

Earl Howe: My Lords, ACRA has recommended that CCG mental health services allocations should be set using the same overall approach as that for other hospital and community health services. That means that a large part of the allocation is linked to the diagnoses reported for people registered with each GP. That makes the formula very sensitive to need. It has the potential to improve the way we allocate resources for mental health services, in particular.

Lord Hunt of Kings Heath: My Lords, will the noble Earl arrange for NHS England to meet interested parliamentarians before it takes its decision at the meeting next month?

Earl Howe: My Lords, I will certainly feed that request back to NHS England.

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EU: Regulation on Chemicals

Question

3.22 pm

Asked by Lord Hoyle

To ask Her Majesty’s Government what steps they are taking to enable small and medium-sized enterprises to meet the requirements of the European Union Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con):My Lords, we recognise the concerns, particularly of small businesses, about burdens arising from the EU regulation on the registration, evaluation, authorisation and restriction of chemicals. We welcome the recommendations for better guidance for small businesses in the recent report of the Prime Minister’s business task force. These closely reflect the work that we have been doing to bring together those interested, including the Commission and UK industry, to develop guidance that is more focused and relevant to SMEs.

Lord Hoyle (Lab): I thank the Minister for that reply. I know that he is very knowledgeable and has a lot of expertise in this matter so perhaps I may ask him to spell out in a little more detail, in relation to SMEs, whether they will they be given financial assistance; whether they will be allowed to use these substances until alternatives are brought forward; how this will be licensed; and whether they will have the right of appeal.

Lord De Mauley: My Lords, it would take me quite a while to answer all those questions properly. However, in the context of the financial question he asked, there are two aspects to this—the first is about fair cost-sharing, and the second about fee levels. Businesses tell us that a major concern is the lack of transparent and fair cost -sharing when companies are pooling data on the same substance. As a result, that was the top recommendation for helping SMEs in the review report. There is a commitment across the board to sort that out, and we are playing a major role in it. As regards fee levels—that is, for fees payable to the European Chemicals Agency—the revised fee levels were voted through by the UK and other member states and came into force in March. They mean that the smallest companies are now eligible for fee discounts of up to 95%, which can mean a one-off registration fee of as little as €64.

Lord Vinson (Con): My Lords, is this not another example of the perverse effects of EU overregulation? Thousands of products that have been with us and fully approved for many decades by our own safety regulation authorities are now to be banned; and that, in many instances, will put out of work small businesses which cannot afford the very high costs of trying to prove that something that is safe, is safe. Is this really the sort of democratic situation we want to be in—where our own Ministers can do nothing to put this matter right except mumble about trying to ease the pain in some way or another? The actual effect will be devastating on small businesses. It is a gross pity that we cannot control these affairs ourselves.

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Lord De Mauley: My Lords, it might be helpful if I quote the words of the Chemical Industry Association to the business task force. It said that,

“we see REACH as a positive development and support its principles. It has made many businesses outside our sector realise that they do in fact use chemicals every day and that they also have to comply with controls. For us, this is an important step towards achieving safe chemical management and we support the scope and objectives of the legislation as a consequence. However”—

in line with what my noble friend says, it goes on to say that—

“interpreting the legislation is proving extremely complex”.

Reducing those burdens is the focus of our attention here and in Europe.

Lord Brookman (Lab): My Lords, I think that the whole House is concerned about the future of manufacturing in the United Kingdom, and we are keen to see a strong manufacturing base. My noble friend Lord Hoyle has touched on a very complicated industry on which the Minister has given positive answers. Therefore, could the Minister advise—

A noble Lord: No.

Lord Brookman: No? Can he tell me then—can he tell the House—how applications from companies in the United Kingdom to use banned substances while alternatives are being developed will be judged? What will be the cost of such applications to the companies themselves? Is the Minister happy with that?

Lord De Mauley: My Lords, I touched on the matter of cost earlier, but the noble Lord will appreciate that this is definitively a complex area, regardless of how we regulate it. Chemicals are a complicated business and they need careful attention. However, I am now going to go into some technical language.

Adding a substance to annexe 14 is a multi-stage process involving several factors. The ECHA has recently finished conducting a public consultation on its draft recommendation. It will then consider the opinion of the member state committee in its final recommendation to the European Commission. It is important to stress that this is a recommendation. The ECHA does not have the power to ban a chemical. It is the European Commission, in conjunction with member states and the European Parliament, which decides whether to take a recommendation forward to add a chemical to annexe 14. I emphasise that if a substance is added to the annexe, it does not constitute a ban. Instead, it is the trigger for industry to make the case for continued authorised use of a chemical.

Lord Forsyth of Drumlean (Con): My Lords, is my noble friend’s quote from the trade association not a classic example of how big business loves regulation which destroys small business and removes its competition? What has happened to the Government’s initiative to stop the continuing gold-plating of legislation from Europe? Is it simply to say that nothing can be done because we cannot change European regulations?

Lord De Mauley: As my noble friend asks about gold- plating, perhaps I may say that REACH is a directly acting regulation so there is little scope for gold-plating.

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However, the UK approach is in fact the opposite of that; for example, our approach to enforcement is to help companies get back into compliance. My noble friend might like to know that the Environment Agency has developed helpful tools for that process. It uses its expertise to look for illegal use of restricted chemicals, and it can then focus on suspected wrongdoing with little or no burden on compliant companies.

Lord Cormack (Con): My Lords—

Lord Knight of Weymouth (Lab): My Lords, there are significant consequences for small and medium-sized enterprises of incomplete registration. Can the Minister please tell us how many businesses have already been informed by the European Chemicals Agency that their registration is incomplete, and what action has he taken to ensure that businesses complete all of the agency’s registration requirements in time to avoid those significant consequences?

Lord De Mauley: In terms of specific numbers, no, I cannot. However, I will write to the noble Lord on his question.

Lord Cormack: My Lords, I will ask the question that I tried to ask. Would not the best tool be the use of plain English which everyone can understand, whether they are in small business, medium business or any other sort of business?

Lord De Mauley: My noble friend, as always, speaks so much sense. I am discovering, as Defra’s science Minister, that the world of chemicals does not easily lend itself to simple language. However, I will do my best for my noble friend.

Care Sector: Minimum Wage

Question

3.30 pm

Asked by Lord Beecham

To ask Her Majesty’s Government what steps they will take to enforce minimum wage legislation in the care sector, in the light of publication by Her Majesty’s Revenue and Customs of figures disclosing non-compliance with the legislation.

Lord Newby (LD): My Lords, employers found not to pay minimum wage must pay arrears plus a penalty, and may be prosecuted. From 1 October 2013, all those who break minimum wage law will be named, as an additional deterrent alongside existing financial penalties. Non-compliant employers identified during this evaluation in the care sector will meet the new criteria for naming if investigated from 1 October this year. HMRC continues to investigate every worker complaint from the care sector.

Lord Beecham (Lab): My Lords, the announcement of naming and shaming and perhaps heavier financial penalties is welcome. However, given that the HMRC

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investigation showed that 48% of care sector employers surveyed were paying staff below the minimum wage and that only a tiny number of prosecutions had been brought, what further steps will the Government take to enforce the law. and what additional resources will they make available for this purpose?

Lord Newby: My Lords, in addition to the naming and shaming, the noble Lord will have heard the Prime Minister announce today that the maximum fine payable under the law will be increased fourfold. However, the work that is done with key stakeholders is a very important element of ensuring that the law is enforced and indeed understood. The Government work very closely in this sector with the UK Home Care Association and the trade union enforcement group, of which UNISON is the principal member.

Baroness Gardner of Parkes (Con): My Lords, is the Minister aware—I have mentioned this to the House before—that self-employed carers are often paid as little as £3 per hour, and that there is no control whatever over the self-employed? People who work officially for care sources are paid the minimum wage per hour but get nothing for the travel time between jobs. It could be that for every hour they work as a carer there is another unpaid hour, which surely makes a nonsense of saying that they are getting that amount per hour. What does the Minister believe can be done to improve the situation, because the care service is very important?

Lord Newby: My Lords, if people are paid the minimum wage for hours when they are working and not being paid for travelling time between periods of work, that brings down the average amount paid per time at work to below the minimum wage. Therefore, employers are acting illegally. One of the principal findings in the study, which is the subject of this Question, is that the travelling time of people working in domiciliary care is one of the main reasons for people being paid below the minimum wage. HMRC operates under a contract from BIS to manage this process. The system has remained essentially unaltered since the minimum wage was introduced some 15 years ago, and the resources made available to it have been protected during the period of this Parliament.

Lord Morris of Handsworth (Lab): My Lords, does the Minister agree that the biggest single problem regarding deprivation and poor health is, in fact, low pay? Will the Minister therefore show support not just for the minimum wage but for a living wage?

