Commons motion to approve the draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020 - June 16

The Economic Secretary to the Treasury (John Glen)

I beg to move,

That the draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020, which were laid before this House on 24 March, be approved.

Madam Deputy Speaker (Dame Rosie Winterton)

With this it will be convenient to discuss the following motion:

That the draft Financial Services (Miscellaneous Amendments) (EU Exit) Regulations 2020, which were laid before this House on 6 May, be approved.

John Glen

I welcome my opposite number, the right hon. Member for Wolverhampton South East (Mr McFadden), to his place. He has a distinguished history of public service and I look forward to a constructive dialogue with him today and on future occasions.

As the House will be aware, the Treasury has been undertaking a significant programme of financial services legislation since 2018, introducing almost 60 statutory instruments under the European Union (Withdrawal) Act 2018. It has been an enormous privilege for me to do the vast majority of those measures. These SIs were made prior to exit day—31 January 2020—and covered all essential legislative changes needed to ensure a coherent and functioning financial services regime at the point of exit, had the UK not entered a transition period.

The European Union (Withdrawal Agreement) Act 2020 received Royal Assent in January this year. The 2020 Act contains a general rule that delays those parts of the SIs that would have come into force immediately before, on or after exit day, so that they instead come into force by reference to the end of the transition period, which we leave at the end of this year. Over the course of this year the Treasury will therefore, where necessary, continue to use powers under the European Union (Withdrawal) Act 2018, as amended by the 2020 Act, to prepare for 1 January 2021. This will involve the Treasury bringing forward a small number of SIs that, in particular, will ensure that recently applicable EU legislation will operate effectively in the UK at the end of the transition period. The SIs before the House today are two such instruments. The approach taken in these SIs is aligned with the general approach established by the EU (Withdrawal) Act 2018, providing continuity by retaining existing legislation at the end of the transition period but amending where necessary to ensure effectiveness in the UK-only context.

I turn to the draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020. From now on, I will refer to this instrument as the OTC SI. In preparation for the UK’s withdrawal from the EU on 31 January 2020, Parliament approved several EU exit instruments to ensure that the European market infrastructure regulation would continue to operate effectively in the UK at the point of exit. EMIR was updated on 1 January this year by a regulation known as EMIR 2.2, which now applies in the UK. The OTC SI that we are discussing today address deficiencies in the UK’s post-transition framework arising as a result of that update.

EMIR is Europe’s response to the G20 Pittsburgh commitment in 2009 to regulate over-the-counter derivative markets in the aftermath of the last financial crisis. EMIR mandates the use of central counterparties, known as CCPs, to manage risk between users of derivative products. EMIR has been effective in increasing the safety and transparency of derivative markets, thereby reducing the associated risks that users may face, and UK CCPs play an essential role in reducing systemic risk and ensuring the efficient functioning of global financial markets.

EMIR 2.2 introduced an updated third country or non-EU CCP supervision framework, including an updated recognition regime. This means that EU authorities can have greater oversight over third country CCPs that are systemically important to the EU. Perhaps the most substantial update in EMIR 2.2 is the ability for the European Securities and Markets Authority to tier third country CCPs according to their systemic importance to the EU as part of the recognition process. ESMA will now take on certain supervisory responsibilities for systemic third country CCPs known as tier 2 CCPs.

This OTC SI updates the UK’s recognition framework in line with EMIR 2.2 by transferring ESMA’s new powers to the Bank of England after we leave the transition period. That includes the ability to tier non-UK CCPs as part of the recognition process, and to supervise non-UK CCPs that are systemically important to the UK. The Bank of England has already been given the power to recognise non-UK CCPs wishing to operate in the UK in an earlier SI under the EU (Withdrawal) Act. EMIR 2.2 also empowers the Commission to adopt delegated Acts setting out the details of how the framework will function in practice. This includes how tiering and deference to the rules of home authorities referred to as “comparable compliance” will function. This instrument transfers the power to establish these frameworks to the Bank of England.

