17 Aug 2015

How the FCA can finish Martin Wheatley’s ‘unfinished business’

Will Dennis, AFME's Head of Compliance, reflects on an eventful year for the FCA.

This has been an eventful year for the FCA, with both a substantial expansion in its remit and a significant internal restructure. Mr. Martin Wheatley, the outgoing CEO, remarked at the FCA’s July AGM that he was disappointed to be going when there is still plenty of 'unfinished business'.

AFME’s compliance team has taken a look at this unfinished business, and we have some suggestions on how the FCA can finish it in the best interests of both consumers and businesses.

First off there is MiFID II. Much of the FCA’s work here is sensible, and all of it well-intentioned. But there are exceptions. The FCA has led the charge on seeking to change the rules on the paying for investment research. If the FCA view prevails in Europe, most FICC research will be banned from being provided free of charge, and all research will be banned from being paid for out of dealing commission.

A significant number of other European regulators, however, think differently. In common with these regulators, AFME believes that the appropriate way forward is to permit the use of enhanced commission sharing agreements, which adequately unbundle the payment for execution from the payment for research and provide complete transparency.

Then there is market abuse. No-one opposes the idea of making it easier for regulators to catch those who abuse the markets. But the new Market Abuse Regulation will restrict the ability of investment banks to send recommendations (such as morning notes, market colour and the like) to professional clients, and thus enhance liquidity and ultimately capital growth.

Also, swathes of sensitive personal data of individuals working in financial services on specific transactions will have to be provided to the regulators on an ongoing basis, even when none of the individuals is suspected of wrongdoing. None of this is in the interests of the consumer. And a leak, or cyber attack, would be catastrophic.

We also have the Senior Managers Regime. This reversal of the burden of proof for senior individuals in banks, so that they are now guilty of a breach of regulation until proven innocent, is an important sea change in English law. Senior managers stand to lose not just their reputation and earning ability, but also their house and livelihood as a result.

This reform sits uneasily in the year of the 800th anniversary of Magna Carta, and must be handled sensitively, and carefully, by regulators that are not enforcement-led. We welcome recent comments by senior regulators at the FCA and the PRA that the regime is to be applied proportionately, but comments in speeches by outgoing regulators will give little comfort compared to changes in regulation.

Other areas where the Senior Managers Regime can be improved include changes to the way regulatory breaches need to be reported, and clarity about the scope of the regime for those individuals abroad who are not directly in touch with UK clients or working for the firm in the UK.

Last, but by no means least, is the UK’s Fair & Effective Markets Review (FEMR), where Mr. Wheatley was one of the review’s progenitors. This is already a prime example of co-operation between the industry and regulators, and it really might succeed in improving culture, standards and behaviour in the FICC markets going forward. That would, indeed, be a worthwhile piece of finished business, as well as a suitable legacy for Mr. Wheatley.