UK: Banking Industry Regulatory Update - September 2011

INTRODUCTION

International regulatory bodies, working alongside their regional and national counterparts, have spent over three years attempting to mend the global financial system by strengthening its stability and resilience. In 2011, the stream of regulations does not appear to be slowing.

This banking industry regulatory update, the fifth in the series, sets out the key banking industry reforms, and proposals for reform, in the international, European and UK spheres. This paper sets out the position as at September 2011. It should be noted that, as this is an ever changing regulatory environment, care should be taken when reading the paper as it will become out of date relatively quickly.

CORPORATE GOVERNANCE

International – Basel Committee on Banking Supervision ("BCBS")

Internationally, there has been a continued emphasis on effective governance. This focus stems from the view that corporate governance is so fundamental to both individual banking organisations and to the international financial system as a whole, it merits targeted supervisory guidance. The BCBS published a set of 14 principles (the "Principles") for enhancing sound corporate governance practices in October 2010, following its consultation on those principles in March 2010.

As outlined in our September 2010 and February 2011 updates, the focus of the Principles is primarily on attributing responsibility for corporate governance, risk management/strategy and corporate values to the board and senior management (rather than to regulatory supervisors). Emphasis is also placed on the need for the board to ensure effective communication laterally and vertically (in order for risk and other issues to be adequately dealt with) and for each board member to properly know and understand the institution‟s structure. The sentiment that a board must establish and promote corporate values that discourage excessive risk taking pervades the Principles.

Specifically, the Principles include the following requirements:

• Appropriate practices, committees and roles must be set up to manage risk, remuneration, conflicts and auditing. Such practices must keep pace with the bank‟s sophistication and risk profile;
• The board of a parent company must take responsibility for overseeing corporate governance across the group;
• The board must properly understand the bank‟s corporate structure and the nature and purpose of any offshore or unregulated entities;
• Communication lines must be adequate to effectively report risk issues and exposures to the board;
• Compensation must be aligned with prudent risk taking;
• A bank‟s code of conduct must outline acceptable and unacceptable risk taking behavior and that the board should take the lead in establishing the correct tone at the top‟.

Incidentally there been some debate over whether corporate culture/ethics can and should be regulated (in the manner attempted by the Principles), to which Hector Sants responded strongly in the affirmative in his speeches of 17 June and 4 October 2010.

The BCBS advises supervisors to establish guidance or rules in accordance with the Principles. The BCBS notes that banks‟ compliance with the Principles (as implemented by the bank‟s home country) should be proportionate to the size, complexity, structure, economic significance and risk profile of a bank, and the corporate group it belongs to (if relevant).

In June 2011, BCBS updated a framework of principles concerning operational risk management for banks and their supervisors published in 2003 called Sound Practices for the Management and Supervision of Operational Risk (Sound Practices), to reflect current industry practice. The framework of principles incorporates governance as an over-arching theme and, in line with the BCBS‟s 14 Principles, places emphasis on the role of the board of directors in assessing operational risk and overseeing the implementation of appropriate policies and procedures.

Europe

At European level, the European Commission ("EC") published a green paper on corporate governance in June 2010, which discussed the links between corporate governance and the financial crisis; and suggested options for reform along similar lines to the Principles. On 12 November 2010, the EC published a feedback statement on responses to its green paper which had been given by interested parties such as the FSA). While the feedback statement demonstrates the broad support of the industry to the EC‟s proposals (particularly in relation to the clarification of responsibility), it also notes that many respondents see corporate governance failures as due to a lack of effective implementation of existing rules rather than deficiencies in the regulatory regime.

The European Parliament adopted a resolution in response to the Green Paper on 11 May 2011, in which it:

• emphasises the need for financial institutions to establish effective governance systems, with adequate risk management, compliance, internal audit functions, strategies, policies, processes and procedures;
• calls for the establishment of mandatory risk committees or equivalent arrangements at board level for all economically significant financial institutions;
• calls for the establishment of "fit and proper persons" criteria, to be implemented by national regulators;
• calls on the European Commission to develop legislation requiring large financial institutions to submit their boards to regular external evaluation;
• encourages institutional shareholders to take a more active role in holding the board to account with a view to encouraging a culture of greater responsibility.

