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Exiting the EU (Financial Services)

Bill Presented – in the House of Commons at 5:43 pm on 25th February 2019.

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Photo of John Glen John Glen Minister of State (Treasury) (City), The Economic Secretary to the Treasury 5:43 pm, 25th February 2019

I beg to move,

That the draft Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019, which were laid before this House on 31 January, be approved.

The Treasury has been undertaking a programme of legislation to ensure that, if the UK leaves the EU without a deal or an implementation period, there continues to be a functioning legislative and regulatory regime for financial services in the UK. The statutory instrument being debated today will fix deficiencies in the Financial Services and Markets Act 2000, commonly referred to as FSMA, and subordinate legislation made under FSMA, which are an important part of the UK’s regulatory framework for financial services.

A key function of this legislation is to define the “regulatory perimeter” that sets out the activities and financial institutions that are in scope of UK financial services regulation. In a no-deal scenario, the UK would be outside the EU’s supervisory and regulatory framework, resulting in deficiencies in the existing legislation. Specifically, many provisions in the legislation set the scope of regulated activities based on firms being authorised and operating across the single market, or by referring to definitions in EU law, which will no longer be workable after exit.

As Members will be aware, the EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018, which Parliament has approved, begin the process of removing legislative provisions that facilitate passporting in the UK, as well as providing for a temporary permissions regime allowing EEA firms to continue their activities for a limited period after exit day, giving them time to become UK-authorised.

While the SI being debated today does not alter the underlying policy of the UK’s legislative framework for financial services, many of the proposed changes in it are necessary to complete the task of removing passporting-related provisions and to define the UK’s regulatory perimeter as a regime operating outside the EU. Many of the definitions of regulated activities in FSMA, and in the Regulated Activities Order 2001 made under FSMA, include the EEA in their scope and rely on definitions in EU law to operate. To reflect the UK’s new position outside the EU, the SI will amend the territorial scope of those definitions where needed, so that they apply only to the UK after exit.

As well as setting the general regulatory perimeter, FSMA and subordinate legislation contain some specific provisions that are important to the UK’s regulatory regime. For example, provisions in FSMA specify certain important functions for which authorised firms must obtain approval from the Financial Conduct Authority or the Prudential Regulation Authority, under either the approved persons regime or the senior managers and certification regime. FSMA currently exempts EEA firms from elements of those UK conduct regimes, which would no longer be safe or appropriate once the UK is outside the EU’s single market. The SI therefore removes this exemption for EEA firms.

Some of the changes proposed in this SI are also necessary to ensure that UK regulators can continue to carry out their statutory functions. As I have mentioned, this SI will complete the process of removing passporting-related provisions. This will mean that some firms and fund managers may face new requirements as result of these necessary changes. The SI therefore creates some transitional arrangements to mitigate disruption to those EEA firms and their consumers. For example, some of these transitional provisions relate to certain financial instruments, financial documents or contracts that have been issued or entered into pre-exit, ensuring that they continue to operate effectively after exit for an appropriate period.

Even with the specific transitional arrangements we are making in this and other onshoring SIs, firms will still be faced with a large volume of regulatory changes that they will need to adapt to in a no-deal scenario. This could cause significant disruption to the financial services sector and consumers immediately after exit, and firms will need more time to adjust to these new requirements. To prepare for this scenario, this SI creates a temporary transitional power that allows the UK regulators to defer or modify changed requirements for firms.

This temporary power is designed to replicate the adjustment time that firms would have if the implementation period in the proposed withdrawal agreement were ratified. For that reason, the temporary transitional power would be available for two years from exit day. Any directions made under the transitional power would therefore expire at the end of that two-year period, after which firms would have to comply with all new requirements in legislation. The UK regulators are best placed to decide how to phase in onshoring regulatory changes, working with the firms they supervise and using their supervisory judgment. I am particularly grateful to the members of the Treasury Committee, who took the time to scrutinise this temporary transitional power in the recent hearing that took place on 29 January. I am pleased that the Committee acknowledged the need for the temporary power, with the Chair concluding that

“although this is unprecedented, these powers are needed in order to make sure our financial services sector works, whatever might happen”.

