FCA Business Plan and Mission 18 April 2017
The FCA’s Mission aims to give more clarity about prioritisation of interventions in financial markets.
It sets out its overarching Mission as being “to serve the public interest through the objectives given to it by Parliament”. The paper then explains: how this will impact on the strategic decisions the FCA takes; the intervention framework behind those decisions; the rationale for its work; and how it chooses the right tools for the job. Much of what is said will be familiar but firms will be pleased to see that the FCA is also looking to enhance how it operates and improve transparency, particularly in potentially contentious situations. Further publications detailing the impact of the FCA’s Mission on its main activities of authorising and supervising firms, taking enforcement action and encouraging competition and influencing market design can be expected over the next year.
The Business Plan 2017/18 gives details of specific areas the FCA is prioritising for the next year in terms of both cross-sectoral issues and specific priorities for the seven sectors it regulates.
- Supporting the UK government’s preparations for the UK’s withdrawal from the EU.
- Reviewing the implementation of the SMCR in banks and consulting on its extension to all regulated firms.
- A strategic review of retail banking business models.
The FCA identifies in its Business Plan six cross-sector priorities:
- Financial crime and AML.
- Culture and governance.
- Promoting competition and innovation.
- Technological change and resilience.
- Treatment of existing customers.
- Vulnerable consumers and access to financial services.
The FCA also sets out a number of planned activities in relation to each of the seven sectors into which it has split the regulated financial services market. These include:
- Wholesale financial markets: implementing MiFID II; follow- up work on the investment and corporate banking market study; preparing for the Benchmark Regulation.
- Investment management: final report on the asset management market study, scrutinising the internal controls of custody banks.
- Pensions and retirement planning: interim report on the retirement outcomes review; outcomes of “wake-up” pack review; discovery work into non- workplace pensions market.
- Retail banking: strategic review of business models; developing PSD2 technical standards and guidance.
- Retail lending: interim report on the mortgage market study; assessing the treatment of mortgage customers at key points; examining the fairness of point of sale charges.
- General insurance and protection: wholesale insurance market study; pricing practices discovery work; IDD implementation.
- Retail investments: FAMR final guidance; investment platform market study; new rules on selling and distributing retail CFDs.
Banking Standards Board
In February 2017, the Banking Standards Board (BSB) published its Statement of Good Practice and Supporting Guidance to set and provide a detailed explanation of the principles of good practice relating to the assessment of fitness and propriety (F&P). F&P is to be judged primarily based upon an individual’s:
- honesty, integrity and reputation;
- competence and capability; and
- financial soundness.
The Statement of Good Practice identifies several situations in which an assessment of an individual’s F&P is required:
- an individual joining a firm or following an internal role change;
- yearly for the reissuing of a certificate;
- in response to a “certification issue”, which calls into question an individual’s F&P; and
- in response to a “certification risk”, which could call into question an individual’s F&P.
Information should be gathered from several sources to determine an individual’s F&P, including through due diligence checks before an individual starts a role, an annual appraisal, vetting and self-declarations.
The Statement emphasises aiming for high industry standards rather than simply meeting minimum requirements. Accordingly it suggests that assessments of F&P should also include evidence of positive affirmation of skills and behaviours, not just lack of negative information, and emphasises the importance of CPD.
Another key principle is the fostering of a culture of openness, challenge and support. This includes encouraging confidence in whistleblowing arrangements and ensuring individuals can properly disclose their own financial information to their employer without fear of judgement or repercussions.
The Supporting Guidance contains an F&P assessment record template which may prove helpful to firms reviewing their existing approach bearing in mind the requirements around regulatory references.
Illiquid assets and open-ended investment funds
DP17/1, February 2017
In February 2017, the FCA released its discussion paper (DP) on illiquid assets and open-ended investment funds. The DP looks at the post-Brexit market, considers existing liquidity management tools fund managers can employ and considers whether new measures are needed.
The FCA chose to examine this in light of the fact that some funds suspended dealing in the uncertain market conditions which followed the referendum in June 2016.
Illiquid assets are defined in the DP as assets that are difficult for a fund manager to buy, sell or value quickly. Examples include unlisted securities, property and infrastructure assets.
