Horizon scanning Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 The UK retail finance sector continues to experience change at a pace. We review the key developments for the year ahead. The regulatory landscape The year of 2016 was dominated by the UK’s EU referendum result in June. Eight months on and much remains uncertain. The issues arising for financial institutions are particularly complex. For analysis on the impact of Brexit, see our Brexit hub on Eversheds-Sutherland.com. The past 12 months have seen a new Chief Executive take office at the Financial Conduct Authority (FCA). Andrew Bailey assumed the role in July 2016, having previously held the role of CEO of the Prudential Regulation Authority (PRA) from 1 April 2013. Hot on the heels of his appointment, the FCA published a consultation on its future mission to start a discussion to decide how it can make the biggest difference in making markets work well now and in the future. The FCA has since published initial feedback on that consultation, which we review in further detail below. The FCA is also changing its enforcement process. In a Policy Statement published jointly by the FCA and PRA, it has been confirmed that the FCA will introduce a process for partly contested cases, allowing a person under investigation to agree certain elements of a case, such as the facts, liability or penalty, and contest the other elements before the Regulatory Decisions Committee. That person would then retain the ability to receive a discount on the penalty to reflect the issues agreed. The FCA is also providing a mechanism for those under investigation to proceed more directly and quickly to the Upper Tribunal. The FCA’s key priorities remain relatively constant. Two pervasive themes stand out for the retail finance sector: – culture and governance – innovation and technology A key activity in improving culture and governance is the new Senior Managers and Certification Regime (SM&CR), implemented in 2016 for the banking sector and set to be expanded to other financial institutions, such as consumer credit firms, in 2018. However, the FCA’s focus on culture extends beyond SM&CR. For example, it recently published Occasional Paper No 24 on behaviour and compliance in organisations, which draws on psychology to review the complex range of factors that influence effective compliance and provides suggestions for how regulators and firms can improve levels of compliance. “There is…no magic bullet to change culture, but the new [SM&CR] regime is a big step forward in my view.” Culture in financial services – a regulator’s perspective - speech by Andrew Bailey 9 May 2016 Retail and Business Financial Services Clare Hughes Partner T: +44 20 7919 4818 email@example.com David Saunders Partner T: +44 20 7919 4685 firstname.lastname@example.org Geraint Thomas Partner T: +44 29 2047 7518 email@example.com Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 3 Technology is driving the transformation of the retail finance sector. The growth of digital channels continues at speed as does the use of alternative funding options, such as crowdfunding. The FCA recognises the benefits offered by new technology but, must balance the benefits with the risks presented and ensure the regulatory regime reflects the new opportunities. So, for example, the FCA is considering whether to implement rule changes to regulate crowdfunding. The FCA published Feedback Statement 16/13, providing its initial views in December 2016. While the primary focus of the feedback statement is the loan-based market, the FCA has concerns with both loan-based and investment-based sectors and will propose new rules for both. Final rules are expected in summer 2017. For more on the crowdfunding feedback statement, see our recent article Crowdfunding interim FCA report: a sigh of relief for investment-based crowdfunding, bated breath for loan-based crowdfunding. Against that background, we set out what we consider to be the top ten legal, regulatory and compliance developments of 2017. Top ten legal, regulatory and compliance developments for 2017 1. Future mission of the FCA This is described by Andrew Bailey as a “flagship piece of work’ and is intended to ‘provide a clearly articulated framework for what we do.” – Andrew Bailey on our Mission, video published 26 October 2016 The future mission consultation, published in October 2016, runs to 50 pages. Questions particularly relevant to the retail finance sector are whether vulnerable customers should receive greater levels of protection, what more the FCA can do to ensure consumers using redress schemes feel they are receiving the appropriate level of personal attention and whether a duty of care would help ensure financial markets work well. In relation to the last of these questions, the FCA notes that it does not consider such a duty is necessary but invites views. The consultation closed on 26 January 2017. On 3 January 2017, the FCA set out the key themes which are emerging following feedback to date. These include: – Vulnerable consumers. Respondents largely agree with affording more protection to vulnerable consumers but have different views on who a vulnerable consumer is and emphasise the need for clear definitions. – Rules versus principles. Some respondents are keen on clear sets of principles for business rather than prescriptive rules, whilst others prefer more clarity on existing rules as they feel these are often too vague. – Engagement with firms. Respondents think that the