Since the Bank already has responsibility for safeguarding financial stability in general, and managing systemic risk in CCPs in particular, this is an appropriate conferral of functions as it allows the Bank to manage the systemic risk posed by some non-UK CCPs in a way that is appropriate for the UK. The statutory instrument therefore transfers the remaining Commission functions—including the power to deploy the so-called location policy—to Her Majesty’s Treasury.

Under EMIR 2.2, ESMA can recommend to the Commission that a third-country CCP that is felt to be substantially systemically important should lose permission to offer some services to EU clearing members, unless those services are offered from inside the EU. This is referred to as the location policy, the inclusion of which in EMIR 2.2 the UK did not support because of concerns that it could lead to market fragmentation and reduce the benefits provided by the global nature of clearing. However, the powers in the European Union (Withdrawal) Act 2018 under which we introduced the SI extend only to the addressing of deficiencies arising from withdrawal. During the passage of that legislation, commitments were made that the powers would not be used to make significant policy changes, so I am not going to deviate from that.

The OTC SI transfers the powers to use the location policy to the Treasury, subject to advice from the Bank of England and appropriate procedural safeguards and transitional provisions. I assure the House that because of the very different nature of the UK’s clearing markets, it is hard to foresee circumstances in which the Bank would appropriate the use of that tool in practice. EMIR 2.2 also makes changes to internally used supervisory and co-operation mechanisms but, as the UK is no longer part of the EU, those provisions are removed by the SI.

Finally, the OTC SI updates the recognition powers set out in the temporary recognition regime, which was established by a previous SI to enable non-UK CCPs to continue their activities in the UK after exit day, while their recognition applications are assessed. This SI updates the recognition requirements in line with the new EMIR 2.2 provisions. The Treasury has worked closely with the Bank of England to prepare the instrument and has also engaged with the financial services industry, as we have done throughout. The draft legislation has been publicly available on the legislation.gov.uk website since 24 February, and the instrument was laid before Parliament on 25 March.

In summary, the OTC SI is necessary to ensure that existing EMIR legislation will continue to function effectively in the UK from the end of the transition period, following the updates made in EMIR 2.2. In particular, it will ensure that the UK has the tools necessary to manage the financial stability risks posed by some of the largest non-UK CCPs.

Let me turn my attention towards the second of tonight’s SIs, the Financial Services (Miscellaneous Amendments) (EU Exit) Regulations 2020. Although this SI makes amendments to approximately 20 pieces of legislation, the number and nature of the amendments are modest and minor. They act to preserve the effect of recent changes to EU legislation in the UK, and in doing so limit any impact on business that would otherwise arise at the end of the transition period.

Primarily, this SI fixes deficiencies in recently applicable EU legislation, which is congruous with the Treasury’s approach to previous financial services EU exit instruments and the approach required by the European Union (Withdrawal) Act 2018. It also revokes pieces of retained EU law and UK domestic law that it would not be appropriate to keep on the statute book at the end of the transition period.

This SI contains a small number of minor clarifications and corrections to previous financial services EU exit instruments. The House will be aware of the unprecedented scale of the legislative programme that the Treasury has undertaken, which has been carried out with rigorous checking procedures. However, errors are unfortunately made on occasion, and when they arise it is important that they are corrected as soon as possible. This has happened previously, and I will continue to be completely transparent when such shortcomings become apparent.

I note that this SI also includes provisions initially included in the Cross-Border Distribution of Funds, Proxy Advisors, Prospectus and Gibraltar (Amendment) (EU Exit) Regulations 2019, which were laid using the made affirmative procedure in October 2019, when at the time it was necessary to ensure that the SI was in place prior to the previous exit date of 31 October. That SI subsequently ceased to have effect, but it is important that those provisions, which include amendments to the UK’s prospectus regime to ensure it remains operational in a wholly domestic context, are in force before the end of the transition period. Those provisions have therefore been included in this IS.