On 5 April 2011 the EC published another Green Paper as part of a public consultation focused on improving the corporate governance of European companies. The Green Paper is intended to prompt debate in three key areas: the functioning of boards of directors; how to enhance shareholder involvement and how to improve the effectiveness of the existing national corporate governance codes. The deadline for responses to the consultations closed on 22 July 2011.

In a related publication, the Committee of European Banking Supervisors ("CEBS") set out its High Level Principles for Risk Management on 16 February 2010. CEBS was replaced by the new, more powerful European Banking Authority ("EBA") as of 1 January 2011 which exercises a wider role than its predecessor. For example, the EBA is able to issue binding technical standards on member states and has indicated that it is keen to press for a single EU rule book. The EBA was also responsible for the Q1 2011 round of bank stress testing. The principles for risk management covered issues such as risk culture, appetite and exposure, the role of the Chief Risk Officer and a new product approval process. They were to become part of financial institutions‟ internal capital adequacy assessment process ("ICAAP"), and of supervisors‟ review framework under Pillar 2 of Basel II, by 31 December 2010.

On 13 October 2010, CEBS published a consultation paper on its consolidated Guidebook on Internal Governance (the "Guidebook"). The Guidebook consists of 30 principles covering corporate structure and organisation, management, risk management, internal controls, systems and continuity and transparency, and consolidates all CEBS guidelines specifically aimed at internal governance (including the High Level Principles Risk Management referred to above). The Guidebook principles shall as of 30 September be part of financial institutions‟ ICAAP process and of supervisors‟ supervisory review framework. While the principles are aimed at large and complex institutions, CEBS considered they could (subject to proportionality) be adapted to any institution. As such, smaller firms shall have concluded an analysis of their existing practices in comparison with the principles in order to be in a position to either comply, or discuss proportionality with their national regulator.

In addition on 27 September 2011 the EBA published Guidelines on internal governance which apply on a "comply or explain" basis. UK banks should already be meeting the EBA Guidelines as there is nothing particularly new in them.

UK

In the UK, the government and the FSA have been responsible for a number of initiatives to strengthen corporate governance in financial services companies. These include the implementation of the Walker Review of 2009 (which set out 39 recommendations which are intended to improve the governance of UK banks and other financial institutions), through revised governance and remuneration codes, a new stewardship code, and increased supervision of individuals performing significant influence functions in regulated firms.

The Walker Review was considered by the Financial Reporting Council ("FRC") in early 2010. The primary conclusions drawn by the FRC can be summarised that; more attention should be paid to following the spirit of the existing Combined Code on Corporate Governance 2008 (the "Combined Code") as well as its letter and that the impact of shareholders in monitoring the Combined Code could be enhanced by better interaction between the boards and their shareholders. The FRC review thus led to the Combined Code being replaced by;

• the UK Corporate Governance Code 2010 (the "Code") which applies to listed companies (including financial institutions) for reporting periods beginning on or after 29 June 2010; and
• the UK Stewardship Code 2010 (the "Stewardship Code") which sits alongside and is complimentary to the Code, and which will apply to fund managers and other institutions authorised to manage assets on a discretionary basis for "professional clients" (including collective investment schemes, insurance companies and pension funds).

Both codes apply (as the Combined Code did) on a comply or explain‟ basis.

The Code

The Code consists of main and supporting principles spanning the five areas of leadership, effectiveness, accountability, remuneration and relations with shareholders. However, the Code differs in tone from the Combined Code in that it places more importance on the main principles which should guide board behaviour and which should be continually considered and reported on by the board. These are now listed separately at the front of the Code (in addition to later on together with the supporting principles). The primary differences between the Code and the Combined Code include:

• Increased emphasis on the roles and responsibilities of the Chairman, the senior independent director and non executive directors ("NEDs");
• New requirement that any search for board candidates should have regard to diversity, including gender diversity;
• New requirement for directors of FTSE 350 companies to be subject to annual re-election;
• New requirement that external board evaluation reviews be conducted every 3 years by FTSE 350 companies;
• New emphasis on directors‟ time commitments;
• New emphasis on consideration and management of risk; and
• Amendments to provisions related to performance related remuneration.

