Banking Bill

Public Bill Committee, 30 October 2008.

Clause 214

Angela Eagle (Labour, Wallasey)

I beg to move amendment No. 28, in clause 214, page 102, line 9, leave out ‘UK authorised institution’ and insert ‘bank or other financial institution’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss Government amendments Nos. 29 to 31 and Government new clause 3—“Financial institution”.

Angela Eagle (Labour, Wallasey)

The purpose of the clause is to put the use of public money in the proposed bank resolution or insolvency arrangements, or in the provision of financial assistance to banks, on a more regular footing. The Treasury has the power, as a matter of common law, to make loans to any person or to give them financial assistance in any form, but it has the money to make those loans or to make good on any commitment it has given only if Parliament, rightly, provides the money in estimates. The annual Appropriation Acts can give full statutory cover for expenditure on estimates, but in line with the Public Accounts Committee concordat of 1932, specific enabling legislation is normally required to enable the finance for a new service to be provided from public funds. That is what the clause provides.

Clause 215, which fits with this clause, enables the Treasury to draw money from the national loans fund to make loans to financial institutions where it needs to do so urgently to protect financial stability. Financial crises can arise at any time and it might not be possible to get an estimate approved quickly enough for the Treasury to make a loan from voted money, most obviously during a recess when Parliament is not sitting.

As originally drafted, clauses 214 and 215 provided for loans or financial assistance to be given only to UK authorised institutions that have permission to accept deposits, in other words UK deposit takers. It was realised in the light of recent events, including those surrounding the Icelandic banks, that such a limitation could make it more difficult to protect the interests of UK consumers or safeguard the interests of UK taxpayers where there is a failure of an overseas institution. The amendments address that limitation which, as we all know, has been shown to be actual rather than potential in the last few days.

Brooks Newmark (Conservative, Braintree)

I am curious about what the Minister is saying about the clause. Has there been any thinking as to the spread over the cost of Government capital when they make that sort of financial assistance? Is there a fix in mind? Have there been discussions about it? Will it be at the Government’s cost of capital—we are curious to know what that is—or will it be at a very large spread, as we have seen recently? The cost of capital loaning to the banks is something like 10 or 12 per cent., which seems extraordinarily high, given the Government’s cost of capital.

Angela Eagle (Labour, Wallasey)

It would be an individual policy decision in a certain circumstance. Each situation might be different. The proposal is a much simpler thing. It gives cover for lending the money and puts it on a proper footing. In other words, because of the 1932 PAC concordat, where it looks as though money might need to be provided on more than one occasion, specific legislative approval is needed for that kind of process, rather than just using contingency funds. That is all the clause does. It does not talk about what the cost of capital would be. It would be wrong to think about putting any cost of capital in primary legislation, for obvious reasons.

The clause simply regularises, in accordance with the 1932 PAC concordat, as Parliament expects that if such expenditure could occur in the future, there should be specific legislative mention of it. This kind of clause appears in all sorts of bits of legislation. It is not unusual. It merely enables the potential use of money in that way to be regularised by statute. It does not go into any kind of detail about circumstances or what the cost of capital would be if such an issue were to occur.

Mark Hoban (Conservative, Fareham)

May I ask the Minister about subsection (3)? She referred to the limitations that have been identified through events at Icelandic banks. Would the Government’s action be outside the scope of the existing law if subsection (3) were not included?

Angela Eagle (Labour, Wallasey)

My understanding is that that is not the case, and that there is existing cover using estimates, but contemplating such expenditure to rescue banks in trouble has not previously occurred in this way. So far, it has been covered by using the contingency funds voted by parliamentary estimates.

The combination of clauses 214 and 215 shifts the way in which we propose to cover the situation in future. First, clause 214 regularises the situation in terms of the PAC concordat by providing a particular statutory undertaking rather than relying on contingency funding. Secondly, clause 215 says that the best place from which to provide the money is the national loans fund rather than the Contingencies Fund, for reasons that we can go into when we discuss that clause. The amendments widen the capacity for using that process to non-UK deposit-taking banks, following the issue with the Icelandic banks. That is all the clauses do. They do not go into great detail about other circumstances.

There is a common law power, which means that everything that has been done to date is lawful, but because of the 1932 PAC concordat, the idea is not to rely on common law powers for ever into the future if an issue comes up that may result in such expenditure reoccurring. The PAC concordat is that if something that had not existed or been appreciated, but might require forward expenditure—the present situation is an example—the Government will take a specific power for those circumstances, rather than simply relying on common law powers. That is a bit of a techie point, but that is all it is.

Brooks Newmark (Conservative, Braintree)

I have another question, but if I am off base, perhaps the Minister will let me know.

I know that there are EU financial assistance rules, and I wonder how the new legislation ties in with them, or whether it is even relevant to them. Were they taken into account when drafting the Bill?

Angela Eagle (Labour, Wallasey)

Obviously, a range of structures, national, EU and international, come into play when unexpected global events occur that affect entities with a global presence or with branches or part of the entity elsewhere—for example, Landsbanki in the UK—although they are regulated elsewhere. If the hon. Gentleman is referring to state aid, he is right: the clause is compatible with state aid. If he is referring to other EU rules, he will have to be more specific.

We do not believe that the clauses do anything to put us into conflict with EU rules. The point is technical and narrow, and ensures that our expenditure is properly and specifically accounted for, rather than being subject to common law, which is what the then Government arranged with the PAC in 1932.

Clause 214 is not unique. Its provisions appear in other legislation where a possible circumstance has been identified in which expenditure might have to be made. In such a case, the usual rule is to make proper legislative provision for it, which is what the clause does. It is nothing more or less than that.

I have introduced the amendment and we have talked a bit about the clause as well, but I am happy to answer any further questions that hon. Members may have.

Mark Hoban (Conservative, Fareham)

May I make a plea to the Minister? As hon. Members will recollect from our proceedings on the Finance Bill, when Government amendments were tabled, they were occasionally accompanied by explanatory notes, which assisted Members from all parties who were perhaps not privy to the thinking of Treasury officials. The Minister has acknowledged the technical and, indeed, techie nature of the measure, so is it possible to provide such notes for some of the Government amendments?

I turn now to the amendments and new clause 3. The original drafting made explicit the group of institutions to which financial assistance could be provided: UK authorised institutions and institutions that were deposit takers. I understand the point the Minister made about non-UK institutions, but I do not know the precise legal status of ING, to which the retail deposits of, I think, Kaupthing and Heritable were transferred. I had assumed that if ING Direct was an incorporated limited company in the UK, it would have already have been picked up under subsection (2)(b). However, if it was a branch of the Dutch parent would it, on that basis, fall outside subsection (2)(b)? I would be grateful for clarification about the contrast in status between branches and UK subsidiaries of overseas entities.

I could understand the position if the amendments were limited to deleting “UK”; the Minister’s explanation would stack up quite well and I would be happy to move on. However, I am concerned that the way in which the amendments have been drafted means that they go beyond banks. Amendment No. 28 refers to

“bank or other financial institution’.

On that basis, it could be an investment bank, which may not be a deposit taker in the strict definition of subsection (2)(b) or it could be an insurance company, an investment manager, an insurance broker or even an independent financial adviser. I am not sure how widely drawn

“bank or other financial institution”

is or why the Government believe it is necessary to have such a broad definition in the Bill. The breadth of clause 214 is extended by new clause 3, which gives the Treasury the power by order to

“provide that a specified institution, or an institution of a specified class, is or is not to be treated as a financial institution for the purposes of section 214 or 215.”

I understand that would work on a case by case basis, so I am not sure why the Government might want to decide, or have the power to decide, to exclude a specific category of institutions from the definition of

“bank or other financial institution”.

It would be helpful if the Minister could clarify that point because I am not entirely sure whether the measure gives the Government much wider powers to give assistance to financial institutions that are beyond the scope of the Bill—for example, to an insurance company.

Reports in the papers during recent weeks have suggested that there is some concern about the solvency of insurance companies. I do know whether the powers are sufficiently broad to enable Government financial assistance to be given to insurance companies, not withstanding the narrow scope of the Bill. Will the Minister explain why the terms have been drafted so widely and what the relevance of the power in new clause 3 is? Will she confirm that the financial assistance will not be used for any purpose beyond the limits set out in the Bill?

Angela Eagle (Labour, Wallasey)

On the hon. Gentleman’s point about explanatory notes for amendments, we are happy to try to provide them if the Committee feels that they are of assistance. We will get on with that for future aspects of the Bill, so I hope that is helpful.

The hon. Gentleman asked why there was such a broad definition in the Bill, and why the original drafting had been expanded by the amendments. It is partially because events have demonstrated that our original drafting was too narrow for us to achieve the aim, for systemic reasons, of stabilisation of particular institutions, which is what the Bill is about. Simply, the Landsbanki events demonstrated that the provisions as originally drafted were too narrow.

The hon. Gentleman asked where the bank ING was incorporated. He was right—it is incorporated in the Netherlands, so, but for the amendments, it would fall outside the provisions of subsection (2). The original drafting of the Bill would have made it harder for us to handle the situation that occurred. To be clear, however, we do not have any plans to provide financial assistance to ING—just in case anyone gets the wrong idea about that.

Mark Hoban (Conservative, Fareham)

I take on board the Minister’s comment about ING, but we could have dealt with that issue by just removing—well, not just removing; that makes it sound far too simple—the provision that relates to UK authorised financial institutions and using a broader definition of authorised financial institutions. The measure before us, however, would go further than even deposit takers.

Angela Eagle (Labour, Wallasey)

Yes, the definition of financial institutions is broad; it could include banks, building societies, holding companies, investment firms and investment banks; but, given the complex nature of relationships in particular examples, flexibility is needed so that powers exist to react appropriately if a circumstance involves different forms of arrangements that fall outside the original, narrow drafting of the Bill. That is why we have tabled the amendments. We have to be flexible. If, for reasons of stabilisation, there were a need to direct assistance, the amendments would mean that we had the power to direct it where it was needed.

Mark Hoban (Conservative, Fareham)

Am I right, therefore, in assuming that if it was decided, for whatever reasons, that Standard Life, which has a banking subsidiary and is owned by an insurance company, were to acquire the deposits of another licensed deposit taker, the amendments would enable assistance to be given to the parent company; whereas, under the previous rules, we would not have been able to assist the parent company but could have assisted the banking subsidiary?

Angela Eagle (Labour, Wallasey)

I do not want to get into using particular examples or names, for rather obvious reasons. We are not talking about existing institutions that are in difficulty, so I do not want to use the hon. Gentleman’s phraseology with respect to particular institutions. However, he is right in essence: the provision is about the flexibility to deal with a circumstance that may present itself in a particular instance where there are different arrangements. We do not want to predict them in advance, but we want to have the power to direct assistance and not allow too narrow a definition of “financial institution”. It would defeat the overall object of the Bill, which is, in certain difficult instances, that assistance be directed where it solves the problem—that, I suppose, is the simplest way of putting it—and the amendments would do so. The power could not be used to bring things that are clearly not financial institutions within the scope of the clause, so we will not be rescuing plumbing companies. The difficulty, however, is that there is no clarity about what a financial institution is, and of course what one is may change or evolve. For example, we have recently seen the emergence of those who issue e-money. Such evolution of financial arrangements will continue.

The amendment will give us the scope to direct financial assistance where it is needed to solve a problem. We are not specifying particular problems. Systemic problems may emerge that have not been anticipated and do not fall within the narrower wording in the clause. The amendment will give us the flexibility to direct assistance where it is most needed. Otherwise, we may suddenly find that the arrangements that have evolved do not fit the powers.

Mark Hoban (Conservative, Fareham)

I am grateful for the Minister’s explanation. I am beginning to understand the proposals. She mentioned people providing e-money. I guess that is the type of institution referred to in new clause 3, which will give the Government powers to specify a group of institutions as financial institutions. The obvious definition would be “financial businesses that are not regulated by the Financial Services Authority”, which could fall within the scope of new clause 3.

Angela Eagle (Labour, Wallasey)

The idea is to have a broad power that is future-proof in its scope of financial institutions, not to spread the powers beyond that. However, the measures must cope with the innovation that we see happening all the time, which is often technology-assisted. That underpins the amendments. I give the assurance that this is not a power to go off into other areas of the economy or to deal with different types of companies. It is trying to capture where this issue may focus if there is a rearrangement or evolution of financial systems. That is often accompanied by technological innovation, which introduces things like e-money. That would not have been picked up by the original drafting of the Bill, but it may need to be if we are talking about systemic risk and the ability to move in and protect depositors.

Mark Hoban (Conservative, Fareham)

The Minister is tempting me down a route by talking about e-money—I quite regret having mentioned it. Are e-money systems such as PayPal covered by the banking industry’s responsibilities for payment systems under part 5? I am not sure where such systems fit within the regulatory framework.

Angela Eagle (Labour, Wallasey)

I think the answer is that e-money is regulated by the FSA regulatory framework. That may change in the future; the idea of regulatory frameworks is that they can evolve if the things that they are regulating evolve. Part of the difficulty is that we are trying to pass legislation that is to some extent future-proofed to deal with a fast-moving and innovative part of the global economy. That is why the proposals will broaden the scope of “financial institution”. I do not want to give examples because such things may not exist yet. The structure of companies that may have to be dealt with in a future credit shock may not yet exist, but we want to give enough scope under these powers for the Treasury and the authorities to deal appropriately with a future systemic problem.

In response to the hon. Gentleman’s specific question, I shall have to write to him with details because he has been so innovative that we do not quite know the answer, but I am happy to let him have an answer in writing, if he is concerned.

Mark Hoban (Conservative, Fareham)

Can the Minister confirm for the sake of clarity that, notwithstanding the broadening of the scope in respect of institutions that can receive financial assistance, they can only receive it under the Bill in connection with parts 1 to 3 and that it will not go wider than the terms of the Bill?

Angela Eagle (Labour, Wallasey)

That is a reasonable question. Under the powers in the Bill, assistance can be provided other than in connection with a special resolution regime for reasons of economic and systemic stability. One of the most obvious examples of that is the guarantee the Chancellor gave to depositors with Landsbanki, which is not in the special resolution regime. However, some of those powers are required in future to ensure that Landsbanki depositors can be covered, so it is not only about matters within the scope of parts 1 to 3.

Mark Hoban (Conservative, Fareham)

I am now pleased that I asked the question, because the Minister’s answer goes further than the clause suggests. Clause 214(1)(a) says

“for any purpose in connection with Parts 1 to 3 of this Act”.

Parts 1 to 3 deal with the special resolution regime, stabilisation powers, bank administration and bank insolvency, but I do not think that the guarantee given to depositors with Landsbanki and the other Icelandic banks is covered by subsection (1)(a).

Angela Eagle (Labour, Wallasey)

That is true, but clause 214(1)(b) goes beyond the special resolution regime, as the hon. Gentleman will see if he looks at it. It refers to

“a UK authorised institution (other than in respect of loans made in accordance with section 215)”.

Subsection (1)(b) takes the powers slightly wider than the hon. Gentleman suggested. However, that is for the general good, for protecting depositors and thereby for safeguarding financial stability—that is the connection—but not only, necessarily, within the insolvency situation of particular banks.

Mark Hoban (Conservative, Fareham)

I am grateful to the Minister for drawing my attention to subsection (1)(b). I am not trying to be difficult, but paragraph (b) would be fine if the definition was related to licensed or authorised deposit takers. However, the change in the definition of “a UK authorised institution” to include a bank or other financial institution gives the Government powers to give any financial institution money, not necessarily in connection with parts 1 to 3. That makes the scope wider than I had anticipated, given the nature of the Bill. I am not sure what safeguards there are to prevent a Government from using the provision to give financial assistance to any financial institution. There is no natural or obvious limit in the clause, given the breadth of definition that we are now introducing in the Bill.

Angela Eagle (Labour, Wallasey)

I do not think that the hon. Gentleman is trying to be difficult. He is right to probe the issues. He asks why the definition is wider than the scope of parts 1 to 3 of the Bill. I ask him to bear in mind what we are trying to do with the Bill, which is to have a system that can be preventive—that allows earlier intervention to prevent more of a systemic breakdown, if that is appropriate—rather than having to wait until a bank has entered the special resolution regime, for example. It may not always be appropriate to wait until something has collapsed to provide financial assistance; it may be appropriate to offer assistance at an earlier stage of the process to ensure that we prevent damage that might happen if we are prevented by law from intervening earlier.

For instance, it might be appropriate to offer assistance to prevent a company from entering the special resolution regime, or to support a bank to stabilise it. The guarantee offered to depositors in certain institutions and the recapitalisation scheme itself are recent examples of action that stabilises before a collapse can happen. Therefore, we think that it would be wrong to wait until the bank entered the special resolution regime to be able to provide assistance to it, and that is for preventive reasons.

I do not think that any Government would want to go around injecting capital into banks for charitable purposes. It is done to prevent a systemic collapse and there are safeguards against the improper giving of money to financial institutions.

The measure is an enabling power. It does not mean that it will be appropriate to give assistance to financial institutions willy-nilly, or just because we wake up one morning and decide that it might be a good idea. It has to be for the reasons that we have all discussed during our debates on the Bill and indeed during the passage of the Banking (Special Provisions) Act 2008.

We also have to put it on the record that we need to ensure that we get value for money for the money that we give, so the clause is about ensuring that regular parliamentary powers apply to money that is given, rather than using common law, and the powers go wider than perhaps the hon. Gentleman had thought and also perhaps wider than our original drafting, simply because of the fact that lessons have been learned recently. The clause is about acting in a timely fashion to prevent a worse situation happening, which can sometimes mean acting proactively before a crisis erupts in its full form.

