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Critical Benchmarks (References and Administrators’ Liability) Bill [Lords]

Volume 703: debated on Thursday 18 November 2021

Considered in Committee

[Dame Eleanor Laing in the Chair]

I should explain that I am resuming our former practice of chairing the Committee at the Table now that the House is almost back to normal after the covid restrictions. During the Committee stage Members should still, of course, address the occupant of the Chair by name, not as Madam Deputy Speaker. “Madam Chairman” or—it says here—“Chair” are also acceptable. [Interruption.] The right hon. Member for Beckenham (Bob Stewart) says, from a sedentary position, that I am not a Chair but a Madam Chairman, and he is absolutely correct.

Clause 1

References to Article 23A benchmarks

Question proposed, That the clause stand part of the Bill.

Thank you, Madam Chairman. I am grateful to you for being in the Chair at this point.

I realise that a number of these provisions have already been considered on Second Reading, but I am keen to explain the clauses in turn. Owing to their technical nature, I will explain them paragraph by paragraph at times. I hope that the House will bear with me.

As I said on Second Reading, the Bill provides important legal certainty for contracts that will rely on LIBOR after the end of this year. All its provisions deal with how a benchmark is treated in contracts once it has been designated an article 23A benchmark under the benchmarks regulation. The Financial Conduct Authority has power to make this designation when a critical benchmark is unrepresentative, or at risk of becoming unrepresentative, of the market that it seeks to measure. For LIBOR this will happen at the end of this year when the panel banks stop making their contributions. At that point, the FCA will ensure that LIBOR will continue to be published, using the synthetic methodology that we have already discussed.

In describing the purpose and effect of the clauses, I will use LIBOR as an example because it is currently the only benchmark to be designated under article 23A, but the provisions will also apply in future to any critical benchmark designated an article 23A benchmark by the FCA, although none is envisaged at this point.

Clause 1 means that LIBOR referencing contracts can rely on synthetic LIBOR. The clause inserts two new articles, article 23FA and article 23FB, into the benchmarks regulation. They supplement the legislative framework introduced by the Financial Services Act 2021 to provide for the orderly wind-down of a critical benchmark. Article 23FA clarifies how references to an article 23A benchmark should be interpreted in contracts and arrangements. Specifically, it provides that when the FCA designates a benchmark under article 23A and imposes a change in how the benchmark is determined, contractual references to the benchmark should be interpreted as including the benchmark as it exists after the exercise of the FCA’s powers. This is called “contractual continuity”.

For example, where LIBOR settings are designated under article 23A of the benchmarks regulation, this article would provide that contractual references to LIBOR should be interpreted as including synthetic LIBOR.

Article 23FA also sets out how contractual continuity will work in practice. It provides that this interpretation applies to all references to the benchmark in contracts or other arrangements, including references that do not refer to the benchmark by name but rather describe it, for example by reference to the economic or market reality that it intends to measure. It also applies where the parties were treating a reference in a contract as a reference to that benchmark immediately before the article 23A designation. That will ensure that any legal uncertainty is minimised, even when the contract does not explicitly use the name “LIBOR”, or includes a reference to LIBOR that is out of date. Finally, it is formally retrospective, in that it also provides that the contract is to be treated as having always provided for the reference to the benchmark to be interpreted in this way once the synthetic benchmark was introduced.

In the Government’s view, for contracts that continue to refer to LIBOR, these provisions will comprehensively address the risk that parties might successfully dispute the use of synthetic LIBOR to calculate payments after the end of this year. They do so in a proportionate way while not interfering with other valid claims. The clause does not introduce a so-called safe harbour, as has been introduced in New York. The Government considered that approach and, as I said, concluded that it would not be appropriate. However, the clause does not prevent parties’ ability to seek legal redress via the courts for other matters.

I draw the Committee’s attention to paragraphs 6 and 7 of article 23FA, which provides that the Bill does not create a basis for new claims concerning actions by the parties in relation to the formation, variation or operation of the contract prior to the change to a synthetic methodology. That should ensure that if, for example, a misrepresentation claim were brought in relation to statements made before a contract was entered into, the claim is considered according to the reality at the time when the statements were made, not in the light of the Bill’s impact on the contract. It would also not be reasonable or proportionate for the Bill to extinguish existing legal claims. Paragraph 7 therefore ensures that article 23FA does not extinguish existing causes of action. Any claim that could have been brought prior to the article 23A designation of the benchmark can therefore still be brought regardless of the Bill. For example, a mis-selling claim brought on the basis that a lender had misrepresented LIBOR to the customer could still be brought and judged according to the situation at the relevant time.