Lord Newby: I agree with the noble Lord; the Government encourage employers to pay the living wage. However, another thing we are doing is that my colleague Vince Cable has asked the Low Pay Commission to see what scope there is for increasing the minimum wage beyond the rate of inflation without having a significant negative impact on jobs.

Lord Palmer (CB): My Lords, how many actual prosecutions have there been of those who failed to comply with this legislation?

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Lord Newby: My Lords, in the period since 2006 there have been nine prosecutions. The policy on prosecutions was set by the previous Government and is based on the concept of selective and exemplary cases. That is why the number of prosecutions is relatively low, whereas the amounts of arrears collected and the number of employers who have received penalties are significantly greater. The number of employers who received a penalty in the past financial year is 708.

Baroness Pitkeathley (Lab): My Lords, the Minister mentioned stakeholders. I believe the Government are committed to seeing service users and patients as the most important stakeholders in service provision. Since care workers often have the first and the closest contact with such service users, does the Minister believe that the way we value and support such workers is of the utmost importance? Does he further believe that the current problems with local authority budgets are bound to have an effect on both the number and the quality of care workers?

Lord Newby: My Lords, I certainly pay tribute to the work done by care workers. Obviously, local budgets are constrained. However, to the extent that local authorities are commissioning care, they have an obligation to ensure that their commissioning is done in such a way that the people providing it are not in breach of the conditions on low pay. One of the key points in this area is the provision by HMRC of a free pay and work rights helpline for people who feel that they may be suffering because they are not getting the minimum wage as a result of things such as the travelling time problem that we discussed earlier. The helpline is heavily used, but everybody who rings it will have their case looked into.

Lord Stoneham of Droxford (LD): Does not this report indicate the determination of the Government to insist on compliance with the minimum wage legislation? Within what timetable does the Secretary of State for Business expect his investigation on linking minimum wages to the living wage to come to fruition?

Lord Newby: My Lords, the Secretary of State at BIS—Vince Cable—very recently asked the Low Pay Unit to look into this matter with considerable urgency, although I do not think that he has put an absolute date on it. However, the Government take this issue extremely seriously. We hope very much that we can make quicker progress than we have in the past in raising the level of the minimum wage.

Gambling (Licensing and Advertising) Bill

First Reading

3.37 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

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Humber Bridge Bill

Third Reading

3.38 pm

That the Bill do now pass.

Lord Hunt of Kings Heath (Lab): My Lords, I reassure the House that I do not seek to oppose the passing of the Bill although it is worth remarking that we are only three years off the 50th anniversary of the timely decision by Barbara Castle during the Hull North by-election to agree to the building of the bridge.

I take the opportunity of the Chairman of Committees being at the Dispatch Box to ask him about the arrangements for obtaining copies of Scotland’s Future, the document published yesterday by the Scottish Government. My understanding is that because it is a Scottish government document the arrangements are that there is one copy in the Library of this House and one copy in the Library of the Commons. I understand why the Scottish Government might not want your Lordships to consider all the pages of the full document, but to expect noble Lords to download it will cause great concern and overtime among our rather lowly and inadequate printers. Will the Minister arrange for noble Lords to receive copies when they wish to have one?

Lord Foulkes of Cumnock (Lab): My Lords, further to the matter raised by my noble friend Lord Hunt, this is a very serious matter. The Scottish Government are proceeding as if this so-called White Paper is of no concern to the people of the rest of the United Kingdom—indeed, of no concern to this Parliament—yet constitutional matters are still reserved to this Parliament. Thanks to the noble Lord, Lord Forsyth, next Thursday we are going to have a debate of only an hour to discuss an astonishing unilateral declaration by the Scottish Government of the date of independence, assuming that this matter is going to go through without any difficulty. Much more is needed than this and I am glad that, as well as the Chairman of Committees, the Leader of the House, the Chief Whip and the Deputy Leader of the House, who is very knowledgeable on these matters, are in their places.

I suggest that, as well as what my noble friend has suggested, every Member of this House should be provided with a copy of this document. It is relevant to us and we should be considering it. Further, there should be a Statement in this House and in the other House of the implications of this document for the rest of the United Kingdom and, as well as the one-hour debate that the noble Lord, Lord Forsyth, has secured, there ought to be a full day’s debate in government time so that we can discuss the implications. If not, we are going to sleep-walk into the break-up of the United Kingdom. If that is what other noble Members want, it is certainly not what I want and I hope that we will do something about it.

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The Chairman of Committees (Lord Sewel): I could just say yes, but let me say a little more. The future of the United Kingdom is clearly a constitutional matter. The constitution, under the Scotland Act 1998, is a reserved matter, so the publication and the contents of the guide are clearly a matter of legitimate interest to all Members of this House but technically, because it is a Scottish government publication, the noble Lord is right: it is not deposited in the Printed Paper Office and the Scottish Government have not made paper copies of the guide available to the PPO. However, photocopies of the abstract of the guide have been in the PPO since yesterday. The PPO will print, on demand, copies of the full 670-page guide for those Members who need one. Members who would like a copy of the full guide should accordingly ask for one from the PPO. However, in the interests of economy, to say nothing of saving quite a few trees, copies of the full guide will also be available for consultation in the Library.

Bill passed and returned to the Commons with amendments.

Delegated Powers and Regulatory Reform Committee

Membership Motion

3.43 pm

Moved by The Chairman of Committees

That Lord Horam be appointed a member of the Select Committee, in place of Baroness Gardner of Parkes, resigned.

Motion agreed.

Small Companies (Micro-Entities’ Accounts) Regulations 2013

Motion to Approve

3.43 pm

Moved by Viscount Younger of Leckie

That the draft regulations laid before the House on 23 October be approved.

Relevant document: 12th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 26 November.

Motion agreed.

Financial Services (Banking Reform) Bill

Report (2nd Day)

3.44 pm

Relevant documents: 8th and 12th Reports from the Delegated Powers Committee.

Clause 30: Overview

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Lord Newby (LD): My Lords, the Government are committed to bringing payment systems under formal economic regulation to address deeply rooted failures in the UK’s payments market. In Committee, the Government tabled amendments to establish the new Payment Systems Regulator. The Government are now introducing a small number of further provisions and making amendments to some of the clauses previously tabled to ensure that the regulator is able to perform its functions effectively and that the right procedures apply to powers contained in the Bill.

First, these amendments will introduce provisions modelled on measures in the Financial Services and Markets Act 2000 which prohibit the regulator and those working for or on behalf of it from disclosing confidential information without the consent of the information owner. The prohibition will be enforced by a new criminal offence. However, further provisions will permit confidential information to be disclosed to certain prescribed persons in specific circumstances, including the provision to the regulator of certain information held by the Bank of England. This will be an important element of the Payment Systems Regulator’s regulatory regime. Without a prohibition on the disclosure of confidential information, people may be dissuaded from providing to the regulator important information which would assist it in the discharge of its regulatory functions.

The Government are bringing forward a number of other amendments which mirror provisions that already exist for the FCA under the Financial Services and Markets Act. The FCA will be able to collect levies for the purpose of maintaining adequate reserves for the regulator, which will help it to meet any contingencies. Another amendment will require that the regulator uses a sum equal to its enforcement costs for the benefit of its regulated population by reducing their levy the following year. A further amendment will ensure that the FCA does not have to produce a cost-benefit analysis when drawing up fee-levying rules to govern the collection of fees to meet the costs of the Payment Systems Regulator.

The other amendments tabled today will ensure that the right procedural requirements apply in respect of certain powers in the regulator clauses. The regulator will have a power to direct participants to take or not take specified action, and amendments are tabled to expand the concept of a “general” direction that applies to more than one person. The consequence will be that more directions fall within the category to which consultation requirements apply. Another amendment will require the Treasury to publish its decisions to designate payment systems to bring them within the regulator’s scope. The amendments also make some technical drafting changes to assist the reader of the legislation, as well as some consequential amendments to other legislation to include references to the regulator—for example, to ensure that the Freedom of Information Act applies to information held by it.

Overall, this set of provisions will contribute to the creation of a robust and well functioning regulatory regime for payment systems that can deliver on the Government’s objectives. I commend these government amendments to the House.

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There is also an amendment in this group in the name of the noble Baroness, Lady Noakes. In Committee, the Government tabled amendments which included a provision for the regulator to order banks to give indirect access to payment systems to other financial institutions. The noble Baroness has tabled amendments to this power with a view to addressing a concern that ordering a bank to provide another institution with indirect access to a payment system would expose the access-providing bank to additional operational and compliance risks. I should like to reassure the House that the amendments tabled by the noble Baroness are not required to address the concerns that have motivated them.

This power was designed to serve as a necessary back-stop in case banks with direct access to payment systems reacted to being brought within the regulator’s scope by ceasing to provide indirect access. This would have left smaller players with no access to the vital systems. The Government envisage that the regulator will be likely to exercise this power only in such a situation. It would be used to safeguard the position of the smaller banks reliant on the larger banks for continued access to the systems and to prevent the detrimental consequences for competition in UK retail banking if such access were denied.

