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The new UK regulatory framework —the mists are clearingUS’s PCAOB to inspect overseas auditorsThe PCAOB, created by the Sarbanes–Oxley Act (Sarbox) to oversee auditors of Sarbox‐effected companies, has said that in 2011 it will inspect audit firms in 31 countries, including the UK, despite initial reluctance from many overseas auditors citing sovereignty and legal concerns.
In 2010 the EU declared the PCAOB an “equivalent regulator” and the Dodd‐Frank Act allowed the PCAOB to share information with overseas bodies. The Professional Oversight Board, the UK’s “super‐regulator” of accountancy and audit supervisory bodies, has agreed to share information.
Dame Barbara Mills, Chair of the POB said “The agreement will improve our respective access to information, for example relating to US audit firms registered in the UK, and UK firms registered in the US”.
All foreign companies with any share listing in the USA need to comply with Sarbox requirements and their audit firms must be registered with the PCAOB in order to carry out compliant audits. Over 900 audit firms from over 85 countries have registered with the PCAOB and are subject to inspections in the same manner as US firms.
Nick Gibson, Chase Cooper's Director of Compliance Solutions, summarises the recent clarification received from the UK Treasury Department and comments on its impact on regulated firms.
In the UK we are in the midst of a low‐key but far‐reaching regulatory revolution, driven by the
coalition government, in response to the perceived past failings of the participants in the
existing system (and in particular the Financial Services Authority ‐ FSA).
On 17th February HM Treasury issued its 138 page blueprint for
the revised UK regulatory system. This follows the first HMT
consultation document, issued in July (for which comments closed
in October) and contains a number of significant changes. Further
comments are invited on the new paper by the closing date in mid‐
April.
Whilst the most noticeable headline change is the change of name
from the Consumer Protection &
Markets Authority (CPMA) to the more
digestible Financial Conduct Authority ‐ about which more below ‐
there are a number of more fundamental changes or clarifications
from the original, some of which are, to our eyes, potentially quite
disturbing.
Structure
The structure remains almost entirely as originally planned, with a Financial Policy Committee
(FPC) within the Bank of England running macro‐prudential supervision, to identify and reduce
systemic risks arising within the financial system. The FPC will not be an institutional supervisor,
and will have no powers over individual firms.
The two new supervisory bodies will be the Prudential Regulation Authority (PRA) and the
Financial Conduct Authority (FCA), whilst the Bank of
England will have direct responsibility for
supervising systemically‐important
infrastructure, such as payment systems,
settlement systems under the
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1
IN THIS ISSUE OF metric
G20 sets targets
London trader jailed
New EBA Head appointed
Managing Liquidity Risk
CHASE COOPER
continued on page 2
This is the new format for our newsletter, Chase Cooper metric. We will be
publishing this monthly towards the end of the month and distributing it by email.
In view of the recent announcements on the UK’s regulatory changes we have made
this a 6 page issue with a major article summarising and commenting on these
changes. We would enjoy receiving any comments on our new format at
Nick Gibson, Chase Cooper
2
Uncertificated Securities Regulations 2001, and recognised clearing
houses under FSMA.
The PRA has a single strategic objective: "contributing to the promotion
of the stability of the UK financial system". The PRA mandate makes it
solely responsible for the prudential regulation of all banks, building
societies, credit unions and insurers. The PRA may also designate
investment firms that deal as principal, to bring them under its
supervision, where PRA believes specific firms may pose systemic risks to
the UK's financial stability, or to other de facto PRA‐regulated firms
within the firm's group.
In addition to insurance providers, the role in relation to insurance also
makes it the prudential regulator for Lloyds of London; comfort is given,
in relation to insurance business generally, that a prudential lighter touch
may be appropriate by comparison with banks.
The Bank of England, FPC and PRA
will be collectively responsible under
the same roof for designing the UK
response to the next emergent
financial crisis, and executing the
special resolution regime where
necessary.
