UK Regulatory

House of Commons Treasury Committee Women in Finance Report published

The House of Commons Treasury Committee has published its Women in Finance Report [13.06.18]. The Report covers a range of topics including current levels of diversity; benefits of and barriers to gender diversity; industry initiatives; Government responses; and other forms of diversity in finance. Among the conclusions and recommendations are:

  • there is a clear underrepresentation of women in senior financial services roles; 
  • research shows "firms with higher numbers of women in senior management positions perform better financially than counterparts with lower numbers" and have "returns above their national industry median"; 
  • "notwithstanding the benefits of gender diversity from a business perspective, the representation and progression of women in finance should also be regarded as intrinsically right. The near exclusion of any group within society, intentional or unintentional, is not acceptable" the Report says; 
  • the financial services bonus culture "remains a deterrent for women and many are disadvantaged by it". Best practice would be performance bonuses to be assessed against "clearly objective and formulaic criteria"; 
  • the "culture of presenteeism" may discourage women from progressing to senior levels;
  • unconscious bias: "can influence what is perceived as success, talent and capability, such that other ways of working are overlooked" the Report says. Firms should ensure that those who recruit, promote and talent spot "understand unconscious bias and are trained to be objective when considering talent and capability";
  • "many women who return from maternity leave accept roles that are less financially rewarding or more junior than the roles held previously" says the Report. It also identifies that "employers can make assumptions about how women perceive their career when they return from maternity leave and may not offer them the same opportunities." Best practice includes returners schemes and training opportunities, and keeping women up to date "on live issues" when on maternity leave. Improving staff awareness of Shared Parental Leave schemes and more "men taking childcare responsibilities and parental leave could help mitigate the impact of maternity leave on women." Firms should consider extending initiatives to support women both during and after maternity leave to staff taking time off work due to other caring roles;
  • the Committee is supportive of initiatives to increase gender diversity when recruiting and when promoting – identifying the importance of "gender balanced shortlists and revising the language used during recruitment";
  • firms are encouraged to review their recruitment policies and practices regularly and weed out "unnecessary legacy requirements" with the Report citing "particular academic qualifications or requiring certain hours to be worked or frequent travel to be almost compulsory." The Report says: "When revisiting recruitment policies and practices, firms should continue to challenge the language used during recruitment and ensure that stated requirements for roles are actually necessary for performing the roles and are not deterring potential applicants."  The Committee also "recommends that firm's senior leadership proactively ensures that barriers to gender diversity in recruitment are understood throughout the organisation and are removed";
  • the need to "remove any stigma" connected to flexible working which can be seen as "a "female " approach" to work - by encouraging other senior staff - particularly men - to "lead by example by working flexibly". Firms should "reconsider the working hours required for roles" and, given technological developments, whether long hours working in the office are still necessary;
  • gender diversity has been driven by the leadership at firms but "is often not considered a top priority within an organisations" so can be "displaced by other business concerns".  Accordingly the Committee encourages the sector "to consider gender diversity as core to business strategies and to uphold gender diversity as a priority";
  • middle management are necessary for "driving gender diversity" and should be empowered "to take risks and challenge their own assumptions and unconscious bias when recruiting" and need to be "appropriately trained to manage more diverse teams".

The Treasury's Women in Finance Charter played an effective part in "raising awareness on gender diversity issues and initiating change in the financial services sector" although there remains "a considerable way to go". The Committee also recognises that transparency and disclosure are both important drivers of gender diversity. The gender pay gap figures show the large gap between men and women who work in finance especially regarding bonuses and that there are "significantly more men than women in higher earning, and more senior positions". The Report says "Firms and Government now need to analyse the data to identify problems and devise strategies to overcome the gender pay gap and support the progression of women". The Committee will "monitor firms' progress in meeting their targets and review the effectiveness of their strategies."

