20 September 2021
Financial services update – 3 of 23 Insights
Featured in this month's newsletter:
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FCA: instructions to firms on how to maintain accurate FS Register details
On 30 July 2021, the FCA updated its webpage to include more detailed instructions on how firms should use Connect to ensure that their firm details (such as registered name, place of business, website address) and details about their directory persons are recorded correctly on the FS Register. The new updates follow feedback from firms that the processes can be confusing. Updating and confirming the accuracy of details on the FS Register in the prescribed manner and time frame is essential to ensure compliance.
Responses to the Law Commission call for evidence on digital assets
On 30 July 2021, the Financial Markets Law Committee (FMLC) published its response to the Law Commission's call for evidence on digital assets, which was followed on 18 August 2021 by the response of the City of London Law Society (CLLS) to that same call for evidence.
The FMLC response is limited to cryptoassets as a sub-set of the possible broad variety of items which might be classed as "digital assets". Furthermore, the FMLC suggests that the Law Commission becomes even more specific when it recommends legal reform, to account for the different definitions and categorisations of cryptoasset used in the UK and to reduce ambiguity. The overall conclusion of the FMLC is that that law should recognise these assets as being possessable, but should do so in such a way that is sensitive to the unique features of them; creating a third category of personal property (as opposed to things in possession and things in action) is the FMLC's preferred position.
Conversely, the CLLS believes that it is unlikely to prove unhelpful and may undermine the certainty of English law if all types of digital asset could be possessable. Instead, after citing experiences from the current market practice of the Image Clearing System for electronic clearance of cheques and money market instruments, there may be scope for specific closed statutory and contractual systems relating to the classification of digital assets in particular markets, such as trade finance.
FCA: changes to decision-making within the regulator
On 29 July 2021, the FCA released consultation paper CP21/25, which proposes to move some decisions from the Regulatory Decisions Committee back to the Executive personnel. Such decisions would include:
The consultation is open to feedback until 17 September 2021.
Financial Services Skills Commission (FSSC): inclusion measurement guide
On 14 July 2021, the FSSC released its Inclusion measurement guide, which is designed to help organisations:
The guide is split into four "levels" of measurement, which organisations can choose to apply based on the maturity of the inclusion measurement processes already in place.
On 5 August 2021, Mark Hoban, the chair of the FSSC, published a related blog post on the UK Finance website that noted that businesses have come a long way in the last decade in improving diversity, but that more action is needed. He also noted that the FSSC is working with its members to provide practical tools to enable firms to accelerate reskilling, widen talent pools and increase opportunities for digitisation.
FCA: approach to "inherence" in customer authentication
On 20 August 2021, the FCA updated its webpage on Strong Customer Authentication (SCA) concerning its own approach to the European Banking Authority's (EBA) view on the concept of "inherence" for the purposes of SCA.
Under the Payment Services Regulations, there are three authentication elements: inherence (something the user is), knowledge (something the user knows) and possession (something the user possesses). The EBA published its views on inherence in June 2019, however the FCA has chosen not to incorporate this into its Approach Document, following responses to its consultation paper CP21/3, which had proposed to reflect these views in the UK. The FCA will publish its rationale for this decision in a policy statement later this year.
FCA: firms to develop strong customer authentication (SCA) and mobile-based authentication
On 19 August 2021, the FCA's regulatory round-up bulletin stated that the regulator expects all firm to develop SCA solutions that work for all customers, in line with its June 2019 guidance. Noting that firms should consider their obligations under the Equality Act 2010, the regulator expects that firms should provide authentication measures which are appropriate to the needs of vulnerable customers, including customers who are unable to access a mobile phone. Digital-only firms are expected to develop contingency arrangements for customers whose circumstances change. Firms are advised to offer appropriate means of authentication as soon as possible to avoid the risk of regulatory action.
Lending Standards Board (LSB): ongoing work on contingent reimbursement model (CRM) code and authorised push payment (APP) scams
On 5 August 2021, the LSB published an update on the next steps of development for the CRM code. We mentioned the amendments to the CRM code in our April 2021 update. The LSB anticipates the following developments:
The LSB intends to publish a full report from its earlier Call for Input in the autumn of this year.
FCA: letter regarding mortgage third party administrators
On 10 August 2021, the FCA published a portfolio strategy letter, which it had distributed on 7 June 2021 to mortgage third party administrators. This letter explains the risks that the FCA believes such firms pose to customers and markets and outlines the regulator's expectations of such firms and their risk mitigation practices.
