FCA speech on how regulation can prepare the ground for economic growth

On 27 September 2022, Sarah Pritchard, Executive Director for Markets at the FCA, gave a speech on how regulators should prepare for economic growth. She addressed the following points:

• Speeding up the FCA's approach to authorisation by trialling simpler automated application forms.
• Promoting innovative initiatives such as its regulatory sandbox, or innovations to reduce authorised push payment fraud.
• Granting the FCA, Bank of England and PRA new powers to oversee the resilience of services of third parties' providers.
• Encouraging the FCA to monitor reforms by the LME to its markets and oversight of OTC positions.
• Gathering trade data from suppliers and users to expand the variety of wholesale data. 

2022 Autumn Statement (Growth Plan): key financial services announcements

On 23 September 2022, the Chancellor, Kwasi Kwarteng, announced the 2022 Autumn Statement (Growth Plan), which included:

• The introduction later in autumn 2022, of a deregulatory package that will revoke and replace certain financial services retained EU law, including EU rules from the Solvency II Directive.
• The removal of the current cap to bankers' bonuses, as the government believes it will incentivise individuals and thus will support growth in the UK economy.

Condition attached to the takeover of Link Group 

On 12 September 2022, the FCA published a decision notice explaining its conditional approval of the acquisition of Link Fund Solutions Ltd (LFS), a subsidiary of Link Group, by Dye and Durham. LFS managed the LF Woodford Equity Income Fund (WEIF). Since June 2019, the FCA has been investigating the circumstances relating to the suspension of the WEIF. Having concluded that it was likely that LFS could be required to pay a redress payment of up to £306 million, the FCA has required the proposed controllers to agree to make available funds not exceeding £306 million to meet any shortfall within LFS to cover the redress payments it may be required to make. In our Enforcement section (see below), we discuss a subsequent FCA statement on potential enforcement action against LFS.

HM Treasury, PRA and FCA respond to Treasury Committee report on future of financial services regulation

On 7 September 2022, the House of Commons Treasury Committee published the responses of HM Treasury, the FCA and the PRA to its report on its Future Regulatory Framework (FRF) Review, which we covered in our July 2022 update.

A summary of the key responses to each of the Treasury Committee's requests is set out below:

• Retained EU law: The committee wants the HM Treasury, the PRA, and the FCA to publish a schedule detailing when they expect each EU financial regulatory file to move across to their rulebooks. HM Treasury is expected to publish further information on this in due course. The PRA will provide clarity to stakeholders on its plans to repealing retained EU law and the FCA will publish a "digital space" for this on its website in autumn 2022 outlining the timetables for the transfers of EU financial regulatory files. 
• Secondary Objective: To provide more focus on international competitiveness and medium to long-term growth, the Bill is set to introduce a new secondary objective for the FCA and the PRA. The PRA wants to advance the new secondary objective and set out its approach in its discussion paper.
• Financial Inclusion: HM Treasury rejected the Committee's proposal of including financial inclusion in its rulemaking and providing an annual report in regard to the UK financial inclusion. The FCA supported HM Treasury's decision.
• Cost benefit analysis (CBA) panel: The Committee opposed the creation of a new statutory panel to advise regulators on CBA as it considered this could risk the independence of the regulators. However, HM Treasury disagreed and has included provisions in the Bill for the establishment for CBA panels for the FCA and PRA.
• Innovation: To promote the creation of measured and enhanced safeguards, the Committee wants the FCA to investigate how its market innovation testing can assist large firms in experimenting and testing innovative products. The FCA wants to create measured safeguards to support large firms in undertaking controlled testing of innovative products.

Financial Services and Markets Bill: second reading stage in House of Commons completed and call for evidence issued

On 7 September 2022, the Financial Services and Markets Bill 2022-23 (Bill) had its second reading in the House of Commons, during which it was confirmed by Richard Fuller, Economic Secretary to the Treasury, that the government intends to introduce an "intervention power" to permit HM Treasury to direct a regulator to change, make or revoke rules where there are matters of significant public interest. The Minister also noted that there are no plans to merge the FCA and PRA.

