Financial Services Authority

The Financial Services Authority (FSA) was a quasi-judicial body responsible for the regulation of the financial services industry in the United Kingdom between 2001 and 2013. It was founded as the Securities and Investments Board (SIB) in 1985. Its board was appointed by the Treasury, although it operated independently of government. It was structured as a company limited by guarantee and was funded entirely by fees charged to the financial services industry.[1][2]

Financial Services Authority
Agency overview
FormedDecember 2001
DissolvedApril 2013
Superseding agency
JurisdictionUnited Kingdom
Headquarters25 North Colonnade
London, United Kingdom
Employees3,800
Agency executive
  • Adair Turner, Chairman
Websitewww.fsa.gov.uk

Due to perceived regulatory failure of the banks during the financial crisis of 2007–2008, the UK government decided to restructure financial regulation and abolish the FSA.[3] On 19 December 2012, the Financial Services Act 2012 received royal assent, abolishing the FSA with effect from 1 April 2013. Its responsibilities were then split between two new agencies: the Financial Conduct Authority and the Prudential Regulation Authority of the Bank of England.

Until its abolition, Lord Turner of Ecchinswell was the FSA's chairman[4] and Hector Sants was CEO until the end of June 2012, having announced his resignation on 16 March 2012.[5]

Its main office was in Canary Wharf, London, with another office in Edinburgh. When acting as the competent authority for listing of shares on a stock exchange, it was referred to as the UK Listing Authority (UKLA),[6] and maintained the Official List.

History

SIB
Main entrance – 25 North Colonnade (Canary Wharf, London) – FSA building

The Securities and Investments Board Ltd ("SIB") was incorporated on 7 June 1985 at the instigation of the UK Chancellor of the Exchequer, who was the sole member of the company and who delegated certain statutory regulatory powers to it under the then Financial Services Act 1986. It had the legal form of a company limited by guarantee (number 01920623). After a series of scandals in the 1990s, culminating in the collapse of Barings Bank, there was a desire to bring to an end the self-regulation of the financial services industry and to consolidate regulatory responsibilities which had been split amongst multiple regulators.

The SIB revoked the recognition of The Financial Intermediaries, Managers and Brokers Regulatory Association (FIMBRA) as a Self-Regulatory Organisation (SRO) in the United Kingdom in June 1994, subject to a transitional wind-down period to provide for continuity of regulation, whilst members moved to the Personal Investment Authority (PIA), which in turn was subsumed.

FSA

The name of the Securities and Investments Board was changed to the Financial Services Authority on 28 October 1997 and it started to exercise statutory powers given to it by the Financial Services and Markets Act 2000 that replaced the earlier legislation and came into force on 1 December 2001. At that time the FSA also took over the role of the Securities and Futures Authority (SFA) which had been a self-regulatory organisation responsible for supervising the trading in shares and futures in the UK.[7]

In addition to regulating banks, insurance companies and financial advisers, the FSA regulated mortgage business from 31 October 2004 and general insurance intermediaries (excluding travel insurance) from 14 January 2005.

Abolition

On 16 June 2010, the Chancellor of the Exchequer, George Osborne, announced plans to abolish the FSA and separate its responsibilities between a number of new agencies and the Bank of England. The Financial Conduct Authority would be responsible for policing the financial activities of the City and the banking system.[8] A new Prudential Regulation Authority would carry out the prudential regulation of financial firms, including banks, investment banks, building societies and insurance companies.[8]

On 19 December 2012 the Financial Services Act 2012 received royal assent and came into force on 1 April 2013.[9] The act created a new regulatory framework for financial services and abolished the FSA.[9] Specifically, the Act gave the Bank of England responsibility for financial stability, bringing together macro and micro prudential regulation, and created a new regulatory structure consisting of the Bank of England's Financial Policy Committee, the Prudential Regulation Authority and the Financial Conduct Authority.[9]

The Financial Capability division of the FSA broke away from the organisation in 2010, and became known as the Money Advice Service.

Activities

Scope

Companies involved in any of the following activities had to be regulated by the FSA.