I turn to article 23FB, which introduces further provisions necessary to provide legal certainty to parties to contracts or arrangements that reference an article 23A benchmark. It is designed to avoid unnecessary interference in contracts where parties to a contract have already agreed what should happen in the event that a benchmark is designated under article 23A. This new article is primarily concerned with how the contractual continuity provision will operate in contracts that already have fall-back provisions—that is, provisions that provide for the contract to operate by reference to something other than LIBOR, or to terminate in particular circumstances.

The new article provides that article 23FA does not apply if the contract expressly disapplies it or expressly provides that the reference to the benchmark is not to include the benchmark in its synthetic form. It also provides that article 23FA does not override the operation of contractual fall-back provisions, many of which are designed to cater for the wind-down of the benchmark. For example, a fall-back in a contract that is triggered by LIBOR becoming unrepresentative will not be affected by the Bill. However, article 23FB is also clear that the designation of the benchmark under article 23A, or the imposition of a synthetic methodology, will not trigger fallbacks designed for the cessation or unavailability of a benchmark. That is because the benchmark continues to exist and be available in its synthetic form, so it has not ceased.

Concern about inappropriate cessation fall-backs that were designed with only a temporary unavailability of LIBOR in mind was one of the drivers of the approach taken in the Financial Services Act 2021. It is one of the key reasons why the Government are allowing for the continuation of LIBOR under a synthetic methodology. Article 23FB also provides the Treasury with three limited powers to make regulations. The powers are intended to future-proof this legislation, allowing the Government to ensure that an appropriate legislative framework is in place to support the orderly wind-down of future critical benchmarks across the wide range of contracts and arrangements that could reference those benchmarks.

The right hon. Member for Wolverhampton South East (Mr McFadden) referenced concern about timing. As I mentioned, that provision allows for wind-down over a 10-year period. We want to continue to encourage the wind-down over the coming period. We reserve the right to make further legislative interventions, but we envisage that they would be on a smaller and diminishing pool of contracts.

I turn to clause 2. On Second Reading, I spoke to the narrow and targeted immunity that the Bill provides for the administrator of a critical benchmark for action that it is required to take by the FCA. That is the clause’s purpose. It inserts new article 23FC into the benchmarks regulation. The clause, as with clause 1, deals with the circumstance where the FCA has designated a benchmark as an article 23A benchmark. Article 23FC concerns the liability of the administrator of an article 23A benchmark. The administrator will be responsible for administering the change in methodology as directed by the FCA, and as I set out on Second Reading.

Importantly, the clause provides that the administrator of an article 23A benchmark is not liable in damages for action—or inaction—that it is required to take by the FCA under article 23D of the benchmarks regulation, or for publishing the benchmark as it exists as a result of the FCA’s direction under article 23D. In essence, that gives protection to the administrator in terms of liability related to the FCA’s direction of it.

However, as I said on Second Reading, it would not be appropriate for the Government to provide protections where the administrator is acting under its own discretion. As such, this immunity does not protect the administrator where it exercises discretion over the methodology or as to the time or manner of the benchmark's publication. It is in the public interest to prevent unmeritorious litigation against the administrator where it is complying with statutory obligations to support the orderly wind-down of a critical benchmark. To be clear, it is the Government’s view that claims covered by this immunity would be unmeritorious as it would not be fair for the administrator to be held liable for action that it is required to take under statute or to expend considerable time and expense defending itself against what would be vexatious claims.

I turn to clauses 3 and 4. Clause 3 ensures that the Bill’s provisions apply to all references to the benchmark in question in contracts and arrangements under UK law, including those outside the scope of the benchmarks regulation. Without the clause, the Bill would not apply to all contracts and therefore would not fully meet the aims of the legislation. Finally, clause 4 provides for the Bill’s territorial extent and specifies that it will come into force on the day on which it is passed, to give the market the certainty that it needs by the end of the calendar year. It is important that the Bill comes into force when it receives Royal Assent to provide that protection to the market

The Bill’s provisions allow for an orderly wind-down of LIBOR and, in doing so, ensure the protection of consumers and the integrity of UK markets. I therefore recommend that clauses 1 to 4 stand part of the Bill.

I am grateful to the Minister and have a few questions for him, all of which relate to clause 1. The methodology for calculating synthetic LIBOR is the five-year average picked by the FCA. Were other possible methods considered? What impact would they have had on the interest rate?

