Committee stage (Lords) (day 10) of the Financial Services and Markets Bill - Mar 23

The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)

My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Amendment 241FC

Moved by

Baroness Worthington

241FC: After Clause 71, insert the following new Clause—

“Climate and nature offsets

In Schedule 2 to FSMA 2000 (regulated activities) after paragraph 9 insert—“Climate and nature offsets(9ZA) Selling, or offering or agreeing to sell, climate and nature offsets.””

Baroness Worthington (CB)

My Lords, I am grateful to the noble Baroness, Lady Sheehan, for lending her name to this amendment. I am not at all wedded to the exact wording of it. I would welcome discussions with the Government about approaches to this issue; however, I stress that this is a really important issue that needs regulatory approaches.

Currently, my amendment would add these activities to Schedule 2 to the Financial Services and Markets Act 2000:

“Selling, or offering or agreeing to sell, climate and nature offsets”.

This would make them regulated activities and enable the setting of minimum standards by the FCA, the regulator. By “off-sets”, I have in mind the voluntary carbon market and the nascent market in biodiversity, where an entity voluntarily seeks to compensate for the greenhouse gas emissions or loss of biodiversity arising from its activities by reporting an equivalent amount of emissions reduction or removal, or biodiversity gains, outside of its boundary that it has purchased through a credit or a financial mechanism.

There are more formal markets, particularly in carbon, where participants are required to participate. These are compliance markets. It is not my intention to focus on those, although there have been incidents in such markets, where there may well also be a need for more oversight. Despite the mandatory nature of the market, there have been examples of fraud and mis-selling. There is a lack of transparency even in these markets.

I return to the voluntary market. By making the trade in climate and nature off-sets a regulated activity, the FCA could make rules setting out principles, standards or regulated guidance that off-sets must then meet. I am not seeking to tie the FCA’s hands by setting out what rules it should make; it is a complex issue. It will need to invest in relevant expertise and be led by evidence, but it does need to invest in that expertise.

This amendment is supported by financial market participants. I put on record my thanks to Scottish Widows; Railpen—the Railways Pension Scheme; the Brunel Pension Partnership, which manages the assets for local government pension schemes in the south-west; and employees of the Environment Agency and the Church of England Pensions Board. These organisations collectively are responsible for more than £250 billion in assets; they have written to me in support of this amendment, and I am sure would welcome a meeting with government to discuss it further. They tell me that it is widely known that this market is not functioning well at the moment, and that the voluntary certifications and quality codes are not delivering the transparency, reliability and quality of off-sets for financing to flow freely into projects that could make a real difference in the fight against climate change and nature loss.

Given that, to achieve net zero, the majority of firms will have to rely on some form of tradable off-set or tradable credits for their residual emissions, which could be impossible to eliminate through actual investments, regulation of this market would serve the purpose of building trust for firms to allocate finance in this area—and I agree with them. Currently the market is relatively small, but it is growing and has increased fivefold since 2018, and many have called for it to scale further, including the former Bank of England Governor, Mark Carney. The Climate Change Committee estimates it to be a $2 billion a year market, accounting for 300 megatonnes of carbon dioxide per year—around 1% of global emissions and not far from the total contribution of the UK to the climate change problem, so it is not insignificant.

However, this market in climate mitigation or activities will not scale or endure without better regulated standards that can underpin confidence in the market. As the need to demonstrate a response to the growing climate risks increases, more and more companies and individuals will be tempted to buy their way to a cleaner carbon footprint or a cleaner reputation. Already, one-third of FTSE 350 companies include off-sets in their emissions reduction plans. Off-sets account for between 35% and 80% of their pledged emissions reductions—so it is a significant piece of financial architecture that people are relying on to get to net zero.

Companies will want to be seen to do the right thing, but this will be challenging. It is extremely difficult to assess whether emissions reductions being purchased are both real and durable. This offers an opportunity to unscrupulous providers to market poor-quality products to unsuspecting companies and investors. As I said, even the regulated carbon markets have seen examples of fraud and poor-quality off-sets entering markets. In the EU Emissions Trading Scheme, the Europe-wide carbon market, the market had to be closed to overseas investments in credits, partly in response to an oversupplied market but also partly due to persistent questions about the quality of the credits entering the market.

The potential for mis-selling in this market is high. Some noble Lords may remember that, in 2011, a listed company on the Canadian stock exchange, the Sino-Forest Corporation, went bankrupt after an investigation revealed that the company’s claims were vastly out of line with reality on the ground. The case related to a standard forestry offering; it is far easier to verify whether the land has been purchased and the trees are there than it is to verify whether those forests are actually absorbing or storing carbon—an invisible commodity that we are essentially turning into a tradeable commodity. Similarly, how much biodiversity the forest may hold is a far harder thing to verify.

The difficulties of verifying this market make it very attractive for unscrupulous actors and, as excitement and financial flows increase in this market, that attractiveness to potentially rogue actors will only grow. One UK-based carbon market ratings agency has already reported that it believes that only 30% of offsets on the market are high quality, and 25%—one-quarter—could effectively be classed as having junk status. The Swiss-registered offset provider, South Pole, one of the largest in the market, had the integrity of its offering called into question by an article in Tages-Anzeiger in February this year. This sent shock waves through the industry, and a lot of attention has now been placed on the question of integrity.

Most of the focus of the carbon market quality checks is on credits generated in the biosphere—so-called nature-based solutions. Trees are the most common product to which you will find financial instruments attached, but carbon is stored in other ways, too, and it is even more difficult to verify some of those other sources of carbon store because they are far harder to count and track. Below-ground carbon in soils is one example: it is notoriously difficult to get a handle on exactly what is happening in the carbon cycle in soils. It is even harder with below-water carbon—blue carbon—stored in sea grasses and other marine ecosystems, where you cannot even see the commodity being sold. These difficulties are pronounced.

The Minister may say, “Don’t worry; normal regulations against fraud and corruption will be sufficient to protect against outright fraud and corruption”, but these markets are uniquely complex. Often the problem is not that actors are wilfully seeking to do wrong but rather that there is an unhelpful lack of independent standards in the market to help determine what constitutes an additional or biodiversity benefit. In that uncertainty, it is not just investors who will potentially find that their investments are not delivering what they expected; the whole planet is being short-changed. This is because the sale of an offset permits the continued emission of greenhouse gases, minus the guilt; and, if the offset purchase is not genuine, atmospheric concentrations, already at dangerously high levels, will continue to rise. As we saw in the latest assessment report from the IPCC, this is starting to imperil us all.

Independent observers of the integrity of this market have highlighted concerns. A report published on this topic by IOSCO, the International Organization of Securities Commissions—the global standard-setter for investment securities—explains in detail the issues with the quality of carbon credits and the lack of a uniform definition of what constitutes high quality. I will not run through them; there are at least 10 reasons why this market is complicated.

At the top line, there are questions about additionality—whether this action is genuinely additional to what would have happened anyway—and about permanence and the risk of reversal. There are risks of leakage: you may be protecting something in one area, but that activity is just displaced to somewhere else and the emissions still occur. There are concerns about double counting, registry and transparency. There are potential conflicts in the market, and there is a lack of legal clarity, no standardisation, poor data and, overwhelmingly, a very large risk of greenwashing and, from that, legal risks and potential litigation cases. We are not in a good situation today. The market is small now, but it will grow, and it is really timely to be considering whether the Government should take powers now to regulate it.