The FCA has prioritised the following in its supervisory work:
This letter was enclosed with a related letter to firms that outsource mortgage administration activities to mortgage third party administrators, emphasising that their regulatory responsibilities remain with the firm and cannot be outsourced.
FCA: resumption of credit information market study
On 30 July 2021, the FCA announced that work would be resumed on its credit information market study, taking into account the recommendations of the Woolard Review. Study has recommenced under the extant terms of reference and will reflect developments relevant to credit information in the last 18 months, such as:
The regulator intends to publish an interim report in the first quarter of 2022 with its vision for the credit information sector, emerging findings and early thoughts on potential remedies. The interim report is expected to consider the FCA-commissioned report on potential future developments in the credit information market.
Financial Markets Law Committee (FMLC) minutes
On 19 August 2021, the FMLC published its minutes from the 29 July 2021 meeting.
Of note is that the committee circulated amongst its members a draft of its working group paper on the uncertainties caused by the definition of "contract of insurance" in the Financial Services and Markets Act 2000 (Regulated Activities Order) 2001 (RAO). The minutes show that the relevant working group of the committee is concerned that the extension in the RAO definition to include "or similar contracts of guarantee" is broad and difficult to interpret. Members of the committee responded to this concern, suggesting that amendments might add further ambiguity to the sector, which had achieved a consensus about the interpretation of this phrase, and that such additional ambiguity could be quite costly.
The Secretariat of the committee hopes to discuss the draft paper with Lloyds of London in the coming weeks. Similarly, the draft paper will be sent to the Law Commission for consideration in strict confidence, under caveat that there are still issues being discussed around the paper.
Business Banking Resolution Service (BBRS): establishment of independent liaison panels
On 18 August 2021, the BBRS announced that it has established two new independent liaison panels as transparent advisory councils to the BBRS. These will not have decision-making powers but will be able to make recommendations to the BBRS. The two panels are:
The BBRS launched in February 2021 to help small and medium sized enterprises resolve disputes with their banks.
European Banking Authority (EBA): report on high earners
On 18 August 2021, the EBA published its report on high earners, using data up to the end of 2019. The report sets out this aggregated data of all staff earning more than €1,000,000 in the 2019 financial year, then compares this to the 2018 financial year.
The report explains that the UK had the largest number of high earners (3,519), although this number had decreased 2.63% from 2018. Overall, however, the number of reported high earners increased 0.51% across the data.
The EBA is required to publish this data under Article 75(3) of the CRD IV Directive (2013/36/EU). The next publication is due in the first quarter of 2022 and will exclude UK data.
FCA: letter to loan-based Peer-to-Peer crowdfunding platforms
On 26 August 2021, the FCA published a letter to directors of loan-based Peer-to-Peer (P2P) crowdfunding platforms, dated 25 May 2021, setting out the regulator's view of the key risks to customers and markets, its expectations of firms, and its supervisory strategy towards them.
The FCA identifies four areas of risk to consumers and markets from these firms:
Given its findings, the FCA requires P2P firms to confirm within three weeks of the date of the letter the amount that they have set aside for winding down and the reasons for establishing their reserve at this sum.
For more on the regulation of P2P crowdfunding platforms, please see the second part of our Introduction to Crowdfunding series, which was published earlier this year.
FCA: letter to investment-based crowdfunding firms
On 17 August 2021, the FCA published a portfolio strategy letter to investment-based crowdfunding firms, dated 2 July 2021. The regulator breaks down the risks for this sub-sector into four categories:
In response, the FCA expects firms to have appropriate safeguards in place and to educate customers about these risks. Firms are reminded to maintain a high standard of operational resilience.
For more background on the regulation of crowdfunding, please see the first part of our Introduction to Crowdfunding series, which was published earlier in the year.
FCA: third consultation on new prudential regime for UK investment firms
On 6 August 2021, the FCA published the third and final consultation on the UK Investment Firm Prudential Regime (IFPR). It is seeking views on:
The consultation closes for feedback on 17 September 2021.
FCA: text of memorandum of understanding (MoU) with US Securities and Exchange Commission (SEC) published
On 6 August 2021, the FCA published the text of an MoU between the FCA, Bank of England (as PRA) and the SEC on the supervision and oversight of cross-border over-the-counter (OTC) derivatives entities in connection with the use of substituted compliance by such entities.
The MoU means that under Rule 3a71-6 of the US Securities Exchange Act of 1934, the SEC can issue an order relating to the UK financial regulatory system, determining that an SEC-registered security-based swap dealer or major security-based swap participant may comply with specified UK requirements to satisfy US requirements.
