TheCityUK recommends improvements to authorisations processes

On 26 January 2023, TheCityUK published a report on how the authorisations processes of the FCA and PRA could be improved having undertaken qualitative and quantitative research with a number of firms.   

While it acknowledges some of the enhancements the regulators have already taken and further commitments they have made, it has identified a number of inefficiencies in the current system and makes nine recommendations grouped under the following headings:

• Adopting a more commercially aware, efficiency-focused mindset.
• Embracing transparency, accountability, and external engagement.
• Enhancing internal coordination, capabilities, and case management.

FCA updates on Consumer Duty 

On 25 January 2023, the FCA published its review of a sample of firms' implementation plans. The FCA selected around 60 of the biggest firms with a dedicated FCA supervision team (fixed firms), which are the firms that pose the greatest risk to consumers and markets. While this exercise consisted largely of a desktop review, in some cases the FCA used its regular supervisory engagement to ask additional questions.

Overall, the FCA found that many of the plans it reviewed demonstrated that firms have:

• recognised and adopted the shift to focus on consumer outcomes
• set up extensive programmes of work to embed the Duty
• engaged with the substantive requirements, including the four outcome areas (products and services, price and value, consumer understanding, consumer support).

However, its review also identified that some firms may not be as well advanced in their planning for when the Duty comes into force, which creates a risk that they will not meet the implementation deadlines or may find it difficult to properly embed the Duty across their business.  

The FCA has drawn attention to three areas that firms should focus on in the remaining period until the first implementation date of 31 July 2023 (which is when the Duty comes into force for new and existing products or services): 

• Effective prioritisation: Firms should ensure they are prioritising appropriately, concentrating on those areas that will impact most on outcomes for consumers.
• Embedding the substantive requirements: Firms should carefully consider the substantive requirements of the Duty. When conducting their review of products and services, communications and customer journeys they should ensure they identify what changes are required to satisfy the new regime as set out in the FCA's final rules and guidance.
• Collaborating with other firms: In order to be ready on time, firms need to work and share information with their commercial partners in the distribution chain. The FCA has found that some firms need to speed up this process.

As well as continuing its proactive engagement with fixed firms and board champions at some larger firms, the FCA will shortly be contacting firms to highlight its key expectations regarding the implementation of the Duty and some of the main risks and consumer harms that firms should address. In addition, it will be surveying a sample of firms to help it understand how they are progressing in their implementation of the Duty and will undertake targeted engagement with smaller firms. Between February and June 2023, it will be hosting a series of events for retail investment and mortgage firms.

The FCA has also:

• updated the "Requirements for firms seeking authorisation section" of its Consumer Duty information webpage for firms. It has given a non-exhaustive list of the policies, processes and management information a firm should provide the FCA
• published three episodes in a series of podcasts on the four outcome rules in the Consumer Duty. 

European Commission speech on proposals for 2023

On 24 January 2023 the European Commission published a speech given by Mairead McGuinness, European Commissioner for Financial Services, Financial Stability and Capital Markets Union, in which she referred to the following initiatives, which will be progressed in 2023:

• The introduction of the bank crisis management and deposit insurance framework.
• The assessment of the revised Payment Services Directive and the launch of an open finance framework. 
• A regulation on the key principles of a digital euro.
• The introduction of a new Retail Investment Strategy. The Commission is taking an "ambitious approach" and will be considering a number of areas including how financial products are distributed to retail investors, the information consumers are provided, the role of sustainable investing, the role of financial advice and how to deal with inducements.

FCA speech on AI regulatory initiatives

On 24 January 2023, the FCA published a speech given by Jessica Rusu, FCA Chief Data, Information and Intelligence Officer, at the Alan Turing Institute, on building better foundations in artificial intelligence (AI), which:

• Set out the FCA’s work in this area including a recently published survey on machine learning in UK financial services, a forthcoming Feedback Statement on its Call for Input on Synthetic Data and the launch of a Synthetic Data Expert Group in the next few weeks.
• Highlighted the role of collaboration and innovation in AI regulation.
• Emphasised the benefits of AI and the challenges it can pose for firms and regulators, particularly its potential to increase existing risks to consumers, the safety and soundness of firms, market integrity and financial stability.
• Underlined the importance of effective governance, risk management and a healthy organisational culture in firms' use of AI.

