UK: The Regulatory Change Treadmill In The UK – Gathering Pace Or Slowing Down?

A review of 2014 and a look forward to 2015

This time last year, Emma Radmore of Dentons looked at 10 key legislative and regulatory changes that will affect participants in the UK financial markets in 2014. The year 2014 has been to some extent a period of retrenchment, although many changes are still to come. This year, Emma looks at how the 2014 changes have taken effect, and looks forward to the key regulatory priorities and changes for 2015.

CRD 4 package – some in effect, some still to come

The package comprising the latest updates to capital resources and related prudential standards, known as CRD 4, took effect on 1 January 2014. In last year's update we looked in detail at the areas affected by the immediate changes.

The next area of key change stemming from the CRD 4 package involves liquidity. In December 2014, the Prudential Regulation Authority (PRA) issued a consultation on draft rules and a draft supervisory statement on an update to its liquidity regime. The update follows the Commission's adoption of delegated legislation under the part of the CRD 4 package that is the Capital Requirements Regulation (CRR), which takes effect at the end of the year and will be directly applicable in UK law from 1 October 2015. While PRA says it can retain the principles behind the current liquidity regime, the structural changes it proposes are fundamental.

Consumer credit regulation transfers to FCA

On 1 April 2014, the regulation of consumer credit and related services passed from the Office of Fair Trading (OFT) to the Financial Conduct Authority (FCA). This meant that all holders of OFT licences had to register with FCA for 'interim permission' before 1 April to ensure they could carry on trading from 1 April, and firms that were already FCA authorised for other activities had to register for an 'interim variation of permission'. Firms that fell within the scope of FCA authorisation for the first time had to consider whether they needed to restructure their businesses, for example, to cater for the fact the 'group licence' arrangement under the OFT regime was not carried across, whether to become appointed representative of other firms, or if their business was such as to require only a 'limited permission' – essentially reserved for those that broke credit as a secondary activity, presenting low risk and benefiting from lighter regulation.

FCA has now contacted all firms with interim permissions of any kind, giving them 'landing slots' within which they must apply for their full authorisation. The firms whose business presents the highest regulatory risks have been granted the earliest slots. In principle, each firm must submit its application during its slot, and if it has not done so by the time the slot ends, it will lose its interim permission. Once the application has been filed, the interim permission continues until FCA has determined the application. The idea still remains that all firms will be fully authorised by mid-2016.

Consumer credit firms are now living with the reality of FCA style supervision, which means that they are the target for enforcement action and thematic reviews. FCA has already announced its intention to conduct a number of reviews of key aspects of the market, including several to address its concerns about the high-cost short-term credit markets.

Mortgage market review reforms take effect – and mortgage credit directive to be implemented

In April 2014, FCA's rules implementing the Mortgage Market Review (MMR) rules took effect. We reported last year on the key changes this brought to the sales process for mortgages, largely within FCA's MCOB Sourcebook, including that:

• Non-advised sales are (with limited exceptions only) no longer possible;
• Lenders are fully responsible for assessing affordability;
• Every seller must hold a relevant mortgage qualification;
• New disclosure requirements took effect; and
• Lenders can grant interest-only loans only where there is a credible strategy for repaying the capital.

Just when firms thought they had got used to the changes, Treasury and FCA issued consultations on implementing the EU Mortgage Credit Directive (MCD) into UK law, which they must do by 21 March 2016. Treasury is aiming to produce final rules a year in advance. Its consultation says the government does not believe the MCD offers many additional benefi ts to UK consumers but will entail significant costs for the industry. It also feels there is little opportunity to use the MCD passport to access other markets, as the MCD has not addressed the main hurdles for accessing these markets. Accordingly, its stance in negotiations was to try to steer the MCD to resemble the current UK regulatory regime so far as possible. As a result, Treasury feels that its normal copy-out tactic is not the correct approach to implementation, and that the better route is primarily through amendment to FCA rules. The main changes will be:

• to accommodate second-charge mortgage lending within the mortgages regime rather than the consumer credit regime (and to treat any lending to consumers as consumer credit, even if it is unsecured or is secured on something other than the relevant property). FCA will deal with the changes in its Mortgage and Home Finance (Conduct of Business) Sourcebook so far as possible, and Treasury proposes grandfathering of certain activities into the new regime.
• in relation to buy-to-let mortgages. The UK had previously decided not to regulate buy-to-let mortgages and so intends to take advantage of the option in the MCD to exempt this market from regulation. But it must nevertheless put in place an alternative framework to appropriately protect consumers, and Treasury in consulting on its plans for this. It will need to legislate to bring mortgages within the scope of FCA regulation when a borrower or relative occupies less than 40% of the property and lets out the rest. So far as possible, and for buy-to-let arrangements that do not need to come within regulation, Treasury will copy out the relevant sections of the MCD to apply to consumers.

