Transfer to FCA of regulation of claims management services

Financial Guidance and Claims Bill [Lords] – in a Public Bill Committee at 9:25 am on 6th February 2018.

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Photo of John Glen John Glen Minister of State (Treasury) (City), The Economic Secretary to the Treasury 9:25 am, 6th February 2018

I beg to move Government amendment 3, in clause 24, page 17, line 21, at end insert—

“( ) In section 1H (interpretation provisions for FCA’s objectives)—

(a) in subsection (2), at the end of paragraph (c) insert ‘or to engage in claims management activity’;

(b) in subsection (8), at the appropriate place insert—

‘“engage in claims management activity” has the meaning given in section 21;’.”

The result of this amendment of the Financial Services and Markets Act 2000 would be that references in the FCA’s statutory objectives to “regulated financial services” include services provided by authorised persons in communicating, or approving the communication by others of, invitations to engage in claims management activity.

With this it will be convenient to discuss the following:

Government amendment 4.

Clause stand part.

That schedule 4 be the Fourth schedule to the Bill.

New clause 7—Regulatory principles to be applied in respect of claims management services—

“(1) In relation to the regulation of claims management services, the FCA must act according to the principles that—

(a) authorised persons should act honestly, fairly and professionally in accordance with the best interests of consumers who are their clients; and

(b) authorised persons should manage conflicts of interest fairly, both between themselves and their clients, and between clients.

(2) In this section, ‘authorised person’ has the same meaning as in the Financial Services and Markets Act 2000, and ‘authorised persons’ shall be construed accordingly.”

This new clause would introduce a duty of care which would require claims management services to act with the best interests of the customers in mind.

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

It is a pleasure to serve under your chairmanship once again, Mr Rosindell.

Government amendments 3 and 4 are small consequential amendments to bring relevant provisions into line with the changes made by clause 24 to section 21 of the Financial Services and Markets Act 2000. Clause 24 amends FSMA to enable the Financial Conduct Authority to regulate specified activities in relation to claims management services in Great Britain. That includes extending section 21 of FSMA so that the financial promotions regime, which deals with advertising and marketing by regulated firms, applies to claims management activity. Government amendments 3 and 4 will ensure that the financial promotions regime can function effectively. I am sure that Members will agree that it is necessary to make those amendments to ensure that claims management activity is captured.

New clause 7, which was tabled by the hon. Members for Birmingham, Erdington, for Weaver Vale and for Lewisham, Deptford, seeks to ensure that the FCA adheres to a set of regulatory principles in relation to acting in the best interests of consumers and managing conflicts of interest fairly. Aside from the provisions in general consumer law, the FCA already applies rules to firms that conduct regulated activities in relation to their dealings with consumers.

First, regulated firms must adhere to the “principles for businesses”, which are fundamental obligations set out in the FCA handbook. Principle 2 requires firms to conduct their business

“with due skill, care and diligence.”

Principle 6 requires a firm to

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

Principle 8 sets out that a firm

“must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.”

Secondly, the FCA’s “client’s best interest” rule states that a firm

“must act honestly, fairly and professionally in accordance with the best interests of its client”.

That rule applies to a number of regulated activities. Thirdly, many FCA rules also contain an obligation on firms to take reasonable care for certain regulated activities. Finally, the rules in the FCA handbook are supplemented by more sector-specific rules in various FCA sourcebooks.

Under its existing objectives, when the FCA takes responsibility for the regulation of claims management companies, it will be able to apply its existing principles for businesses and to make any other sector-specific rules that may be necessary. To secure appropriate consumer protection, the FCA supervises against those rules and other provisions, and can take enforcement action against firms where necessary.

Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party

Does the Minister accept that there is a risk that the FCA has been captured by some of the bigger financial interests, and that additional legal protection is therefore required to rebalance how it operates to properly protect the consumer interest?