This MoU works alongside the amended and restated MoU of March 2019 that is already in place between the FCA and the SEC.
European Securities and Markets Authority (ESMA): report on use of FinTech by Central Securities Depositories (CSDs)
On 6 August 2021, ESMA published a report to the European Commission on the use of FinTech by CSDs. The context of the report is the review of the CSD Regulations by the Commission, which ESMA seeks to inform via this report. The report draws four headline conclusions:
European Commission: consultation on amending the Undertakings for Collective Investment in Transferable Securities (UCITS) Directive
On 5 August 2021, the Commission launched a consultation for a potential Directive to amend the UCITS Directive. This proposal would work by inserting a new Article 82a, worded to the effect that where a Key Information Document (KID) is drawn up, provided, revised and translated for a UCITS pursuant to the PRIIPs Regulation, it should be considered as satisfying the requirements for key investor information for the purposes of the UCITS Directive.
The consultation closes for feedback at midnight (Brussels time) on 9 September 2021.
European Commission: call for advice on Packaged Retail Investment and Insurance-based Products (PRIIPs) Regulation
On 2 August 2021, the European Commission published a call for advice dated 27 July 2021 to the Joint Committee of the European Supervisory Authorities on the PRIIPs Regulation. This call requests that the Joint Committee provides information on the following areas under the regulation:
FCA: decision notice issued for pension transfer advice failings
On 9 August 2021, the FCA published a decision notice issued to Geoffrey Edward Armin of Retirement and Pension Planning Services Limited (in liquidation), dated 20 May 2021. Mr Armin has referred this decision notice to the Upper Tribunal (Tax and Chancery Chamber) and this will be suspended pending a decision at the Tribunal. However, the FCA has decided to sanction Mr Armin for serious breaches of Principle 2 (conducting business with due skill, care and diligence) and Principle 7 (taking reasonable steps to ensure that the firm complied with relevant regulatory requirements and standards).
The list of alleged failings in this notice is long and includes failure to consider the best interests of clients, failure to consider cash flow modelling and other evidence, and failure to substantiate recommendations. All of the failings occurred in the conduct of giving pension transfer advice to member of a defined benefit pension scheme, the majority of whom were advised to transfer to a defined contribution scheme without consideration of their circumstances, the alternative options available, or the benefits to be derived from a defined benefit pension scheme. The FCA has decided to impose a penalty of £1,284,523 on Mr Armin, and to prohibit him from any senior management function or any function in relation to pension transfers and pension opt outs, based on the alleged fitness and propriety failings.
FCA: the dismissal of Avacade appeal
On 4 August 2021, the FCA released a press statement after the Court Appeal upheld the FCA's findings of breaches against Alexandra Associates (UK) Limited trading as Avacade Future Solutions, Craig and Lee Lummis.
The defendants had been involved in arranging and promoting investments without authorisation, and had made false and misleading statements to induce investors to transfer their pensions into self-invested personal pensions and through these invest in alternative investments.
The outcome of the case is that the FCA can now enforce an order made in the High Court, for the sum of £10,715,000, to be paid in restitution to customers by the defendants.
FCA: Complaints Commissioner recommendation on informal data requests and use of section 165 FSMA powers
On 3 August 2021, the Office of the Complaints Commissioner published the final report of the Financial Regulators Complaints Commissioner, dated 12 July 2021, that relates to a complaint regarding the FCA.
The FCA had sent three e-mails to an old e-mail address of the complainant, which had been replaced with an updated address with the FCA in 2016. The first two were undelivered but the third, a formal request for information under the FCA's section 165 powers, was received and actioned. The sending of e-mails to the old address was caused by use of out-of-date systems within the FCA.
As a result of the complaint, the Complaints Commissioner has recommended that the FCA considers: whether training is needed about the importance of giving careful and accurate responses to enquiries from the Complaints Team; whether it should warn firms that a non-response to an ad hoc data request may be followed by a section 165 notice; and an offer by the FCA to pay the complainant or a charity of their choice the sum of £75 for distress and inconvenience caused. The FCA has issued a response to the effect that it accepts the recommendations, will implement internal changes and consider the training recommendation, and will be issuing an ex gratia payment as recommended.
European Commission: extended deadline for consultation on Anti-Money Laundering/ Counter-Terrorist Financing (AML/CTF)
The deadline for responses to four consultations on proposed amendments to AML/CTF rules has been extended by the Commission until 6 October 2021. These proposals are:
The original deadline for feedback was 17 September 2021, following the launch of the consultations on 22 July 2021.