This is a volatile market, as you can imagine, such is the uncertainty, with the mis-selling of fraud and the mistaken assumptions. There have been plenty of studies into why that might be the case. I will touch on an example of why regulations are needed: pension funds. In the UK, they are now investing in forest carbon offsets for the long term. This relates to both defined benefit offerings, where there are some protections for savers, but defined contribution schemes are increasingly entering this market too.

The long-term future of the biosphere in a changed climate is deeply uncertain and pension fund advisers and managers need better guidance. They simply should not have to determine whether something they are being sold is correct with no guidance from government and no regulation. There could be risks from litigation, as I mentioned: should vendors of these products be hit with legal claims or go bankrupt, savers will be hit by that outcome.

1.15pm

In the absence of regulatory oversight and clear standards, voluntary initiatives to try to address these issues have been proposed but these are relatively underresourced, their recommendations are voluntary and their funding is uncertain, coming primarily from the philanthropic sector. These are absolutely no substitute for the Government taking action to create a regulatory framework that can build confidence in these markets. The chair of one such initiative, the Integrity Council for the Voluntary Carbon Market, Annette Nazareth, has gone on record calling for government regulation, saying that while the best place for these rules is Governments, until Governments step up,

“we’re doing our level best to mimic what a government authority could do”.

The law firm Simmons & Simmons, Natural Carbon Solutions and many other commentators have also said that regulators will want to rapidly create their own regulations to govern this market and the participants in it.

My amendment is intended to achieve that. I fully recognise that much of the Bill is deregulatory and seeks to bring financial activity to the UK with an attractive regulatory regime. I am not proposing red tape for the sake of it—I understand the Government’s desires—but I hope I have shown that the lack of any regulatory regime for offsets undermines investor confidence, creates environmental risk and suppresses a market that has the potential to deliver both economic and environmental benefit.

The fact that we are able and willing to take new powers is evidenced in the Bill: Clause 65 gives His Majesty’s Treasury the power to regulate cryptocurrencies, as we have discussed, and recently HMT gave the FCA powers to regulate funeral plans, so we are not seeing a completely deregulatory agenda. Here, we are talking about a possible funeral plan for the whole planet: it is definitely appropriate to enable regulation in this market. A world-first, smart regulatory regime for voluntary offsets has the potential to bring investors to the UK and build confidence in a product that has all too often been perceived as the wild west of greenwashing. I am open to alternative drafting suggestions, but I ask the Minister to take note of the ask from insurers, pension funds, voluntary market participants and other financial operators and commit to taking a power to create a form of regulated market as a mark of robust quality. This could be a game-changer and the UK could lead in this area. I beg to move.

Baroness Sheehan (LD)

My Lords, I thank the noble Baroness, Lady Worthington, for tabling this amendment. I totally agree with its necessity, which is why I have added my name to it. If we are to meet our statutory net-zero targets, carbon offsetting will become ever more important as we decarbonise and reach those emissions that are so hard to abate and the residual emissions that the noble Baroness spoke about.

Let me say at the outset, however, that carbon offsetting is not a solution to climate change. There is only one way to avoid catastrophic climate change, and that is to stop adding to the blanket of greenhouse gases in the upper atmosphere that is already at a higher concentration than at any time since records began. Just for the record, the May peak of carbon dioxide in 2022 was a record 421 parts per million. The highest recorded over the previous 800,000 years for which we have records was just under 300 parts per million. This increase has happened in a blink of a geological eye, over just the last 150 years since the start of the Industrial Revolution. This Committee is not the time or place to go into the impact on our planet, save to say that catastrophic events are happening at a faster pace than even the most pessimistic predictions by scientists.

As we know, the biggest contributor to greenhouse gases is the burning of fossil fuels. The second biggest is deforestation. Putting an end to both these practices is well under way but is not going fast enough. I hope that more will be done through this Bill before it becomes an Act, because it deals with the money that fuels the release of those greenhouse gas emissions.

Until decarbonisation measures bite—and resistance to them is strong; we have seen that in some of the contributions to this Committee—carbon off-sets are one tool we have to mitigate the harm of climate chaos and the destruction of nature. The market demand for off-sets is exponential and the scope for fraud in the voluntary carbon market is massive. Greenwashing is rife. I will give one example: the recent chastisement of HSBC by the Advertising Standards Authority for misleading people with some of its claims to be carbon neutral. However, we need a functioning market to off-set hard-to-eliminate sources of greenhouse gases, which will leave residual emissions. It is the role of government to enable regulators to act, which is why this amendment is necessary and why I added my name to it.

Industry is also asking government to play its part. I will quote a substantial part of the recent report by Scottish Widows, Nature and Biodiversity: the Pensions Imperative, because it says it far better than I can:

“With companies potentially needing to put billions of pounds into offsets to meet their net zero commitments, the biggest barrier to date is the opacity of the voluntary carbon market. This breeds mistrust, particularly as a number of bad actors have been exposed in the past. What could really shift the dial here is the establishment of a UK regulator for carbon offsets. This could set quality standards that corporations looking to do the right thing could trust, enabling them to allocate money with confidence in these offsets having additionality and really delivering on those climate and nature goals”.

Finally, when I was a member of the Lords Select Committee on Science and Technology, we produced a report entitled Nature-Based Solutions. The committee heard evidence from a cross-section of practitioners in the carbon credits sector, from both the science and financial communities. As the noble Baroness, Lady Worthington, said, we heard from the science community how difficult it is to quantify and monetise nature-based solutions. From the financial community, we heard that it needs a regulatory framework so that everyone can work on a level playing field and so that the market is less like the wild west—which it currently is.

I will conclude by quoting a conclusion of that report:

“We recommend that the Government provides clear regulatory standards for emerging carbon markets to ensure that any off-sets that are claimed are genuine”.

However,

“these markets will only deliver the desired results if they are properly regulated and verified to prevent inaccurate claims of carbon off-setting. Carbon and nature credits must be for benefits that are additional, measurable, and permanent”.

For carbon credits to have the impact we all want, they must have good governance backed by government.

Baroness Bennett of Manor Castle (GP)

My Lords, it is a pleasure to follow the noble Baronesses, Lady Worthington and Lady Sheehan, and to offer Green support for this amendment, which is obviously urgently needed. I essentially agree with everything that the two noble Baronesses said, particularly the point made by the noble Baroness, Lady Sheehan, that off-sets are essentially a con that should not be used to trade off against continuing fossil fuel emissions. None the less, we are where we are and they are certainly going to happen.

The complexity is really well illustrated by a recent report by HSBC, which found that $246 billion-worth of hydroelectricity depends on water provided by threatened tropical cloud forests. We think about where the funding, support and credits should go, but to maintain that electricity supply, surely the people producing the electricity should fund that. This is also a carbon store. It is a real demonstration of the way that, as the Treasury’s own Dasgupta report illustrated, the economy is a complete subset of and entirely dependent on the environment, which we are fast trashing.

The problems with the current “wild west” system have been clearly demonstrated already. In a paper this week in the journal, Frontiers in Forests and Global Change, the Berkeley Carbon Trading Project presented a study of nearly 300 carbon off-set projects, representing nearly 11% of global carbon off-set projects to date. It found that the projects were systematically overcrediting their results and delivering extremely dubious carbon off-sets. Apparently respected registries did not follow standards to make sure that projects were having a real and tangible impact on carbon levels. A particular area of difficulty was whether the projects would have happened anyway, whether or not the extra carbon credit was claimed.

