Financial Services and Markets Bill [HL]

The remaining amendments in my name very much go to putting back those requirements and obligations, as set out in the originating statute, around competition and innovation. The Government have talked variously about the growth objective, not least the role that regulators have to play in it. Indeed, they summoned regulators to No. 11 for a regulators’ showdown— I am not sure what the collective noun for a group of regulators is, but it was certainly a gathering—focused solely on growth. Well, competition and innovation are critical to that growth objective.

I suggest that this suite of amendments fills the gap that is left in the existing draft of the Bill. I very much look forward to the Minister’s response and to the debate on this and the other amendments—those who have put them forward have all done so on similar and related issues. I beg to move.

Predictable consultation matters because it is the only point where Parliament, industry, consumer groups, individuals and civil society generally can influence policy and rule-making. If windows are unpredictable or too short, smaller firms and resource-constrained consumer bodies are effectively excluded. Trade associations cannot consult their members, but their responses are important, as we know that many firms are reluctant to respond directly, for fear of being seen as criticising regulators and suffering supervisory consequences.

The various advisory panels have their place, of course, but they are not a substitute for open consultation. They rely on the knowledge of individuals, not the pooled experience of the market or the public. Industry has asked for this amendment, which tells us something important: the current system is not working as it should. Consultation should not be a matter of luck or timing; it should be predictable, fair and transparent. This amendment would support better engagement and better outcomes. It is a modest but essential part of the culture change that the Lords committee called for, and I hope that the Government will look on it favourably.

Amendments 50 to 53 are all related and designed to reduce the discretion of the Treasury to designate or not designate a payment system as a regulated payment system. As it stands, the Bill gives the Treasury complete discretion. The Bill sets out when the Treasury may designate a payment system to be regulated, but whether it does so is entirely at its discretion, subject only to some consultations. If it does not wish to designate a payment system as a regulated payment system, it does not even need to consult. Similarly, new Section 131Z6 gives it complete discretion to withdraw any designation at will at any time. Why does that matter? That might be best illustrated by a completely hypothetical and obviously completely made-up example. Stablecoins are generally recognised as being primarily a payment system. Let us imagine that there might be a politician who has received a donation of, shall we say, £5 million from an overseas billionaire who is a major shareholder in the world’s leading stablecoin issuer. Perhaps that politician may not have registered such a donation. Let us imagine that that politician gains a position of influence over the Treasury and feels that the interests of his benefactor might be assisted if stablecoins, or indeed a particular stablecoin, were not designated as a regulated payment system. The Bill, as drafted, would allow exactly that to happen. Does the Minister agree that this feels somewhat inappropriate and open to potential abuse?

My amendments would reduce that discretion so that the Treasury must—“must”, not “may”—designate a payment system as a regulated payment system if it is satisfied that any deficiency in the design of the system, or any disruption of its operation, would likely have serious consequences for those who use or are likely to use the services provided by participants in the system. It would have to withdraw a designation if satisfied that those grounds are no longer met.

My Amendment 55 is another request for clarification; I recognise that it may not be required. Prior to being abolished, the PSR does not have a secondary competitiveness and growth objective such as that of the FCA. It has an objective to promote effective competition in the market for payment systems and services and an innovation objective, but those are different things. It was not clear to me when I read this whether, as the PSR becomes part of the FCA, the regulation of payment systems will become subject to the FCA’s wider set of objectives or not. This amendment aims to put that beyond doubt, but perhaps the Minister could confirm the position.

A simple example arose for me when, very recently, I spoke to an American firm planning to offer payroll services in the UK using 100% stablecoin. The firm is very confident that this will be in place shortly after the regulations are approved by the FCA. How does an employee receiving 100% of their salary in stablecoin turn that into cash at an ATM? Obviously, there are huge issues of access to cash, interoperability and who will pay for the necessary software and hardware changes.

Amendment 57 carries on with this theme and picks up an earlier group, addressing the need for all participants in the payment system, including tech companies, to pay their fair share. That is why the definition of “payment system” really matters and should not exclude digital assets. As the payments world changes so significantly, financial inclusion will be a far more complex issue, and it is untenable for the costs of this to fall just on the banks. My amendment makes it clear that every participant across all recognised payment systems must step up: we need a level playing field.

