Key Regulatory Topics: Weekly Update 27 October – 2 November 2023
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Publications: 27 February 2024
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Publications: 22 February 2024
This week, the UK saw some significant crypto publications, including the FCA’s finalised guidance on cryptoasset financial promotions, the CPMI’s paper on stablecoin arrangements used in cross-border payment services, an update from HMT on the regulation of fiat-backed stablecoins and HMT’s consultation response on applying the FMI Special Administration Regime to systemic DSA firms.
On the prudential front, the PRA published a discussion paper on capital requirements in relation to securitisation exposures. There were also some notable developments in the retail space – the EU saw the publication of CCD II in the OJ, while in the UK the FCA made a statement about FSCS coverage for LTAFs and the FCA’s Director of Cross Cutting Policy and Strategy gave a speech emphasising the need to keep up momentum on the Consumer Duty.
Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023
On 30 October, the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 were published, together with an explanatory memorandum. The Regulations: (i) preserve specified instruments from the revocation of Retained EU Law (REUL) under Schedule 1 to the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act). Since the legislation specified in Schedule 1 of these Regulations was included in the REUL Act further analysis has been conducted and it has been identified that those instruments listed for preservation are not obsolete and therefore need to be preserved. The instruments do not relate to the provision of financial services; and (ii) revoke 93 further specified REUL instruments at the end of 2023 due to being obsolete and inoperable.
Conduct and governance
FCA letter to remuneration committee chairs
On 31 October, the FCA sent a letter to the remuneration committee chairs of proportionality level one banks, building societies and PRA-designated investment firms, highlighting key areas for them to consider and factor into their firm’s remuneration approach. Key points include: (i) ratio between fixed and variable components of total remuneration – the FCA refers to its joint policy statement with the PRA that aims to make the regime more effective by increasing the proportion of compensation at risk and subject to the incentive-setting tools in the remuneration framework; (ii) new Consumer Duty – firms are encouraged to consider how they can use relevant risk metrics and performance criteria to help inform both individual and firm-wide remuneration decisions, including making remuneration adjustments if progress in embedding the Duty falls short; (iii) culture and accountability – firms should ensure that there is a clear, strong and evidenced link between behaviours and remuneration outcomes, including appropriate, timely and transparent adjustments; (iv) diversity and inclusion – the FCA expects firms to maintain gender neutral pay policies in line with existing requirements and make sure that awards of variable remuneration do not discriminate on the basis of any protected characteristic; and (v) sustainability – where a firm has made commitments such as on net-zero, they are expected to link appropriately their strategy, governance arrangements and remuneration structures to these.
Please see the Fund Regulation section for the FCA’s feedback statement in relation to its proposal to remove FSCS cover for regulated activities relating to Long-Term Asset Funds.
FCA speech on maintaining momentum on meeting the Consumer Duty
On 1 November, the FCA published a speech by Nisha Arora, Director of Cross Cutting Policy and Strategy on the ongoing work required meet the Consumer Duty. Points of interest include: (i) Ms Arora emphasises that the Consumer Duty is not a once and done exercise. Firms need to make sure they are learning and improving continuously and must be able to evidence this assessment in their annual board report. The assessment should include the results of monitoring on whether products and services are delivering expected outcomes in line with the Consumer Duty and any evidence of poor outcomes. The board needs to agree the actions required to address any identified risks or poor outcomes and agree whether any changes to the firm’s future business strategy are required; (ii) this assessment will be part of the evidence the FCA uses to assess a firm’s ongoing compliance with the Consumer Duty. Firms will need to be able to provide it, and the management information that sits behind it, on request; (iii) firms with closed products and services should check they are on track to meet the 31 July 2024 implementation deadline; and (iv) the FCA will continue to test firms’ implementation and embedding, and will share good practice to support the industry. An early area of focus will be to look at firms’ complaints data, identifying where the FOS uphold high numbers of complaints. The FCA intends to hold firms to account for dealing with complaints fairly and also ensure that they have robust mechanisms in place to learn from the root cause of the complaint. The FCA also plans a third survey assessing small firms’ embeddedness of the Duty in 2024.
