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Financial Services Update

Volume 686: debated on Thursday 17 December 2020

On 24 November, in a written ministerial statement (WMS) (HCWS595), I committed to working with the Financial Conduct Authority (FCA) to lay before Parliament and publish online before the December recess Dame Elizabeth Gloster’s report into the FCA’s regulation and supervision of London Capital and Finance plc (LCF) and the FCA’s response.

This WMS provides an update on the investigation, the FCA’s response and the Government’s response. Pursuant to Section 82 of the Financial Services Act 2012, the report into the independent investigation, the FCA’s response and a statement of reasons for withholding any material have been laid in the House today.

LCF was an FCA-authorised firm that primarily offered an unregulated investment product—commonly known as mini-bonds—to retail consumers. It entered administration in January 2019, impacting 11,625 people who invested around £237 million.

The Serious Fraud Office and FCA enforcement have launched an investigation into individuals associated with LCF. The Financial Reporting Council has also launched investigations into the audits of LCF.

I know that this has been a very difficult time for LCF bondholders. For some, this will have formed part of an investment portfolio, but for others, it will have represented a significant portion of their savings.

In May 2019, I directed the FCA to launch an independent investigation into the events relating to the FCA’s regulation and supervision of LCF. To lead the investigation, I approved the appointment of Dame Elizabeth Gloster, who has had a distinguished career as a barrister and as a judge, in the High Court and the Court of Appeal.

On 23 November 2020, Dame Elizabeth delivered her report to the FCA. It concludes that the FCA did not effectively supervise and regulate LCF during the relevant period. She makes nine recommendations for the FCA, focusing on how they should improve their internal authorisation and supervision processes. The Government welcome the FCA’s apology to LCF bondholders and their commitment to implement all of Dame Elizabeth’s recommendations.

Dame Elizabeth also makes four recommendations for HM Treasury regarding the regulatory regime, which we accept in full.

First, Dame Elizabeth rightly recognises the challenges the FCA faces in regulating almost 60,000 firms and recommends that the Treasury should consider the optimal scope of the FCA’s remit. The Government agree that they need to consider whether this scope is manageable, but it would be premature to do so before the ongoing FCA transformation programme has been delivered. I have discussed this reform programme with the Chair and Chief Executive and I am convinced it is the best means to address the recommendations. I have today exchanged letters with Mr Rathi agreeing that he will provide regular updates on the progress of these vital reforms.

Secondly, with regard to the regulation of mini-bonds, in May 2019 I announced that the Treasury would review the regulation of non-transferable debt securities. The FCA have also banned the promotion of high-risk “speculative illiquid securities”—including some of the riskiest “mini-bonds”—to ordinary retail consumers. Building on this work, and in light of Dame Elizabeth’s report, the Treasury will launch a consultation in the new year on the regulation of non-transferable debt securities.

Thirdly, Dame Elizabeth raises concerns about a potential gap in responsibilities between Her Majesty’s Revenue and Customs (HMRC) and the FCA in relation to the innovative finance ISA (IF ISA) products.

The FCA is making improvements to its oversight of financial promotions and, with HMRC, the Treasury is urgently looking at the sufficiency of checks on IF ISA managers and at the penalties regime. To improve communication and intelligence sharing, the FCA and HMRC are working to update their memorandum of understanding, and will set up an ISA intelligence working group. Reflecting the findings in Dame Elizabeth’s report, the Treasury will also look at how understanding of the ISA wrapper could be increased so that consumers recognise that, as with any investment, there can be risks as well as possible rewards.

Finally, Dame Elizabeth notes the challenges that increased financial activity online poses for regulation. The FCA already has powers to take a variety of enforcement action against firms that carry out fraudulent activity. Nevertheless, the Treasury will continue to keep the legislative framework under review. As part of this, the Treasury is working with the FCA to consider whether paid-for advertising on online platforms should be brought into the scope of the financial promotions regime. The Treasury is also working with the Department for Digital, Culture, Media and Sport to ensure that fraudulent online advertising is addressed as a priority harm through its online advertising programme.

It is important to acknowledge again that LCF’s failure had a significant impact on the bondholders who have lost their hard-earned savings. There are several ongoing, interlinked processes addressing the reasons for the failure of LCF and seeking to recover bondholders’ investments. The three main channels through which bondholders can seek compensation are:

First, LCF’s administrators are pursuing legal action to recover money. This process is ongoing, but is not expected to recover bondholders’ investments in full, with the current estimate being that recoveries will be as low as 25% of a bondholder’s investment.

Secondly, the financial services compensation scheme (FSCS) has carried out extensive investigations to determine whether LCF bondholders were eligible for FSCS compensation, and it has since compensated 159 bondholders who transferred out of stocks and shares ISAs to LCF bonds. The FSCS is also continuing to issue decisions to LCF bondholders who may have received misleading advice and it will provide an update in the new year. These activities—arranging transfers and advising on investments—are regulated activities and therefore eligible for compensation. In total, as of the start of December, the FSCS has paid out just over £50.9 million in compensation to 2,584 LCF bondholders. There is also an ongoing legal process, with a hearing scheduled for 19 January, which may further affect eligibility for FSCS coverage.

Lastly, the FCA will consider claims for compensation from LCF bondholders through their complaints scheme, which is available to bondholders who believe they have suffered financial loss as a result of actions or inactions of the FCA.

The Government recognise that LCF’s failure and the loss of investment has had a significant and distressing impact on LCF’s bondholders. With any investment there is a risk that, sometimes, investors will lose money. The purpose of regulation is to ensure that investors have the right information to understand their risk. Within this system, even the best regulators, doing everything right, will not be able to, and should not be expected to, ensure a zero-failure regime.

And the Government cannot, and should not be expected to, step in to compensate for every failure and every loss.

But it is clear in the case of LCF that there are multiple, complex reasons why people lost money. And the Government recognise that there is likely to be some variation in how much of their investment bondholders are able to recover through these processes.

The Government therefore announce that, taking into consideration the specific and complex set of circumstances surrounding the collapse of LCF, the Treasury will set up a compensation scheme for LCF bondholders. The scheme will assess whether there is a justification for further one-off compensation payments in certain circumstances for some LCF bondholders.

I will provide a further update in the new year with more detail on the Government’s approach.

I would like to reiterate my sympathy for LCF bondholders and my commitment to act on Dame Elizabeth’s recommendations, to ensure that our regulatory system maintains the trust of the consumers it is there to protect.