The Treasury has been working closely with the regulators in the drafting of this SI. It has also engaged industry on the SI through a cross-sectoral working group with representatives of the financial services sector. That group is chaired by TheCityUK and has representation from a number of different trade associations and law firms. Industry has expressed support for the provisions in this SI and welcomed the proposed transitional arrangements as prudent and pragmatic.

Before I conclude, I would like to draw the House’s attention to two minor mistakes that have been discovered in the SI and the explanatory memorandum that accompanied it. Unfortunately, mistakes do happen from time to time, and where they are found it is important that an explanation is put on the record. Shortly after the SI was laid, a small typographical error was discovered in regulation 202(2)(a); it refers to the “Prudential Regulatory Authority”, whereas of course it should read the “Prudential Regulation Authority”. A correction slip will shortly be made to put that right.

In preparation for this debate, a minor inaccuracy was discovered in paragraph 2.55 of the explanatory memorandum. This SI removes the exemption from the requirement for a financial prospectus to be approved by the Financial Conduct Authority if it has been approved in another European economic area state. This amendment is correctly explained in paragraph 2.55, but the paragraph also says that the SI makes transitional provision for prospectuses approved by an EEA regulator before exit day. Although there will be such a transitional provision, it is not made in this SI; it is made in the Official Listing of Securities, Prospectus and Transparency (Amendment etc.) (EU Exit) Regulations 2019, which were debated in the other place on 18 February and in this House on 19 February. I apologise for the mistake, but hope the House will agree that this is a very minor mistake that does not alter the substance of the explanation provided in the explanatory memorandum. However, I will be re-laying the explanatory memorandum to ensure that the mistake is corrected.

In summary, the Government believe that the proposed legislation is necessary to ensure that there is a functioning legislative framework for financial services regulation in the UK after exit.

Photo of Anneliese Dodds Anneliese Dodds Shadow Minister (Treasury) 5:51 pm, 25th February 2019

It is a pleasure to be here today and to have the opportunity to speak on these important provisions. Of course this is not the first time that I have sat across from the Minister—mainly in Committee Rooms—to discuss delegated legislation relating to no-deal provisions for financial instruments, but I am pleased that at least this debate is taking place in the Chamber.

I am grateful to Chair of the Treasury Committee, Nicky Morgan, for writing to the Leader of the House and the Economic Secretary to the Treasury to help secure this debate. It will not come as a surprise to Members that I robustly agree with the points she made in her letter about why this instrument merits a debate on the Floor of the House, given, as she says,

“the wide-reaching scope of powers that are being provided to the regulators.”

The Opposition made the same point in their request for a debate on the Floor of the House on the markets in financial instruments directive—MiFID—SI back in November. MiFID is a cornerstone of the regulatory architecture of UK capital markets, numbering tens of thousands of pages and enshrining important retail market protections. Yet that request was denied, and the Opposition made very clear at the time their objections and their concerns about the democratic implications of that. So although I am pleased that we now have the opportunity to participate in a wider debate about another significant item of regulation, it is not before time, and I wish that the Government had heeded our calls earlier.

We are now three months on from that MiFID SI and, thus, significantly closer to the potential reality that these items of legislation may end up on the statute book. We are now barely one month away from 29 March, yet we are still without a ratified EU exit deal. Therefore it is more important than ever that this legislation is properly scrutinised, as, unfortunately, the likelihood that it might be used increases. Tomorrow, myself and a number of colleagues currently in the Chamber will discuss the Financial Services (Implementation of Legislation) Bill in the Public Bill Committee. That Bill handles the EU regulations currently in train that will be implemented over the next two years. It worries the Opposition deeply that we are entering into a patchwork of regulation on financial services. We have debated dozens of SIs that allocate new powers to different institutions, including the FCA, the PRA, the Bank of England and the Treasury, yet we have no central means of assessing those new powers and what they look like in the round. Instead, they must be pieced together across different items of legislation, which is extremely challenging from a scrutiny perspective and risks clashes and inconsistencies. Should we crash out without a deal, it will be even more difficult, given the overall context, to keep track of which body was empowered to do what and for how long.