FCA should adopt a more active role in sharing lessons learned and good practice. Respondents would like more tailored communications that illustrate risks for their particular market. The FCA is also planning to review its Handbook and intends to issue a call for evidence to determine which areas of the Handbook require clarification. The extent to which the outcome of this consultation document impacts the future priorities of the FCA remains to be seen. Contacts: David Saunders, Geraint Thomas and Clare Hughes 2. Senior Managers and Certification Regime Individual accountability in the financial institutions sector has never been more under the spotlight. The year of 2016 saw the start of the new Senior Managers and Certification Regime (SM&CR) (on 7 March 2016) for banks, building societies and other PRA regulated investment firms. Those firms have until 7 March 2017 to ensure those individuals subject to the Certification Regime are assessed as fit and proper and issued with a valid certificate for their role. Discussion paper 16/4 was published in September 2016 regarding the FCA’s proposal to include the head of legal function within the senior managers regime. The deadline 4 Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 for responses to this discussion paper has now passed and, despite the objections raised, we can probably expect a consultation paper later in the year proposing this. Most significant for 2017 and beyond is the extension of the regime to all financial services firms, operating in the UK, including consumer credit firms and mortgage brokers. On 4 May 2016, the Bank of England and Financial Services Act received Royal Assent which confirmed that the regime would be extended, with a likely timescale of 2018. The Act also introduced the duty of responsibility for senior managers in all authorised firms, superseding the reverse burden of proof which would have applied in the banking sector. A consultation was subsequently published on the duty of responsibility, which closed on 9 January. The regulatory references regime is part of the wider package of reforms aimed at improving accountability in financial services. The FCA and the PRA issued long awaited policy statements (PS16/22 and PS27/16) in September 2016 setting out the final rules on regulatory references for banks, building societies, credit unions and PRA investment firms, known as relevant authorised persons, and some insurers. For more detail on who this regime applies to, see our briefing, The regulatory reference regime: final rules. The full FCA/PRA regime will come into effect on 7 March 2017 to coincide with the implementation of the full certification regime and application of Conduct Rules to ‘other conduct rules staff’ for banks, building societies and PRA regulated investment firms. Further consultation is expected from the FCA/PRA during the course of 2017. Contact: Simon Collins, David Saunders and Greg Brandman 3. GDPR The European Parliament, Council and Commission have been working to reform the EU’s data protection framework since 2009. A tripartite agreement on a new General Data Protection Regulation (GDPR) was finally reached in December 2015. The GDPR was published in the Official Journal of the European Union on 27 April 2016 and renamed the catchy “Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.” It comes into force on 25 May 2018. Following the UK referendum, it appears the UK will still be within the EU at that date and even following Brexit, indications from the UK Government and the UK’s Information Commissioner’s Office are that, in the UK, GDPR is here to stay. In particular, the UK will in practice need to ensure an adequate level of protection for personal data in order to continue to receive inward data flows from the EU. There are political, commercial and economic reasons as to why it is expected that UK privacy law will keep pace with EU privacy law. See our recent briefing, The impact of Brexit on the GDPR. The GDPR will significantly impact how organisations collect and process personal information. To help you navigate and prepare for this extensive piece of new legislation, and to sign up to attend our GDPR seminar series, see our dedicated GDPR hub which brings together all of our GDPR-related insight, know-how and updates. Contact: Paula Barrett 4. PSD2 The revised Payment Services Directive (PSD2) is a package of measures which aims to modernise the European retail payments regulatory framework. It is a response to new innovative payment services across all channels, including internet and mobile devices, which seeks to improve security and consumer protection. It was published in the Official Journal of the EU on 23 December 2015 and the Directive came into force on 12 January 2016. The deadline for Member States to transpose the majority of PSD2 into their national laws is 13 January 2018. PSD2 introduces the regulation of payment initiation services and account information services. Payment initiation services allow customers to make payments directly from their accounts to pay for an online Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 5 transaction, as an alternative to card based payments. Account information services allow customers to access information about accounts they hold with different banks and payment institutions in one place rather than operating their various online banking accounts individually. The payment initiation services provider and the account information service provider