The Government are confident that the regulator will not exercise this power in any way that results in banks having to take on undue operational or compliance risks. The power can be exercised only if an institution applies to the regulator to exercise it. The regulator would, in practice, inform the bank which it was proposed be ordered to grant the access and would consider the circumstances of the applicant. It would be open to the bank that was subject to any order to make representations to the regulator about the applicant or any other matter concerning the application. The regulator would consider any such representations in making its decisions. It would not exercise the power if it thought to do so would expose the bank, the subject of the order, to additional risks which it would not be reasonable for it to bear. The Government would expect the regulator to provide in industry guidance more detail on the circumstances and manner in which it would consider using its powers. In the light of that, I would ask the noble Baroness to withdraw her amendment.

At this point, I shall deal with the amendments tabled by the noble Lord, Lord Brennan, to certain of the provisions of the proposed regulatory system for payment systems. I should like to reassure the noble Lord that his amendments are not necessary to achieve the end of a proportionate and balanced regulatory system, which I am sure we share. The noble Lord has proposed some additional safeguards to the Treasury’s power to designate payment systems so that they fall within the regulator’s scope. I should like to reassure the noble Lord that the power would be exercised by the Treasury only after proper consideration and where it is genuinely satisfied that the available evidence indicates the designation criteria are met, and that the exercise of its discretion to designate is necessary and proportionate in the circumstances. It is not necessary to make this an express requirement in the Bill. No such provision was included in the precedent power,

27 Nov 2013 : Column 1421

contained in Section 185 of the Banking Act 2009, under which the Treasury recognises systems for Bank of England oversight. I should also like to reassure the noble Lord that the additional matters that he has proposed should be considered by the Treasury when deciding to designate a system would in any event be considered, and that it is not necessary to state them in the Bill.

Under the procedural provisions, the Treasury must notify operators of payment systems that it proposes to designate and consider any representations made, so we do not believe it is necessary to write into the legislation that the operators must be consulted as that is, in practice, what the Treasury would do. The drafting of this provision matches that contained in the precedent—Section 186 of the Banking Act 2009. In relation to the regulator’s competition objective, it is important to maintain flexibility as to the matters to which the regulator may, rather than must, have regard when considering the effectiveness of competition, particularly given the fast-moving, high-tech nature of the payments industry. The Government do not think that it would be right to accept the noble Lord’s proposal to change this discretion to a duty. The regulator should be free to consider the factors which it considers relevant at any given time to its assessment of the effectiveness of competition. The Government also do not think it is necessary to add to the list of factors the two proposed by the noble Lord. The consistency of treatment of payment systems operators and the impact of any past or proposed regulatory intervention are matters to which the regulator will generally be obliged to have regard as a matter of good administration. For the same reason, the Government believe that the amendments tabled by the noble Lord to the regulatory principles to which the regulator is to have regard are unnecessary. The regulator, as a public authority, would need to act fairly and consistently, and not take action if not necessary or not justified on the basis of the evidence available.

In relation to the regulator’s innovation objective, the Government believe that the noble Lord’s suggestion to supplement it with the objective of promoting the creation and sustaining of a regulatory environment that is conducive to innovation is unnecessary. It is implicit that the regulator will consider how its system of regulation can best support innovation, and it will exercise its regulatory powers only where it thinks that will serve to promote innovation.

On the regulator’s power to order a disposal of an interest in an operator of a payment system and its power to vary certain agreements relating to payment systems, the Government disagree with the noble Lord’s proposal that these powers should be exercisable only where the Competition and Markets Authority has decided that the interest held in the operator of the system has resulted, or is likely to result, in a substantial lessening of competition. This is a power that the Government want the regulator to be able to exercise independently, given the specific knowledge and expertise it is hoped the regulator will acquire in relation to the markets in payment systems and the services provided by them. However, it is important that the interests of all concerned are adequately protected, so the use of

27 Nov 2013 : Column 1422

this power, and the power to vary agreements concerning payment systems, will be subject to appeal to the Competition and Markets Authority, which could, on the application of the appellant, suspend the effect of the regulator’s decision pending the determination of the appeal. It would be open to the CMA to quash the regulator’s decision and substitute its own for that of the regulator.

In summary, the Government believe that the legislation as drafted provides a balanced and fair regulatory system. In light of that, I would ask the noble Lord not to move his amendments.

Baroness Noakes (Con): My Lords, as the Minister has said, I have Amendment 138 in this group. He has explained the amendment and the answer to it so well that I did not need to bring my speaking note with me. I thank him for the comments he has made, which have fully answered the points that lay behind my tabling of the amendment. He asked me to withdraw the amendment but as I have not moved it I cannot withdraw it. However, I confirm that I shall not be moving it when we reach the appropriate time on the Marshalled List.

Lord Brennan (Lab): My Lords, I congratulate the Minister on his patience and courtesy in always being the Minister to answer my criticisms of the Bill. The patience and courtesy with which he meets my generosity in this regard fairly ought to be shared at some stage by the noble Lord, Lord Deighton.

The purpose of the amendments is to raise with the House and the Government two broad questions: first, on the need to avoid regulatory overload; and, secondly, on the need to ensure the adoption of robust regulatory principles in dealing with different sectors of the banking world. The amendments are directed at card payment systems, not the interbank arrangements to do with BACS, CHAPS, the clearance of cheques and so on, which have caused a great deal of difficulty.

First, on regulatory overload, this system, described in more than 60 sections, will be under the overall control of the Financial Conduct Authority, albeit the payment system regulatory structure will have its own chairman and board. It is a matter of real concern to note how much the FCA is being given to do in so many different regulatory contexts. This is a concern, first, as to manpower; secondly, as to skill and competence; and, therefore, thirdly, as to effectiveness.

Yesterday afternoon, in one of our debates, it was pointed out to me that the banking sector, or the financial sector, will pay for these regulatory costs. That is to state the obvious. The reality is, I assume, that the regulatory system hereby created will not be permanently in debt and bailed out annually by the financial services sector. Rather, it sets a budget a year ahead and the financial system pays it at the end of the second year in arrears. That gives the regulators two years of a relatively fixed budget. So, in determining how much responsibility to give to the regulators, including the Payment Systems Regulator, particular regard should be had to their capacity to carry out the job effectively.

It is therefore very important for the regulatory principle that the FCA and the PSR should not be given jobs they feel they have to do when present circumstances do not require them to do them.

27 Nov 2013 : Column 1423

4 pm

The card payment system works whereby you go into a shop and use your own bank card to acquire goods, the merchant bank and your bank exchange information, and the transaction is completed. The way it is carried out is that MasterCard, Visa and Amex act as the intermediate processors. It involves £140 billion a year of purchases in this country. We are number one in volume of e-commerce. The vast majority of the consultation rounds that took place in 2012 and 2013 was directed at bank lending arrangements such as I have described, CHAPS and so on, not the card payment system. Indeed, references to that system in the consultation papers were modest in the extreme and gave no real cause for any present concern. As a result, no serious regulatory impact assessment has been made of how these new powers will affect our card payment system. In the rush to put so much into this Bill in order to make sure that everything is covered, the card payment has been put in on the side, so to speak—just in case and while we are at it—not because of any present need.

In the circumstances, good regulatory principles would suggest that where a regulator is given the task of managing a sector where at present there is no significant risk, the task should be circumscribed. Do not create teams. Do not multiply unless the evidence and the circumstances require it. If you are going to interfere in a system of such great commercial importance to ordinary life in this country, make sure that the evidence is strong enough, be transparent about it and involve all those who play a part in making the system work, so that the consumer is properly looked after. Do not lurch from one temporary, superficial assessment to another inadequate reaction. This is serious stuff. If the card payment system were to be adversely affected by ill judged and inadequately prepared financial regulatory systems, in terms of their competence, our economy would rapidly suffer, as it has in several countries where people have tried to interfere without proper cause.

I am not here simply to describe the card payment system. I have put these amendments down to ensure that the regulators are not drowned in a series of things that they are expected to cover when circumstances do not presently require that. I am not objecting to an ultimate designation power provided that it is based on proper evidence which is fully debated at the time, or to the exercise of proper regulatory powers if that step becomes necessary, provided that the same regulatory standards are applied. Finally, if the objectives of all this are to promote competition and innovation, as the statute states, that also should be a high regulatory principle to be observed by the people who will be carrying out the regulation. We are being put under pressure to pass this Bill in order to ensure that the public are safeguarded. Regulation at this level is of the highest national importance in order to remedy that which is wrong, but not to overload the system by telling people to get ready to deal with that which is not yet wrong, nor is there any evidence that it might be. Yesterday, I was talking about anti-money-laundering and the fact that there were only 22 people dealing with it. The answer is not that the financial services sector will pay for it; the answer is to make it efficient and have an Act when it is necessary.