That is especially relevant when it comes to the instrument we are discussing today. The Financial Services and Markets Act 2000, like MiFID, is a sprawling piece of financial regulation that touches on many different areas of the market. It therefore impacts significantly on the powers that regulators will need to take on functions from the EU. It also interacts in several different ways with the overall programme of no-deal secondary legislation, most notably with the temporary permissions regime, as the Minister acknowledged. So, first, may I ask him to clarify why this instrument has been scheduled quite so late in the process, when we are just a month away from exit? What financial institutions require at this point more than anything is certainty. Leaving such a linchpin of UK markets until the eleventh hour seems as though it will place unnecessary stress on UK financial services firms, given that policies such as the temporary permissions regime were determined earlier in the process, in recognition of the time they would need to be implemented. The Treasury’s own estimate, in its impact assessment, of the number of firms that will need to familiarise themselves with this instrument, is 59,200. So this is significant pressure to place on a large number of firms so close to exit day, especially as the instrument outlines conditions that must be met by exit day.

For example, the instrument stipulates new rules for firms that are already in the process of making a part 7 insurance transfer between UK and EEA entities, with onshoring legislation introducing a savings provisions in relation to insurance business transfer schemes. But for it to be available in the two years following exit—as the Minister rightly said, to shadow the approach that would have been taken if we had a proper implementation period—an independent expert required for the transfer must have been appointed by exit day and a transaction fee must have been paid to the PRA. Can the Minister confidently say that firms that are impacted are aware of this and will have sufficient time to carry it out, given how close we are to exit day?

The Opposition’s other concern is the sweeping bestowing of yet more powers on to the regulator, without sufficient checks and balances. We have repeated our issues with that on numerous occasions in Committee. Although we have been told by the Government that these instruments do not represent policy judgments, in our view deciding where to allocate powers, along with their extent and duration, is intrinsically a policy judgment. Simply substituting the FCA for the European Securities and Markets Authority, and the Treasury for the European Commission, is not a straight swap. The two European institutions interact in a different way from the FCA and Treasury, with different checks and balances. These issues need proper discussion and scrutiny.

The impact assessment provided by the Treasury for this Bill maps out how regulators will be able to execute these new powers. It states that

“to apply the power, the relevant regulator will need to make a ‘direction’ which should be brought to the attention of the affected firm or group of firms. Before making a direction, the regulator will need to consult other regulators where the other regulator’s functions may be affected by the direction. The regulator will also need to consult HM Treasury. Directions will be published by the regulators unless doing so would adversely affect their statutory objectives.”

So we have here a mapping out of the intra-regulatory consultation, but where is the wider consultation that will take place with the affected firms and other stakeholders before proceeding? We are informed about this being “brought to the attention” of these bodies, not about a consultation. The Minister’s comments on that were slightly vague. He was talking about the whole package of financial services legislation, rather than about this specific aspect. Our concern is that this sounds like a power to make regulations simply via public notice, with limited accountability and recourse.

I am grateful for the time the Minister and his team have taken to brief me throughout this process. Nevertheless, we would be failing in our duty as the Opposition if we did not highlight our serious concerns about the use of the SI process to prepare us in this way. Some colleagues here today will have heard us list those objections in Committee previously, but to reiterate: we believe the magnitude and volume of changes proposed should have been consolidated into one piece of primary legislation that could have been better scrutinised. Indeed, at the session last week in the other place on subordinate legislation transparency and accountability, the Conservative peer Lord Lexden voiced the Committee’s concerns about the number of drafting errors in instruments. That is surely an indication that the scale of this project was too large. I must praise the Minister’s candour in acknowledging that there were drafting mistakes in this SI. As he knows—he has kindly taken on board this fact—I have identified a drafting error in one of the SIs that was presented to us. I do not believe this is the Minister’s fault, nor do I believe it is the fault of his civil servants, who are working enormously hard on this package of legislation. It is, however, an indicator of the fact that those who believe that preparations for no deal can be simple are kidding themselves and do not understand the magnitude of the task. We simply do not understand what issues we may be storing up for the future, especially as the consequences of a no-deal Brexit, in which this legislation would be used, are so hard to predict. I can only hope that we do not find out. The Opposition will do everything in our power to prevent a no-deal outcome, despite the Prime Minister’s reckless running down of the clock by postponing the meaningful vote yet again just yesterday.