The intent of these really quite simple amendments is to help overcome the incredibly fragmented and confusing payments landscape in the UK, particularly when we look at it from the perspective of the consumer. It is an obstacle course and, frankly, general confusion and fragmentation let overseas entities take advantage of us. I am very troubled that the National Payments Vision of the Bank of England does not have digital assets in scope. The Bank issued its policy announcement on systemic stablecoin on Monday, and it says that its work will be in parallel with the National Payments Vision, but I am still trying to work out why the two are not properly linked together and coherent. There are new players in this field, and some are asserting that we need a single sovereign payments system to respond to core consumer needs and to join up the dots with consumers at its heart. I met the Canadian company Interac, and that is exactly what happens in Canada, so there are international examples, which do not seem to be under consideration in any of the material that I have been looking at.

The second effect is that this would ensure that those affected by regulation have a meaningful opportunity to have some input in our deliberations on the Bill and our discussions with industry. It has become clear that the regulatory environment seems to be planned and developed at some distance from the firms that are expected to comply. New regulations, handbooks and guidance may make sense to the people sitting in the FCA or the PRA, but they do not always make sense to those at the coalface: firms, compliance teams, payment providers and market participants. They have to interpret them to implement them and live with the operational consequences.

In this case, those with an interest go way beyond the regulators’ normal clients. For example, concerns have been expressed by retailers, which are usually quick to spot practical problems. I remember well that, when I was at Tesco, we were introducing the euro into our businesses in Ireland and elsewhere. Because of inadequate consultation, the timing was wrong, with training and IT changes needed during the busy Christmas period—a recipe for cost and chaos.

This is a real problem. If regulation is developed in a silo, away from the experience of market participants, even well-intentioned regulation can become impractical, disproportionate or poorly targeted. We end up with the regulator and the regulated working from different understandings of how the market actually functions. That is why I hope that the Minister will look constructively at the amendments that seek to strengthen consultation, transparency and meaningful engagement both with professional bodies and with market participants. Without proper planning, there will be a risk to growth—and, indeed, to the UK’s reputation on payment systems, which has generally been good.

The second major issue is the question of what exactly is covered by the regime. Is the Bill regulating the market as it exists today or preparing the UK for the market as it will exist in a few years? We will speak about digital finance and digital assets in later groups, but the point is highly relevant here, as the noble Baroness, Lady Kramer, mentioned. If the Bill is to modernise and improve regulation, why does it feel in places as though it is being designed for a market that may already be out of date? We have the legal system, the financial services expertise, the markets, the professional services ecosystem and the technology capability to be a world leader, but leadership requires clarity and confidence from the Government and I do not think we are yet seeing enough of either in this Bill.

That brings me to the wider point about accountability and scope, which was raised on Monday. If the PSR’s functions are to be absorbed into the FCA, how will this new regime be properly held to account? How will the Government ensure that payments regulation does not become simply one more area lost within the wider FCA structure? I would be grateful if, in addition to my initial questions about growth, competitiveness and the level of delegation, the Minister could address three points.

First, how will the Government ensure that industry and professional bodies are brought into the regulation-making process early enough for their input to make a meaningful difference? Secondly, how will the Government ensure that the new regime is sufficiently clear and future-proofed to capture new forms of payments and digital finance, rather than regulating for the market of the past? Thirdly, how will the new payments regime be held to account once it sits within the FCA and what mechanisms will exist to ensure that Parliament, industry and consumers can properly scrutinise its operations? A lot of clarity is needed on this part of the Bill, which we of course support in principle. I very much look forward to the Minister’s reply.

I understand the concern in Amendment 49 about whether systems that involve digital settlement assets fall within the definition of a payment system. The Bill attempts to be clear that they can and are capable of designation, even where enabling the transfer of funds is not their primary purpose, reflecting how they may support payment activity within wider platforms.

Amendments 50 to 53 seek to make designation mandatory once the relevant payment systems definition and designation threshold is met, and to restrict the Treasury’s discretion to revise or withdraw designation notices. The Government do not consider that appropriate. As I have already stated, payment systems are technologically dynamic. The Treasury must retain discretion to assess the circumstances and to regulate proportionately, taking into account the relevant factors. Making designation automatic, or withdrawal too restrictive, could introduce rigidity and unintended consequences. Therefore, the Bill preserves the existing position whereby the Treasury may designate a system where it meets the definition of a payment system, and only where the relevant threshold is met. The Government have determined that it is appropriate to maintain a designation regime for payment systems because it facilitates more targeted and proportionate regulation.