The Committee is also to recommend that Government amends its guidance on gender pay gap reporting for partners. The partners at large financial services firms structured as partnerships "have similar status to senior executives and should therefore be included in the gender pay gap calculations." The omission of such partners' remuneration from this reporting "could reduce the gender pay gap for these firms" rendering reported figures "disingenuous" the Report says. The Committee will also encourage Government to review the exemption from gender pay gap reporting for subsidiaries of larger companies. Contains Parliamentary information licensed under the Open Parliament Licence v3.0.

Government publishes its Response to Advisory Group Report on 'Growing a Culture of Social Impact Investing in the UK'

The Government has published its Response to the Advisory Group Report on 'Growing a Culture of Social Impact Investing in the UK' [12.06.18]. In 2016 the Government asked Elizabeth Corley, Vice Chair of Allianz Global Investors, to chair an advisory group tasked with "How can the providers of savings, pensions and investments engage with individual investors to enable them to support more easily the things they care about through their savings and investment choices?" (Read more on the FCA's and FOS's response to the Report in our earlier update here.) Elizabeth Corley is now leading a follow-up Taskforce to take recommendations in the Report forward at the Prime Minister's request [February 2018].

There were five themes in the Advisory Group's report: (i) Improve deal flow and the ability to invest at scale; (ii) strengthen competence and confidence within the financial services industry; (iii) develop better reporting of non-financial outcomes; (iv) make it easier for people to invest; and (v) maintain momentum and build cohesion across initiatives. This Response contains Government's current thinking on these themes and its policy - planned or in progress – for them: The Government agrees with the Advisory Group that "confusion over varying definitions" of social impact investing "can be a significant barrier to adoption". It welcomes the working definition the Group proposed: "Social impact investment consists of investment in the share or loan capital of those companies and enterprises that not only measure and report their wider impact on society - but also hold themselves accountable for delivering and increasing positive impact." The Government says it will continue working with industry and the regulators to develop social impact investment and will issue an update in winter 2018. Contains public sector information licensed under the Open Government Licence v3.0.

Money Market Funds Regulation 2018 laid before Parliament

The Money Market Funds Regulations 2018 (SI 2018 No. 698) have been laid before Parliament [11.06.18]. They come into force on 21 July 2018 (except for certain provisions in relation to the FCA which come into force earlier). The regulations make a number of changes including amending FSMA, the Open-Ended Investment Companies Regulations 2001 (SI 2001/1228) (OEIC Regulations) and the Alternative Investment Fund Managers Regulations 2013 (SI 2013/1773) (AIFM Regulations).

The new Regulations are made in respect of the EU Money Market Funds Regulation (EU) 2017/1131 (EU Regulation), that applies in the UK from 21 July 2018, to ensure the FCA can authorise Money Market Funds (MMFs) and enforce the EU Regulation from the date it comes into force

FSMA has been amended "to provide powers of authorisation and intervention" for the FCA, in respect of unit trust funds and contractual schemes - which can both be types of MMF. The amendments to the OEIC Regulations enable funds that are OEICs to apply to become MMFs or for funds applying for authorisation as OEICs to be authorised as MMFs at the same time. The amendments to the AIFM Regulations provide for the FCA to direct how an application may be made for an AIF to be authorised as a MMF and the intervention process for the FCA in relation to such funds. A minor amendment is also made to the FSMA 2000 (Qualifying European Union Provisions) Order 2013 (SI 2013/419) so the FCA can investigate and bring enforcement action directly against funds breaching the EU Regulation.