FCA findings from Financial Lives Survey in relation to BNPL products
On 31 October, the FCA published a research note exploring the use of unregulated buy-now-pay-later (BNPL) credit by consumers in the UK. Key findings include: (i) there was a large increase in deferred payment credit (DPC) use between 2022 and 2023, with 27% of UK adults saying they had used it at least once in the six months to January 2023, up from 17% who said they had used it in the preceding 12 months in May 2022; (ii) 14% were frequent users, having used it 10 or more times; (iii) the average total DPC debt was substantially lower than typical credit/store card debt; and (iv) adults with characteristics of vulnerability were more likely to report using DPC and to report using it frequently. The FCA will continue to monitor the use of BNPL credit and understand its impact on consumers.
Online Safety Act 2023 published
On 31 October, the Online Safety Act 2023 (OSA) was published, having received Royal Assent on 26 October. The OSA provides for a new regulatory framework aimed at making the use of certain internet services safer. The OSA, among other things: (i) imposes duties requiring providers of services to identify, mitigate and manage the risks of harm (including risks which particularly affect individuals with a certain characteristic) from illegal content and activity, and content and activity that is harmful to children; and (ii) confers new functions and powers on Ofcom. The substantive provisions in the OSA do not come into force immediately. Ofcom has to first publish a number of codes of practice and guidance setting out the detail on how providers should best comply with the OSA, and the Secretary of State has to make secondary legislation. The OSA rescinds existing regulation of "video-sharing platforms" in Part 4B of the Communications Act 2003, as they will be regulated under the OSA going forward.
CCD II published in OJ
On 30 October, Directive 2023/2225 on credit agreements for consumers and repealing the CCD 2008 (CCD II) was published in the OJ. CCD II aims to: (i) ensure that credit information is presented in a clear and understandable manner and is adapted to digital devices; (ii) establish stricter advertising rules to reduce abusive credit to over-indebted consumers and create effective measures against overcharge; (iii) require lenders to assess whether consumers can repay their credit, so that they are protected from over-indebtedness; (iv) enlarge the scope of the directive to loans below €200 and buy-now-pay-later products; (v) give consumers the right to terminate a credit agreement within 14 days; and (vi) give cancer survivors the right to be forgotten. CCD II will enter into force on 19 November, 20 days following its publication in the OJ. It will apply from 20 November 2026 and, from this date, the CCD will be repealed although it will continue to apply to credit agreements existing on 20 November 2026 until their termination. Member states must adopt and publish, by 20 November 2025, the laws, regulations and administrative provisions necessary to implement CCD II.
Financial crime and sanctions
Please see the Payment Services and Payment Systems section for the PSR’s first annual APP fraud performance data for 2022.
Please see our website for a new publication on the Economic Crime and Corporate Transparency Act 2023, which received Royal Assent on 26 October. The Act is the latest step in the UK Government’s attempts to address economic crime and improve transparency over corporate entities. Whilst most of the key requirements are not yet in force, businesses will want to start preparing for the necessary changes in practice and compliance policy.
FATF report on terrorism financing linked to crowdfunding
On 31 October, the FATF published a report analysing how crowdfunding platforms can be used for terrorism financing (TF). The FATF found that AML and CTF regulation of crowdfunding is not consistent across different jurisdictions. In particular, donations-based crowdfunding often falls outside of AML-CTF regulations, even though countries typically considered it to be the most vulnerable to TF abuse. The FATF’s recommendations for private sector entities include: (i) to develop awareness and expertise of TF, and have mechanisms in place to detect potential TF activity and report suspicious transactions; (ii) that crowdfunding platforms’ terms of service should explicitly prohibit fundraising for the purpose of terrorism and violent extremism, and there should be consequences when this activity is detected; (iii) that platforms should balance mitigation of TF risks and innovation, without disrupting legitimate crowdfunding activity; and (iv) that private and public sectors should enhance collaboration and information sharing. The FATF has also set out a list of risk indicators intended to help public and private sector entities and the general public identify suspicious activities related to crowdfunding.