FCA: response to Treasury Select Committee questions on frozen bank accounts
On 9 August 2021, the House of Commons Treasury Select Committee published a letter from the FCA in response to the committee's own letter that concerned reports of banks freezing accounts of vulnerable customers.
The FCA recognises that it is necessary for firms to be able to freeze customer accounts for a range of reasons, however the regulator is not aware of a substantive cross-sector issue of banks freezing accounts for no reason. The FCA does not know why some banks may have frozen accounts but points out that the Money Laundering Regulations 2017 require banks to have appropriate systems and controls that counter the risk of customer accounts being misused for money laundering and terrorist financing. These might require funds to be frozen while a report is made to the National Crime Agency or a defence is sought against money laundering.
The FCA expects firms to conduct investigations in a reasonable time and not to deny customers access to their money unnecessarily. Customers can refer their matter to the Financial Ombudsman Service where they believe that their account has been frozen unreasonably. The FCA continues to supervise banks' compliance with Regulation 105 of the Payment Services Regulations 2017, which requires banks to provide payment services providers access to payment accounts on a proportionate, objective and non-discriminatory basis.
The committee also requested information on the FCA's regulation of AI in the sector. The FCA has undertaken a several activities to foster innovation in this area, including the Digital Sandbox pilot, the report from the Alan Turing Institute (as mentioned in our July update), and the AI Public Private Forum with the Bank of England, which is anticipated to release a report in the fourth quarter of 2021.
FCA: expectations of lenders in reporting Bounce Back Loan Scheme (BBLS) fraudulent activity
On 28 July 2021, the FCA published a letter to CEOs of firms which lend to SMEs, setting out its expectations of firms in reporting fraudulent activity under the BBLS.
The FCA is aware of a variety of fraudulent activities, such as: making applications on behalf of fake businesses; making applications through dormant companies for ineligible borrowers; and knowing misstatement on application forms, particularly when stating business turnover.
If there are allegations of fraud regarding a firm which is authorised or registered for anti-money laundering purposes, the FCA expects the lender to inform it after completing initial investigations to understand the validity of the allegation. This is in line with Principle 11. This expectation is in addition to a lender's own response and its requirement to inform the British Business Bank as part of the terms for the BBLS, to report targeted fraud to Action Fraud, or to inform other regulators and professional bodies.
FCA: sustainable finance innovation programme
On 19 August 2021, the FCA announced in its Regulation round-up that a programme of works is to be launched to support firms and regulators in overcoming challenges to sustainable finance and climate change. The FCA's digital sandbox will be open for application on 6 September 2021. A Green FinTech Challenge 2021 will open on the same date. The regulator also plans to host a TechSprint on 18-21 October 2021, with a focus on use of technology in ESG data and disclosures.
EU: delegated legislation integrating sustainability into MiFID II, AIFMD, Solvency II and the Insurance Distribution Directive published in the Official Journal (OJ)
On 2 August 2021, several delegated items of legislation were published in the Official Journal of the EU. These measures came into force on 22 August 2021 (i.e. 20 days after being published in the Official Journal):
European Commission: answers to the European Supervisory Authorities on the Sustainable Finance Disclosure Regulation (EU) 2019/2088 (SFDR)
On 26 July 2021, the European Securities and Markets Authority – one of the European Supervisory Authorities – published internal Commission Decision C(2021) 4858 final and its annex, which contains a set of answers to the questions raised by the supervisory authorities about the SFDR. These questions ask how the following parts of the SFDR operate:
This publication supports the cover letter from the Commission, which asks the authorities to publish the answers on their respective websites and their Joint Committee website.
European Commission: delay to application of SFDR regulatory technical standards (RTS)
On 23 July 2021, the Commission published a letter to the European Economic and Financial Affairs Council (ECOFIN) and the Council of the EU, which confirms a delay for the application of the SFDR RTS. This delay is explained as being due to the length and technical detail of the RTS, the late submissions to the Commission and envisaged amendments. The plan by the Commission is to compile all 13 RTS into one delegated act and defer the date of application from 1 January 2022 to 1 July 2022.
In last month's update, we reported on the updated assessment by HM Treasury, the FCA and the Payment Systems Regulator about access to cash. According to their estimates, what percentage of the UK population live within 2km of a free cash access point?
The answer to last month's trivia: the FCA estimates that 4.4% of UK consumers hold cryptoassets.