27 Nov 2013 : Column 1424

I turn briefly to the amendments, which I shall not go into in detail. The first batch of amendments, dealing with Clauses 35 and 36, relates to designation. If the regulator feels that he must interfere, he must do so by reference to clear principle and good evidence. The second set refers to process—to make sure that everybody is properly involved and consulted. The third set of amendments aims to promote competition and innovation. I assume that means that the regulator is not just a disciplinary entity: it has a range of disciplines, where required, to improve competition and innovation. Is the PSR equipped for that? Do we know—I certainly do not—how expertise is to be introduced into it to meet its statutory objectives? I do not want to be unduly critical of the Government. It is a major piece of legislation of great public importance, but it is our responsibility to ensure that it is made to work for the benefit of the public.

I close on a reasonably reassuring note: the sentiment expressed by the Government is that the PSR, and above it the FCA, will do their best to produce the best kind of regulatory activity. We are really here to talk about regulators following principles, not just rules. I hope that the Government, in reply, will seek to satisfy the House that in this particular area of card payments, safety from commerce, high principle and effective regulation will be the order of the day.

Lord Flight (Con): My Lords, I support what the noble Lord, Lord Brennan, had to say about the card payment system. Having looked at it in some detail, it strikes me that it is a classic situation of, “If it ain’t bust, don’t fix it”. There are so many other priorities that I urge the Government to think again about this one.

Lord Newby: My Lords, I think the burden of the case of the noble Lord, Lord Brennan, is that the Government are acting disproportionately in seeking to regulate something that is working very well and, in doing so, if they are not careful, they will cause major problems to a system that is currently without major problems. I hope I can reassure him that the principles that he set out at the end of his speech are ones that the Government share. There is no sense in which this regulator is being established with a remit to deal in the heavy-handed way that he fears. Given that we want to cover all payment systems, it would have been remiss to have excluded credit card payment systems. There is, however, no sudden plan to start a new, hugely intensive regime.

The noble Lord made the perfectly valid point that the regulator is slightly unusual in that it not only is a classic regulator but has a function to promote innovation as well. He raised a perfectly valid concern about the staff and whether we will be able to find people with the relevant expertise. We believe that there are people who have the relevant expertise and that it is an extremely interesting area in which innovation can be developed. The FCA will therefore be successful in finding staff who have the expertise and can do the job satisfactorily.

As I say, I am content that we are acting proportionately. We are not going to disrupt a system that is working well and we will be able to find people with the relevant expertise to manage it.

Amendment 122 agreed.

27 Nov 2013 : Column 1425

Amendment 123 agreed.

Schedule 4: The Payment Systems Regulator

27 Nov 2013 : Column 1426

(c) specify the time when any payment is required to be made to the Treasury.

( ) The directions may also require the Regulator to provide the Treasury at specified times with specified information relating to—

(a) penalties that the Regulator has imposed under section 63, or

(b) the Regulator’s enforcement costs.”

27 Nov 2013 : Column 1427

“The Payment Systems Regulator established under section 31 of the Financial Services (Banking Reform) Act 2013.””

Amendments 124 to 133 agreed.

Clause 35: Designation criteria

Amendments 133A to 133F not moved.

Clause 36: Procedure

Amendments 133G to 133J not moved.

Amendment 134 agreed.

Clause 40: The competition objective

Amendments 134A and 134B not moved.

Clause 41: The innovation objective

Amendment 134C not moved.

Clause 43: Regulatory principles

Amendments 134D and 134E not moved.

Clause 44: Directions

Amendments 135 and 136 agreed.

27 Nov 2013 : Column 1428

Clause 45: System rules

Amendment 137 agreed.

Clause 46: Power to require granting of access to payment systems

Amendment 138 not moved.

Clause 48: Power to require disposal of interest in payment system

Amendments 138A to 138D not moved.

Clause 49: The Regulator’s functions under Part 4 of the Enterprise Act 2002

Amendment 139 agreed.

Clause 50: Restrictions on exercise of functions under Part 4 of the Enterprise Act 2002

Amendments 140 and 141 agreed.

Clause 52: Duty to consider exercise of powers under Competition Act 1998

Amendment 142 agreed.

27 Nov 2013 : Column 1429

Clause 66: Appeals: general

Amendment 143 agreed.

Schedule 5: Procedure for appeals to the CMA

Amendment 144 agreed.

Clause 71: Power to obtain information or documents

Amendment 145 agreed.

Clause 72: Reports by skilled persons

Amendments 146 to 148 agreed.

27 Nov 2013 : Column 1430

(a) as a result of a requirement to provide it imposed by or under any enactment;

(b) for other purposes as well as purposes mentioned in that subsection.

(4) Information is not confidential information if—

(a) it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section, or

(b) it is in the form of a summary or a collection of information that is framed in such a way that it is not possible to ascertain from it information relating to any particular person.

(5) Each of the following is a primary recipient for the purposes of this section—

(a) the Payment Systems Regulator;

(b) the FCA;

(c) a person who is or has been employed by the Payment Systems Regulator or the FCA;

(d) a person who is or has been engaged to provide services to the Payment Systems Regulator or the FCA;

(e) any auditor or expert instructed by the Payment Systems Regulator or the FCA;

(f) a person appointed to make a report under section 72;

(g) a person appointed under section 73.

(6) Nothing in this section applies to information received by a primary recipient for the purposes of, or in the discharge of, any functions of the Payment Systems Regulator under the Competition Act 1998 or the Enterprise Act 2002 by virtue of section 49 or 51.

(For provision about the disclosure of such information, see Part 9 of the Enterprise Act 2002.)”

27 Nov 2013 : Column 1431

(4) Regulations under this section may also include provision— In relation to confidential information, each of the following is a “recipient”—

(a) making any permission to disclose confidential information subject to conditions (which may relate to the obtaining of consents or any other matter);

(b) restricting the uses to which confidential information disclosed under the regulations may be put.

(a) a primary recipient;

(b) a person obtaining the information directly or indirectly from a primary recipient.

(6) In this section—

“confidential information” and “primary recipient” have the same meaning as in section (Restrictions on disclosure of confidential information);

“specified” means specified in regulations.”

27 Nov 2013 : Column 1432

(a) the Payment Systems Regulator;

(b) the FCA.

(2) A regulator must not disclose to any person specially protected information.

(3) “Specially protected information” is information in relation to which the first and second conditions are met.

(4) The first condition is that the regulator received the information from—

(a) the Bank of England (“the Bank”), or

(b) the other regulator where that regulator had received the information from the Bank.

(5) The second condition is that the Bank notified the regulator to which it disclosed the information that the Bank held the information for the purpose of its functions with respect to any of the following—

(a) monetary policy;

(b) financial operations intended to support financial institutions for the purposes of maintaining stability;

(c) the provision of private banking services and related services.

(6) The notification referred to in subsection (5) must be—

(a) in writing, and

(b) given before, or at the same time as, the Bank discloses the information.

(7) The prohibition in subsection (2) does not apply—

(a) to disclosure by one regulator to the other regulator where the regulator making the disclosure informs the other regulator that the information is specially protected information by virtue of this section;

(b) where the Bank has consented to disclosure of the information;

(c) to information which has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section;

(d) to information which the regulator is required to disclose in pursuance of any EU obligation.

(8) In this section references to disclosure by or to a regulator or by the Bank include references to disclosure by or to any of the following—

(a) persons who are, or are acting as, officers of, or members of the staff of, the regulator;

(b) persons who are, or are acting as, officers, employees or agents of the Bank;

(c) auditors, experts, contractors or investigators appointed by the regulator or the Bank under powers conferred by this Part or otherwise.

(9) References to disclosure by a regulator do not include references to disclosure between persons who fall within subsection (8)(a) or (b) in relation to that regulator.

(10) Each regulator must take such steps as are reasonable in the circumstances to prevent the disclosure of specially protected information, in cases not excluded by subsection (7), by those who are or have been—

(a) its officers or members of staff (including persons acting as its officers or members of staff);

(b) auditors, experts, contractors or investigators appointed by the regulator under powers conferred by this Part or otherwise;

(c) persons to whom the regulator has delegated any of its functions.”

27 Nov 2013 : Column 1433

“(ca) the Payment Systems Regulator (established under section 31 of the Financial Services (Banking Reform) Act 2013);”.”

Amendments 149 to 153 agreed.

Clause 87: Power of PRA to require Regulator to refrain from specified action

Amendments 154 and 155 agreed.

Clause 89: Consultation in relation to generally applicable requirements

Amendments 156 to 158 agreed.

Clause 92: Competition scrutiny

Amendments 159 and 160 agreed.