The UK will use exemptions in the MCD to avoid imposing new requirements in relation to lifetime mortgages, bridging loans (although the MCD exemption is narrower than the current FCA definition so it will need to make some adjustments), credit union mortgages and overdrafts that last less than a month. FCA stresses that both the MCD and its rules largely exclude business borrowing.

Firms will have to comply with the new rules by 21 March 2016, but FCA will introduce the ability to comply with them from December 2015.

AIFMD transitional period expires

The Alternative Investment Fund Managers Directive (AIFMD) should have been implemented across the EU in July 2013. Its main purpose was to:

• regulate those who manage 'alternative investment funds'; and
• control the marketing of those funds throughout the EU. The rules apply regardless of the form and location of the fund, but apply differently depending on the type and location of both fund and manager. The AIFMD allowed a transitional period within which (in UK-speak) managers and depositaries had to apply for authorisation or a variation of permission and funds could continue to be marketed provided certain conditions were met. This period expired on 21 July 2014.

So, as we reported last year, during 2014:

• firms should have applied to FCA for the necessary new permissions or authorisations;
• any firm taking advantage of the transitional provisions should have been in full compliance with the relevant rules by 22 July;
• firms had to ensure that they have policies and procedures in place to comply with the Alternative Investment Fund Managers Regulations and the rules of FCA (particularly within its 'FUND' Sourcebook) including those on remuneration, risk management, conflicts of interest and reporting; and
• distributors wishing to market third country AIFs who have been able to benefit from the transitional provisions on marketing had to advise the AIFMs of the third country AIFs on the necessary notifications the AIFM must make to FCA, and the transparency and disclosure requirements and other conditions that must be met in order for FCA to allow the marketing.

In practice, only around two thirds of European Economic Area Member States have implemented the AIFMD in time. This has led to a fragmented market place. All AIFMs and distributors still have to check what the notification procedures are in any given member state for marketing AIFs. Overlaid on this is the continuing National Private Placement Regime (NPPR), which allows member states to introduce certain of their own requirements, and allows significant variance for matters not covered by AIFMD. As if that were not enough, an oversight in the drafting of the original Directive meant that some member states have held that AIFMs are not allowed to provide investment services under the Markets in Financial Instruments Directive (MiFID) except in relation to funds for which they are the AIFM. This has been corrected by MiFID 2 (see below), and all member states urged to allow it, but they are not obliged to do so until July 2015.

Additionally, AIFMs are now required to comply with the full set of AIFMD reporting requirements.

Banking reform act and bank recovery and resolution directive – changes gathering pace

The Financial Services (Banking Reform) Act got Royal Assent in December 2013. We described last year the key changes.

Treasury is gradually bringing into force key elements of the Act, and, in the meantime, the regulators are consulting on technical implementation.

The Bank of England (BoE) and PRA published a set of papers proposing changes to improve the resilience of the UK financial system, including papers on implementing ring-fencing and on ensuring operational continuity in resolution.

BRRD implementation

Alongside this, the UK regulators are preparing for UK implementation of the Bank Recovery and Resolution Directive (BRRD), which had to be done by the end of 2014. Treasury, PRA and FCA all published consultation papers. Key issues from the papers included:

• giving PRA and FCA more power over a greater array of holding companies in respect of financial support issues;
• setting out requirements on firms to prepare, maintain, and submit recovery plans: firms that are not part of a group subject to consolidated supervision must draw up and maintain individual recovery plans. They will have to update the plans after any material changes (widely defined) and in any event at least annually;
• entering into intragroup financial support (IGFS) arrangements in advance of recovery;
• notifying the regulator of failure or likely failure; and
• recognising in the contracts for certain liabilities that they may be subject to bail-in.

FCA needs to implement the BRRD in respect of the 230 firms that are solo-regulated by it and that are categorised as IFPRU 730K fi rms. It proposes the scope of requirement for recovery plans including application of general and simplified obligations. It thinks that, based on a model it will apply, only 40 of the 230 IFPRU 730K firms will fall above the simplified approach threshold.

Senior manager regime – more accountability for more individuals

During 2014, PRA and FCA consulted on changes to improve individual responsibility and accountability in the banking and insurance sectors.

The banking proposals build on the Banking Reform Act and the recommendations of the Parliamentary Commission on Banking Standards, and comprised two papers.