Having given those reassurances, I hope that the hon. Gentleman will be happy with the amendments.

Mark Hoban (Conservative, Fareham)

Actually, I think I can help the Minister. I appreciate the point that she is making about wanting to ensure that we can give financial support before the special resolution regime is invoked or before insolvency or administration. That is entirely reasonable.

I just wondered whether in subsection (1)(b) the financial assistance could be restricted to deposit-taking institutions, so that the paragraph would read, “in respect of, or in connection with giving, financial assistance to or in respect of a bank or other deposit-taking institution”. I want to get round the issue about when it is a UK branch or a UK-incorporated company. So, effectively one can give financial assistance in respect of a deposit-taker in the UK, but that financial assistance can be provided to a bank or other financial institution. So we are trying to restrict the circumstances in which the money can be given but broaden the people who the money can be given to.

Angela Eagle (Labour, Wallasey)

Why would the hon. Gentleman want to limit assistance in that way when doing so would mean that the powers of intervention might not be able to cope with a particular instance? We obviously cannot anticipate when assistance will need to be given to protect UK depositors—Landsbanki is an obvious example.

Mark Todd (Labour, South Derbyshire)

I appreciate my hon. Friend’s willingness to take examples and apply them. If a major insurance institution that provides important support to deposit takers found itself in difficulty—we can recognise straight away one such institution across the pond that was the focus of Government intervention—would not some flexibility to respond to another financial institution that is not a deposit taker but is intimately connected with the support of deposit taking be an important requirement in the Bill?

Angela Eagle (Labour, Wallasey)

My hon. Friend, as he often does, has got straight to the point. I apologise if I have been waffling around it. The hon. Member for Fareham asked whether we should limit those powers to deposit-taking institutions, but recent experience shows that other types of institution can also get into difficulties. My hon. Friend is right in the sense that AIG, the largest insurer in the world, had to be bailed out—we can use that example because the Fed did it. It is especially appropriately in the current climate that we take powers that enable us to provide assistance to other institutions.

I would like to reassure the hon. Gentleman that we have no immediate plans to provide money to insurers or investment companies, but we think it prudent in the current circumstances to take powers that are wide enough to cope with any systemic situation that might occur, rather than narrowing them. I emphasise that that is in the context not only of the Bill, but of the need for proper value for money through appropriate Government expenditure. No Government want to have to put money into a private sector company, but some are so important to the economy and the world financial system that, if needs be, they must be supported. The hon. Gentleman is trying to narrow those powers and limit their potential use, even though we hope that they will not have to be used often, if ever again. He is wrong to think that narrowing them in the current circumstances, considering the interconnectedness of the financial systems, is the right thing to do at this time.

Mark Hoban (Conservative, Fareham)

I appreciate the Minister’s comments. Importantly, the debate has established that the Government are looking for powers to give financial assistance to any class of financial institution that could pose a threat to financial stability. I might not quite have understood the Minister’s opening remarks, but that is quite an important power, and that needs to be acknowledged when looking at the matter.

In essence, that power will give the Government the opportunity to provide financial assistance to any financial institution, regardless of whether it is an authorised deposit taker or is helping to stabilise an authorised deposit taker. It could be used to provide financial assistance to a company such as AIG, if we had such a company in the UK. It could be used to provide financial support to an AIG-type institution, even if it is not a deposit taker. It is just now that I have got to that point. The breadth of the power that the Government are seeking goes way beyond the original wording of the Bill.

Angela Eagle (Labour, Wallasey)

Obviously, there has to be a systemic risk. The hon. Gentleman is right about insurers that are bound up in systems that may, in the end, lead to deposit-taking institutions after following a trail of instability back to a particular place. It may be the case that in certain circumstances a power to stabilise such an organisation is appropriate.

Mark Todd (Labour, South Derbyshire)

To try to be helpful, perhaps the focus therefore should not be on defining more closely the institutions that one might assist but the purpose that one would follow in assisting. We may come to this when we discuss financial stability in broader terms shortly, but perhaps a sharper definition of the purpose for intervening in the marketplace in this way might be of more assistance than querying the institutions that might be assisted.

Angela Eagle (Labour, Wallasey)

Yes, but given that we have the Banking (Special Provisions) Act 2008 and are now seeking to replace those powers with a more permanent statute—that is what this Committee is doing this morning—the context is clear. I re-emphasise that there are limits on the power to spend value-for-money state aid and propriety limits. In the context of the Bill, we are discussing systemic risk, where the consequences of allowing something to fail are much greater because of its systemic importance than the consequences of intervening to save it.

Mark Hoban (Conservative, Fareham)

The hon. Member for South Derbyshire made a valid point about purpose. I am not sure that the purpose is as clear as it could and should be. In her responses to interventions, the Minister clarified the breadth of the power, but this is a Banking Bill, not a financial stability Bill. If there were some way of linking the use to which funds under clauses 214 and 215 could be used for the purpose of the financial stability objective, which is the context for the Bill, it would be helpful in giving people a clear view as to the purpose for which and circumstances in which the money could be used.

Clause 215

Clause 216

Mark Hoban (Conservative, Fareham)

I beg to move amendment No. 58, in clause 216, page 103, leave out lines 9 to 11.

Jimmy Hood (Labour, Lanark and Hamilton East)

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

No. 48, in clause 216, page 103, line 9, leave out ‘, consulting the Treasury, determine and’.

No. 49, in clause 216, page 103, line 11, at end insert

‘and monitor the delivery of that strategy’.

No. 59, in clause 216, page 103, leave out lines 13 to 19 and insert—

‘(1) There shall be a committee of the Bank, known as the Financial Stability Committee of the Bank of England, consisting of—

(a) the Governor and Deputy Governor of the Bank,

(b) two members appointed by the Governor of the Bank after consultation with the Chancellor of the Exchequer, and

(c) four members appointed by the Chancellor of the Exchequer.

(2) Of the two members appointed under subsection (1)(b)—

(a) one shall be a person who has executive responsibility within the Bank for financial stability analysis, and

(b) the other shall be a person who has executive resopnsibility within the Bank for financial stability operations.

(3) The Chancellor of the Bank of England shall only appoint a person under subsection (1)(c) if he is satisfied that the person has knowledge or experience which is likely to be relevant to the Committee’s functions and after consultation with the Governor of the Bank.

(4) The Treasury Committee of the House of Commons may hold an inquiry into any appointment made under subsection (1)(c).’.

No. 50, in clause 216, page 103, line 13, leave out from ‘a’ to ‘consisting’ in line 14 and insert ‘Financial Stability Committee’.

No. 68, in clause 216, page 103, line 14, leave out from ‘of’ to end of line 19 and insert

‘8 non-executive directors of the Bank appointed by the chair of the court of directors (designated under paragraph 13 of Schedule 1).’.

No. 51, in clause 216, page 103, line 17, at end insert

‘two other executives of the Bank appointed by the Treasury, and’.

No. 52, in clause 216, page 103, line 18, leave out from ‘4’ to end of line 19 and insert

‘other members appointed by the Treasury following a transparent appointment process overseen by the Commissioner for Public Appointments.

(1A) A person appointed under subsection (1)(c)—

(a) must not be an executive of the Bank or a member of the court of directors of the Bank;

(b) must not be an active participant in financial markets;

(c) should have recent experience of financial markets, knowledge of legal or accountancy matters relevant to the special resolution regime under the Banking Act 2008, and international experience.’.

No. 53, in clause 216, page 103, leave out lines 21 to 23.

No. 62, in clause 216, page 103, line 21, leave out from first ‘to’ to ‘implementation’ in line 22 and insert ‘decide upon the’.

No. 70, in clause 216, page 103, line 21, leave out from first ‘to’ to first ‘the’ in line 22 and insert ‘monitor’.

No. 69, in clause 216, page 103, leave out lines 24 to 29.

No. 60, in clause 216, page 103, line 24, leave out ‘give advice about’ and insert ‘decide’.

No. 61, in clause 216, page 103, line 27, leave out ‘give advice about’ and insert ‘decide’.

No. 54, in clause 216, page 103, leave out lines 30 to 32.

No. 71, in clause 216, page 103, leave out lines 33 to 35.

No. 55, in clause 216, page 103, line 33, leave out ‘court of directors’ and insert ‘Treasury’.

No. 56, in clause 216, page 103, leave out lines 42 to 43.

No. 57, in clause 216, page 104, line 16, leave out ‘to (e)’ and insert ‘or (c)’.

No. 63, in clause 216, page 104, line 23, at end add—

‘(3) At the end of section 2(1) of the Bank of England Act 1998 insert “and the Financial Stability Objective”’.

Clause stand part.

Mark Hoban (Conservative, Fareham)

This will be a long debate, as it includes a significant number of amendments and the clause stand part debate. I shall use the stand part debate on clause 216 to deal with the financial stability objectives set out in proposed new section 2A to the Bank of England Act 1998. This is an important area of the Bill because it deals with some of the changes to the institutional architecture in the tripartite arrangements, and in particular it deals with the scope of the Bank of England and how it carries out its duties.

The Bank has two functions under clause 216. First, it has a statutory objective of committing to protecting and enhancing financial stability, which is set out in proposed new section 2A. Secondly, proposed new section 2B establishes the financial stability committee, which will be a sub-committee of the court of the Bank of England, chaired by the Governor. I have tabled two groups of amendments to the clause. One group—amendments Nos. 56, 58, 59, 60, 61 and 62—would make the financial stability committee a wholly executive body within the Bank of England. The second group—amendments Nos. 68, 69, 70 and 71—would make it a wholly non-executive body. I have done that to stimulate debate within the Committee about the role of the financial stability committee, where it sits within the Bank, and what its powers and authorities are.

The Treasury Committee report on banking reform said:

“The House of Commons should not be invited to consider and approve arrangements for the Financial Stability Committee as they stand—with proposals of uncertain origin and with the purpose and composition of the Committee yet to be determined. This is because the committee is in danger of failing in both its executive and scrutinising functions as it is as drafted, a hybrid body”.

That is the concern that we have. I want to use this debate to tease out the hybrid nature of the committee.

With regard to those amendments that would make the financial stability committee an executive body, the model that I have used is the Monetary Policy Committee. For the financial stability committee to be as effective as the MPC, there would need to be two fundamental changes to the proposals set out in the Bill; one relates to the composition of the committee and the other to its function.

The strength of the MPC is that it brings together a group of experts, some from within the Bank and some from external appointments, with a wide range of views. One only has to listen to the views of David Blanchflower today to understand the breadth of opinion in the MPC. That provides the creative tension that any committee needs to get to the right answer, using a breadth of views. Bringing in outsiders gives a broader perspective, and the MPC is credible because of the calibre of the appointments and the mix of internal and external appointments.

Given the importance of financial stability decisions, if we are to have a committee with the responsibility to promote financial stability, it is important that there is a clear decision-making process, and that such decisions are made by a wider range of individuals than is currently the case. That is why there should be external members who can give a wider perspective. The amendment tabled by the hon. Member for South Derbyshire suggests the type of person who might become a member of the committee.

It is not only the Treasury Select Committee that suggested there should be expertise; the Chancellor of the Exchequer, speaking in the House of Commons on 5 June, said:

“We should learn from the example of the Monetary Policy Committee, and take a similar approach to financial stability, bringing in outside expertise to advise the Governor and the appropriate deputy governor”.—[Official Report, 5 June 2008; Vol. 476, c. 916.]

Mark Todd (Labour, South Derbyshire)

The hon. Gentleman says “outside,” and one of the critical definitions of that implies outside of both executive and non-executive functions within the fabric. No MPC members currently serve on the court of the Bank, and neither should they. One of the important issues in defining what an outside individual is—something that perhaps the Chancellor muddied slightly in that comment—is that a person should be entirely outside any structure within the Bank. Does the hon. Gentleman agree?

Mark Hoban (Conservative, Fareham)

That is what the debate is trying to tease out. If the financial stability committee is to have decision-making powers, it would be right for outside appointees to be genuinely external rather than non-executive. I will elaborate on that, but as I see it, the role of a non-executive director—in any organisation—is one of scrutiny. They are not there to make executive decisions but to hold the executives to account. That is why audit committees of plcs are staffed almost entirely—if not entirely—by non-executive directors. It is the same with remuneration committees. If we ask a non-executive director to perform a role, generally that is in a scrutiny rather than an executive position.

The hon. Gentleman is right to make a distinction about the external appointees. If it is meant to be an executive committee, those people should not be non-executive directors of the court of the Bank of England, in the same way that they cannot be for the MPC. If it is a scrutiny role, they should be non-executive directors, and if it is not a scrutiny role, they should not be, because it muddies the water as to what non-executives should do.

I want to return to the parallel with the MPC. The Treasury Committee’s report tried to identify the strength of the MPC. It said that it has

“a distinct status and authority as the body responsible for the formulation of monetary policy within the Bank of England”

It noted that there was a clear separation from the court and said that the MPC had “clarity of function.” That goes back to the hon. Gentleman’s point that there is no blur between oversight and executive powers.

Since the Chancellor’s statement in June, there has been a lack of clarity. The model now emerging is not akin to that of the MPC or to the scrutiny role that non-executive directors would introduce into the procedure.

Sir John Parker is a senior non-executive director of the court of the Bank of England. To his mind, the financial stability committee would make executive decisions relating to individual actions. That contrasts with the existing financial stability board within the Bank, which is open to non-executives and does not make executive decisions. In his comments, the Governor said that there should be an executive element to the financial stability committee, and that the holder of his post should chair it; otherwise, the committee will not get to grips with the policy issues faced by the Bank.

Sally Keeble (Labour, Northampton North)

In setting out his views, can the hon. Gentleman tell us what he believes that the scope of the executive decisions should be? That is the critical difference between the MPC and the financial stability committee.

Mark Hoban (Conservative, Fareham)

If the hon. Lady will bear with me, I will come to that. I have tabled amendments that redraw the scope of proposed new section 2B(2), to try to distinguish between the executive and non-executive functions that the two formulations could set out.

As I was saying, the Government are clearly of the view that the financial stability committee should have executive decision-making powers, and that the chairman should chair it in the same way as he chairs the MPC. That would not be an unreasonable view to take if the committee were to be an executive body. There has been some comment on this matter by the industry. In its response to the January consultation, the Association of British Insurers said that its preferred option would be a separate expert committee, along the lines of the MPC, with responsibility for financial stability. That would allow the court to deal with its more administrative role. However, if the committee is to be an executive body and carry that authority, I am not sure that it can be a sub-committee of the court. That is why we would reconstitute the committee, under amendments Nos. 56 and 58 to 62, to consist of the Governor, the deputy governor, two members appointed by the Governor and four members appointed by the Chancellor. It would then broadly mirror the composition of the MPC.

The Treasury Committee has suggested that the committee’s functions should include liquidity operations outside the ordinary course of business, such as schemes comparable to the special liquidity scheme; the functionality of payment systems; formulating policy positions with respect to prudential regulation; directing the Bank’s analytical work on financial stability, including horizon-scanning for potential risks; and decision making in relation to the special resolution regime. That is a reasonable set of functions for an executive body to have.

Amendment No. 62 would tweak proposed new section 2B(2) to make it clear that the financial stability committee would decide upon the Bank’s financial stability report, and that it is there to make not recommendations but decisions. Amendment No. 60 would require the committee to decide whether the Bank should exercise its stability powers rather than simply give advice. Amendment No. 63 would carve out from the court’s remit responsibility for the financial stability objective in the same way that the MPC’s objective is carved out of the remit of the court in the 1998 Act.

My amendments set out how the committee could be given a purely executive function, and would ensure that the composition of the committee reflected its executive role, putting it on a par with the MPC in terms of functionality and membership. That is a clear model of how the committee could work, with collective decision making. The amendments would ensure that a range of voices were heard when the committee made decisions about financial stability, and would broaden engagement in decision making beyond the confines of the Bank to include people with relevant external expertise, such as those with recent banking, legal or accountancy experience. However, the external appointees would have to have the credibility to make those decisions in the way that external appointees on the MPC have sufficient credibility to ensure that its decisions are seen as credible in the outside world.

Moving to the second batch of amendments, the Governor might decide, in relation to the tripartite authorities, that we do not want an executive body to make decisions, and that we want them to be made as they have been made in the past few years. What we actually want from the financial stability committee is not a hybrid of executive and non-executive roles, but someone who will hold the executive within the Bank to account. I have sought under amendments Nos. 68 to 71 to bring that about.

Significant arguments can be made for a non-executive body, and I am agnostic about which route we take. There are merits on both sides. I am not intending to press the amendments to a Division, but this is an opportunity to gain clarity from the Government about their thinking.

Angela Eagle (Labour, Wallasey)

Will the hon. Gentleman explain why he thinks that the interest rate decision made by the Monetary Policy Committee is akin or similar to decisions that would have to be made in respect of contributing to financial stability? One is a lever to be pulled, and is connected to something; it is about the price of money. The other is much more diffuse and cannot be dealt with in the same way as the Monetary Policy Committee deals with interest rate decisions. Will he share with the Committee his thoughts on why the institutional arrangements for making the Monetary Policy Committee decision are akin to those that he thinks the financial stability committee should be making if it is doing its job?