I would like to say a few words on the amendments that this SI makes to a previous EU exit instrument, the Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019, which I shall now refer to as the equivalence SI. The equivalence SI allows the Treasury to make equivalence directions for EEA states during the transition period for specified provisions. Today’s SI adds additional equivalence regimes to the scope of the power for the Treasury to make equivalence directions for EEA states during the transition period. This is through the inclusion of provisions relating to central securities depositories, which are entities that hold financial instruments and trade repositories that collect and maintain records of derivative trades.

This SI also amends the existing drafting on the length of the direction power to tie it to the end of the transition period. This will enable Ministers to make directions during the transition period to come into force at the end of the transition period, granting equivalence to the EEA for those regimes. Finally, this SI clarifies that the Treasury can impose limitations on the application of state-level equivalence decisions in granting equivalence to the EEA—for example, in response to EU conditions placed on the UK. As with the OTC SI, the Treasury has been working closely with the financial services regulators in the drafting of this instrument and has engaged with the financial services industry.

In conclusion, the Government believe that these instruments are necessary to ensure that the UK has a coherent and functioning financial services regulatory regime at the end of this year when we leave the transition period, and I hope that the House will join me in supporting them. I commend the regulations the House.

7.11 pm

Mr Pat McFadden (Wolverhampton South East) (Lab)

Like many who have spoken in the Chamber today, on the fourth anniversary of her death, my thoughts are very much with our former colleague Jo Cox and her family.

As we heard from the Minister’s opening statement, these statutory instruments are quite technical in nature. I would like to thank him for his welcome, and to thank him and his officials for providing some briefing on their meaning and effect. Overall, these instruments seek to replicate at national level the regulatory regime for financial services to which we currently subscribe—and which in many cases the UK designed—at EU level. Until the end of the transition period, we will of course continue to follow the EU’s regulatory rulebook. This is about what will happen in January if, as the Government confirmed last week, the end of this year marks the end of the transition period.

As the Minister outlined, the regulations cover areas such as money laundering, supervision, central counterparties, the cross-border distribution of funds and the desire to maintain the pre-Brexit relationship between the UK and Gibraltar on financial services. In most of these cases, they are taking the supervision of the rules governing these areas from EU bodies and transferring them to either the Treasury, the Bank of England or the Financial Conduct Authority.

On the detail, I have a few questions I would like to put to the Minister. On the money laundering provisions, why is the current duty to co-operate with supervisors in other countries being removed and replaced with the weaker power to co-operate if we so choose? In what circumstances would we not want to co-operate to tackle money laundering, which can fund everything from international terrorism to the drugs trade? On cross-border distribution of funds, can the Minister confirm that these statutory instruments enshrine the loss of passporting rights for our financial services that will result from the Government’s decision to withdraw from the single market as well as from the EU itself? On equivalence determinations, can he confirm that, although these SIs create a regime for the UK to make decisions on the regulatory regime in other countries, as yet we have no guarantee that our own regulatory regime will be regarded as equivalent by the rest of the EU?

We can only hope that this exercise in taking back control is a little more convincing than last week’s decision on border checks from the Cabinet Office. After having four years to prepare, the Government dropped their plans for border checks on goods because we simply could not implement them, even though our own goods will be subject to border checks when we export them overseas.

Paragraph 36 of the political declaration, on which the current negotiation is based, states that the UK should have concluded its equivalence assessments by the end of this month. If we are only now legislating to take the powers to do that, can that exercise possibly be completed in just two weeks’ time?

Taken together, these changes and others in similar statutory instruments represent a significant increase in the functions and power of the Treasury, the Bank of England and the Financial Conduct Authority. What accountability arrangements will there be for those bodies in the exercise of their new powers? Alongside the transfer of functions, accountability must surely be enhanced if claims of restoring parliamentary sovereignty are to mean anything in reality.

