FCA review of its approach in 2021

The FCA has published highlights of the action it took during 2021 as part of its "new approach" by reference to its three operational objectives (protecting consumers from harm, enhancing the integrity of the UK's financial system, and promoting competition).

The regulator notes that as well as pursuing these objectives, it is "working to become a more innovative, adaptive and assertive regulator", which will allow it to deal with the following challenges:

• The data-driven financial services sector in the UK.
• The transition to a net-zero economy.
• The ongoing effects of the pandemic.
• Building a new regulatory regime post-Brexit.

The FCA has also published an infographic showing the "year in numbers".

HMT consultation on reforms to the financial promotion regime

On 15 December 2021, HMT published a consultation paper in which it proposed amendments to the financial promotion exemptions for high net worth individuals and sophisticated investors. In the paper, HMT explains that economic, social and technological changes over the last two decades mean that many additional customers now fall within the definitions for high net worth individuals and sophisticated investors, compared to the position when the exemptions were created in 2001, or when they were updated in 2005. The government is also concerned about misuses of exemptions, including the marketing of inappropriate products to ordinary retail investors. It notes the recommendation in the Treasury Select Committee's report on the failure of London Capital and Finance for the government to "re-evaluate the Financial Promotion Order exemptions to determine their appropriateness and consider what changes need to be made to protect consumers."

HMT believes that the exemptions should be maintained to support fundraising by SMEs but proposes five ways that the exemptions could be updated:

• Increasing the financial thresholds for high net worth individuals.
• Amending the criteria for self-certified sophisticated investors.
• Placing greater degree of responsibility on firms to ensure individuals meet the criteria to be deemed high net worth or sophisticated.
• Updating the high net worth and self-certified sophisticated investor statements.
• Updating the name of the high net worth individual exemption.

Responses to the consultation paper should be submitted by 9 March 2022.

FCA discussion paper on improvements to compensation framework

On 6 December 2021, the FCA published a discussion paper (DP21/5) inviting views on "fundamental questions" about the Financial Services Compensation Scheme (FSCS), which look at its purpose, its scope, and how it is funded. The FCA is seeking to ensure that the FSCS continues to give appropriate and proportionate consumer protection and that there is a fair and sustainable distribution of costs across the industry.

Responses to the discussion paper should be submitted by 4 March 2022.

FCA and HMT reviews of appointed representative (AR) regime

On 3 December, the FCA published a consultation paper entitled "Improving the Appointed Representatives Regime" (CP21/34) and HMT released a Call for Evidence on the AR regime.

The FCA's paper proposes a number of improvements to the AR regime, which are intended to reduce the potential harm that the AR regime poses to consumers and markets. For example, under the proposals, principals will be required to provide the FCA more information on their ARs, which will enable the FCA to identify risks more quickly. The paper also contains a discussion chapter that seeks views on some of the business models operated by principals (including 'regulatory hosting services') and whether it is appropriate for the FCA to set limits on such arrangements to reduce potential harm.

HMT's Call for Evidence is set against the background of the Treasury Select Committee's report on Greensill Capital that observed that the AR regime "may be being used for purposes which are well beyond those for which it was originally designed." HMT is gathering information on how market participants use the AR regime and how effectively the regime works in practice. HMT will work closely with the FCA when considering any potential changes to the AR regime. 

Comments on the consultation paper and Call for Evidence must be provided by 3 March 2022.

FCA's second consultation paper on the new consumer duty

On 7 December 2021, the FCA published a second consultation paper (CP21/36) on a new consumer duty, the key elements of which were set out in CP21/13 (see our June 2021 update). CP21/36 provides feedback to the responses received to CP21/13, revised proposals for a new consumer duty with draft FCA Handbook rules and guidance, a cost benefit analysis, and proposed non-Handbook guidance.

Responses to the consultation paper must be submitted by 15 February 2022. The FCA expects to publish a policy statement finalising any new rules by 31 July 2022.

ESMA calls for evidence on DLT

On 4 January 2022, the European Securities and Markets Authority (ESMA) launched a call for evidence on distributed ledger technology (DLT) in view of the proposed regulation on a pilot regime for market infrastructures based on DLT.

The call for evidence asks stakeholders for their views on whether RTS on pre-and post-trade transparency and data reporting requirements should be amended.  Comments should be made by 4 March 2022.  Having reviewed the feedback, if ESMA consider that changes to the RTS are needed, it will publish a consultation paper on its proposal before submitting final RTS to the European Commission for adoption.