Clause 95: Interpretation of Part

Amendments 161 and 162 agreed.

27 Nov 2013 : Column 1434

4.15 pm

Clause 104: Continuity of supply

Lord Newby: My Lords, the purpose of this amendment is to restrict the early termination of contracts by suppliers of staff to infrastructure companies in respect of which a FMI administration order has been made.

Part 6 of the Bill establishes a special administration regime, to be known as FMI administration, which will be capable of applying to what are known as infrastructure companies. These infrastructure companies are the operators of payment and settlement systems and designated service providers to those operators. Clause 104 is a continuity of supply provision, which restricts the ability of suppliers to terminate the provision of certain listed supplies to an infrastructure company once the company has entered FMI administration. The supplies that are currently within the scope of the restriction are: computer hardware or software; financial data; infrastructure permitting electronic communication services; data processing and access to secure data networks.

This amendment would add the provision of staff to this list of supplies. Agency staff are critical to the functioning of payment and settlement systems, and several payment systems are staffed entirely by agency staff. The early termination of a contract for the supply of staff could result in the discontinuation of the provision of critical services by the payment or settlement system. This amendment will ensure that staff will continue to be supplied during the period of FMI administration.

The FMI administrator would pay for the provision of staff throughout the period of the administration. If during the period of the administration the supplier goes unpaid for 28 days or more, the supplier will be entitled to terminate the supply. I beg to move.

Amendment 163 agreed.

27 Nov 2013 : Column 1435

Lord Phillips of Sudbury (LD): My Lords, when this amendment was moved in Committee on 15 October there were 10 of us here at 10.20 pm. On that occasion my noble friend Lord Newby, summing up the debate, said that the amendment was superfluous, might have problems with EU law; and was,

“not proportionate or objectively justified”.—[

Official Report

, 15/10/13; col. 528.]

I shall endeavour to briefly answer those objections this afternoon.

Talking of superfluity, nothing in the Bill touches on the issue of gaming and gaming trades of all sorts. I will give a few statistics in a minute to show just how huge gaming now is in the City of London. Then we have the issue of the EU. If I may say so, it is slightly premature for the Government to anticipate the outcome of any recommendations that the review I am suggesting might come out with. That is a long way down the line: two and a half years is the time given for the review and heaven knows what that outcome might be, least of all whether it would be in any way in breach of EU law, which is in any event changing.

Lastly, perhaps the most important ground for rejection was the thought that this proposal to set up a review to look at the effects of gaming on the wider culture—social, ethical and cultural as well as economic and commercial—would be unnecessary and objectively unjustified. If one considers that these gaming trades now amount to many trillions—some estimate quadrillions; I had never heard that word before—it seems bizarre to say that this modest proposal is disproportionate.

The background to all this is the legislation brought in in 1986 in anticipation of the big bang. The Financial Services Act 1986 contained provisions that for the first time ever said that the gaming laws of the land would not apply to these City gaming contracts. Since then there has been a staggering explosion of such contracts. They are simply massive across the world, not just here. Derivatives, which are the most common form of gaming contracts or trades but not the only one, are largely below the radar, although steps are being taken to make them more transparent and measurable. The Bank for International Settlements has calculated this year that the value of derivatives alone—the over-the-counter derivatives, as they are called—is $693 trillion. Others reckon that if you add in the other form of gaming contracts, that goes up to a figure of $1.2 quadrillion in terms of face value, which may work out in real terms at some $20 trillion, or 30% of global gross national product—or gross international product, I should say.

Let us look briefly at the collapse of the world financial centres, particularly Wall Street and London. Lehman Brothers, had 1.2 million derivative contracts on its books when it collapsed in 2008, of which the face value was $39 trillion—that is one bank. It is calculated that 80% of the income of Lehman Brothers before it collapsed was from such gaming trades. Bear Sterns’ proportion of income from gaming was even higher than 80%. The statistics show capital debts of $384 billion against a capital of $11.8 billion; that is, 30 times more. If you look at the collapses of AIG, MF Global, Merrill Lynch, Northern Rock, Countrywide, Wachovia and so on, you will find in all cases that

27 Nov 2013 : Column 1436

derivative gaming was absolutely central, usually key, to them. I just throw that back at my noble friend when he says that a review of all that, in terms of its cultural outfall, is not objectively justified.

Banks of course are still doing it today and it is creeping up, and I have no doubt that it will go on and on with its potentially malevolent effects just as heretofore. Huge profits are made from these types of contract, but on the other side of the coin they are matched by huge losses, which was the principal spur to this devastating collapse, a collapse which, do not let us ever forget, was stemmed internationally only by Governments moving in with massive sums of money—what was it here, $800 trillion? Not trillion, million—or am I wrong?

A noble Lord: Billion.

Lord Phillips of Sudbury: Yes.

I want to see, and I think that this may commend itself to the House, a cool look at just what the consequences are beyond the merely financial—you can scarcely use “merely” in terms of the numbers concerned. In Committee, I tried to remember a quote from John Maynard Keynes in 1936, when this type of trade was trivial when compared with today. He stated in his great book, The General Theory of Employment, Interest and Money:

“When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done”.

How pre-eminently true that is. The noble Lord, Lord Turner of Ecchinswell, made the bold but timeless statement when he was head of the FSA that a great deal—I am not sure that he did not say the majority—of what the City now does is socially useless, because, sadly, only a tiny proportion of these gaming trades has any commercial purpose whatever. They are pure gambling. It is not that they are buying forward raw supplies for some manufacturer to even out the ebb and flow of world prices in whatever commodity or mineral it is—nothing to do with it; it is pure, unalloyed gambling.

Lord Higgins (Con): My Lords, I am trying to follow my noble friend’s argument. Precisely what contract is he describing as a gaming contract?

Lord Phillips of Sudbury: I will do my best to explain. Let us consider Merrill Lynch. It cornered, it is estimated, 50% to 80% of the world’s copper in a series of purchases last year, I think it was. That was pure gaming. It was not to satisfy any of its customer needs; it saw potentially vast gains in moving into the world copper market and simply buying it up. Can you imagine: 50% to 80% of all the world’s copper was purchased? That was pure gaming. In fact, I think that it went wrong and was part of the collapse, but I would not lay my life on that.

These are extremely difficult issues. The cultural and ethical aspects are deep. The vast majority of people engaged in such trading are decent, good people. They are not all crooks, but the system in which they are trapped is one which, first, was at the root of the

27 Nov 2013 : Column 1437

disastrous financial and banking collapse from which we are still suffering—and there is a long way yet to go. Also, we should be interested in the wider outfall. The noble Lord, Lord Lawson, coined a rather vivid phrase last night about the cultural contamination that can go on when one part of a system loses all contact with any ethical underpinning.

Let us consider what is happening in our nation at large, and the extent to which gaming is now spreading rapidly. This week, I heard of one medium-sized town that has more than 70 betting shops. In my town, they have spread like a disease. I am the first to accept that it will be a difficult set of issues to address, but taking a cool, calm look at the wider effects of what is going on in the City of London must surely be for the public benefit.

My noble friend may argue that we have review overload and that the City must be allowed to settle down and not have any further big inquiries. We have had all sorts of them, have we not? That would be a profound mistake, because, often, the more difficult the inquiry, the more important the potential outcome. This proposal has no pre-judgment. Some of my remarks in opening the debate on the amendment, and some of my assumptions, may, in the light of a deep, extended inquiry that looks at all aspects of these difficult matters, be proved wrong. As I emphasise, it would be an open-eyed inquiry.

I refer to the Kay inquiry, which was published in July 2012. Many noble Lords will remember it. John Kay undertook an interesting and important inquiry. He stated that,

“trust and confidence are not generally created by trading between anonymous agents attempting to make short term gains at each other’s expense. Trust and confidence, or their absence, are the product of the prevailing culture”.

I want a better hold on what the prevailing culture is and what part in it is played by the City of London, which is central to our economic future and our thriving.

I hope that there will be support for this proposal. Even if the Government do not like some of the detail, I hope that they will take the nub of it away and, conceivably, come back at Third Reading with their own amendment. Such a review will speak to the prevailing values of Britain today and to the spirit of our times. In a profoundly and dangerously materialistic society, surely nothing could be more material to us all than to seek to get beneath these complex and technical facts and issues, in order to understand the wider underlying effects. I beg to move.

4.30 pm

Lord Eatwell (Lab): My Lords, I confess I was a little puzzled by the introduction to the amendment of the noble Lord, Lord Phillips. He portrayed it as being so broad as to cover virtually all derivatives trading, whereas I had presumed that he was focusing on those derivative trades that are classified as gambling—in other words, financial spread betting. The crucial issue with respect to financial spread betting is that it is free from capital gains tax and stamp duty, and that traders are typically free from income tax. This is a really extraordinary form of tax avoidance within the financial services industry. If that was what the noble Lord really

27 Nov 2013 : Column 1438

sought to focus on, a review of such forms of transaction would be very useful, particularly in light of the fact that the Australian Government have now declared that those forms of contracts are not exempt from tax. Indeed, they are subject to both income tax and capital gains tax under Australian tax law. What is remarkable is that the number of these contracts being traded in Australia has dropped dramatically.

