After FSA the new regulatory landscape

Transcription

1 After FSA the new regulatory landscape Simon Morris Partner - CMS Cameron McKenna LLP 5 th April 2011

2 What is proposed? Financial Policy Committee create the focus for macro-prudential regulation that is missing from the current framework. Prudential Regulation Authority financial stability of banks and insurers. Financial Conduct Authority conduct of business and market regulation for all firms, and prudential regulation for non-pra firms put appropriate consumer outcomes at the centre of the regulatory process centre of excellence for market regulation. Bank of England directly supervise settlement systems, payment systems and recognised clearing houses co-ordinate crisis management, with the Treasury responsible for deciding on the use of public funds.

3 What is the objective? To prevent a recurrence of the last financial crisis Recognise firms assumption and management of risk determines stability Regulators will have central policies eg FCA will provide intrusive and judgemental regulation

4 Operational targets Retain a competitive, world-leading financial services industry Have a rigorous and effective regulatory framework For regulators to provide firms with sufficient certainty of expectations and actions For unnecessary regulatory burdens to be minimised or eliminated

5 What is the timetable? A White Paper and draft Bill to enact these changes will be published around May 2011 The Bill to be enacted by mid-2012 FSA being currently remodelled Enactment planned for the end of 2012

6 What are the main features? Similar drivers to the Turner Report of 2009 FSA was all things to all men Institutionalises the different functions of UK regulation Gives the Bank of England explicit oversight of UK regulation Co-ordination between the three bodies will be critically important

7 The international aspects G20 and the international forums drive financial services regulation EU directives More about the style than content of regulation National areas are principally authorisation, supervision and enforcement

8 Will this make a real difference for firms? Clearer economic connectivity FPC is being given tools and levers to bridge the economics/regulation gap A credible and intrusive prudential regulator A judgemental and effective consumer regulator

9 The Financial Policy Committee Financial stability fell between the gaps FPC puts the Bank of England at the heart of the financial system Judgement-led approach to achieving financial stability

10 Financial markets have structural features that make a system vulnerable to shock a) Information problems a lack of information or transparency b) Misaligned incentives decisions that appear rational but cause problems elsewhere in the market c) Market illiquidity d) Contagion where innovative products or practices increase the network of interconnections between financial institutions e) The existence of numerous systemically important financial institutions f) Inadequate market infrastructure g) Narrow distribution of risk exposures, such as sub-prime mortgages h) Cyclical risks such as cycles of risk and appetite

11 The FPC s objective The Bank s financial stability objective protect and enhance the stability of the financial system of the UK The FPC objective to contribute by identifying, monitoring and minimising systemic risks These include structural features the distribution of risk and unsustainable levels of leverage, debt or credit growth

12 The FPC s functions The FPC will use levers and tools to address these risks: to seek to influence to make recommendations to give directions a) Creating a counter-cyclical capital buffer b) Varying risk weightings applied to a firm s asset exposures c) Limiting leverage d) Enhancing liquidity requirements e) Require a firm to provide against prospective future lending losses f) Increasing collateral requirements g) Adding to disclosure requirements h) Requiring stress tests to be conducted

13 The Prudential Regulatory Authority The PRA should be judged by the avoidance of failures which incur a cost to the economy and in particular to individual tax payers and customers. This objective contrasts with the situation the FSA found itself in, namely no acceptance from the media or politicians that the FSA was not a Zero failure institution. Extract from Hector Sants speech of 13 December 2010

14 PRA Grand plan bringing macro- and micro-prudential regulation together The PRA s proposed objectives are: Strategically promoting the stability of the UK financial system (= Bank s & FPC s strategic objective) Operationally promoting the safety and soundness of each firm that it authorises, minimising the adverse effect of its failure on the UK financial system

15 PRA scope The PRA will regulate: Deposit takers Insurers Lloyd s Other firms principal dealers/bipru 730k

16 PRA style The PRA will take a judgement-led supervisory approach It will adopt a principles-based rulebook A particular focus of our initial thinking has been around establishing whether a slimmer, more purposive and accessible rule book can be produced for the PRA. The PRA will not do away with rules altogether, but an important change in focus for the PRA will be in ensuring that it is clear to all what purpose its prudential rules are intended to achieve. We expect to review the prudential aspect of the current FSA Handbook with a view to achieving this end, subject to constraints imposed by EU directives - as well as in making the material shorter and easier to navigate. Extract from Hector Sants speech of 13th December 2010 The PRA will establish a proactive intervention framework

17 The Financial Conduct Authority The CPMA is being set up with the clear intention of securing better outcomes for consumers. This will mean it will engage with consumers, their representative bodies and consumer intelligence earlier than has been the case with the FSA being prepared to intervene as soon as potential concerns begin to emerge and having a willingness to take a greater risk of being overturned on appeal if it thinks that early intervention is warranted the CPMA will pursue a more aggressive consumer protection agenda, [but] the CPMA will not always assume that the consumer is right, or that consumers have no responsibility to look after their own interests when dealing with financial firms Extract from Hector Sants speech of 13th December 2010