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

I acknowledge that such concern has been widely expressed throughout the passage of the Bill. However, the FCA has issued total fines of more than £229 million. In its view, its regulatory toolkit is currently sufficient to enable it to fulfil its consumer protection objective. The FCA will consider the precise rules that apply to claims management companies and how they form an effective regulatory regime overall. In doing so, the FCA will need to take into account its statutory objective of securing an appropriate degree of protection for consumers. It will also consult openly and publicly on the proposed rules.

The final regime is not set without consultation or reference to the legitimate concerns raised during the passage of the Bill. I note the hon. Gentleman’s observations, but they can be accommodated by the way in which the FCA will handle the matter. Given that, the Government do not believe the new clause is necessary. According to the explanatory statement, the new clause would introduce a duty of care on claims management companies. I will provide some more detail on that duty of care because I have thought a lot about it and have new points that I want to raise following Second Reading. The Government recognise that there are different views on the merits of introducing a duty of care for financial services providers and what it would mean in practice.

Macmillan Cancer Support has run an excellent campaign drawing attention to that important issue. Last week I met Lynda Thomas and her team from Macmillan in the Treasury to discuss their work and their concerns around the proposed duty of care. They told me of their work with Nationwide and Lloyds. They have been working in partnership with the sector on the role of firms in supporting customers.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I am sure the Minister is aware that the Department for Work and Pensions is again in court facing a legal challenge for changes to welfare and support for disabled people, including people with terminal illnesses such as cancer. Does the Minister not accept that Macmillan’s recommendations might go some way to rebuilding disabled people’s trust and faith in the Government, including those with terminal illnesses?

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

I acknowledge the case, but it is not for me as a Treasury Minister to comment on it. We need to be clear about the impact of the duty of care and examine it carefully. It is right that we challenge practices that are not up to standard. The question is how we most effectively achieve that without wider collateral damage.

On Macmillan’s partnership work in the financial services sector in supporting customers affected by cancer, I pay tribute to the work done and I am grateful for the insights that it brings, but there is huge uncertainty around the potential impact a duty of care could have on both firms and consumers. As with all significant policy changes, it is important to understand all potential pros and cons. I hope Members agree that there would need to be a thorough assessment of the potential impact of a duty of care before any decision is made on a change of policy. For example, a duty of care might enable consumers to bring financial services firms to court. There might be significant cost, complexity and time involved with that, leave alone codifying exactly what the duty of care would mean.

In turn, a duty of care might lead to a negative impact on product provision and approach to innovation, as firms might not want to risk legal challenge based on an untested new concept. Increasing operational costs for firms as a result of a duty of care will inevitably lead to higher prices for consumers, including those in the most vulnerable category. Given those considerations, I hope Members agree that it would not be appropriate for the Government to amend the Bill before a full assessment of the potential impact has been conducted.

The Government believe that the FCA, as the UK’s independent conduct regulator for financial services, is best placed to evaluate the merits of a duty of a care. Recognising the pitch and depth of the legitimate concerns raised, last week I met Andrew Bailey and discussed the duty of care with him, and the FCA will discuss it further. Concern has been expressed that, in the determination to issue a discussion paper post-Brexit, there was too much of a delay. I pressed Andrew Bailey on the need to bring that forward. He understands and acknowledges the desire of Parliament for progress on evaluation, so the FCA now proposes to issue a discussion paper later this year. It will invite contributions from all interested parties on the case for and against a duty of care, what form such a provision might take and consequential issues arising from adopting it. That will be an open process, designed to gather views. I am grateful to the FCA for its commitment to accelerate its proposed timetable.

Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party

I commend the Minister for pressing Andrew Bailey, because the FCA under his leadership has a reputation of having become a bit pedestrian. However, I do not see why there is a clash between adding the new clause, as my hon. Friend the Member for Birmingham, Erdington proposes, and cracking on with the consultation exercise that the Minister just described. Surely they gel nicely.