If the noble Lord, Lord Phillips, hopes to reduce the scope of what he referred to, especially in quoting Keynes, as the financial casino, it would perhaps be valuable if there were a review—I would encourage the Government to think about having one—of the designation of particular derivative contracts as gambling, which has had these unfortunate consequences, including a significant loss of revenue to the Treasury.

The Archbishop of Canterbury: My Lords, I add my support to what the noble Lord, Lord Eatwell, said in specifying these particular contracts, not only for their tax avoidance capacity but because participation in them within the trading community leads to obvious conflicts of interest between their main work during the day, for their employer, and any potential gains or losses they have through the spread betting operations which they are capable of undertaking. In other words, it is very much a cultural problem and it is specifically to do with contracts that are considered to come under the purview of the gaming Acts. That is how I understood this amendment to apply, rather than more generally. From my point of view, I am not certain that it needs to be in the Bill, but it would certainly be useful if the Government were to say that the scope and impact of this should be looked at.

Lord Newby:My Lords, the purpose of the amendment is to require the Treasury to undertake a review of the consequences of exempting certain gaming contracts from the rule that used to provide that no gaming contract or wager could be enforced in a court of law. Such a review would consider the national, commercial and economic effects, in addition to the social, cultural and ethical effects, proposed in the equivalent amendment in Committee. I understand my noble friend’s desire to know more about the consequences of what appears to have been an extensive gambling culture in the City of London, which flourished in the derivative markets that expanded significantly following the gaming contracts rule change but was not limited to those markets.

The financial crisis exposed serious problems in derivative markets—particularly, as the most reverend Primate pointed out during our last debate on the equivalent amendment, in OTC activities. Clearly, the proliferation of such activities and the lack of adequate regulation showed up a need for change.

Following extensive international regulatory debate, a set of significant international reforms was agreed by the G20 to address these concerns. It may be helpful if I provide noble Lords with a short update on what they are. They include measures to ensure transparency by requiring all OTC derivatives transactions to be reported to trade repositories, and the requirement for all standardised derivatives to be centrally cleared and, where appropriate, traded on electronic platforms.

27 Nov 2013 : Column 1439

These reforms are now being implemented in the UK and should go some way towards limiting the risks associated with these instruments.

So far as the wider effects of gaming in the City are concerned, the PCBS undertook an extensive and wide-ranging examination of the professional standards and culture of the UK banking sector. Its final report made a number of findings on the existing standards and culture in the banking sector, and recommendations as to what might be done to improve the position. We are seeking to give effect to those recommendations in this Bill. As the noble Lord will be aware, we will have a debate on the broader cultural aspects of the PCBS’s report next week.

In the circumstances, I am not sure that a formal Treasury review, as proposed by the noble Lord, is the best way forward. In Committee, I suggested to him that a more appropriate way forward to address his concerns might be for him and, possibly, other Members of your Lordships’ House to work with a think tank that specialises in financial services to undertake such a review. The precedent I had in mind was the review of the banking sector undertaken in the previous Parliament. The Future of Banking Commission was chaired by David Davis MP and included not only my colleague Vince Cable but the noble Lord, Lord McFall. That report had a major impact at the time in influencing the consideration of how we should be looking at the banking sector. The advantage of such a structure over a formal Treasury structure is that it enables a wide range of individuals, including serving politicians, to sit on it. That is much more likely to happen if it is done under the aegis of that sort of think tank than if it is initiated by the Treasury. As a result, when the report came out, it commanded a broad degree of public respect.

I take the point made by the noble Lord, Lord Eatwell, and the most reverend Primate the Archbishop of Canterbury about the specific consequences of potential tax avoidance or evasion by people involved in this sector. I undertake to discuss that with my colleagues in the Treasury in the context of measures that might be brought forward in a future finance Bill. I agree that at first sight it appears to be a loophole that we should have a look at. As noble Lords know, the Government have devoted considerable resource and attention to these issues. I am sure my colleagues in the Treasury will be happy to have a look at the issue.

With those suggestions, I hope my noble friend will feel able to withdraw his amendment.

Lord Phillips of Sudbury: I thank the Minister for what he said. I am particularly pleased to hear him say that he will take up the two practical points made by the noble Lord, Lord Eatwell, which are entirely germane to the review that I was thinking of. That will be an important step forward. I am obviously disappointed that the Government will not go further, but I do not think that I can take the matter any further today.

In opening, I should have said how grateful I was to two professors at the University of Essex, on whom I relied substantially for a lot of the statistics: Professor Sikka and Professor Markose. With that, I beg leave to withdraw the amendment.

Amendment 164 withdrawn.

27 Nov 2013 : Column 1440

Lord Eatwell: My Lords, as noble Lords will see on the Marshalled List, Amendment 165 would insert a new clause entitled “Duty of care”. Over the past several months, we have seen a variety of scandals which have, let us say, polluted the relationship between banks and their customers, particularly those holding household accounts or those which are small or medium-sized enterprises. We have had the PPI scandal, the scandal over the mis-selling of interest rate swaps and now newspaper headlines cover the accusations which come from within the Government that RBS has been winding up small firms and seizing their assets to its own advantage. Just yesterday, the Governor of the Bank of England, Mr Carney, referring to RBS, said that this behaviour is a fundamental violation of the integrity of the banking relationship.

The amendment is addressed directly towards the banking relationship. It is in the best interests of the banking industry and, indeed, of the UK economy as a whole, that that relationship is repaired and that trust is restored between the ordinary customer and his or her bank. The amendment is carefully drawn. It proposes first that, with respect to core services, a ring-fenced body will have a fiduciary duty towards its customers. Not being a lawyer, I went to the law library in my college to check that I knew exactly what “a fiduciary duty” actually meant. I quote from a law textbook, which says:

“A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is actually accepted by the other person. Mere respect for another individual’s judgment or general trust in his or her character is ordinarily insufficient for the creation of a fiduciary relationship. The duties of a fiduciary include … reasonable care of the assets within custody. All of the fiduciary’s actions are performed for the advantage of the beneficiary”.

The law textbook which I consulted also went on to describe the way in which the courts have interpreted this relationship, embracing,

“legal relationships such as those between attorney and client, Broker and principal, principal and agent”.

It is striking that the Securities and Exchange Commission in the United States has now passed a regulation which imposes a fiduciary responsibility on those regulated by the SEC.

The fiduciary duty to which I refer in the amendment is with respect to “core services”. I remind the House what that means. The core services are the facilities for the accepting of deposits or other payments into an account which is provided in the course of the core activity of accepting deposits, facilities for withdrawing money or making payments from such an account, and overdraft facilities. It is that relationship of depositing

27 Nov 2013 : Column 1441

your money in the bank which then says that the bank has your best interests at heart in looking after your money. That is the case of the fiduciary responsibility.

The amendment goes on to say that, with respect to other financial services provided by a ring-fenced organisation, there should be a “duty of care”. I returned to the law textbook, just to make sure that I knew the difference between fiduciary responsibilities and “duty of care”. I was told that a duty of care is a,

“legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence”.

It goes on to discuss the case law and common law associated with the notion of duty of care.

4.45 pm

It seems that in restoring trust to our banking system, which has been so seriously eroded by the various scandals to which I referred, nothing could be better than a clear fiduciary duty with respect to the acceptance of deposits and a duty of care with respect to the other activities of a ring-fenced bank. Therefore, for example, if a small or medium-sized enterprise is in trouble, it will be the duty of the bank to help that enterprise wind up if necessary in a way which best safeguards the owner of the small or medium-sized company. It would not be a duty of care if the bank simply forced a small company into receivership in a way which resulted in financial benefit to that bank. This amendment would therefore first impose the fiduciary relationship which I am sure most people thought they had with their bank but did not have, and the duty of care, which has been so sadly neglected over the past few years.

In reply to the discussion of this amendment in Committee, the noble Lord, Lord Deighton, put forward four objections. He said that, first, the main thing the Government were doing to protect customers was to encourage competition. Of course, competition may be helpful and may help to protect customers. However, we are dealing with an industry in which there is severe asymmetric information—that is, the information and the skills that the bank has are not matched on the other side by the skills of the customer. That is why we need to ensure that the bank regards its responsibility as a responsibility of trust with respect to the customer.

The noble Lord then said that surely this was covered by contractual relationships. However, we are not looking at a contractual relationship—a division of rights and responsibilities previously agreed and divided between equal partners to a contract. We are considering simply the deposit of a family’s or of a small firm’s money within a bank, and the bank’s attitude towards its responsibility to that family or small business. Therefore we are not talking about contractual relationships.