Photo of Nicky Morgan Nicky Morgan Chair, Treasury Committee 6:00 pm, 25th February 2019

It is a pleasure to speak in this debate. I thank the Minister for coming to the Treasury Committee to give evidence at the end of January, and the chief executives of the Prudential Regulation Authority and the Financial Conduct Authority, who sat alongside him and also gave evidence.

I am grateful that, as the shadow Minister said, the Leader of the House listened to the Committee’s request that this SI should be debated on the Floor of the House, because it offers unprecedented powers, for understandable reasons. That is why I and Committee members understand and will support the powers sought in this SI, but it is right that they should be scrutinised. Continuity of business is important for our financial services sector. The impact assessments for this and similar statutory instruments make clear the enormous contribution that the financial services sector makes to this country and the huge amount that it pays in tax revenue, which is important for funding our public services, but our financial services sector also puts the UK very much on the global map.

The Minister, who was perhaps left with no choice, and the chief executives have generously said that they are willing to come back to the Committee, should the powers be needed and we have further questions about how they are used in future. However, we all hope that this SI will not be needed, because it is for a no-deal scenario, and we all hope very much that the Prime Minister is successful in negotiating a withdrawal agreement with the European Union.

I want to concentrate on two areas this afternoon. The first is the duration of the new powers. The shadow Minister rightly said that, because of the timescales and the complexity, what is being created feels like a patchwork of legislation, some of which will be needed in one scenario and some in another. That might be challenging for Members of Parliament and for Ministers and shadow Ministers, but the people we should really be thinking about are the businesses that will have to try to follow the new legislation, which sets out the new powers. The Committee has noted that the no-deal statutory instruments relating to financial services seem to have different durations, creating cliff edges at different times. Would it not be easier for the businesses—those that will have to rely on this secondary legislation—and other interested parties if the Government provided the regulators with additional powers in a no-deal scenario that had a consistent duration, to minimise multiple cliff edges throughout the negotiations that will take place in the coming years?

Let me turn to the impact assessments for regulations such as this, which I think have been subject to some debate upstairs in various Committee Rooms. The Treasury has provided impact assessments, and there seem to be two types of costs: familiarisation costs for most businesses, which have to read the regulations and understand them, and implementation costs for business that have to modify their business practices. The assessment calculates that this statutory instrument will cost each firm £1,900. That calculation appears to be based on the number of words used in the instrument, with a cost across the industry of £110 million, which suggests that 57,000 to 58,000 firms—the shadow Minister mentioned 59,000—will be affected.

I speak as a former lawyer. Words were important and often, it would be fair to say, we tried to use as many as possible. The number of words used is an interesting way of measuring the impact of regulations made through secondary legislation. I do not know whether the Minister wants to say something about that now—it has been covered in debate elsewhere—but I would ask him whether that is the right way to proceed.

Secondly, the Government have been unable to put a monetary value on the cost to businesses of complying with the statutory instrument. The Minister rightly said that he has worked with industry to ensure that the new powers are what the industry needs to provide continuity—I know he has done that, because I have had feedback from different financial services firms—but has he asked the affected firms of different sizes what they estimate their compliance costs will be? Would that not be a pragmatic approach to calculating the costs of compliance—the cost of advice that firms will need to take and the amount that they might have to spend to change their internal rulebooks and guidance and the guidance provided to clients?