Highlights of Treasury Select Committee 10 January 2023  

On 10 January 2023, the Treasury Select Committee held its first 2023 session. Although the session was part of its Crypto Inquiry, it began with a consideration of the Edinburgh Reforms. In particular, the Committee heard about the government's proposed review of the Senior Managers regime, which will involve a call for evidence. Andrew Griffith, Economic Secretary to the Treasury, explained that there was "broad consensus about the validity of having a regime" and indicated that the government wants to ensure that the application of the regime is proportionate and not burdensome for smaller firms.

PRA and FCA consult on 2023/24 FSCS management expenses levy limit

On 12 January 2023, the PRA and FCA published a consultation paper on the 2023/24 management expenses levy limit (MELL) for the Financial Services Compensation Scheme (FSCS). 

The proposed MELL for 2023/24 is £109.8 million, consisting of a management expenses budget of £99.8 million and an unlevied reserve of £10 million.

The management expenses budget increased because of the increase to the FSCS's proposed spend in the area of investments, and the increase in controllable costs (due to increased staff and communication costs that will support efforts to increase awareness of the FSCS).

The proposed unlevied reserve is lower than the 2022/23 reserve as a result of the COVID-19 pandemic causing challenges in accurately predicting claims volumes.

Subject to responses to the consultation (which must be submitted by 9 February 2023), the PRA will issue a policy statement and the FCA will issue a Handbook Notice in order that the final rules can commence on 1 April 2023, the beginning of the FSCS’s financial year.

Financial Services and Markets Bill 2022-23: second reading in House of Lords 

The Financial Services and Markets Bill 2022-23 (FSM Bill) had its second reading in the House of Lords on 10 January 2023 and the first day of its committee stage in the House of Lords on 26 January 2023.

European Commission call for advice from ESAs on designation criteria and fees for DORA oversight framework

On 4 January 2023, the EBA published a letter and provisional call for advice dated 21 December 2022 from the European Commission, seeking technical advice from the ESAs on the delegated acts to be adopted under the following articles of the Regulation on digital operational resilience for the financial sector (DORA):

• Article 31(6) (the criteria the ESAs must consider when determining the critical nature of ICT third-party service providers). 
• Article 43(2) (the fees levied on critical ICT third-party providers (CTPPs)).

The ESAs must respond by 30 September 2023.

Government consults on future regulatory regime for cryptoassets and confirms its approach to cryptoasset financial promotions

On 1 February 2023, HM Treasury published a consultation paper on how it proposes to regulate cryptoasset activities.  It also confirmed its approach to cryptoasset financial promotions.  Please see our more detailed article on the announcements. 

FCA feedback on cryptoasset AML/CTF regime

On 25 January 2023, the FCA provided feedback on the applications it has received in its capacity as the anti-money laundering (AML) and counter-terrorist financing (CTF) supervisor of UK cryptoasset businesses under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLRs).

The FCA states that is has received 300 applications for registration under the MLRs since it took up its role in January 2020. As of January 2023, it has determined over 260 of these, which can be broken down as follows:

• 41 have been approved and registered (15%).
• 195 were either refused or withdrawn (74%).
• 29 were rejected (11%).

The FCA has organised its feedback around the key stages of the application process:

• Before preparing an application.
• When preparing an application.
• When submitting an application.
• While the FCA is assessing the application.