may be given access to the relevant account data by using the customer’s security details although separate access solutions can also instead be offered by account providers. It also introduces new requirements in relation to operational and security risks and authentication. This includes the application of “strong customer authentication” when the payer accesses his payment account online or initiates any electronic remote payment transaction. On a practical level, if the bank does not require strong customer authentication from the customer, the customer will only be liable for any financial consequences when they have acted fraudulently. HM Treasury published draft regulations to implement PSD2 into UK law in February 2017. They are intended to replace the existing Payment Services Regulations 2009 (PSRs) and they come alongside a consultation paper, which provides an overview of the changes from the original Payment Services Directive. The consultation closes on 16 March 2017. For further information on the draft regulations and consultation, see our briefing HMT publishes draft regulations that will implement PSD2 in the UK. After this consultation, the FCA is expected to consult on the necessary changes to its guidance and Handbook rules. Contact: Richard Jones 5. PPI and unfair relationships PPI mis-selling complaints will remain a significant issue within the UK banking industry until at least 2019. The FCA released a consultation paper in 2015 (CP15/39), which proposed rules to deal with Plevin complaints and a two year deadline for consumers to bring a PPI complaint. The FCA released a further consultation paper (CP16/20) which set out details of the deadline and proposed to include profit share arrangements (as well as standard commission payments) in both the assessment of whether commission was unfair and the subsequent redress calculations. The FCA’s rules (based on CP16/20) will apply to any PPI arrangement within the scope of Section 140A of the Consumer Credit Act 1974 where commission plus profit share exceeds 50% of the premium. The proposed two year deadline for PPI complaints was intended to run from 30 June 2017, meaning a longstop date of 30 June 2019. That timetable was based on making a decision about whether to proceed, and making rules and guidance, by the end of December 2016. On 9 December 2016, the FCA published a statement on its timetable for proposed rules and guidance that, following the volume of feedback received on CP16/20, the FCA will make a further announcement in Q1 2017. That may mean the proposed two year deadline will not start to run until later in 2017. Contact: Chris Busby 6 Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 6. Call for Input on high-cost credit High-cost credit, such as payday loans and pawn broking, has been a focus for the FCA since taking over regulation of consumer credit in April 2014. The FCA is now extending its focus to other credit products which can be high-cost, such as motor finance, credit cards and overdrafts. The FCA published a Call for Input on high-cost credit in November 2016 seeking evidence and feedback to inform its work on high-cost credit, including a review of the payday loan price cap. The Call for Input closed on 15 February 2017. The FCA’s Call for Input includes a review of the payday loan price cap, which came into force in January 2015. That will include seeking evidence of consumers turning to illegal money lenders directly as a result of being excluded from high-cost credit due to the price cap. The FCA expects to publish findings on the review of the price cap in summer 2017. The FCA will look at overdrafts in more detail from a consumer protection and competition perspective, following the Competition and Markets Authority (CMA) identifying issues with price transparency and the nature and level of charges, particularly for unarranged overdrafts. The FCA is seeking feedback from the industry on the extent to which overdrafts are in practice a substitute or an alternative to other high-cost credit products. “This is a significant moment for our approach to consumer credit regulation as we continue to ensure that this market works well for consumers….now [is] the right time to take a broader view of the issues around high-cost credit... to consider whether our requirements remain appropriate.” Andrew Bailey, Chief Executive of the FCA November 2016 Contact: Clare Hughes 7. The fair treatment of mortgage customers in payment shortfall The FCA has identified a possible breach of the rules on the treatment of customers with mortgage payment shortfalls, which on initial research, could affect approximately 750,000 customers in the UK. The Mortgages and Home Finance: Conduct of Business Sourcebook (MCOB) provides that firms must not automatically capitalise a payment shortfall where it would result in a material impact for the customer (MCOB 13). That was intended to stop firms automatically capitalising payment shortfalls without first considering the customer’s individual circumstances. The FCA has identified that some lenders are automatically including customers’ arrears balances within their monthly mortgage payments, which are recalculated from time to time, for example, when an interest rate changes. The FCA considers this practice to be automatic capitalisation. The FCA published Guidance Consultation GC16/6 to consider this issue in October 2016. The FCA has developed a non-mandatory remediation framework to provide firms with a proportionate, fair