FCA publishes policy development update for June 2018

The FCA has published their latest policy development update [01.06.2018], featuring information on their most recent and forthcoming publications including:

  • PS18/10 on retiring FG12/15 (Retail Distribution Review: independent and restricted advice) and FG14/1 (Supervising retail investment advice: inducements and conflicts of interest) (read more in our earlier update here). PS18/10 [May 2018] confirms that both guidance items were retired with immediate effect [11.05.16];
  • GC18/2 Fairness of Variation Terms under the Consumer Rights Act 2015 (read more in our earlier update here); and
  • Handbook Notice 55 [May 2018] setting out changes as a result of a number of FCA Instruments including the Financial Services Compensation Scheme (Funding Review) Instrument 2018 (FCA 2018/22); the Handbook Administration (Data Protection) Instrument 2018 (FCA 2018/24); Insurance Distribution Directive Instrument 2018 (FCA 2018/25) and the Supervision Manual (Reporting No 8) Instrument 2018 that adds one further change to those already proposed and consulted on in CP18/6 (Quarterly Consultation Paper No 20 [March 2018]), namely on the guidance wording for how and when to report a fund this is uncrystallised that has a transfer in of crystallised assets.

The policy statement on FCA regulated fees and levies: rates proposals 2018/19 PS to CP18/10 is expected to be published in July 2018. Policy statement on the EU Money Market Funds Regulation CP18/4 is expected to be published in Q2 2018.

FCA publishes issue 13 of its Data Bulletin: retail intermediary sector

The FCA has published Data Bulletin: Issue 13 retail intermediary sector [07.06.2018] that analyses trends in retail investments, home finance and non-investment insurance. The information in the Bulletin is sourced from Retail Mediation Activities Return (RMAR) submissions and sets out the FCA's trends findings to 2017 with activity analysis and information on advice and charges for the last full financial year.

FCA publishes CP18/14 Quarterly Consultation Paper No. 21

The FCA has published Quarterly Consultation Paper No 21 CP18/14* [01.06.18] containing the FCA's "miscellaneous amendments" to the Handbook on which it seeks feedback. Topics include:

  • changes to the appointed representative (AR) appointment form (chapter 2 of the CP) in SUP 12 Annex 3R, "in part to reflect how we have applied IDD requirements in relation to ARs". However, the FCA says "This change will apply to any firm completing the AR appointment form and so has broader relevance than just for IDD firms";
  • In its PS 18/1 Insurance Distribution Directive implementation - Feedback and near-final rules for CP17/23 (read more on CP 17/23 in our earlier update here) the FCA had indicated that it would implement the derogation in Article 30(3) of the IDD which would enable the sale of certain insurance-based investment products (IBIPs) without assessing appropriateness for the client, if certain conditions are met including that the product is a non-complex product. The COBS sourcebook contains information on 'non-complex' products as set out in the IBIP Regulation and the FCA says: "Firms need to assess IBIPs against these criteria and should adopt a cautious approach if there is any doubt as to whether an IBIP is 'non-complex'." EIOPA issued guidelines in October 2017 on assessing complex IBIPs (read more in our earlier updates here and here) with which the FCA intends to comply and which the FCA proposes, in chapter 2 of the CP, to cross-reference from COBS, as firms should refer to them in assessing whether an IBIP is non-complex and can be sold without the appropriateness test being carried out;
  • the FCA proposes amendments to DEPP and EG in chapter 6 of the CP to reflect changes in relation to social entrepreneurship funds, venture capital funds and money market funds.

The FCA seeks feedback on the various chapters in the CP by different dates. The deadline for feedback on items in chapters 2 and 6 is 30 June 2018.

FCA releases guide on the basics of network security

The FCA has published a one page guide [15.06.2018] to the basics for network security saying "effective cyber security starts with a secure network". The guide flags to firms the importance of developing and implementing "some simple policies and responses" and refers to controlling network access, using malware-checking services, regular vulnerability scans, and the importance of secure wireless access, network monitoring, firewalls and segregated networks.

