By Raymond Cox, Fountain Court Chambers, London
The Banking Code 2008: a work in progress
The new Banking Code, which came into force on 31 March, is as interesting for what it does not contain as for what it does.
The 2008 code does not, as yet, contain any overarching commitment to treat customers fairly, as desired by the Financial Services Authority (FSA). Ahead of the revisions, the FSA put in a strong bid for an 'overarching fairness provision', along the lines of one of its own 'Principles for Business'. The FSA said that of 'particular relevance' to the review was its pervasive 'Treating Customers Fairly' (TCF) initiative, which concentrates on the achievement of certain outcomes rather than compliance with particular rules. The FSA preferred this to the statement in the code that customers will be treated fairly and reasonably, which the banks should achieve by meeting a number of specific 'key commitments' in matters such as advertising and account information. Indeed, the FSA thought there was 'scope to cut back on some of the detailed rules'.
But the banking industry bodies, which drafted the 2008 code, decided for the time being not to include any TCF principle, or to cut back on the rules, pending negotiations regarding which body will be responsible for monitoring compliance with, and enforcement of, the overarching principle.
The question is whether it should be the FSA, the Office of Fair Trading (OFT) or the Banking Code Standards Board (BCSB), an independent body established in 1999 comprising directors who represent the banking industry alongside a majority of directors who do not.
This question has arisen at a crucial time for the regulation of the conduct of the business of banks for two main reasons.
First, important new regulations are coming into force. The Consumer Credit Act 1974 has been amended from 6 April 2008 so that, in granting credit licences, the OFT shall have regard to whether or not the applicant is involved in 'irresponsible lending'. This builds on reforms in 2006 to enable consumers to challenge loans based on an 'unfair credit relationship'. This regulation of irresponsible lending goes far beyond any requirements for transparency and is a major change for banks. In addition, the Consumer Protection from Unfair Trading Regulations 2008 come into force on 26 May and will prohibit a wide variety of unfair commercial practices, including failure to comply with the 2008 code, and misleading omissions (which include omitting or hiding material information or providing information which is unclear or untimely). Again, the designated enforcing body is the OFT, though the OFT may take into account 'established means' for enforcement, such as the BCSB.
The second reason why this is a crucial time for banks is because of the severe problems recently encountered with the level of charges. In 2006 the OFT decided that charges for credit card defaults should be radically cut to no more than £12. In 2006 and 2007, the banks paid millions to customers in settlement of claims that unauthorised overdraft charges were unfair under the Unfair Terms in Consumer Contracts Regulations 1999. An initial judgment is currently awaited in the test case brought by the OFT against many of the banks on the narrow question of whether or not the fairness test under the regulations could apply in principle to the charges. We are a long way from any final decision on whether or not past overdraft charges can be reclaimed, but the amount of such charges would dwarf the sums already paid out. Whatever the outcome of the test case, there surely ought to have been a means and/or drive within the regulatory system to avoid the problem escalating to the size and scale that it has.
Against this background, the FSA has announced a review of the regulation of the conduct of the business of banks in the first half of 2008. The BCSB had anticipated a memorandum of understanding with the FSA on respective enforcement duties before the end of 2007, but it now seems unlikely that any understanding with the FSA, OFT or the Financial Ombudsman Service (FOS) will be reached ahead of the FSA's review.
The issue could not be more fundamental. The BCSB hopes that it will be given the primary role in monitoring compliance with any TCF principle under the new regulations. But as Mike Young, the independent reviewer of the code said in his review of the 2008 code, 'if that is not achieved and both the FSA and OFT decide to do their own monitoring, then there may be little case for the continuation of voluntary self regulation'.
It may be asked whether the FSA is right to propose that a TCF principle be included in the Banking Code (though the momentum behind this initiative may be unstoppable). Of course, the FSA's high-level principles, including the TCF principle, already apply to banks. However, customers have no direct claim for breach of a high-level principle (FSA Handbook, PRIN 3.4.4). The FSA has also explained that 'as the Banking Code Standards Board already monitors firms' deposit-taking activities, we do not include straightforward banking products and services in TCF work'.
The effect of the proposal would be to apply a TCF principle to banks for the first time, by means of the code. Including a TCF principle in the code would not, of itself, render it enforceable by a customer against a bank, unless incorporated into the bank's terms, but the TCF principle would be taken into account by the FOS in complaints against banks, and would no doubt set the standard for claims based on negligence and unreasonable conduct.
The essential difference between the current position under the 2008 code and a TCF principle is that the latter would apply even where there was no specified commitment. This is indeed one of the main reasons the FSA supports a TCF principle, but there may be some misapprehension here of the role of the 2008 code. The FSA's approach to principles-based regulation is aimed mainly at senior and middle management in commercial companies and firms who can shape the culture of the business. The 2008 code is aimed more at customers and front-line bank staff. The relative precision of the current list of key commitments in the 2008 code must be easier for customers and front-line staff to understand and apply than a general TCF principle, and therefore more transparent. It is, in any event, difficult to imagine that even policy makers within banks will bust a gut to think of ways to treat customers fairly and reasonably beyond the key commitments. Realistically, it seems likely that the main effect of including a TCF principle would be to give customers and their lawyers a fall-back ground of complaint.
As to the role of the standards board in monitoring TCF, irresponsible lending and unfair commercial practices, even the limited degree of self-regulation by the BCSB (the banking industry representatives are in the minority on the board) may not be in vogue. However, it is not clear that regulation by those who have no direct involvement in banking would achieve better outcomes. The difficulties that the FSA has had with the regulation of Northern Rock, and the problems the OFT has had in relation to the level of bank charges, may be evidence of this.