I will make one final point. The noble Baroness, Lady Worthington, sought ways in which the Government might see this as an advantage. In this wild west, there is a need for extensive due diligence for any financial body to be able to claim that it has genuine, honest carbon credits that will deliver over the long term—because the climate emergency is of course a long-term project and not just for one year or five years. There is a significant cost for any company going into this and wishing to protect its reputation. If it is a regulated sector, that will make it a great deal easier for people to do due diligence and to rely on it, and not to have to do the work themselves at considerable cost, facing considerable complexity and carrying considerable risk.

The need for this amendment is obvious. The problems with off-setting both carbon and biodiversity are very clear. We should not be where we are, but we are where we are, and the amendment offers one way forward that would be good for the financial sector as well as for the planet.

Lord Tunnicliffe (Lab)

We do not have a fixed view on this proposal and therefore will listen to the response of the Government. At an individual level, when invited to pay my off-sets to British Airways, I am deeply suspicious of them making any useful contribution. My general view on this Bill is that good regulation is important, because the problem with the financial services industry is that any areas of weakness can escalate into a significant wider impact. I take the point that this area of activity will almost certainly expand and there is a good prima facie case that it should be regulated.

The Parliamentary Secretary, HM Treasury (Baroness Penn) (Con)

My Lords, the Government recognise the potential for off-setting to enable businesses to address emissions that cannot be reduced through decarbonisation strategies. As the Climate Change Committee has set out, they can play an important role in the transition to net zero.

Done well, and centred around high integrity, climate and nature off-sets through voluntary carbon credits can increase climate ambition, help mobilise finance to developing countries and provide a credible tool for the 1.5 degree transition. Done badly, and without integrity at their core, the potential for “greenwashing” clearly exists. Therefore, it is important that the voluntary carbon credits used by companies reflect genuinely additional removal of or reduction in greenhouse gas emissions.

The Government recognise that it is important to ensure the integrity of these markets if they are to play a role in mobilising investment. Concerns around the integrity of carbon and nature markets, from the supply of voluntary credits, their trading and green claims made by buyers through offsetting, must be addressed.

1.30pm

The standards for what make a high-quality credit and what would ensure integrity in this market are still under development. This is a global challenge that needs a global solution that goes beyond the UK or the financial sector alone. That is why the Government are so supportive of work to improve the integrity of voluntary carbon markets internationally. We have been a major supporter, including financially, of both the Integrity Council for the Voluntary Carbon Market and the Voluntary Carbon Markets Integrity Initiative. These are multi-stakeholder international initiatives launched under the UK’s COP 26 presidency. Both will launch their final outputs later this year, which will set out proposals for good practice in both the generation of high-quality credits and the use of such credits by organisations purchasing them in meeting their environmental targets.

The appropriate time to consider bringing this sector into regulation would be once these standards have been published and the Government have had the chance to consider and endorse them, in whole or in part. Any potential regulation can build on them. When considering any future regulations, it is also important to note that the selling or offering of climate and nature credits goes far beyond financial firms and intermediaries that could be appropriately regulated through financial services regulation. If the Government decide that this sector needs to be further regulated, we already have powers that we can use to bring the relevant financial actors under regulation through either the regulated activities order or the designated activities regime. Any new regulation must consider the end-users in the real economy who buy these off-sets and the producers of the off-sets themselves, many of which are outside the UK. It not simply a question of financial regulation.

The Government will set out our position shortly in the updated green finance strategyon both nature markets and voluntary carbon markets, including how we will build on the work of these international initiatives and decide where further action on market integrity is needed. We will also respond to the recommendations in this area from the House of Lords Science and Technology Committee, as noted by the noble Baroness, Lady Sheehan, the net zero review and the Climate Change Committee. This amendment pre-empts that wider work. Although I note that the Government have powers to regulate in this area should we wish to, I hope that the noble Baroness withdraws her amendment for now.

Baroness Worthington (CB)

I thank the Minister for her response and I am encouraged and reassured to know that those powers already exist. I will go away and consider that.

I am going to come back on a couple of points. It is true that some initiatives have been launched—I was involved in one—but they have no statutory basis at all. It is a group of individuals—business leaders and some academics—fighting it out with no governance or democratic representation. It will come out with standards, but the quality control over that process is not being led by sovereign nations. It was launched at COP 26, but there was absolutely no involvement of negotiators, member states or anything with public sector status. Although we look forward to their outcomes, something in that process may lead to less than favourable outcomes.

I ask the Minister: if we are to proceed internationally, which part of the architecture of the UN or any multilateral fora does she see acting as the holder of this important set of regulations? It cannot be left to industry to mark its own homework, nor to the voluntary sector, with its general lack of resources or certainty of funding. It needs to be led truly internationally, through member states and a multilateral process.

Perhaps the Minister would agree to write to me, because I am interested to understand how this can be done internationally. Individual member states have to lead; one or two progressive countries have to start the process, as we have seen with the green taxonomy: Europe started and now the UK has done ours. You do not always have to wait for a UN or international process, but can move forward and take leadership, especially if you are trying to make the City of London the centre of green finance.

Although I am encouraged, there are still some large questions to be answered about how we ensure quality, get the right standards, and involve democratic processes and member states—but I am pleased to withdraw my amendment.

Amendment 241FC withdrawn.

Amendment 241FD not moved.

Clauses 72 to 75 agreed.

Clause 76: Regulations

Amendment 241G

Moved by

Lord Sharkey

241G: Clause 76, page 89, line 32, at end insert—

“(3A) For each statutory instrument laid before Parliament in draft under this Act, if each House of Parliament passes a resolution that the regulations have effect with a specified amendment, the regulations have effect as amended.”Member’s explanatory statement

This would allow affirmative SIs generated by this Act to be amended by agreement of both Houses.

Lord Sharkey (LD)

My Lords, in moving Amendment 241G, I will also speak to Amendments 243A and 243B. The noble Baroness, Lady Noakes, has added her name to the last two; I am grateful for her support. I will speak first to Amendments 243A and 243B, then to Amendment 241G.

At Second Reading, I estimated—as did the noble Lord, Lord Hodgson of Astley Abbotts—that this Bill would generate at least 250 SIs. Many, if not all, of them would bring or have the potential to bring significant policy changes to the regulatory structures of our financial services industries. They would be able to do this without any significant scrutiny by Parliament. The parent Bill—this Bill—rarely sets out explicit policy changes; rather, it gives the Treasury powers to make policy changes when it has decided what those policies might be. Of course, this bypasses parliamentary scrutiny; it also, yet again, ignores the proper purpose and province of delegated legislation.

Amendments 243A and 243B propose a partial remedy. They would allow either House to insist on an enhanced form of scrutiny for SIs that it deems likely to benefit from more detailed examination and debate, as well as from recommendations to Ministers for revision. The usual SI procedures do not allow this. I think we would all accept—perhaps with the dutiful exception of the Minister—that neither the negative nor the affirmative procedure allows for proper and effective scrutiny. This is obviously true for the negative procedure but is also obviously true for the affirmative procedure. We cannot amend them and we do not vote them down.

The super-affirmative SI procedure, as set out in Amendment 243B, would allow a measure of real, detailed scrutiny; a means of hearing evidence; and a means of making recommendations to Ministers for revision. I should emphasise that the super-affirmative procedure does not produce a power to amend SIs; that remains exclusively with the Government. Paragraph 31.14 in part 4 of Erskine May characterises the procedure as follows:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form … the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.”