Secondly, the Minister referred to the rate bouncing around: on one day it could be less than real LIBOR and on another day it could be more. I believe that the FCA has used the figure of 12 basis points. For clarity, is that a fixed-term difference going forward, or will synthetic LIBOR vary on a daily basis, just as real LIBOR can?

On Second Reading, we talked about mortgages. However, as the Minister rightly said, a far greater sum of money based on LIBOR is in the derivative markets. What estimate have the Government made of the Bill’s impact on those markets?

Paragraph 6 of new article 23FA, which we have touched on a few times, tries to limit or define the scope of legal action taken as a result of the move from LIBOR to synthetic LIBOR. How might that influence any attempt at judicial review? How confident is the Minister that someone could not try a judicial review of this attempt to close down the option of legal actions taken as a result of a Government-mandated move in financial benchmarks?

The Minister referred to the discussion of fall-back provisions on page 3 of the Bill. For clarity, does this mean that some contracts will not transfer to synthetic LIBOR but will transfer to something else, depending on whether there is a fall-back provision in the contract? If there is a fall-back provision and it is not synthetic LIBOR, what will it be? If there is a fall-back provision that could have a different rate from synthetic LIBOR, how will contracting parties decide which one to use? Will the fall-back rate, if such a thing is specified in a contract, automatically take precedence over synthetic LIBOR, or might there be room for argument about which alternative rate to use?

Finally, there is the question of timescale and how long this will last. The Minister talks about encouraging remaining contracts to move off what will now be synthetic LIBOR. Indeed he said that, if we have to, we could pass further legislation. Is there anything more that can be done, other than encouragement, or are contracts not moving away from LIBOR because it is a better rate and, ultimately, what people care about is the interest rate they pay? I wonder how temporary this will be. Are we kicking this can down the road with nothing other than encouragement for a group of contracts that have stubbornly stuck to LIBOR despite all the regulator’s enthusiasm? Is there anything between the Minister’s encouragement and future legislation that might change this situation?

I will not detain the House by repeating my comments on Second Reading. I am grateful to the Minister for his answers to a number of my questions, but one question he did not pick up, and on which I hope he can give some assurance, is what happens if something goes badly wrong with people’s mortgages. The small percentage of people who have mortgages covered by this legislation—although it could potentially be quite a big number of people—are now, through no fault of their own, quite literally staking their home on our getting this right. Although I appreciate that the Minister will not commit to a specific compensation scheme just now, will he at least give an assurance that the Government have not closed the door on that possibility should unforeseen circumstances lead to it being necessary?

I am also looking for clarity on the precise circumstances in which the administrator does or does not have immunity from legal action. The Minister has said the administrator is covered if it does something the law says it has to do, and it will not be covered if it does something it has chosen to do in a particular way. Does the administrator have discretion on the precise methodology it uses to calculate synthetic LIBOR, and can it exercise its judgment on the numbers it puts into the model? If the administrator has such discretion, nobody needs to sue it for using a synthetic LIBOR model; they can just sue it because of how it has carried out the calculation.

Given the nature of contracts of the value that the right hon. Member for Wolverhampton South East (Mr McFadden) mentioned, a slight change in the published rate can mean a lot of money. Every time the published rate is arguably a wee bit higher or a wee bit lower than somebody else thinks it might have been, one party will win and be quite happy, and the other party will lose and will potentially have a strong motivation to resort to legal action. Are administrators adequately covered against being sued simply because they have published a figure that says the current synthetic LIBOR rate is 1.2% rather than 1.25%? Are there grounds on which they might be sued because those 0.05 percentage points of difference in the published synthetic LIBOR rate either make or lose quite a lot of money?

It is a pleasure to serve under your chairmanship, Mr Evans.

The right hon. Member for Wolverhampton South East (Mr McFadden) and the hon. Member for Glenrothes (Peter Grant) have raised a number of questions arising from what I said. The Government are clear that we support this transition away from LIBOR by providing additional legal certainty for contracts relying on LIBOR past the end of this year. The provisions of the Bill are vital to using the synthetic rate in an orderly winding down of LIBOR, and they provide protection to consumers and the integrity of UK markets, but there are four or five elements that I will address now.

The hon. Member for Glenrothes mentioned compensation, and we do not anticipate that being an issue. As with all matters, the Treasury keeps things under review. We will continue to monitor what happens as a consequence of this methodology.

