5 août 2021
Financial services update – 3 de 22 Publications
Featured in this month's newsletter:
HM Treasury: financial services overseas framework
On 22 July 2021, HMT published its response to the call for evidence on the overseas framework, which it issued in December 2020. The call for evidence was undertaken to understand how the UK's current overseas framework supports its position as a global financial centre.
The framework comprises: the overseas persons exclusion (OPE); investment services equivalence under the Markets in Financial Instruments Regulation (UK MiFIR); recognised overseas investment exchanges (ROIE); and the Financial Promotion Order (FPO), both generally and in relation to certain overseas long-term insurance products in the UK.
In light of the responses, the Government has committed to a wholesale review of the perimeter, to be conducted by HMT, working closely with the FCA, the PRA and the Bank of England. After this review, HMT will begin a consultation on potential changes to the UK's regime for overseas firms and activities in Q4 2021. HMT will look to consult on any proposed changes to the overseas regulatory perimeter; any proposed changes to the OPE; whether the way the regime current operates provides the appropriate balance between openness and ensuring the resilience and safety of financial markets, protection of consumers, market integrity and the promotion of competition, and whether further regulators powers are required for the ROIE and OPE to address any deficiencies in regulatory oversights; and amendments to the FPO exemptions for insurance distribution with an overseas element.
Treasury Committee: Greensill Capital enquiry update
On 20 July 2021, the House of Commons Treasury Committee published the Sixth Report of Session 2021-22, including the lessons learned by the committee in the aftermath of the collapse of Greensill Capital. Amongst other things, the committee identified that:
FCA: publication of the 2021/22 business plan
On 15 July 2021, the FCA published its business plan for the year ahead. The FCA explains that its role is focused on two principal themes: making markets work better and preventing serious misconduct that leads to harm. It also sets out its priorities in the following three areas:
Wholesale market priorities
Priorities common to all markets
Bank of England, PRA, and FCA: diversity and inclusion in the financial sector
On 7 July 2021, the regulators released a joint discussion paper on diversity and inclusion in the financial sector. The regulators note that diversity and inclusion can "reduce groupthink, encourage debate and innovation, and thereby improve outcomes for consumers and across markets, supporting financial stability." Comments are invited from all interested parties, with a closure date of 30 September 2021. The PRA and FCA intend to consult on more detailed proposals in Q1 2022; a policy statement is expected to be issued in Q3 2022. The Bank of England will consider separately how to develop proposals to promote diversity and inclusion for financial market infrastructures.
Chancellor of the Exchequer: speech to Mansion House
July 2021, the Chancellor, Rt Hon Rishi Sunak MP, delivered a speech to Mansion House on the UK's approach to international cooperation on financial services. Highlighting the importance of the financial services sector to the UK economy, the Chancellor set out his vision across four themes:
The speech accompanied the release of a detailed document titled A new chapter for financial services which adds more detail to the themes of this speech.
Payment Systems Regulator (PSR): Annual Report and Accounts 2020/21
On 15 July 2021, the PSR published its annual report and accounts for the 2020/21 period. The PSR announced that it has:
HM Treasury, FCA and PSR: access to cash
On 23 July 2021, the FCA and the PSR published an updated assessment of the UK's access to cash infrastructure. Through a combination of banks, building societies, ATMs and Post Offices, 95.4% of the UK population are estimated to be within 2km of a free cash access point; 99.7% are within 5km of such access. This assessment follows the work of HMT and the PSR on protecting such access to cash.
On 1 July 2021, HMT released a consultation paper on access to cash. The consultation covers proposals to introduce geographic access requirements for cash access facilities, imposition of cash access requirements on certain firms, and making the FCA the lead regulator for the oversight of retail cash access.