Mark Hoban (Conservative, Fareham)

We need a clear structure for the decision-making process. There are two models that we could follow: one is to vest the power to make the decisions with the executives of the Bank of England, as happens at the moment, and the other is to give it to a separate committee, the financial stability committee, which could make the executive decisions on behalf of the Bank.

The Minister is right to point out that the MPC meets only two days a month to make the decisions—I accept that I am grossly over-simplifying its role. The committee members undertake a lot of analytical work between meetings. I am not sure to what extent they see their role on the MPC as being full-time; I suspect that many external appointees do see it as pretty much a full-time role.

Mark Todd (Labour, South Derbyshire)

An important function of the MPC that could be paralleled in such a way is communication and debate about the credible subject with which it is engaged. Typically, the MPC members visit a substantial number of bodies throughout the country, write articles and contribute speeches to bring home some of the critical monetary policy issues. One of the things that we have learnt about financial stability is that perhaps the debate has not been vigorous enough and that some of the messages have not been heard loudly enough.

Mark Hoban (Conservative, Fareham)

Indeed. The hon. Gentleman makes a powerful argument for the financial stability committee to be constituted in the same way as the MPC. I shall come back to that point in a minute.

The strength of the MPC in decision making is that the breadth of its appointments provokes and simulates a debate, the point made by the hon. Member for South Derbyshire and, as David Blanchflower demonstrated by his remarks today, there is every breadth of view about some of the decisions. There is positive strength from engaging the wider financial community in a debate about how to gain financial stability. To go back to the Minister’s point, the executive committee can meet on a more regular basis than two days a month to make such decisions. If my recollection is right—I think that it is—the court of the Bank of England was convened in the evening after support was given to Northern Rock to advise on the committee. It is not impossible to get a committee together to make decisions so that a continual debate is in progress rather than one that would be seen as discrete and held only on a monthly basis.

Sally Keeble (Labour, Northampton North)

What the hon. Gentleman has not mentioned, which I asked him about, is the fact that the MPC has a clear target on the inflation figures and, in interest rates, it has a clear lever, which is very focused. It debates wider matters, but its purpose and function is crystal clear and tightly defined in a policy framework set by Government, and it has mechanisms to deal with that. That is different from what he is saying about the FSC, which is an executive committee. He needs to talk about the purpose, functions and mechanisms at its disposal.

Mark Hoban (Conservative, Fareham)

The hon. Lady makes an important point. In the second half of my remarks, I will expand on the financial stability objective. Clearly, the FSC is there to contribute to achieving that objective. She is right that it is difficult to measure whether that objective is achieved. One knows when one does not have financial stability, but it is not easy to say when there is financial stability. In his remarks to the Treasury Committee, the Governor said that during the period of tranquillity the seeds of the current crisis were being sown. That suggests that it is difficult to determine when there is financial stability. Whether the committee is executive or non-executive, there is a problem of how to measure and monitor its performance.

We could talk about more qualitative measure—in evidence to the Treasury Committee, Sir John Parker spoke about a qualitative financial stability objective. That suggests that when there is such a degree of subjectivity, having more voices involved in the debate may be better than having fewer, because that makes it harder to be as precise about whether an objective has been achieved. On more subjective areas of debate, more voices are needed to give different perspectives, rather than there being a house view on how financial stability should be achieved.

I will return to the amendments, because we will discuss the other points in a few minutes. One criticism of having an executive committee centres on whether it can make decisions quickly and whether the decision-making process is sufficiently streamlined. That relates to the point underlying the Minister’s intervention. I think that that criticism is legitimate. As I said earlier, I am agnostic on which model should be used, but I do think that there must be clarity, whichever is chosen. As its remit is constituted, the FSC might not be able to make the quick decisions that the Government and others will expect it to make in the context of securing financial stability.

On that basis, perhaps the right model is one of scrutiny, whereby the committee will examine decisions once they have been made rather than have an undefined role in making the decisions. That would send the financial stability function of that committee down a sub-committee of the court route rather than a hybrid route. It would clearly be there to deal with issues of financial stability; it is a sub-committee of the court. The financial stability board already exists within a court structure. The deputy governor for financial stability is the chairman of that board. Non-executive directors attend and attendance is open to all members of the court. The Governor also sits on that committee. It is not clear how the FSC as constituted in the Bill differs from the financial stability board. That is the board that will hold the Government to account.

If the FSC is to be a purely non-executive body, it must have a non-executive majority. It should not be party to executive decision making; its role should be confined to a forum for taking soundings prior to decisions being taken elsewhere by executives. It should be chaired by a non-executive in the same way that audit committees or remuneration committees are chaired in listed companies.

It is always important that we listen to the views of the non-executive directors of the court, who, in their memo to the Treasury Committee in June, outlined their strategic lead role, saying that they could, through the regular reviews that they conduct,

“endorse the Bank’s strategic objectives and work programme in relation to financial stability; to review the linkages between the Bank, FSA and HMT, as well as the Bank’s own capabilities, to ensure that the Bank is equipped to discharge its financial stability responsibilities; and to review the effectiveness of the Bank’s work on financial stability issues, including the internal organisation of that work”.

That is a good remit for a non-executive committee. It is not clear whether those processes that they already undertake would be incorporated within the FSC. If those are to be incorporated, that does not sit well with having an executive chairman.

Mark Todd (Labour, South Derbyshire)

Does the hon. Gentleman agree that there is another area of inconsistency in the Bill? Care is taken to define voting rights and others matters of that sort that might be related more clearly to an executive function, but is there an area of discrepancy in respect of the non-executive roles that he has highlighted? I am not sure that the hon. Gentleman’s amendments change all those; as with my amendments, I do not think that he went through with a fine-toothed comb to produce entirely consistent positions. Is there a discrepancy in focusing on exactly how people vote and when they are entitled to do so and having perhaps slightly less material about setting out in law a non-executive function?

Mark Hoban (Conservative, Fareham)

The hon. Gentleman makes a good point about voting rights. If the body is expected to be a decision-making body, there must be absolute clarity about who votes and where that power rests. With a non-executive body, the process does not need to be as precise. I freely admit that if I were a parliamentary draftsman, I would produce a better, more coherent set of amendments to create the distinction between the two, but these are a peg for debate. The questions about the hybridity of the committee have not been properly addressed. This is our opportunity to do so and the Minister, too, will have the chance to do so in her reply.

Angela Eagle (Labour, Wallasey)

The hon. Gentleman is right: it is a recognisable option to table two incompatible groups of amendments for debate. However, which amendments does he favour? He has not told us yet.

Mark Hoban (Conservative, Fareham)

The Minister must have been preparing her speech for later on and not listening to my remarks. I have said on two occasions that I am agnostic about this matter because I can see merits in both outcomes. I am not comfortable with the hybrid nature of the measure in the Bill. These are probing amendments, not ones that I would press to a vote, but I am keen to use them to get the Government to express why they believe that a hybrid model is preferable to either a purely executive or a purely non-executive model. That is the purpose of this debate. I freely admit to having a strong belief in some areas and being agnostic in others. There are not many things in life that I am agnostic on, but this happens to be one of them. I will return to the areas where I am less agnostic in later debates.

The amendments offer two choices. One is to make the financial stability committee a proper executive body, reflecting the strengths of the MPC in terms of its composition and remit and using that as the model of how an executive committee can function. The type of decisions that a financial committee will make must be thought about carefully. There are two choices: are those decisions best made by an executive body constituted in line with the MPC, or are they are better made within the Bank’s existing decision-making processes, but with stronger scrutiny by the court of directors?

The hybrid model confuses membership, accountability and responsibility. Given the importance of the financial stability objective, it is not helpful for that to be the case. There are other issues connected with the financial stability objective which also make it harder to hold the Bank, whichever model is used, to account.

The hon. Member for Northampton, North looks as though she wants to intervene—

Sally Keeble (Labour, Northampton North)

I am not going to intervene. I want to make a speech.

Mark Hoban (Conservative, Fareham)

In the expectation that I have finished, perhaps. I am afraid that that is not the case. It is quite a challenge—to my vocal cords as well as my powers of recollection—to have a stand part debate after such a complex set of amendments. I will plough on.

Sally Keeble (Labour, Northampton North)

It is a lonely furrow.

Mark Hoban (Conservative, Fareham)

The bound copy of Hansard will sell well in Fareham. [Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. The Committee should let the hon. Gentleman plough on.

Mark Hoban (Conservative, Fareham)

I will continue to plough my furrow, under your guidance Mr. Hood, no matter how lonely it is.

The financial stability objective forms the basis of one of the more difficult parts of the Bill. It clearly generated quite a lot discussion in the Treasury Committee and in our evidence session a week last Tuesday. We believe it is important that the Bank be given the objective of financial stability as part of its remit. Part of the challenge of the past 12 months or so has been to decide who has this responsibility and how the Bank should play its role.

We are part way through a period of instability and there must therefore be some lessons that we can learn that will enable us to prepare for the future. As I indicated earlier, it is easier to know when we are in a period of instability than when we are in a period of stability. In trying to understand what the objective of financial stability actually is, one needs to consider three questions. First, what does it mean in practice? Secondly, how does one measure it? The hon. Member for Northampton, North made that point well. Finally, what tools does the Bank have to deliver financial stability?

Let me start with the definitional problem first. I accept that it is a problem. The hon. Member for South Derbyshire and I had a debate last week about financial stability and how one defines it. The present Economic Secretary, in his evidence to the Committee, described the concept of financial stability as a high-level one. There has been a debate about the objective. The former Economic Secretary, the hon. Member for Burnley (Kitty Ussher), when giving evidence to the Treasury Committee in July, held out the prospect of a bit more definition than we have in the Bill when she said:

“I think we will be setting that out legally in the legislation, so the technical answer to that question will come in October...We will define it clearly, I presume, in the legislation.”

Clearly things have changed since she gave the evidence. Not only is she no longer the Economic Secretary, but we have gone from that tantalising promise that was held out to us of a definition to what we have in the Bill, which is:

“An objective of the Bank shall be to contribute to protecting and enhancing the stability of the financial systems of the United Kingdom”.

I am not sure that that is as full a definition as the hon. Lady hoped it would be, but that is the definition that we have.

The Treasury Committee concluded—having read the report and the evidence quite carefully I understand why it did so—that there is no consensus about what financial stability means. The report is clear. It sets out the range of definitions of financial stability that could be used. The Governor defined a period of financial stability as

“a period during which the payment system worked normally and the ability of households to mediate their savings into real investment in the economy at home or abroad operated normally.”

Nigel Jenkinson, who is the executive director—I see that the Whip wishes to intervene. I shall not finish this speech this morning. I will have to continue after the lunch break. I am happy if the usual channels want us to adjourn at this point.

Further consideration adjourned.—[Mr. Blizzard.]

Mark Hoban (Conservative, Fareham)

On a point of order, Mr. Gale. The order of consideration of the Bill has been varied to enable us to move on after the current provision to part 1. The purpose of reordering the order of consideration was to enable members of the Committee to have access to the code of practice referred to in clause 5 before the relevant date. The Economic Secretary to the Treasury said in the evidence session and at other points that the code of practice would be made available today. As of 10 minutes ago, I had not received the code of practice. I wonder whether it is the intention of Treasury officials to ensure that it is circulated.

Roger Gale (Conservative, North Thanet)

Strictly speaking, the provision of all Government papers is a matter for the Department involved, not for the Chair, but if the Exchequer Secretary to the Treasury wishes to respond, I should be pleased to allow her to do so.

Angela Eagle (Labour, Wallasey)

Yes. The code of practice should have been sent today. It is a surprise that the hon. Member for Fareham has not got it, so we will check to see—

Mark Todd (Labour, South Derbyshire)

Nobody has got it.

Angela Eagle (Labour, Wallasey)

Well, if nobody has it, I will personally check to see where it is. It is obviously for the convenience of the Committee that that important document in draft form is available, so I thank the hon. Member for Fareham for bringing the matter to my attention. I will certainly investigate.

Roger Gale (Conservative, North Thanet)

It clearly is important to the Committee that the relevant documents are available in a timely fashion, so I am sure that if officials dealt with that, the Committee would be grateful.

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are discussing the following: Amendment No. 48, in clause 216, page 103, line 9, leave out ‘, consulting the Treasury, determine and’.

Amendment No. 49, in clause 216, page 103, line 11, at end insert

‘and monitor the delivery of that strategy’.

Amendment No. 59, in clause 216, page 103, leave out lines 13 to 19 and insert—

‘(1) There shall be a committee of the Bank, known as the Financial Stability Committee of the Bank of England, consisting of—

(a) the Governor and Deputy Governor of the Bank,

(b) two members appointed by the Governor of the Bank after consultation with the Chancellor of the Exchequer, and

(c) four members appointed by the Chancellor of the Exchequer.

(2) Of the two members appointed under subsection (1)(b)—

(a) one shall be a person who has executive responsibility within the Bank for financial stability analysis, and

(b) the other shall be a person who has executive responsibility within the Bank for financial stability operations.

(3) The Chancellor of the Bank of England shall only appoint a person under subsection (1)(c) if he is satisfied that the person has knowledge or experience which is likely to be relevant to the Committee’s functions and after consultation with the Governor of the Bank.

(4) The Treasury Committee of the House of Commons may hold an inquiry into any appointment made under subsection (1)(c).’.

Amendment No. 50, in clause 216, page 103, line 13, leave out from ‘a’ to ‘consisting’ in line 14 and insert ‘Financial Stability Committee’.

Amendment No. 68, in clause 216, page 103, line 14, leave out from ‘of’ to end of line 19 and insert

‘8 non-executive directors of the Bank appointed by the chair of the court of directors (designated under paragraph 13 of Schedule 1).’.

Amendment No. 51, in clause 216, page 103, line 17, at end insert

‘two other executives of the Bank appointed by the Treasury, and’.

Amendment No. 52, in clause 216, page 103, line 18, leave out from ‘4’ to end of line 19 and insert

‘other members appointed by the Treasury following a transparent appointment process overseen by the Commissioner for Public Appointments.

(1A) A person appointed under subsection (1)(c)—

(a) must not be an executive of the Bank or a member of the court of directors of the Bank;

(b) must not be an active participant in financial markets;

(c) should have recent experience of financial markets, knowledge of legal or accountancy matters relevant to the special resolution regime under the Banking Act 2008, and international experience.’.

Amendment No. 53, in clause 216, page 103, leave out lines 21 to 23.

Amendment No. 62, in clause 216, page 103, line 21, leave out from first ‘to’ to ‘implementation’ in line 22 and insert ‘decide upon the’.

Amendment No. 70, in clause 216, page 103, line 21, leave out from first ‘to’ to first ‘the’ in line 22 and insert ‘monitor’.

Amendment No. 69, in clause 216, page 103, leave out lines 24 to 29.

Amendment No. 60, in clause 216, page 103, line 24, leave out ‘give advice about’ and insert ‘decide’.

Amendment No. 61, in clause 216, page 103, line 27, leave out ‘give advice about’ and insert ‘decide’.

Amendment No. 54, in clause 216, page 103, leave out lines 30 to 32.

Amendment No. 71, in clause 216, page 103, leave out lines 33 to 35.

Amendment No. 55, in clause 216, page 103, line 33, leave out ‘court of directors’ and insert ‘Treasury’.

Amendment No. 56, in clause 216, page 103, leave out lines 42 to 43.

Amendment No. 57, in clause 216, page 104, line 16, leave out ‘to (e)’ and insert ‘or (c)’.

Amendment No. 63, in clause 216, page 104, line 23, at end add—

‘(3) At the end of section 2(1) of the Bank of England Act 1998 insert “and the Financial Stability Objective”’.

Clause stand part.

Mark Hoban (Conservative, Fareham)

I welcome you to the Chair for this afternoon’s proceedings, Mr. Gale. Before we adjourned, I had moved on from the debate about the amendments to the clause stand part debate and I was talking about the financial stability objective. I identified three key areas for clarification: what does the objective mean, how is it measured and what tools does the Bank have to deliver financial stability?

I gave the definition of the objective that the Governor of the Bank of England had used in evidence to the Treasury Committee. That definition was amplified when we held our evidence session on Tuesday 21 October. The executive director for financial stability expanded on the Governor’s definition when he defined a situation of financial stability as one where

“the financial intermediation mechanism works normally, where households and corporates can mediate their savings into real investment in the economy at home and abroad, and where the payment system operates normally. It is a situation where intermediation works well, where people have confidence in the system and where the payment system operates well.”——[Official Report, Banking Public Bill Committee, 21 October 2008; c. 21, Q53.]

That is quite a narrow definition. Clearly, it is one that the Bank is happy to use, and it ties in with one of the new responsibilities that have been given to the Bank in the Bill. I am referring to the regulation of payment systems. There is a clear link between that definition and the Bank’s responsibility.

I am concerned, however, that the definitions that the Bank has used are very much process-driven, focusing on the payment system and how effectively we can mediate savings and investments. Other definitions are available that focus on broader issues. Andrew Crockett, who was formerly the general manager of the Bank for International Settlements, referred to an absence of financial stability as

“a situation in which economic performance is potentially impaired by fluctuations in the price of financial assets or by an inability of financial institutions to meet their contractual obligations.”

There are two elements to the definition. One is about process—the ability to meet contractual obligations—but the first one broadens the definition somewhat by talking about the impact that the fluctuation in asset prices might have on the economy.

That raises a different set of issues and links into a definition of stability given by Garry J. Schinasi in an International Monetary Fund publication called “Defining Financial Stability”. He described financial stability as

“a condition in which an economy’s mechanisms for pricing, allocating, and managing financial risks (credit, liquidity, counterparty, market, etc.) are functioning well enough to contribute to the performance of the economy”.