During the recent passage of the Medicines and Medical Devices Bill, the noble Baroness, Lady Penn, helpfully summarised the super-affirmative procedure, saying that

“that procedure would require an initial draft of the regulations to be laid before Parliament alongside an explanatory statement and that a committee must be convened to report on those draft regulations within 30 days of publication. Only after a minimum of 30 days following the publication of the initial draft regulations may the Secretary of State lay regulations, accompanied by a further published statement on any changes to the regulations. They must then be debated as normal in both Houses and approved by resolution.”—[Official Report, 19/10/20; col. GC 376.]

That is quite a good précis but it omits reference to the requirement to take account of any representations or recommendations made by a committee and of any resolution of either House. It also omits the requirement to say what these representations, resolutions or recommendations were and explain any changes made in any revised draft of the regulations.

It was during the passage of that Bill—the Medicines and Medical Devices Bill—that this House last voted to insert a super-affirmative procedure. Prior to that, according to the Library, the last recorded insertion was by the Government themselves in October 2017 in what became the Financial Guidance and Claims Act.

When not doing it themselves, the Government traditionally put forward any or all of three routine objections to the use of the super-affirmative procedure. The first is that it is unnecessary because the affirmative procedure provides sufficient parliamentary scrutiny. That is obviously not the case. The second is that the super-affirmative procedure is cumbersome. I take this to mean only that it is more elaborate than the affirmative procedure but that is precisely the point of it: it is necessarily more elaborate because it provides for actual scrutiny where the affirmative procedure does not. The third is that it all takes too long. This has force only if there is some imminent and necessary deadline but there is none in this case.

In a debate on the then UK Infrastructure Bank Bill, speaking about the super-affirmative procedure, the noble Baroness, Lady Penn, said:

“This procedure has rarely been considered the appropriate one to prescribe in primary legislation; where it has, the relevant instances have tended to be of a particularly substantive and wide-ranging sort.”—[Official Report, 4/7/22; col. 905.]

I am not sure that I entirely understand the Minister’s first point about prescribing in primary legislation, because that is the only place it can be prescribed, but I understand her second point. However, “particularly substantive and wide-ranging” exactly characterises the changes that SIs could produce in our financial services regime. That is why we propose the super-affirmative procedure.

Amendment 243B sets out the procedure for a super-affirmative SI. Amendment 243A simply says that either House may by resolution require any provision that may be made by the affirmative procedure to be made instead by the super-affirmative procedure. It is left to Parliament to decide which SIs merit the additional scrutiny.

On my Amendment 241G, 18 months ago, the SLSC and the DPRRC published simultaneous and powerful reports setting out in detail concerns that the balance of power has moved significantly from Parliament to the Executive. Part of the reason for this shift has been the abuse of delegated legislation. Cabinet Office guidance explicitly states that delegated legislation is not to be used for policy-making but is to be reserved for detailed proposals about how policy agreed in Parliament can in fact be made to work. This is not what happens. Skeleton Bills, their dependent SIs and Henry VIII provisions all essentially bypass parliamentary scrutiny.

The best current example of this kind of abuse of secondary legislation is probably the REUL Bill, which has been described as “hyper-skeletal”. It allows Ministers, via SIs and other mechanisms, to make, change or revoke policy without any meaningful parliamentary scrutiny. The Bill is a direct assault on Parliament’s interests and its constitutional role.

How could Parliament regain at least some element of effective scrutiny? Absolute rejection of SIs would probably not be desirable or workable but the ability to amend them in critical circumstances, where at issue was the whole notion of parliamentary sovereignty and effective scrutiny, may well be desirable. The SLSC report of February this year, Losing Control?: The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill, has this to say in its executive summary:

“We call for the Bill to contain an enhanced scrutiny mechanism that enables Parliament to decide that an instrument makes changes of such policy significance that the usual ‘take it or leave it’ procedures—even if affirmative—relating to statutory instruments should not apply but that a further option should be available, namely a procedure by which the Houses can either amend, or recommend amendments to, the instrument.”

What applies in the case of the REUL Bill applies to this Bill, too.

Amendments 243A and 243B, which I have discussed, would provide the powers to recommend amendments to the SIs generated by this Bill. The question of the ability to amend SIs is a bit more complicated. I asked the Library why it is that SIs are not currently amendable. There are two reasons. The first is that almost all Acts that provide for secondary legislation-making powers do not contain provisions that would enable associated instruments to be amended. In other words, to amend SIs, you would have to have the power to amend written into the parent Act. The House of Commons Information Office publication Statutory Instruments, revised in May 2008, explains this on page 5 in some detail.

The second reason is the absence of relevant parliamentary procedures that could enable amendment to take place. It is clear that it would be a nonsense to replicate all or any of the procedures used in amending primary legislation to amend secondary legislation. However, there is already a simple method for amending SIs that avoids this problem. It is set out in Section 27(3) of the Civil Contingencies Act 2004, which states:

“If each House of Parliament passes a resolution that emergency regulations shall have effect with a specified amendment, the regulations shall have effect as amended”.

Amendment 241G takes its text from the language of that Act. It simply says:

“For each statutory instrument laid before Parliament in draft under this Act, if each House … passes a resolution that the regulations have effect with a specified amendment, the regulations have effect as amended.”

The noble Lords, Lord Bridges and Lord Forsyth, used almost identical language in their Amendment 241F, which we debated on, I think, day 9.

1.45pm

Amendment 241G would not require elaborate or new procedural rules in order to amend SIs. It would simply require both Houses to agree an amendment by resolution. I do not imagine that there will be many occasions when this provision will be necessary or available in practice; that is a good thing. It would prevent abuse and would be reserved for only those cases that Parliament saw as vital and the most important to intervene on. The amendment seems to me quite likely to deter the most egregious abuses of the SI system and to restore a measure of real scrutiny to Parliament, as the SLSC has recommended.

I beg to move.

Baroness Noakes (Con)

My Lords, I have put my name to two of the amendments tabled by the noble Lord, Lord Sharkey, in this group: Amendments 243A and 243B, which would require the super-affirmative procedure to be used. I have not added my name to Amendment 241G. I am in complete sympathy with the call for Parliament to be able to amend statutory instruments; I pay tribute to the work done by the committees chaired by my noble friends Lord Blencathra and Lord Hodgson of Astley Abbotts. They have highlighted the dangerous shift to skeleton legislation with the resultant reliance on secondary legislation, which has inflicted great harm on Parliament’s ability to scrutinise and hold the Executive to account.

On the other hand, I recognise that this is a large issue that needs to be taken forward at a high level within both Houses of Parliament, and also of course with the Government. I do not believe that this Bill is the right place to start that process, although I do believe that we need to find a way of progressing the dialogue to find a way forward. I am of course concerned about the parliamentary processes around the many statutory instruments that will come under the powers in this Bill. The super-affirmative procedure is certainly better than the ordinary affirmative procedure, which is why it has my support.

In adding my name to these amendments, I am in fact hitching a ride on them in order to raise some wider issues about the statutory instruments that will come forward once this Bill is made law. This is an issue that should probably have been debated earlier in Committee but I have only recently been made aware of it. I have given my noble friend the Minister only a very small amount of notice of the nature of my concerns; I accept that she may not be able fully to answer at the Dispatch Box today.

The amendments focus on parliamentary oversight of legislation being brought in by statutory instrument. What I think we have not focused on is whether there will be adequate consultation by the Treasury before the statutory instruments are laid in Parliament. Many of the statutory instruments will of course be uncontroversial in the sense that they will merely recreate the EU law in a UK-based framework for the rules that will then be made by regulators.