One of the core themes from the FCA’s feedback is the importance of providing the FCA with all relevant information when submitting an application. In particular, the FCA notes that:

• Business plans should include details of the applicant’s business model, roles and responsibilities of business partners, sources of liquidity and detailed customer journey and flow-of-funds charts.
• Applicants should provide a comprehensive and accurate description of their products and services, which where relevant should include details of any dependencies on external ecosystems for liquidity, custodian services and underlying smart contracts/DeFi implementations. 
• Applicants should show an in-depth understanding of the risks arising out of dealing in cryptoasssets and design a business wide risk assessment (BWRA), which is bespoke to its business model. This should address AML/CTF risks and, if applicable, any proliferation financing risks.
• Applicants should have policies, systems and controls to manage and mitigate the risks identified in the BWRA. If the applicant believes that certain standard controls do not apply, they should be prepared to explain how they reached this decision. The FCA will not approve an application where the applicant an underdeveloped AML framework or a weak governance structure. Applicants should not submit generic or off-the-shelf policies and procedures that are not aligned with their business model or have not been appropriately tailored to their proposed cryptoasset activities.

While the FCA’s feedback is not exhaustive and must be read alongside the MLRs, relevant guidance and other information on the FCA’s website, it should assist current and potential cryptoasset applicants. 

Five associations form new UK Forum for Digital Currencies

On 11 January 2023, UK Finance, the City of London Corporation, Digital Pound Foundation, The Payments Association and TheCityUK formed a new UK Forum for Digital Currencies (UK FDC) and published a joint statement announcing that the UK FDC formed to develop a safe crypto regulation, by:

• Advocating for the development of a safe and innovative regulatory framework for digital currencies.
• Supporting the government’s plan to make the UK a global cryptoasset technology hub.
• Developing the right long-term incentives for stakeholders.
• Supporting the process and approach set up by HM Treasury and the Bank of England (BoE) regarding a retail central bank digital currency.

UNIDROIT consults on digital assets and private law principles

On 10 January 2023, UNIDROIT, announced a consultation on its Draft Principles and Commentary on Digital Assets and Private Law. The aim of the 19 principles is to ensure all EU states adopt legislation consistent with the principles, to increase uniformity of digital transactions domestically and internationally. The principles cover:

• The definition of digital asset and the concept of transfer.
• Methods to establish proprietary law issues in relation to digital assets.
• The right of innocent acquirers and of transferees.
• The concept of custody where a trading platform facilitates trades of digital assets using a hosted wallet.
• Security over digital assets.

Responses to the consultation will close on 20 February 2023. The Law Commission's consultation on digital assets paper closed on 4 November 2022 – please see our September 2022 update for more details.

CMA announces completion of Open Banking implementation roadmap

On 12 January 2023, the Competition and Markets Authority (CMA), published a decision confirming the completion of the Roadmap of the Open Banking implementation.

Open Banking was one of a number of remedies set out in the Retail Banking Market Investigation Order 2017 (Order), following the retail banking market investigation.  The Order required the nine largest UK retail banking providers to establish the Open Banking Implementation Entity (OBIE), tasked with opening customer data using secure data protocols. So far six of the largest banks have met the requirements and OBIE will ensure that they continue to do so as well as ensuring the three remaining banks that have not implemented it also do so. 

The Joint Regulatory Oversight Committee (JROC) stated that it will take Open Banking forward by setting out its reforms on the design of Open Banking entity in the first quarter of 2023. See our January 2023 for more on JROC's statement.

SBTi publishes guidance on overlap between science-based targets and TCFD reporting

On 18 January 2023, the Science Based Targets Initiative (SBTi) published its SBTi Financial Sector and Climate-related Financial Disclosures (TCFD) Reporting Guidance to:

• Help investors navigate the overlaps between its SBTi Financial Institutions framework and the Task Force on Climate-related Financial Disclosures (TCFD) recommendations.
• Provide financial institutions with methods of co-ordinating science-based target setting with preparing climate-related disclosures that are in line with their net zero transition plans.