The noble Lord, Lord Deighton, then said that if bankers were given a fiduciary responsibility, they would not understand it; they would not understand the range of their responsibilities. First, since other professions are perfectly capable of understanding the notion of fiduciary responsibility, why should bankers not understand it? The alternative he proposed of

27 Nov 2013 : Column 1442

listing specific responsibilities always has the problem that once you have a specific list you leave things out at the end. In an industry in which there is so much innovation, specific lists are likely to be inadequate. Finally, the noble Lord said that this is unnecessary because we have FiSMA rules that already cover it. If those rules already cover the situation, why are we having this succession of extraordinary scandals, which are damaging the banking industry so badly?

Therefore, this is a point in the Bill at which we can really address the issue of the culture of banking today, by restoring trust in our banking system with a fiduciary responsibility with respect to deposits, and a duty of care with respect to other elements in financial activities. If we do that, we will have performed a major service for the banking industry, for the British economy, and for ordinary households and small firms throughout this country. I beg to move.

Lord Phillips of Sudbury: Before the noble Lord sits down, why does he not propose extending his fiduciary liability to all banks rather than just the ring-fenced entities?

Lord Eatwell: That is because I think the distinction between commercial banking and investment banking is relevant in this case. One would expect investment bankers to behave honestly and in an appropriate manner in their business transactions. I would not expect an investment banker necessarily to display a duty of care and certainly not a fiduciary responsibility whereas I really would expect a commercial banker to exercise those responsibilities in all circumstances when dealing with families and small businesses.

Lord Sharkey (LD): Before the noble Lord sits down again, I ask for a brief clarification. Ring-fenced banks may well have dealings with local authorities and pension funds, but I think that under the terms of the Financial Services Act 2012 and the FSA rules these are not legally customers; they are eligible counterparties. Did the noble Lord mean to exclude local authorities and pension funds from the protections he sets out in his amendment?

Lord Eatwell: I am very grateful to the noble Lord for his comments. I had overlooked that point. Once the House has accepted this amendment, we can move on, perhaps at Third Reading, to add the elements that the noble Lord suggests.

Baroness O'Neill of Bengarve (CB): My Lords, before the noble Lord sits down again, I offer another friendly thought—I hope. I have it in mind because the Netherlands has reintroduced a bankers’ oath analogous to an oath for physicians. As part of that move, we should note that the relationship with the persons who are here designated as customers should, indeed, properly be that of a client. This is a professional service and the fiduciary duties are in place precisely because this is a relationship not to a customer from whom one might make money but to a client to whom one owes a service.

Lord Eatwell: I am grateful to the noble Baroness. I am sure that her suggestion and, indeed, the example of the Netherlands might well be followed here.

27 Nov 2013 : Column 1443

Lord James of Blackheath (Con): My Lords, I have a reputation for introducing sidetrack issues which distract the House. However, I have just listened very intently to the noble Lord, Lord Eatwell, and I think that I disagree with most of what he said. I would like to cite a case history and then invite him to say how what he said would relate to it.

I was very concerned to read in recent weeks about the Royal Bank of Scotland being accused of deliberately pulling down companies. I believe that I have been involved in one of those cases as the person brought in from outside to engineer the kind of scenario that that bank has been accused of engineering. I shall explain what occurred and then ask the noble Lord, Lord Eatwell, how this relates to his perceptions of a duty of care and fiduciary responsibility.

Once upon a time in a muddy field in the Herefordshire area, a man who had come back from the war bought a caravan in which he lived with his wife. He hit upon the idea of a much more efficient process for aerating water for soft drinks and decided to go into production. He went from very small beginnings, with nothing more than his Army gratuity from the war, but by 1986 he was making £19 million a year profit and doing very nicely indeed. However, at that point his wife found him sleeping with his secretary and thought that that was pretty poor loyalty for nearly 40 years of dedicated support, so divorce proceedings were instigated but by this time they had a son. The son brought an action to prohibit his parents divorcing and dividing his asset between them. I believe that it is the only such action that has ever been brought.

He won his case so they had a settlement whereby the wife went to live in Monte Carlo, the husband stayed with the company and the son owned the company. However, the son now decided that his father had really not done very well with the company, although he had got it to £19 million a year, and that he could do a great deal better. So he went to Lloyds Bank. The company had nil borrowings at that time, not a penny. This is where I disagree with the noble Lord’s analysis, because it is not a question of what you do with the deposits—there is no cash being used from a bank at all here. He said, “Give me £75 million of borrowings and I will create a much bigger and better company out of this, in which we can all have a vast amount of earnings”. Lloyds Bank looked at his plan and his options and said yes. I challenge the noble Lord, Lord Eatwell, on this. The first breach in fiduciary responsibility was that the bank said yes. It was not a question of what happened with the deposit, but a question of an ill advised loan, because the company was quite adequate as it was.

Lloyds gave him the £75 million and he went out and bought the plushest factory and upgraded every bit of engineering he could to put into it. Finally, after two years he re-opened and immediately found that he was losing £600,000 a month, at which point Lloyds sent for me. I found that the company was not losing £600,000 a month. It was losing more than £1.5 million a month and at that level we would be way out. All that the bank wanted was to get its money back. One might say that it did not deserve to get it back—in some respects I would agree with that—but we got it

27 Nov 2013 : Column 1444

back in the end because we were able to break the business up into its various components. The splendid factory could be sold to Mitsubishi for quite a lot of money, the business streams could be sold for another £30 million or £40 million, and then we discovered that the company had the most valuable crop of freshwater springs in the Lake District of any British company. We sold it for tens of millions of pounds and got the bank out 100%, whereupon the son decided that he wanted to sue the bank for failure of fiduciary responsibility for lending him the £75 million in the first place. He said that the bank had engineered to bring the company down so that it could strip it out, take all his money and ruin his family and descendants for all time.

This is the reality behind what noble Lords are hearing about the Royal Bank of Scotland at the present time. Banks are pressured into making bad decisions to lend and they then take appropriate defensive action on behalf of their shareholders and depositors. That is discharging their fiduciary responsibility, but they have been put under pressure by other market forces to invest in businesses which really do not know what they are doing and when the time comes to dismantle, dismember and unbundle them, we get the sort of consequence we have had here. This individual failed in his action against the bank for having stolen his company, as he put it. He is now very ill, I am sorry to say, and is unlikely to last long in this world. His family is ruined completely—it has lost everything. Is that a fiduciary responsibility? Yes. The bank should have looked much more closely at the options that were available to the business at the time and should have looked to see what expertise was going to be brought in, and it did not. As to whether there is a duty of care, that is a very simple and separate issue running alongside. I think that there is and that that is where the concentration should be.

Lord Eatwell: I should point out to the noble Lord that the case he has described would come, under the terms of my amendment, under duty of care, not fiduciary responsibility.

Baroness Cohen of Pimlico (Lab): My Lords, as a lawyer I have always believed that I have a contract with my bank, inasmuch as it is making an offer capable of acceptance and I have accepted it, in the case of provision of deposit and current account services, which I believe are the areas which my noble friend Lord Eatwell is proposing to cover. I do, however, support the amendment. It never does any harm to repeat these things. By analogy with part of the criminal law, it has been illegal since 1861 to beat one’s wife, but it took the Domestic Violence and Matrimonial Proceedings Act 1976 to remind the general public and the police of their duties in the matter.

The real problem lies with how to enforce any of this. Through all these debates I have found myself wondering where our lawyers are. Why have we not been suing banks? In many cases there is a perfectly clear case of action against a bank. The answer, of course, is that they are many times bigger than us and have more resources than any individual. If the purpose of the amendment is to encourage, or indeed force, the regulators to take the action on our behalf, which we

27 Nov 2013 : Column 1445

are not about to do because of the risk of very severe financial consequences, it will be well received by everyone. In any case, I support the amendment.

5 pm

Lord Flight: My Lords, I simply add that there is surely a strong duty of care to the depositors, whose money a bank is lending. The bank has a balancing role of looking after the interests of its depositors and looking after the interests of its loan customers. I also echo the point made by the noble Baroness, Lady Cohen. The “treat your customer fairly” principle has been applied across the financial services sector and I think that, in the main, the investment management industry has put it into practice well. However, it is a nightmare to police. If the individuals are not going to be motivated to act properly, then the law, or whatever is in the regulations, will not necessarily lead to that. We can say that we will pass a law and everything will be wonderful but the question is: will people behave correctly?

Lord Newby: My Lords, I am sorry that when we discussed this amendment on a previous occasion, the Government failed to convince the noble Lord, Lord Eatwell, that his amendment was not necessary. I hope that I will have more success this time because I believe that the amendment is neither necessary nor helpful.