We live in extraordinary times. This is an unprecedented situation, where all sorts of hyperbole can be used. As I have said, granting these powers to the regulators makes enormous sense for the continuity of a very important part of our business sector. I wish that the Government had produced a proper White Paper about their plans for financial services, as I asked them to well over a year ago. Right hon. and hon. Members in all parts of the House will understand why the Government are asking for these powers. However, while I have no reason to think that this Minister does not welcome scrutiny—I think he has appeared before our Committee more than any of his colleagues—he and other Ministers should expect continued rigorous scrutiny by the Treasury Committee and other interested Members of how the powers are exercised and of whether and when they can be done away because we have moved to a new system of financial services regulation.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Treasury), Shadow SNP Spokesperson (Housing, Communities and Local Government) 6:05 pm, 25th February 2019

I thank the Minister for all his work on these financial services SIs. I have debated some of them and Anneliese Dodds has debated some, but he has had to debate almost all of them. That is a terrible burden for one man to have to bear, and it illustrates that this process is hugely time consuming. It is eating up massive amounts of all our time. We might hope that we will not need to use these statutory instruments, but as we head towards Brexit, and with the Prime Minister’s announcements over the past 24 hours, it feels as though things are getting more and more perilous the closer we get.

In many cases it feels very much like we are rearranging the deckchairs on the Titanic, because we are less than five weeks from exit day and the Government are quite clearly running down the clock. We should be under no illusions that while a no deal is an absolute catastrophe, the deal being proposed is not good enough either. There are no merits to a no-deal Brexit plan for financial services, but whatever deal can be cobbled together, it will be nowhere near as good for financial services as what we have at the moment. Removing passporting, which is part of what this legislation is all about, will have a huge impact on financial services and how they operate.

It is no secret that I have very different opinions from many on the UK Government Benches, but this is no longer a question of differing opinions. The reality is that no competent Government would have let things get to this stage. We should not be coming here at the very last minute to discuss such legislation. The Minister was up front in saying that there were errors in the legislation, but that smacks of a process that is not good enough. Some things have been picked up as incorrect, but there may be other things, because this is a substantial SI. We have got it pretty late in the day, and it is incredibly detailed and complex.

I would like the Prime Minister to recognise the urgency of the situation and extend article 50, taking no deal off the table, to give us more time on all this. Ideally, I would like us to stay in the single market and the customs union, because that would make things hugely simpler, certainly for financial services and for everybody else in other sectors of the economy too.

The Scottish Government have been doing their best, preparing as best they can, but they cannot mitigate everything. We do not yet have the Treasury’s full analysis of the Prime Minister’s Brexit deal, despite this House having voted on it twice. Last week the Scottish Government invested in their own analysis, which was published last week in a report by our chief economist. The results were damning. It said that Scotland could see a fall in GDP by 7% in the first two years after Brexit. That would be an enormous blow to our industries and jobs and to the household incomes of the people of Scotland. To put things in context, the 2008 recession saw Scotland’s GDP fall by 5.7%. This shambolic UK Government, in hock to the most extreme elements on their Benches, are doing this on purpose.

The analysis looked at only the first two years after Brexit, but the long-term effects could be sustained and long lasting. The Fraser of Allander Institute in my constituency has conducted one of the most comprehensive studies to date of the effects of migration on the UK economy. Migration is a huge issue for the financial services sector, which has much talent from around the world that needs to be able to move backwards and forwards without any difficulties. The effect of reduced migration after Brexit will lower Scotland’s GDP by 9% over the next 20 years. Reduced migration is very much the intention of the Prime Minister’s deal—it proposes to slash immigration by 80%. That will have a massive impact. [Interruption.] Government Members may sigh, but this will have a huge impact on our financial services—on the skills and talents of people coming to live and work in Scotland. The London bubble may well be fine, but as we get further away from that bubble, the impact will be greater—on Edinburgh, on Aberdeen and on Glasgow. It will mean fewer of the working-age population contributing to the economy and enriching our lives. It is an unforgiveable, ideological obsession, which has no evidence to support it.