However, it is entirely possible, as the noble Lord, Lord Sharkey, said, that the statutory instruments will contain significant changes from EU law. Clause 4, which allows the restatement of EU law, can be used to incorporate changes to the law within the huge range of possibilities that are allowed for by Clause 2(3). There is no requirement in Clause 4 for the Treasury to consult anyone at all before laying these statutory instruments. This is in stark contrast to the regulators, who have very clear statutory obligations to consult in respect of any rules they will be laying under the terms of the statutory instruments that give them the power.

In addition to Clause 4—this is the actual example that has come to my attention—the Treasury might choose to use the new designated activities power in Clause 8 to set up the replacement regulatory regime under UK law. As with Clause 4, the use of the Clause 8 power does not require the Treasury to consult anyone at all. The example that has been brought to my attention concerns the prospectus regime. I am indebted to the briefing provided to me by a partner in one of the Magic Circle law firms.

As part of the Edinburgh package, the Government published a policy note and a draft statutory instrument on how they intended to replace the EU prospectus rules. Put simply, the designated activities regime will be used to create the new prospectus regime when the existing EU law is repealed. The publication of the draft statutory instrument and the policy note was well received because it allowed those who specialise in this territory to get to grips with the proposed legal framework. Although the policy note was clear that the drafting was not final, it was not clear whether there would be a proper consultation on the new regime.

By way of background, there was a policy intent to deal with the issue of mini-bonds in the light of the London Capital & Finance scandal; that policy is, of course, uncontroversial. The Government were clear in their policy note that they intended to affect retail investors only and did not intend to cover things that were regulated elsewhere. It appears, however, that the chosen vehicle of relevant securities, as defined in the draft statutory instrument, also captures things with no likely impact on the retail market, including—somewhat incredibly—over-the-counter derivates and some loans, securities and financial transactions. I believe that this analysis has been made available to the Treasury via various players in the wholesale financial markets.

Although I understand that communications are constructive, there is a fundamental problem emerging: the so-called illustrative statutory instrument now seems to have morphed into a pre-final document on which no formal consultation will be held. This is important, given the significant widening of the reach of the proposals, well beyond the existing prospectus regime. I would be grateful if my noble friend the Minister could set out how the Government see the next steps for the prospectus statutory instrument and whether formal consultation will occur. I hope that she will be able to respond not only on the particular issue of the prospectus statutory instrument but, more broadly, on the extent to which the Treasury will consult across the range of replacement EU law when it brings that law forward.

Viscount Trenchard (Con)

My Lords, I declare my interest as stated in the register.

I congratulate the noble Lord, Lord Sharkey, on finding a way to amend statutory instruments. If it really is possible to change what noble Lords have always believed about SIs, that is welcome news indeed. As the noble Lord says, this procedure would be used only on the rare occasions when your Lordships’ House or another place considered it vital.

I support the noble Lord’s Amendments 243A and 243B, to which my noble friend Lady Noakes has added her name. These would create a super-affirmative category of approval process, introducing a higher bar but only after a resolution is made by either House of Parliament. I also agree with the points made by my noble friend on the prospectus directive and other matters. I support all these amendments.

Lord Thomas of Cwmgiedd (CB)

My Lords, I too support these amendments. I cannot usefully add anything in relation to the super-affirmative procedure. It seems that this an admirable proposal—but I want to say a few words about the proposed new subsection in Amendment 241G, introduced by the noble Lord, Lord Sharkey.

To begin with, it seems that, if Parliament authorises the alteration, as Parliament can do anything—as one is taught from one’s earliest days—it must be able to do something as minor, in theory, as this. Furthermore, as she always does, the noble Baroness, Lady Noakes, made a very good point that this is a very important step, but why is this not the Bill to start? There are three reasons. First, the financial services industry is of vital concern to the UK. Secondly, these instruments are drafted not by parliamentary counsel but by no doubt very competent lawyers in the Treasury—but there is a difference. Thirdly, it seems that, if the draftsman knows that bits can be corrected, that is a very good supervision of the drafting process.

However, although this is in theory a minor step, it is surprising to say that Parliament can amend statutory instruments and there are obviously consequences for our procedures. It might be appropriate for this Committee or someone—I am not sure how it is done—to say, “The appropriate committees and the clerkly authorities in this House should report on the practicality of doing this”. If it is a procedure, how likely is it to be used? More importantly, we can always find an excuse to say, “Let’s push it down the road”. This is the admirable place to start an important reform for our most important industry.

Lord Tunnicliffe (Lab)

My Lords, I do not formally have a view on these amendments. It seems that they would have wide-ranging implications, and I shall consult with colleagues throughout Parliament about how we should come back to this issue. If a piece of legislation is proposed and supported by the noble Lord, Lord Sharkey, the noble Baroness, Lady Noakes, and the noble Viscount, Lord Trenchard, you have to think that it is pretty wide-ranging—in fact, close to impossible. Whether this is the right place to address this issue is a much bigger question than whether it is a good idea. It seems a pretty good idea, but I shall listen to the Minister’s response to the key point about the right place and the right mechanism.

Baroness Penn (Con)

My Lords, these amendments would introduce new parliamentary procedures when exercising the powers in the Bill, and the Government do not believe that they are necessary.

The Government have worked hard to ensure that every power in the Bill is appropriately scoped and justified. This was recognised by the DPRRC, which praised the Treasury for

“a thorough and helpful delegated powers memorandum.”

The DPRRC has not recommended any changes to the procedures governing the powers in the Bill. That may, in part, answer the question from the noble Lord, Lord Tunnicliffe, about the right place. I have worked on enough Bills to know that that is not a frequent conclusion from the Delegated Powers Committee.

This includes the powers in relation to retained EU law. While they are necessarily broad, they are restricted in a number of important ways. First, they are governed by a set of principles that are based on the regulators’ statutory objectives. Secondly, they are limited in what they can be used for. For example, they cannot be used to create new offences. Thirdly, the powers over retained EU law are strictly limited to a subset of legislation. They can be used only to modify or restate retained EU law in financial services legislation, as set out in Schedule 1. Finally, only a small amount of primary legislation is included in the scope of this power, and it is all listed in Schedule 1, Part 4.

2.00pm

Throughout the Bill, the Government have followed relevant precedents in FSMA. For example, as I explained in a previous Committee debate, the power to designate activities to sit within the designated activities regime in Clause 8 is closely modelled on the existing power in FSMA for the Treasury to specify regulated activities through the regulated activities order, bringing financial services activities into the scope of regulation.

Parliament will play a key role in scrutinising secondary legislation made under this Bill under the normal procedures. Where the Treasury replaces retained EU law through powers in the Bill, this will almost always be subject to the affirmative procedure, with some limited exceptions specified in the Bill.

The Government have set out how they will deliver this work in practice. As part of the Edinburgh reforms, they published their approach in a document titled Building a Smarter Financial Services Framework for the UK. This describes the Government’s approach, including how they expect to exercise some of the powers in the Bill. It also sets out the key areas of retained EU law that are priorities for reform. Alongside this publication, the Government also published three illustrative statutory instruments using the powers in this Bill to facilitate scrutiny of the Bill.

My noble friend Lady Noakes asked about consultation. The Government expect that there will be a combination of formal consultation, including on draft statutory instruments, and informal engagement in cases where there is a material impact or policy change, such as where activities that are currently taking place in the UK would no longer be subject to a broadly equivalent level of regulation. The Government’s approach to future statutory instruments will be informed by these consultations and by the work of parliamentary committees that relate to these areas of regulation.