The Stewardship Code

Broadly, the Stewardship Code sets out good practice for institutional investors when engaging with UK listed companies. The seven principles of the Stewardship Code cover the establishment and, where required, disclosure of practices relating to collective action with other investors, monitoring investee companies, voting policy and disclosure, enhancing shareholder value and the management of conflicts of interest. Adherence to the Stewardship Code is not compulsory, however, the new FSA rule in COBS 2.2 (in force from 6 December 2010) makes disclosure of a regulated firm's commitment to the code (or lack of) mandatory. The alternative to compliance is to explain why the firm‟s alternative business model makes compliance inappropriate. While certain of the requirements will already be part of a firms‟ practice, the net effect of compliance with the Stewardship Code is that a regulated firm must make public arrangements and policies that previously remained confidential.

The British Bankers' Association ("BBA") published a response to the Department for Business Innovation and Skills‟ ("BIS") call for evidence "A Long-Term Focus for Corporate Britain" in January 2011, which states that it views the Stewardship Code as a step in the right direction and is supportive of the FRC in its endeavours to promote it. The call for evidence, published on 25 October 2010, was the first stage of a review into corporate governance and economic/board short-termism‟ in capital markets. BIS published the outcome of the consultation on 28 March 2011.

In June 2011, BIS commissioned an independent review of the effect of UK equity markets on the competitiveness of UK businesses (the "Kay Review"). Professor John Kay, who chairs the review, launched a call for evidence on 15 September 2011. His speech emphasised that the subject of the review was corporate decision making and performance rather than corporate governance. The deadline for submissions is 18 November 2011.

Approved Persons

The FSA confirmed in its Business Plan for 2011/12 that corporate governance remains a key area of focus in the coming months. The publication of FSA policy statement PS10/15 on effective corporate governance in September 2010 highlighted the extent of the work being done in relation to significant influence and controlled functions.

Under PS10/15 and the corresponding amendments to the FSA handbook:

• A new framework of classification of controlled functions is being created including: parent entity SIF (CF00), chairman (CF2a), senior independent director (CF2b), chairman of risk committee (CF2c), chairman of audit committee (CF2d) and chairman of remuneration committee (CF2e).
• Three new systems and controls functions are being introduced: finance function (CF13), risk function (CF14) and internal audit function (CF15). The current systems and controls function (CF28) will be deleted.
• The scope and definition of the already existing director (CF1) and non-executive director (CF2) controlled functions are being reduced.

These amendments were due to come into force on 1 May 2011. However, in March 2011, the FSA announced that implementation would be postponed until a later date.

• Guidance is provided on the role to be played and time commitments to be made by NEDs, while guidance on the limits of liability of NEDs in SYSC 2.1.2G and 4.4.4G is to be deleted.

This part of the new regime came into force on 1 May 2011.

REMUNERATION

International

As mentioned in our September 2010 update, the FSB‟s Principles for Sound Compensation Practices (the "FSB Principles") were endorsed at the G20 summit in April 2009. The G20‟s commitment to implementing these new standards was re-iterated on 12 November 2010 at its Seoul summit, where the G20 also called for international assessments and peer reviews by the FSB to be continued and enhanced in order to ensure consistent implementation. The FSB published its Thematic Review on Compensation – Peer Review Report in March 2011.

The BCBS implemented the FSB Principles into its risk management guidance and set out a methodology to help supervisors assess firms‟ compliance with the FSB Principles and related implementation standards.

On 14 October 2010, the BCBS published a consultative document on the range of methodologies for risk and performance alignment of remuneration. The report provides an overview of practices currently used by banks intended to align remuneration with risk. The report also analyses the issues that may reduce the effectiveness of banks' methodologies. The aim of the report is to help converge and spread best practices in the sector. The comment period closed on 31 December 2010 with comments by the BBA acknowledging that the BCBS appears committed to proportionality and the tailoring of methodologies to a firm‟s specific characteristics.

