UK: Risk And Regulation Monthly: August 2013

There was little sign of any holiday let-up among supervisors and standard setters this August, particularly at the international level, with the Financial Stability Board (FSB) issuing key consultations on recovery and resolution planning for non-banks and shadow banking ahead of the September G20 meeting.

As usual this note is produced for information only on a best efforts basis, and does not constitute advice of any kind.

Capital (including stress testing)

Both the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) consulted on the transposition of the revised Capital Requirements Directive (CRD IV) and the application of the Capital Requirements Regulation (CRR). The PRA CRD IV rules dealt with the capital conservation buffer and countercyclical capital buffer; the application of Pillar 2 reviews of capital; governance requirements; passporting; and cross-border cooperation. Even though the CRR does not require transposition, the PRA proposed to "make rules in a few specific areas to complement" the CRR provisions. Given that the CRD was "designed more with banks in mind" and the Commission will review the prudential regime for investment firms by 2015, the FCA will seek to achieve the "legal minimum" in terms of compliance of investment firms with CRD IV.

The PRA published a statement on internal ratings-based (IRB) approaches to credit risk, consolidating the Financial Services Authority's (FSA) material previously communicated to firms. The statement set out what constitutes an "appropriately conservative" model, covering the definition of default, probability of default, loss given default (LGD), exposure at default, income-producing real estate portfolios, unrated exposures, and notifications and approval of changes to models. The PRA will undertake a "thorough analysis" of LGDs for social housing portfolios, most likely in 2014, in response to concerns raised during the consultation.

The European Banking Authority (EBA) published its second interim report on the regulatory consistency of risk-weighted assets (RWAs) for credit risk in the banking book. It focused on "low-default" portfolios of assets, mainly comprising instruments issued by central governments, banks and large corporates. Low default levels can make reliable statistical modelling difficult, implying a bigger role for judgment and individual bank experience for these portfolios. The report found "significant variation" in risk weights and expected losses, but noted that many sources of variation had been "clearly identified" or "were already well known." However, some discrepancies could be reduced through further harmonisation. Potential policy options put forward included additional transparency requirements, supervisory exchanges of information, additional guidelines, and benchmarks for internal models.

The EBA discussed the treatment of unrealised gains measured at fair value and requested data as part of a quantitative impact study on policy options. To address the concern that unrealised gains may rapidly disappear as a result of future price movements, and not be immediately available to absorb losses, the EBA sought views on whether to introduce a "prudential filter" on unrealised gains. It set out a number of options, from no inclusion of unrealised gains in own funds, to varying degrees of inclusion in different elements of the capital framework.

The Basel Committee on Banking Supervision (BCBS) published its fourth update to the G20 Leaders on the implementation of Basel III. 25 of the 27 BCBS countries have issued final capital rules, with several making moves to introduce liquidity and leverage ratios, as well as additional requirements for Global Systemically Important Banks (G-SIBs) and Domestic Systemically Important Banks (D-SIBs). Large internationally active banks increased their capital ratios to approximately 9% of RWAs, while the prospective capital shortfall across the industry fell further. As part of its monitoring framework, the Committee also published the workbook for the collection of June 2013 data along with updated instructions and frequently asked questions (FAQs).

Sweden announced plans to introduce countercyclical capital buffers at the higher end of the expected range of 0-2.5% of RWAs, implying some Swedish banks could be required to hold up to 14.5% of Common Equity Tier 1 (CET1) capital. Sweden's announcement follows the introduction of countercyclical buffers in Switzerland in February 2013, the first major jurisdiction to introduce such a requirement.


The Governor of the Bank of England (BoE), Mark Carney, gave a speech in which he confirmed that the BoE will reduce the level of required liquid asset holdings for those major banks and building societies whose capital ratios meet a minimum 7% threshold. Mr Carney stressed this approach "will help to underpin the supply of credit" to businesses, while ensuring the economy could "withstand the inevitable bumps along the road to full recovery".

The EBA consulted on guidelines to help identify which retail deposits may be subject to higher outflows during periods of stress, in order for this to be reflected in liquidity reporting under the CRR.

Governance and risk management (including remuneration)

The FSB published its second progress report on the implementation of its principles for sound compensation practices. All FSB member jurisdictions, apart from Argentina and Indonesia, have completed implementation, with the focus now largely on supervision and oversight of firms' implementation. Despite the progress made, the FSB noted there is "still some way to go" before improvements in compensation practices can be considered "effective and sustainable." Areas for further work included the identification of "material risk takers."

