Financial Services SpeedRead 15 March 2023 edition

1. FCA: Multi-Firm Review: Fast-Growing Firms

On 10 March 2023, the FCA published its findings of a multi-firm review conducted in 2021-2022 on fast-growing firms, focusing on CFD providers, wealth managers and payment services firms (the Review).

The Review assessed 25 FCA solo-regulated firms which had experienced fast growth over a 3-year period (2018-2020), and the impact of such growth on their financial and non-financial resources. The Review focused on risk management practices, governance arrangements and adequacy of financial resources (capital and liquid assets) at firms across the 3 business models.

The main findings of the Review are the following:

• firms' risk management framework and governance arrangements (including staffing in second and third line of defence) have not kept pace with the growth in their business activities. While risk management may have been proportionate for such firms at authorisation, they had not evolved to scale with the business, which can result in an increased risk of poor outcomes for consumers;
• firms' assessment of the adequacy of financial resources did not consider the growth in their underlying business resulting in financial resources assessments that were not commensurate with the size, business model and underlying risk. This can affect the financial resilience of firms, increasing the risk of disorderly firm failure; and
• wind-down plans were inadequate following the fast-growth of these firms, increasing risk of harm in the event of firm failure.

The FCA confirmed that detailed feedback and recommended actions had been given to the firms reviewed to address the concerns identified. Recommended actions include updating the risk management and governance arrangements, wind-down plans and assessments of adequacy of financial resources. The FCA further noted that all firms that have grown rapidly, or have plans to do so, should read their findings and consider whether they need to make changes to their own arrangements.

2. HM Treasury: Terms of Reference: Investment Research Review

On 9 March 2023, HM Treasury published its policy paper on the Terms of Reference for its Investment Research Review. For context, as part of the Edinburgh Reforms set out by Chancellor of the Exchequer, Jeremy Hunt, the Government announced there would be an independent review of financial services investment research and its contribution to UK capital markets competitiveness. Please refer to Ashurst's previous briefing on the Edinburgh Reforms.

The Investment Research Review also follows Lord Hill's review into the capital markets, which made recommendations on how to boost the UK as a destination for IPOs and optimise the capital raising process for large and small companies on UK markets.

As stated in the Terms of Reference, the Investment Research Review will focus on two key objectives:

• assess the connection between research levels and the UK's attractiveness as a destination to list by:

(i)  providing evidence on how investment research provision in the UK compares or is perceived to compare with other international financial services centres, in both public and private markets;

(ii)  looking at the amount, quality and type of investment research currently provided on firms listed or quoted, or seeking to be listed or quoted, on UK public markets, and whether that has an effect on the attractiveness of UK markets for issuers;o considering the current level of demand investors have for research, factors driving this demand, and evidence of whether the amount, quality and type of investment research is sufficient to meet such demands; and

• evaluate options to enhance the UK investment research market and recommendations on how this can be achieved by:

(i) considering legislative and non-legislative measures, which may cover some that the FCA will be responsible for overseeing;

(ii) evaluating MiFID unbundling rules and their effect on investment research levels and quality; and

(iii)  suggesting any possible actions that industry should take.

3. FCA: Updated Webpage: Temporary Permissions Regime

On 7 March 2023, the FCA updated its webpage on the temporary permissions regime (TPR). The update reinforces that the TPR ends on 31 December 2023 and firms that wished to apply for full UK authorisation should have done so by 31 December 2022 (i.e. when the sixth and final landing slot closed). The FCA stated that they expect most applications will be determined by the end of June 2023, although the exact timeframe for each application will depend on a number of factors. These factors include the firm's landing slot (i.e. when the firm applied) and the complexity and quality of the application. Firms seeking an update on their application can contact their case officer.

As a reminder, the FCA stated that they expect firms without a valid reason for not seeking full authorisation to voluntarily apply to cancel their temporary permission and either enter the Financial Services Contracts Regime to run-off their UK business (if eligible) or leave the UK regulatory perimeter. The FCA reiterated that they intend to take action to cancel the temporary permission of firms which do not take these steps voluntarily.