The second supervisory body, the
Financial Conduct Authority, will
regulate the conduct of all
authorised financial services firms, and will be prudential regulator for all
firms not regulated by the PRA. The FCA will be by far the larger of the
two bodies, but will have a clearly subsidiary role.
Leaving reporting lines to one side, a natural hierarchy of influence has
emerged in the government's deliberations. The FPC, as the macro‐
prudential regulator, sits at the top of the influence tree, and is being
given powers in respect of both supervisors.
The FPC's powers in respect of the PRA and FCA include:
The ability to make "recommendations" to the PRA and FCA, under
the 'comply or explain' principle, where either body, if not adopting
the recommendation, will be required to explain publicly why it chose
not to, and
The ability to direct the PRA and FCA to adopt and apply specific
macro‐economic tools in specific ways, which could include (amongst
others):
setting levels for counter‐cyclical capital buffers/dynamic
provisioning,
setting variable risk weights focused on specific sectors or asset
classes,
setting balance sheet leverage ratios,
requiring the publication of specific information by classes of firms
during times of stress,
setting higher collateral requirements where lending growth in
specific classes of lending appears unsustainable.
The FPC will also be able to direct the PRA and FCA to gather and
provide information
from authorised
firms needed by the
Bank of England in
order to meet its
financial stability
objective at any time,
but particularly during times of stress.
Both the PRA and FCA will in any event be under statutory duties to
provide or share detailed information with the FPC on a routine basis to
inform its own decision making. In return, the FPC will provide advice and
expertise to both regulators on systemic financial stability and current
and developing risks thereto. The PRA and the FCA are clearly described
as "equal in status". This is, in some respects, true. There are, however,
significant operational issues where it appears that PRA has primacy over
the FCA.
The PRA's relevant powers include:
Where FCA wishes to take action against an authorised firm by
imposing requirements or cancelling its permissions, it is the PRA that
has the expertise to judge whether this might cause the firm to fail in
a disorderly way and/or cause financial instability within the system.
When consultation between the two regulators about the proposed
action takes place, the government expects that the FCA will
take the PRA's advice in relation to the risk of disorderly failure.
In the event that the PRA and FCA are unable to agree on a
course of action, the legislation will grant PRA the power of veto over
the FCA's proposed course where the PRA considers that it would risk
financial instability or the disorderly failure of the firm concerned.
The PRA power of veto also extends to the making of rules by FCA,
and even FCA's granting of individual firm modifications or waivers,
where PRA believes there may be a negative impact on financial
stability or the prospect of a disorderly failure.
Lead responsibility for approving particular Controlled Functions for
jointly‐regulated firms will be split between the two regulators.
Subject to consultation between them, the PRA will have the final say
in approving Significant Influence Functions which impact on
prudential soundness, such as that of the Chief Executive Officer: the
FCA will have similar powers in respect of functions which impact
Whilst PRA and the FCA are
“equal in status”, there are
significant issues where it
appears that the PRA has
primacy.
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HECTOR SANTS, current Chief Executive of the FSA and Chief Executive designate of the PRA
continued on page 3
3
more on its own statutory responsibilities, such as client assets or
anti‐money laundering.
Financial Policy Committee
The Financial Policy Committee remains broadly as envisioned in the first
document, with the statutory objective of "..the identification of,
monitoring of, and
taking of action to
remove or reduce,
systemic risks with a
view to protecting and
enhancing the resilience
of the UK financial system…" .
The particular systemic risks within that objective are:
systemic risks attributable to structural features of financial markets
or to the distribution of risk within the financial sector, and
unsustainable levels of leverage, debt or credit growth
In response to concerns raised during consultation, the objective has
been extended to reflect that the FPC should not take actions under this
objective that would be, in their own view "…likely to have a significant
adverse effect on the capacity of the financial sector to contribute to the
growth of the UK economy in the medium or long term…".
The 12 members of the interim FPC have also been announced, notably
including a former Vice Chairman of the US Federal Reserve and a former
Director General of the Confederation for British Industry. This interim
FPC started to operate experimentally in February and is waiting for the
legislation to catch up before it takes full powers.