Also on 1 July 2021, the PSR released its response to its call for views on the second annual review of Specific Direction 8. Specific Direction 8 requires LINK to develop and adopt appropriate, effective and well-defined policies and measures to maintain the broad geographic spread of free-to-use ATMs in the UK. The PSR has concluded from its responses that Specific Direction 8 should remain in place, and that LINK should also conduct a review of its financial incentives for maintaining the protected ATMs, publishing further details on direct commissioning, and improving resilience to support continued access to cash.
PSR: speech at Lending Standards Board industry event
On 21 July 2021, Chris Hemsley – Managing Director of the PSR – delivered a speech to the Lending Standards Board's industry event A virtual view of self-regulation. Speaking about the Authorised Push Payment fraud efforts that the PSR has undertaken, Mr Hemsley's speech concluded that the voluntary measures, such as the voluntary CRM Code, has been a good example of how self-regulation can operate; however, there are limits to how far voluntary measures can go, so the industry can benefit from regulatory support and there remain areas where mandatory rules are required.
PSR: Open letter in response to Confirmation of Payee Phase 2
On 21 July 2021, the PSR published an open letter to the six largest banking groups in the UK and UK Finance, regarding their commitment to be present in the Phase 2 environment of the Confirmation of Payee programme by 31 December 2021. The PSR intends to monitor how the banks deliver on this commitment and is considering the feedback from its call for views, which suggests that more action may be needed by the PSR on other aspects of the Phase 2 programme, such as where other Payment Services Providers are concerned.
FCA: action against debt packager firms
On 20 July 2021, the FCA published a press release, announcing that five debt packager firms have voluntarily stopped providing regulated debt advice after the FCA expressed concerns about business practices and another has been stopped from doing so by the FCA under its formal powers. These actions follow an FCA review, which identified that some debt packager firms appear to manipulate client data to meet the criteria for an Individual Voluntary Arrangement or Protected Trust Deed. This is an issue because such firms typically then refer the client to an insolvency practitioner or debt management firm, for which they receive referral fees; this would be a conflict of interest between the client's best interests and those of the firm.
FCA: financial promotions case studies
On 9 July 2021, the FCA released a webpage which shows two video examples of good and bad practice case studies when promoting financial services and the FCA's expectations for promotions to be clear, fair and not misleading. One of the videos makes recommendations about a consumer credit promotion for hire purchase arrangements on cars. Key points for promotion of such schemes are the prominent representative illustration of a typical repayment arrangement, a prominent typical Annual Payable Rate for the credit arrangement, the address of the firm, and a statement declaring that a firm is acting as a credit broker. The webpage does not provide a comprehensive illustration of the FCA's rules; firms should ensure the promotions they communicate or approve comply with all relevant requirements.
PRA: correct definition of "higher paid material risk taker" in PRA Rulebook
On 21 Jul 2021, the PRA published policy statement PS18/21, which amends the definition of "higher paid material risk taker" in the Rulebook. The definition is now aligned to PS26/20 Capital Requirements Directive V (CRD V) and now covers an individual (a) whose annual variable remuneration exceeds 33% of their total remuneration, or (b) whose total remuneration exceeds £500,000.
Bank of England Act 1998 (Macro-prudential Measures) (Amendment) Order 2021 (SI 2021/869) published
On 20 July 2021, the statutory instrument was published which gives the Financial Policy Committee of the Bank of England the power to direct the PRA and FCA to take action with respect to certain macro-prudential measures regarding sectoral capital requirements, mortgage lending and leverage ratios.
FCA: Guidance consultation on approach to review of Part VII insurance business transfers
On 8 July 2021, the FCA published guidance consultation GC 21/3. The consultation proposes to update the guidance on how the FCA reviews insurance business transfer schemes in light of the UK's departure from the European Union. The FCA claims that the proposed update is more consistent with the way it would communicate with firms and practitioners, which means that the proposed guidance ought to provide more clarity on the process than the current version. Comments on the proposal are sought by 5pm on Tuesday 31 August 2021.