That defines financial stability much more broadly, and it reflects on some of the current problems in the financial system and indicates why the system is unstable. For example, the pricing of risk related to mortgage-backed securities did not appear to work, as the level of risk inherent in those products was underestimated and consequently lower interest rates were charged. The credit crunch, in its early stages, was a sign that liquidity risks in the market were not well understood. We know that from Northern Rock, where the problem was not the bank’s solvency but its liquidity, because of its exposure to wholesale markets. People’s understanding of how wholesale markets functioned did not flow into their understanding of liquidity. Banks that were perceived to have adopted a more cautious approach to risk and were widely criticised for the conservatism of their strategies, have withstood the market turmoil with greater resilience than banks that followed more aggressive policies. Again, there is the issue of understanding the risks and the markets. Part of the problem that we face is the consequence of an asset price bubble that was fuelled by an increase of debt and which has caused instability in the market.

I would argue that it is a combination of those issues that has given rise to some of the current problems, such as the threat to payment systems and the means of intermediation. My concern is that the definition that has been adopted or discussed by the Bank is narrow. If we look at the causes of the current financial instability, we will understand that there are wider issues of financial stability than simply the functioning of the payment system. My concern is that if we have too narrow a definition of financial stability we are at risk of losing sight of the threats to that stability and of the policy actions that we might take to combat that.

Mark Todd (Labour, South Derbyshire)

The hon. Gentleman has used, I think, the same source as I have—the Treasury Committee report. The most appealing definition that I found among those offered—they are all flawed in various ways—was the one that the hon. Gentleman has not quoted, from the Deutsche Bundesbank:

“A steady state in which the financial system efficiently performs its key economic functions, such as allocating resources and spreading risk as well as settling payments, and is able to do so even in the event of shocks, stress situations, and periods of profound structural change.”

That somehow encompasses some of the basic functional aspects that the hon. Gentleman talked about in relation to the Governor’s comments, and also the management of risk and stress analysis, which is another key element.

Mark Hoban (Conservative, Fareham)

The hon. Gentleman makes a good point. I did not wish to regurgitate everything that was in the Treasury Committee report—just perhaps most of it. This dual aspect of financial stability is what is really important. It is about how the systems function and their resilience, but it is also about the allocation of risk. Narrowing the definition of financial stability could potentially lead to ignoring the risk aspect of that stability. It is important to reflect on that. As the Bank comes to terms with its new role and looks at its financial stability objective, I hope that it will consider actively the allocation of risk and the price that risk gets in the marketplace.

It is difficult to define financial stability. I expect that explains why the Government moved from their policy in July of wanting a definition in the Bill, to just saying that it is a high-level concept. Sir John Parker, in his memorandum on this to the Treasury Committee, suggested that there could be a “qualitative” objective for financial stability, rather than a quantitative objective, which might be developed to identify factors that could be used to define far better what financial stability would be. In his evidence, he suggested five factors that might be helpful in coming up with a qualitative objective:

“First, the Bank cannot and should not seek as its objective the elimination of all instabilities...within the...system. That could only be achieved by suppressing the financial intermediation...Second, the tools available to the...banks...are limited”,

which implies that the elimination of financial instability is unrealistic. That is important to recognise—I shall come on to tools later on, but there is a limited range of policy levers available to the Bank to tackle financial instability. I shall propose one additional lever that the Bank might be able to use. To continue:

“Third...the objective of the...authorities should be to ameliorate the effects”—

costs—of failure, which goes back to the definition that the hon. Member for South Derbyshire quoted. How can we build resilience into the system to ensure that, where there is a failure, the system continues to function effectively? Some of the clauses in the Bill tackle that—the reforms to the Financial Services Compensation Scheme will help the system perform better when there is a banking failure.

Sir John also suggested, fourthly, that the Bank’s role with regard to financial stability would be strengthened with its new responsibilities for oversight of payment systems, which we debated on Tuesday, and the operation of the special resolution regime, which we will come on to in part 1 of the Bill. His fifth comment was that, while financial stability might focus on the banking sector, there are non-banking activities that have an impact on financial stability. In our debate this morning on clause 214, the Minister explained the rationale for Government amendment No. 28 in the context that non-banking institutions can have a significant impact on financial stability, given the intermediation in the system and some of the business models that have been employed over the past few years.

If the Bank were to look at Sir John’s comments about the factors that could be used to set up a qualitative measure, that might help flesh out the definition of “financial stability” beyond that stated in the Bill. It would also help provide a framework for assessing how well the Bank met its objectives. Part of the challenge, in how the Bill is structured, is how to hold the Bank to account for deepening financial stability, when we only have a vague definition of financial stability and—we all accept this—it is difficult to measure.

I am sure that there will be a rash of research into the definition of “financial stability”. We may be able to reach a consensus in time, but the absence makes it harder to hold the Bank of England to account. As I said earlier, we shall know where there is a lack of financial stability, but the problem is in determining it. Sir Andrew Large, a former deputy governor of the Bank, said:

“There is neither a clear over-arching analytical framework nor a commonly agreed set of indicators of incipient financial instabilities...We are dealing with tail events—low probability scenarios—rather than central projections. It is about aberrant rather than normal behaviour and situations: less predictable and harder to model.”

That presents us with a challenge—how do we measure financial stability? The Governor alluded to this in the evidence that he gave to the Treasury Committee:

“I think therefore the danger is that financial stability looks like a period in which you are merely sowing the seeds of the next crisis and it appears to be a tranquil time but in fact beneath the surface those seeds are germinating and will produce the crisis down the road”—

very eloquent. I happily give way.

Angela Eagle (Labour, Wallasey)

It might be eloquent, but it is a rather pessimistic view. Does the hon. Gentleman not agree with me?

Mark Hoban (Conservative, Fareham)

The Minister makes a very interesting comment and I will come to that later with remarks about the tools that the Bank has to deliver financial stability. Some activities in the financial markets may be acceptable at a low level but as they grow in scale they cause wider risks to the economy. The Governor might have been pessimistic but I think he was right in what he said about relatively low-level activity in a particular area. When things such as credit default options and credit default swaps were first thought about they were seen as valuable financial instruments, but as their usage grew a risk to the economy arose. I think the Governor is being realistic rather than pessimistic when he says that what we might accept as normal at one point might become a threat to financial stability in the long term.

Sally Keeble (Labour, Northampton North)

Would the hon. Gentleman not accept that the Governor was speaking widely about the general issue? I do not see how the hon. Gentleman can relate the Governor’s remarks to a discussion about how either an executive committee or a sub-committee of the Bank of England can work. A number of the issues that the Government are talking about are dealt with by regulation or by the FSA.

Mark Hoban (Conservative, Fareham)

I apologise. I have moved on. I moved on before lunch from the discussion of the group of amendments to the more stand part nature of this debate.

Sally Keeble (Labour, Northampton North)

Yes, I understand that.

Mark Hoban (Conservative, Fareham)

This is about how one measures the objective of financial stability and whether the financial stability committee has an executive or non-executive role. That is not relevant to this discussion. It is something that either model of the FSC or the hybrid model in the Bill will have to come to terms with.

Sally Keeble (Labour, Northampton North)

I understand what the hon. Gentleman is talking about but, having sat through all that evidence that the Governor gave, what he was talking about were pressures that build up within the system. Most of those pressures are properly dealt with by the FSA or by other forms of regulation. They are not necessarily matters that the financial stability committee would ever deal with, whatever model was taken for its structure.

Mark Hoban (Conservative, Fareham)

Yes. One challenge in looking at the risks identified in the financial stability report published by the Bank this week is to understand when the Bank identifies a risk who responds to it and how. I agree with the hon. Lady that some responses may be within the remit of the Bank of England, some within the remit of the FSA and some within that of the Government. We can all agree that the horizon-scanning role of the Bank in identifying risks is really important but we need to think about who will tackle those risks once they have been identified and that is not exclusively the Bank’s role. Indeed, the Bank’s role may be quite limited. I will touch again on some of this in a minute.

I was trying to make the point that it is difficult to measure when there is or is not financial stability—events that appear to be normal might hold the seeds of a potential future crisis. We need to accept that that could be the case. In the evidence that the Governor gave to the Treasury Committee he referred to the creation of products such as CDO squared and the relaxation of credit criteria as potentially sowing the seeds of the crisis before us at the moment. Even actions such as the relaxation of credit criteria have a dual edge to them. One effect is to enable more people to have a home of their own but another could lead to sub-prime lending. In looking at some of the seeds we need to think carefully about what the impact might be, and the pros and cons of tackling some of the risks that have emerged to financial stability.

I want to talk about the tools that the Bank has to deliver its objective of financial stability. In last week’s evidence session, Nigel Jenkinson listed tools available to the Bank. He referred to the bank being the ultimate supplier of liquidity to the economy, its roles on payment systems and financial infrastructure and, under the Bill, the operation of the special resolution regime. He also mentioned some areas where the tools available to the Bank are more of an advisory nature rather than direct action. The financial stability report is part of that role: flagging up the risks to the economy, the advice that the Bank can give to the FSA on prudential regulation—participation in international forums such as the Basel Committee on Banking Supervision and the Financial Stability Forum, for example. These tools are all available to the bank. The extent to which they lead to action depends on whether it is an advisory role or a more executive one for the Bank as an institution, putting aside the debate about what the committee might do. Although the list is not exhaustive, it gives the Committee a flavour of the tools available to the Bank.

However, one of the challenges we have to think about is whether the Bank has sufficient tools—I am mixing metaphors horribly here—in its armoury—

Angela Eagle (Labour, Wallasey)

Weapons.

Mark Hoban (Conservative, Fareham)

Tools at its disposal to maintain financial stability might be a better phrase. I want to dwell on this for a moment, because it indicates the problems that the Bank of England has in delivering its objective. We would all agree that one of the causes of the current crisis was the asset price bubble. In one of its reports in 2006, the Bank said,

“asset prices have risen considerably over the past few years, dwarfing recent price falls...Some of the drivers of rising prices—such as financial innovation that allows risks to be better matched to investors’ preferences—are likely to endure. So risk premia may remain lower on average than in the past. But other factors that may have boosted prices, such as low global risk-free yields and benign macroeconomic conditions, may not last indefinitely. Against that backdrop, and despite recent market falls, the price of risk in financial markets still appears somewhat low. Certainly, risk premia on a number of financial assets remain low by historical standards.”

That was a very prescient warning of the causes of our current problems.

The question is then, “What could the Bank have done at that point?” It has clearly flagged up the risk to the market, and to the other members of the tripartite authorities, but in terms of the Bank’s ability to influence that, its role was reduced to having flagged up the risk; the next measure is beyond its control. The FSA is not required to respond formally to the financial stability report about how it would reflect the Bank’s assessment of risks, in terms of how it might supervise individual institutions.

One of the conventional responses to the asset price bubble would have been to increase interest rates, making credit more expensive and thus reducing upward pressure on asset prices. However, the remit of the Bank of England, which was introduced in the Bank of England Act 1998, is that setting interest rates is limited to combating inflation, so its actions are constrained by that objective. Therefore, at a time of low inflation and weak inflationary pressures, the Bank has set a low interest rate, but the consequence might have been the context of that in 2006, where that helped to fuel the asset price bubble and then the Bank was unable to cool it down.

Colin Breed (Liberal Democrat, South East Cornwall)

Does the hon. Gentleman agree that, in tracking the inflation rate, it is probably a good idea to have the right rate, bearing in mind that the current target has nothing to do with house prices?

Mark Hoban (Conservative, Fareham)

Indeed, there is an argument for that. I am wary of trying to use interest rate policy to tackle two objectives—inflation and asset prices. We need to look to other tools to influence asset prices, which I shall come to in a minute.

The UK has not been the only economy affected by the conflict between asset prices and inflation. There have been asset price bubbles in Ireland and Spain because they have high interest rates, and although the rates are right for the eurozone as a whole, they are not right for the economic conditions of those territories. The fact that interest rates cannot be used to affect asset prices indicates a limitation on the Bank of England’s tools for maintaining financial stability, which is why we need to look more broadly.

We have argued that the rules surrounding the level of capital should be reformed to act as a check on the level of debt in the economy as a whole. In part, reform of Basel II to deal with pro-cyclicality could address that. I know that the Government share that position. We also need to think about what checks there should be within the UK regulatory system looking at the level of debt in the economy. In our recent publication on financial stability, we called for a debt responsibility mechanism, which would create a linkage between the Bank’s assessment of risk and the action that the FSA took as the prudential regulator. The Bank of England would be asked to take on broader responsibility for debt in our banking system and our economy, and for the risks that that debt poses. The Bank would, throughout the year, send an open letter to the FSA setting out its assessment of market-wide risk. The FSA would need to take account of the Bank’s assessment when regulating lending by individual banks. Imposing tougher capital rules, bank by bank, during boom times would help to stop debt-fuelled bubbles emerging in the first place. The Bank could and should be given that tool to enable it to both look at its assessment of risks and then have a policy lever that it was able to deploy to encourage a response, in this case from the prudential regulator—the FSA.

The Bank’s financial stability review, published this week, highlighted the need for improved macro-prudential arrangements to tackle excess lending. There is a growing consensus that we may need to take that approach, both international and, perhaps, domestically, to enable regulation of the amount of credit available in the markets. Certainly, countries such as Spain have looked at other tools, such as dynamic provisioning, to build up a cushion in the good times, so that the banks are not hit too badly when the economy deteriorates.

I will conclude my speech, which will be to the relief of the Committee, and indeed to me because I have spoken for over an hour. [Interruption.] It seems like a very long time. I am grateful to the hon. Members for Northampton, North and for South Derbyshire for their feedback.

We are giving the Bank of England the statutory objective to deliver financial stability. It is not a statutory objective that the Treasury or the FSA have, but it is important that the Bank has it. It is not well defined, it is difficult to measure and I am not sure that the Bank has the tools to do the job. Furthermore, the proposed financial stability committee—the subject that I started on at about quarter to 10 this morning—and the structure add to the Bank’s difficulty in delivering financial stability. How will we hold the Bank to account the next time that we have a financial problem? Has it had the right tools and structure, and does it know what it should be doing to maintain financial stability? The Committee does not want to see a reoccurrence of the events of the past year. This is not a once-in-a-generation opportunity, but it is an opportunity to get it right. I am not sure that we are quite there yet with this Bill, and I would like to see the Government, the Bank and the FSA working a little more closely over the weeks ahead, to see whether we can improve and clarify the arrangements so that the Bank is clear about its role and how it will deliver it.

Mark Todd (Labour, South Derbyshire)

It is a pleasure, as always, to serve under your chairmanship, Mr. Gale. I will cover similar ground to the hon. Member for Fareham, but perhaps not at quite the length he treated us to.

First, I will focus on what is in the Bill and the purpose of my amendment, and then go back to some fundamental principles. Financial stability and any objective that we set in that regard should be set by a democratic body. In this context, that must be the Treasury, and its policies should be answerable to the House of Commons, so the first goal is for the Government to set out exactly how they intend to drive forward the achievement of financial stability in this country, however defined. That is not set out in the Bill, and my purpose in proposing the amendment is to provoke the Government to say more about it. It would be helpful if they defined their approach more sharply. The Bill does not give responsibility for financial stability to the Bank; what it actually states is that the Bank

“shall contribute to protecting and enhancing the stability of the financial systems of the United Kingdom”.

That is a rather different thing, because I think that we all accept—the hon. Member for Fareham made this clear—that there are a number of potential assistants in that process. We have tended to shorthand the text by saying that the Bank has been given that objective, but actually that is not true. It has been given a specific contributing function, and my task is to try to make that function more specific and clearer.

Mark Hoban (Conservative, Fareham)

Is not part of the problem that the Bank is the only member of the tripartite with a statutory duty for financial stability? The Bill therefore projects almost sole statutory responsibility on to it, rather than the Bank being a contributor to the process.

Mark Todd (Labour, South Derbyshire)

The hon. Gentleman is of course right, but that is not what the Bill states.

Angela Eagle (Labour, Wallasey)

In fact, the hon. Member for Fareham is not quite right. It might assist the Committee if I say that the FSA has important objectives in relation to financial stability and the Financial Services and Markets Act 2000, which has a direct bearing on what we are talking about. For example, the FSA has a responsibility for maintaining market confidence in the financial system. That, too, is about financial stability, so it is inaccurate to say that only the Bank of England has that duty in all the laws that impinge on the area we are discussing.

Mark Todd (Labour, South Derbyshire)

But it is the only body that will be nailed with the particular piece of jelly that we are trying to hammer to the wall—financial stability. The terminology, which the Minister has rightly quoted, does not quite use those words. One of the difficulties is defining what we mean. We have just had a little exchange about the various definitions, and I accept that they vary widely.

The sort of process that I am used to, if one accepts the principle that core goals should be set by a democratically elected Government, is that the strategy for delivering those goals is worked out between the various participants who are supposed to deliver the objective. I think that we would all accept that fundamentally those participants are the tripartite authorities, but there may be other contributors to the process. The Government must own that task, however. That is why I attempted in my amendments to define more narrowly the role of the Bank of England court. The Bill states—indeed, it is the Bank’s current reporting practice—that the court determines the Bank’s strategy in that regard. I have some doubts about whether that is right. The strategy should be set by the Government, and the detailed mechanics of delivering it should be a matter for the governance of the Bank. One of my amendments touches on that point. Clarification of who leads and how to divide the responsibilities would be valuable.