More broadly, there is an obvious contradiction at the heart of all this. These regulations are intended to ensure continuity for UK financial services at the end of the transition period, yet the Government’s stated intention for withdrawal is to erect new trade barriers between our financial services and the rest of the EU, so even as we replicate at UK level the EU regulations that we played such a big part in designing, we are pursuing a course that will be incapable of replicating the market access that we have at the moment.

That is not my judgment; it is the stated aim of Government policy. It is the equivalent of one of the shops reopening this week and putting lots of new stock in its window but telling a substantial proportion of its previous customers that they are no longer welcome to shop in the store. For all the debate there has been about Brexit, its impact on services has not been debated nearly as much as it should have been.

We are not dealing here with just-in-time supply chains and trucks on ferries; we are dealing with regulations and rules. We are taking the area that makes up 80% of our economy and, in the case of financial services, a sector in which we trade at a substantial surplus with other countries, and inserting new barriers between us and our nearest customers. The fact that the sector is resigned to that and has established alternative bases in Dublin, Luxembourg or wherever does not change the reality of it.

We do not intend to divide the House on these measures, because regulatory continuity is better than not having a regime in place at all, but no amount of duplication can avoid the basic fact that although we can replicate the rules, we cannot replicate the market access to which these rules apply at the moment and for which they were designed in the first place.

7.18 pm

Alison Thewliss (Glasgow Central) (SNP)

I welcome the right hon. Member for Wolverhampton South East (Mr McFadden) to his place, and I concur with the comments he made about Jo Cox. Jo’s family are never far from my thoughts in this place, and we do all miss her very much.

As a veteran of many statutory instrument Committees with the Minister, I must say that I have missed them terribly. It has been such a shame not to have been in all those Committees of late, but I suppose what we have in front of us this evening is a smorgasbord of delights—of things that have not gone quite right so far: things that have had to be corrected as things have moved on the EU side and bits, perhaps, that were missed in the shuffle beforehand.

As the Minister said, this is not the first time that corrections have come back before us. It is, I suppose, a symptom of the way the Government have conducted themselves during the whole Brexit shambles that these statutory instruments have come to us with a bunch of corrections and a load of other things squashed into them. It really seems that we are playing a continual game of catch-up with the EU, and even with ourselves, to ensure that the measures the UK has in place meet what the EU has written in our absence. If we want to be part of what the Minister calls a coherent and functioning system—such ambition!—we will have to keep adding on to these rules to meet what the EU has decided. These are decisions that the EU has taken, without us, about things on which it is in its interests to have co-operation. For the Brexiteers in the room, we will continue to be rule-takers in this House if we want to have any say in financial services.

As the right hon. Member for Wolverhampton South East so eloquently said, this instrument is about services and financial services, which make up a significant amount of our economy. They account for a significant number of jobs in my constituency, Edinburgh, Aberdeen and other places in Scotland besides. Those services and financial services will not have the access to the European market that they had before this Government’s reckless Brexit plans, which is very, very upsetting, particularly for Scotland, which did not vote for Brexit. We voted overwhelmingly to remain within the EU and it is deeply regrettable that we are being forced into this situation by the UK Government.

The issues around equivalence and passporting really speak to a situation which is not as good as the one that we had before. The UK Government need to think carefully about how they want to progress, because we will not have equivalence. There are the risks and the balances within equivalence about who decides what is equivalent and then whether that will suddenly stop, and that puts at risk the future of financial services particularly within the UK.

I note that there are some broadly positive things in the regulations. The UK has taken on the benchmarking regulations, adding them to the low-carbon benchmarks—climate transition benchmarks and Paris-aligned benchmarks—that the EU has proposed. It is good that we are picking them up, but all we are really doing is catching up with the EU. The EU has proposed those benchmarks and we are now catching up down the line, rather than being part of forming them in the first place. If the EU continues to develop such benchmarks, and if climate change and green finance continue to be high on the agenda, we will have to change again and think about how we manage to compete if we are not keeping pace.