• The first paper set out the new senior managers regime (SMR) for the most senior individuals whose behaviour and decisions have the potential to bring a bank to failure, or to cause serious harm to customers. The regime will not only make these appointments subject to regulatory approval. The new rules will give the regulators better powers to hold senior individuals to account but will also clarify lines of responsibility and require banks to regularly vet their senior managers for fitness and propriety. The SMR would cover not only members of a firm's board but also, for larger and more complex firms, executive committee members (or equivalent), heads of key business areas meeting certain quantitative criteria, individuals in group or parent companies exercising significant influence on the firms' decision-making, and, where appropriate, individuals not otherwise approved as senior managers but ultimately responsible for important business, control or conduct-focused functions within the firm. Alongside this regime will be a certification regime (CR) under which firms must assess fitness and propriety of staff in positions where the decisions they make could pose significant harm to the bank or any of its customers. These appointments will not be subject to regulatory approval but will require a senior manager to take responsibility for each assessment. The rules will also require firms to carry out these assessments annually. The regulators will prescribe the individuals who fall within the CR. For PRA, it will mainly be 'material risk-takers'. For FCA, it will be wider, covering also customer-facing roles that are subject to qualification requirements, any individuals who supervise or manage another Certified Person, and any other significant influence function roles under the current Approved Persons Regime not otherwise covered by the SMR, such as benchmark submitters. Finally, the paper proposes statements of high level principle (Conduct Rules) that set out the standards of behaviour for bank employees who fall within the SMR or CR. FCA wants to apply the Conduct Rules to all other employees of relevant firms except staff carrying out purely ancillary functions. These new conduct rules will replace the current Statements of Principle for Approved Persons for firms and individuals to whom they apply. The paper sets out in detail PRA's and FCA's thinking and proposals, and asks several questions.
• The second paper consults on new remuneration rules. The main purpose of the rules is to increase the alignment between risk and reward over the longer term.

Later in the year followed consultations on a Senior Insurance Managers Regime (SIMR) for insurers, which will apply to the Chief Executive, Finance, Risk and Underwriting Officers of insurers, the Head of Internal Audit, the Chief and With-Profits Actuary, and, for Lloyd's, the Underwriting Risk Oversight Function. It also introduces new key functions for a Group Entity Senior Insurance Management Function and, for third country branches, the Third Country Branch Manager function. The proposals stem in part from requirements in the Solvency 2 Directive and are similar to, but not the same as, the regime for the banking sector. The criminal sanctions and the 'presumption of responsibility' that are features of the banking senior manager regime will not be part of the SIMR. The proposals will require each holder of a 'senior insurance management function' to be approved by PRA. Its rules will set out how firms must ensure individuals who carry out key functions are fit and proper at all times, and how they must allocate prescribed responsibilities within their businesses. PRA also proposes a set of conduct standards for any individual within a relevant firm who is a person performing a 'key function'. PRA's paper and proposed new rules are accompanied by a draft supervisory statement;

FCA is proposing to amend its Approved Persons framework in line with Solvency 2 and to make certain other changes, some to make the regime consistent with that proposed for banks

Deferred prosecution agreements

The Crime and Courts Act introduced the ability for UK authorities to use Deferred Prosecution Agreements (DPAs) for certain economic crimes when committed by corporates. DPAs form an alternative to criminal prosecutions where it is appropriate, and where certain conditions apply. During 2014, the Prosecuting Authorities developed Codes of Practice for entering into DPAs and as a result the relevant provisions of the Crown and Courts Act came into force.

However, we still await the first DPA, although the Serious Fraud Office (SFO) have stated several times during 2014 that they believe they have identified a suitable case for one. We also await the first prosecution (or indeed DPA) for breach of the 'failure to prevent' bribery offence under the Bribery Act. We await this all the more keenly now as the Director General of the SFO has said he is in favour of extending the offence to other economic crimes, such as money laundering. There has been no comment from the Government on this, however, and it is not clear how this change could reasonably be introduced into certain legislation.

MiFID 2

The revision to MiFID, comprising a new Markets in Financial Instruments Directive (MiFID 2) and Markets in Financial Instruments Regulation (MiFIR) was adopted in the summer of 2014. The package both changes significant parts of the current MiFID, and introduces new concepts. Among other things, the changes:

• introduce a market structure framework which will ensure that as much trading as possible takes place on regulated platforms, and mandate a trading obligation for shares as well as derivatives that are subject to the clearing obligation. The new requirements include the creation of a new organised trading facility (OTF), whose operators must meet certain standards, alongside the existing platforms;
• increase equity market transparency and set a principle of transparency for non-equity instruments such as bonds and derivatives;
• enhance the effective consolidation and disclosure of trading data;
• provide for strengthened supervisory powers and a harmonised position-limits regime for commodity derivatives;
• establish a harmonised EU regime for nondiscriminatory access to trading venues and CCPs;
• introduce trading controls for algorithmic trading activities including the requirement for all algorithmic traders to be properly regulated and to provide liquidity when pursuing a market-making strategy;
• improve organisational requirements, such as client asset protection or product governance, and also strengthen conduct rules such as an extended scope for the appropriateness tests and better information for clients. MiFID 2 clearly distinguishes independent advice from non-independent advice and beefs up inducement and commission rules; and
• introduce a harmonised regime for granting access to EU markets for firms from third countries providing services to professional clients and eligible counterparties based on an equivalence assessment of third country jurisdictions by the Commission.