FCA: Dear CEO letter to general insurance intermediaries
On 2 July 2021, the FCA published a "Dear CEO" letter to general insurance intermediaries, reminding firms holding or controlling client money that they must establish and maintain arrangements to ensure the funds are adequately protected. The FCA has found the following key issues with general insurance intermediary firms:
The regulator will continue to monitor firms' client money arrangements and expects firms to take robust action to remedy any defects that meet the concerns expressed in the letter.
FCA: implementation of UK Investment Firms Prudential Regime (IFPR)
On 26 July 2021, the FCA published policy statement PS21/9, which confirms the FCA's second set of proposals relating to the implementation of the IFPR, consulted on in consultation paper CP21/7, which we reported in our May 2021 update. The FCA intends to publish a further CP at the start of August and a further PS summarising feedback received and collating final rules in Q4 2021. It expects the IFPR to take effect in January 2022. We will be publishing a special update on the IFPR in due course.
HM Treasury: proposed Senior Managers and Certification Regime (SMCR) for financial market infrastructures
On 20 July 2021, HMT published a consultation paper on the Government's intention to create an SMCR for Central Counterparties Central Securities Depositories, and recognised payment systems under the Banking Act 2009. This regime would be supervised by the Bank of England. The consultation follows from the recommendations of the Financial Policy Committee of the Bank of England, whose July 2019 Financial Stability report made the case for the extension of the SMCR to these types of firm. The consultation closes on 22 October 2021.
Global Foreign Exchange Committee: update to the FX Global Code
On 15 July 2021, the Global Foreign Exchange Committee published an updated version of the FX Global Code, following its three-yearly review. The amendments include encouraging greater disclosure by operators of anonymous trading platforms, more transparency about market data policies by multi-dealer FX E-trading Platforms, and changes to how market participants should handle settlement risk. The review document, which was released simultaneously with the updated code, summarises the changes made to 11 of the 55 principles in its appendix.
FCA: consultation on LIBOR transition and UK MiFIR derivatives trading obligation
On 14 July 2021, the FCA released Consultation Paper CP21/22 on LIBOR transition and the derivatives trading obligation. In its present form, under UK MiFIR, certain counterparties can only conclude over-the-counter transactions in standardised and liquid derivatives on regulated trading venues. The derivatives which are subject to this are swaps referencing USD LIBOR, GBP LIBOR, EURIBOR and index credit default swaps. The proposal in the consultation paper will change this list of derivatives in line with UK MiFIR, as part of the transition away from LIBOR as a reference benchmark. The deadline for responses is 25 August 2021 and the FCA intends to publish its resulting policy statement in late Q3 or Q4 2021.
HM Treasury: consultation on Wholesale Markets Review
On 1 July 2021, HMT released the consultation paper on the wholesale markets review. The intent of the proposals in the paper is to create a simpler and less prescriptive regime for wholesale markets in the most cost-effective way, through the following means:
The consultation closes for comments on 24 September 2021.
FCA: consultation on UK Packaged Retail and Insurance-based Investment Products (PRIIPs) disclosures
On 20 July 2021, the FCA published Consultation Paper CP21/23 on the proposed rules and amendments to the regulatory technical standards on PRIIPs. The FCA believes that its proposals will:
The consultation is open for responses until 30 September 2021 and the FCA intends to have any final rules in place so that they take effect from 1 January 2022.
Bank of England and FCA: review on open-ended funds
On 13 July 2021, the Bank of England and the FCA published the conclusions of their review on assessing the resilience of market-based finance, including their review on open-ended funds, on the Bank of England website. Concerned about the liquidity mismatch problem, whereby investors can liquidate their holdings daily while the funds may not be able to react to mass withdrawals as a result of investing in less liquid assets, the Bank and the FCA have identified two possible frameworks:
FCA: multi-firm review of Authorised Fund Managers' (AFMs) assessment of funds' value
On 6 July 2021, the FCA published a webpage which set out their findings on how AFMs assess the value of the funds that they operate. Of the 18 funds that the FCA visited, many could not explain their assumptions made to the FCA and had not implemented assessment of value arrangements that the regulator would expect. Some assessments failed to account for differences in class of fund units, distorting results; many did not consider what value the fund should deliver and some actively-managed fund managers assessed that their funds had provided value due to growth, even where this had underperformed against the market average. The FCA also encountered Independent Non-Executive Directors on the boards of some funds who appeared to be antagonistic towards the assessment of value process. As a result of the review, the FCA intends to repeat the review in 12 to 18 months and expects all AFMs to consider these findings.
