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Banking Bill

I am grateful to all noble Lords, but on this occasion I am most grateful to the noble Lord, Lord Blackwell, who has pointed out some obvious government reservations about the proposal and our anxiety about the extent of what the noble Baroness called for. I refer to the blanket indemnity that the Treasury would be expected to provide, in circumstances where a whole range of actions, including the speculation referred to by the noble Lord, might take place while these activities were going on. I am grateful to my noble friend Lord Eatwell for his constructive approach to this issue. He referred to it as a vexed question. I know what he means: as an academic, he means that it is a challenging question for him and a vexed question for the Government. There is no doubt that it is a difficult area, which is why I am grateful for his proposals. We have been working closely with interested parties to ensure the appropriate protection for such arrangements and during those discussions interested parties have told us that the best way of ensuring legal certainty in the market on this matter is to protect set-off and netting requirements through a legislative restriction on disrupting those arrangements, which has been the Government’s approach to the Bill. That is why we are putting in place the secondary legislation that will give effect to the powers conferred by Clause 48, and I am confident that we can use this approach to allow the authorities sufficient flexibility to undertake partial transfers while assuaging market concerns regarding netting and set-off. The powers that we exercise to provide a safeguard also allow the Treasury to set out the remedy for a breach of the safeguard. The authorities are currently consulting on the appropriate nature of that remedy and we are discussing that both with the expert liaison group and more widely in recognition of the challenges that this issue throws up. The formal consultation ended on 9 January and we are scrutinising the response before finalising policy in this area, which, as the Committee will recognise, is an area of developing policy. We intend that, as far as possible, we will be able to make all these issues clear before the Bill has received its final consideration in the House. The order that will implement that policy will be subject to a debate in both Houses. As we mentioned on the previous amendment, the first exercise of these powers will be under the 28-day procedure, which will enable the safeguard for set-off and netting to come into force simultaneously with the commencement of provisions relating to the special resolution regime. Any changes made thereafter can be only through the draft affirmative procedure, so we are ensuring full parliamentary scrutiny of these developments. The Bill already has in place arrangements for the assessment of compensation for third parties who suffer a compensatable interference in their property rights by way of the Third Party Compensation Scheme Order in Clause 59, a matter that I have no doubt will be the subject of considerable debate when we reach that point. Where a person suffers a compensatable interference in his property rights contrary to Article 1 of Protocol 1 of the European Convention on Human Rights, which provides that every person is entitled to the peaceful enjoyment of his possessions, provision for compensation must indeed be made. In accordance with that, the assessment of any compensation due must be conducted in accordance with the principles of fairness. The Government believe that the procedure for the determination of third party compensation—for example, through the appointment of an independent valuer—is compliant with the requirements of Article 1 of Protocol 1 and would provide adequate compensation for the purposes of Article 6. Further than that, the Government are seeking to protect all set-off and netting contracts, with the exception of specific carve-outs on which we are consulting. We believe that this is the right approach to providing market confidence regarding partial transfers. I am grateful to my noble friend for raising the issue—it gives the Government the opportunity again to assert how important these issues are and how much we are bound with regard to the issue of compensation. However, I bear in mind the point made by the noble Lord, Lord Blackwell, that, in circumstances where significant actions can be taken in the market, the Government have to be circumspect about just how blanket their commitment to compensation would be. It is on that basis that the Government, having considered these matters, prefer the proposals in the Bill rather than the amendment that my noble friend has so helpfully proposed. I hope that he will feel able to withdraw it.