The benefits of holding illiquid assets in open-ended funds include that they can produce good medium- to long- term returns and certain illiquid assets such as national infrastructure can benefit the wider economy. However, they also give rise to difficulties – they are not revalued every day, so a fund manager cannot be certain that investors are getting a fair price when selling. There is also the risk of those exiting being favoured over those who hold illiquid assets for a longer term, as the fund manager may need to sell assets to raise the cash to pay these early leavers.
Liquidity management tools
A key aim of the regulation of open- ended funds is to ensure investors can exercise their redemption rights effectively. Liquidity management can help achieve this aim.
The paper highlights several factors to consider when determining a fund’s liquidity. Low levels of cash inevitably make for potentially higher returns, but mean the fund is less well prepared for sudden market changes or an increase in redemption demands. High levels of cash come with reduced liquidity risk, but more modest investment performance.
The DP highlights ways to combat the liquidity risk, such as use of “redemption charges” to encourage medium- to long-term investment and asset valuation measures such as using a fair value pricing adjustment. It is clear that the FCA considers suspending dealing to be a last resort and to be used only after all other options have been discounted.
The DP offers a number of suggestions for improving liquidity management, including:
- preventing retail and professional investors participating in the same fund – it is noted this would require extensive restructuring and some retail-only funds may not be commercially viable;
- active management to avoid one investor acquiring more than a certain proportion of the fund;
- a cap on illiquid assets or minimum amount to be held in cash; and
- rules against high redemption frequency – however, this runs the risk of accumulating multiple orders being executed at a single point.
It is clear that there is no easy solution. The very aim of open- ended funds is for investors to be able to exit quickly if they need to; however, illiquid holdings offer potentially better returns in the longer term. How the balance between these two issues is struck may well be best left to individual fund managers to determine.
Implementation of the Enforcement Review and the Green Report
The regulators published a joint Practice Statement on the Implementation of the Enforcement Review and the Green Report setting out changes they are making to their enforcement decision- making process as a result of recommendations in the Treasury’s Review of enforcement decision- making at the financial services regulators (the Review) and Andrew Green QC’s Report into the FSA’s enforcement actions following the failure of HBOS (the Green Report) as referred to in a previous update.
These changes will have significant implications for all firms that may be subject to FCA and/or PRA investigation, in particular the introduction of a partly contested cases procedure. It is also part of a growing trend (also seen in the FCA’s Business Plan and Mission Statement) towards the regulators being more open about how they will approach enforcement decisions.
Referral decision-making (FCA only)
The Review recommended that the regulators formally consider a full range of regulatory options for referral criteria. The FCA’s response is that its Enforcement Referral Document (ERD) now includes a table setting out all potential subjects and the reasons why a firm or individual is or is not being referred for investigation. As promised, it has also since consulted on providing a set of guiding principles that determine the strategic choices it makes in its Mission Statement. Unsurprisingly both regulators emphasised the importance of keeping a significant amount of discretion in deciding whether a matter should be referred for investigation. A guide to the PRA’s enforcement process is expected later in 2017.
Cooperation between the regulators in investigations (FCA and PRA)
Going forward meetings between both regulators will take place at least quarterly with representatives from supervision and enforcement. Subject representations before the scope of an investigation is changed will not be introduced.
The FCA will amend the Enforcement Guide (EG) to ensure that joint information requests make clear which parts of the request relate to which investigation, in order that subjects can be satisfied that the information sought is within scope.The PRA will formalise this approach in its guide to enforcement processes to be published this year along with proposals to establish an Enforcement Decision Making Committee.
Subjects’ understanding and representations in investigations (FCA and PRA)
The Review and the Green Report recommended that the regulators provide more information to subjects regarding their referral to enforcement for investigation and increase the involvement of supervision to ensure all parties understand the relevant context. Both regulators will ensure that the subject of an investigation is given more information on the basis for its referral to enforcement; explanations for referral will cross-refer to the published referral criteria and more information about the context in which the alleged breaches occurred is promised. Investigators will also provide periodic updates about the progress of investigations and next steps. Internally, the FCA has amended EG to provide that in most cases it will be helpful for the referring area to inform the investigation team of such matters as the firm’s business model and market practice issues.