ESMA publishes SMSG advice on greenwashing

On 19 January 2023, the European Securities and Markets Authority (ESMA) published the advice it received from its Securities and Markets Stakeholder Group (SMSG) on the European Supervisory Authorities’ Call for Evidence on greenwashing. In summary:

• The ESAs should create a clear definition and scope of greenwashing, which addresses materiality.
• It is problematic for firms to choose not to claim ESG features in order to escape additional regulation and legal risks, a practice referred to as "green-bleaching.".
• ESAs should create an indicative list of practices that amount to greenwashing.
• Claims relating to ESG features in legal or commercial information should be aligned with true product characteristics.
• There should be a distinction between how unintentional mistakes or changes in data are treated compared to misrepresentation resulting from intent or gross negligence, with the former not necessarily being considered greenwashing.
• The ESAs should recognise that sustainable finance is dependent on an "ecosystem" of ESG solutions.
• Clear explanations of what products do and do not do are required to better manage investor expectation.

FinDatEx publishes European ESG Template V1.1.1

On 18 January 2023, FinDatEx published the European ESG Template (EET) Version 1.1.1, which will replace V1.0 and V1.1 from 30 April 2023. The updated template includes supplementary data fields required to reflect amendments to the Sustainable Finance Disclosure Regulation regulatory technical standards relating to pre-contractual, periodic and website disclosure on investments in fossil gas and nuclear.

EBA peer review report on authorisation under PSD2

On 11 January 2022, the EBA published a report on its peer review on how competent authorities have implemented the EBA’s guidelines on authorisation of payment institutions and e-money institutions under the revised Payment Services Directive (PSD2).

The EBA found that:

• Some authorities did not implement those aspects of the guidelines relating to obtaining the full set of information from applicants.
• There are differences in authorities’ practices when assessing information such as business plans, applicants’ governance arrangements and internal control mechanisms. 
• There are differences in compliance with the “local substance” requirement.

The report contains follow-up measures for specific authorities, the implementation of which the EBA intends to review in its 2025 follow-up peer review. In addition, the EBA sets out recommendations addressed to the European Commission in the context of its ongoing review of PSD2. The report also recommends that in any future review of the guidelines, the EBA should provide more detailed guidance on how the proportionality principle should be applied in assessing the suitability of shareholders that have qualifying holdings.

HM Treasury Review and Call for Evidence on Payment Services Regulations

On 13 January 2023, HM Treasury published a Review and Call for Evidence on the Payment Services Regulations 2017, which will close for comments on 7 April 2023. For more detail, please see here. 

FCA renews confirmation of Radiocentre's guidance on motor finance radio promotions

On 12 January 2023, the FCA updated its webpage on industry guidance, to reflect its renewal of the Radiocentre’s guidance on motor finance radio promotions. The FCA’s confirmation of this guidance is now valid until 13 January 2026.

ECON votes to adopt draft reports on CRR III Regulation and CRD VI Directive 

On 24 January 2023, the European Parliament's Economic and Monetary Affairs Committee (ECON) published a press release announcing the adoption of draft reports on the European Commission's legislative proposals for the CRR III Regulation and the CRD VI Directive. ECON proposes changes to the proposals relating to capital requirements, sustainable finance, cryptoassets, governance and third country branches.

PRA Dear CEO letter on 2023 priorities for supervising UK deposit-takers

On 10 January 2023, the PRA published a Dear CEO letter sent to UK deposit-takers setting out its supervisory priorities: 