Publication of final text of proposed regulation on a pilot regime for market infrastructures based on DLT

On 21 December 2021, the Council of the EU published the final compromise text of the proposed regulation on a pilot regime for market infrastructures based on DLT (2020/0267(COD)), having reached political agreement with the European Parliament on proposed Regulation on 24 November 2021.

The Regulation will enter into force 20 days after it is published in the Official Journal of the EU.  It will apply nine months after the date it enters into force.

FCA policy statements on climate-related financial disclosures

On 17 December 2021, the FCA published two policy statements confirming final rules and guidance to promote better climate-related financial disclosures by (a) standard listed companies (PS21/23) and (b) asset managers, life insurers and FCA-regulated pension providers (PS21/24).

Standard listed companies 

Issuers of standard listed shares, or global depositary receipts representing equity shares are now required to include in their annual financial accounts climate-related disclosures consistent with the recommendations of the Taskforce on Climate-related Financial Disclosures (TCFD).  If they do not, they must explain why.  This is consistent with the approach already taken to premium listed commercial companies. 

The new rule applies for accounting periods beginning on or after 1 January 2022.  The first annual financial reports subject to the new rule will therefore be published in early 2023.  

The FCA has also confirmed that it will publish feedback in the first half this year on the discussion chapter in CP21/18 on ESG integration in capital markets. 

Asset managers, life insurers and FCA-regulated pension providers

Asset managers and asset owners must now disclose how they take climate-related risks and opportunities into account in managing investments and will also be required to make disclosures about the climate-related attributes of their products.  

The rules are being applied to asset managers and asset owners in two implementation phases.  Phase 1 applies from 1 January 2022 to asset managers and asset owners with AUM over £50 billion.   The first public disclosures in line with the FCA requirements must be made by 30 June 2023.  Phase 2 applies from 1 January 2023 to asset managers and asset owners with AUM over £5 billion.

SEPA payment scheme participants to comply with revised WTR for payments into or from the UK

On 21 December 2021, the European Payments Council (EPC) published a press release, providing a Brexit reminder for all participants of the Single European Payments Area (SEPA) payment scheme. 

Before 1 January 2021, the EPC required all SEPA payment scheme participants to implement the EU revised Wire Transfer Regulation (WTF) to enable cross-border payments involving UK-based SEPA payment scheme participants to process after Brexit. Since 1 January 2021, SEPA transactions involving a UK-based payment scheme participant must contain the full address details of the originator for SEPA credit transfers (and SEPA instant credit transfer transactions) and SEPA direct debts core (and business to business collections).

The EPC encourages all SEPA payment scheme participants to, as soon as possible, complete the identification of their customers with incoming and outgoing cross-border SEPA transactions involving a UK and EEA payment account, and ensure that all customers provide the extra SEPA transaction data as necessary. 

Long-term cash availability initiative across UK

On 14 December 2021, UK Finance announced that the Access to Cash Action Group (CAG) has agreed on an initiative to ensure long-term availability of cash in the UK. Under the initiative, where there is a closure of a core cash service (for example, a bank branch or ATM) in a community, its needs will be independently assessed by LINK. LINK will then determine whether the cash needs of the community of a whole are such that a new solution should be provided. Additionally, from summer 2022, customers will be able to request a review of their needs.

Further services to come in 2022 include shared banking hubs, free ATMs, cashback without purchase, and increased Post Office services. A webpage outlines that the CAG's cash access model was developed by independent Community Access to Cash Pilots, where eight communities in the UK trialled scalable solutions to keep cash sustainable. The CAG's final report on the pilots, published in December 2021, is available here.

The FCA and Payment Systems Regulator (PSR) published a statement in response to CAG's initiative announcement, welcoming firms maintaining access to cash and noting that the government previously consulted on legislating to protect long-term access to cash. Before any such regulation, the FCA and PSR will monitor access to cash, as well as the development of CAG's initiative.