FATF consults on guidance on beneficial ownership and transparency of legal arrangements
On 31 October, the FATF began consulting on updates to its risk-based guidance to Recommendation 25 on beneficial ownership and transparency of legal arrangements. Recommendation 25 specifies that countries should ensure that there is adequate, accurate and up-to-date information on express trusts and other similar legal arrangements, including information on the settlor(s), trustee(s) and beneficiary(ies), that can be obtained or accessed efficiently and in a timely manner by competent authorities. Particular issues the FATF is focusing on include: (i) whether there are any other purposes of express trusts beyond those set out in the guidance; (ii) whether there are other potential scenarios concerning beneficiaries that should be included; (iii) what other activities may be included in the definition of trust administration, if any; and (iv) the suggested approaches to identify, assess, and mitigate the ML/TF risks linked with different types of legal arrangements (trusts governed under domestic law, foreign trusts administered in the country, and foreign trusts having sufficient links with the country). The deadline for comments is 8 December.
FATF Plenary outcomes, 25-27 October
On 30 October, the FATF set out the outcomes from its plenary meeting that took place from 25 until 27 October; these include reaching agreement on: (i) significant amendments to the FATF Recommendations that will provide countries with enhanced tools to more effectively freeze, seize, and confiscate criminal property, both domestically and through international cooperation. The revised Recommendations require countries to have policies and operational frameworks that prioritise asset recovery and establish non-conviction-based confiscation regimes in their legal systems. They also provide new features, such as the power to suspend transactions related to money laundering, terrorist financing and serious crime; (ii) the publication of a report setting out recommendations for asset recovery networks; (iii) amendments to the Recommendations that aim to protect non-profit organisations (NPOs) from potential terrorist financing abuse through the effective implementation of risk-based measures. These aim to address an unintended chilling effect on legitimate NPOs from a misapplication of the Recommendations; (iv) the publication of a report on tackling illicit financial flows from cyber-enabled fraud; and (v) the publication of a report on the misuse of citizenship and residency by investment programmes. The updated Recommendations and reports will be published later in November.
FCA guidance on compliance with new cryptoasset financial promotion rules
On 2 November, the FCA finalised its guidance to assist cryptoasset businesses in complying with the new rules on cryptoasset financial promotions. The guidance is relevant to authorised persons and persons registered under the MLRs who communicate or approve financial promotions relating to qualifying cryptoassets, as well as other persons involved in the communication of such promotions, such as social media influencers and platforms. The guidance sets out: (i) the FCA’s expectations on how firms can ensure that financial promotions relating to qualifying cryptoassets comply with the rules; and (ii) the steps that authorised persons may need to consider when communicating or approving financial promotions, including in order to comply with the new Consumer Duty. The guidance covers various topics, such as the due diligence and disclosure expectations, and the interaction with the Consumer Duty.
IRSG paper on international AI regulatory framework
On 1 November, the International Regulatory Strategy Group (IRSG) published a paper on the importance of a coherent and interoperable international regulatory framework on AI. The IRSG makes key recommendations for the UK government, including: (i) to continue its long-term engagement on developing global AI principles and standards, and lead and drive ambitious discussions in key international fora; (ii) to strengthen international regulatory coordination to avoid friction between competing and overlapping regulations; and (iii) to promote the interoperability of different regulatory regimes and follow international standards and principles in the UK’s domestic regime.
FCA joins international collaborative initiative to foster digital innovation
On 31 October, the FCA announced that it was joining the Monetary Authority of Singapore’s (MAS) Project Guardian, a collaborative initiative with the financial industry that explores fund and asset tokenisation use cases, and decentralised finance. Also taking part are the Financial Services Agency of Japan and the Swiss Financial Market Supervisory Authority. Under MAS’ Project Guardian, MAS has collaborated with 15 financial institutions to carry out industry pilots on asset tokenisation in fixed income, foreign exchange, and asset management products. These pilots have demonstrated the potential to reap significant market and transaction efficiencies from the use of tokenisation. As the pilots grow in scale and sophistication, there is a need for closer cross-border collaboration among policymakers and regulators.