Prudential Regulation Authority
The PRA will be "operationally independent" from the Bank of England,
with its own Board, but accountable to the Court of Directors of the Bank
of England for administrative matters, which include budget,
remuneration, and performance against objectives. This constitutes an
interesting definition of independence, particularly as the Chairman of
the PRA will be the Governor of the Bank of England.
However, operational independence will apparently be preserved by the
PRA Board having a majority of non‐executive directors. It will also be
subject to audit by the National Audit Office, and accountable to
Parliament and Ministers, with a new measure that where there is a
significant regulatory failure, the PRA must then make a formal report to
HM Treasury containing an analysis of the causes of the failure, and
lessons to be learned. HM Treasury will in turn lay the report before
Parliament, and it will be made public.
This provision is unambiguous in stating that such reports will contain
confidential information where its publication is in the national interest.
This is clearly a very direct response to the government's fury over FSA
being unable to publish its report into RBS due to its interpretation of the
current confidentiality provisions in FSMA.
In a material change from earlier proposals, significant regulatory
decisions in respect of particular firms will no longer be taken solely by a
PRA Executive Committee, or one with a majority of executive staff. The
government has fortunately recognised the obvious incongruity that this
would contradict the principles of good corporate governance that PRA
itself should be enforcing on firms. It now proposes to give the PRA
flexibility to create its own decision‐making structures, involving non‐
executives "as appropriate" in this context.
Operationally, the PRA will be obliged to take a judgment‐led supervisory
approach to the firms it regulates, and will take a more principles‐based
approach in creating regulation, requiring PRA‐supervised firms to
comply with the spirit, as well as the letter, of its prudential rules.
On the back of this approach, PRA
will have its own enforcement
powers. The obvious challenges
of effective enforcement in
response to breaches in a
judgment‐led, principles‐based
regime are recognised.
A particularly interesting
statement in the document is
that, "The Government is
considering whether appeals
from judgement‐based
supervisory decisions should be
heard by the Upper Tribunal on limited grounds (those which could be
raised on a judicial review) rather than the 'full merits review'
currently provided for in relation to FSA supervisory decisions
which engage the statutory notice procedure."
Simply put, if implemented, this appears to mean that PRA's decisions
would only be able to be challenged if it could be demonstrated that in
reaching a judgment‐led decision, PRA had acted illegally, acted
irrationally or unreasonably, or created a procedural impropriety. Clearly
this would make PRA decisions even more difficult, and even more
expensive, to overturn than under the existing FSA regime.
The PRA will also have powers, transferred from FSA, to require
information for financial stability purposes from unregulated persons as
well as from those it directly supervises.
Financial Conduct Authority
Whereas there was a lot of the political rhetoric on the role of the ex‐
CPMA as a consumer champion fighting for the downtrodden, there is
significant back‐tracking on this both in Parliament and in the current
metric
PRA reports will contain
confidential information
where publication is in the
national interest. metric
Sir Richard Lambert, new memberof the FPC and until recently,Director General of the CBI(Photo courtesy of the CBI)
continued on page 4
4
proposals ‐ part of which is reflected in the change of name. To a large
extent this is designed to answer questions about a future lack of
impartiality in its dealings with firms.
The proposal therefore includes a very early and clear statement in the
description of the FCA's role as "...protecting and enhancing the
confidence of all consumers of financial services ‐ from retail customers
choosing a current account to a hedge fund engaging in multi‐million
pound derivatives trades."
The FCA has ‐ like the PRA ‐ been given a single strategic objective, to
protect and enhance confidence in the UK financial system. Its operating
model will be, as envisaged, materially different from FSA's current
approach, with a much greater focus on financial products, and rather
less focus on firms themselves:
There is recognition that detriment in retail financial services is more
likely to arise from a sector or product than from the conduct of an
individual firm. Because of this, much of FCA's focus will be on issues‐
based, rather than firm‐based supervision ‐ a continuance and
strengthening of theme‐based supervision, where the FCA will be
expected to publish more observations of good and bad business
practice.