To assist it in its scrutiny of the Bill, the House of Commons Public Bill Committee is calling for the submission of written evidence. The Committee is due to have its first sitting on 19 October and is scheduled to report by 3 November. 

BSV issues to CAT an application for collective proceedings against Bittylicious Limited & Others 

On 13 September 2022, CAT received an application for collective proceedings by UK based holders of the cryptocurrency Bitcoin Satoshi Vision (BSV) Claims Limited (the Proposed Class Representative) against Bittylicious Limited & Others (the Proposed Defendants). This is because of the alleged damages caused by the Proposed Defendants colluding to de-list BSV, a fellow cryptocurrency exchange, thus infringing Article 101 TFEU and the Chapter I Prohibition. 

BCBS: approach to cryptoassets

Following a meeting on 13 September 2022 of the Group of Central Bank Governors and Head of Supervision (GHOS), the Basel Committee on Banking Supervision (BCBS) published a press release, in which it was noted that the GHOS confirmed the relevance of designing a robust and prudent regulatory framework for banks' exposures to cryptoassets that promotes responsible innovation whilst preserving financial stability and finalising the framework by the end of 2022. The BCBS consultation on prudential treatment of cryptoassets exposures closed on 30 September 2022. 

FOS quarterly complaints data on financial products and services: April to June 2022

On 7 September 2022, the Financial Ombudsman Service (FOS) released its quarterly complaints data on financial products and services for the first quarter of the 2022 financial year. This highlights that there were 35,029 new complaints, and a trend of complaints from victims of frauds and scams, with more than half the complaints relating to investment scams being connected to cryptocurrencies. The FOS predicts that the volume of new complaints will increase because of the cost-of-living crisis. 

DRCF terms of reference published

On 5 September 2022, the Competition and Markets Authority (CMA) published the terms of reference of the Digital Regulation Cooperation Forum (DRCF). These explain:

• Its desire to promote greater cooperation, coordination, coherence between member regulators on to address problems on digital regulatory matters.
• Its purpose as a voluntary cooperation forum to facilitate engagement with an open membership which is reviewed annually.
• The roles and responsibilities of the member regulators, the Chair, the CEO of the DRCF, the directors and project sponsors.
• Its decisions should be taken unanimously by the CEOs of the member regulators.

• The need for an annual workplan for the DRCF budget and other DRCF administrative issues.

FSB speech considers role of regulation following "crypto-winter"

On 31 August 2022, Dietrich Domanski, the secretary general of the Financial Stability Board (FSB) delivered a speech, in which he said that the recent crypto market turbulence demonstrated that there is a strong need for a consistent regulatory approach to deal with the potential financial stability risks caused by cryptoassets. The "crypto-winter" had brought to prominence a number of financial stability issues:

• The collapse of the Terra USD highlighted that stablecoins are still subject to runs despite the stabilisation mechanisms. 
• There may be weaknesses in the governance and accountability frameworks for stablecoins.
• 75% of all trades on cryptoassets in 2021 used stablecoins, underlining the fundamental stability role of stablecoins.
• Because of its interconnected nature, the failure of one of the principal players in the cryptoasset sector can lead quickly to failure across the whole sector.
• There are potential financial stability risks from the relationship between cryptoassets markets and traditional markets. 
• Cryptoasset trading platforms play a key function. Their role in intermediation and linking with stablecoin arrangements needs to be better understood. 

Domanski noted that there are a number of challenges to developing a "holistic approach", which include the largely unregulated nature of cryptoassets activities and markets and the fact that a number of participants combine different sectoral activities.

In October 2022, the FSB will send to the G20 ministers and central bank governors a review of recommendations to encourage international consistency of regulatory and supervisory approaches to cryptoassets, stablecoins and the market in general. 

FCA occasional paper on robo-advice for borrower repayment decisions

On 30 August 2022, the FCA published occasional paper 61, which reports on the results of a randomised control trial, where some representative UK consumers made hypothetical borrower repayment choices based on robo-advice. The key findings were:

• Free robo-advice improves repayment decisions.
• The average willingness to pay for robo-advice is greater than the interest and fees it saves borrowers, possibly due to consumers preference in receiving advice about their loan repayment performance to avoid making choices affecting their wealth.
• As consumers do not learn much from using robo-advice, they are likely to require repeated access to robo-advice tools. 