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

My view, and the Government’s view, is that the pace of that consultation process needs to be stepped up and the FCA needs to respond, with all consequences in mind for vulnerable people with respect to the costs of services and the protections legitimately achieved through the FCA’s activity.

I stress that the FCA has a close focus on vulnerability in its broader work. I note the concerns of the hon. Member for Harrow West, but it works in the interests of all consumers of financial services. In October, the FCA published its “Financial Lives” survey, the first annual large-scale survey of 13,000 interviews, designed to add a substantial new source of data to the regulator’s understanding of consumers in retail financial markets. Subsequently, it published the “Approach to Consumers” paper, which details how it will measure the effects of its actions on consumers, particularly with respect to access and vulnerability. I and the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Hexham, take this matter seriously. We will challenge the FCA on the further steps that need to be undertaken.

Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party

May I push the Minister a little harder? I could understand it if he was arguing that there should be a change to the proposal made by my hon. Friend the Member for Birmingham, Erdington, saying that regulations should be brought forward to give Government the chance to bring in a duty of care once the consultation had taken place. Instead, he seems to be saying, “Let’s not bother putting anything in the Bill that gives us the power to bring that in later. Let’s just wait and see—mañana!—when the FCA can be bothered to get round to the consultation exercise. Then we might look at bringing forward primary legislation.” My worry is that an opportunity for primary legislation will not come around again. I therefore press him to see whether he could be a little more sympathetic to the case my hon. Friend will advance.

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

I am grateful to the hon. Gentleman for his remarks. I would not characterise the Government’s position as, “Let it happen mañana and take our hands off the tiller.” I met Andrew Bailey, and this was not his starting point. It is for Ministers to talk to the FCA, take the views of Parliament as clearly expressed by Members on both sides of the House, and use that pressure to force the FCA to address the issue in a comprehensive way that deals with the real experience of our constituents.

The Government have set out that process, and I have set out the rules and facilities that exist for the FCA. I am convinced there is a process in place that will enhance the necessary protection.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

There are some interesting parallels. Where the Government have a clear objective and aim, as they did in welfare reform, consultations are rushed through by Departments. That delivers inadequate legislation, which is why the Government ended up in court, as has been mentioned. In this case, the Government are passing the buck to the FCA, even though Macmillan has identified a problem, whereas on terror insurance legislation, where the ball is back in the Government’s court and could have been covered by the Bill, they have left a gaping hole, which leaves businesses such as those affected in my constituency in June last year facing potential damages because of the inadequacy of legislation. Why have the Government not opened consultation on that?

Order. It is not permitted to talk about a non-selected amendment in the context of this discussion.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

With respect, Mr Rosindell, I was talking about Government consultations that have a clear aim.

We will move on.

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

I cannot talk about areas outside my responsibility, but I can address the new clause. I assure the hon. Member for Bermondsey and Old Southwark that I am engaging closely with the FCA and have already achieved an acceleration of its timetable for engagement. It is important that his constituents’ concerns, which he raised previously, are addressed, and I expect the FCA to take steps in that direction urgently.

I was delighted to hear from Macmillan that it has a tremendous working relationship with the FCA. The two organisations are engaged in dialogue, and last year they worked closely on the call for input on the challenges firms face in providing travel insurance for consumers who have had cancer. The FCA will be publishing a feedback statement and its next steps in due course. Dialogue is taking place, and there is responsiveness. For those reasons, it is not appropriate to include these regulatory principles in the Bill, so I request that the hon. Member for Birmingham, Erdington withdraw the amendment.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

On a point of order, Mr Rosindell. I seek your guidance. I will be speaking to Opposition new clause 7, but I note that Government amendments 3 and 4 are unobjectionable, so I may go straight on to making my remarks about new clause 7.