Settlement (FCA and PRA)
The regulators are interested in considering how best to promote early, constructive engagement between investigators and subjects with a view to encouraging early admissions and settlement. The FCA intends to explore this issue further in its forthcoming penalty policy review and the PRA will do so in a planned review of its settlement policy. Striking a balance between the benefit of concluding matters quickly with the need to understand the full extent of the misconduct is a particular challenge.
Settlement (FCA only)
As to the FCA’s own procedures, in order to improve the effectiveness of stage 1, it has concluded that it will aim to give 28 days’ notice of the beginning of stage 1; and, “where appropriate”, offer a preliminary without prejudice meeting to explain the FCA’s view of the misconduct (including key factual and legal bases). It will not provide a list of all documents received during the investigation or provide those that it has not relied upon.
Partly contested cases
A particular concern the FCA has is that current stage 1 settlements do not benefit from the independent oversight of either the Regulatory Decisions Committee (RDC) or the Upper Tribunal. In the interests of narrowing the issues and encouraging more referrals to the RDC, amendments to DEPP and EG have been made to enable subjects to partially contest decisions via a “focused resolution agreement” (FRA) as follows:
- Penalty only: the FCA and the subject will enter an FRA wherein the subject accepts all facts and breaches arising therefrom but disputes the penalty imposed. The discount for contesting penalty only will be set at 30 per cent.
- Liability and penalty: the FRA will agree all the facts but enable the subject to contest whether they amount to the alleged breaches and the outcome. The subject can obtain up to a 30 per cent discount at the RDC’s discretion.
- Facts, liability and penalty: the FRA will agree on some limited combination of facts, liability and penalty enabling the subject to dispute those areas not agreed (e.g. there is agreement on one allegation but not another). They will be eligible for a discount (of up to 30 per cent) as determined by the RDC and reflecting the extent of agreement.
Full settlement at stage 1 will continue to be possible but stage 2 and stage 3 discounts (of 20 and 10 per cent) will be abolished.
The FCA will also clarify the involvement of its senior management in settlement negotiations and increase the visibility of the project sponsor. It will also regularly review the process (but not the substance) of settled cases, including seeking comments from those who have settled, and the RDC will monitor the effectiveness of changes to the settlement process; this may lead to further consultation.
Contested decision-making (FCA only)
The FCA proposes to make it clearer to subjects under investigation that a person who has received a decision notice and has not previously made any representations to the FCA may nevertheless refer the FCA’s decision to the Upper Tribunal.
An FCA review of the RDC’s work including the settlement process review will be published annually. The FCA also clarifies that, except in particularly complex cases, the same RDC members who issue a decision notice may also decide to issue a warning notice on the basis this will enable hearings to be arranged more swiftly.
All of the above changes are now in force. The most significant of the above changes is the introduction of partly contested referrals to the RDC. The prospect of retaining up to a 30 per cent discount whilst still disputing key issues may well prove attractive to some parties. It will be interesting to see what impact it has on RDC referrals and, in particular, whether it makes any difference to the speed and efficiency in resolving cases.
PPI complaints handling: FCA releases Policy Statement on final rules and guidance
FCA PS17/3, 2 March 2017
Following extensive consultation (CP15/39 and CP16/20) PS 17/3 sets out the FCA’s final rules and guidance on PPI complaints handling, adopting almost all of the proposals consulted upon.
The policy statement provides for a new rule which sets a deadline, 29 August 2019, by which consumers will need to make their PPI complaints or lose the right to have them assessed by firms or the FOS. This rule will come into effect on 29 August 2017 and be coupled with a consumer awareness campaign. The FCA believes that the deadline will give consumers sufficient time to complain. However, it will not apply to future complaints regarding a rejected claim on a PPI policy that is live on the deadline, and rejected for reasons relating to the sale, e.g. exclusions or limitations.
It will recover the £42.2 million cost of the awareness campaign with a new fee rule, whereby 18 firms will each pay a contribution in proportion to the number of reported PPI complaints against them between 1 August 2009 and 31 August 2015.
One of the most controversial issues throughout the consultations was the impact of Plevin v. Paragon Personal Finance Limited  UKSC 61. In this case the Supreme Court ruled that Paragon’s non-disclosure of the large commission payable as part of the premium was unfair within s140A of the Consumer Credit Act 1974. Prior to that, under ICOBs, there was no requirement to disclose commissions and non-disclosure was not considered likely “in and of itself to have been a breach of [the FCA’s] principles”. Nevertheless, the FCA requires firms to identify and write to previously rejected Plevin-type complainants to inform them that they may complain again. The FCA has also decided to include profit share, in addition to commission, in its approach to PPI claims.