ESMA updates implementation timeline for EU sustainable finance legislation

On 26 September 2022, ESMA published a table updating the timeline for the implementation of its sustainable finance legislation, covering the Sustainable Finance Disclosure Regulation (SFDR), the Taxonomy Regulation (TR), the Corporate Sustainability Reporting Directive (CSRD), the Markets in Financial Instrument Directive (MiFID II), the Insurance Distribution Directive (IDD), the Undertakings for Collective Investment in Transferable Securities Directive (UCITS), and the Alternative Investment Fund Managers Directive (AIFMD).

FSSC insight paper on collecting socioeconomic background data

On 21 September 2022, the Financial Services Skills Commission (FSSC) published an insight paper on collecting socioeconomic background data, as part of its work on diversity and inclusion (D&I), particularly its access and D&I commitment setting out good practice actions for CEOs and its inclusion measurement guide for UK financial services. 

The regulators are due to consult on policy proposals that aim to improve D&I across the financial sector in Q3 2022, following the publication of their joint discussion paper (DP21/2) last year (see our August 2021 update). A policy statement is expected in 2023. 

BCBS: approach to climate-related financial risks 

On 13 September 2022, the BCBS's statement referred to above also noted that the GHOS had reviewed the BCBS's work on climate-related financial risks and that it supported its approach to the development and testing of measures related to disclosure, supervision and regulation. 

ESAs submit further questions to the Commission regarding the SFDR

On 9 September 2022, the ESAs sent eight additional questions to the European Commission regarding the SFDR. The questions cover:

• How the definition of "sustainable investment" in Article 2(17) SFDR will apply to investments in funding instruments that do not specify the use of proceeds such as general equity or debt of an investee company.
• How "investment in an economic activity that contributes to an environmental objective" or "investment in an economic activity that contributes to a social objective" in Article 2(17) SFDR should be interpreted.
• Carbon emissions reductions and benchmark issues.
• What it means to consider principal adverse impacts (PAI) and whether to include interim workers or workers employed by other group entities when determining the 500-employee PAI threshold.
• Periodic disclosure frequency for portfolio management services. 

NGFS revises climate scenarios for climate risk assessments

On 7 September 2022, the Network for Greening the Financial System (NGFS) published the changes it made to the climate scenarios for central banks and supervisors, to reflect:

• The latest GDP and population.
• The UK's climate commitments made at COP26 in November 2021.
• The inclusion of projections of losses from extreme weather events as specific impacts of chronic climate changes on the macro-economy.

IOSCO final report on retail investor education in context of sustainable finance markets and products

On 31 August 2022, the International Organization of Securities Commissions (IOSCO) published its final report on retail investor education in the context of sustainable finance markets and products. Examples of educational activities that regulators should consider include: 

• How retail investors can get sustainability-related information and see if their products match their sustainability-related preferences.
• Promoting market participants' initiatives to help retail investors understand the ESG certifications, labels and scores of financial products and supporting training that helps financial advisors understand better greenwashing and how to ensure investors are protected against misleading sustainability claims.

PSR consultation on the reimbursement of APP scams

On 29 September 2022, the Payment Systems Regulator (PSR) published a consultation paper (CP22/4) on the reimbursement of authorised push payment (APP) scams.

The PSR is proposing to:

• Require reimbursement of APP scam losses in all but the most exceptional cases.
• Improve the level of protection for APP scam victims.
• Incentivise payment service providers (PSPs) to prevent APP scams.

As part of its reimbursement measures, the PSR is proposing that the costs of reimbursement are allocated equally between sending and receiving PSPs (at the moment, sending PSPs bear the vast majority of the costs of reimbursement under the Contingent Reimbursement Model Code).

The PSR is holding a virtual roundtable on its proposals on 13 October 2022.   The consultation paper closes for comments on 25 November 2022.  