4. FCA: Updated Webpage: Perimeter Report

On 6 March 2023, the FCA published its annual perimeter report, which sets out what does and does not fall within the FCA's scope of regulation.

The key points from this report include:

• SMCR: the Financial Services and Markets Bill contains provisions for extending the SMCR to recognised exchanges firms and credit rating agencies firms, but does not extend to payments and e-money firms. The FCA will continue working with the HM Treasury to see whether there is merit in extending the SMCR to these firms;
• the Overseas Persons Exclusion: the FCA's view is that this exclusion was "not intended to run a UK-focused business". The FCA is working with HM Treasury to consider whether the current operation of the regime suitably balances market integrity and consumer protection, the promotion of competition, and openness whilst protecting financial markets' resilience;
• Cryptoassets: current activities are outside of the FCA's regulatory perimeter but the FCA is working with HM Treasury to consider whether regulatory or legislative change is needed to build a future regime for cryptoassets. Where relevant, the FCA will work with international partners to maintain consistency in standards for digital assets; and
• Online Safety Bill: the FCA has clarified that this Bill should protect consumers from illegal online scams. The FCA stated that they welcome the changes which the Government made in 2022 to the scope of the Bill to impose a duty on the largest online platforms to protect consumers from fraudulent advertising. Furthermore, material relating to fraud offences is to be designated as "priority illegal content". The FCA will work closely with the Government and regulatory partners on the Online Advertising Programme and as the Bill continues its legislative journey.

5. FCA: Trade Data Findings Report and Wholesale Data Market Study

On 2 March 2023, the FCA published its Findings Report following its review into trade data.

The FCA considered that access to good quality fairly priced trade data (i.e. information on prices and volumes traded and supplied by venues, amongst other things) is important for the whole financial data system.

The FCA has identified issues in relation to the following:

• pricing of trade data;

• limited choice and switching;
• complex pricing and licensing; and
• delayed data challenges.

The FCA confirmed that it is now working with the Government to develop consolidated tapes, adding that the FCA plans to consult on a consolidated tape by the summer of 2023. The FCA stated that findings of the wholesale data review will help inform the design of consolidated tapes.

The FCA has also published a market study notice, together with terms of reference confirming that the FCA intends to carry out a market study into whether the markets for benchmarks, credit ratings data and market data vendor services in the UK are working well. The deadline for comments on the terms of reference, and on whether a market investigation to the Competition and Markets Authority is justified is 30 March 2023. The market study report is expected to be published by March 2024.

The FCA also confirmed that it will assess whether any further work is needed in wholesale markets within the context of wider priorities, upcoming legislative changes implementing the outcomes of the Future Regulatory Framework (FRF) Review, and the global context in wholesale data markets.

6. European Commission: Call for Evidence: Benchmark Regulation Third-Country Regime

On 1 March 2023, the European Commission issued a call for evidence for its initiative in relation to the Benchmark Regulation (BMR). This initiative will review whether the scope of the EU rules for financial benchmarks as well as the rules for the use of non-EU financial benchmarks are still fit for purpose.

In particular, the call for evidence highlighted the following problems which the initiative aims to tackle:

• ensuring continued access to benchmarks worldwide for EU businesses and investors: the BMR contains rules on the use of non-EU benchmarks, which will apply from 1 January 2024. Under the rules, non-EU benchmarks can be used in the EU only if they comply with rules comparable to the BMR. Accordingly, by prohibiting the use of non-EU benchmarks by default, the call for evidence pointed out that the system would effectively cordon off the EU market from available benchmarks. This issue is coupled with a lower than anticipated level of regulation in jurisdictions outside the EU; and
• promoting EU benchmark labels as an open standard under EU supervision: the call for evidence noted that currently, non-EU administrators offering benchmarks in the EU under transitional arrangements can use labels for EU climate transition benchmarks and EU Paris-aligned benchmarks without supervision. The initiative will consider how non-EU administrators can continue to provide labelled benchmarks, subject to EU supervision of all label-related BMR provisions.