CPMI paper on use of stablecoin arrangements in cross-border payments
On 31 October, the Committee on Payments and Market Infrastructures (CPMI) published a paper assessing whether and how the use of stablecoin arrangements, if properly designed and regulated, and compliant with all relevant regulatory requirements, could enhance cross-border payments. The paper: (i) discusses key features of stablecoin arrangements that are relevant from the perspective of cross-border payments; (ii) highlights a range of relevant considerations and challenges; (iii) analyses how stablecoin arrangements might interact and coexist with other payment methods; (iv) evaluates the potential impact of their use on the monetary policy, financial stability and payment functions of central banks; and (v) acknowledges the importance of jurisdictional differences regarding regulatory frameworks and macroeconomic conditions. Overall, the report concludes that the use of stablecoins in cross-border payments could present opportunities, but also a number of challenges. Further, even if an arrangement is considered properly designed and regulated and could help to address specific cross-border payment frictions, it may not necessarily have a positive impact on cross-border payments as the drawbacks could outweigh any potential benefits. Future work in this area could explore: (a) the most effective international cooperation and coordination mechanisms between relevant authorities; (b) the implications of arrangements that are used both for cross-border and domestic payments; (c) the implications of arrangements backed by multiple fiat currencies and other types of assets; and (d) interdependencies between multilateral platforms, central bank digital currencies and stablecoin arrangements.
HMT response to consultation on DSA FMI Special Administration Regime
On 30 October, HMT published its response to the consultation on its proposed approach to managing the failure of systemic digital settlement asset (DSA) (including stablecoin) firms, by applying a modified version of the Financial Market Infrastructure Special Administration Regime (FMI SAR). In order to ensure a balance between clarity over how the FMI SAR will operate with respect to systemic DSA firms, whilst ensuring the BoE has the tools it needs to respond to the potential failure of a systemic DSA firm as soon as is possible, HMT intends to implement its proposals as consulted on. HMT notes that it may still in due course conduct further work to consider whether a bespoke legal framework is more appropriate. HMT intends to: (i) appoint the FMI SAR, with necessary amendments, as the primary regime for systemic DSA firms which are not banks; (ii) establish an additional objective for the FMI SAR focused on the return or transfer of customer funds and custody assets and supplementary necessary provisions; (iii) provide the BoE with the power to direct administrators as to the prioritisation of objectives; and (iv) include a requirement to consult the FCA where applicable. To provide further clarity on the operation of the FMI SAR, the Government then intends to make the requisite insolvency rules. This will cover the detail and mechanisms underpinning how the regime is intended to operate, including such issues as the transfer or return of customer funds and custody assets, administrator processes. The BoE will consider whether further guidance on the operation of the FMI SAR is necessary in the context of its finalised going concern regime and update stakeholders at the appropriate time.
HMT update on plans for the regulation of fiat-backed stablecoins
On 30 October, HMT provided an update on its proposals for the regulation of fiat-backed stablecoins. HMT sets out details of the specific roles and powers envisaged for the FCA, the BoE and the PSR, as well as coordination arrangements between the regulators. With regard to the FCA’s regime, HMT seeks to regulate activities relating to stablecoins in two ways: (i) by regulating the use of fiat-backed stablecoins in payment chains; and (ii) by regulating the activities of issuance and custody of fiat-backed stablecoins when issued in or from the UK irrespective of their uses (for example whether they are used for payments, store of value or as a settlement asset). HMT intends that the category of fiat-backed stablecoins will be defined in legislation and capture those stablecoins which seek to maintain a stable value by reference to a fiat currency, and hold (in part or wholly) that currency as “backing”. The use of fiat-backed stablecoins in payment chains will be regulated through amendments to the PSRs 2017, while the activities of issuance and custody of UK issued fiat-backed stablecoin will be included in the RAO. Until the wider regime for regulation of cryptoassets comes into place in phase 2, the scope of the regime will not cover stablecoins used in the buying and selling of cryptoassets on exchanges. Other types of stablecoins (for instance, non-fiat backed stablecoins) or unbacked cryptoassets will still be allowed to be used in payment chains, but these transactions will remain unregulated. The BoE will have the ability to regulate systemic digital settlement asset (DSA) payment systems and service providers (including those using stablecoins issued both in or from the UK or issued overseas), which will cover a wider category of payments (including those on exchanges) to that proposed for the FCA. Similar powers are given to the PSR for DSA payment systems. HMT intends to bring forward secondary legislation to enact these plans as soon as possible and by early 2024, subject to available parliamentary time.