To ensure consistency, the policy statement provides rules and guidance on handling complaints, which will be applied by firms and taken into account by the FOS. The FCA emphasises that these are not a rigid set of prescriptions, but a “common framework” to promote consistency, and to ensure the “appropriate assessment and, where appropriate, redress in the light of s140A-B, taking account of Plevin”.
The FCA’s approach is that firms should presume a relationship to be unfair where it was reasonably foreseeable at the point of sale that the profit share or commission would exceed 50 per cent. Premising 50 per cent as a reasonable profit share, the redress due should be the difference between 50 per cent and any amount actually received in excess.
Firms will need to be prepared to(a) identify and contact former complainants, and (b) deal with an increase in the volume of PPI claims. Whilst firms will no doubt be relieved that the end of PPI is finally in sight, they still need to ensure prompt and fair treatment of customers over the next couple of years; the FCA has been very clear that it will continue to proactively and robustly supervise this issue until all complaints have been dealt with.
Supervisory Statement on best execution oversight failings and use of dealing commission
In early March, the FCA issued two Supervisory Statements (the Statements) on oversight of best execution and use of dealing commission.
The best execution Statement reports inadequate oversight of best execution in the market and a failure by firms in general to take on board the findings of the FCA’s 2014 Thematic Review of best execution and conduct a gap analysis. TR14/13 had found (among other things) that most firms had inadequate best execution “management focus, front office business practices or supporting controls”, and that firms did not properly understand the full extent of their best execution monitoring and management obligations.
- While firms have data showing accurate information on execution costs, such data was inconsistent, and some firms could not evidence improvement to their execution process based on such data.
- Generally, more is needed to ensure compliance with MiFID II and, specifically, to meet the obligation to check the fairness of prices proposed to clients when executing orders or taking decisions to deal in OTC products.
- Monitoring was often little more than a tick-box exercise. There were instances where compliance staff were unable to challenge effectively the front office on execution quality, either because they lacked access to relevant data or because they did not use data already available.
The Statement reflects that the changes required in relation to best execution are considered significant and resource-intensive. However, firms would be advised to take action to review their position and address any deficiencies in light of the failings identified as the FCA has warned it will revisit this issue during the course of 2017.
Following visits to 17 firms, the dealing commission Statement also reported deficiencies in particular in relation to research valuation and budgeting. In particular these relate to how firms:
- attribute a price or cost to substantive research if they receive it in return for dealing commission;
- record their assessments to demonstrate they’re meeting COBS 11.6.3R and not spending more of customers’ money than necessary;
- set research budgets, including linking budgets to historical spending rather than properly assessing the amount of research needed.
The FCA also raised concerns that firms with overseas operations and outsourced investment management services had failed to implement controls and oversight structures to ensure those activities comply with the rules.
The FCA has indicated an intention to continue to focus on deal commission arrangements and that they will consider taking further action in relation to breaches of the rules, including referrals for formal investigation.
Final rules on whistleblowing in UK branches of foreign banks
PS17/7, 3 May 2017
In October 2015 both regulators introduced new rules for UK- incorporated banks and insurers requiring particular internal whistleblowing procedures, including setting up a whistleblowing channel open to all, informing employees about the regulators’ whistleblowing services and making a senior individual into a “Whistleblower’s Champion”.
In relation to UK branches of overseas banks (Overseas Branches) these requirements do not have the force of rules but are considered “good practice guidance”. In September 2016 (in CP16/25) the FCA consulted on how whistleblowing requirements might apply to Overseas Branches.
Overseas Branches should be relieved that the FCA’s final rules take a very light-touch approach and only require Overseas Branches to tell their UK-based employees about the FCA and PRA whistleblowing services. The only change to the original proposals is a new piece of guidance (at SYSC 18.3.6A) clarifying that reporting something to the FCA or PRA does not override any obligations to report matters to their home state regulators.