The regulations mention that they transfer relevant legislative and non-legislative functions from EU bodies to HM Treasury and the Financial Conduct Authority. This speaks to the point mentioned by the right hon. Member for Wolverhampton South East that these powers are not coming to us as parliamentarians and legislators. These are powers that are being hived off to the FCA, the Bank of England and other regulators and they will be responsible, not us here in this House, for keeping checks. Again, for the Brexiteers, that is not taking back control in this House. That is taking things that were drafted by civil servants somewhere else—some bunker in the EU—in Europe and then moving them to a bunker somewhere in London where we will have very little say on them, which is hugely regrettable and, arguably, does not really help the financial services industry.

All of this is about trying to mend or fix something, patching it up and putting tape around it to try to build something coherent and functioning, when it will be less good and less useful. It will be suboptimal, as Ministers are often wont to say, and it will cost us money in the future as well. There are various figures that I could cite, but I will take, as an example, the Bank of England’s analysis, which suggests that the Brexit deal will take as much as 1.25% from GDP relative to the trend before the referendum.

Another warning is that if the Government’s proposed Brexit deal is implemented, GDP in the longer term will be around 4% lower than it would have been had the UK stayed in the EU. That will have a disproportionate impact on places such as Scotland. London may be able to insulate itself, but the further away that we get from London and from where these powers will reside in the Bank of England, the more difficult it will be. For me and my colleagues, the only sensible option is to take the matter back into Scotland’s hands and for Scotland to be an independent country and part of the EU. In that way, our financial services industry would continue to have the access that it has had and we would be where the talent and skills of people of Scotland can be best utilised for the future.

7.24 pm

Jim Shannon (Strangford) (DUP)

Before we start, may I say that, on the fourth anniversary of the death of Jo Cox, I associate my party with what has been said and convey to all her family and friends our sincerest thoughts at this present time. She certainly was a wonderful and marvellous voice in this House. Everyone can honestly say from the bottom of their heart that they miss her contributions. Even four years later, that soreness and that sense of missing are still there.

May I say that it is good to see the Minister in his place? There would not be a banking debate where he and I were not involved in some way. I am pleased to see the new shadow Minister, the right hon. Member for Wolverhampton South East (Mr McFadden), in his place, and I wish him all the best in the future as well.

I thank the Minister for bringing this issue forward. Although this measure merely ensures that the protection established under current legislation continues, it gives me the opportunity to highlight the work that must be done for consumers in the financial industry—the Minister will know of that. We are pleased with some of the progress that has been made, but we look for more. He will have listened to me numerous times on the failings of banks, and sometimes on the need for the auditing sector and the financial sector as a whole to do the right thing for the little man. From Lloyds to HBOS, with many in between, it has long been my aim in this House to see the introduction of effective mechanisms to protect those who are not on the level playing field.

The issue of over-the-counter derivates is another area that needs special consideration, and I hope the Minister will respond on it, as we need enhanced protection. An OTC derivative is a financial contract arranged between two counterparties with minimal intermediation or indeed regulation. OTC derivatives do not have standardised terms and they are not listed on asset exchange, so an inherent aspect of them is the lack of formal regulation. Although the regulation offers lip service to that, as with so many other banking aspects it is my belief that more is needed, and many right hon. and hon. Members agree with that view. Hon, Members already know that some derivative products in the past were the basis of a number of problems during the financial crisis in 2008-09, and we now find ourselves in another crisis, perhaps something equal to that time. As the Minister knows, I have recently written to him about the 200 to 300 legacy cases for the Business Banking Resolution Service. I would like him to respond on that or to indicate when I can expect a response on the way forward. If that is possible, I would appreciate it.