and timely option. The consultation closed on 18 January 2017. Firms are urged to begin identifying affected customers now, without waiting for final guidance to be published. The FCA will monitor firms’ approaches to remediation. Contact: Geraint Thomas 8. Consumer credit retained provisions review When the FCA took responsibility for regulating consumer credit in the UK in April 2014, the UK Parliament repealed 82 provisions of the Consumer Credit Act (CCA) and some were replaced by FCA rules. The FCA is required to review the remaining 167 provisions of the CCA, together with the associated regulations and to report to HM Treasury by 1 April 2019. This is a major review. The retained provisions span a huge number of issues, including those retained because they conferred specific rights or obligations on consumers or third parties, such as section 75, and those retained because they derive from the Consumer Credit Directive. The consumer credit regime is complex, in part due to the interaction of the CCA with many other provisions, such as FSMA 2000 and associated orders, the FCA Handbook and codes and good practice guidance. A Call for Input was published in February 2016 seeking initial views to inform the planning of the review. The Call for Input closed in May. The FCA has analysed the responses for key themes and those themes will now form the basis for its wider planning work. The FCA’s aims for the review include simplification and modernisation and to strike a balance between disproportionate burdens on business and the appropriate degree of consumer protection. At the time of publishing the consultation, the FCA was not intending to extend the scope of the review beyond the retained provisions unless there are ‘substantial interactions’ and it was proposing to conduct the review in-house. The FCA has confirmed that it will publish a summary of the responses in the first half of 2017 together with an outline of the scope for the review and approximate timelines taking it to 1 April 2019. Contact: Clare Hughes Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 7 9. FCA as a competition regulator On 1 April 2015, the FCA was granted concurrent powers with the Competition and Markets Authority (CMA) to enforce UK and EU competition law and to investigate markets using competition specific powers. The last year has seen a significant amount of focus on competition issues in the retail finance sector. The FCA published the final report on the credit card market study in July 2016, which found that although competition worked fairly well for most consumers, there was concern about the scale of potentially problematic debt. Further information on proposed rules and voluntary remedies is expected shortly. Looking forward to 2017, key priorities for the FCA will be the Mortgages Market Study and the follow up on recommendations proposed by the CMA as part of its Retail Banking Market Investigation. The FCA launched its Mortgages Market Study in December 2016, which will focus on consumers’ ability to make effective choices in the first charge residential mortgage market and commercial arrangements between lenders, brokers and other players. The interim report is expected this summer. As part of its follow up to the Retail Banking Market Investigation, the FCA announced a series of actions in November 2016, including developing and testing ‘prompts’ encouraging consumers to consider their banking arrangements and considering the competition and conduct implications of the business model links between current accounts and other retail banking products. The CMA has now made the Retail Banking Market Investigation Order 2017 to implement remedies to mitigate or or prevent the adverse effects on competition and customer detriment it identified in its retail banking investigation final report. The Order sets out a timetable for introducing reforms such as open banking, as well as requirements for firms to issue compliance reports to the CMA. 8 Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 The FCA opened its first investigation under the Competition Act 1998 in 2016. “For the last year, we have been talking about enforcement cases in the future tense. Very recently, that has changed and I can now confirm that we are taking active steps towards the opening of Competition Act investigation.” Deb Jones Director of Competition at the FCA, speech delivered at The Impact of Competition Powers on Financial Services Conference, London in March 2016. The FCA has also confirmed that it has used “softer” enforcement tools such as ‘on notice letters’ to tackle incidents of anti-competitive behaviour it has uncovered, for example in respect of conduct identified during the course of the retirement income market study. In tandem with an increased level of activity regarding enforcement, the FCA is concerned that awareness of competition law across the sector remains too low and as part of its work arising out of the Mortgages Market Study, the FCA has launched a plan to work with industry to address this. Contact: Julia Woodward-Carlton 10. Innovation and technology The FCA leads the way amongst the global regulators for fostering innovation and new technology in financial services in the UK with Project Innovate a flagship programme for the regulator. The aim of Project Innovate is to assist new and established businesses, both regulated and non-regulated, to introduce innovative financial products into the market. Launched back in October 2014, there