The impact of no deal is very serious indeed, and many businesses in my constituency are gravely concerned about their futures. This SI, as the Minister says, is intended to offer consistency for businesses in the event of a no-deal cliff edge. However, relying on transitional provisions such as the temporary permissions regimes offers very little in the way of reassurance for businesses. We are being encouraged to rush through significant pieces of legislation, right, left and centre, without proper scrutiny for those businesses to engage with, and the effects will be felt by nearly 60,000 businesses. It is just not possible for each of those businesses—small and large businesses and businesses of varying different types and of varying different sectors—to have their say on this to explain exactly how it will affect them. The effects will impact them, yet they will not have the opportunity to fully engage in the process.

Anneliese Dodds said that the temporary permissions regimes allows companies to provide services in the UK for up to three years after 29 March. I agree very much with what she and Nicky Morgan said about the consistency of this process. We are seeing so many different pieces of legislation and so many different SIs, and that is causing inconsistency, which is a worry. Some firms may find that, for one part of their business there is one date, but for another part there is another date. That will cause additional confusion.

Furthermore, businesses may well infer from these stopgap measures that the Government are expecting chaos after Brexit, and that is a position I would find it difficult to disagree with. It is no wonder that, in this context, we are seeing investment in UK businesses grinding to a halt. Ernst & Young noted that £800 billion of assets have been moved from the UK to Europe since 2016, which is absolutely terrifying.

This SI also deals with mortgages. It talks about covering contracts after Brexit, but only if they are secured on residential property in the UK. There are different measures for properties outside the UK, which means yet more complication for people to deal with. The instrument also deals with investment firms and insurance. The impact assessment says that branches of EEA banks authorised in the UK will be treated in the same way as third country branches are treated now. That is yet more red tape and more paperwork. The SI deals with consumer credit, which is, of course, hugely important to all of our constituents in their daily lives. Those are just some of the highlights of this very complex SI, and they illustrate just how much more difficult things will be than they are at the moment.

The hon. Member for Oxford East mentioned scrutiny. Part 8 of the SI covers the setting of fees by the Bank of England, the Financial Conduct Authority and the Prudential Regulation Authority. In effect, we are saying to those organisations, “Right, you go ahead and set your fees.” We will lose any idea of scrutiny over this. I am sure that those organisations will set reasonable fees, but can we be certain about that? We are giving that power to them. We are taking that power away from ourselves. There are no Brexiteers here saying, “Oh, we talked about taking back control.” Actually, we are not taking back control; we are losing any sense of control over this because we are delegating it all to those organisations. They may well have to report back, but we are still losing direct control.

The issue of familiarisation costs has been mentioned. A total of £1,900 per firm does not sound huge, but, as was mentioned earlier, it is affecting 59,200 firms, which is hugely significant. We should consider the fact that this is costing industry £110 million. This is money that industry should not have to be thinking about. Should we get to this Brexit cliff edge that the Prime Minister appears to be leading us towards, they will be spending this huge amount of money when they could have been investing it in other things, such as staff and research and development. This money is just being sucked up by Brexit, and we will be left all the poorer.

Let me return now to this idea of transitional provisions. As the provisions are transitional, it means that, at some point, we will have to come back to them. All of these SIs and pieces of legislation that we have been working on and divvying up will have to be revisited. That does not fill me with any great joy; I am sure that it does not fill the Minister with any great joy. As other Members have said, we need to see the UK Government’s wider plans. Where is the White Paper on financial services that will cover all of these things comprehensively, that will set out our direction of travel, and that will set out the principles of our financial services? It is hugely important to have these principles in place. In 2008, at the time of the crash, financial services lost their way. As part of the EU, we put these principles in place to get us back on track. We cannot see any dilution of those principles as we go forward, because we will end up in exactly the same disastrous place. I question the process and the legislation, but I remind the House that it is in the Prime Minister’s gift to withdraw the option of a no-deal Brexit. If she did that, it would render everything that we are talking about today completely useless, but we would be in a better place.