• Credit risk: the PRA’s assessment of firms’ credit risk management will include higher risk areas such as retail credit card portfolios and unsecured personal loans, leveraged lending, commercial real estate, buy-to-let, and lending to SMEs. Firms should expect increased engagement with the PRA. This includes targeted requests for enhanced data and analysis.er risk areas such as retail credit card portfolios and unsecured personal loans. 
• Financial resilience: The impact of evolving retail and wholesale funding conditions are particular areas of focus for the PRA. It expects firms to proactively evaluate the ramifications of the changing economic outlook on the sustainability of their business models.
• Operational risk and resilience: This remains a key priority for the PRA, which will assess firms against its Supervisory Statement 1/21 – 'Operational resilience: Impact tolerances for important business services'. The PRA reminds firms that by now they should have identified and mapped their important business services, set impact tolerances for these, and started a programme of scenario testing. In the coming year, the PRA will assess whether firms are able to remain within their impact tolerance for each important business service in the event there is a severe but plausible disruption to their operations. The PRA has noticed a significant increase in the outsourcing of services, particularly to the cloud, and notes that it expects firms to manage this accordingly. Firms should meet the PRA's expectations in Supervisory Statement 2/21 – 'Outsourcing and third party risk management'. The PRA welcomes feedback to its Discussion Paper 3/22 – 'Operational resilience: Critical third parties to the UK financial sector'.  
• Model risk: Firms must comply with the model risk management principles for banks, which are due to be published in H1 2023.
• Data: the PRA will be engaging with firms in 2023 on which data it collects as part of the Banking Data Review.
• The PRA’s expectations for firms regarding financial risks arising out of climate change, diversity, equity and inclusion, and resolution.  

The PRA will update its published supervisory approach documents during the first half of 2023.

FCA consults on insurance guidance for supporting customers in financial difficulty

On 11 January 2023, the FCA published a consultation paper on insurance guidance for supporting customers in financial difficulty, which will apply to firms subject to the Insurance Conduct of Business Sourcebook (ICOBS) and the retail and commercial customers of non-investment policies. It will apply to all customers in financial difficulty.    

The goals of the guidance are to:

• Help insurance customers.
• Help firms in providing good support and protection to customers in financial difficulty, which is required under the consumer duty.
• To form a new section in ICOBS (ICOBS 2.7).

The deadline for comments is 11 March 2023, after which the FCA plans to publish the policy statement in Q2 of 2023 and bring it into force on 31 July 2023.

FCA portfolio letter for wholesale brokers

On 11 January 2023, the FCA published a portfolio letter on its supervisory strategy for wholesale brokers, covering the following four areas:

• Financial resilience: the FCA identified gaps in firms’ management of their liquidity risk. Firms should review their liquidity under the Investment Firms Prudential Regime (IFPR) and make sure their assessment is in line with the risks they face. The FCA will be carrying out targeted work in this area.
• Remuneration: Boards and CEOs should ensure their renumeration arrangements comply with IFPR. In 2023, the FCA will focus on making sure firms apply deferrals, malus and clawback when remunerating relevant staff.
• Governance and culture: The Senior Managers and Certification Regime (SMCR) should remain central to how firms make good decisions and ensure individuals are accountable.  Firms should understand the potential for relatively junior employees to create a significant risk of harm to the firm, its clients and the market. To avoid conduct risk, the FCA reminds firms to take into account regulatory references of certification employees and consider ways to mitigate risk with any individuals where adverse information is revealed during the hiring process.
• Control functions: Firms should continue to develop safeguards to mitigate financial crime and market abuse risks and should ensure their risk management and control functions are properly resourced and are able to have Board level influence.

Data Reporting Services Providers

On 11 January 2023, the FCA published issue 72 of its Market Watch, which is devoted to approved publication arrangements and approved reporting mechanisms referred to collectively as data reporting services providers.

FCA updates to securitisation webpage to include information on powers in FSM Bill

On 6 January 2023, the FCA added a paragraph to its securitisation webpage, in which it shared links to HMT's Policy Note on how it may use powers to be introduced by the FSM Bill and an illustrative draft Statutory Instrument, published as part of the Edinburgh Reforms.

ECON adopts report on proposed Directive to amend AIFMD and UCITS Directive

On 24 January 2023, following an almost unanimous vote, the Economic and Monetary Affairs Committee of the European Parliament (ECON) approved its draft report on proposed amendments to AIFMD and the UCITS Directive relating to delegation, financial stability, loan origination, fees and costs, sustainability and depositary services. For further details on ECON’s draft report, please see the Funds and asset management section of our June 2022 update.