The feedback period for the call for evidence ends on 29 March 2023.

7. HM Treasury: The Financial Services and Markets Act 2000 (Commodity Derivatives and Emission Allowances) Order 2023

On 1 March 2023, the draft Financial Services and Markets Act 2000 (Commodity Derivatives and Emission Allowances) Order 2023 was published, together with an explanatory memorandum. The draft Order concerns the ancillary activities exemption as outlined in Schedule 3 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544). This regime is applicable to firms trading commodity derivatives or emission allowances chiefly for investment purposes or support of the firm's commercial business.

The draft Order has been published in response to feedback received in relation to the Wholesale Markets Review, which indicated industry preference for a simplified method to determine when an activity is ancillary. The measures were foreshadowed in the written statement published by Jeremy Hunt in December 2022, detailing plans for the UK financial regulatory framework (please see Ashurst's previous briefing here).

The draft Order:

• amends Schedule 3 of the RAO to remove the requirement to notify the FCA when a firm is making use of the exemption when the activity of trading commodity derivatives/emission allowances is ancillary to its main business. The FCA is to establish a simpler regime for determining when a firm that trades commodities or emission allowances as an ancillary activity does not need to be authorised as an investment firm;
• amends Regulations 30 and 47 of Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 to reflect the removal of the requirement from the RAO for firms to notify the FCA of the outcome of the Ancillary Activities Test on an annual basis and gives the FCA the power to direct persons to notify it of their status; and
• removes Article 72J of the RAO, which enables firms to carry on their business without obtaining authorisation if there is no data available to enable them to perform the test establishing when an activity is ancillary and which provided firms with relief from the need to seek authorisation (EU withdrawal has meant that the UK does not have relevant data at EU level needed to perform the current market threshold test and so it is considered that Article 72J no longer serves its original purpose).

8. HM Treasury: Call for Evidence: Aligning the Ring-Fencing and Resolution Regimes

On 2 March 2023, HM Treasury published a call for evidence seeking views on the practicalities of aligning the ring-fencing and resolution regimes for banks and long-term options for reform.

The call for evidence follows the findings of the statutory independent review on ring-fencing chaired by Sir Keith Skeoch (the Skeoch Review), which concluded that the benefits of the ring-fencing regime would likely reduce over time as the resolution regime for banks is embedded. The Skeoch Review concluded that the resolution regime offers a more comprehensive solution to addressing the problems of 'too big to fail' and recommended that the Government consider the practicalities of aligning the ring-fencing and banking resolution regimes, while maintaining the UK's financial stability.

The call for evidence is the first stage in the Government's response to this recommendation, and responses to it can be provided by 7 May 2023.

9. Bank of England: Consultation Paper: Strong and Simple Framework - Liquidity and Disclosure Requirements for Simpler-Regime Firms (CP4/23)

On 27 February 2023, the Bank of England published a consultation paper "Strong and Simple Framework: Liquidity and Disclosure requirements for Simpler-Regime Firms (CP4/23)". The consultation follows the PRA's April 2021 discussion paper (DP1/21) and April 2022 consultation paper (CP5/22) in which it proposed a simplified prudential framework for small, domestic banks and building societies (Simpler-Regime Firms).

The PRA's November 2022 consultation paper (CP16/22) covering the parts of the Basel III standards that remain to be implemented in the UK also set out the proposed criteria that small firms should meet in order to qualify as Simpler-Regime Firms.

The strong and simple framework is designed to take a number of years and be implemented in stages. CP4/23 sets out the first phase of proposed simplifications that would apply to Simpler-regime Firms. These proposals consist of the following:

• new liquidity requirements for the application of the net stable funding ratio;
• revisions to the application of Pillar 2 liquidity add-ons;
• a new, streamlined Internal Liquidity Adequacy Assessment Process (ILAAP) template;
• the removal of certain liquidity reporting templates;
• new Pillar 3 disclosure requirements for Simpler-Regime Firms; and
• simplifications to certain proportionality approaches currently applicable in the PRA Rulebook.