The FCA published preliminary findings from its thematic review of mobile banking and payments, setting out potential areas of risk from mobile banking and steps firms should take to address them. The risks included fraud, security, technology and interruption to services, consumer awareness and understanding, and anti-money laundering systems and controls. Firms will be expected to have "appropriate governance in place to assure themselves that they have considered and mitigated the risks". The FCA will conduct a second, more detailed, assessment of mobile banking, for example addressing firm strategies and product governance, and will provide feedback in the first half of 2014.

The FCA fined a senior partner and compliance officer at Schweder Miller £70,258, and a broker at the same firm £45,673, for failing to act with due skill, care and diligence in the period leading up to a Dubai-based private investor manipulating the closing price of securities traded on the London Stock Exchange in October 2010. The investor was fined approximately £6mn in November 2011 – the largest fine imposed by the FSA on an individual.

Conduct of Business (including MiFID)

Following Card Protection Plan's (CPP) £10.5mn fine in November 2012, the FCA reached an agreement with CPP and 13 banks and credit card issuers for a redress scheme to be set up for those who were mis-sold Card Protection and Identity Protection policies. The bill could be up to £1.3bn, with 7mn customers being contacted.

The Joint Forum of global regulators published seven recommendations for mortgage insurance, addressing market structure and the underwriting cycle. It said mortgage insurers should build long-term capital buffers and reserves during the troughs of the underwriting cycle and supervisors should seek to prevent cross-sectorial arbitrage. It also addressed mortgage insurers and originators aligning their interests, and the need for strong underwriting standards with supervisors correcting for any detrimental incentives influencing firms.

Following a thematic review, the FCA finalised guidance on interest-only mortgages, setting out good and poor practices for firms, to ensure the fair treatment of customers unable to repay the capital sum at the end of the mortgage. While "customers remain responsible for repaying their mortgages", firms should minimise the risk of non-repayment "through early and effective engagement with customers over the mortgage term".

The FCA published research which found that investment adviser numbers in the UK had increased slightly (by approximately 5%) since the implementation of the Retail Distribution Review (RDR) at the start of the year. Believing the increase to be "attributable to advisers re-entering the market", the FCA stated that numbers are "in line with expectations". 97% of advisers had obtained the required qualification level, with the remaining 3% being recent entrants who are still studying within the timescales permitted by the rules.

The FCA fined two individuals from financial advisory firms £28,000 each and banned them from performing significant influence functions for failing to adequately monitor the promotion of Unregulated Collective Investment Schemes (UCIS). The FCA found that they did not identify "the extent to which their firms were involved in promoting UCIS" or "the risk that the UCIS were routinely being promoted to ineligible customers".

The Payments Council announced that the new Current Account Switch Service, designed to make switching current accounts between providers simpler and more reliable, will be launched on 16 September. The service will be delivered by 33 bank and building society brands, accounting for nearly all of the current account market.

Following the referral by the Office of Fair Trading to the Competition Commission (CC) for a market investigation into payday lending, the CC set out the theories of harm that it intends to use to help frame its investigation. First, it will look at impediments to customers' ability to search and identify the best value product and switch supplier. Second, it will address market power and barriers to entry.

Ahead of taking over consumer credit regulation in April 2014, the FCA published two policy statements: one on interim permission fees that firms will need to pay from September in order to carry out consumer credit activities before becoming fully authorised by the FCA; and the other on carrying across Consumer Credit Act secondary legislation into FCA rules.

The FCA finalised guidance on the approach recognised investment exchanges (RIEs) and firms operating multilateral trading facilities (MTFs) should take when overseeing their member firms' systems and controls – in compliance with the relevant parts of the FCA rulebook. The guidance was in part because RIEs and MTF operators were found to be defining and implementing their oversight responsibilities "very differently."

Crisis management (including special resolution, systemically important firms, and business continuity)

Ahead of the G20 meeting, a number of consultations regarding recovery and resolution of non-bank institutions were published. The FSB consulted on guidance setting out how its Key Attributes of Effective Resolution Regimes for Financial Institutions (the Key Attributes) apply in resolution to insurers, financial market infrastructure (FMIs) and to client assets. Specifically, the paper suggested potential additional powers for resolution authorities aligned to the specificities of insurers. Meanwhile, the Committee on Payment and Settlement Systems and the Technical Committee of the International Organization of Securities Commissions (CPSS-IOSCO) consulted on guidance for FMIs on the development of recovery plans, analysing key features and likely effects of five categories of recovery tools: to allocate uncovered losses caused by member default; to address uncovered liquidity shortfalls; to replenish financial resources; to allocate losses not related to participant default; and for central counterparties (CCPs) to re-establish a matched book. It stipulated that recovery tools should be established as binding ex-ante, to the maximum degree possible. Finally, the FSB consulted on the assessment methodology for the Key Attributes of Effective Resolution Regimes for Financial Institutions.