CPMI requests initial feedback on proposed ISO 20022 harmonisation requirements

On 9 September 2022, the Committee on Payments and Market Infrastructures (CPMI) published an article defining harmonised requirements for the use of ISO 20022 in multi-jurisdictional payments, which it hopes will come into effect in 2025, when SWIFT discontinues its support of the current Message Types (MT) standard for cross-border payments.

CPMI together with the SWIFT Payment Market Practice Group (PMPG), collectively known as the taskforce, would like to harmonise:

• A common single structured way to identify entities, financial institutions and persons involved in multi-jurisdictional payments.
• A standardised unique end-to-end reference (UETR) to track cross-border payments.
• Standardised capabilities to permit the inclusion of both structured remittance information with payments and support approaches to reference remittance information when sent separately. 

Comparison table on trialogue negotiating positions of EU institutions on proposed Directive on Consumer Credits

On 16 September 2022, the European Parliament's Internal Market and Consumer Protection Committee (IMCO) published a comparison table of the negotiating positions taken by the European Commission, the Council of the EU and the European Parliament on the proposed Directive on Consumer Credits to revise and replace the Consumer Credit Directive (2008/48/EC).

PRA consults on changes to regulatory regime for credit unions

On 21 September 2022, the PRA published a consultation paper on changes to the regulatory regime for credit unions (CP7/22).  

The PRA's proposals are intended to address the risks that are posed by larger, more complex credit unions and include:

• Changes to the Credit Union Part of the PRA Rulebook, such as: including corporate members and provision of consumer credit within the definition of "additional activities", extending the variety of products available to credit unions to invest in, change the rules on lending limits on unsecured lending to ensure they apply to the provision of hire purchase agreements and conditional sale agreements.
• Replacing the current supervisory statement on prudential regulation of credit unions (SS2/16) with a supervisory statement on supervising credit unions that sets out the PRA's expectations regarding large credit unions and credit unions that offer mortgages, provide credit cards, provide loans to corporate members.

Responses to the consultation paper are requested by 21 December 2022.   

FCA sets out potential interventions to reform multi-occupancy buildings insurance market

On 21 September 2022, the FCA set out potential interventions to reform to give leaseholders more protections from high prices and ensure the buildings insurance market operates better for leaseholders, in light of the increase in insurance costs following the 2017 Grenfell tragedy. These include:

• Transparency of information available to leaseholder on the pricing.
• Easier methods to challenge the high insurance costs.
• Introducing a cross industry pool to limit the risk to individual insurers posed by the buildings affected by flammable cladding aimed at reducing the insurance price.
• Leaseholders to become the customers of building insurance.

In six months, the FCA will provide an update on progress towards potential remedies. 

PRA discussion paper on approach to policy

On 8 September 2022,the PRA published a discussion paper (DP4/22) setting out its proposed approach to policy making in the light of its wider rulemaking responsibilities following Brexit, now that the Bill will repeal most EU financial services law, allowing regulators to make new rules. The following points are discussed in the paper:

• The current objectives and regulatory principles. 
• Its approach to its primary and secondary objectives and how its new objective will facilitate the international economic competitiveness of the UK and its financial services sector subject to alignment with international standards.
• How its international standards will support its objectives.
• Its more prompt and proactive approach to creating its prudential policy framework, by being able to update rules directly in response to innovations and new risks, such as climate change and Fintech.
• Its goal to deliver "a first-rate Rulebook" and how this interacts with the repealing of retained EU legislation and its replacement by PRA rules.

The PRA has asked for feedback on the topics discussed in the discussed paper by 8 December 2022.

PRA policy statement on definition of capital

On 8 September 2022, the PRA updated its rules and supervisory expectations regarding the definitions of capital (PS8/22), with the following amendments coming into effect on 1 January 2023:

• Changing the consultation rules to reflect the general prior permission (GPP) deduction requirement with the existing methods for reducing capital instruments, which would be when the transaction takes place with sufficient certainty.
• Firms should notify the PRA during a quarterly period of time, to inform the PRA of transaction taken under the GPP to make sure the transactions are within the predetermined GPP amount.