On the substantive content of the Bill, I have a point to which I would like to draw the House’s attention. In a letter to the Treasury, the Financial Markets Law Committee highlighted an area of legal uncertainty arising from the textual content of the SI. Section 137R(4) of the Financial Services and Markets Act 2000 grants the FCA the power to make rules applying to authorised persons in relation to communications by or approved by them if it considers that such rules are required to ensure compliance with certain “listed requirements”. The legislation goes on to explain that “listed requirements” means requirements under the law of the UK that appear to the FCA to correspond to the requirements of various EU legislation.

This definition leaves considerable scope for interpretation. I have raised in this House and in Committee my concerns about the nature of the withdrawal Act and the erosion of parliamentary scrutiny that it brings. It does appear that we are handing an awful lot of latitude to a public body in this example cited by the FMLC. It recommends that a more specific list, such as that included in the original drafting, would be more useful, albeit altered to reflect UK legislation. If we are to be in this position facing a no-deal Brexit, despite all evidence showing the damage that that will cause, we need to have more robust and more detailed plans in place.

Fundamentally, everybody in this House knows the position of the Scottish National party. In Scotland, we voted to remain in the EU. We have worked very hard on building up our financial services sector in Scotland. It is an important, high-skill and high-pay sector, which drives many of our towns and cities. To face the prospect of crashing out without a deal is an absolutely appalling situation. Everybody working in this sector deserves better than the plans that the Prime Minister has put forward and they certainly deserve better than a no deal, and she should take that off the table.

Photo of John Glen John Glen Minister of State (Treasury) (City), The Economic Secretary to the Treasury 6:18 pm, 25th February 2019

It is a pleasure to respond to Anneliese Dodds, my right hon. Friend Nicky Morgan and Alison Thewliss. By the end of this process, we will have discussed 53 SIs for the financial services in 30 discrete debates. In each one of them, there are some common themes to the remarks. I appreciate that this is not a desirable process to go through, but it is a unique process. It is a process that we have responsibility for at this time, but I hope that we will not need to use or to rely on its outcomes. None the less, this SI is needed to ensure that we do have a robust and functioning legislative framework for financial services regulation after exit. I am determined that I will, to the best of my ability as a junior Treasury Minister, deliver this programme of SIs.

Hon. Members have raised a number of specific points, which I will now address. Anneliese Dodds asked why we have chosen to transfer powers to the FCA. This is consistent with our overall approach to onshoring. Only existing EU functions are being transferred to UK regulators, apart from the temporary transitional tool. I have written to the hon. Lady with a full explanation of the consolidated text, and I will send that explanation to her shortly in addition to the other replies that I have given to her.

In response to the point made by my right hon. Friend Nicky Morgan, in practice there is a logistical challenge in putting everything together, conducting multiple streams of consultations simultaneously and delivering in each discrete area what is required as a fix for the undesirable outcome of no deal. Despite the enormous effort by my officials in the Treasury to get this right, it would have been very challenging to set out the architecture proactively from the outset. This FSMA SI makes many consequential amendments that were needed to follow on from previous SIs, which is why it was set out late. How the FCA will use these powers will be set out later this week, providing a lot more clarity on that matter.

The hon. Member for Oxford East asked about insurance business transfer. We consulted the insurance sector on these business transfer transitionals, and it confirmed that this was the right approach and helped to develop the provisions. We have worked collaboratively with different industry sector representatives throughout.

Alison Thewliss raised a specific legal point—a dispute about the wording. I will have to look at the matter and write to her. In the round, we have used TheCityUK as a convening trade association to bring relevant bodies together, and it has been very thorough in its work. The regulators are already consulting the industry, and firms have responded positively. The regulators, including the Prudential Regulation Authority, will shortly be setting out the outcome of those consultations. I think that I have covered the point raised about the consolidated Bill.