The hon. Gentleman may, of course, speak to as many of the amendments within the group as he chooses, but he must stick to the group.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

I will not depart from your ruling that it is not appropriate to debate terror insurance today. All I will say is that we would like to engage with the Government during the Bill’s next stages, because my hon. Friend the Member for Bermondsey and Old Southwark has identified a significant problem for a number of those who paid a heavy price as a consequence of the terrorist attacks. We hope that the Government are prepared to engage at the next stages accordingly.

As I said, Government amendments 3 and 4 are unobjectionable, but I want to make some preliminary comments about what the Minister said. First, I note that dialogue has taken place with the FCA. My hon. Friend the Member for Harrow West is right to say that the FCA is sometimes captured by big interests in the industry, and that sometimes it has been known to be not exactly the quickest organisation to arrive at a conclusion.

I will say a bit more about why the new clause matters in due course. My hon. Friend the Member for Bermondsey and Old Southwark is absolutely right to say that it is about protecting the vulnerable, in particular at a time of crisis in their lives. It is welcome that the Minister has met with Macmillan—an admirable organisation. Again, I will come on to say something about its representations.

My final point about what the Minister said is about the substance of what should eventually be done. This might be a matter that ends up before the courts. If we ultimately have a duty of care in legislation and providers do not abide by it, they will end up in court. This is about sending an unmistakable message.

The purpose of new clause 7 is to introduce a duty of care requiring claims management services to act with the customers’ best interests in mind, not least customers who find themselves in a vulnerable situation. Due to the current scope of the Bill, the clause relates just to claims management services, but we hope that the Government introduce their own amendment to introduce a duty of care for all financial services firms. As hon. Members will be aware, calls for the introduction of a duty of care received a great deal of support from across the House on Second Reading, and a similar amendment in the other place likewise received strong cross-party support. As the Bill recognises, ensuring that people have access to the right help and advice as soon as possible is essential to stopping financial problems escalating. For people who are ill or considered vulnerable in other ways, that becomes ever more important.

Research by the excellent Macmillan Cancer Support shows that four out of five people with cancer are affected financially by their diagnosis; they are on average £570 a month worse off, as a result of increased costs and loss of income. As one would expect, the impact of that leaves many people struggling to keep up with their financial commitments, and we have all seen such cases in our constituencies. I remember one heartbreaking case of somebody who had worked for 44 years and contracted cancer. The way that he was treated by his financial services provider, at a time of crisis in his life and that of his family, was nothing short of scandalous.

As providers of mortgages and other key financial commitments, banks and building societies have a huge influence—good or bad—on the financial wellbeing of many households. That gives them an unrivalled ability to reach out and support people who are affected by the financial impact of cancer and other health conditions and disabilities. When the right support is put in place, that can lead to improved outcomes for customers and help them to manage their financial commitments better. However, research from Macmillan Cancer Support shows that a number of problems still exist, and there is a lack of consistency in the support offered to people when they seek help. For example, more than one quarter of people who disclosed their cancer diagnosis to their bank were dissatisfied with how the bank responded. Particular problems included customers having to repeat their cancer diagnosis several times to different staff—that can be very distressing. Some staff lacked specific knowledge or were not comfortable discussing cancer with the customer, and others did not have knowledge about the products.

Photo of Pauline Latham Pauline Latham Conservative, Mid Derbyshire 9:45 am, 6th February 2018

What the hon. Gentleman says is interesting, but is this really a matter for Government? Is it not for the banks to address—to ensure that their staff are trained and sympathetic to people with a terminal diagnosis? It is not something that we can legislate for, but the banks can do something about it.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

I have the greatest respect for the hon. Lady, but I could not disagree more. This is about sending an unmistakable message about a duty of care, which in those circumstances there is a legal obligation to deliver. It also means that banks must train their staff accordingly. A duty of care cannot be just a resolution passed by this House; it must be enacted at the next stages by all providers.