PRA letter to Treasury Sub-Committee on proposed strong and simple framework

On 6 September, the PRA sent a letter to the Treasury Sub-Committee on Financial Services Regulations responding to the Sub-Committee's concerns regarding the proposed strong and simple prudential framework for non-systemic domestic banks and building societies:

• Lack of clarity about simpler-firm regime thresholds: The PRA anticipates that there will be one layer between the largest firms, which will be subject to full Basel standards, and the simplest firms. Larger, non-systemic domestic firms may sit in an intermediate tier.
• Balance sheet thresholds: Although Mr Woods has an "open mind" on the threshold, he notes that the proposed £15 billion balance sheet cap for the simpler-firm regime is at the higher end of the feedback that the PRA received to its initial discussion paper. He also observes that the higher the threshold, the higher the likelihood that the degree of simplification will be reduced.
• Cliff-edges: Mr Woods's view is that it is not possible to develop a simpler regime for smaller firms without introducing thresholds and that this is a "price worth paying" but that when designing the details of the regime the PRA will need to ensure the thresholds are as "smooth as possible for firms to climb over when they grow."
• Domestic activity criterion (the requirement that 85% of a firm's obligors are based in the UK for a firm to qualify for the simpler regime): The PRA is aware of the concerns about the impact that this requirement would have on customers that live abroad and that it is examining how specific types of customer may be affected by this criterion. He explains that it is important that this feature of the regime is designed in such a way that does not inadvertently enable internationally active banks to avoid the Basel standards. 

Delegated Regulation on RTS on fixed overheads requirements under IFR published in OJ

On 5 September 2022, the Official Journal of the European Union published the Commission Delegated Regulation (EU) 2022/1455 supplementing the Investment Firms Regulation ((EU) 2019/2033) (IFR) concerning RTS on fixed overheads requirements, which entered into force on 25 September 2022.

The RTS set out:

• Elements to be deducted by investment firms from their total expenses.
• More deductions from commodity and emission allowance dealers' total expenses.
• The conditions for establishing whether there was a material change in the activity of an investment firm.

ESMA updates MiFID II Q&As on transparency

On 5 September 2022, ESMA published its updated Q&As on transparency topics (ESMA70-872942901-35) under the MiFID II Directive (2014/65/EU) and the Markets in Financial Instruments Regulation (600/2014) (MiFIR), regarding the application of transparency or transaction reporting requirements to transfers of financial instruments between two branches of the same legal entity or a branch and its parent company.

FCA portfolio letter for trade repositories and securitisation repositories

On 5 September 2022, in the FCA's portfolio letter on its supervisory strategy for trade repositories (TRs) and securitisation repositories (SRs), describes the key risks posed by TRs and SRs, together with the FCA's expectations of firms and the actions it wishes to take. The risks are grouped in the following way:

• Concentration risk and operational resilience risk: There are concerns that operational outages at a TR can prevent market participants from meeting their reporting obligations as a result of the concentration of the market. TRs are expected to have robust operational resilience to different forms of disruption 
• Concentration risk and quality of service: There are concerns that market concentration does not incentivise TRs to provide a high quality of service or compete on price, so it expects them to review these.
• SR business model resilience: The FCA expects SRs to frequently assess the adequacy of their financial resources and monitor the risks inherent in their business model.
• Services provided by unregistered entities: Where SRs perform activities using unregistered third parties, they should have systems in place to reduce the risk that the unregistered third party's services might impede SRs' ability to comply with the UK regulatory framework. 

Corrigendum to Delegated Regulation on RTS on disclosure of investment policy under IFR published in OJ

On 25 August 2022, the Official Journal of the European Union published a corrigendum (C/2022/5959) to Commission Delegated Regulation (EU) 2022/1159 supplementing the IFR concerning regulatory technical standards (RTS) on the disclosure of firms' investment policies, which adds the following two tables to Annex I to the Delegated Regulation: 

• IF IP2.01: table on the description of voting behaviour. 
• IF IP2.02: template on voting behaviour.