18 FCA s objectives The core purpose of the FCA will be to protect and enhance retail and wholesale consumer confidence with focus on developing a new model of retail regulation using early and proactive intervention to protect retail customers a fundamental shift from focusing on the sales process and seeking to ensure adequate disclosure Strategically protecting and enhancing confidence in the UK financial system Operationally facilitating efficiency and choice in the market for financial services; securing an appropriate degree of protection for consumers; and protecting and enhancing the integrity of the UK financial system

19 FCA s functions The FCA will have five principal functions Fighting financial crime Prudentially regulating non-significant firms Regulating conduct of business Promoting competition Overseeing wholesale business and markets

20 1. Fighting financial crime Seeking to reduce the extent to which a financial firm can be used for financial crime

21 2. Prudentially regulating non-significant firms Prudential regulator of some 18,500 fund managers, non-bank mortgage lenders, and personal investment firms and insurance/mortgage intermediaries The key focus of FCA s prudential regulation will be in preventing consumer detriment To require adequate capital resources to achieve an orderly wind-down

22 3. Regulating conduct of business FCA will regulate the conduct of business of some 27,000 firms Firms regulated by PRA, mainly banks and insurers Firms only regulated by FCA Inwardly passporting EEA firms And possibly consumer credit providers

23 A new approach to conduct regulation in contrast to the FSA, it is likely that there will be a shift towards more detailed prescription. the consumer objective for the CPMA emphasises early and proactive intervention, a braver approach to enforcement and redress, and a willingness to improve the consumer experience. However, in order to achieve this goal the CPMA will need to be given more powers of intervention and disclosure than the FSA currently has... Hector Sants speech of 13th December Have a lower risk appetite than FSA 2. Be less prepared to see detriment occur 3. Be readier to act to prevent losses

24 Product intervention Earlier identification of risks through gathering intelligence from wider sources Placing requirements on products and product features to remedy a problem perhaps disclosure of a specific feature or prohibiting a limitation Mandating minimum product standards where a problem is perceived Restricting product sales to certain classes of consumer Halting a product launch or continuing sales for up to 12 months, for example when this is not already covered by existing rules.

25 Transparency Two specific new powers proposed are for FCA to publicise that A firm has been required to amend or withdraw a misleading advertisement or sales practice It has commenced disciplinary action against a firm

26 4. Promoting competition The FCA is to have a credible and effective role in competition

27 5. Overseeing wholesale business and markets Key FCA focus monitoring market conduct Assume FSA s current powers in respect of market abuse The UK Listing Authority will become part of the FCA with minor alterations Responsibility for the conduct and prudential regulation of UK recognised investment exchanges and multilateral trading facilities

28 Further retail protection FSCS Jointly overseen by PRA and FCA Each making rules for levies and funding. FOS will be overseen by FCA. FOS will retain its role as a quasi-regulator because of the wider implications rule. The Government also wants FOS to be able to publish its determinations

29 Operating under dual regulation There are six regulatory principles: 1. To use resources efficiently and economically 2. The imposition of a burden or restriction should be proportionate to the resulting benefits 3. Consumers should take responsibility for their actions 4. A firm s senior management is responsible for compliance 5. A regulator should seek to make information public 6. A regulator should operate transparently

30 Operational issues Some specific instances for dual-regulated firms are: 1. Firm authorisation 2. Variation of permission 3. Individual approvals 4. Passporting 5. Making rules 6. Supervision

31 Making sense of the new UK and EU regulatory landscape Paul Edmondson Partner - CMS Cameron McKenna LLP

32 Europe HMT s message about greater EU and international engagement But what about The march of maximum harmonisation and the single rulebook and.the restraint of EU law on domestic policy and the new roles of PRA and FCA The Icelandic bank issues and the more/less Europe debate

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36 The agencies and their roles ESRB and ESA European Systemic Risk Board (ESRB) The EU equivalent of the FPC European System of Financial Supervision (ESFS) Comprises a network of three new European Supervisory Authorities (ESAs) CEBS, CEIOPS and CESR transformed into EBA (Andrea Enria), EIOPA (Gabriel Bernardino) and ESMA (Steven Maijoor)

37 ESFS European System of Financial Supervision Supervising the supervisors Detailed harmonisation The single rulebook and technical standards e.g. EBA intends to use the true power of a single set of rules Andrea Enria Staffing up Staffing at the three ESAs will rise to 150 people in 2011 and to 300 in 2015 Coordination of supervision of firms/groups across borders Collection of information (e.g. for stress testing) Common supervisory culture (e.g. by peer reviews)