Baroness Kramer (LD)

Could I ask a clarification of the Minister—I know that I have not participated? Has she just confirmed that in the Government’s view statutory instruments will indeed be making policy change? That would be important for us to understand. I believe that is what she has just said, but I thought I should confirm it.

Baroness Penn (Con)

I can only repeat to the noble Baroness my words, which were that consultation and informal engagement, including on draft statutory instruments, will take place where there is a material impact or policy change.

Lord Deben (Con)

If my noble friend is saying what the noble Baroness asked, she is making a very serious change. To object to the changes being recommended on the basis that this is the wrong place seems to me to be quite difficult to uphold.

Baroness Penn (Con)

The Government will make those changes only within the agreed scope set out in the Bill. That is perhaps why the DPRRC was content with the approach that they were taking.

Baroness Noakes (Con)

Does my noble friend accept that the specification in Clause 3 allows for very significant changes to be made? There are many heads under which the Government could fit a change in policy, and that policy change could be significant in the context of the restatement of EU law.

Baroness Penn (Con)

The intention is to allow for the restatement within EU law or to adapt it to a situation or circumstances within the UK. As I have said, in undertaking that work the Government will seek to undertake a combination of formal consultation and informal engagement appropriate to the changes being made. As set out in the Government’s policy statement on the repeal of retained EU law in financial services, the Government aim to balance the need to deliver much-needed reforms with the need to consult industry and stakeholders. They will take the decision on the approach to this on a case-by-case basis.

I wanted to address my noble friend’s specific question on the prospectus regime. The Government intend—

Lord Tunnicliffe (Lab)

Would the noble Baroness accept that we have heard that speech before? With every complex Bill where we have sought ways to have more control over statutory instruments, we get the same speech—that it has all been worked through, that the constraints are there and so on. Those of us who have to sit through statutory instruments are growing more and more uncomfortable at the increasing number of occasions when we want more involvement and commitment. We want a situation where some variation in the instruments would be possible and this is a way forward. It may not be the right way, but this is an area of powerful area in the House—the relationship between Parliament and the Executive.

Baroness Penn (Con)

The noble Lord, Lord Sharkey, I believe, referred to two pieces of work that looked at the wider concern around procedures when it comes to statutory instruments and the House’s involvement and ability to respond to them. I can talk only in relation to the Bill before us. Our approach is consistent with the policy approach to the regulation of financial services that the Government have set out and consulted on—the FSMA model. That delegates some policy-making both to the Treasury and then, significantly, to the regulators. In the context of the Bill, we are comfortable that our approach is appropriate to the model of regulation that we are advocating in these circumstances. I recognise the wider debate but, in the context of the Bill, we are confident that our approach is right and appropriate.

Coming to my noble friend’s specific question, I think the concern is around the definition of “securities” in the prospectus regime. The Government intend to include certain non-transferrable securities within the scope of the new public offer regime that is being developed as part of the review of the prospectus regime, which delivers on a recommendation of Dame Elizabeth Gloster’s review of the collapse of London Capital & Finance. We intend to capture mini-bonds and other similar non-transferable securities that may cause harm to investors if their offer is not subject to greater regulation.

The Government are keen to ensure that business that does not affect retail investors or is already regulated elsewhere, such as trading in over-the-counter derivatives, is not unintentionally disrupted by the reformed regime. We have been engaging with stakeholders on this point to understand the concerns of industry, and we are considering what changes we can make to the statutory instrument to address them.

The Government do not agree that the use of the super-affirmative procedure in this case is appropriate. Examples where it has been used include legislative reform orders made under the Regulatory Reform Act 2001 and remedial orders made under the Human Rights Act 1998. In both cases, the powers in question can be used very broadly over any primary legislation, due to the nature of the situations that they are intended to address. The delegated powers in this Bill are not comparable with these powers, and I have already explained how the powers over retained EU law are restricted and appropriately scoped. Therefore, in the case of the Financial Services and Markets Bill, we are confident that normal parliamentary procedures remain appropriate. I therefore ask the noble Lord, Lord Sharkey, to withdraw his amendment.

Lord Sharkey (LD)

My Lords, I am grateful to all noble Lords who have spoken in this short debate. I agree with the noble Baroness, Lady Noakes, about being able to amend SIs. It is a complicated and far-reaching issue and necessarily involves the House of Commons, but we need to find a mechanism for consulting all the interested parties and formulating a plan for reform. The Minister has not mentioned this, but, as I mentioned in my speech, this is to do with the balance of power between the Executive and Parliament. Many of our committees’ reports tell us in dramatic terms that the balance of power has recently shifted very significantly towards the Executive. To change that, we need to do something about our ability to scrutinise work that comes before us. That includes being able to amend it and not relying on a toothless system of negative and affirmative SIs, and it relies on being able to amend constructively regulations that might come before us.

As the SLSC said, it is clear that there is a need for such a mechanism to amend SIs and that finding a path to this fairly quickly is important. I agree with the suggestion by the noble and learned Lord, Lord Thomas, that here and now is a pretty good place to start thinking hard about what we do before we get to Report. It is true that the volume of skeleton Bills continues to increase, as does the abuse of delegated powers in a more general sense, and I cannot see it spontaneously decreasing, unless we do something about it.

As to Amendments 243A and 243B—the super-affirmative amendments—the case for them has been accepted by all speakers, except the Minister. We shall definitely want to revisit the issue on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 241G withdrawn.

Amendments 242 and 243

Moved by

Baroness Penn

242: Clause 76, page 89, line 36, after “Act” insert “, or under any other enactment,”

Member’s explanatory statement

This amendment and the amendment at page 89, line 37, would allow any provision that may be made by regulations subject to the negative procedure under this Act, or under any other enactment, to be made in regulations under this Act subject to the affirmative procedure.

243: Clause 76, page 89, line 37, after “regulations” insert “, made under or by virtue of this Act,”

Member’s explanatory statement

See the explanatory statement for the amendment at page 89, line 36.

Amendments 242 and 243 agreed.

Amendment 243A not moved.

Clause 76, as amended, agreed.

Amendment 243B not moved.

Clause 77 agreed.

Clause 78: Commencement

Amendments 244 and 245 not moved.

Amendment 246

Moved by

Viscount Trenchard

246: Clause 78, page 90, line 32, at end insert—

“(4A) The Treasury must make regulations under subsection (3) so as to bring section 1 and Schedule 1 into force for the purposes of revoking, within the period of two months beginning with the day on which this Act is passed, the provisions mentioned in that Schedule connected with Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers.”Member’s explanatory statement

This amendment ensures that the retained EU Law which replaced the Alternative Investment Fund Managers Directive and associated legislation will cease to have effect no later than two months after the passage of the Bill.

Viscount Trenchard (Con)

I have tabled Amendment 246 to explore the Government’s willingness to move more quickly to take advantage of our new regulatory freedoms. I am grateful to my noble friend Lady Lawlor for her support as she added her name to the amendment. The alternative investment fund managers directive is perhaps the most striking example of an EU regulation that was imposed on this country in the face of strong opposition from the City, the Government and industry at the time. In 2008, Charlie McCreevy, then the EU’s internal market commissioner, assured the industry that the EU would not regulate the alternative investment funds industry, which should be left to member states to regulate or not as they chose. A 2014 report by Dr Scott James for King’s College London, sponsored by the British Private Equity and Venture Capital Association, tells the story of AIFMD very well.