HMT response to consultation and call for evidence on future financial services regulatory regime for cryptoassets
On 30 October, HMT published its response to its proposals for the future financial services regulatory regime for cryptoassets. HMT summarises the feedback received to its consultation and call for evidence noting that 79% of responses were broadly supportive of the overall approach. In general, HMT intends to proceed as proposed, including by expanding the list of ‘specified investments’ in Part III of the RAO and so requiring firms undertaking relevant activities involving cryptoassets by way of business to be authorised by the FCA under Part 4A of FSMA. HMT does not plan to expand the definition of ‘financial instruments’ in Part 1 of Schedule 2 of the RAO to include presently unregulated cryptoassets. In its response, HMT, among other things: (i) confirms that the proposed regime does not intend to capture activities relating to cryptoassets which are specified investments that are already regulated; (ii) clarifies that activities relating to truly unique or non-fungible tokens that are more akin to digital collectibles or artwork than a financial service (in the general sense) or product should not be subject to financial services regulation; (iii) provides an update on timelines for phase 2 legislation and further information on the future FCA authorisation process for cryptoasset activities including accelerating its work in relation to the regulatory treatment of staking; (iv) acknowledges the need to mitigate the fragmentation of cryptoasset liquidity that could arise from a restrictive location and market access policy. HMT will proceed with an approach that facilitates access to international liquidity pools under specific circumstances; (v) restates the government’s position on issuance and disclosures, noting that the recklessness and negligence liability standards will enable market participants to manage their liability so long as they make reasonable enquiries. HMT is also supportive of the use of publicly available information to compile appropriate parts of the disclosure / admission documents; and (vi) sets out a modified approach towards market abuse obligations on cryptoasset exchanges, acknowledging the potential need for a staggered implementation for cross-venue data sharing obligations.
FCA feedback statement on FSCS coverage of LTAFs
On 30 October, the FCA published a feedback statement in relation to its proposal to remove FSCS cover for regulated activities relating to Long-Term Asset Funds (LTAFs). The FCA summarises key themes that emerged from consultation feedback, including: (i) removing FSCS cover for LTAF activities could undermine the work of developing LTAFs for retail; (ii) they are not the riskiest product covered by FSCS and therefore should not be singled out; and (iii) considering FSCS protection on a product-by-product basis risks creating confusion and inconsistency. In light of the feedback received, the FCA has decided not to take forward the proposal at this time. The FCA will instead consider any changes to the scope of FSCS protection for retail investments in the round, rather than excluding activities relating to certain investment products in isolation.
Markets and markets infrastructure
Please see the FinTech section for HMT’s response to its consultation on proposals to manage the failure of a systemic digital settlement asset (DSA) (including stablecoin) firms, by applying a modified FMI Special Administration Regime (FMI SAR).
Please see the Prudential Regulation section for the PRA’s discussion paper on capital requirements for securitisation exposures under the UK CRR.
FCA Synthetic Data Expert Group update on progress
On 1 November, the FCA provided an update from its Synthetic Data Expert Group that was set up in March to further explore the use of synthetic data in financial markets. The group plans to run until November 2024 and aims to provide practical and tangible synthetic data insights for practitioners and policymakers, by: (i) producing a report on using synthetic data in practice. The report will explore the use of synthetic data across several use cases including fraud detection and controls, credit scoring, AML and open banking; and (ii) creating a collaborative framework between the public and private sector. The group welcomes input on the design of the framework.
FCA Market Watch No. 75: market soundings regime
On 31 October, the FCA issued Market Watch No. 75, setting out its observations of market soundings and reminding firms of the arrangements made by the UK MAR market soundings regime. The FCA has observed market sounding recipients (MSRs) trading financial instruments during the time period after a disclosing market participant (DMP) has initially communicated with them or sought their consent to receive the sounding and inside information, but before the DMP has disclosed the inside information. However, the MSRs were able to identify the financial instruments using other information available to them. In such circumstances, MSRs could have an unfair advantage that is similar to that after the consent process. To minimise the risks of insider dealing and unlawful disclosure, the FCA sets out expectations including: (i) MSRs who have determined the identity of the security in a market sounding before agreeing to receive the inside information should assess whether they possess inside information before trading; (ii) DMPs should take particular care when making soundings on financial instruments that have few actors and where MSRs may hold external information which could reasonably be used to identify the relevant financial instrument. DMPs should make clear at the start that the communication is a market sounding, giving the MSR the opportunity to decline, and reducing the risk of disclosing any inside information; (ii) MSRs should consider putting in place the ‘Gatekeeper’ arrangements highlighted in Market Watch Nos. 51 and 58. These include appointing specific teams or staff in compliance as the first point of contact for DMPs; and (iii) DMPs and MSRs should consider minimising time intervals between the DMP’s initial communications and requests for consent, and the MSRs consenting to such requests.