The BCBS issued its final publication on Pillar 3 disclosure requirements for remuneration on 1 July 2011. Banks will be required to disclose qualitative and quantitative information about their remuneration practices and policies covering a wide range of areas:

• governance/committee structures;
• the design/operation of remuneration structures and frequency of review;
• the independence of remuneration for risk/compliance staff;
• risk adjustment methodologies;
• the link between remuneration and performance;
• long-term performance measures; and
• types of remuneration. The BCBS expects banks to comply with these Pillar 3 requirements from 1 January 2012 and expects publication of disclosures at least annually or as soon as practicable after the information is available.

Europe

The amended Capital Requirements Directive (2006/48/EC and 2006/49/EC) ("CRD3") was adopted by the European Council on 11 October 2010. With regard to remuneration, CRD3 requires that an institution‟s policies include caps on cash bonuses, bonus deferrals and new bonus/salary ratios, the recurring aims being to better align remuneration with the long term interests of the institution. It is also intended that the amendments will bring down the disproportionate role played by bonuses in the financial sector. The deadline for implementation of the CRD3 remuneration requirements in Member States was 1 January 2011. This has been implemented in the UK through amendments to the UK‟s remuneration code (see below).

Since its high-level principles for remuneration policies were published on 20 April 2009, CEBS has published; a report on the implementation of the principles in June 2010; a consultation paper on draft guidelines on remuneration policies and practices ("CP42") on 8 October 2010 (as required by CRD3) and; the final version of the Guidelines on Remuneration Policies and Practices on 10 December 2010, together with a feedback document summarising the main issues arising from CP42. The guidelines address high-level remuneration policies, and the day-to-day practice of making remuneration decisions. They came into force on 1 January 2011, in line with the deadline for implementation of CRD3.

In order to benchmark remuneration practices across Europe, the EBA has requested certain data from national regulators about individual firms. On 28 July 2011, the EBA published a consultation (CP46) on draft guidance, along with a template, on the information to be supplied to national regulators as part of the exercise. On the same day the EBA published a separate consultation (CP47) on guidance specifically relating to the supply of information about high earners. The deadline for responses to both papers closed on 2 September 2011.

In accordance with the proposals outlined in the EC‟s Green Paper on Corporate Governance in Financial Institutions and Remuneration Policies published on 2 June 2010, the recently adopted and published Alternative Investment Fund Managers Directive, amendments to the UCITS IV Directive (2009/65/EC) (UCITS IV) and the Solvency II Directive (2009/138/EC) contain provisions on remuneration in the investment fund and insurance context.

UK

Changes to the UK‟s existing Remuneration Code were proposed by the FSA in July 2010, in consultation paper CP10/19, following the passing of the Financial Services Act 2010 (which empowers the FSA to make rules on remuneration and recover payments which are not compliant) and the approval of the CRD3 text. On 10 November 2010, the FSA also published a consultation paper on remuneration disclosure (CP10/27) in accordance with CRD3. CRD3 requires firms to disclose information on their remuneration policies and pay-outs on an annual basis.

On 17 December 2010, the FSA published its policy statements on revising the remuneration code (PS10/20) and remuneration disclosure (PS10/21). The policy statements were delayed slightly so that the FSA could take into account the final guidelines on remuneration published by CEBS (referred to above). The revised remuneration code (the "Revised Code") and disclosure requirements have been inserted into the FSA handbook by the Senior Management Arrangements, Systems and Controls (Remuneration Code) (No 2) Instrument 2010 and Prudential Sourcebook for Banks, Building Societies and Investment Firms (Remuneration Disclosures) Instrument 2010.

The rules on disclosure require a firm to disclose, on an annual basis, its remuneration policy and details in respect of senior management and members of staff whose actions have a material impact on the risk profile of the firm. The disclosure may form part of the firm‟s annual report and accounts provided the disclosure meets the relevant requirements.