38 ESFS powers Tie-breaker powers Mediating and settling disputes between national supervisors Home/host supervisor of RBS Insurance Group/subsidiary supervisor Power to revise standards of national supervision Temporary restriction of high-risk financial activities based on sectoral legislation e.g. the proposal on short-selling Enhanced ESA powers for emergencies and crisis management Ability of ESA to issue instructions to FSA and/or to individual institutions to comply with ESA rulings

39 EU work legislation and rulemaking See our EU legislation checker (in pack & RegZone) Solvency II MiFID II MAD II and energy market transparency Post-crisis measures Basel III/CRD IV, EMIR Long list! Less national discretion on local rules and policy Legislation by regulation (eg EMIR) Maximum harmonization eg MiFID Less gold plating = the single rulebook with common technical standards

40 The new agenda to promote competition Susan Hankey Partner CMS Cameron McKenna LLP

41 Too much for one morning Roles of FCA and PRA Reports from HMT, TCS, ICB (11 April) BIS consultation So look at a selection promoting competition Transparency TSC and market development Market investigations and concurrency More questions than answers

42 Promoting competition: a more interventionist approach? FCA to discharge its general functions in a way which promotes competition The ability to make rules that will have beneficial competition outcomes PRA to have major role in key regulatory areas potentially impacting on competition Rule making even where potentially contrary to classic competition prohibitions? BIS considering whether CMA to have primary duty to promote competition Notes must not compromise independence and impartiality in specific cases

43 BIS consultation Aims to improve in terms of cost, speed of processes and effective decision making UK competition regime and authorities world class, but still relatively inexperienced All about? flexible allocation of scarce resources Themes for improvement: Formation of CMA Better pursuit of breaches of the prohibitions Other procedural issues (including market investigations) Merger control Concurrency regime Obtaining more cartel offence convictions

44 Transparency the answer to everything? TSC 2 April Report Lack of price transparency and comparability in the personal current account market Personal current account gateway effect Implications for other products: cross subsidy TSC attempting social engineering? 10 years post Cruickshank problem remains acute Government can do more to prioritise competition in the way it regulates the industry FCA should have competition as a primary objective

45 If transparency is the answer, how will it be achieved? The old market investigation way won t do PPI took 57 months to publication of CC Order on 24/3/2011 Updated market investigations? (see later) FCA promotion of competition how would/could this work? ICB and OFT TSC calls on the banks to make cooperating a priority how would/could this work?

46 TSC and the development of the market New entrants Disadvantaged where no access to extensive branch network Government should examine carefully where it can help to improve conditions for effective competition Regulation and competition ICB should not shirk from proposing radical changes to the market as a whole case for further structural reforms.to reduce concentration and promote competition Solve the too big to fail problem FCA should have competition as a central operational objective we ve told you this before and we re telling you again

47 Market investigations the BIS view Onerous process OFT and CC long and duplicative Store Credit Cards Home Credit 31 months 29 months NI Personal Banking 31 months PPI 57 months Favours two stage approach process options Will look at time frames Queries whether CMS should deal only with competition, not consumer-focused MIs

48 Market investigations Treasury suggestions In context of powers for FCA: Competition mandate would have been useful in PPI Could have used regulatory tools to intervene more swiftly e.g. to unbundle sale of PPI from sale of loans So should FCA have powers to keep FS markets under review and decide whether to refer a market investigation to the CC?

49 If FCA deals with market investigations, why not further concurrency? HMT to take BIS report into account, but considering: Market investigation powers Or FCA could decide where more appropriate to use regulatory powers Agree legally binding commitments with industry in lieu of referral to CC? No need to stop there FCA could have concurrent powers to hear super-complaints in FS sector Or FCA s Consumer Panel could have power to make super-complaints to OFT

50 And what has BIS said about concurrency? BIS generally likes concurrency because: Allows integrated application of regulation and competition law Concurrent regulators have industry expertise Regulated businesses have only one beast to deal with But not much evidence to date of use of competition powers Perception that regulatory powers easier to enforce than Competition Act ones Considering obligation on regulators to use competition powers as preferred option and role of CMA as central resource

51 Implications for the financial services sector? Concurrent regulators deal with networked industries and price regulation Licence conditions often reflect competition concerns e.g. fair trading Financial services sector is different BIS recognises current FSMA position = the old world HMT options What next?

52 Making it easier to prosecute Whatever the changes in roles and procedures, the key competition prohibitions remain Cartel offence: criminal sanctions where individual dishonestly agrees that company will participate in hardcore cartel activities Imprisonment <5years/unlimited fines But since 2002 only one successful case (and that started in the US) BIS considering how to make it easier to get convictions Remove concept of dishonesty Options for change

53 Any questions?

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