Contrary to Mr McCreevy’s intention, Manuel Barroso, then president of the EU Commission, intervened in 2009 to push for an alternative investment fund managers directive in order to secure support, principally from France and Germany, for his reappointment as Commission president. The initial draft was therefore prepared without the usual preparatory work and led to harmonised regulations covering disparate organisations from the venture capital, private equity, hedge fund and property fund sectors, lumped together by the Commission as alternative investment funds. The Treasury’s initial response was weak, and the FSA was suffering from a lack of confidence and brain drain in anticipation of being broken up.

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The noble Baroness, Lady Bowles of Berkhamsted, who is not in her place today, was at the time the chairman of ECON, the economic affairs committee of the European Parliament. She rightly insisted that the directive had to be amended to correct unintended consequences, such as the risk that institutional investors and pension funds would face excommunication from global capital markets.

Anyway, it is clear that the whole AIFMD regime was politically motivated and perhaps driven by the jealous attitude of France and Germany towards the alternative funds industry, 85% of which was based in the UK. I believe that it is not that different today. In its final, enacted form, the directive imposed stringent requirements on third-country access, disclosure, leverage and depository banks. The costs and burdensome obligations of AIFMD have prevented the establishment of many challenger investment management companies and have cost the financial services industry many thousands of jobs.

Nearly seven years have passed since the referendum, and more than two years since the end of the transition period. The City is a smaller and less competitive place than it would have been without AIFMD.

I expect that the Minister will say that the industry has come around to accepting AIFMD. That may be true, to an extent, but the City’s future depends on it regaining its competitiveness. That means that it must be made possible for newcomers to enter the market. Larger asset management companies have learned how to live with AIFMD, the unnecessary and cumbersome elements of MiFID II, such as the unbundling provisions, and EMIR too, and they have hired large numbers of compliance staff to handle the onerous bureaucracy. It is not surprising that back-office staff are happy to go on doing what they do and being paid for it. The large companies are protected against the incursion of innovative challengers who go elsewhere rather than meeting the very high costs of compliance. Could my noble friend explain why the Treasury is so very slow and cautious in proposing the abolition of regulations that are unnecessary for consumer protection and continue to form part of the very bureaucratic, anti-innovation, codified rulebook that we have inherited from the EU?

As I mentioned, AIFMD is perhaps the best example of an unnecessary EU directive. It was universally resisted by the City, the Bank of England and the regulators. The Government should use the Bill to abolish it without delay. If my noble friend supports this amendment, it will send a hugely important signal that they really mean what they say about making the City the most competitive global market again. But, if the Minister will not support this, it will confirm the view of the sceptics, of whom there are a great multitude, that the Government and the regulators want to keep our cumbersome EU financial services rulebook almost exactly the same as it is today, without any significant changes.

The Government issued a call for input and have committed to explore options for the introduction of a new fund structure, the unauthorised contractual scheme, but I ask the Minister why we do not just go back to where we were before AIFMD and abolish it quickly. Only professional investors may invest in such funds anyway, and the consumer therefore needs no protection. It is not necessary to give the regulators time to consult on replacement rules, because there should not be any, and my amendment would ensure the immediate revocation of the directive and all its associated regulations. The Bill enables the Government and the regulators to do much, but I fear they will change little. It is therefore, in effect, largely an enabling Bill, and there are currently only a few clauses that bring about immediate changes. There is no time to lose; we need to start updating and simplifying the rulebook now. I beg to move.

Baroness Lawlor (Con)

My Lords, I support the noble Viscount’s amendment, to which I have added my name. My noble friend referred to the political background of the EU at the time of the AIFMD; he spoke about its impact on the industry, with great knowledge and experience, and about the opposition encountered at the time. I shall say a few words about each, beginning with the policy background, noting other differences between the UK sector and the EU sector, and other concerns raised by the House of Lords European Union Committee at the time.

Although businesses may have learned to live with the directive, as one person in the industry told me, it is not exactly something that helps competition or helps the sector to do as well as it might do—nor has it. At the time, the directive had a policy background. It was portrayed as a response to the financial crisis, but in fact it was already on the cards in the European Parliament in 2008. Discussions took place again in April 2009 at the G7. I see it, in terms of policy, as part of Michel Barnier’s commissionership for Internal Markets and Services between 2010 and 2014, when it was driven through as part of a raft of measures designed to promote EU monetary and banking union, including, for instance, the single supervisory mechanism. Monsieur Barnier’s overall approach was to have a centrally controlled and directed policy for the sector, reflecting the traditional approach of the French state to the economy and brought into the EU at its inception.

So, AIFMD should be considered in that context, rather than as suitable for the UK, which was outside the single currency and the economic union. Our financial model is based on markets, freedom and competition under UK law. Indeed, even in the context of the global direction of the sector leading to cross-border regulatory systems, it was seen from the European legal perspective as potentially having “undesirable effects”, with the need highlighted there to find the right balance between rules and freedom, according to the co-authors of a section in the Alternative Fund Managers Investment Directive, a multi-volume assessment, from a legal perspective particularly, published by Kluwer Law in the Netherlands in 2012. The co-authors of the chapter “Challenges from the Supervisor’s Perspective” were concerned about finding the right balance between rules and freedom.

Here in the UK, that balance has traditionally been struck by domestic law and regulation, which has accommodated innovation, competition and regulated risk in a diverse range of businesses. My noble friend Lord Trenchard spoke about those: hedge funds, private equity and, indeed, property. It has not been under a rule of law with a “one size fits all” approach, such as that of the EU, which reflected a different approach—a precautionary and code-based system of the law—that is ill equipped for our diverse sector.

My noble friend mentioned the differences between the UK and EU sectors. I would just add that, overall, when we look at the context, the UK sector is different in proportion, in size and in composition. Our financial services sector accounts for 8% of the UK economy—the same proportion as that of Canada and the US. By contrast, in the European states—in Germany and France—as well as in Japan, it accounts for just 4%, so half of ours.

Within the sector, the UK AIFs have a particular profile. According to the figures from ESMA collected for 2019—the last year when they were collected—before leaving the EU, the UK’s AIFs accounted for a net asset value of €1,338 billion, compared with €5,468 billion for the EEA 30, so about 20% of the net asset value. As my noble friend Lord Trenchard said, he puts the percentage of UK AIFs as a proportion of the EU at 85%. Other figures suggest slightly less, such as 75%, but it is not worth fiddling over the percentage—it is very significant.

That brings me to my third point. My noble friend mentioned many concerns at the time. I would just raise the concerns of the House of Lords EU Committee in February 2010. Commenting on the alleged or apparent aims to increase the stability of the financial sector and facilitate the single market in alternative investment funds, it noted that the discussions about hedge funds and private equity funds regulation had taken place at the EU level in 2008, with reports by MEPs in the EU Parliament, and before the G20 summit. The committee’s balanced report broadly welcomed and acknowledged the potential for risk and welcomed the co-ordination and supervision of fund managers, which would benefit the single market and the UK economy, as well as the co-ordination and supervision of arrangements. It also welcomed the introduction of passports for the sector.

None the less, it had serious concerns about a number of rather major points. It said that this was a directive designed to cover all non-UCIT funds. It said that there was a failure to acknowledge the differences in how AIFs are structured and operate, as well as a failure of proposed disclosure by managers to supervisors to take account of the different types of AIFs and the fact that the requirements should be proportionate and relevant. Above all, the committee was concerned that the directive should be

“in line with, and complement, global arrangements”.

It added:

“Coordination with the US regulatory regime … is essential to avoid a situation in which the EU alternative investment fund industry loses competitiveness at a global level as a result of regulatory arbitrage.”