FCA: ban for fraud conviction and failure to disclose bankruptcy and disqualification
On 9 July 2021, the FCA published a final notice against Matthew Andrew Creed, prohibiting him from performing any function in relation to any regulated activity carried on by an authorised person, exempt person or exempt professional firm. This sanction was given on the grounds of fitness and propriety, as he had been convicted in 2018 of four counts of executing transactions in fraud of creditors yet failed to notify the regulator, submitted misleading information, continued as a de facto director despite being disqualified from acting as such in 2016, and failing to inform the regulator that an unapproved person was fulfilling the roles in CF10 and CF11 from 31 December 2014.
FCA: fines for insurers and insurance intermediaries for communications failings
On 8 July 2021, the FCA published a final notice to Lloyds Banking Group with a financial penalty of £90,688,400 due to the way that it communicated with home insurance customers at the time of renewal. The FCA assessed that renewal letters contained language that was not clear, fair and not misleading. This was due to claims that renewal quotes were issued at a "competitive price" when in reality the premiums had been raised to cover discounts from an initial insurance policy, and a computer error which led to letters inaccurately stating that that customers would receive a loyalty discount that was not applied nor intended to apply. The fine was reduced by 30% on account of steps taken by the Group to remediate the situation and the cooperation shown with the regulators.
Upper Tribunal finds that former insurance CEO did not act without integrity
On 6 July 2021, the Upper Tribunal (Tax and Chancery Chamber) published its decision in Stuart Malcolm Forsyth v FCA and PRA  UKUT 12 (TCC) (FS/2019/021 & 022). The Tribunal directed the FCA and PRA not to impose a financial penalty on Mr Forsyth, a former CEO of a small mutual insurer, the Scottish Boatowners Mutual Insurance Association (SBMIA).
The background to the case was that Mr Forsyth had attributed a portion of his salary to his wife in compensation for certain administrative duties for the association and occasional hospitality at home. In their decision notices, the regulators had claimed that the Mr Forsyth had concealed the level of payments from SBMIA's Board and found that Mr Forsyth was not fit and proper and posed a serious risk to confidence in the financial system.
However, the Tribunal assessed that the facts could not support any finding of a lack of integrity on Mr Forsyth's part. The Tribunal was also critical of both regulators for several failings relating to disclosure obligations and the conduct of the joint investigation. It has directed that the regulators are to respond to its concerns in a timely fashion. The PRA published a statement on 6 July 2021 in response, in which it accepted the findings that it took a flawed approach in relation to identifying material held in this case. It acknowledges that these errors resulted in the late disclosure of certain materials, for which it has apologised to Mr Forsyth and the Court. The PRA will now consider the matter in light of the Upper Tribunal's finding that Mr Forsyth did not act without integrity.
HM Treasury: review of the UK's Anti-Money Laundering and Counter-Terrorist Financing (AML/CTF)
The consultation paper aims to amend the scope of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (known as the Money Laundering Regulations or MLRs). This is intended to provide clarity on how the AML/CTF regime operates through amendments to the regulations, such as:
The call for evidence asks broad questions on the nature of the regulatory and supervisory regimes for AML/CTF in the UK, such as asking about the overall effectiveness of the MLRs and the Oversight of Professional Body Anti-Money Laundering and Counter Terrorist Financing Supervision Regulations 2017, and the sectors in scope as relevant entities.