has been a surge in activity in the last 12 months. “The impact of technology is one of the fastest-evolving of this year’s priority themes.” FCA Business Plan 2016/2017 The first cohort of the regulatory sandbox has begun testing and the application period for the second cohort has now closed. The FCA has signed co-operation agreements with Australian and Singaporean regulators to facilitate both the expansion of UK based innovative firms internationally and the entry of overseas firms to the UK. Feedback Statements have been published following the RegTech Call for Input (FS16/4) and the Call for Input on regulatory barriers to innovation (FS16/2). In addition to fostering innovation, the FCA also provided guidance for those managing digital projects. In July 2016, it published finalised guidance for firms outsourcing to the ‘cloud’ and other third party IT services and in October 2016 published the feedback statement to its Smarter Customer Communications Discussion Paper. Regulatory compliance is just one of the risk areas surrounding digital projects. Cyber security is another major concern, with firms facing threats from increasingly sophisticated criminal gangs and activist groups, complex systems and supply chains, and increased use of mobile devices and messaging services. The National Cyber Security Centre was officially opened on 14 February to help protect the UK’s critical services from ever increasing criminal cyber attacks. Materials from our recent event on cyber security are available on our website, together with materials from our series of digital financial services and Fintech events and briefings. Contact: Matthew Gough Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 9 Looking ahead... Date Development Q1 2017 Consultation Paper expected proposing minor changes to the FCA’s existing rules in respect of the SM&CR and clarifying the requirement that the head of legal function needs to be a senior manager Q1 2017 Further announcement from FCA expected on PPI Q1 2017 Proposed rules and voluntary remedies expected following credit card market study Q1 2017 Consultation on affordability and creditworthiness expected 1 March 2017 Two proposals from the Enforcement Review come into effect: Introduction of partly contested cases and the abolition of stage 2 and 3 discounts to penalty in settlement 7 March 2017 Deadline for firms to ensure those individuals subject to the Certification Regime are assessed as fit and proper and issued with a valid certificate for their role Q2 2017 Anticipated publication of feedback statement on the Consumer Credit Act retained provisions consultation (which closed in May 2016) setting out an outline of the scope for the review and approximate timelines Q2 2017 Consultation on application of SM&CR to consumer credit/mortgage lenders expected Q2 2017 FCA Business Plan and FCA Mission expected Q2 2017 PRA consultation paper on the establishment of the Enforcement Decision Making Committee expected Summer 2017 Final rules for crowdfunding expected Summer 2017 FCA expects to publish findings on the review of the price cap Summer 2017 Mortgages market study interim report expected Summer 2017 Launch of integrated financial services trade association 2018 Extension of the SM&CR to all financial services firms including consumer credit firms and mortgage brokers Q1 2018 Mortgages market study final report expected 13 January 2018 Deadline for transposition of PSD2 into national law 9 May 2018 Deadline for transposition of Cyber-Security Directive into national law 25 May 2018 GDPR comes into force 10 Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 Contacts Greg Brandman Partner T: +44 20 7919 0757 firstname.lastname@example.org Simon Collins Managing Director T: +44 20 7919 0725 email@example.com Senior Managers and Certification Regime Future mission of the FCA Call for Input on high cost credit Paula Barrett Partner T: +44 20 7919 4634 firstname.lastname@example.org Matthew Gough Partner T: +44 29 2047 7943 email@example.com GDPR Consumer credit retained provisions review FCA as a competition regulator Innovation and technology The fair treatment of mortgage customers in payment shortfall Clare Hughes Partner T: +44 20 7919 4818 firstname.lastname@example.org Clare Hughes Partner T: +44 20 7919 4818 email@example.com PSD2 Richard Jones Partner T: +44 161 831 8253 firstname.lastname@example.org David Saunders Partner T: +44 20 7919 4685 email@example.com Chris Busby Partner T: +44 121 232 1225 firstname.lastname@example.org PPI and unfair relationships Clare Hughes Partner T: +44 20 7919 4818 email@example.com David Saunders Partner T: +44 20 7919 4685 firstname.lastname@example.org Geraint Thomas Partner T: +44 29 2047 7518 email@example.com Geraint Thomas Partner T: +44 29 2047 7518 firstname.lastname@example.org Julia Woodward-Carlton Partner T: +44 20 7919 4770 juliawoodwardcarlton@ eversheds-sutherland.com Retail and business financial services round-up Key developments in 2016 and horizon scanning for 2017 eversheds-sutherland.com This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website. © Eversheds Sutherland 2017. All rights reserved. Eversheds Sutherland (International) LLP is part of a global legal practice, operating through various separate and distinct legal entities, under Eversheds Sutherland. For a full description of the structure and a list of offices, please visit www.eversheds-sutherland.com. DTUK000258_02/17
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