The "vast majority" of FCA firms will interact with the regulator
through a contact centre, and only a small number of firms will have a
dedicated FCA supervisor.
All firms will, however, be subject to periodic review of their
governance, culture and controls ‐ so ARROW will remain in some
form.
The FCA will be granted powers to ban products in development, or
those already in the market, where there is a significant prospect of
consumer detriment, and where setting conditions on the product or
the sales process has proven ineffective.
There is, happily, no intention to involve the FCA in the pre‐approval
of financial products.
There is a proposed power to enable the FCA to direct a firm to
withdraw a financial promotion, and to make public the fact that it
has done so to warn consumers.
As an enhancement to the current FSA credible deterrence policy, the
government is proposing that the FCA will be able to publish Warning
Notices, which signal the start of formal enforcement proceedings
(rather than their end). This is a sweeping change. Effectively the
charges against a firm or individual, and the summary supporting
evidence, will be published without the accused having had the
opportunity for its defence to be heard. Whilst there is then an
obligation to publish a Notice of Discontinuance if the enforcement
action is subsequently dropped, a large part of the reputational
damage to the firm or person will already have been done.
In an apparent turnaround, the FCA will be retaining its powers of
prosecution for market abuse offences, rather than transferring them
to the proposed new Economic Crime Agency.
The UK Listing Authority will also remain within the FCA, rather than
as was previously being considered, transferred to the Financial
Reporting Council.
It is proposed that
the FCA will also have
a significant role in
applying general
competition law in
financial services, but
the details are subject to subsequent publication.
Current measures
As noted above, the "interim FPC" was appointed in February and will
start to meet with an initial focus on identifying the right macro‐
prudential tools to be used when it assumes full powers.
FSA itself is constructing a 'shadow organisation' to mirror and trial the
operations of the proposed PRA and FCA. In practical terms this means
that FSA staff are being allocated to one or other organisation, as
described in Hector Sants' "Dear CEO letter" of 7th February (which still
referred to CPMA rather than FCA). The new FSA internal organisation,
split between the Prudential Business Unit and the Consumer & Markets
Business Unit will start operating on 4th April.
In a spin‐off bonus for firms, the focus on the new organisation will mean
a reduction in routine supervisory activity; on which affected firms
are to be informed.
Sants himself has been confirmed as the first head of the PRA, and
Martin Wheatley, current Chief Executive of the Hong Kong
Securities & Futures Commission and former Deputy Chief Executive of
the London Stock Exchange, is CEO‐designate for the FCA. He will join
FSA to run the new CMBU in September this year.
Next steps
The draft bill creating the new structure and both dealing with the new
powers and transferring the existing ones is intended to be published by the
early summer, and enacted within 12 months. The government is determined
that the new regulatory structure will be up and running by the end of 2012.
The closing date for responses to the current paper is 14th April 2011, and
consultation responses will feed into both the government's White Paper on
reform and the draft Parliamentary Bill. We will continue to update you as
things develop further.
The FCA will be able to
publish Warning Notices
signalling the start of formal
enforcement proceedingsmetric
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5
G20 sets targetsAt this month’s Paris meeting, the G20 Finance Ministers and
Central Bank Governors have agreed the next steps to combat the
current crisis. They will agree, by April, on quantitative indicators
that will be used to assess public debt and deficits, private savings
rate and debts, and trade balances and investment flows. By
October they want the IMF to
have developed a plan for
strengthening the IMS and for
them to report on progress in
April.
Commodity price volatility was
also a target and the IMF and
the International Energy
Forum are being asked to
coordinate strategies on oil,
gas and coal price volatility.
October is also scheduled as
the date by which the G20 expect to propose and agree the
handling of globally systemically important financial institutions (G‐
SIFIs) and a framework is expected to ensure stability through
capital surcharges, contingent capital, bail‐in instruments and
systemic levies. This framework is expected to be on top of the
requirements of Basel III. The G20 also expect proposals by the
middle of this year on regulation and oversight of the shadow
banking system with an emphasis on the risks of arbitrage as well
as those associated with new technological trading platforms.