CPSS-IOSCO also published a report on how member countries had implemented its 24 Principles for Financial Market Infrastructure (PFMI). The report used a one-to-four scale to assess whether jurisdictions had completed the process for adopting legislation, rather than assessing if the adopted measures were consistent with the PFMIs or yielded consistent outcomes, which will be subject to review at some point later. Most jurisdictions were on track to adopt the relevant measures: in contrast to the US, the UK had already completed the process.

Regulatory perimeter

The FSB published several reports on shadow banking: an overview document; final recommendations on securities lending and repo, with further consultation on minimum standards for collateral 'haircuts'; and final recommendations for oversight and regulation of 'other' shadow banking entities and activities. Noting "significant data gaps", the recommendations on securities lending and repo focused on increasing transparency. The paper also made recommendations on the regulation and structure of the securities financing market, covering cash collateral reinvestment in securities lending, the re-hypothecation of client assets, and collateral valuation and management. Regarding 'other' shadow banking entities and activities, the FSB set out five economic functions by which to identify shadow banking, as well as a menu of policy tools that authorities could draw on as part of the oversight and regulation of each function.

The Macroeconomic Assessment Group on Derivatives reported on the macroeconomic effects of OTC derivatives regulatory reform. In the long run, it found that "the economic benefits of reforms are likely to exceed their costs, especially in scenarios with more netting". It recommended that as many OTC derivatives as possible should be safely centrally clearable, with either a modest number of CCPs or CCPs that interoperate. Rules governing cross-border transactions should also be harmonised so market participants had equal access to CCPs.

The Joint Forum consulted on measures to safeguard Longevity Risk Transfer (LRT) markets. The report said that while LRT markets are not sizeable enough to present immediate systemic concerns – so far only £50bn of Defined Benefit pension liabilities have been transferred in the UK, from a total pool of approximately £1tn – their potential size and growing interest from investment banks suggest a need to address potential sources of risk in these markets. To that end, the Joint Forum recommended that supervisors look into issues of arbitrage, sufficient consumer knowledge and expertise, measurement, management and disclosure, and interconnectedness in both financial markets and corporates pertinent to LRT markets.

There were a number of developments related to the Alternative Investment Fund Managers Directive (AIFMD). In the UK, the FCA announced it will diverge from a European Commission reading of the AIFMD under which MiFID services cannot be passported by virtue of the AIFM management or marketing passports, as covered in the Commission's FAQs.

The FCA also updated its AIFMD webpage to provide more information on passporting arrangements and launched a FAQ page on the issue. At the EU level, the European Securities and Markets Authority (ESMA) disagreed with the Commission that a draft Regulatory Technical Standard (RTS) on types of AIFMs that ESMA had submitted earlier was not compatible with the Directive, though it did offer an amended draft. Finally, ESMA published an opinion on practical arrangements for the late transposition of the AIFMD.

Several documents relating to the European Market Infrastructure Regulation (EMIR) were published. ESMA proposed an amendment to RTS and implementing technical standards on the format and frequency of reporting to trade repositories. Specifically, the amendment proposed postponing the reporting date for exchange traded derivatives by one year to January 2015. ESMA also updated its EMIR FAQ document with more implementation- related queries. In the UK, the FCA provided further details on the FCA's online reporting portal as well as disputes reporting by financial counterparties, which comes into force on 15 September 2013.

Rethinking the domestic and international architecture for regulation

The results of the FSB's peer review of the United States' framework for financial stability were published, with the FSB noting "good progress" on systemic risk oversight, but also highlighting "the complex and fragmented" regulatory and supervisory structure. The structure for insurance supervision was singled out for particular criticism, as it "constrains the ability of the US to ensure regulatory uniformity in the insurance sector." The FSB welcomed the "substantial progress" made to strengthen the oversight of systemically important financial market infrastructure, although cross-border supervisory cooperation was said to remain an issue. The peer review was undertaken as a follow up to the International Monetary Fund/World Bank Financial Sector Assessment Programme (FSAP), focusing on issues which are "topical" for the FSB.

The FCA published feedback on how it intends to increase transparency to improve its accountability and regulation. The FCA is taking forward the ideas in its discussion document, but will review whether to proceed with publishing more on redress as a result of supervisory action, publishing insurance claims data and improving transparency of the annuity market.