Both the right hon. Member for Wolverhampton South East and the hon. Member for Glenrothes mentioned legal action, and it is possible that judicial review could be raised against the FCA on the synthetic methodology it is prescribing for ICE. We think that would be extremely unlikely, given that there has been an active exercise of listening to representations on designing a methodology that has broad credibility. That is fundamental to the integrity of the process. There has been no attempt to develop a methodology in isolation or separate from the consultation with the market.

The right hon. Member for Wolverhampton South East asked about both the future timetable and what will happen with contracts that have fall-back clauses overridden by the effect of this legislation. This Bill provides certainty where a fall-back provision is triggered by a benchmark ceasing to be published or made available. Neither the designation of a benchmark under article 23A of the BMR nor the imposition of a synthetic methodology would trigger the operation of the fall-back provision. Where a contractual arrangement has a fall-back provision that is triggered by other means, this Bill does not affect or override the operation of that clause. For example, it will not override a fall-back triggered by an assessment of unrepresentativeness or a prohibition on the use of the benchmark, provided that the circumstances in which the fall-back was triggered are met.

In layman’s terms, does that mean that a fall-back provision trumps synthetic LIBOR? That is what I am trying to get at. If there is a fall-back provision—some alternative already written into the contract—will these synthetic LIBOR continuity provisions not kick in?

What we are saying is that the fall-back provisions, if they are without reference to LIBOR, would still apply. Where LIBOR is the reference, we are trying to ensure this synthetic methodology would not trigger that fall-back provision on the argument that it is distinct from the LIBOR provision in the contract. Essentially, we are trying to establish that the synthetic LIBOR methodology is synonymous with and continuous from the previous LIBOR rate, as set by the panel, but it does not intrude on the contractual issues around the fall-back on another basis. That goes back to our provisions dealing with the continuity of LIBOR rate setting through this new methodology—anything else is not the Government’s intention.

The right hon. Member for Wolverhampton South East reasonably probes me about the future timetable, and whether the provision of “moral persuasion” from the Financial Conduct Authority and warnings would be sufficient. We will keep these matters under review. What we are anticipating, and what we have seen, is a rapid and increasing move away from reference to LIBOR, and we expect that that will continue right up to the end of the year. We will look at what is required on an ongoing basis, but we think that it is quite likely that there may not be need for further legislative intervention. However, we reserve the right at a future point to legislate as needed. What we would do, as the FCA is doing, is encourage people to transition away from LIBOR.

I was also asked about the rate difference. It is possible that when the methodology of LIBOR changes from relying on panel bank contributions to using this synthetic methodology, there could be a small change in the rate of interest that borrowers with contracts that reference LIBOR will pay. I mentioned on Second Reading that we expect the synthetic LIBOR to replicate the economic outcomes achieved under the panel bank rate. Obviously, that was the intention throughout. It is difficult to say exactly what the synthetic rate will be when it replaces LIBOR. In the medium term, we would expect it to be matched to the existing LIBOR rate, but smoothed to reduce day-to-day changes.

Today’s LIBOR rate is at historic lows, and it is worth noting that the rate can fluctuate significantly. For example, if we look at the three-month LIBOR on GBP, we see that it has varied from 0.28% in September 2017 to 0.92% at the end of December 2019, and it is now 0.11%. We have seen a lot of volatility in the past few weeks because of speculation about what is happening with interest rates. So there have been some days during the past months when the synthetic methodology would have produced a lower rate than panel bank LIBOR and others when it would have produced a slightly higher one. Therefore, it is not possible to fully account for what would actually happen. I hope that that addresses the points that have been raised in Committee.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 to 4 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading

We have had a considerable debate this afternoon, both on Second Reading and in our scrutiny in Committee. I have made clear on a number of occasions the Government’s intentions in this legislation. I wish to thank the Opposition spokesmen for their contribution and thank my officials, but I do not have anything further to add.

I wish to reciprocate in my thanks to the Minister for responding with the courtesy and in the spirit of co-operation that we always get from him in these debates. This is becoming more topical just now, but he deserves credit in setting an example that we would all do well to follow. There have probably been very few Bills to come through this House that have involved so much work beforehand to produce a Bill that, in paper terms, does not appear to be particularly significant. I think we understand that its impact can be quite significant—the impact of not doing it could have been very significant. So may I ask the Minister to take the thanks of my group back to his officials and to everybody else who has contributed to the consultation—those in the FCA and the industry representatives—as I know they have put a lot of work into this as well? As I say, it has not produced a huge number of pages or words of legislation, but I believe it has plugged a potentially catastrophic gap in the regulation of our financial services industry, and they deserve our thanks for that.

Question put and agreed to.

Bill accordingly read the Third time and passed, without amendment.