The other main area not covered by the 2008 code relates to changes ordered by the Competition Commission. After an investigation of banks in Northern Ireland, the commission decided to make new regulations, even though the 2005 version of the Banking Code applied to banks in Northern Ireland, imposing enhanced obligations on banks:
- to communicate clearly (standard text has to be certified as easy to understand);
- to provide details of unauthorised overdraft and other charges and interest, before opening an account, and annually; and
- to ease switching between banks.
Banks in Northern Ireland are required to submit to the OFT a regular report by the BCSB or another approved body on their compliance with the order. The NI PCA Banking Market Investigation Order largely came into force on 22 February 2008, too late for consideration for the 2008 code. The drafters of the 2008 code have accepted that in principle the same information should be given to customers across the UK, and the independent reviewer for the 2008 code broadly supports the approach of the Competition Commission. It seems inevitable that all or most of the provisions in the order will find their way into a revised version of the code before long.
The commission noted that the team at the BCSB monitoring compliance with the code in the UK consists of 'five or six people'. This is a remarkably small team considering the wide scope of the 2008 code. It seems likely the resources of the BCSB will need to be expanded significantly, depending on the monitoring and compliance roles assigned to it following the FSA review.
The major change contained in the 2008 code is in relation to lending. There is a commitment to 'lend responsibly'. In addition, the guidance issued to banks with the 2008 code instructs banks for the first time to contact the customer proactively if the bank becomes aware that the customer 'may be heading towards financial difficulties', to outline the bank's approach to dealing with such difficulties. The 2008 code also commits banks to share credit information with credit reference agencies (with the customer's consent), and, before lending, to consider information from credit reference agencies, plus at least some information about the ability of the customer to pay (income and financial commitments, how they have handled finances in the past, and internal credit scores). These changes to the 2008 code represent a major step by banks in the direction of assuming a responsibility towards the customer in relation to sums borrowed, as required by the Consumer Credit Act. The sharing of information by banks should clearly tend to be beneficial. However, where a customer has a credit card or bank account with more than one bank, it can be a very real problem for one bank to monitor borrowing without the co-operation of the customer, or without risking offending him and losing good business. Nothing in the 2008 code will diminish this.
The code includes a new promise at paragraph 12.13 that unless the customer has acted fraudulently 'or without reasonable care' the customer will not be liable for losses caused by someone else which took place through an online bank account. The guidance explains in relation to credit card losses that 'without reasonable care' in fact means with 'gross negligence', and that the words were changed 'to make them more readily understandable', although the test applied by the FOS has not. The problem here is that this could suggest to customers, their lawyers and front-line staff that the obligation on the customer is higher than intended. The 2008 code now warns online customers: to treat emails from senders claiming to be a bank 'with caution'; to 'be wary' of emails asking for personal security details; to access online bank accounts by typing the bank address into the browser; and never to use a link in an email. Any bank considering incorporating an exclusion based on 12.13 for loss caused by failing to heed that advice may wonder whether or not the exclusion would be clear, reasonable or enforceable. It is not immediately clear why online bank account losses should be different from credit card losses. Under sections 83-84 of the Consumer Credit Act 1974, customers cannot be held liable, however careless, for losses where someone else uses the card details to buy over the internet, or someone else uses the card details without permission and the card has not been lost or stolen; and can only be liable for up to £50 where the card has been lost or stolen. Online bank account losses would also contrast with losses through forged or altered cheques, for which customers are not liable at all (subject to estoppel or an equitable defence).
The 2008 code commits banks not to threaten to close an account as a response to a valid complaint - something which had caused concern in relation to complaints about unauthorised overdraft charges.
The 2008 code sets out for the first time new maximum clearing times for cheques. These reforms constitute the biggest change for a generation to the law relating to the clearing of cheques, and were put into force by agreement of the banks in November 2007, following the recommendations of the payments systems taskforce set up by the OFT. The changes are known as 'T2-4-6', referring to periods of two, four and six days from the deposit of cheque for collection by a collecting bank through the UK clearing system. From November 2007 the payee of a UK cheque has been entitled to interest (if the account bears interest) or credit, if overdrawn, on the proceeds after a maximum of two days from deposit of the cheque; to withdraw the proceeds after a maximum of four days; and to know the fate of the cheque after a maximum of six days. The change introduced some welcome certainty to the system, though no increase in speed and indeed a reduction in some cases. Of course, some payers of cheques would not welcome an increase in the speed of clearing of cheques for interest of value. The 2008 code sets out the new maximum clearing times, although banks are free to undertake shorter times if they wish, and have in some cases done so.
The 2008 Business Banking Code, which covers businesses with a turnover of less than £1 million, was updated at the same time, and in the same ways as the 2008 Banking Code relating to consumers.
The 2008 code is therefore a work in progress. It is to be reviewed every three years, but it seems likely that the 2008 code will need to be changed well before 2011, to give effect to whatever agreement is reached later this year on the bodies' respective enforcement responsibilities. The 2008 code will also be amended to apply the changes ordered in Northern Ireland to the rest of the UK.
Raymond Cox QC is a barrister at Fountain Court Chambers (the author warmly acknowledges comments by Roger Jones, and Ed Sautter of Mayer Brown, on a draft of this article; all views and errors are the author's alone.)
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