Photo of Pauline Latham Pauline Latham Conservative, Mid Derbyshire

It is for the banks to train their staff. We cannot train staff from different institutions. We can send a message, but banks must train their own staff to ensure that they act appropriately with people who have a terminal diagnosis.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

We in this House impose obligations in the public interest that must be delivered. We need sensitivity for those going through the trauma of cancer, and having a duty of care sends an unmistakable message to the board of an organisation that that duty of care must be delivered, and it must be enacted with appropriate training by members of staff.

Photo of Huw Merriman Huw Merriman Conservative, Bexhill and Battle

The hon. Gentleman is being very patient in giving way, but to continue the thread started by my hon. Friend Mrs Latham, I spent many years working as a cashier on the frontline in banks and building societies, in between going to university—it was about five years in total. The staff were absolutely equipped to deal with such matters—indeed, they had to be, not least when probate matters were being dealt with. Those staff had to be incredibly sensitive, and I think the hon. Gentleman is rather getting the industry wrong, as far as the sensitivity of those staff is concerned.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

In that case, the hon. Gentleman is saying that Macmillan is getting it wrong. The Minister has engaged with Macmillan with an open mind—I warmly welcome that—and has heard the concerns direct, based on firm evidence, that at the moment too many people suffering from cancer are not treated with the respect and sensitivity they deserve.

Photo of Huw Merriman Huw Merriman Conservative, Bexhill and Battle

I have another example from a cancer perspective, which I will not go into; I work very closely with Macmillan on a personal basis, but that is probably better left to one side. What I will say is that when this House is prescriptive in legislation, rather than letting organisations deal with issues in the manner that they may be best equipped to do, it does not always work out as intended.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

With the greatest respect, the Government are prescriptive the whole time, and I think this is an area ripe for prescription. I stress again that we need to send an unmistakable message that regulated providers have certain obligations that fall upon them. There are already obligations imposed under law, for example on financial probity. We should add to those a duty of care to customers, particularly when they are suffering from or dying from cancer. I should have thought that was entirely unobjectionable. Macmillan is absolutely right and the Minister has been right to respond to its representations. I will come in a moment to what I hope will happen at the next stages.

To return to my point, staff did not have knowledge about the products and the help available to people affected by cancer. If we are to tackle such problems, the provision of appropriate support, flexibility in policies and procedures, and ensuring that staff are appropriately trained to support vulnerable customers need to be at the heart of banking culture.

One of the things that struck me most in the findings was that only one in 10 people with cancer had told their bank about their diagnosis in the first place. Many people with cancer still do not think their bank will be able to help them, while others worry that telling the bank will have negative consequences, so they are reluctant to disclose their diagnosis. Regardless of whether that negative perception is justified on all occasions, it represents a serious barrier to people seeking help early and tells us that the existing rules are not adequate. Despite some provisions in the area, the banking sector is still a long way off the point where meeting the needs of vulnerable customers is at the heart of corporate culture, hence the clear evidence from Macmillan.

The financial services consumer panel has noted that the regulatory principle of treating customers fairly does not adequately ensure that firms exercise appropriate levels of care towards their customers. It is interesting that the FCA’s own panel concluded that. If banks and building societies had a legal duty of care towards their customers, it would give people with cancer confidence to disclose their diagnosis, knowing that they could trust their bank to act in their best interests.

Consumers are also demanding action in this area. More than 20,000 people have signed an open letter from Macmillan Nurse Miranda, calling for a duty of care to be introduced. I urge the Government to look at the recommendation made by the House of Lords Financial Exclusion Committee on a duty of care, which has been strongly evidenced by Macmillan Cancer Support. The Committee concluded that, as first recommended by the financial services consumer panel, the Government should amend the Financial Services and Markets Act 2000

“to introduce a requirement for the FCA to make rules setting out a reasonable duty of care for financial services providers to exercise towards their customers.”

