Prof. Jayanth R. Varma’s Financial Markets Blog

A blog on financial markets and their regulation

Regulatory capture is a bigger issue than botched communications

I just finished reading the 226 page report that the non independent directors of the UK FCA (Financial Conduct Authority) commissioned from the law firm Clifford Chance on the FCA’s botched communications regarding its proposed review of how insurance companies treat customers trapped in legacy pension plans. The report published earlier this month deals with the selective disclosure of market moving price sensitive information by the FCA itself to one journalist, and the failure of the FCA to issue corrective statements in a timely manner after large price movements in the affected insurance companies on March 28, 2014.

I will have a separate blog post on this whole issue of selective disclosure to journalists and to industry lobby groups. But in this post, I want to write about what I think is the bigger issue in the whole episode: what appears to me to be a regulatory capture of the Board of the FCA and of HM Treasury. It appears to me that the commissioning of the Clifford Chance review serves to divert attention from this vital issue and allows the regulatory capture to pass unnoticed.

The rest of this blog post is based on reading between the lines in the Clifford Chance report and is thus largely speculative. The evidence of regulatory capture is quite stark, but most of the rest of the picture that I present could be totally wrong.

The sense that I get is that there were two schools of thought within the FCA. One group of people thought that the FCA needed to do something about the 30 million policy holders who were trapped in exploitative pension plans that they could not exit because of huge exit fees. Since the plans were contracted prior to 2000 (in some cases they dated back to the 1970s), they did not enjoy the consumer protections of the current regulatory regime. This group within the FCA wanted to use the regulator’s powers to prevent these policy holders from being treated unfairly. The simplest solution of course was to abolish the exit fees, and let these 30 million policy holders choose new policies.

The other group within the FCA wanted to conduct a cosmetic review so that the FCA would be seen to be doing something, but did not want to do anything that would really hurt the insurance companies who made tons of money off these bad policies. Much of the confusion and lack of coordination between different officials of the FCA brought out in the Clifford Chance report appears to me to be only a manifestation of the tension between these two views within the FCA. It was critical for the second group’s strategy to work that the cosmetic review receive wide publicity that would fool the public into thinking that something was being done. Hence the idea of doing a selective pre-briefing to a journalist known to be sympathetic to the plight of the poor policy holders. The telephonic briefing with this journalist was not recorded, and was probably ambiguous enough to maintain plausible deniability.

The journalist drew the reasonable inference that the first group in the FCA had won and that the FCA was serious about giving a fair deal to the legacy policy holders and reported accordingly. What was intended to fool only the general public ended up fooling the investors as well, and the stock prices of the affected insurance companies crashed after the news report came out. The big insurance companies were now scared that the review might be a serious affair after all and pulled out all their resources to protect their profits. They reached out to the highest levels of the FCA and HM Treasury and ensured that their voice was heard. Regulatory capture is evident in the way in which the FCA abandoned even the pretence of serious action, and became content with cosmetic measures. Before the end of the day, a corrective statement came out of the FCA which made all the right noises about fairness, but made it clear that exit fees would not be touched.

The journalist in question (Dan Hyde of the Telegraph) nailed this contradiction in an email quoted in the Clifford Chance report (para 16.8)

But might I suggest that by any standard an exit fee that prevents a customer from getting a fairer deal later in life is in itself an unfair term on a policy.

On March 28, 2014, the top brass of the FCA and HM Treasury could see the billions of pounds wiped out on the stock exchange from the market value of the insurance companies, and they could of course hear the complaints from the chairmen of those powerful insurance companies. There was no stock exchange showing the corresponding improvement in the net worth of millions of policy holders savouring the prospect of escape from unfair policies, and their voice was not being heard at all. Out of sight, out of mind.

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