The deadline for responses is 30 May 2023.

10. BoE (PRA): Speech by Victoria Saporta: The Regulatory Foundations of International Competitiveness and Growth

On 27 February 2023, Victoria Saporta (Executive Director, Prudential Policy) delivered a speech titled: "The regulatory foundations of international competitiveness and growth".

Parliament is currently debating the Financial Services and Markets Bill that will redefine the PRA’s powers and responsibilities (including giving the PRA a new secondary objective). This would require the PRA to act when they can to facilitate the UK economy's international competitiveness and its growth over the medium to long term, subject to alignment with international standards.

Ms Saporta confirmed in her speech that the PRA's plan is to deliver responsible openness that harnesses the UK's strengths as a global financial centre as well as tailor rules to UK circumstances when appropriate to do so.

Ms Saporta concluded her speech by stating that the new objective will lead to big changes in how the PRA makes rules and the PRA has already been working hard developing their ideas about what competitiveness means for the financial services industry and how it is connected to growth.

11. FCA: Multi-Firm Review: IFPR Implementation Observations - Quantifying Threshold Requirements and Managing Financial Resources

On 27 February 2023, the FCA published a multi-firm review on firms' implementation of the internal capital adequacy and risk assessment (ICARA) process and reporting under the Investment Firms Prudential Regime (IFPR).

The review focused on firms' capital adequacy, liquidity adequacy and wind-down planning as part of the ICARA process, as well as regulatory reporting.

The review found that most firms engaged well and progress has been made in understanding the requirements of the ICARA process.

However, areas for improvement were identified, including:

• many firms which opted for the 'group ICARA process' gave insufficient consideration to firm-specific risks and harms in the assessment of threshold requirements of individual firms required by MIFIDPRU;
• among firms who completed an ICARA process on a 'consolidated basis', only few also operated a solo ICARA process (i.e. assessing the financial resource requirements of individual firms in the group) as required by MIFIDPRU;
• ICARA processes should be fully integrated in the firm's approach to managing financial resources to mitigate the risk and harms from its operations. Some firms failed to make the assessment as part of the cohesive ICARA process;
• wind-down planning assessments are generally weak in terms of scope and quantification, reflecting an incomplete understanding of the purpose of the exercise and guidance previously provided; and
• some firms are submitting inconsistent and inaccurate data submitted in regulatory reports. Firms should ensure that all data submitted is accurate and of high quality.

The FCA intends to publish a concluding report after completion of the review, and may publish further interim observations where appropriate.

12. FCA: Updated Webpage: Dual-Regulated Firms Remuneration Code

On 27 February 2023, the FCA updated its Remuneration Code (SYSC 19D) webpage by adding a new section titled: "Publication of PRA (CP5/23)Remuneration: Enhancing proportionality for small firms".

CP5/23 outlines proposed changes to the application of proportionality for dual regulated firms, linked to the PRA's Strong and Simple framework proposals. The FCA confirmed that they are working with the PRA to consider the changes that may be required to their own rules and the timing of these.

No updates for this edition of the FSS.

No updates for this edition of the FSS.

13. FATF Guidance on Beneficial Ownership of Legal Persons

On 10 March 2023, the Financial Action Task Force (FATF) published its guidance on beneficial ownership of legal persons.

By way of context, in March 2022, the FATF agreed on tougher global beneficial ownership standards in its Recommendation 24 by requiring countries to ensure that competent authorities have access to adequate, accurate and up-to-date information on the true owners of companies. The guidance published by the FATF will help countries implement the revised Recommendation 24.

14. NCA: Revised Guidance on Suspicious Activity Reports

On 9 March 2023, the National Crime Agency (NCA) published updated guidance on submitting suspicious activity reports (SARs).