FCA lists its cooperation agreements with third-country regulators regarding outsourcing portfolio management under MiFID II

The FCA has released a list of third-country supervisory authorities [14.06.2018] with which it has cooperation agreements satisfying the requirements in Article 32(2) of Commission Delegated Regulation (EU) 2017/565 (MiFID Org Regulation). The MiFID Org Regulation requires competent authorities to publish such a list on their website (Article 32(3)). The published list allows firms to assess their compliance with Article 32(1(b) of the MiFID Org Regulation (requirement for a co-operation agreement between the competent authority of the investment firm and the supervisory authority of the third-country service provider). The FCA's list also contains a reminder to firms to consider the outsourcing requirements in Articles 30 and 31 of the MiFID Org Regulation and in the FCA's Handbook at SYSC 8 (Outsourcing).

Ireland - Investment Funds

Central Bank of Ireland - Fund Management Company Directors who also act as a Designated Person*

The Central Bank clarified [15.06.18] the arrangements for submitting applications under the Fitness & Probity Regime, in order to act as a designated person (PCF-39) of a fund management company ( available here). According to the Central Bank's Fund Management Companies Guidance (the "CP86") a designated person role for managerial functions should be considered separately to the role of director where both roles require a separate fitness and probity assessment. In line with the CP86 requirements, any director who also wishes to act as a designated person will be required to apply for approval as both a director (PCF-1 or PCF-2) and as a designated person (PCF-39) from 1 July 2018.

The Central Bank confirmed that directors, who also currently act as a designated person or are appointed to this role on or before the 30 June 2018 will not be required to apply for a separate approval as a designated person under the fitness and probity regime.

Guidance Note - Fund Profile*

The Central Bank issued a guidance note [01.06.2018] in relation to the completion of the Fund Profile return applicable to all Irish authorised investment funds and the respective governance body of such investment funds.

The Fund Profile return was designed to capture the essential information relevant to the investment policy, operation and governance of the sub-fund and it will replace the current annual Investment Fund Sub-Fund Profile return. The Fund Profile return has to be completed via Central Bank's online reporting system within 10 days of authorisation of a new sub-fund/standalone fund authorised after the 30 June, 2018. The Fund Profile will have to be reviewed and updated annually within the two months of the calendar year end.

Irish Central Bank Brexit Briefing

At a recent briefing [07.06.2018], senior representatives of the Central Bank of Ireland told an audience of firms and advisers that applicants who do not begin the process in the next few weeks will find it very difficult to obtain authorisation by March 2019.

The Central Bank is gearing up for a significant number of licence applications from managers impacted by Brexit and is managing this process by meeting with such managers in advance of them submitting their proposals, to fully understand their risk framework, proposed substance and business models.

With time quickly running out, UK-based managers are now focusing on Brexit strategy planning.

While managers do not need to re-locate all of their operations to Ireland and the Central Bank has stated that it accepts that delegation is an important and necessary part of a firm's day-to-day operating model, firms will need to show adequate substance in Ireland and retain senior management to oversee any delegations.

For further information on the Central Bank's briefing see our article on Out-law here.

Approaching Deadlines*

  • [26.06.2018] – The Central Bank expects firms to comply with the ESA joint guidelines on simplified and enhanced due diligence by 26 June 2018;
  • [29.06.2018] – CP119. The deadline for responses to the Central Bank Consultation CP119 on amendments to (and consolidation of) the Central Bank UCITS Regulations. See our earlier update here.
  • [1.07.2018] – CP86. Existing Fund Management Companies must comply with the new rules as laid down in CP86 from I July .2018;
  • [21.07.2018] – MMF Regulation. This must be implemented by EU Member States by 21 July 2018;
  • [31.07.2018] – Responses to CP120 are due;
  • [31.08.2018] – New Fund Profile Return date. See our earlier update  here.
  • [1.09.2018] – Money Market Funds which are availing of a transitional period must submit all documents requiring review to the Central Bank no later than 1 September 2018;
  • [1.01.2019] – Benchmark Regulation. Prospectuses of UCITS and of funds which are subject to the Prospectus Directive, which reference a benchmark and which have been approved prior to 1 January 2019 must include information on the benchmark; and
  • [1.01.2019] – Securitisation Regulation. The AIFMD and the UCITS Directives will be amended as of 1 January 2019 to align with the new securitisation regime which will impose due diligence, transparency and risk retention requirements.