I acknowledge that FSMA is an important part of the UK’s framework for financial services regulation, but amending FSMA using secondary legislation is standard and happens several times a year. I accept the remarks of the hon. Member for Glasgow Central concerning the unusual nature of this—it is necessarily so because of what we are trying to do to prepare for a no-deal situation—but EU directives have been implemented using secondary legislation since the UK joined the EU. For financial services, that has often involved amending FSMA. Parliament approved the secondary legislation powers in FSMA itself to task the Treasury with keeping the FSMA regime up to date, such as the power to amend the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.

Let me turn to the points made by my right hon. Friend the Member for Loughborough, who chairs the Treasury Committee. I welcome the opportunity to be scrutinised many times by her Select Committee. Regarding the methodology for calculating the familiarisation costs, there is a cross-governmental set of guidance from the Cabinet Office, but I will write to my right hon. Friend with specific details. Clearly, the cost per word varies but we have a method for describing that across Government, and we have used that method. We have drawn on the better regulation guidance and we have consulted on the impact assessment across Government.

My right hon. Friend asked whether the Government will provide regulators with powers to make the commencement of cliff-edge risks consistent. This is exactly what the temporary transitional power is for: the regulators will be able to phase in the vast majority of changes consistently. I said before the Select Committee that it would be important to lay any directions in the House of Commons Library and the House of Lords Library, and that I would ensure that the Treasury Committee was notified.

The hon. Member for Oxford East mentioned the point made by Lord Lexden. Lord Lexden used to work with me at the Conservative Research Department, and he was always very good at picking out errors. I shall look carefully at his remarks and see whether there is an appropriate response.

The hon. Member for Glasgow Central raised the issue of charging fees and the powers given to the regulator. The fee-setting powers and controls in this instrument reflect the existing powers that the regulators have in legislation. There is no meaningful change in the powers; the extension is consistent with the current role of the regulators. The hon. Lady also asked why the House has not been given enough time properly to scrutinise this legislation. I respectfully say that we have done as much as we can in the time available. We have engaged constructively with firms and we published these SIs well in advance of laying them before the House. It has been a significant iterative process. I do not describe it as a perfect process, but it has been quite thorough.

Overall, this SI will ensure that we have the necessary functions and powers in the Treasury and in our regulators in the event that the UK leaves the EU without a deal or an implementation period. This has been a tough process. I pay tribute to my opposite numbers on the Opposition Front Benches.

Photo of Jo Johnson Jo Johnson Minister of State (Department for Education) (Universities and Science) (Joint with the Department for Business, Energy and Industrial Strategy)

I recognise that my hon. Friend is doing valiant work, but does he acknowledge that this process of moving to a new regime is proving extremely unsettling for players in the financial services sector? A recent report by Ernst & Young estimates that £800 billion-worth of assets and people have moved to other jurisdictions since the referendum as a consequence of our decision to move to a precarious, patchy and one-sided regime of equivalence that is a very poor substitute for our current system of passporting. What assessment has he made of news from the Amsterdam regulator last week that it is boosting the resources of the Dutch Authority for the Financial Markets by 10% to cope with the additional work that it is receiving as a result of our painful decisions?

Photo of John Glen John Glen Minister of State (Treasury) (City), The Economic Secretary to the Treasury

The process that we have gone through with these no-deal SIs has been as thorough as possible in the circumstances. My hon. Friend is making a wider point about the desirability of being in this situation and the need actually to secure deal. During the implementation period, we will have maximum opportunity to determine the method for securing equivalence, which we envisage would be by June next year. I recognise that there is uncertainty, but despite some pretty grim suggestions over what would happen with jobs, the City of London is resilient. Although it has made contingency arrangements, as would be expected, we have not seen large numbers of jobs drain away from the City as some would have anticipated. We need to secure the deal and then work through the issues with regard to the implementation period.

I pay tribute to the work of the hon. Members for Oxford East and for Glasgow Central, and the scrutiny of the Select Committee, throughout this process. I know that we still have a number of SI debates to go, with two on Wednesday and several more next week, but I hope that I have explained the rationale for this particular SI and that the House will be able to support these regulations.

Question put and agreed to.

Resolved,

That the draft Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019, which were laid before this House on 31 January, be approved.