Both papers are open for feedback until 14 October 2021.
FCA: letter to retail banks on common AML/CTF failings
On 29 June 201, the FCA published a "Dear CEO" letter (originally sent on 21 May 2021) to the firms in the retail banking portfolio, discussing common anti-money laundering failings. The regulator expects firms to act by 17 September 2021 on the following identified items:
The FCA notes that some persistent failings in these areas have resulted in regulatory intervention. This has included requiring firms to appoint a skilled person to undertake a detailed review, placing restrictions on business, and proceeding with enforcement action.
Wolfsberg Group: statement for financial institutions on demonstrating AML/CTF
On 30 June 2021, the Wolfsberg Group published a statement to suggest how financial institutions can demonstrate the effectiveness of the AML/CTF programmes. The Group is critical that most financial institutions focus on technical compliance with requirements due to the expectations of supervisory bodies. Instead, the Group proposes that firms demonstrate three "Wolfsberg Factors" to show the effectiveness of their regime. These factors are:
By assessing their performance against these factors, the Group suggests that firms will help to achieve the Financial Action task Force's goal of creating a more effective system to combat money laundering and terrorist financing.
FCA: guiding principles on ESG and sustainable investment funds
On 19 July 2021, the FCA published a letter to the chairs of authorised fund managers (AFMs) on the need to improve the quality and clarity of fund documentation for ESG and sustainable investment funds. The regulator reports that these are the fastest growing sector of the European funds market, but that there is concern about the number of poor-quality fund applications submitted. Examples of poor quality include:
This has led the FCA to propose an overarching principle of consistency. This is supported by three supporting principles: design of the fund and its promotional materials; delivery of the fund's strategy against its ESG objectives; and disclosure of information to consumers to help them make investment decisions.
House of Commons Treasury Committee: reporting of regulator responses to net zero and green finance
On 15 July 2021, the Committee published the First Special Report of Session 2021-22. This report contains the responses from the FCA, Bank of England and HMT, in relation to the Committee's April 2021 report on net zero and the future of green finance.
The FCA's response referred to a need to tackle "greenwashing" i.e. unsubstantiated or exaggerated claims that an investment is environmentally friendly. While it agreed that more can be done, it noted that there were already in place rules and guidance relevant to this, including the requirement for financial promotions and communications to be clear, fair and not misleading. It also referred to plans to establish a Long Term Asset Fund (LTAF) regime which could be used to support investment in green technologies.
The Bank of England's response also mentioned LTAFs, however it was primarily concerned with answering the Committee's question into whether it would be appropriate to reduce the capital requirements to promote net zero.
One of the interesting points in HMT's response was that its review of Solvency II would provide scope to make the insurance regulation more flexible in order to free up cash from insurance for long-term finance of green initiatives. It also declared that the government must make technical screening criteria for climate change mitigate and adaptation via secondary legislation, by no later than 1 January 2023. The government intends to publish a roadmap of such regulation ahead of COP 26 in November 2021.
House of Commons Treasury Committee: COP26 inquiry into climate change and finance
On 5 July 2021, the Treasury Committee conducted its first meeting in its inquiry into climate change and finance. Mark Carney, the Prime Minister's Finance Adviser for COP26, UN Special Envoy for Climate Action and Finance and former Governor of the Bank of England, attended as special witness. Mr Carney spoke highly of the PRA's early engagement on climate change issues and of the PRA, FCA and private sector Climate Financial Risk Forum. He also mentioned the substantial role that private capital has to play in the investment in green technologies, both in the UK and abroad, and a need for further engagement within emerging markets to achieve climate change targets.
In our July update, we referred to an FCA report on cryptoasset ownership. What percentage of UK adults are estimated to own cryptoassets?
The answer to last month's trivia: Toronto does not have a BIS Innovation Hub Centre. However, this is expected to change in the near future, as Toronto is one of the proposed upcoming centre openings.
par plusieurs auteurs