The most significant amendments made to the existing remuneration code by the Revised Code are as follows;

• Scope: The FSA's existing code applies to the largest banks, building societies and broker dealers. The revised code will catch a much larger group of around 2,700 firms, including all banks and building societies and CAD investment firms;
• Bonus ratios: Appropriate ratios must be set between fixed and variable remuneration.
• Limit on cash bonuses: at least 50% of both upfront and deferred variable remuneration must be settled in shares or other instruments.
• Deferrals: at least 40% of a bonus must be deferred over a period of at least three years for code staff. For staff earning more than £500,000, the deferral rule rises to at least 60% of bonus. Both upfront and deferred equity awarded must be subject to a retention period before sell on is permitted.
• Prohibition on guaranteed bonuses: the prohibition will apply to all staff. For non-Code Staff‟, guaranteed bonuses will be completely prohibited, and for Code Staff‟ they will only be permitted in exceptional circumstances.

Other provisions of the code make the establishment of a remuneration committee compulsory for certain firms, and deal with performance adjustment mechanisms, pensions and golden parachutes. All provisions have in mind the primary requirement of CRD 3 that an institution "must establish, implement and maintain remuneration policies, procedures and practices that are consistent with and promote sound and effective risk management."

Proportionality

The UK changes listed above have resulted in what has been called the most stringent code of practice of any financial centre in the world‟ by Chancellor of the Exchequer George Osbourne in January 2011. However, despite the strong political rhetoric, in practice the FSA has identified four "tiers" of firm (by reference to the type of firm and the level of capital resources required to be held) in relation to which certain levels of proportionate‟ compliance only, are expected. The tiers are broadly as follows;

• Tier one: Banks and building societies with regulatory capital exceeding £1bn and full scope BIPRU firms with capital resources of over £750m;
• Tier two: Banks and building societies with regulatory capital between £50m and £1bn, full scope BIPRU firms with capital resources between £100m and £750m;
• Tier three: Any bank, building society, full scope BIPRU firm that does not fall into any of the other tiers;
• Tier four: All limited license and limited activity firms (including third country BIPRU firms with such permissions) e.g. fund managers.

Tier four firms will not be required to have, for example, a remuneration committee, set ratios between fixed and variable remuneration; award a percentage of variable remuneration in shares or defer variable remuneration over an appropriate period as these requirements are considered overly burdensome for smaller firms. However, such firms will still be required to comply with other new, less detailed requirements including that variable remuneration does not limit the firm's ability to strengthen its capital base (amongst others).

The revised remuneration code came into force on 1 January 2011 in respect of 2010 performance with an extension period until 1 July 2011 for firms newly within its scope. The new disclosure rules came into effect on 1 January 2011. The FSA requires firms to make their first disclosure in relation to 2010 remuneration as soon as practicable, but no later than 31 December 2011.

Following a consultation in April 2011, the FSA published finalised guidance (FG11/11) on the Revised Code in August 2011. The guidance is targeted at banks, building societies and Capital Adequacy Directive ("CAD") investment firms (which generally corresponds with firms subject to MiFID). Specific guidance is provided on the Revised Code‟s rules on retention periods and guaranteed variable remuneration. It also includes guidance on Frequently Asked Questions and templates which tier 2, 3 and 4 firms should use in order to assess their compliance with the Revised Code (Remuneration Policy Statements). In August the FSA also published two "Dear CEO" letters as part its consultation on the Revised Code. The two letters are targeted at Tier 1 and Tier 2, 3 and 4 firms respectively. They set out the ways in which firms are expected to comply with the Revised Code and how the FSA intends to monitor their compliance. The annexes to the letter contain guidance on the definition of "code staff", long-term incentive plans (LTIPs) and the structure of alternative investments. The 4-week window for the submission of responses to the guidance closed on 2 September 2011.

Since the implementation of the Revised Code, although the much feared exodus of bankers has not yet materialized, concerns have been expressed about the eventual effect of the Code on the labour market. From the institution perspective, the EU‟s (and consequently the UK‟s) prescriptive approach has been contrasted with the more flexible approach of the United States, Japan and Canada and frustration has been expressed that firms may be subject to different but overlapping requirements, meaning more time spent monitoring compliance. On a more practical note, it is clear that organisations will need to be prepared for a much closer relationship between their HR and compliance functions when it comes to pay, which will again, take organisation.

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