Topics covered include how to submit using the online system and how to obtain a defence against money laundering or terrorist financing. It also covers dos and don'ts and provides brief explanations on how certain inputs help or hinder the NCA's work.

The guidance also sets out examples of deficiencies in SARs and how they can be improved.

15. JMLSG: Updated Part II Guidance

On 5 March 2023, the Joint Money Laundering Steering Group (JMLSG) published revisions to its guidance.

The amended guidance in Part II relates to:

• wealth management (sector 5);
• financial advisers (sector 6);
• consumer credit providers (sector 11A);
• private equity (sector 13); and
• cryptoasset exchange providers and custodian wallet providers (sector 22).

These currently await Ministerial approval, following submission to HM Treasury.

Part I Chapter 6 6.70-6.71 of the Guidance has also been amended to show that the Financial Ombudsman can effectively handle complaints with a money laundering element.

16. FCA: Dear CEO Letters: Consumer Duty

The FCA continues to support in scope firms on the Consumer Duty implementation process through a programme of engagement, which includes setting out its expectations under the Consumer Duty in letters (see our previous edition of the FSS on 9 February 2023).

On 3 March 2023, the FCA updated its webpage with a new series of 'Dear CEO' letters addressed to firms in the following sectors:

• motor finance providers;
• credit unions;
• retail finance providers;
• mortgage intermediaries; and
• credit brokers.

These Dear CEO letters include a reminder of the following:

• the timeline for introducing the Duty;
• how the Duty applies to firms in the relevant sector;
• a summary of the requirements of the Duty;
• the FCA's expectations for the way in which firms in the relevant sector should embed the Duty;
• feedback from the FCA's review of implementation plans; and
• an overview of the FCA's approach to supervision and next steps.

No updates for this edition of the FSS.

17. ESMA: Guidelines on Standard Forms, Formats and Templates to Apply for Permission to Operate a DLT Market Infrastructure

On 8 March 2023, ESMA published translations of its Guidelines on standard forms, formats and templates to apply for permission to operate a DLT market infrastructure. ESMA published the Final Report in relation to the guidelines in December 2022. The EU DLT Pilot Regime applies from 23 March 2023.

Key features of the Guidelines include:

• templates to be used by market participants to apply for specific permission to operate any type of DLT market infrastructure under the EU DLT Pilot Regulation; and
• templates to be used for DLT market infrastructure to request limited exemptions from specific requirements under MiFIR, MiFID II or CSDR, provided that they comply with certain conditions.

The publication of the translations will trigger the start of a two-month period during which national competent authorities in each member state must confirm whether they comply or intend to comply with the Guidelines.

18. House of Commons: Research Briefing: Central Bank Digital Currencies - The Digital Pound

On 8 March 2023, the House of Commons published a research briefing on central bank digital currencies (CBDCs): the digital pound. CBDCs, as defined by the BoE, are an electronic form of money that consumers hold with their country's central bank.

The research briefing confirmed that in March 2023, four CBDCs were operating and 114 other countries were exploring the concept. The UK Government and BoE, as stated in the briefing, have been exploring the idea of introducing a CBDC and they are consulting on principles and plans for developing it, but the BoE has no plans as yet to introduce a digital pound.

With respect to the benefits and risks of CBDCs, the briefing explained that CBDCs would aim to promote reliability and stability while allowing more competition and innovation. However, implementing CBDCs also poses technical and security challenges, including increased risk of cyber-attack as well as raising concerns about data privacy.

The briefing also referred to the consultation, launched by the BoE and the Treasury in February 2023, on the assessment of the potential need for a digital pound and its design ideas.

For more information on the consultation, please see our briefing.

19. House of Commons: Treasury Sub-Committee on Financial Services Regulations: Letter: Greenwashing - Sustainability Disclosure Requirements and Investment Labels Consultation

On 9 March 2023, a letter from Harriett Baldwin, Chair of the Treasury Committee to Nikhil Rathi, Chief Executive of the FCA was published titled: "Greenwashing - Sustainability Disclosure Requirements and Investment Labels Consultation".