BoE: annual report on supervision of financial market infrastructures

On 14 December 2021, the BoE published its 2021 annual report on its supervision of financial market infrastructures (FMIs), from the period of 4 December 2020 to 14 December 2021. The report includes a consideration of the following future priorities:

• Delivering robust supervision of FMIs and targeted enhancements to supervisory frameworks: the BoE will promote the financial and operational resilience of FMIs, for example by developing its approach to supervision and consulting on proposed expectations and policies on outsourcing.
• Shaping the UK's response to payments innovations: the BoE will ensure that payments infrastructure is designed to promote the resilience of the wider financial system, as well as that of individual FMIs.
• Enhancing FMI resilience and recovery: the BoE will conclude its first supervisory stress test of the UKs CCPs in summer 2022 and will also engage with HM Treasury in relation to potential further powers as part of the Future Regulatory Framework Review.
• Continuing support of international workstreams on payments and FMIs: the BoE will work on the next stage of the FSB's cross-border payments roadmap, share the regulatory landscape in relation to stablecoins, and will monitor the implementation of the Principles for Financial Market Infrastructure and climate-related risks to FMI.

PSR: consultation of implementation of Confirmation of Payee

On 2 December 2021, the Payment Systems Regulator (PSR) published a consultation paper on the wider implementation of the Confirmation of Payee (CoP) service. Following Phase 1 of the implementation of CoP, where the PSR directed the UK's largest banking groups to introduce CoP, the PCR now sets out steps for further implementation of CoP through Phase 2.

Pay.UK has worked with the Open Banking Implementation Entity (OBIE) to develop the technical environment and rules for payment service providers (PSPs). PSPs that now join CoP will operate in Phase 2, whereas existing PSPs operate in Phase 1 (known as dual running). As Pay.UK and Phase 1 PSPs aim to end dual running, the PSR proposes the following to ensure a co-ordinated manner:

• Requiring relevant PSPs to regularly report to Pay.UK on their progress in migrating CoP traffic to the Phase 2 environment by 1 April 2022.
• Requiring Pay.UK to terminate the terms and conditions for participating in Phase 1, retiring Phase 1 by 30 April 2022.
• Revoking Phase 1 on 30 April 2022.
• Requiring relevant PSPs to complete enhanced reporting to both Pay.UK and the PSR if they are at risk of failing to migrate by 1 April 2022.

The consultation period closed on 17 December and, if it decides to, the PSR will proceed with the proposed Direction in February 2022.

Limitation and unfair relationships under the Consumer Credit Act

In Smith v Royal Bank of Scotland plc, the Court of Appeal considered the legal time limit for lodging claims for missold payment protection insurance (PPI) against credit card providers. The Court of Appeal has considered two appeals arising from undisclosed commission for PPI policies taken out at the same time as credit card agreements from the Royal Bank of Scotland (RBS).

The appeals concern how the Consumer Credit Act (CCA) applies when the PPI policy was ended before amendments were made relating to unfair credit relationships. RBS appealed against two court rulings to allow the Court of Appeal to provide authoritative guidance as numerous PPI cases were before judges in lower courts. The Court of Appeal's judgment includes:

• The transitional provisions in the CCA make no difference to the fairness assessment in the CCA.
• The Court is entitled to take all relevant matters into account whenever they took place, when assessing the fairness of the relationship between the creditor and debtor. This includes a related agreement, such as a PPI agreement, even if such an agreement ended before the time when the unfairness of the relationship is being assessed.
• An unfair credit agreement can become fair again once the missold PPI policy ended.
• Potential claimants have six years from the end of the PPI policy to make a claim.

As both claims in the appeals were brought more than six years after the limitation period began, RBS' appeals were allowed, and the respondents'' claims were time-barred under the Limitation Act 1980.

Directive on credit servicers and credit purchasers

On 8 December 2021, the Non-Performing Loans (NPLs) Directive was published in the Official Journal of the European Union, setting out a framework and requirements for credit services and credit purchasers. The Directive entered into force on 28 December 2021, the 20th day following its publication in the Official Journal. The European Parliament and Council of the EU adopted the Directive in October 2021 and November 2021, respectively.

Entities already carrying out credit servicing on 30 December 2023 can continue those activities in their home member state until the earlier of 29 June 2024 or the date on which they obtain an authorisation under the Directive. Member states are required to establish measures to implement the directive by 29 December 2023 and apply those implementation measures from 30 December 2023. 

FCA: mortgage prisoner review

On 29 November 2021, the FCA published its mortgage prisoner review. The FCA includes the findings of its analysis on the characteristics of borrowers with mortgages in closed books with inactive firms and the number (and characteristics) of mortgage prisoners. The FCA estimates that 47,000 of 195,000 of these borrowers are mortgage prisoners. Mortgage prisoners are borrowers who cannot switch to a new mortgage deal, despite being up to date with their mortgage payments and could potentially benefit from switching.