Christine LagardeFrance’s Finance and Economics Minister
(Photo courtesy World Economic Forum)
Chase CooperStrategic ComplianceBreakfast Briefing
Held on 16th February, Chase Cooper’s fourth Strategic
Compliance Breakfast Briefing was held as a complimentary
service to current and new clients.
Nick Gibson, Director of Compliance Solutions at Chase Cooper,
covered a wide‐ranging agenda, looking in some detail at the
troublesome practical implications for UK businesses of the new
European regulatory system and of the ongoing MiFID2 review, set
against the backdrop of the current political and economic
situation in the UK and worldwide, and the existing focus of FSA
and proposed changes within UK regulation. The event was
attended by 15 senior delegates from brokers, corporate banks,
private banks and the insurance sector.
The next Breakfast Briefing, which is open to senior compliance,
business and risk staff working in FSA authorised firms, will be held
at Chase Cooper’s offices on 16th March 2011 with registration
from 8.30 a.m. You can register your interest online here.
European Parliament confirms EBA headEarlier this month the European
Parliament confirmed Andrea Enria
as the first Chairperson of the
European Banking Authority (EBA),
the new regulatory body
established at the start of this year
and which takes over all existing
and ongoing tasks and
responsibilities from the previous
Committee of European Banking
Supervisors (CEBS).
This confirmation followed a meeting of the Economic and
Monetary Affairs Committee (ECON).
In his opening statement, Enria emphasised the need for the EBA to
move towards a more integrated regulatory and supervisory
framework in the Union and to work as a “hub and spoke”
European system of supervision heavily backed by national
supervisors. When describing the way forward, he said “the first
priority should be the success of the European stress test exercise.
European banks are still operating in a fragile market environment
and we need to make sure that they are able to withstand a further
severe shock and that those that aren’t strong enough are subject
to appropriate supervisory actions.”
Enria starts his role of Chairperson on March 1st. Previously, he
was Head of the Supervisory Regulations and Policies Department
at the Banca d’Italia.
London trader jailed for £14M fraudA case brought by the City of London Police's Economic Crime
Directorate has resulted in a City trader being jailed for eight years.
Terry Freeman of GFX Capital assured 350 investors of high returns
by investing in foreign exchange markets. Investors were also
assured that stop loss checks had been put on their accounts. They
were also given false trading statements which showed that their
accounts were healthy when, in fact, Freeman was using their
funds to pay off other investors. It also turned out that Freeman
had falsely stated he had previously worked at Morgan Stanley
when the truth was that he had a string of convictions going back
to 1979 but that he had changed his name in 2000 to avoid being
identified as such.
Freeman pleaded guilty in Southwark Crown Court to six charges
including fraudulent trading and trading whilst bankrupt. Although
the deception was uncovered when Freeman could not hide the
losses made following the Lehman collapse, much of the investors’
funds had been spent on holiday homes, entertaining in executive
boxes and on gifts for his family. The court heard that threats from
overseas investors had resulted in Freeman handing himself into
the police. m
Andrea Enria, first Chairperson of the European Banking Authority
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FSA HANDBOOK RULE CHANGES
The rule changes to the FSA Handbook
resulting from the Consultative Paper 10/3 and
Policy Statement 10/15 on Effective Corporate
Governance come into
effect on the 1st of May.
These new rules, based
on the 2009 Walker
Review, are to improve
corporate governance in
financial firms. Included
in the requirements is
the setting‐up of a Board
level risk committee
predominantly made up
of non‐executive
directors and with direct contact with the
regulators.
MiFID REGULATION
Consultation has just ended on the
categorisation and regulation used in EU's
MiFID (Markets in Financial Instruments
Directive) for trading venues. There is
particular market concern on the impact the
proposed changes could have on broker
crossing networks (BCNs) with their having to
identify all their trades in post‐trade data
submissions and to provide public end of day
information on daily activity. This would
effectively transform them into MTFs
(Multilateral Trading Facilities) with open
memberships and price disclosure.