In the letter, the Treasury Sub-Committee on Financial Services Regulations warned that consumers who currently invest in funds guilty of greenwashing may have to pay to move their investments into new "sustainable" funds.

Specifically, concerns were raised by the cross-party Committee of MPs in relation to the fact that the FCA has not put a figure on how much this will cost consumers. The letter calls on the regulator to conduct a more detailed cost benefit analysis of its proposals. MPs further asked the regulator what enforcement work it will be doing to tackle funds who have misled consumers.

In addition to the above, MPs also asked whether there is a risk that tighter regulations could drive funds away from ESG investing or out of the UK, subsequently reducing consumer choice.

20. The Financial Services Regulatory Initiatives Forum: Regulatory Initiatives Grid

On 28 February 2023, the Financial Services Regulatory Initiatives Forum published its Regulatory Initiatives Grid, which sets out upcoming regulatory developments over the next 24 months in order to help the financial services industry to prepare for initiatives that may significantly affect them. The Forum consists of the BoE, the FCA, the Competition and Markets Authority, the PRA, the Pensions Regulator, the Information Commissioner's Office and the Financial Reporting Council.

The initiatives in the latest grid concern matters such as: consumer protection; enhancing transparency and value for money; and the themes emerging from the Financial Services and Markets Bill as well as the Edinburgh Reforms. There is an increased number of initiatives regarding cryptoassets, as well as others to maintain the regulatory regime's ability to meet new challenges and opportunities.

The key initiatives are:

• the Second Treasury Consultation Paper with accompanying draft legislation regarding the regulation of Buy Now Pay Later (February 2023);
• the Payment Services Regulations Review: Call for Evidence closes in April 2023;
• a Policy Statement, final rules and guidance on Streamlined Regime for S&S ISAs are expected to be published in Q2 2023;
• following the market review of the supply of card-acquiring services, the deadline for the implementation of final remedies by providers is 6 July 2023;
• at the end of July 2023, the Consumer Duty will come into force for products which can be sold or renewed;
• in Q4 2023, performance data is due to be published for the first set of Authorised Push Payment scams prevention;
• at the end of March 2024, it is intended that the synthetic three-month sterling LIBOR will cease;
• for closed products, the Consumer Duty will come into force at the end of July 2024;
• the final group of Payment Service Providers are due to implement systems to provide Confirmation of Payee services in October 2024; and
• it is proposed that the outstanding Basel 3 banking standards will be implemented in January 2025.

21. UK Government: Press Release: Millions Released from Dormant Accounts to Support Vulnerable People with the Cost of Living

On 7 March 2023, the Department for Culture, Media and Sport published a press release in relation to money redirected from forgotten accounts to good causes under the Dormant Assets Scheme. Dormant asset, as explained by the press release, is a financial product, such as a bank account, that the customer has not used for many years, and which the business has been unable to reunite them with, despite making efforts based on industry best practice.

The press release confirmed that £76 million tied up in forgotten accounts will be used to support people to get out of debt and assist social enterprises with innovative energy saving solutions. Further, the press release stated that, in England, the Dormant Assets Scheme is being expanded to include community wealth funds, which will allow local residents to improve their communities.

22. FOS: Consultation: Temporary Changes to Outcome Reporting in Business-Specific Complaints Data

On 6 March 2023, the Financial Ombudsman Service (FOS) published a consultation on temporary changes to outcome reporting in its business-specific complaints data.

Between 1 November 2021 and 31 March 2022, the FOS amended the way it recorded the outcomes of certain complaints that were proactively resolved by businesses. This led to around 100 financial businesses making nearly 7,000 offers to resolve complaints, which ultimately helped complainants get fair answers more quickly. As a result, the FOS has been considering the results and feedback from that initiative in order to assess whether it should take this forward on a more permanent basis.

The deadline for responses is Monday 20 March 2023.