Secondly, I focus on the Bill’s narrow elements. We must define the institutional structure and how it functions. I shall not repeat the comments made by the hon. Member for Fareham, with interventions from me, but I shall try to simplify things. One difficulty is that the court of directors as we know it is not the court of directors to which we may give responsibility in future. The number of members of that court is, of course, specifically modified in the Bill, but my strong feeling is that we shall be looking for slightly different characters in terms not of their morals, but of their background, knowledge and experience. One of my difficulties lies in imagining the Bill in the hands of the people I know and encounter through my work on the Treasury Committee, whereas the challenge is perhaps to envisage a slightly different group of people. That leads me to believe that without sharper knowledge of the sort of qualifications that the individuals who will fill the seats will have, it will be hard to judge the Government’s rather uneasy compromise, which gives a substantial role to the court of directors in that area of policy.

I shall go into a little more detail. The court of directors, as it is now, is in essence a non-executive body in its functions. The way in which it is acknowledged in the annual report suggests that it performs a more profound role, but my experience is that that does not seem to be the reality. The Bill asks it both to determine and to review the Bank’s financial stability strategy. Although I would expect the court, if it were primarily a non-executive body, to review the strategy and monitor its delivery, determination of that strategy should lie with the Treasury and the Bank’s executive. Giving that critical task to the court, chaired by a non-executive, as the Bill explicitly requires, means that the proper function of scrutiny and challenge is compromised.

Having said that, this country is used to fudge and deals made around personalities and the occupants of individual posts. We have tended to do that for centuries in the role of, for example, the Lord Chancellor, so it is not foreign to say, “That may be the theoretical position, but surely we can find another way of cracking this.” If that is our approach, I would like the Government to set out with greater clarity how the monitoring and oversight functions are clearly separated from the executive tasks involved in delivering what the Bill requires of the Bank.

It is important for the financial stability committee to recognise that the Bank already has governance structures for some elements. The hon. Member for Fareham referred to the financial stability board, which already exists in the Bank. The deputy Governor is tasked with financial stability, so we are not talking about new tasks and functions with which the Bank is unfamiliar. It carries out core tasks in relation to financial stability. We can argue about whether those tasks have always been done well, but they are explicitly recognised. The Bank regularly publishes a financial stability report focusing on many of the issues that we have discussed. I sense that what is happening is an attempt to formalise the financial stability board and to make it more capable of bearing greater explicit burdens and broadening its membership from its current, relatively narrow, base. It would be useful to see, set out in a clearer form, the lineage from where we are to where we seek to be.

The committee, as set out in the measure, will be a core part of the executive team at the Bank, and there will be four non-executive directors drawn from the court, who would normally see their core role as challenging and monitoring the performance of the Bank’s executive. The tasks that the committee has been given are a curious mixture. The first, in new section 2B(2)(a)—

“to make recommendations to the court of directors”—

contains an explicit relationship to the court, so that subsidiarity is confirmed and there is a reasonably clear definition of what is expected. However, as I pointed out in our evidence session, it is not clear to whom the committee is answerable regarding other tasks. In subsections (2)(b) and (c), the committee is invited to “give advice” on critical issues to persons unspecified. It could be to the court or anyone else—the Treasury, the world at large or the financial community; I do not know. The issues on which it may give advice include

“whether...the Bank should act in respect of an institution”

and

“whether and how the Bank should use stabilisation powers”.

The gathering of information before a critical executive decision by the Bank is a vital part of what is in essence an executive function. To me, that sits ill with the membership of the board that has so far been defined.

Stewart Hosie (Scottish National Party, Dundee East)

It does sit ill. The hon. Gentleman is absolutely right about the advice being given—it might be given to the world at large, and it might be general rather than specific. Is there not a contradiction between the possibility of offering that sort of advice, which might be public, and the abolition of the weekly return, thus allowing the Bank to publish only the information that it sees fit? Is there not a contradiction between publishing general, global advice while possibly restricting information that might allow people to determine whether that advice is good?

Mark Todd (Labour, South Derbyshire)

The hon. Gentleman anticipates a point that I shall touch on—the communication and public role of the body if we set it up in the form that is being discussed.

Subsections (2)(d) and (e) provide for the accepted, non-executive function of monitoring various activities within the Bank. To be rather explicit, I think that those matters should be carried out by non-executives. Much though I admire the current Governor—I do not wish to imply otherwise—if I were in his position, I would find it uncomfortable to sit on a body that was monitoring the performance of my duties if I were chairing that body when it happened. I am not sure how I would manage a meeting of that kind if the process was genuinely meant to be challenging and critical. The Governor is a man who might be able to master that process, but it is certainly not one that many people would be particularly comfortable with.

Mark Hoban (Conservative, Fareham)

May I draw a parallel with the private sector? Where a plc has an audit committee, the financial director would not be a member of that audit committee to avoid the great tension to which the hon. Gentleman referred. [Interruption.]

Mark Todd (Labour, South Derbyshire)

As was said in a quiet intervention from my right, we are talking about a unique set of circumstances, so it is difficult to draw comparisons. That is a fair comment. However, if we work out the principles of the matter, it can be helpful. The hon. Gentleman is right to say that, in a corporate environment, we would expect the model to be one in which the executive responsible for carrying out a function would at least not be leading the meeting that discussed whether the person or persons had done the job appropriately.

I shall not press the amendments to a Division, but I want to disentangle the process to some extent or at least encourage the Government to make more explicit their rationale for choosing such an apparently compromised framework to deliver the tasks. My alternative would make clear the oversight duty of the court. It would establish the financial stability committee not as a sub-committee of the court, but as an entity in its own right. It would place it within the executive framework of the Bank, correctly led in my view by the Governor. It would add four members who are separate from the executive and not members of the court either, and in that sense would have parallels with the Monetary Policy Committee, as no member of the MPC is a member of the court of the Bank of England.

My proposal sets out some qualifications. I do not claim that my choice is particularly wise, but it attempts to find some qualifications and disqualifications in respect of the membership. Although the precise means of the committee’s operation need not be defined under the Bill, I can see it fulfilling some functions beyond those that my amendment structure has left from the Bill, as drafted. In response to an earlier intervention, the Bank already publishes a financial stability report. It is fair to say that in the evidence sessions enjoyed by the Treasury Committee the Governor and other Bank officials made it clear that close reading of the financial stability report would have revealed many of the problems that have crystallised into the crises that beset us now.

In our consideration of this and other matters relating to the crisis, it has come across quite frequently that there is a strong argument that the communication function is critical. Some remarks made by the hon. Member for Fareham have some resonance. It would be valuable if there was open communication and an obligation for people to respond to it, so that they acknowledge that warnings have been expressed and must prepare a response that at least says, “We’ve heard that, and this is our reaction, and this is how we will manage the information that has been provided.” Adding external weight to the body that produces that communication would be helpful. Both the line of questioning that I followed in the Treasury Committee and the evidence that the Committee heard was that that experience needs to be drawn from well outside these shores, too. We have much to learn from other countries about managing financial stability. Furthermore, that would not be a new experience for the Bank. I believe that one of the members of the financial stability board in an ex officio role is a key Scandinavian banker who was presumably selected by the Bank’s executive to provide exactly the sort of experience of the Scandinavian banking crisis that would be helpful when considering some of the complexities of both anticipating loss of financial stability and attempting to rectify the problems caused by it. Deepening the intellectual base of the committee and the communication channels available to it are part of what I am proposing.

As we know from the activities of the MPC—I touched on this during an intervention—it spends a good part of its time travelling the country, listening to other people. The Bank has an excellent collection of regional agents who often host functions with MPC members so that they can listen carefully to the experience of those on the ground in the economy. Members of the financial stability committee, when it is established, would play a valuable role if they did something similar. Gathering information, not merely from data in the economy but from the anecdotes and experiences of those who are working to deliver wealth in our country, is an important function of people carrying out such a role. Communicating that to the outside world, not just in a report, which I have mentioned, but in speeches is, as we know, an important part of the MPC’s work. The hon. Member for Fareham mentioned the role of David, or Danny, Blanchflower—depending on how well people know him—in these matters. To be honest, all those involved perform that function.

It will be important to have people who do not share exactly the same intellectual leanings on the committee. Diversity of membership is a strength and an incredibly powerful educational resource for those of us who dip into many of these subjects. A range of experts should approach the issues from various directions and would present challenges, both to other parts of the intellectual community and to those in the real economy, who are the critical determinants of whether we will succeed or fail.

The operational duties of the Bank in that respect, which are covered in aspects of the Bill, could benefit from greater external experience and challenge. Again, the Bill has the potential to do that. If it is confined only to drawing from a membership who are members of the court, it will narrow the ability to respond to that need.

A further point that came up in the discussions in the Treasury Committee is the importance of stress-testing and war-gaming in these critical areas—examining data that indicate where weaknesses might be and positing some of the scenarios that will have to be confronted by the various authorities involved in dealing with threats to financial stability. Although the exact circumstances to be faced can never be predicted, there is evidence, certainly in respect of the Northern Rock crisis—where it was obvious—of inexperience in tackling some of the functional tasks of addressing the “what if” scenarios that lie before us. When discussing this subject, I am afraid that such scenarios tend to be rather dramatic and outside our normal experience, as we have seen. Defining some of those scenarios and testing how we might respond to them institutionally is thus an important function of the body we are talking about. All the things I have mentioned are executive resources, making the Bank do its job as an executive better.

To answer the Minister’s question about which model I would prefer, I favour the more executive model. I have a pretty strong suspicion from the evidence that we heard from the Governor that that is his preference too. That may explain the slightly hybrid body that confronts us; it has some executive features and some non-executive features, and it has some curtailment of members in various respects too.

I sense that what we have in these provisions is a typical compromise that is designed to meet the rather unique circumstances. That is why I have not gone down the route of thinking, “Well, this is how we do it in plcs, and so on”. These are unique circumstances. There is no right answer, but there may be some issues of principle that we can get wrong.

I want this debate to be an opportunity for the Government to set out more sharply what they are trying to do and the means that they have chosen to achieve it, as well as the linkages to where we are now, so that we can see more clearly the path that is being put down for us.

As I said, some of the frameworks already exist within the Bank; some of the tasks are already there. Some questions remain. How do we move from A to B? What are the underlying principles, and why have we chosen a model that, on the face of it, does not fit the expected division of non-executive and executive functions? The Treasury Committee was certainly robust on that last point.

Sally Keeble (Labour, Northampton North)

I am pleased to serve under your chairmanship, Mr. Gale.

I shall speak briefly. The clause goes to the heart of what many people are looking for us to do, which is to deal with issues of financial stability. Although the aim is not defined in the legislation, I think that people would generally understand it to have a fairly common-sensical meaning, in terms of their ability to feel some sense of security about the way that the financial system is managed and its reliability in terms of the different aspects of their lives that depend on it. That sense of security has obviously been completely disrupted by current circumstances.

A few years down the track, I am sure that people will talk about these arrangements in the way that they now sometimes talk about the MPC; they will ask, “Why was it done this way and why wasn’t it done the other way?” It is, therefore, important that we make sure that we have got the structure right.

It seems to me that the kind of structure that we set for a body such as the financial stability committee will depend on several things: its functions, the nature of the decisions to be taken, the nature of the tools at the committee’s disposal, and the requirements of accountability in a democratic society. That means both accountability to Parliament and accountability to the public, including the duty to explain, which has been a key, and successful, part of the MPC’s role. Both the hon. Members who have spoken mentioned that.

The choice in terms of models was clearly presented by the hon. Member for Fareham. Should it be an executive-style structure like the MPC, or a sub-committee? Despite the fact that there is a slight hybrid nature, it is basically a sub-committee. Personally, I think that is the right way to go.

I am using the MPC as a frame of reference for my comments, because discussions about the MPC are the kind of discussions that people have more generally. Part of the MPC’s success is that it has become established and people talk about it quite widely. People say, “If the MPC can fix inflation, why can’t we have something similar to fix financial stability?” That is a very crude argument.

The MPC has been successful because it has a clear policy framework set by Parliament; in other words, it deals with the accountability issue. That gives it a very sharp focus for its work, which is about inflation and the clear targets around 2 per cent.

The MPC also has a lever—interest rates—to which my hon. Friend the Member for South Derbyshire referred. Its members explain well that they have a clear job to do: they have one lever, and after taking a huge amount of information and discussing it, they must decide how to pull it. They have been phenomenally successful in doing that, but it is worth considering now that the issue of public credibility is at stake. Inflation figures are exactly what the public recognise as being inflation nowadays, and the lever seems to have lost some of its effectiveness because of what is happening with interest rates. Although the committee has been successful, we must be cautious about saying, “Because it has worked for that, it can work for other things.” One cannot simply adopt a structure—even a successful one—and expect it to work in perpetuity. Whether the MPC should be able to take wider economic circumstances into account when considering interest rate decisions will, I am sure, become a major issue. It has been discussed in the Treasury Committee, and I think that it will become a wider public concern in months to come.

When we look at financial stability, we can draw contrasts and look at why a structure such as that set out in the Bill will probably be more effective. This is a considerable beefing up of current structures to do with financial stability, and it has a sharper focus. Under the Bank of England Act 1998, financial stability is the responsibility of the tripartite authorities and of one of the deputy governors. The Bill represents a clearer, sharper focus on what has become the dominant, economic financial issue of our time. That is welcome, and I would not downgrade it.

However, financial stability is not as clear a matter as controlling inflation or setting interest rates—it is a completely different sort of event and decision. Although the structure might seem quite woolly, an enormous range of different materials and issues must be looked at before the pertinent ones can be picked out and fed into the process, as set out in the list of functions.

Perhaps I can illustrate that. I happen to have the financial stability report and the executive summary. It is a wonderful document—an eight-page guide to the collapse of capitalism. At one point it gives a guide to what happened. It has little graphs too—it is like a comic strip for financial fundies. It says that concern was

“heightened by severe institutional distress, including at Fannie Mae, Freddie Mac and Lehman Brothers in the United States, Bradford & Bingley in the United Kingdom and Hypo Real Estate in Germany.”

This is not confined only to one country, it is a global event. However much the Bank of England might like to control the world economy, it is not quite there yet.

The document also mentions the nature of the decisions that might have to be taken and notes the Government-supported recapitalisation of the banking systems. If large amounts of taxpayers’ money are going to be spent on recapitalising the banks, Parliament should have something to say about it—among other things—including about the terms, and including the type of questions we heard at Treasury questions today.

The model of the MPC has been extraordinarily successful. The MPC has taken decisions about interest rates independently of political influence and has actually served us phenomenally well, but one cannot then say to the Bank of England, “You take the decisions about financial stability and we’ll just sit back and let it happen.” That is a bit of a crude, over-the-top way of putting it—

Mark Hoban (Conservative, Fareham)

It is a bit.

Sally Keeble (Labour, Northampton North)

Yes, but the type of decisions that might have to be taken to deal with a crisis, such as the one we have had, cannot be delegated. There should be a much closer relationship with the institutions of the state, which is what we have got in the structure set down in the Bill.

Mark Hoban (Conservative, Fareham)

The hon. Lady makes a powerful point. She said in her opening remarks that we need to think about the tools that are available. Perhaps an alternative way of looking at the role of the financial stability committee is to say, “These are the tools that are available to that committee.” Clearly, we are not going to give the financial stability committee the power to commit taxpayers’ money to bailing out banks and recapitalisation. It does not have those tools, so the task is actually to have a tools-based approach to developing the remit of the FSC and what its objectives should be.

Sally Keeble (Labour, Northampton North)

There may well be some issues that it will have to consider as a sub-committee, and I am sure it will want to work out some tools and some ways forward. At this stage, when do not have a clear definition—although we have a common-sense understanding—and when we are looking at what is frankly still an emerging phenomenon in the international financial markets and world economy, I do not want to say that this whole area, which is key to political decision making and to how the international community works, will be put at arm’s length in the way in which interest rates have successfully been. If there were one lever that could work in relation to international financial stability, we might want to use that, give it a tight policy remit and say, “We don’t want it to go above or below a certain level,” and set that out. The conceptual tools simply are not there and, in those terms, it is right to have a substantial sub-committee set up in this way, with a remit to deal with the matter, a reporting line and a much sharper focus. I certainly accept that the structures we had previously did not serve us well. The warning signs might have been there, but no one saw them. Action was not taken until the crisis started to ripple through from some of the financial institutions and the United States.

I think that we have the right structure here. It might not be the world’s most wonderful structure, but it is the right one for the present circumstances. It will be bolstered by the increasing focus on financial stability and the increasing pressure that I am sure there will be from Parliament and elsewhere to make sure that the structure delivers and that if there are warning signs, they are seen and acted on.

Angela Eagle (Labour, Wallasey)

I shall start by acknowledging your presence in the Chair this afternoon, Mr. Gale. It is a pleasure to see you there—I am saying that somewhat belatedly, I know, because we have had quite a long debate. I shall deal with the earlier point of order because I have an update that the Committee might wish to hear. The code of practice has been prepared and will be on letter boards by the time the Committee adjourns this afternoon. That is something for everyone in the room to look forward to, as long as they get down to the letter board before it closes. We all know what we will be doing this weekend.