ESMA issued lengthy consultation and discussion papers on several aspects of the technical advice it is required to provide to the European Commission. We still await the results of these consultations, but it is clear there will be certain fundamental changes to Member State laws, in time for the implementation date of 3 January 2017. While there may appear to be plenty of time, regulated firms should already be undertaking their gap analyses, to assess what changes they will need to make, both in terms of organisational and conduct of business issues and in respect of their trading strategies.

Changes to client money and asset protection rules

FCA has published its policy statement and final rules following its review of the client asset regime for investment businesses. As a result, it has made several changes to the Client Assets Sourcebook (CASS) including to:

• clarify the rules around depositing custody assets when using third parties;
• require firms to have in place written agreements when they place custody assets with third party custodians;
• put in place requirements for written agreements and procedure for switching in relation to title transfer collateral arrangements;
• the delivery versus payment exclusion for commercial settlement systems;
• the exemption available to banks;
• disapply the client money distribution rules to money held by a trustee firm and allowing trustee firms to opt in to certain client money rules;
• clarify when money ceases to be client money and the consequences;
• the requirements on assignments and transfers of client money;
• put in place new rules on due diligence and diversification when selecting banks;
• to require immediate segregation of client money except where firms are using the alternative approach;
• rules on prudent segregation and the alternative approach to client money segregation;
• requirements where client money is held at third parties or client money relating to client assets held with a custodian;
• to permit clearing member firms of central counterparties to offer multiple client money subpools in relation to net margined omnibus client accounts at CCPs.

The changes will take effect at various times. Some took effect from 1 July, mainly the clarificatory rules. Many took effect on 1 December, including those on provision of information, with all other rules taking effect on 1 June 2015. The changes are wide ranging and affect all of CASS. The policy statement includes a table setting out the commencement dates for all changes.

MLD 4

Finally, and running behind the MiFID and MAD review packages, is the review of the Money Laundering Directive (MLD 4). This review seeks to update the current EU legislation on money laundering and wire transfers and bring them into line with the current Financial Action Task Force recommendations. Among the major changes proposed are:

• extension in scope to include all tax crimes as predicate offences and to include more activities within the scope of the due diligence requirements;
• a wider definition of Politically Exposed Person;
• accessibility of beneficial ownership information (in the UK, this has translated into a proposal for a publicly searchable register of beneficial ownership); and
• stricter controls on the use of Simplified Due Diligence.

MLD 4 has still not been adopted at early December 2014. There have been significant political stumbling blocks in the proposal, in particular around beneficial ownership registers and the conflict with data protection laws. The European institutions are urging an early compromise, but it will be at least 18 months from any final adoption of MLD 4 until the changes take effect. Meanwhile, the UK is pushing ahead with its plans to create a publicly available beneficial ownership register.

What missed out?

In our last year's 'top 10', we also included the European Market Infrastructure Regulation (EMIR). This remains topical, with the first trade repositories (TRs) being registered by ESMA, so 12 February 2014 is the start date for reporting of all derivatives classes. Authorisation of Central Counterparties (CCPs) has also begun. ESMA has also produced several sets of advice for the European Commission on the clearing of a variety of types of derivative contract. Variation requirements for non-centrally cleared trades will apply from 1 December 2015. Initial margining requirements will be phased in between 1 December 2015 and 1 December 2019.

Also omitted from this year's top 10 is the revised Market Abuse Regulation and Directive on Criminal Sanctions for Market Abuse. As expected, this package as agreed alongside the MiFID 2 package, and will take effect in mid-2016.

For this year we have not covered several other key developments in the interests of space. During 2015, however, the UK will be working on implementing several more key pieces of EU legislation, including Solvency 2, and the recast Insurance Mediation and Payment Services Directives.

Conclusion

So, 2014 saw many changes being embedded into UK law. The year 2015 will see further changes coming into force, but to some extent this will be an opportunity to assess preparedness for the more significant changes that will follow in 2016 and beyond. There is no sign of regulatory reform slowing down in the imminent future.

This article first appeared in the February 2015 edition of Financial Regulation international.

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