AUDITORS/SUPERVISORS CONSULTATION
The FSA and the Bank of England have
published, for consultation, a code of practice
on how external auditors and supervisors will
work together. This is particularly targeted at
high impact firms and obliges their auditors to
work closely with the regulatory supervisors.
Responses to the consultation should be in by
March 25th.
SOLVENCY II UNLIKELY FOR IORPs
According to the European Federation for
Retirement Provision it is unlikely that the EU
will apply Solvency II to institutions for
occupational retirement provision (IORPs). An
internal EC report said that changes to
pensions would result in substantial costs to
member states, raise government debt levels
and increase budget deficits. The report did,
however, call for enhanced control regulations
on pensions.
ASYMmetricAL
Who will manage liquidity risk? Who has overall responsibility for this?
Liquidity risk, its management, measurement and standards, are now firmly part of the new
Basel III requirements. A standard, part of the many documents that currently make up Basel
III, "International Framework for Liquidity Risk Measurement, Standards and Monitoring", was
released last December. The objectives are to manage both the short‐term
resilience of a bank's liquidity risk profile and to pressure the banks to look
for more stable sources of longer‐term funding.
To achieve these, two measurements have been introduced: the Liquidity
Coverage Ratio (LCR) for the short‐term objective, and the Net Stable
Funding Ratio (NSFR) with a time horizon of one year to provide a
"sustainable maturity structure of assets and liabilities". The timetables
for both of these are relatively benign: January 1st 2015 for the LCR, and
three years later for the NSFR. However that does not mean that risk
managers can sit back and wait as these are dates for achieving
compliance with the required ratios and it will take time to implement
new funding disciplines. Liquidity management will require daily checking on the ratios and
assurance that stocks held are not encumbered or otherwise compromised in ways not
reflected in the risk management calculations.
The question then arises as to where the responsibility for the management of stocks and the
associated liquidity risk should sit in an organisation. What is the level of involvement of the
bank's existing risk management framework and where does overall responsibility lie?
On page 7 of the abovementioned standard, the BIS comes down marginally in favour of the
bank's treasurer. It says "The stock should be under the control of the specific function or
functions charged with managing the liquidity risk of the bank (typically the treasurer)" and
suggests that, as part of its ongoing stock management, the bank should periodically test the
liquidity of stocks via repos or outright sales of portions of the assets. But this means that
there are two separate operations managing the liquidity risk within an organisation, one run
by the treasurer and one run by the chief risk officer.
Liquidity is only one of the risks associated with a bank's assets. There is also the price and
return on the assets (market risk) and their probability of default (credit risk). And there is the
operational risk embedded in the process of testing, and eventually liquidating, the
positions. All these facets need to be managed and reported together and banks need
to avoid creating any silos, or even conflicts, in their control of risk.
At a Basel III conference, late last year, attended mainly by delegates from the risk
management community, an informal show of hands on the question "who manages risk
management" came down firmly in favour of the treasury department. There was no question
that these risk managers did not want this extra responsibility ‐ or maybe there were a lot of
treasurers in the audience?
But whilst there is never any single measurement of risk in an organisation, there should be a
single point of reporting the risks ‐ from the chief risk officer supported by the risk committee,
to the Board risk committee and via them to the Board. Having parallel reporting lines will be
counter‐productive.
Would it be possible that the liquidity risk manager, sitting within treasury, then also reports to
the chief risk officer, along with the heads of operational, credit and market risk? There is a
possible precedence for this in the ALM. But, like ALM, treasury is a well established part of a
bank's operations and it is unlikely that the department will appreciate the imposition of
branched reporting lines. It would be interesting to
understand how banks are planning to handle liquidity risk
management processes and responsibilities.
The back page, sometimes critical view from the Editor
RegulatoryNEWS
metric is published byChase Cooper. web: www.chasecooper.comemail: [email protected]
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