FCA statement on potential enforcement action against Link Fund Solutions

As mentioned in the General section above, following its investigation into the involvement of LFS in the suspension of the WEIF, the FCA announced on 21 September 2022 that it will potentially bring enforcement action against LFS. The FCA issued LFS with a warning notice, which LFS has 14 days to respond to. The warning notice includes:

• A penalty of £50 million, before any discounts for prompt settlement.
• The basis for redress payment that LFS could be required to pay of up to £306 million.

Upper Tribunal agrees with FCA decision that claims management business is not ready for regulation

On 16 September 2022, in the Upper Tribunal (Tax and Chancery Chamber) trial of Przemyslaw Soszynski t/a Phenix Consultancy v FCA [2022] UKUT 00247 (TCC), the Tribunal judge agreed with the FCA finding the appellant not compliant with the threshold conditions (Threshold Conditions 2C (effective supervision), 2D (appropriate resources), 2E (sustainability) of section 55A FSMA), as the appellant repeatedly breached the threshold conditions.

FCA and PRA take no action following investigations into HBOS senior managers

On 26 August 2022, the FCA and PRA announced that its joint investigations into certain former senior managers at Halifax Bank of Scotland plc (HBOS) had concluded and that the regulators independent decision-makers had decided to take no enforcement action against the senior managers. The investigations, which commenced in 2016, were in response to Andrew Green KC’s November 2015 report into the reasonableness of the scope of the FSA’s enforcement investigations in relation to the failure of HBOS.

The Economic Crime and Corporate Transparency Bill

On 22 September 2022, the Department for Business, Energy and Industrial Strategy (BEIS) published the Economic Crime and Corporate Transparency Bill, made of six Parts, two of which relate to cryptoassets and money laundering powers respectively:

• Part 4 provides more powers to law enforcement agencies to promptly seize and recover cryptoassets associated with crime proceeds, money laundering, fraud and ransomware attacks.
• Part 5 will provide more anti-laundering powers through improved sharing of information on suspected money laundering and fraud

JMLSG consults on revisions to Part 1 of AML and CTF guidance

On 16 September 2022, The Joint Money Laundering Steering Group (JMLSG) published a consultation proposing amendments to Part I of its anti-money laundering (AML) and counter-terrorist financing (CTF) guidance for the financial services sector, in relation to trusts, high-risk third countries enhanced due diligence, and proliferation financing. 

FCA speech on current issues in fighting financial crime

On 7 September 2022, Sarah Pritchard, the Executive Director for Markets at the FCA, discussed the following current issues relating to the FCA's fight against economic crime: 

• The FCA expects firms to be prepared with their technology to spot unusual patterns of activity and share this information with regulators.
• Firms should have systems, data and technology in all the parts of their business operations for financial crime checks.
• The FCA will use technology to identify firms with weak sanction screening systems and processes.
• Considering the rising cost of living crisis, firms are expected to tell the FCA and their customers of any rise in scams, money mules, loan fee fraud and ghost broking, pension scams and authorised push payments.  

Second EBA report on functioning of AML and CTF colleges under MLD4

On 1 September 2022, the second EBA report on the functioning of AML and CTF colleges under the Fourth Money Laundering Directive (MLD4), provided the following recommendations that college members should observe to improve the way individual AML/CTF colleges function in the future:

• Standardise the structural elements of AML/CTF colleges to avoid obstacles to members' participation.
• Have more discussions during the AML/CTF college meetings to facilitate detailed information exchange.
• Encourage ongoing exchange of information within colleges outside of the meetings.
• Having a risk-based approach to college meetings to ensure there are more meetings for financial institutions exposed to higher ML/TF risks.
• Finding areas for common approach or joint actions.
• Increase the supervisory convergence in AML/CTF colleges.

The Financial Services and Markets Bill (2022/2023) will give the financial regulators a new secondary objective. Which of the following best describes this secondary objective?

• Innovation.
• Growth and competitiveness.
• Investor protection.
• Promotion of financial literacy.

The answer to last month's trivia: 31 October 2022.