We have had an interesting debate, which is clearly indicated by the number of amendments tabled to the clause. The clause deals with the nub of the issue in part 7 on the correct and appropriate structure of the new arrangements for financial stability, the new duties the Bill gives the Bank of England in that respect, and how they should be fulfilled. The hon. Member for Fareham, quite properly, identified two different approaches and is agnostic about which is the best one, so we have had a debate about it. My hon. Friend the Member for South Derbyshire expressed a more definitive view that there should be a more executive approach. My hon. Friend the Member for Northampton, North said that we have got it about right. Naturally, as I am here to explain the Government’s thinking on the model we have set out in the Bill, I think that we have got it about right and hope that I will be able to persuade and reassure those who are dubious about it during the course of my remarks both on clause stand part and on the amendments.

It might be helpful if I briefly set out the Government’s approach and the purpose and thinking encompassed in clause 216. Clearly, the aim is to strengthen and formalise the Bank of England’s role in relation to financial stability. As all the hon. Members who have contributed to the debate this morning and this afternoon have said, the Bank already plays a key role in supporting financial stability, but unlike its role in monetary policy, it does not currently have a clear statutory responsibility to support financial stability.

We are therefore formalising what has been informal in the past. In doing so, we have to plump for a model, rather than continue the informal arrangements that have always been in place. Perhaps that is where all the different models have come from. It is proper that people should think through how those models are formulated and the potential issues with them. The Government have proposed the model set out in new section 2A(1) of the 1998 Act, which gives the Bank of England a statutory objective

“to contribute to protecting and enhancing the stability of the financial system of the United Kingdom”.

My hon. Friend the Member for South Derbyshire astutely noticed the use of the phrase “to contribute to” as the way of expressing the Bank’s duties. That phrase reflects the fact that the Bank does not have a duty to ensure financial stability on its own, because that would be impossible. That responsibility is shared nationally with the FSA and HM Treasury and internationally with the European Union and other international bodies, which all have a major role to play, alongside market participants themselves.

Financial stability cannot simply be guaranteed on a national basis like an interest rate. The interest rate either is or is not at a certain level, like a price, but financial stability is a much more complex concept to grab hold of, and what is important for delivery might shift over time as the institutional framework shifts and as markets and market participants evolve. It is therefore a moving target and a complex matter to deal with. It is important that we bear that in mind when considering the institutional approach that the Government suggest in the Bill.

We are clarifying the Bank of England’s position by setting out an objective in legislation. That has been widely supported by respondents to our public consultations and by the Treasury Committee, even if it did not quite go along with the model that the Government decided to put forward in the Bill.

New section 2A(2) sets out that the strategy that the Bank will follow to fulfil its new objective will be set by the Bank’s court of directors, consulting with the Treasury, and on the recommendation of the new financial stability committee, as set out in new section 2B(2)(a). It is right that the court, as the body with the ultimate responsibility for the Bank’s affairs, has the final say on setting the financial stability strategy.

The clause will also create a new financial stability committee, as outlined by various hon. Members who have contributed their views on the model, as a sub-committee of the court of directors. The committee will further strengthen the Bank’s framework by directing and supervising the Bank’s functions in relation to financial stability and by providing expert support. The committee will be chaired—this has been the subject of comment, which I shall deal with when I come to the subsequent amendments—by the Governor of the Bank of England, when present, and other membership will consist of the two deputy governors and four directors of the court, who will be appointed by the chair of the court of directors. Those external, non-executive directors will bring valuable and relevant expertise to bear on the Bank’s decision making in the area of financial stability, and they will ensure that the Bank commands authority and credibility in discharging its new financial stability objective.

Mark Todd (Labour, South Derbyshire)

I do not know how to put this, but the current membership of the court might not necessarily provide the depth of experience that my hon. Friend appears to seek in filling those four positions. Am I to understand that the process may entail a complete replacement of the court with a new—reduced—membership, or will there be some continuity for the current membership?

Angela Eagle (Labour, Wallasey)

The Bill makes provision in later clauses for a reduction in the court’s size, in part to acknowledge some of the structural changes that we are dealing with. The idea is that when the Bill becomes law, the terms of all current court members who are appointed will lapse and there will be a reappointment process. The reappointment process at that stage will consider the appropriate balance of expertise and presence for the new smaller court. Although all current outside members of the court will have their membership terminated, it does not mean that they will not be reconsidered for appointment. However, the entire process will take place in the new context, without having to think about transitions. I hope that that reassures my hon. Friend.

In naming non-executive members of the committee, it will be vital to maintain a balance between ensuring that they have relevant expertise and experience of financial markets, and avoiding damaging conflicts of interest, which is why the Bill imposes the same restraints on members of the proposed financial stability committee as already exist for current members of the court. They must declare any direct or indirect interest in any dealing or business that could potentially produce a conflict. If the financial stability committee considers that a conflict of interest could occur, the member will have no influence or vote on those matters.

Mark Hoban (Conservative, Fareham)

It is right that the Government will ensure that the people on the committee do not have a conflict of interest, but I wonder how challenging that is to deliver in practice. Given the interconnected nature of the financial services sector, the Chancellor, or whoever selects the court members, will have to be very careful not to appoint someone who has directorships across a range of City institutions and is an active participant in the market, as they could be excluded under the clause. The alternative is somebody who has recently retired and has no interests, but whose market knowledge is not as fresh as it might be. How will the Chancellor, in appointing court members, to deal with that, particularly given the reduction in the court’s size from 16 members to nine?

Angela Eagle (Labour, Wallasey)

The hon. Gentleman rightly identifies some of the issues that need to be balanced when deciding who to appoint. They are not new issues for the court, however, because this part of the Bill ensures that the financial stability committee itself comes under the same regime that has worked successfully for the court of directors in the past. He rightly points out that there is always a balance between having those with enough up-to-date knowledge and savvy experience of markets to be able to contribute and avoiding those who have so many conflicts of interest that they have to leave the room for every meeting. That balance will have to be borne in mind when the appointments are made. I do not pretend that it will be easy, but those matters will be in the Chancellor’s mind when he makes those decisions.

As set out in new section 2B(3), a Treasury representative and others may attend the committee but they will have no say in decisions. The Bill also provides the Bank with additional policy levers by which it can contribute to financial stability. There was talk about a lack of tools, but hon. Members recognised that the earlier part of the Bill, which we shall start to discuss next week, puts other tools at the Bank’s disposal to contribute to financial stability, in particular its key role in the implementation of the special resolution regime and oversight of inter-bank payment systems.

The functions of the financial stability committee, which are set out in new section 2B(2), reflect the committee’s role in advising on and monitoring the Bank’s use of the new tools for maintaining financial stability. The committee will make representations to the court on the nature and implementation of the Bank’s financial stability strategy. The court will then be able to delegate further functions to the financial stability committee, if necessary.

I believe that the clause establishes a coherent model for the financial stability committee’s form and functions. Clearly that is why it is in encompassed in the clause. We have debated at some length a range of amendments which seek to change in various ways the settlement of the structure that is outlined in the clause. The hon. Member for Fareham talked about hybridity, as he put it, and wondered whether we should have gone for a pure executive committee or a pure committee of non-executives. Decisions on financial stability may have to be taken extremely swiftly in fast changing circumstances. It may be difficult to ensure that a committee could meet with the urgency and frequency that the use of the special resolution tools would require, which tends to militate against a purely non-executive committee.

Mark Hoban (Conservative, Fareham)

May I draw the Minister’s attention to new section 2B(2)(b)? It states that one of the FSC’s functions will be

“to give advice about whether and how the Bank should act in respect of an institution, where the issue appears to the Committee to be relevant to the Financial Stability Objective”.

That decision may have to be taken quite quickly, but we are to have a committee that will give advice on how the Bank should act. In a way that new section demonstrates part of the problem: by the time the committee talks about a particular institution it may be too late. It may take too long to get the committee together to talk about how it might approach a particular institution.

Angela Eagle (Labour, Wallasey)

Obviously, the financial stability committee’s work will relate to a range of work that the tripartite system itself, in all of its forms, will be doing to monitor the circumstances of the market. For example, although we do not discuss it in the clause, the FSA has the duty to monitor particularly important market participants on an ongoing basis. I do not anticipate that a problem that serious would suddenly emerge and would not have been tracked earlier as a potential risk. I do not envisage a problem with getting monitoring and advice in a space of time that was too short to draw together the members of the financial stability committee—

Mark Hoban (Conservative, Fareham)

It could make a decision.

Angela Eagle (Labour, Wallasey)

Let me come to that. The hon. Gentleman referred to the “hybridity” of the proposed model when expressing his worry that perhaps we had not picked the right one. As I understand it, he was getting at the hybridity between an executive committee, such as the Monetary Policy Committee, and a scrutiny committee. The former has been used as a model by both the hon. Gentleman and my hon. Friend the Member for South Derbyshire and is clearly supported by the Treasury Committee in its report, and the latter is the model that we are all familiar with.

The membership of the financial stability committee, as suggested in clause 216, reflects its functions. It is important to ensure that the committee is set up in a way that best enables it to fulfil its functions, rather than to compare it with very different committees. I agree with my hon. Friend the Member for Northampton, North that the Monetary Policy Committee is not a model on which to base the financial stability committee, simply because the FSC’s job is very different from and more complex and more difficult than the nevertheless important one of the MPC—deciding on the price of money, as reflected in an interest rate decision. The FSC’s functions as set out in the Bill and as reflected in its membership are primarily advisory, but they are also supported by monitoring functions. However, that does not mean that the committee should be constituted of only non-executive members.

Mark Todd (Labour, South Derbyshire)

I have already hinted that it is not explicitly stated to whom the committee gives advice, whereas it is clear that the recommendation should go to the court. The Bill is silent on who will receive the committee’s advice.

Angela Eagle (Labour, Wallasey)

That is not because we do not have a view on who should receive the advice. It is not always the case that everything about the operation of committees is necessarily set out in primary legislation.

On a day-to-day basis, the financial stability committee will advise the Bank’s executives, because it is they who will often need to make decisions on how to deal with individual institutions, in perhaps fast-moving conditions. The Governor and his executives derive their authority from the court: they have delegated responsibility from the court and are ultimately accountable to it. That will be consistent with the strategy that the court of directors has agreed for fulfilling the financial stability objective, and it will be the court that holds executives and the committee to account for supporting it in meeting that objective.

Some decisions relating to financial stability will need to be taken by the court of directors, particularly the setting of the financial stability strategy. On some occasions a sub-committee will advise the court. The approach is context-specific, and it sits better in practice than in primary legislation. I hope that that gives my hon. Friend a view of what was in our mind when we plumped for this structure.

Our model provides the best of both worlds; it allows executives and non-executives to come together to discuss, debate and advise on issues, including crucial decisions regarding banks and the operation of the special resolution regime. In designing the financial stability committee, the priorities of the Government have been to provide the Bank with a single source of co-ordinated expertise and advice; to monitor its functions and actions in relation to financial stability; to ensure that the Bank’s executives can take timely and informed decisions to safeguard financial stability in fast-moving situations; and to draw clear lines of accountability from the executive and from the financial stability committee to the Bank’s governing body. The model that we are proposing will allow us to achieve those objectives.

By establishing the financial stability committee as a sub-committee of the court, we integrate it into the existing governance structure rather than tearing it up and starting again. That helps to ensure that the financial stability committee will be central to the Bank’s decision making on financial stability. The non-executive members of the committee will provide vital expertise on financial stability, while the executive members on the committee, including the Governor as chair, will mean that the committee will be close enough to the action to be able to give informed advice, often in fast-moving situations.

It is right that the Bank’s executive takes the lead in operational decisions, taking expert advice from the financial stability committee, where possible. It would not be realistic to expect a committee including the expertise of non-executives to meet with the frequency that may be required for decisions in fast-moving emergency situations.

I hope that that approach at least explains the thinking behind the model, hybrid or otherwise, that the Government have set out in clause 216 and I hope that it explains why we ask that all the amendments, from amendment No. 58 to No. 63, not be moved or that they be voted against.

Mr. Hobanrose—

Roger Gale (Conservative, North Thanet)

Mr. Todd, if you wish to come back on that you must do so now; otherwise, Mr. Hoban will wind up.

Mark Todd (Labour, South Derbyshire)

I think that I formally moved the amendments in my name.

Roger Gale (Conservative, North Thanet)

No, you did not.

Mark Todd (Labour, South Derbyshire)

I thought I said so.

Roger Gale (Conservative, North Thanet)

Order. For the benefit of the Committee, the procedure is that only the lead amendment is moved; the others are moved formally in due course, if necessary. So the hon. Gentleman does not have to withdraw his amendments, if that is what he was about to do.

Mark Todd (Labour, South Derbyshire)

Then I will explain why I will not move them, if that is the case. The nub of this is a very English model, which will greatly depend on the people who are appointed to the functions set down in the Bill; it does not have the intellectual coherence that I would like, but it may well work, and that is what we tend to do in this country. On that basis, I will not move my amendments.

Mark Hoban (Conservative, Fareham)

I had hoped the Minister would address the definition of financial stability, but she has not done so and, as this is a stand part debate—

Angela Eagle (Labour, Wallasey)

I am happy to come back to that.

Mark Hoban (Conservative, Fareham)

I should be grateful if the Minister made a long, or short, intervention.

Angela Eagle (Labour, Wallasey)

Perhaps if the hon. Gentleman makes a brief intervention I can come back and make a longer intervention in answer to his question, rather than try to fit it in quickly. It is not a simple issue, Mr. Gale, as you will have noticed from our earlier discussions. I am happy to come back on that; my apologies for missing it out in my response.

Mark Hoban (Conservative, Fareham)

Mr. Gale, I am not sure where we are, procedurally. I would find it more convenient, in winding up this debate, if the Minister responded to my question about the financial stability objective now; then I can come back—

Roger Gale (Conservative, North Thanet)

If the hon. Gentleman would like to sit down, I will call the Minister.

Angela Eagle (Labour, Wallasey)

Thank you, Mr. Gale; we got there in the end. Again, my apologies for not covering this point directly.

The debate featured just a sprinkling of the many different definitions of financial stability that the Treasury Committee managed to uncover in its hearings that various people, not only from the UK but from all around the world, have come up with. The one that Nigel Jenkinson quoted and the one that was quoted earlier from the Governor of the Bank is perhaps as good as any. The fact that there are so many definitions and they all differ slightly bears upon why there is no direct definition of financial stability in the Bill in primary legislation. We know it when we see it. In fact, some of the definitions are of financial instability rather than stability. It is interesting to note that Nigel Jenkinson in his evidence at the beginning of this Committee’s proceedings said:

“I do not personally think that it is necessary to have a definition of financial stability in the Bill. We produce regular reports”.——[Official Report, Banking Public Bill Committee, 21 October 2008; c. 21, Q54.]

My hon. Friend the Member for Northampton, North quoted some of them, as did the hon. Member for Fareham.

Financial stability is context-specific with a very broad definition that can change quickly. We felt that it was such a moving target and so context-specific that it would not fit easily in the Bill. The Bank, of course, will have to agree its financial stability strategy with the Treasury and we have every confidence that it will do so appropriately, drawing on all the available international and academic sources. It has the capacity to call in people to advise it on that subject. Rather than have an awkward and rigid definition of financial stability in the Bill, we felt that this would be the more appropriate and future-proof way of dealing with it. I hope that helps the hon. Gentleman.

Mark Hoban (Conservative, Fareham)

I am grateful to the Minister for that addendum. In a way it captures the essence of the debate we have had on clause 216. It is an evolutionary process.

Mark Todd (Labour, South Derbyshire)

Suck it and see.

Mark Hoban (Conservative, Fareham)

That is absolutely where we are. The hon. Member for Northampton, North gently chastised us for using the Monetary Policy Committee as a model for this but I would point out that her right hon. Friend the Chancellor of the Exchequer said:

“We should learn from the example of the Monetary Policy Committee, and take a similar approach to financial stability,”—[Official Report, 5 June 2008; Vol. 476, c. 916.]

The present Under-Secretary of State for Work and Pensions, her hon. Friend the Member for Burnley (Kitty Ussher), said in July, only about six weeks after the Chancellor came up with those wise words:

“I know the comparison with the MPC has been made but I think it is an entirely different situation.”

It just shows that, even over the course of six or seven weeks, the Treasury’s own view of this had evolved. We will see how effective it is in practice. While not necessarily coming back to look at legislation, I suspect that people will pore over the practice of how the Bank of England delivers and contributes towards maintaining and enhancing financial stability. I am sure the Treasury Committee will be kept busy for some time monitoring its activities in that respect.

This has been a helpful debate. It has drawn out from the Government that we will have to see how this works and think about the context. We are in difficult waters at the moment trying to work out the right institutional arrangements, but this debate has been helpful in establishing the start of that process and we shall see how it develops. I beg to ask leave to withdraw the amendment.

Mark Hoban (Conservative, Fareham)

I beg to move amendment No. 64, in clause 216, page 103, line 43, at end insert—

‘(6) Proceedings of the Committee shall be made public in good time unless disclosure of the proceedings would result in a threat to financial stability.’.

This goes back to how we hold the committee to account. Without wishing to test your patience, Mr. Gale, the comparison is with the MPC, which produces minutes on a monthly basis. They shine a light on how the MPC operates, and its thought processes and deliberations. That is exactly the point where there is a parting of the ways between the MPC and the financial stability committee, and how we expect them to work. From the discussions that we have had and on the basis of the remit of the financial stability committee, particularly when it gets down to institutional level, we know that specific data or information about particular institutions will be discussed, and we need to be careful about how that is disclosed.