The FCA requires solutions for mortgage prisoners which encourage lenders to help those who are close to their criteria or help borrowers improve their switching chances. The FCA state states that it will maintain its focus on the market areas where the greatest harms are identified which could impact mortgage prisoners, and other borrowers. On the webpage for the review, HM Treasury states that the review's findings will determine if there are any more solutions for affected borrowers.

Rules on general insurance pricing practices come into force

On 30 December 2021, the FCA spotlighted its new package of rules relating to general insurance pricing practices, which came into force on 1 January 2022.  Insurers are now prohibited from quoting customers a higher price for renewing their home or motor insurance than they would pay if they were a new customer.  The FCA's policy statements on general insurance practices can be found here.

Statement on changes to banking reporting requirements

On 15 December 2021, the PRA published a statement explaining how changes to banking regulatory reporting requirements have been implemented in the CRR reporting modules.  These requirements relate to aspects of Basel III standards that were not implemented in the EU before the end of the transition period and so had not been implemented in the UK.

Prudential framework for non-systemic banks and building societies: summary of responses 

On 15 December 2021, the PRA published its Feedback Statement (FS1/21), which summaries responses it received to its Discussion Paper (DP 1/21) exploring options for developing a "strong and simple" prudential framework for PRA-regulated banks and building societies that are neither systemically active nor internationally active.   FS1/21 aims to generate further discussion about the shape of such a framework.  The PRA welcomes comments or enquiries on the Feedback Statement and has said that it will publish further consultation papers during 2022 and/or 2023.

Ombudsman news and COVID-19 business interruption insurance claims

On 15 December 2021, the Financial Ombudsman Service (FOS) published issue 167 of its ombudsman news.  The edition features the webpage that the FOS has produced that explains its approach to the complaints about insurance claims for business interruption insurance caused by COVID-19 "at the premises." 

PRA statement on returning to setting Pillar 2A requirements as Risk Weighted Asset percentage

On 8 December 2021, the PRA confirmed that it no longer considered it necessary to set Pillar 2A requirements as a nominal amount rather than a percentage of total Risk Weighted Assets, a step that it had introduced in May 2020 to respond to the economic shock from COVID-19.  In 2022, all firms will therefore be set a Pillar 2A as a variable amount (except of some fixed add-ons, such as pension risk).

FCA statement on changes to LIBOR as of end-2021

On 4 January 2022, the FCA published a statement on LIBOR transition. It confirmed that the publication of 24 LIBOR settings had ended, and that the 6 most widely used sterling and Japanese yen settings are now being published using a changed methodology in accordance with the finalised Notice made under the UK Benchmarks Regulation. The FCA also notes that it has published a Notice allowing the use of these synthetic rates in all legacy contracts except cleared derivatives. Synthetic yen LIBOR will cease at the end of 2022. The availability of synthetic sterling LIBOR is not guaranteed beyond the end of 2022. The FCA therefore states that firms' efforts to transition away from it should continue. The FCA reminds market participants that new use of synthetic LIBOR is banned.

Supervisory review of global equity finance businesses

On 10 December 2021, the PRA and the FCA published a joint Dear CEO letter to selected firms regarding the supervisory review of global equity finance businesses. The letter is in light of the default of Archegos Capital Management family office in March 2021. This resulted in over $10 billion of reported losses across multiple firms. The letter notes that the regulators together with other global regulators have reviewed and assessed firms' equity finance businesses, including for those which were counterparties to Archegos, focusing particularly on counterparty risk management. An Annex to the letter sets out a number of significant cross-firm deficiencies that were identified, which are grouped around:

• Business strategy and organisation.
• Onboarding and reputational risk.
• Financial risk management controls and governance.
• Liquidation and close-out.

The regulators expect the relevant firms to undertake a systemic review of their equity finance business and risk management practices and controls benchmarked against the findings set out in the letter. Findings should be reported to the PRA and FCA together with detailed remediation plans (where relevant) by the end of Q1 2022.

FCA statement on extension of PRIIPs exemption for UCITS funds

On 29 December 2021, the FCA published a statement on the extension of the UCITS exemption in the UK PRIIPs Regulation by 5 years, from 31 December 2021 to 31 December 2026.   The extension was set out in the Financial Services Act 2021 and means that UCITS funds offered to UK retail investors can continue to supply either a PRIIPs key information document (PRIIPs KID) or a UCITS key investor information document.