To conclude, the AIFMD was designed for a different economic and legal system and is not suitable for the UK’s approach. It was seen at the outset to be unsuitable for our sector—one that is different in proportionate size and composition. It is ill suited to the supervision of individual firms and the diverse composition of the sector. It is also ill equipped for a market system under UK law; rather, UK arrangements should be in line with and complement global arrangements. As was explained by the House of Lords EU Committee in 2010, co-ordination with the US regime is essential.

2.30pm
Baroness Penn (Con)

My Lords, through this Bill, the Government are seeking gradually to repeal all retained EU law in financial services so that the UK can move to a comprehensive FSMA model of regulation. Under this model, the independent regulators make rules in line with their statutory objectives as set by Parliament and in accordance with the procedures that Parliament has put in place.

It is not the Government’s intention to commence the repeal of retained EU law without ensuring appropriate replacement through UK law when a replacement is needed. The Government set out their approach to the repeal of retained EU law in the document that I referred to earlier, Building a Smarter Financial Services Framework for the UK, which was published in December last year as part of the Edinburgh reforms. It makes it clear that the Government will carefully sequence the repeal to avoid unnecessary disruption and ensure that there are no gaps in regulation.

The Government are prioritising those areas that offer the greatest potential benefits of reform. They have already conducted a number of reviews into parts of retained EU law, including the Solvency II review, the wholesale markets review and my noble friend Lord Hill’s UK listing review. By setting out these priorities, the Government are enabling industry and the regulators to focus their work on the areas that will be reformed first.

My noble friend Lord Trenchard’s Amendment 246 relates to legislation implementing the Alternative Investment Fund Managers Directive in the UK. As has been noted, the UK is the second-largest global asset management hub, with £11.6 trillion of assets under management; this represents a 27% growth in the past five years. The sector also supports 122,000 jobs across the UK and represents around 1% of GDP. These statistics demonstrate the huge value of this industry to the UK and, while the Government would never be complacent, also suggest that the sector is in good health.

The health of the sector is underpinned by proportionate and effective regulation. The Government believe that this must include an appropriate regulatory regime for Alternative Investment Fund managers. These funds are major participants in wholesale markets; they take influential decisions about how capital is allocated, and it is vital that they are held to standards that protect and enhance the integrity of the UK financial system. Moving simply to repeal the legislation that currently regulates this sector without consideration of replacement could open the UK up to unknown competitiveness and financial stability risks. It could undermine the UK’s reputation as a responsible global financial centre committed to high standards of regulation, which could have significant ramifications for the UK’s relationships with other jurisdictions.

I understand that my noble friend Lord Trenchard has some concerns that the legislation deriving from the Alternative Investment Fund Managers Directive creates unnecessary burdens on innovative UK firms serving professional investors. The Government have not to date seen evidence that the reform of that directive is a widely shared priority across the sector.

Baroness Lawlor (Con)

Does my noble friend the Minister agree that UK law would be a better arrangement for supervising the sector than inherited EU law?

Baroness Penn (Con)

As I said at the start of my contribution, it is the Government’s intention to move all retained EU law when it comes to financial services into the FSMA model of regulation. That will apply to this area, too, but it is a question of sequencing and priorities. As I referenced before, we have set out our first wave of priorities and are seeking to look at those areas where the greatest potential benefits of reform lie. I am happy to confirm for my noble friend that it is our intention to move all areas of retained EU law on to a UK law basis.

Baroness Lawlor (Con)

Just for clarification, will that involve moving away from the precautionary, code-based approach of the EU, which very much influenced the sector post the 1990s and the thinking of our regulators? Will my noble friend confirm that, when the Government review the corpus of retained EU law for this sector, in line with their objects as has been stated, they will pay special attention to the need to rethink the framework of approach rather than simply adopting it? These are different ways of thinking.

Baroness Penn (Con)

My Lords, I would not want to pre-empt the approach for any specific area of regulation, but the principles on which we are seeking take forward this work are about looking at regulation and ensuring that we use the opportunities outside the EU to take the right approach to that regulation for the UK. My noble friend talked about the different perspectives taken by regulators in the different jurisdictions. That is right. The aim of moving from retained EU law is not simply to transcribe it into UK law but to ensure that it is well adapted to our own circumstances, too. However, I do not think that I can helpfully pre-empt the approach in each area in this debate, but only talk about some of those wider principles.

I was talking about the intention to move all retained EU law into the FSMA model. We have set out our priorities for the first areas in which we are seeking to do this. The Government have not to date seen evidence that the reform of the Alternative Investment Fund Managers Directive is a widely shared priority across the sector. However, the Treasury would of course welcome representations on this point. We are keen to engage further with industry and understand the sector’s priorities as we work to repeal retained EU law associated with alternative investment fund managers over the medium term.

The FCA also recently issued a discussion paper to consider whether wider changes to the asset management regime should be undertaken in future to boost UK competitiveness using the Brexit freedoms introduced by this Bill. This will allow the Government and the regulators to consider what replacement is appropriate for the legislation before commencing its repeal. For these reasons, I ask my noble friend to withdraw his amendment.

Viscount Trenchard (Con)

My Lords, I thank my noble friend the Minister for her reply, but I confess that I find it rather disappointing. I am grateful for the support that I received from my noble friend Lady Lawlor, who talked more than I had and expanded on what I had said about the emergence of the directive and the reasoning behind it at the EU level at the time. As she so well explained, the AIFMD system was always seen, not only at the outset but since then, to be unsuitable for the UK system.

My noble friend the Minister said that the Government have decided gradually to approach the question of repeal and reform of EU law—certainly, very gradually, I would suggest. As she rightly pointed out, this sector is hugely important and of huge value—she mentioned the figure of 122,000 jobs—to the City and the economy as a whole.

However, the Minister said that the financial services industry is underpinned by healthy and proportionate regulation, which I cannot agree with. I tried hard to explain the reasoning, as I understood it, for the introduction of this directive, and I tried to argue that it is not proportionate at all; it is widely regarded as being disproportionate.

The Minister said that there is no evidence of a widely held belief that the regulation underpinning this sector needs reform or revocation. I strongly question who she has been speaking to. In the last week, I have spoken to a very senior regulator of one of the Crown dependencies, who completely endorsed what I said: it is just not true to argue that this regulation is proportionate. The City has been hugely damaged over the years that the AIFMD regime has been in force. The Minister talked about 122,000 jobs, but how many more would there have been had we not, wrongly and unnecessarily, shackled this innovative sector of our financial services industry with this unnecessary, bureaucratic, cumbersome regulation, introduced entirely for political reasons?

I do not accept what the Minister said: that this would undermine the UK’s reputation. The UK’s present reputation, in the IOSCO and among other financial services markets, is that it has become steadily more bureaucratic. I talk to a number of other regulators, and I have technically been a regulator: I was the first non-Japanese to be appointed to the board of the Japan Securities Dealers Association, which has statutory, regulatory powers.

I very much hoped that the Minister would at least say that this is one sector where the Government recognise that there is disproportionate regulation, rather than argue that it is proportionately regulated, which I am convinced it is not. This would have been an opportunity to improve the City’s competitiveness. The listings review recently conducted by my noble friend Lord Hill of Oareford contains many instances of areas where the Government should move quickly. It is a pity that the Government are not using this Bill to move ahead immediately in areas where the case for further consultations is rather weak.

I hope that the Minister will bring back some better news when we next discuss matters such as this. In the meantime, I beg leave to withdraw my amendment.

Amendment 246 withdrawn.

Clause 78 agreed.

Clause 79 agreed.

Committee adjourned at 2.43 pm.