ESMA updates Q&As on MiFID II and MiFIR transparency topics
On 27 October, ESMA updated its Q&As on MiFID II and MiFIR transparency topics to delete a Q&A on the minimum size of orders held in an order management facility for non-equity financial instruments. The amended RTS 2, which has applied since 5 June, provides for this requirement.
Payment services and payment systems
Please see the FinTech section for a CPMI paper assessing whether and how the use of stablecoin arrangements, if properly designed and regulated, and compliant with all relevant regulatory requirements, could enhance cross-border payments.
PSR first APP scams performance report
On 31 October, the PSR published the first annual APP fraud performance data for 2022. The report shows: (i) the percentage of APP fraud cases that were fully and partially reimbursed by each firm; (ii) the level of APP fraud received per £ million transactions; and (iii) the level of APP fraud sent per £ million transactions. Key takeaways include: (a) there are inconsistent outcomes for customers who report APP fraud to their PSP. The PSR expects this variation to reduce with the introduction of reimbursement measures in 2024; and (b) receiving fraud data show a high degree of variation and highlight firms with weak controls that fraudsters have exploited. Typically newer and smaller providers have disproportionately higher rates of fraud. The PSR will continue to collect data from payment firms over the next 12 months and will publish a second report next year.
PRA discussion paper on securitisation capital requirements
On 31 October, the PRA launched a discussion paper on capital requirements for securitisation exposures under the UK CRR. The PRA intends to consult on draft rules to replace firm-facing requirements in H2 2024, subject to HMT making the necessary legislation. The discussion paper is intended to prepare for that consultation by raising certain key issues for feedback from firms and collecting data to inform the PRA’s approach. The PRA: (i) discusses the industry feedback in relation to the potential impact of the Basel 3.1 output floor on firms with certain securitisation exposures, particularly retained senior tranches of synthetic significant risk transfer (SRT) securitisations. The PRA is considering a range of policy options, within its statutory and prudential constraints, and seeks evidence from respondents in assessing the scope for a targeted adjustment to the Pillar 1 securitisation capital framework; (ii) compares the hierarchy of methods for calculating capital requirements for securitisation exposures under the CRR with the hierarchy of methods in the Basel standards. The PRA seeks views on whether to change the CRR hierarchy to better align with the Basel hierarchy and evidence on the potential impacts of such a change; (iii) describes the UK STS framework. Consistent with the Basel standards, the UK STS framework is limited to qualifying traditional securitisations and does not extend to synthetic securitisations. The PRA sets out policy considerations that would on balance support maintaining this approach and seeks feedback from respondents; and (iv) seeks feedback on the use of credit risk mitigation in synthetic SRT securitisations. The deadline for comments is 31 January 2024.
Recovery and resolution
Please see the FinTech section for HMT’s response to its consultation on proposals to manage the failure of a systemic digital settlement asset (DSA) (including stablecoin) firms, by way of the application to such firms of a modified FMI Special Administration Regime (FMI SAR).
FCA Handbook Notice No. 113 published
On 27 October, the FCA published Handbook Notice No. 113, which sets out changes made to the FCA Handbook by the following: (i) Senior Management Arrangements, Systems and Controls (Remuneration Codes) (No 9) Instrument 2023 – the instrument aims to strengthen the effectiveness of the remuneration regime by increasing the proportion of compensation that can be subject to the incentive setting tools within the framework. The changes came into effect on 31 October; and (ii) Financial Promotion (Approver Permission) Instrument 2023 – the instrument implements the regulatory gateway for all authorised persons wanting to approve financial promotions for unauthorised persons. The changes shall come into effect on 6 November.