In line with what was originally consulted upon, the final rules also require Overseas Branches to tell staff that they may make use of sister or parent company whistleblowing arrangements where the Branch has a sister or parent company which is subject to the full whistleblowing requirements. However, for many firms this may not be applicable.
Overseas Branches will need to ensure their internal documents comply with the new measures in time for the implementation deadline of 7 September 2017. For Overseas Branches considering whether to adopt a full whistleblowing policy may wish to consider and discuss with their advisers the points made in CP16/25, in particular the potential for conflict with home state laws and difficulties in providing genuine anonymity if the number of employees at the Branch is low.
Final rules and guidance on remuneration for CRD IV firms
PS17/10, 3 May 2017
These final rules and guidance (which took effect immediately) affect firms subject to SYSC 19A, 19C and 19D but also those within their group. The amendments to the Handbook and FCA guidance notes (FG 17/6, 17/7 and 17/8) are made to align the FCA position with the EBA Guidelines on proportionality published in December 2015 (which have been in force since 1 January 2017). In addition new guidance is issued in the form of remuneration FAQs (FG17/5).
Subsidiaries without their own remuneration committee should consider the new guidance at question 4 of the FAQs, which sets out the test for “significance” and clarifies that this must be assessed on a standalone basis.
In relation to long-term incentive plans (LTIPs) the guidance is amended to clarify that it is not sufficient just to assess individual performance at the point of grant with malus adjustment prior to vesting. Firms may need to review how their LTIPs work in practice and ensure that individual performance (as well as that of the firm and business unit) is considered both at the point of grant of an award and in the period prior to vesting, notwithstanding that malus adjustments may also be applied.
Limited licence and limited activity firms will welcome the amendments to paragraph 4.6 of the SYSC 19A and 19D guidance returning it to its former state such that they may disapply fixed/variable ratios under the proportionality rule in appropriate circumstances.
FCA consultation on implementation on PSD2
CP17/11, 13 April 2017
The FCA is consulting on proposals for implementing the Payment Services Regulations 2017 (PSRs). The PSRs will implement the EU Payment Services Directive (PSD2) and are required to be in effect by 13 January 2018.
The FCA proposes to adopt a new Approach Document on the FCA’s approach to interpreting and applying the PSRs. It will replace both the existing Payment Services Approach Document and the E-money Approach Document.
- amendments to the Perimeter Guidance Manual to narrow the commercial agent exclusion such that, to be excluded, the commercial agent must only act for the payer or the payee;
- new requirements authorisation and passporting requirements;
- changes to the rules relating to complaints handling;
- new complaints reporting requirements for payment service providers and a new approach to collecting data on payment services fraud; and
- the regulation of account information providers.
The consultation closed on 8 June 2017 and a policy statement should be released in Q3 2017.
FCA’s implementation of MiFID II
The FCA has been consulting since 2015 on the implementation of MiFID II. Recent progress on this is as follows:
- In March 2017, policy statement PS17/5 was published. This sets out the FCA’s rules covering: (a) secondary trading of financial instruments; (b) commodity position limits; (c) management and reporting for derivative trading contracts; and (d) firm organisation and conduct.
- In May 2017 the FCA issued consultation paper CP17/8. There were two main aspects to this consultation: chapter 2, which covers occupational pension scheme firms; and chapters 3 and 4, which cover changes to DEPP and EG and consequential Handbook amendments. The FCA expects to issue its policy statement on chapters 3 and 4 in June 2017.
PRA updates Supervisory Statement on Internal Governance to reflect MiFID II
SS21/15 UPDATE, 28 April 2017
The PRA’s Supervisory Statement on Internal Governance has been updated to reflect the implementation of MiFID II. Specifically, the reference to MiFID in paragraph 2.26 on record keeping for non-MiFID business has been replaced by a reference to MiFID II. This update followed the publication of PS9/17, “Implementation of MiFID II: Part 2”, and will take effect on 3 January 2018.
The Impact of Macris
Christian Bittar v. The Financial Conduct Authority  UKUT 602 (TCC); Julien Grout v. The Financial Conduct Authority  UKUT 0302 (TCC); Philippe Moryoussef v. FCA (FS/2015/0008 and FS/2015/0009);
Javier Martin-Artajo v. FCA  UKUT 0304 (TCC)
Recent developments in a number of cases against the FCA demonstrate that the significance of the Supreme Court’s judgment in FCA v. Macris, summarised in the previous article is already being felt.