I appreciate that any change as significant as this must be subject to proper consideration and consultation, as the Minister said. It is therefore welcome that the FCA has recognised that and is committed to publishing a discussion paper on the issue. It is welcome that the Minister has pressed the FCA to bring that forward, and I will come on to timescale in a moment. However, the Government and the FCA have said that this must wait until after the withdrawal from the EU becomes clear. I think that now, as the Minister said earlier, that may no longer be the case, not least because who knows when we will withdraw from the European Union—

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

There is a certain lack of clarity on the part of the Government about that end. Given that the introduction of a duty of care would still require legislation, when can we expect it to be introduced if we do not use the opportunity presented by the Bill? Will the Minister clearly set out his view as to the likely timescale for the introduction of a duty of care, from the initial consultation process through to the point at which consumers begin to benefit from any change? Given the evidence that has been presented about the need for further support for vulnerable customers, is a prolonged delay acceptable? I urge the Minister to take note of the breadth of support for this issue and the strong evidence presented on the need for action. I suggest that the Government reflect on that further and bring forward suitable proposals on Report.

My final point is that I sense a joint determination to act, and that is welcome. We should act, but what does that mean in terms of both substance and timescale? We will not press the new clause to a vote but I invite the Minister to undertake that he will come back on Report to set out with some clarity the likely timescale and substance of what the Government might eventually do.

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

I am grateful to the hon. Gentleman for his comments. There is broad agreement on how serious the issue is, but I would characterise the Government’s approach as wanting not to send a message but to secure an outcome. They want to secure an outcome when they understand exactly what the impact of the changes might be.

As I said in some of my earlier remarks, there is huge uncertainty about how a potential duty of care would impact on firms and consumers. That is why I am very pleased with the accelerated timetable. I acknowledge that there is no absolute clarity about what will flow from that, but that is because we do not know what the outcome of the discussion will be. However, I take on board the hon. Gentleman’s concerns and I acknowledge his sensitivity to what Macmillan has said—it is unacceptable that 11% of people who have cancer tell their financial service provider—but it is also true, as my hon. Friend the Member for Bexhill and Battle said, that not all banks are doing a poor job. I heard from Macmillan about the wonderful work that Nationwide has done, and I think it is for other banks to reflect on what they need to do to change their behaviours.

Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party

Nationwide is not a bank; it is a building society, with a very different tradition to the corporate interests of the big banks. I make that as an aside. Although I am not normally a fan of secondary legislation as opposed to primary legislation, I wanted to press the Minister: will he consider the broader point made by my hon. Friend the Member for Birmingham, Erdington—that there might be a case, surely, for the Minister to consider bringing forward on Report the scope for secondary legislation to bring in such a duty of care once the FCA, when it can be bothered, finally produces its consultation document?

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

I am grateful for the hon. Gentleman’s comments, but I do not share his characterisation of the FCA’s willingness to engage on this. As I set out, the FCA is engaged in dialogue with Macmillan and has now accelerated the timetable for dealing with the subject. I will reflect on the comments made and see what can be said to give more assurance further on, but I am convinced that the dialogue with the FCA will lead to a proportionate outcome that takes full account of the impact. I therefore reiterate my hope that the new clause will be withdrawn.

Photo of Jack Dromey Jack Dromey Shadow Minister (Work and Pensions) (Pensions)

On the basis of what the Minister has said—that he will come back on Report—we will not be pressing new clause 7.

Amendment 3 agreed to.

Amendment made: 4, in clause 24, page 18, line 7, at end insert—

“( ) In section 137R (financial promotion rules)—

(a) in subsection (1), omit the “or” at the end of paragraph (a) and after that paragraph insert—

‘(aa) to engage in claims management activity, or’;

(b) in subsection (6), for ‘has’ substitute ‘and “engage in claims management activity” have’.”

The result of this amendment of the Financial Services and Markets Act 2000 would be that the FCA may make rules about the communication, or the approval of another person’s communications, by authorised persons of invitations or inducements to engage in claims management activity.

Clause 24, as amended, ordered to stand part of the Bill.

Schedule 4 agreed to.

Schedule 5