* Contains Irish Public Sector Information licensed under a Creative Commons Attribution 4.0 International (CC BY 4.0) licence here.

EU Regulatory

ESMA issues first risk dashboard of 2018 identifying "complex products and volatility as key risks"

ESMA has issued its latest Risk Dashboard for EU securities markets risks in the first quarter of 2018. The overall risk assessment by ESMA remains unchanged from the final quarter of 2017 at high.

As highlighted in the dashboard in relation to complex products "ESMA remains concerned about risks posed to investors, which have been mounting across a range of products." Following ESMA's earlier risk alert on Initial Coin Offerings (ICOs) it "issued a pan-EU warning to consumers regarding the risks of buying Virtual Currencies". ESMA has also introduced a temporary prohibition on Binary Options and leverage restrictions on Contracts for Difference (CFDs) using its product intervention powers under MiFIR, to protect investors from undue risk-taking. ESMA's risk dashboard also highlights its concerns about "persisting very high market risks" from "asset over-valuations in equities as well as market uncertainty" as the period of very low interest rates begins to end. ESMA's outlook for liquidity, contagion and credit risk "remains unchanged at high." Operational risk "continues to be elevated" ESMA says, "with a deteriorating outlook, as Brexit-related risks to business operations and vulnerabilities to cyber-attacks rise".

Fifth Money Laundering Directive

The Fifth Money Laundering Directive ("MLD5") has been published in the Official Journal of the EU [19.06.18]. It contains amendments to MLD4 as well as to Solvency II and the Capital Requirements Directive with the majority of changes to be effected by 10 January 2020.

In essence, the MLD5 will:

  • increase the transparency of firms operating in the EU (both corporate and other legal entities as well as trusts and other similar legal arrangements), by establishing clear public access rules in respect of their beneficial ownership information which is to be registered for corporates and other legal entities by 10 January 2020 and for trusts and similar legal arrangements by 10 March 2020;
  • reduce risks associated with the use of virtual currencies for terrorist financing by extending the scope of MLD4 to providers of exchange services between virtual and fiat currencies and to custodian wallet providers ;
  • reduce the current thresholds for general use, anonymous pre-paid cards and require that customers using a remote payment transaction for transactions of more than EUR 50 cannot do so anonymously;
  • improve the safeguards for transactions to and from and business relationships with high-risk third countries, by applying enhanced due diligence;
  • enhance the effectiveness of EU Financial Intelligence Units (FIUs) by clarifying their powers and cooperation arrangements and enhancing their access to information including to information on the holders of bank and other payment accounts and safe deposit boxes and their beneficial owners and proxy holders which are to be held in "central automated mechanisms";
  • require the "interconnection of Member States' central registers holding beneficial ownership information through the European Central Platform".  This requirement is to be in place by 10 March 2021 with Member States having established their central automated mechanisms for identification of holders of bank and payment accounts and safe-deposit boxes by 10 September 2020.

MiFID II LEI temporary period ends July 2018

The temporary period ESMA introduced in December 2017 to allow for a smooth introduction of LEIs will not be extended and lasts until  2 July 2018 ESMA has announced [20.06.18]. ESMA concluded there is no need to extend the initial 6 month introductory period because of the significant increase in LEI coverage for both issuers and clients. As a result NCA's ongoing LEI related activities "are now shifting from monitoring to ongoing supervisory actions" ESMA said. 

Read more on the LEI and in our earlier update here and read more on the temporary measure ESMA introduced here and here.

Recent Pinsent Masons publications

Click here to read our recent edition of the Insurance Briefing.

Click here to read our recent article on Out-law "Firms seeking authorisation in Ireland urged to apply now."

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,