At the same time, there will be more generic debates about risks and how the Bank responds to them, and how it exercises its functions under part 5 to oversee inter-bank payment systems. As there will be legitimate public interest in those matters, I tabled this probing amendment to understand from the Minister how she would expect the Bank to report and make known the operations of the committee.

Colin Breed (Liberal Democrat, South East Cornwall)

The debate on the last set of amendments was useful, and I think that to come to no overall conclusion after two and a half hours of discussion is probably about right.

Comparison was made with the MPC. One of the great principles of the MPC is that it publishes its findings, albeit some weeks later, which give some reasonable idea of its operation. The amendment seems entirely appropriate, in the sense that if we are to make such comparisons and try to get to that, it would be appropriate for the financial stability committee to publish its proceedings as well. Of course, the sting in the tail is that that could create the financial instability that the financial stability committee is supposed to address. It would torpedo itself.

I am not entirely convinced by all of this. The situation that pertained at one time was that the central bank—the Bank of England—was charged with responsibility for financial stability, had a deputy governor in charge of it, and had it on the agenda of the court on a fairly regular basis, yet we are now supposedly to have an independent Bank of England, and we are telling it how it should carry out that function. I am happy that we will support the proposal.

If we are to understand whether the financial stability committee is working, its proceedings will have to be published; otherwise, all of what we have done or are trying to do will be to very little point. I expect that, inevitably, there will be confidentiality in respect of some aspects of the committee’s proceedings, and it might be right for those aspects not to be published, but on the whole it would be appropriate to publish the proceedings. I support the amendment.

Angela Eagle (Labour, Wallasey)

We have already discussed how financial stability issues are different from monetary policy issues, and said that owing to the nature of financial stability, discussions will often be particularly market-sensitive, and at times firm-specific in nature. It is important to bear that fact in mind as we consider amendment No. 64.

The amendment seeks to place an obligation in the Bill that the proceedings of the committee should be made public in good time, unless doing so would result in a threat to financial stability. As the Chancellor said on Second Reading, the financial stability committee’s deliberations will be made public, although not immediately. The hon. Members for Fareham and for South-East Cornwall acknowledged obvious reasons for that.

We do not consider it appropriate to include such a requirement in the Bill, but we expect that the deliberations will be made public in due course—sometimes in a more timely fashion than at other times—depending on the context, and it will be for the Bank to decide how it does that. I hope that, with those reassurances, the hon. Member for Fareham will withdraw the amendment.

The hon. Member for South-East Cornwall said that the Bank was independent. It is independent with respect to monetary policy, but it has other duties, as part of the tripartite arrangement and to Parliament, which do not make it independent in every aspect. Clearly, it will want to ensure that it continues to engage with expert advice and the public, and to explain what it is doing in this important part of its work.

Mark Hoban (Conservative, Fareham)

I am grateful to the Minister for those comments; she makes some valid points. My only comment is about the timing—the delay between meetings and the publication of minutes. If a pattern is established of the minutes being published on the last day of every month but suddenly they are delayed by six weeks, that would trigger concern about financial stability in the market. We need to be clear about frequency, timing and the expectations of the markets of how the information will be disclosed. However, I beg to ask leave to withdraw the amendment.

Clause 219

Mark Hoban (Conservative, Fareham)

The clause gives the Chancellor of the Exchequer the power to designate a member of the court to chair its meeting. Could the Minister elaborate, confirming whether that will be an executive or non-executive member of the court?

Angela Eagle (Labour, Wallasey)

The clause provides for the court to continue being chaired by a non-executive. Although, under the Bank of England Act 1998, the Governor chairs the Bank’s court of directors, since 2003 the Governor has delegated the chairmanship of court to one of the non-executive directors. This change formalises in legislation what has been practice since 2003. It is a sensible provision, which formalises the Bank’s current practice and is fully supported by the Bank of England. I hope that the hon. Gentleman will be happy for the clause to stand part of the Bill.

Clause 221

Mark Hoban (Conservative, Fareham)

I beg to move amendment No. 65, in clause 221, page 105, line 24, at beginning insert—

‘(A1) In paragraph 1 of Schedule 1 to the Bank of England Act 1998 (Governor and Deputies: appointment) for sub-paragraph (1) substitute—

“(1) Appointment as Governor of the Bank shall be for a period of 8 years.

(1A) Appointment of the Deputy Governor of the Bank shall be for a period of 5 years.”’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 66, in clause 221, page 105, line 24, leave out from first ‘of’ to ‘add’ in line 25 and insert

‘that paragraph of that Schedule’.

No. 67, in clause 221, page 105, line 26, leave out ‘twice’ and insert ‘once’.

Mark Hoban (Conservative, Fareham)

The amendments refer to the tenure of the Governor of the Bank of England. The clause limits how many terms the Governor can serve—he can serve no more than two terms. It is the view of my party that those arrangements work against the perception of the Governor of the Bank of England as independent. The fact that the Governor has to be—can be—reappointed could create in the minds of observers some doubt as to whether he is independent of the Chancellor. The Governor may wish to be reappointed, and there may be a sense that he tempers his decisions so as to improve the chances of his reappointment. To be absolutely clear, I do not believe that that has occurred so far, but there is potential for that risk in the future.

As a consequence, on several occasions we have proposed that the Governor should serve a single, non-renewable term of eight years. That is in line with the term served by the governor of the European Central Bank, who serves a single eight-year term. Such a provision would enhance people’s view of the independence of the Governor. Other processes too could be used to strengthen the independence of appointments, to ensure, for example, that the process is open and transparent. There have been cases in the past where appointments to the MPC have not been made openly and transparently; we think that that should change. The Chancellor of the Exchequer has recognised that in connection with other appointments to the MPC.

We also felt that, when it comes to the reappointment of the current Governor, at the time of the current period of financial instability, there could be a concern that the Governor may have been put under pressure, because he was awaiting reappointment. It would be better to have much greater clarification about Governor status than is the case at the moment, where it is possible for the Governor to be appointed for a second term. We therefore believe that a longer single term is in the wider interests of the Bank of England and of ensuring that the Governor is seen to be independent of the Treasury.

Angela Eagle (Labour, Wallasey)

In considering the amendments, it might help if I explain some of the context of clause 221 as it currently stands. In his letter to the Treasury Committee of 19 June 2008, the Chancellor set out his plans to strengthen the procedure for future appointments to key roles in the Bank and the Monetary Policy Committee. These measures include limiting external appointments made by the Government to the Monetary Policy Committee to a maximum of two terms, and limiting the Governor and deputy governors to serving a maximum of two five-year terms in a particular post.

While not captured in the legislation before us, the Chancellor also announced that in future, vacancies for Governor and deputy governor and external Monetary Policy Committee appointments would be openly advertised and be conducted in a way consistent with the principles of open competition. With respect to the tenure of the Governor, which these amendments seek to change, the current five-year term for the Governor and deputy governor was set at the time of nationalisation in 1946 and has proved itself perfectly effective ever since.

Turning to the specific amendments, we believe that having a maximum of two five-year terms in office offers a strong balance between certainty and continuity on the one hand, and flexibility on the other. A five-year term for the Governor, with the possibility of a second term, gives that individual a natural break point at which they can consider whether they wish to continue in the role. It also gives them something to work towards and provides an opportunity to consider their performance. In contrast, a single eight-year term might actually discourage some strong candidates from applying, as they do not feel that they can make such a long commitment. It might also increase the likelihood that a Governor would step down mid-term, potentially creating uncertainty and speculation in the financial markets. It is for those reasons that the Government oppose amendments Nos. 65 to 67. I hope that the hon. Gentleman will recognise that there are arguments on this side, as well as his own advocacy for a longer term, and he should take them seriously when considering whether he wishes to press the amendment to a vote.

Mark Hoban (Conservative, Fareham)

I do not intend to press the amendment to a vote, but not because I have been persuaded by the Minister’s argument—far from it. However, we shall live to fight this battle another day. With that, I beg to ask leave to withdraw the amendment.

Clause 223

Mark Hoban (Conservative, Fareham)

The clause removes the requirement established by the Bank Charter Act 1844 that the Bank of England must produce a weekly return of accounts. My understanding is that, following the passage of this change, the Bank will be able to determine whether, and in what form, it produces a return.

My understanding is that the genesis of this change was the debate that took place around Northern Rock last year. There was some debate about whether Northern Rock could have been saved if there had been a less transparent process. A great deal of that argument rested on the market abuse directive, whether a consortium of banks could pull together to buy Northern Rock, and a whole host of arguments around that. That is not necessarily germane to the amendment, but one argument made at the time was that the Bank of England’s weekly return would disclose financial assistance given to a bank, which might trigger awareness in the market of a bank receiving financial support. Hon. Members may recollect that it was the Governor’s announcement that Northern Rock was in receipt of support from the Bank of England as a lender of last resort that triggered the run on the bank.

The Government consultation response stated that there had been support for the change, but the summary of consultation responses suggests that very few people responded to the proposal to withdraw the weekly return. Can the Minister elaborate on what the alternative mechanism for reporting the Bank of England’s assets and liabilities might be? Is there widespread support for it? It appears to have generated relatively little interest in the consultation.

Angela Eagle (Labour, Wallasey)

The clause removes the requirement, established in the 1844 Act, on the Bank of England to produce a weekly return of accounts. That requirement has since been overtaken by other elements of transparency, but it has remained and the Bank has always done it, with nobody realising that it might cause a problem until recent events, as the hon. Member for Fareham pointed out.

In removing the requirement, the clause removes the legal obligation that could give rise to unnecessary early disclosure of liquidity support. I want to reiterate that the Government have a strong commitment to transparency and believe that the free and effective flow of information is vital, both to a functioning market and to the trust placed in public institutions. In periods of high market stress, as we have been experiencing recently, there may be circumstances where immediate disclosure of liquidity support is in no one’s best interests. The clause allows the Bank to delay the disclosure of liquidity assistance.

The clause operates together with clause 230, “Registration of charges”, to remove provisions that may require premature disclosure of liquidity assistance by the Bank of England. Clause 223 addresses disclosure from the Bank, while clause 230 addresses disclosure from the recipient institution. The Bank of England weekly return is a short weekly statement of accounts. It has ceased to be needed as a record of the Bank’s activities since other instruments, including an annual statement of accounts, have superseded it. The Bank also remains subject to normal Office for National Statistics and Companies Act reporting requirements.

The publication of a weekly return is not only unnecessary, but potentially damaging. Analysts have been monitoring the return to detect changes in the Bank of England’s capital position that may indicate that liquidity assistance has been provided to a market participant. In the case of Northern Rock, for example, analysts studied the return in an attempt to determine the amount of liquidity support drawn down. Members will be aware that early disclosure of liquidity assistance of that kind can be deeply damaging, and can potentially lead to runs on a bank or a serious effect on market sentiment. The clause, therefore, addresses one avenue of such early disclosure, which is a reasonable and proportionate step.

Members will rightly wish to know for how long the Government expect the Bank of England to limit disclosure of liquidity assistance. The Government have been consistently of the view that it is neither right nor practicably possible to restrict disclosure over anything other than the short term; Members raised that point during the Second Reading debate. The Government do not expect the Bank to keep liquidity support covert permanently or for any substantial period. However, it is possible to delay disclosure, and that could make a significant difference to the effectiveness of liquidity assistance. The clause takes an important step in working to achieve that.

Members will understand that it is not possible for the Government to indicate any precise time frame for the period under which restriction of liquidity support will be kept covert—to do so in advance is necessarily arbitrary, and could also be counter-productive in that it would invite analysts to continue intensive scrutiny after whatever period the Government had announced.

Mark Hoban (Conservative, Fareham)

I understand the arguments why we should not disclose the level of covert support as it would not then be covert. However, there are systems such as the special liquidity scheme, which is not a covert mechanism for support and is currently disclosed on the weekly return. That is a legitimate form of liquidity support. If the weekly return is suspended and there is no commitment to regular publication of a similar summary, I am not sure how the Bank and Treasury can be held accountable by Parliament for the amounts that they deploy through the special liquidity scheme. Can the Minister tease out or separate the covert from the overt support that the Bank might offer?

Angela Eagle (Labour, Wallasey)

It is difficult to be precise. If we were to move from a weekly to a fortnightly report, some of the problems that occurred with Northern Rock might reassert themselves. The Bank has to report, quite rightly, on an annual basis, and there is a bi-annual report on financial stability and monetary policy. Those are standard ONS reporting requirements and include issues of money supply and other areas for national statistics.

The difficulty, which I think the hon. Gentleman appreciated by the way that he asked the question, is that if the Government changed the weekly report to a fortnightly one, it still might not deal with a particular context. Liquidity support that was essential to prop up an institution in trouble might be revealed earlier in a way that did damage.

Mark Hoban (Conservative, Fareham)

Is there not an alternative way of looking at the matter? In preparation for the debate, I had a quick look at a weekly report; in effect, it is the balance sheet of two notional departments in the Bank and a consolidation. It would be possible to produce a report that was not a balance sheet and did not require full disclosure, yet set out the normal forms of support that the Bank could offer an entity without having to reveal any covert support. By changing the published information, we could get round the issue of disclosing covert support, while still allowing the Bank to be accountable for the overt support it gives.

Angela Eagle (Labour, Wallasey)

The hon. Gentleman is right—it is a balance sheet. I, too, had a look at one before attending the Committee. I understand his point. The clause abolishes a requirement to publish a weekly return that dates from 1844, when the consequences for Northern Rock of doing so were probably not in the minds of those who legislated. Everybody agrees that premature revelations about liquidity support are damaging to financial stability and should be avoided. Clause 223 will remove that absolute requirement—dating from 160 years ago—to produce a weekly report. That will no longer apply.

We still expect the Bank to publish such returns as it considers appropriate. It will decide how to shift from the old rigid system of doing so weekly—for no reason other than that it has done so since 1844—to another process that we hope will prevent premature revelations about liquidity support that might damage financial stability. That is the context for the switch that the Government suggest in this clause and clause 230.

Mark Hoban (Conservative, Fareham)

The Minister and I are in agreement about the need to move away from where the Bank has been in the past. We are moving from a situation where data are transparent, to one where we do not know what the replacement for that obligation will be. Can the Minister say whether the Bank will have set out its alternative reporting arrangements by the time the Bill gets to the other place? I know that she does not speak for the Bank, but she can see the point I am trying to make.

Angela Eagle (Labour, Wallasey)

I cannot speak for the Bank directly and make an operational decision, but I have made it clear that it is important that the Bank is transparent about its activities, except in the unusual circumstances when premature revelations about liquidity support would actually damage everyone. I have also made it clear that the usual reporting arrangements and expectations in respect of the annual report, the returns to the ONS for its often monthly statistics and the bi-annual financial stability report are still made public. It is for the Bank to decide how to move from an old rigid system to a new system, and avoid the potential offered in the weekly return for premature revelations about liquidity support that are damaging.

I understand what the hon. Gentleman is trying to get at. The Bill will make clear how it is intended to proceed in due course, but I cannot promise—since it is not in my gift—that the Bank will have made that decision by the time the House of Lords considers the Bill. I hope that he will accept that no attempt is being made to take away transparency or to hide things for any longer than is necessary to protect financial stability in a particular instance. He raised the issue that brought the problem to the attention of all the parties.

Clause 224

Angela Eagle (Labour, Wallasey)

I beg to move amendment No. 32, in clause 224, page 106, line 27, at end insert—

‘(c) an authority in a country or territory outside the United Kingdom which exercises functions similar to those of the Treasury, the Bank of England or the Financial Services Authority in relation to financial stability;

(d) the European Central Bank.’.

The amendment strengthens clause 224 by permitting the Bank of England to share information related to financial stability with overseas partners, as well as with other members of the tripartite. It is right and proper that the Bank of England should have expanded powers to share information both across the tripartite and with overseas partners, when appropriate.

The amended clause would enable the Bank to share relevant information that it has received in relation to its financial stability functions. Typically, the Bank of England receives information from the FSA, which it can share among the tripartite. However, it is possible that the Bank might receive information from other sources, such as an institution administered under the special resolution regime or from other institutions that may approach the Bank directly.

At present, when the Bank of England has received confidential information from a third party, it may not be able to share it. In an emergency, under current rules it might face uncertainty about precisely which information it can legally share with other authorities. Clause 224 takes away that difficulty by enabling the Bank of England to share any information that it has received with other authorities. That removes any complexity or uncertainty that might arise in fast-moving situations and will enable the authorities to act more effectively in an emergency.

The amendment builds on the clause by enabling the Bank of England to share such information as it deems fit with overseas agencies that perform functions similar to that of the Bank, the Treasury and the Financial Services Authority. In a globally connected world where the financial marketplace is interconnected, the United Kingdom needs to be able to co-operate and share information effectively with other jurisdictions, particularly in the case of concerns about large cross-border firms. I can assure members of the Committee that there is no intention that the power should be used lightly by the Bank of England, or that it would disclose information unless it was necessary. However, it is appropriate that the Bank of England should have the power to share information on major issues of financial stability with our overseas partners.

Mark Hoban (Conservative, Fareham)

I want to ask the Minister two questions. Is there a parallel ability for the FSA to share information with comparable overseas institutions? Given that there is a lot of discussion about colleges of regulators supervising individual institutions, and bearing in mind her reassurance that such information will not be transferred lightly, how will that reassurance work with the prospect of much more information sharing through colleges of regulators?

Angela Eagle (Labour, Wallasey)

Obviously, it is in the UK’s interest that there is full international co-operation on financial stability, and I suspect that we are just at the beginning of a process that will strengthen arrangements globally to ensure that that happens, particularly when a firm of systemic importance to the UK is internationally interconnected.