The FCA intends to make consequential amendments to the UK PRIIPs Technical Standards and related Handbook guidance to reflect the extension.  The FCA's statement confirms that until amendments to the Regulatory Technical Standards and Handbook guidance take effect, it does not propose to take enforcement action for breach of the requirement to provide a PRIIPs KID if a UCITS key investor information document or a non-UCITS retail schemes key investor investment document is provided.

Fines: Metro Bank, Standard Chartered Bank, HSBC Bank

On 22 December 2021, the PRA issued a final notice to Metro Bank fining it £5,376,000 for breaches of the PRA's fundamental rules 2 and 6 during the period between 13 May 2016 and 23 January 2019.  The financial penalty was reduced by 30% as the firm agreed to settle during the discount stage of the PRA's investigation.  The PRA found that the firm had failed to take sufficient care to ensure that it complied with its COREP reporting obligations and failed to organise and control its affairs responsibly and effectively to be able to comply with its COREP reporting requirements.

On 20 December 2021, the PRA published a final notice (dated 17 December 2021) to Standard Chartered Bank fining it £46,550,000 for breaches of the PRA's fundamental rules 6 and 7 during the period from 25 October 2017 and 3 June 2019.  As the firm agreed to settle during the discount stage of the PRA's investigation, the financial penalty was reduced by 30%.  The PRA found that there had been inadequacies in the firm's regulatory reporting governance and controls relating to a liquidity expectation that the PRA had asked the firm to put in place and that the firm had failed to be open and co-operative with the PRA concerning a potential error in its reporting of the relevant metric.

On 17 December 2021, the FCA published a decision notice (dated 14 December 2021) to HSBC Bank plc fining it £63,496,800 for failures in its AML processes between 31 March 2010 and 21 March 2018.  As the firm agreed to resolve the matter, it qualified for a 30% discount under the FCA's executive settlement procedures.  The FCA found that the firm had failed to comply with regulation 20(1)(a) and (f) of the Money Laundering Regulations 2007 (SI 2007/2157) (MLR 2007) (the relevant legislation then in force), which relate to customer due diligence measures and ongoing monitoring, and the monitoring and management of compliance with, and the internal communication of, such policies and procedures.  

FCA letter to Treasury Committee on the independent review into IRHP redress scheme

On 14 December, the House of Commons Treasury Committee published a letter from Charles Randell, the Chair of the FCA, summarising the FCA's response to the publication of John Swift QC's independent review into the implementation and operation of the redress scheme established for customers who were missold interest rate hedging products (IRHP).  The FCA has accepted most of the recommendations contained in the review and acknowledges certain "shortcomings in process and governance."  Randell emphasises that the regulator is a "different organisation" to the one assessed in the review and that further improvements are planned.

JMLSG guidance changes

The Joint Money Laundering Steering Group (JMLSG) has released the following documents:

• A consultation document published on 16 December 2021: the JMLSG is proposing to insert additional guidance on syndicated lending relating to the completion of customer due diligence by lenders.  Comments on the proposal must be made by 17 January 2022.
• On 20 December 2021, it published Revisions to Chapter 5.7 (Monitoring customer activity) in Part I of its anti-money laundering and counter-terrorist finance guidance for the financial services sector.  The changes were consulted on in September 2021.  The text has been submitted to HM Treasury for ministerial approval.

Anti-corruption strategy: year 3 update

On 16 December 2021, the Home Office published the 3rd annual update of the UK anti-corruption strategy 2017 to 2022. It highlights the progress made against the strategy's commitments in 2020, which was largely occupied with the COVID-19 pandemic.

FCA response to Treasury Committee about the FCA's case against NatWest

On 14 December 2021, the House of Commons Treasury Committee published a letter (dated 13 December) from Nikhil Rathi, the Chief Executive of the FCA, which contained information regarding the FCA's case against National Westminster Bank plc (NatWest) under the MLR 2007.  Mr Rathi explains the complexities and challenges involved in the case and why the FCA decided to pursue a criminal prosecution rather than a civil or regulatory action.  Mr Rathi notes that AML enforcement remains a strategic priority for the FCA and that a "number of further cases" involving misconduct under the MLR and other AML breaches are being considered, some of which are at a "very advanced stage." 

According to the FCA's infographic (see Item 1 of this update), its court action to resolve business interruption insurance claims resulted in how much being paid to businesses?

• £4.5 billion
• £950 million
• £3.7 billion
• £1.2 billion

The answer to last month's trivia: the total amount of fines issued by the FCA for the calendar year ending 2021 was £239,045,800 as at 12 November 2021. The final total for the calendar year ending 2021 can be accessed here.