We all share the objective of driving up standards in banking and improving the treatment of customers. That is why the Chancellor set up the Parliamentary Commission on Banking Standards and why we have accepted the vast majority of its recommendations. However, we remain unconvinced that the noble Lord’s amendment will add anything meaningful to these reforms.

The regulator’s FSA Principles for Business already includes what is virtually a fiduciary duty. Principle 10 states:

“A firm must arrange adequate protection for clients’ assets when it is responsible for them”.

As other noble Lords have mentioned, these high-level principles also already include the principle that:

“A firm must pay due regard to the interests of its customers and treat them fairly”.

I am not sure how the noble Lord’s amendment would improve standards or help bank customers; nor do I think that he has explained what the new duties on firms really mean. When he spoke in Committee, he said:

“This will increase consumer protection and help to restore confidence of the retail customer in banks. It will raise standards of conduct because banks will know they are responsible for acting according to these duties”. —[Official Report, 23/10/13; col. 1092.]

But my question is: how will it do that? How will it, as he hopes, stop the kind of scandals that we have had in the past? I think that that is an extremely difficult question for the noble Lord to answer in that neither “fiduciary duty” nor “duty of care” in this context describes a specific, precise obligation. As I have explained before, regulators’ rules provide very specific obligations.

I should add that the Official Opposition in the other place seemed to understand this difficulty. When an identical amendment was considered in Committee there, the opposition spokesperson, Cathy Jamieson MP,

27 Nov 2013 : Column 1446

acknowledged the risk of unintended consequences or lack of clarity. She emphasised that the purpose of the amendment was to ensure that,

“customers are looked after and that banks are clear about their responsibilities and remember the part of the contractual relationship with customers that is about looking after their money”.—[

Official Report

, Commons, Financial Services (Banking Reform) Bill Committee, 16/4/13; col. 247.]

Of course, that is what we all want. That is why the Government introduced the regulatory reforms and new properly focused regulators. The FCA, in particular, will focus on protecting consumers and maintaining market integrity.

This Bill will take the process further by strengthening the regime of individual accountability and standards for those who work in firms, in line with the recommendations of the Parliamentary Commission on Banking Standards. These rules will be specific. They will be precise. They will set out the responsibilities of banking staff and senior persons to their customers. Moreover, they will be enforceable by the regulator. If they are broken, those people will be punished and could be subject to fines or public censure.

If we were to have the general duty of care or fiduciary duty as set out in the amendment, how would that be enforced? In law a fiduciary duty is enforced by the person to whom the duty is owed taking action in the courts. Does the noble Lord really believe that those people, some of the most vulnerable at the sharp end of bank practices, are likely to pursue their bank through the courts? Instead, the Government’s reforms have established a regulator with real teeth, of whom the banks will genuinely be scared—indeed, I think they are. Bolstered by a clear and binding set of banking standards rules, which specify codes of conduct and personal responsibility through the senior persons regime, this will mean a real change for consumers. The noble Lord referred to the SEC introducing a fiduciary duty in the United States. The proposed fiduciary duty in US securities law is not comparable. The proposal, on which incidentally the SEC itself has not yet taken any clear position, extends only to covering activities that involve giving advice. In any case, in the UK, when a firm provides advice to a customer, a duty of care already exists under the general law. In that respect, the US is simply looking to catch up.

To sum up, attempting to add duties of care or fiduciary duties of the kind proposed in this amendment would add nothing to the existing protections for customers. It is unnecessary and would not add any clarity to existing requirements. I hope, therefore, that the noble Lord will withdraw the amendment.

Lord Eatwell: My Lords, I regret that the Government seem to have learnt nothing since Committee stage. We have heard the repetition of high-level principles of the regulator protecting customers. What has actually happened? There have been successive scandals when customers were not protected by the regulators and successive scandals in which treating customers fairly was simply a joke.

The noble Lord also referred to a number of specific provisions. That is the great weakness of the regulatory structure. We have simply specified conditions. As we all know, that which is not specified is permitted.

27 Nov 2013 : Column 1447

The whole point of having a fiduciary responsibility and duty of care in the terms that I set out when I moved the amendment is to create a general responsibility that will be enforceable in law by individuals and, indeed, by collective actions. Therefore, it seems to me that simply saying, “We have made things better by making them more specific and providing regulators with teeth”, is not the same as providing protection for the individual, which is exactly what the amendment would do. Given that the notions of fiduciary duty and duty of care are successful in other professions, why—the Government failed to answer this question—can they not be successful in the banking profession? That question was not answered. This is so important that I wish to test the opinion of the House.

5.08 pm

Division on Amendment 165

Contents 204; Not-Contents 237.

Amendment 165 disagreed.

Division No.  1

CONTENTS

Adams of Craigielea, B.

Adonis, L.

Allenby of Megiddo, V.

Anderson of Swansea, L.

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Best, L.

Birmingham, Bp.

Boothroyd, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Campbell-Savours, L.

Canterbury, Abp.

Carter of Coles, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Corston, B.

Coussins, B.

Crawley, B.

Cunningham of Felling, L.

Curry of Kirkharle, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eatwell, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Parkside, L.

Evans of Watford, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Glasman, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

27 Nov 2013 : Column 1448

Jay of Paddington, B.

Jones, L.

Jordan, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kestenbaum, L.

Kilclooney, L.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Laming, L.

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Lea of Crondall, L.

Leitch, L.

Liddell of Coatdyke, B.

Liddle, L.

Lister of Burtersett, B.

Listowel, E.

Low of Dalston, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Martin of Springburn, L.

Masham of Ilton, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Monks, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan of Huyton, B.

Morgan, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Noon, L.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer, L.

Parekh, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Prosser, B.

Puttnam, L.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Robertson of Port Ellen, L.

Rogan, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Singh of Wimbledon, L.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Smith of Leigh, L.

Snape, L.

Soley, L.

Stair, E.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Sugar, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Tenby, V.

Thomas of Swynnerton, L.

Thornton, B.

Tomlinson, L.

Trees, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turnbull, L.

Turner of Camden, B.

Turner of Ecchinswell, L.

Uddin, B.

Walpole, L.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Williams of Oystermouth, L.

Wills, L.

Worthington, B.

Young of Norwood Green, L.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bamford, L.

Barker, B.

Bates, L.

Bell, L.

Benjamin, B.

Berridge, B.

Bhatia, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

27 Nov 2013 : Column 1449

Brown of Eaton-under-Heywood, L.

Browning, B.

Burnett, L.

Caithness, E.

Carlile of Berriew, L.

Carrington of Fulham, L.

Carrington, L.

Cathcart, E.

Cavendish of Furness, L.

Chalker of Wallasey, B.

Chidgey, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Cox, B.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Dear, L.

Deighton, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eames, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Elton, L.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Fellowes of West Stafford, L.

Fellowes, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glentoran, L.

Goodhart, L.

Goodlad, L.

Grade of Yarmouth, L.

Greaves, L.

Greenway, L.

Grender, B.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harries of Pentregarth, L.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Horam, L.

Howard of Lympne, L.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

King of Bridgwater, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lingfield, L.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luce, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Manzoor, B.

Mar and Kellie, E.

Marlesford, L.

Mawson, L.

Mayhew of Twysden, L.

Montagu of Beaulieu, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Paddick, L.

Patel, L.

Patten, L.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Rawlings, B.

Redesdale, L.

Rennard, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Roper, L.

Rowe-Beddoe, L.

Saatchi, L.

Sanderson of Bowden, L.

Sandwich, E.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

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Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Shaw of Northstead, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Suttie, B.

Taverne, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Taylor of Warwick, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tonge, B.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Tugendhat, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verjee, L.

Verma, B.

Vinson, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walton of Detchant, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

5.22 pm

Schedule 8: Functions of FCA under competition legislation

Lord Newby: My Lords, in Committee, the Government proposed that the FCA should be given competition powers, to be exercisable concurrently with the Competition and Markets Authority, to make sure that the FCA has the right tools to get the job done. The amendment that we tabled to achieve this set out the scope of the FCA’s concurrent competition powers as applying to “financial sector activities”, defined as relating to,

“the provision of financial services”.

The amendment also included a delegated power that would allow the definition of “financial services activities” to be changed in future. It was felt that allowing this definition to be amended by order helped to future-proof the legislation by providing the flexibility to adjust the scope of the FCA’s competition powers should this be warranted—for example, because some new activity that arose in the future did not qualify as the provision of financial services.

However, concerns over this were raised by the Delegated Powers and Regulatory Reform Committee, particularly that the power was too wide-reaching and unnecessary, given the breadth of the definition of “financial sector activities”. I am grateful to the committee for its efforts in scrutinising the Bill and the Government’s amendments. In the light of the already very wide definition of “financial sector activities” and the views of the committee, the Government have decided to remove this power, along with procedural provisions concerning its exercise, from the proposed legislation.

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