The FCA published a response to questions raised about the October 2012 Journey to the FCA document, which set out the FCA's approach to supervision. In particular, the paper addressed questions on its approach to wholesale conduct and competition. In terms of price regulation, the FCA "would not normally expect to set price controls in the same way as utility regulators do". However, it will "be very interested in pricing and margins".

Disclosure, valuation and accounting

The Enhanced Disclosure Task Force (EDTF) published an assessment on the progress of major banks in implementing the recommendations of the first "Enhancing the Risk Disclosures of Banks" report. The findings show that, based on a self-assessment survey, 50% of the EDTF Recommendations were implemented in 2012 and 72% are expected to be implemented in 2013. However, a separate review of the disclosures in the Annual and Pillar III Reports, by an EDTF User Group, indicates a lower degree of implementation than the banks' self- assessment, in particular for those recommendations where more granularity is expected.

CPSS-IOSCO published its final report on access to Trade Repositories' date by authorities. The report describes the authorities' expected data access needs and, for illustrative purposes, maps each function to the minimum data access authorities will typically require. The report suggests the public sector "may wish to consider" methods for aggregating and sharing data on OTC derivatives: investigating this issue will be the subject of a further FSB study.

The Joint Forum consulted on standardising rules for point of sale (POS) disclosure in insurance, banking and securities markets across FSB member countries. Rules currently vary across jurisdictions and in the Forum's view do not always facilitate comparison between products. The Joint Forum recommended that countries introduce a key information POS disclosure document for products commonly offered as an alternative to, or in competition with, collective investment schemes. Information to be included should include costs, risks and financial benefits or other features of a given product, and any underlying or referenced assets, investments or indices, irrespective of the financial sector from which the products are derived.

The FCA finalised its guidelines for investment firms using Trade Data Monitors. The document set out requirements for firms using trade publication arrangements for post-trade reporting. Firms can assess if trade data providers enable them to meet the guidelines either via a confirmation by the FCA or an external auditor.

Information security and data privacy

The Information Commissioner's Office (ICO) fined the Bank of Scotland £75,000 after customers' account details were repeatedly faxed to the wrong recipients over a period of four years.

The ICO published guidance on dealing with requests for individuals for personal information, which are provided for in the Data Protection Act. During the last financial year alone, the ICO handled over 6,000 complaints regarding subject access requests, many of which relate to money lenders and credit reference agencies.

Financial crime

The FCA fined Guaranty Trust Bank (UK) Ltd (GT Bank) £525,000 for failing to have effective anti-money laundering (AML) controls in place for high-risk customers between May 2008 and June 2010.

HM Treasury published detailed guidance in the form of Frequently Asked Questions (FAQs) on the UK's financial sanctions regime, which it intends to update every six months.

The FCA fined Andrew Jeffrey £150,000 and banned him from carrying out any function relating to regulated activities for his role in insurance fraud, having found him in breach of the FCA's Principles, and having found him not to be a 'fit and proper' person to conduct regulated activity.


Ahead of the September G20 meeting in St Petersburg, the FSB provided an update on financial benchmark reform; a report on regulatory factors affecting the supply of long-term investment finance; and a progress report and interim peer review report on credit rating agency (CRA) ratings. On benchmarks, the FSB outlined the future work programme of its Official Sector Steering Group, which includes the creation of a Market Participants Group which will seek to identify additional benchmark rates to which markets could transition. On long-term investment finance, the "predictability and stability of the regulatory regime" was highlighted as particularly important, but the report also noted that while institutional investors "reported enthusiasm and appetite" for long-term projects such as infrastructure, acquiring suitable risk management expertise remained a challenge. Finally, on CRAs, the FSB said that authorities "need to accelerate work" to end "mechanistic reliance" on CRAs. The regulatory framework should seek to identify credible alternative standards for creditworthiness, but market participants also "need to improve their own capacity" to make credit assessments, according to the report.

The FCA Board appointed new members of the Regulatory Decision Committee, including John Callendar, formerly of Barclays Bank, Richard Berliand, formerly of JP Morgan, and Iraj Amiri, formerly a partner at Deloitte.

The FCA appointed four directors in its Supervision Division: Karina McTeague as director of retail banking; Linda Woodall as director of mortgages & consumer lending; Nick Poyntz-Wright as director of long-term savings & pensions; and William Amos as director of wholesale banking & investment management. Andy Briscoe, the former CEO of Life Trust Holdings, was appointed Chair of the Money Advice Service.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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