This debate is about our position post-Brexit, and therefore Westminster will have control. It is our responsibility, as elected representatives, and the responsibility of the Government and legislators, to ensure that the FCA and other regulatory bodies have the appropriate regulatory powers in the future for consumer protection. I look forward to the Minister’s reply on the BBRS. The legislation is great to continue, but I believe we need more. It is not enough, but it is a giant step in the right direction.

7.27 pm

John Glen

It is a pleasure to be able to respond to the points made by the right hon. Member for Wolverhampton South East (Mr McFadden), and the hon. Members for Glasgow Central (Alison Thewliss) and for Strangford (Jim Shannon). The latter made a number of points about the conduct issues associated with banks and his exchanges with me on the BBRS. I am sensitive to the fact that in the context of the loans and interventions the Government have made there are conduct challenges, but I think it would be appropriate for me to address that on a separate occasion. However, I note his correspondence.

The right hon. Gentleman addressed three clear questions to me, one of which was about the money laundering reference and the language. Just because we do not have an obligation, it does not mean to say that we do not have a desire to co-operate. The bottom line is that if there is not a reciprocal obligation on the other side, it would be perverse for us to insert language creating that obligation. As he made clear, we have consistently been leaders in regulations in financial services, in particular, and we would look to continue to press for ever higher standards in that regard.

The right hon. Gentleman’s second point was about the issues of the loss of passporting and the nature of the cross-border dynamics. Clearly, we are working through the equivalence process, which the Government are committed to. We are working closely with the Bank of England, the PRA and the FCA.

The SIs are required to ensure that the UK has a functioning equivalence framework during the transition period, and they are not linked to the ongoing UK-EU negotiations on financial services. I will come to the right hon. Gentleman’s further points and those of the hon. Member for Glasgow Central about the bigger picture at the end.

On the right hon. Gentleman’s third point about equivalence and the ability for us to make decisions, we have just updated what we had on the basis of changes that have happened since we left. EMIR 2.2, which is the location policy that was introduced, was something that we voted against, but we are now obliged to have it because those are the terms of reference that we adopted through the passage of the legislation. As I said in my earlier remarks, however, I think it is improbable that we would use that. We hold most of the systemic CCPs and we would probably not have a need to use that in an offensive way.

The hon. Member for Glasgow Central made some broader points. She pointed out the mistakes that we have made and that this had happened before. During the 60 SIs—she has participated in the vast majority of them—these have been the exceptions. This legislation was laid out in advance. It was available and accessible to everyone. My officials and officials from the regulators have worked very hard, but I concede that these mistakes need to be rectified.

On the sentiments around the notion that we will not achieve the same level of access, having the freedom to set our rules does not mean that we are automatically predetermined and predisposed to divergence. Indeed, across the globe in financial services regulation, we have taken a leadership role at the Basel Committee and in other regulatory environments. I anticipate that that is the posture that we will wish to take in future. Within the EU, when we were members, we had a leadership role in financial services.

The Government are committed to supporting the growth of financial services not only in the City but outside the south-east. The hon. Lady is correct to say that we wish to see more jobs and financial services across the United Kingdom, including in Glasgow and Edinburgh.

I have addressed the substantive points that have been raised. There was a wider discussion about the nature of the financial services negotiation and the wider negotiation, but I do not think that is in scope tonight. I hope that I have conveyed that the instruments are necessary to ensure that the UK has a coherent and functioning financial services regulatory regime at the end of the transition period, and that hon. Members across the House will join me in supporting the regulations. I commend them to the House and I hope that the conversation has been informative.

Question put and agreed to.

Resolved,

That the draft Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020, which were laid before this House on 24 March, be approved.

EXITING THE EUROPEAN UNION (FINANCIAL SERVICES AND MARKETS)

Resolved,

That the draft Financial Services (Miscellaneous Amendments) (EU Exit) Regulations 2020, which were laid before this House on 6 May, be approved.—(John Glen.)