It is important for us to be able to inform overseas partners so that regulators can co-operate in managing the difficulties associated with the firm in question. It is desirable that other regulators and central banks reciprocate. The UK authorities maintain excellent relationships with key counterparts overseas. The colleges of regulators, which the hon. Gentleman mentioned, are an evolving example of the strengthening of that reciprocal relationship.

The hon. Gentleman asked whether the FSA can share information. Yes, the Financial Services and Markets Act 2000 includes the power for the FSA to share information with overseas regulators within limits set by the Treasury. That all helps to enable regulators to pick up systemic problems, particularly in firms that are globally present, interconnected and of systemic importance in the UK or elsewhere.

Clause 226

Mark Hoban (Conservative, Fareham)

I beg to move amendment No. 9, in clause 226, page 106, line 39, after ‘person’, insert

‘, in connection with the exercise of functions by any person under the Banking Act 2008,’.

The clause is the first of three clauses relating to the powers of the FSA. It affects the powers that the FSA can use under section 45(1)(c) of the Financial Services and Markets Act 2000. Under that Act the FSA can use powers on its own initiative to vary the permission relating to the regulated activities that an authorised person may have permission to undertake. The own initiative variation of permission—often known as OIVOP—gives the FSA the power to restrict what an authorised person can do.

My concern is that the power in the clause seems rather broad. I assume that the power can be used only in the context of decisions or actions taken under the Bill, but the clause is not written in that way. It is not as narrowly defined as that. Can the Minister reassure the Committee that the OIVOP power will be used by the FSA only when it relates to powers exercised under the Bill?

Angela Eagle (Labour, Wallasey)

The amendment undermines the effect of clause 226, which is to clarify the provisions of section 45(1)(c) of the Financial Services and Markets Act 2000. The clause is technical in nature and is designed purely to clarify existing legislation. It is expressly drafted to clarify the provisions laid out in the Financial Services and Markets Act. By restricting the provisions of clause 226 to the Banking Bill, the amendment would render the clause meaningless. It may be useful to clarify the intent of the clause as it stands.

Section 45 of the Financial Services and Markets Act gives the FSA power to vary or cancel on its initiative a commission it has granted to allow the carrying out of regulated activities. The power to vary permission, in effect to stop firms carrying out particular activities, is a core power of the FSA and the Government want to ensure that there is clarity about how it is used.

Section 45 allows the FSA to exercise its power in a number of circumstances, such as when the person with permission is failing or is likely to fail to satisfy the threshold conditions or has failed within the last 12 months to carry out the activity to which the permission relates. Section 45 also allows the FSA to exercise that power where desirable in order to protect the interests of consumers or potential consumers. In the Financial Services and Markets Act a reference to consumers usually means consumers generally, not just those of a particular firm, so this is the better interpretation of section 45. Recent events have shown that we need to consider the interests of consumers generally, not only on a firm-by-firm basis, so clause 226 will amend section 45 to make it clear beyond any doubt that the reference to consumers includes consumers generally.

The proposed amendment, by making the clause refer only to duties under the Banking Bill, would effectively disapply it in many circumstances and in a way that leaves the FSA’s decision-making process more complex and cumbersome. I hope that, with that explanation, the Opposition will not press the amendment to a vote.

Mark Hoban (Conservative, Fareham)

I am grateful to the Minister for that explanation. One of the general concerns that has been expressed about the Bill is that it is here to address a particular issue in the banking system and the recent problems. We are speeding its passage through the House and the other place on the basis that it is a very focused Bill aimed at tackling problems in the banking system. My concern with clause 226 is that its scope goes beyond the banking system and that it is effectively being used to satisfy a legislative wish list in that respect, and that is not the purpose of the Bill. I am concerned about the Minister’s explanation because I think that the clause’s scope is rather broader than we were initially led to believe, and that is also causing concern outside the House. I do not propose at this stage to press the amendment.

Angela Eagle (Labour, Wallasey)

I emphasise again that the clause is designed purely to clarify the existing Financial Services and Markets Act on the basis of the way that it is usually interpreted and to create certainty. That also has a bearing on potential systemic risk and relates to the effectiveness of regulation, which does bear on what we are talking about. This is not an extension of power, but a clarification that will make it clear beyond doubt that the powers actively used by the FSA and laid out in the Financial Services and Markets Act are being used as they were intended to be. It removes a bit of legal uncertainty, but it does not change current practice.

Mark Hoban (Conservative, Fareham)

I will have to think about that because I am not sure. I cite the concern that has been voiced over the past couple of weeks that legislation can occasionally be accelerated through the parliamentary process because it is there to tackle a specific threat, but that the powers in it can be used to tackle a broader issue. In the freezing of the assets of Landsbanki, the powers were exercised under the Anti-terrorism, Crime and Security Act 2001. That Bill had been accelerated through the House on the basis that it was tackling terrorism, not to seize the assets of friendly NATO allies. I just want to flag up that concern. We are helping the Bill through and would not want to see our willingness to accelerate the process taken advantage of. Although I will not press the amendment, we might return to that issue at a later stage. I beg to ask leave to withdraw the amendment.

Clause 228

Colin Breed (Liberal Democrat, South East Cornwall)

I beg to move amendment No. 11, in clause 228, page 107, line 28, leave out ‘or in any other way’.

I suppose that my concerns about the clause are similar to those expressed by the hon. Member for Fareham about the previous clause, in the sense that I seek only to remove the last five words from the clause. The FSA should, quite rightly, have powers to collect and share information. Those functions are clearly set out in section 165 of the Financial Services and Markets Act.

The Government have a tendency to add little bits like

“or in any other way”,

which serve two purposes. The first is to undermine the basis of the original authority of the Financial Services and Markets Act. The clause might just as well say that the FSA can perform its function in any way that it likes without any reference to the Act. The second is to provide legislative cover for any actions that might be considered inappropriate. That justifies the means by the ends. Hence, the assets of Landsbanki were seized under terrorism legislation.

The gathering of information from individuals in their homes or places of work in any way, at any time of the day or night and in any circumstances, such as breaking into premises, can all be justified by this legislation. I can see people shaking their heads. We have had a simple respect for Government, but far too often we have received assurances that legislation will never be used in such ways. Regrettably, that was said in the context of animal welfare and inspectors have totally misused the powers that were granted.

Angela Eagle (Labour, Wallasey)

Will the hon. Gentleman give way?

Colin Breed (Liberal Democrat, South East Cornwall)

In a moment. While I will not press the amendment to a vote, I think it right to raise these issues. The Minister thinks she need merely say that of course the FSA will not carry out illegal acts in the future. There is no evidence from the FSA that the current powers for it to perform its function under the Financial Services and Markets Act have been restrictive, have stopped it obtaining the information it requires or have stopped it from sharing information. There is no evidence that it requires any such use of the words

“or in any other way”.

Frankly, unless the Minister explains to the Committee exactly why this power is needed or how the FSA has been restricted by the Financial Services and Markets Act, she will have to justify it to the House if the matter is raised at a later stage.

Angela Eagle (Labour, Wallasey)

I wanted the hon. Gentleman to give way earlier because he seemed to be suggesting that the FSA is somehow plotting to break into premises to gather information. It has perfectly legal ways of gathering information and does not need to resort to break-ins or illegal acts. I hope that he will realise that these measures are about trying to do things legally, not illegally. The FSA is a regulator. A few weeks ago, people were condemning it for not being effective enough in its regulation. He is now worried that it will resort to illegal break-ins to gather information.

Colin Breed (Liberal Democrat, South East Cornwall)

Will the Minister give way?

Angela Eagle (Labour, Wallasey)

The hon. Gentleman would not give way to me, but I will give way to him.

Roger Gale (Conservative, North Thanet)

Order. Mr. Breed.

Colin Breed (Liberal Democrat, South East Cornwall)

Such means of gathering information will not be illegal if we pass this measure. That is the problem. They may well be illegal at present, but in justifying them with the words “in any other way”, such acts will be perfectly legal.

Angela Eagle (Labour, Wallasey)

The hon. Gentleman must have had rather a long day because there is no way that “in any other way” means a whole load of illegal ways. I can reassure him about that. The standards of behaviour that are legal and are expected of public bodies do not extend to criminal acts. I hope that that reassures him.

The clause will place a duty on the FSA to collect information relating to financial stability. Giving it that duty will be to the benefit of us all. We are not giving it that duty because it likes to collect information, but for a particular point to do with the public good. Subsection (2) confirms that the FSA may perform its function by using its information-gathering power as in section 165 of the Financial Services and Markets Act 2000, or in any other way. By removing the words

“or in any other way”,

the amendment would substantially reduce the range of tools available to the FSA for collecting information on financial stability. As the reference to section 165—“Authority’s power to require information”—illustrates, the FSA has the power to gather information and this clause ensures that formal powers can be used to gather information on financial stability.

The other ways in which the FSA might gather information include general rules, which could be made under section 138 of the 2000 Act, requiring reporting by all firms on particular issues—in this case financial stability—and direct requests to individual firms for specific information. Firms will tend to comply because of their duties of general compliance under principle 11 of the Financial Services and Markets Act handbook. Other tools include section 166 of the 200 Act—“Reports by skilled persons”—and section 167—“Appointment of persons to carry out general investigations”.

The words

“or in any other way”

do not create unfettered powers for the gathering of information by the FSA; they merely indicate that the FSA is not required to use section 165; it could use one of the means that I have just mentioned, or it could rely on its good relations with the companies that it regulates, in that they would provide information voluntarily. I am pleased to reassure the hon. Gentleman that criminal acts will not be involved.

The amendment would have the unfortunate effect of limiting the FSA’s powers to gather information on financial stability to its formal ones. Cutting off all those other avenues would significantly reduce the FSA’s powers in that regard. The authority would be constrained in its ability to collect both general and specific information. It would not be able to make specific requests for individual items, or make rules on general reporting. In drafting clause 228, the Government had in mind that the FSA’s ability to collect information on financial stability should be no less than its ability to collect other information in pursuit of its general functions. The amendment would undermine that intent.

I hope that I have reassured the Committee that the words “in any other way” do not imply unfettered powers. They do not give the FSA total power to gather information. Any information that the FSA might gather under the clause would be collected with due regard to the principles of proportionality under which the authority operates, and under the constraints imposed on all public bodies by criminal law. I would expect the FSA to work constructively with the companies that it regulates in gathering the information. I hope that I have reassured the hon. Gentleman that the amendment is not needed and that it would be detrimental if it were to be in the Bill.

Colin Breed (Liberal Democrat, South East Cornwall)

I am not in any way persuaded—in fact, just the reverse. No evidence has been given that the FSA has been restricted by its current ability to secure information. I see no reason why it should be given extended powers by the use of those words. I should like to press the amendment to a vote.

Clause 229

Mark Hoban (Conservative, Fareham)

I have a quick question for the Minister. The matter was covered in the Banking (Special Provisions) Act 2008, but it is covered in this Bill too.

The building societies are limited in the amount of wholesale funding that they can use. It was 50 per cent., although the Bill sponsored by my hon. Friend the Member for Bournemouth, West (Sir John Butterfill) provided for that to be increased to 75 per cent. I think that the Banking (Special Provisions) Act said that financial assistance, where given, should be disregarded for the purposes of calculating the 50 per cent. limit. Is that still the case in this Bill?

Angela Eagle (Labour, Wallasey)

The clause provides powers for the Treasury to amend the Building Societies Act 1986, as the hon. Gentleman rightly pointed out. The purpose of such an amendment would be for building societies to access financial assistance from central banks or the Treasury on the same basis as banks. The Building Societies Act includes a number of provisions that could restrict the ability of societies to accept emergency lending from central banks or the Treasury.

In particular, building societies are currently prohibited from granting floating charges under section 9B of the Act. When seeking emergency liquidity assistance, financial institutions may have to grant floating charges over their assets, to provide sufficient security to a central bank. The Bank of England would typically want to take and rely on higher-quality collateral, except in urgent or unusual cases, and it is likely to insist on title transfer collateral or fixed charges over defined assets. However, in those urgent or unusual cases, it is important that building societies are also able to offer a floating charge, as a bank can. The fact that building societies cannot grant such floating charges means that they are disadvantaged in comparison with banks when seeking emergency liquidity support. There are two possible implications. The first option could be that the Bank of England could offer liquidity assistance without taking any charge, which would leave the Bank exposed to a lack of security. The alternative is that the Bank of England may not feel able to offer liquidity support if it is unable to gain sufficient collateral. Both outcomes are highly undesirable.

The prohibition on the granting of floating charges is one of a number of provisions of the 1986 Act that could prevent effective financial assistance. Other important provisions that might need to be modified for this purpose include lending limits, funding limits and provisions concerning what has to be in the memorandum of the rules of a society. Such provisions remain appropriate in most normal circumstances. The Government support a strong and vibrant building society sector, separate and distinct from the banking sector, but with regards to the provision of liquidity assistance, the legislation currently creates anomalies with potentially serious consequences. The Bank of England and other central banks, including the European Central Bank, and the Treasury where appropriate, must be free to provide emergency support to banks and building societies on an equal basis. That is what the clause brings about.

The hon. Gentleman asked about percentage limits. I need to write to him about that, because I do not have the answer to hand. I hope that he will accept that I shall do so as soon as possible.

Clause 231

Mark Hoban (Conservative, Fareham)

When the Paulson plan was going through the US Congress, I read with considerable amusement about the number of things covered by the plan, including excise duties and the importation of wooden bows and arrows. One assumes that that sort of thing would not happen in the UK, but clauses 231 and 232 seem to have little bearing on a Bill that is designed to increase financial stability in the banking sector. I said in connection with clause 226 that we are encouraging the Bill to go through at speed, because it aims to tackle the current financial crisis, but I wonder what role the “Funds attached rule (Scotland)” and “Financial collateral arrangements” play in supporting progress in the banking sector.

Roger Gale (Conservative, North Thanet)

Order. The hon. Gentleman referred to clause 232. He has asked the same question of both clauses. I am perfectly happy for the Committee to take both of them together if that is convenient.

Angela Eagle (Labour, Wallasey)

I have to admit that the hon. Gentleman probably has a point with respect to the clause on Scottish cheques. It was originally unsuccessfully introduced as a private Member’s Bill in 1999. It is a deregulatory clause which modernises the treatment of cheques in Scotland and aligns their treatment with the rest of the UK. The abolition of the “funds attached” rule will mean that if several cheques are presented simultaneously when there are insufficient funds to satisfy all of them, the bank will choose which it can satisfy from the funds available. That could be done in a way that would do the least damage to the interests of the customer of the bank while also ensuring that some creditors receive payment. The current legislation is outdated and can cause problems with the smooth running of financial transactions by causing delay, expense and inconvenience for banks and their customers.

The Committee of Scottish Clearing Bankers estimated in 1999 that the “funds attached” rule causes expense and inconvenience for approximately 100,000 bank customers each year. It was also estimated in 1999 that the retention of the “funds attached” rule causes Scottish clearing banks an administrative expense of £270,000 a year. The hon. Gentleman is right about clause 231. It is a deregulatory clause that accomplishes something that many people have wanted. It is not controversial. It is within the scope of the Bill. That is why it is here, but for me to stand here and say that it has a major bearing on financial stability would probably be pushing it a bit, if I could put it that way. It is something that many people have wanted. It benefits consumers in Scotland. It irons out a little kink in the law. That is why it is here in this part of the Bill. I put my hands up, but it is still a reasonable thing to do.

Mark Hoban (Conservative, Fareham)

It is neither relevant nor controversial. That is absolutely right. I hope that whoever championed the private Member’s Bill in 1999 will get satisfaction from seeing this clause in the Bill. I return to the point that I made earlier. While this may not be an area of huge controversy, I suspect that clause 226 was probably more controversial. I do not think it appropriate to use the Bill in this way to tidy up an unsuccessful private Member’s Bill. Someone missed out on the opportunity to get a gift in the next ballot for private Members’ Bills in the next Session. I am not going to press the matter to a vote.

Clause 232

Mark Hoban (Conservative, Fareham)

Why is this in the Bill?

Angela Eagle (Labour, Wallasey)

I should like to take a little time to explain that. The clause enables the Government to make future regulations relating to financial collateral, which is a key underpinning of modern financial markets. It is a way to allow collateral takers to borrow at more advantageous rates than otherwise and is a key risk management tool in credit risk. That is why it is relevant.

The power is retrospective as regards the current scope of the regime. This is a contingency measure in the light of a potential legal challenge to the power to make existing regulations. It is a retrospective power that could not be used outside the current scope of regulations other than to provide for matters following from a situation where the existing regulations were to be quashed. This is a relevant piece of activity which relates directly to financial collateral which underpins modern financial markets, so it is an important aspect of what we are discussing today.

Mark Hoban (Conservative, Fareham)

As I understand the numbering system used by the EU, the directive is from 2002. Why has it taken the Government until 2008 to get round to thinking about introducing a power under it?

Angela Eagle (Labour, Wallasey)

I cannot answer that question as I have not been involved in this area since 2002. I can tell the hon. Gentleman, however, that clause 232 provides the power to make future regulations relating to financial collateral. That is an important aspect of underpinning markets and has to do with stability and current UK financial collateral regimes. A threatened court case does have some implications, but this is a key updating part of underpinning assumptions. A question about whether the understanding behind those assumptions was ultra vires was taken to court. It would have been very threatening had that been found to be the case, but this puts the issue beyond doubt.