ECON has also voted to enter into institutional negotiations with the Council of the EU. The Council’s general approach on the Directive was agreed in June 2022 – see our July 2022 update.   

Trialogue negotiations are expected to begin in February or March 2023 at the earliest.

European Parliament to consider proposed Regulation amending ELTIF Regulation 

On 16 November 2022, the European Parliament updated its procedure file on the proposed Regulation amending the Regulation on European long-term investment funds, which the Parliament will consider during its plenary session from 13 January to 16 February 2023.

FCA starts criminal proceedings for insider dealing and money laundering 

On 25 January 2023, the FCA announced that it had begun criminal proceedings against five individuals for conspiracy to commit insider dealing and money laundering. The FCA alleges that one of the individuals used confidential information accessed as an analyst in their former role at an asset manager to trade in 49 companies through accounts held by the other defendants. The FCA notes that the defendants used contracts for differences in each of the companies, betting that the value of shares would decrease following announcements regarding the companies. This resulted in profits of around £1.5 million. The five individuals are also charged with money laundering offences relating to over 170 cash deposits totalling approximately £200,000.

The defendants will appear in Southwark Crown Court on 22 February 2023 and have all indicated not guilty pleas.

FCA fines bank for failures in its AML systems and controls

On 10 January 2023, the FCA published its final notice to Guaranty Trust Bank (UK) Ltd (GT Bank), fining it £7.6 million (after qualifying for a 30% early settlement discount) for failures in its AML systems and controls.

GT Bank was found to be in breach of Principle 3 of the FCA’s Principles for Businesses (which relates to management and control) and SYSC 6.1.1R (the requirement that a firm must maintain adequate policy and procedures) and SYSC 6.3.1R (the requirement to maintain a compliance function) by:

• Not taking appropriate remedial action to fix weaknesses in its AML systems and controls, which compliance and internal audit functions, an external consultant and the FCA had identified.
• • Not carrying out adequate customer risk assessments as well as not undertaking sufficient, client due diligence when establishing a business relationship with a customer and enhanced due diligence on higher risk customers. 

In particular, it did not:

• Establish, verify and evidence the source of funds and source of wealth for higher risk customers. 
• Perform ongoing monitoring of customer relationships. 
• Implement a culture where customer facing teams effectively had regard to the money laundering risks posed by prospective and existing customers. 

NCA Suspicious Activity Reports Annual Report for 2022 

On 24 January 2023, the National Crime Agency (NCA) published its Suspicious Activity Reports (SARs) Annual Report 2022, and flagged that in 2022: 

• 901,255 SARs were received and processed.  
• £305.7 million was denied to suspected criminals as a result of Defence Against Money Laundering requests. 
• SARs supported the NCA’s new Combatting Kleptocracy Cell (CKC) set up to investigate criminal sanctions evasion and high-end money laundering linked to sanctioned individuals and associated entities.  
• The UK Financial Intelligence Unit, which receives and assesses SARs on behalf of the NCA, has established a dedicated team within the CKC unit.

ESAs’ Joint Committee thematic report on national financial education initiatives on digitalisation

On 12 January 2023, the ESAs published a thematic report on national financial education initiatives on digitalisation, with a focus on cybersecurity, scams and fraud. To achieve increase customers’ financial literacy post the COVID-19 pandemic, national competent authorities (NCAs) should:

• Identify the specific needs of various target groups.
• Develop appropriate solutions for the target groups.
• Actively evaluate the improvements on financial literacy that their initiatives create.

The answer to last month’s question: 31 policy measures were announced in the Edinburgh Reforms.

What was the total amount of FCA fines for the calendar year ending 2022?

• £215,834,156
• £567,765,219.95 
• £192,570,018
• £392,303,087