In Mr Bittar’s reference to the Upper Tribunal, he argued that he had been prejudicially identified by the FCA in a Decision Notice and a Final Notice issued to Deutsche Bank for benchmark manipulation. The Upper Tribunal found in Mr Bittar’s favour on the preliminary issue of whether or not he had been identified in the relevant manner in the FCA’s notices, and the FCA’s application for permission to appeal against that decision was stayed pending the decision in Macris. However, in light of the decision in that case, and the Supreme Court’s narrow interpretation of s393 of FSMA, Mr Bittar has now withdrawn his reference.
Similarly, references made to the Upper Tribunal by Mr Moryoussef, former employee of Barclays Bank PLC, and Mr Martin-Artajo, former JP Morgan Chase employee, were stayed pending the decision in Macris and have now been withdrawn.
Mr Grout, meanwhile, has not dropped his challenge. In its decision of 7 July 2016, the Upper Tribunal determined that Mr Grout had been identified in a Final Notice issued to JP Morgan Chase in connection with the London Whale case. In particular, the Upper Tribunal found that reference to the “traders on the SCP [Synthetic Credit Portfolio]” was sufficiently specific to identify Mr Grout. The FCA sought to appeal that decision, and the appeal was stayed pending the Supreme Court’s decision in Macris. That appeal hearing is now listed for 7 July 2017, and it will be interesting to see whether Mr Grout is able to successfully argue that, even applying the restrictive test developed by the Supreme Court, he was nevertheless identified in the relevant manner by the FCA in its Final Notice.
In any event, the number of such references that have recently been withdrawn demonstrates the significant impact that Macris will have on third parties to whom reference is made in a notice issued by the FCA, and the difficulty that individuals will now face in seeking to challenge the FCA’s approach.
FCA consults on compulsion powers in relation to LIBOR
CP17/15, 12 June 2017
In June 2017, the FCA published a consultation paper setting out its proposed approach with regard to its compulsion powers for contributions to the London Interbank Offered Rate (LIBOR).
However, the FCA anticipates that LIBOR will be designated as a critical benchmark under the Benchmarks Regulation (BMR) in due course. As a consequence, the FCA's powers under FSMA would be replaced by the compulsion powers set out in Article 23 BMR. Accordingly, CP17/5 sets out the FCA's proposed approach to its compulsion powers under the BMR.
Under the BMR, compulsion of contributors to a critical benchmark must be based on their actual and potential participation in the market that the relevant benchmark intends to measure. Therefore, in order to establish the population of banks to compel, the FCA will start by measuring the relevant market. The FCA proposes that the relevant market for these purposes should be defined as "the interbank and corporate unsecured wholesale funding market for GBP, USD, EUR, CHF and JPY involving large banks that have good credit quality and a presence in the United Kingdom". Therefore, the FCA will, in effect, select banks of a similar size and credit quality to the existing panel banks, to avoid changing the nature of LIBOR.
In order to apply that participation test, the FCA proposes pre-selecting banks which fit the three limbs of the description (size, credit quality and presence in the UK). From that pre-selected population, the FCA will request further data measuring actual and potential participation to produce a ranking of the most appropriate banks to be on the panel. Actual participation will be measured by the number and value of transactions in the market. Potential participation will be measured on the basis of factors including the size of the banking group, participation in related markets and the bank's lending and borrowing activity.
The consultation paper makes clear that the FCA will intervene by using its compulsion powers to protect the representativeness of LIBOR only if this is necessary for market integrity or consumer protection, and in accordance with the BMR where applicable. It does not envisage supporting LIBOR by using its compulsion powers indefinitely.
However, the consultation paper does not address the wider issue of banks' potential reluctance in helping to set LIBOR - particularly in the wake of the LIBOR scandals of recent years. That reluctance may, in part, be an unintended consequence of the FCA's increased focus on accountability, and increased regulation in this area, which may have made certain kinds of activity less attractive for firms.
Thanks to Serene Allen, Matilda Cox O’Brien, Karen Jacobs, Amandeep Khara, Ralph Kellas, Tom Kiernan, Beth Lovell, Rupal Nathwani, Lara Seabourne and Thomas Simpson who contributed to this publication.