  • Accepting deposits
  • Issuing e-money
  • Effecting or carrying out contracts of insurance as principal
  • Dealing in investments (as principal or agent)
  • Arranging deals in investments, regulated mortgage contracts, Mortgage Conduct of Business rules home reversion plans, or home purchase plans
  • Managing investments
  • Assisting in the administration and performance of a contract of insurance
  • Safeguarding and administering investments
  • Sending dematerialised instructions
  • Establishing etc. collective investment schemes, personal pension schemes, or stakeholder pension schemes
  • Advising on investments, regulated mortgage contracts, regulated home reversion plans, or regulated home purchase plans
  • Lloyd's insurance market activities
  • Entering into and administering a funeral plan, regulated mortgage contract, home reversion plan or a home purchase plan
  • Agreeing to do most of the above activities

From 14 January 2005 the FSA also regulated the motor industry, applicable when insurance products were sold in conjunction with the vehicle purchase. This regulation, which covered around 5,000 motor dealers, focused heavily on the FSA's "Treating Customers Fairly"[10] principles that were supposed to be representative of the motor dealers' trading style.

Statutory objectives
25 The North Colonnade

The Financial Services and Markets Act 2000 imposed four statutory objectives upon the FSA:

  • market confidence: maintaining confidence in the financial system;
  • financial stability: contributing to the protection and enhancement of stability of the UK financial system;
  • consumer protection: securing the appropriate degree of protection for consumers; and
  • reduction of financial crime: reducing the extent to which it is possible for a business carried on by a regulated person to be used for a purpose connected with financial crime.

The Financial Services Act 2010, which was passed by Parliament on 8 April 2010, gave the FSA the additional statutory objective of "Contributing to the protection and enhancement of the stability of the UK financial system" and removed the public awareness objective.[11]

Regulatory principles

The statutory objectives were supported by a set of principles of good regulation which the FSA had to have regard to when discharging its functions. These were:

  • efficiency and economy: the need to use its resources in the most efficient and economic way.
  • role of management: a firm's senior management is responsible for its activities and for ensuring that its business complies with regulatory requirements. This principle is designed to guard against unnecessary intrusion by the FSA into firms’ business and requires it to hold senior management responsible for risk management and controls within firms. Accordingly, firms must take reasonable care to make it clear who has what responsibility and to ensure that the affairs of the firm can be adequately monitored and controlled.
  • proportionality: The restrictions the FSA imposes on the industry must be proportionate to the benefits that are expected to result from those restrictions. In making judgements in this area, the FSA takes into account the costs to firms and consumers. One of the main techniques they use is cost benefit analysis of proposed regulatory requirements. This approach is shown, in particular, in the different regulatory requirements applied to wholesale and retail markets.
  • innovation: The desirability of facilitating innovation in connection with regulated activities. For example, allowing scope for different means of compliance so as not to unduly restrict market participants from launching new financial products and services.
  • international character: Including the desirability of maintaining the competitive position of the UK. The FSA takes into account the international aspects of much financial business and the competitive position of the UK. This involves co-operating with overseas regulators, both to agree international standards and to monitor global firms and markets effectively.
  • competition: The need to minimise the adverse effects on competition that may arise from the FSA's activities and the desirability of facilitating competition between the firms it regulates. This covers avoiding unnecessary regulatory barriers to entry or business expansion. Competition and innovation considerations play a key role in the FSA's cost-benefit analysis work. Under the Financial Services and Markets Act, the Treasury, the Office of Fair Trading and the Competition Commission all have a role to play in reviewing the impact of the FSA's rules and practices on competition.

Retail consumers

The FSA had a priority of making retail markets for financial products and services work more effectively, and so help retail consumers to get a fair deal. Over several years, the FSA developed work to raise levels of confidence and capability among consumers. From 2004, this work was described as a national strategy[12] on building financial capability in the UK. This programme was comparable to financial education and literacy strategies in other OECD countries, including the United States.

In June 2006, the FSA created its Retail Distribution Review (RDR) programme which they maintained would enhance consumer confidence in the retail investment market. The RDR came into force on 31 December 2012.[13]

The RDR is expected to have a significant impact on the way in which financial services are delivered to retail investors in the UK.[14] The primary delivery mechanism of financial services to retail customers is via approximately 30,000 financial intermediaries (FIs) who are authorised and regulated by the FSA. They are expected to bear the brunt of the force of the RDR. The key elements of RDR are:

  1. Independent advice is truly independent and reflects investors’ needs.
  2. People can clearly identify and understand the service they are being offered.
  3. Commission-bias is removed from the system and recommendations made by advisers are not influenced by product providers.
  4. Investors know up-front how much advice is going to cost and how they will pay for it.
  5. All investment advisers will be qualified to a new, higher level, regarded as equivalent to the first year of a degree[15]

The combination of these factors is expected to significantly reduce the profitability of many FI practices.[16] In anticipation of the new regulatory environment being enforced the industry landscape is undergoing significant change. Despite the fact that many in the industry are considered to be poorly prepared for the changes coming into effect,[17] The most significant identifiable trends are:

  1. Consolidators buying up small firms of FIs as a result of the higher qualifications threshold and downward pressures on profitability resulting from RDR – E&Y estimate that the number of Registered Individuals will fall from 30,000 to 20,000 within the next 5 years.[18]
  2. IFAs are embracing the concept of wrap account – incumbent fund supermarkets and Life Assurance Companies are in response launching their own Wrap Platforms.[19]
  3. IFAs are rapidly moving from the traditional investment solution for clients: recommending a portfolio of largely equity-oriented collective investment schemes (Unit trusts and OEICs) and being paid initial and annual renewal commission by the fund provider to an outsourcing model: recommending that clients appoint a discretionary fund manager to manage the client's portfolio(s) and charging the client an annual oversight fee. A recent survey found that 89% of IFAs are considering outsourcing to discretionary managers as a result of RDR.[20]
  4. Several new entrants are making major in-roads into this market[21][22] at the expense of the incumbent retail-oriented funds groups such as Schroders, Gartmore, Fidelity Investments etc.[23] The larger discretionary fund managers are finding it difficult to adapt their business models to cope with these changes, given that the small average portfolio size is better suited[24] to multi-manager (portfolio of funds) solutions,[25] via wrap platforms, when these fund managers tend to prefer to retain custody and investing in direct equities.[26]

2009 regulations

The Payment Services Regulations 2009 came into force on 1 November 2009[27] and shifted the onus onto the banks to prove negligence by the holder of debit and credit cards in cases of disputed payments.[28] The FSA said "It is for the bank, building society or credit card company to show that the transaction was made by you, and there was no breakdown in procedures or technical difficulty" before refusing liability.

On the same date the Banking Conduct Regime commenced.[29] It applies to the regulated activity of accepting deposits, and replaces the non-lending aspects of the Banking Code and Business Banking Code (industry-owned codes that were monitored by the Banking Code Standards Board).

Organisation

Management and accountability

The FSA was not accountable to Treasury Ministers or Parliament, as confirmed by Hector Sants at a Treasury Select Committee meeting on 9 March 2011. Sants told TSC Chair, Andrew Tyrie, that Parliament needed to legislate to remove the FSA's non-accountable status. This was further confirmed by Mark Garnier MP who, when commenting on the FSA's negative reaction to a Treasury Select Committee (TSC) report on the RDR, stated that if the FSA chose to ignore the TSC there was nothing they could do about it.

It was operationally independent of Government and was funded entirely by the firms it regulated through fines, fees and compulsory levies. Its Board consisted of a chairman, a chief executive officer, a chief operating officer, two Managing Directors, and 9 non-executive directors (including a lead non-executive member, the Deputy chairman) selected by, and subject to removal by, HM Treasury. Among these, the Deputy Governor for Financial Stability of the Bank of England was an 'ex officio' Board member.

This Board decided on overall policy with day-to-day decisions and management of the staff being the responsibility of the Executive. This was divided into three sections each headed by a Managing director and having responsibility for one of the following sectors: retail markets, wholesale and institutional markets, and regulatory services.

Its regulatory decisions could be appealed to the Financial Services and Markets Tribunal.

HM Treasury decided upon the scope of activities that should be regulated, but it was for the FSA to decide what shape the regulatory regime should take in relation to any particular activities.

The FSA was also provided with advice on the interests and concerns of consumers by the Financial Services Consumer Panel.[30] This panel described itself as "An Independent Voice for Consumers of Financial Services". Members of the panel were appointed and could be dismissed by the FSA and emails to them were directed to FSA staff. The Financial Services Consumer Panel did not address individual consumer complaints.

Board
Lord Turner, Chairman of the Financial Services Authority.

The FSA was governed by a Board appointed by HM Treasury. The members of the Board at the time of abolition were:

  • Adair Turner – Executive chairman
  • Deputy chairman – vacant, following resignation of Sir James Crosby
  • Andrew Bailey – managing director, Prudential Business Unit
  • Martin Wheatley – managing director, Conduct Business Unit
  • Lesley Titcomb – Acting chief operating officer, the FSA
  • Carolyn Fairbairn – Non-executive FSA Board member, Director of Strategy and Development at ITV plc
  • Peter Fisher – Non-executive FSA Board member, managing director of BlackRock
  • Brian Flanagan – Non-executive FSA Board member, formerly a Vice-President of Mars Inc
  • Karin Forseke – Non-executive FSA Board, formerly CEO of Carnegie Investment Bank AB
  • Sir John Gieve – Non-executive FSA Board member, Deputy Governor, Financial Stability of the Bank of England
  • Professor David Miles – Non-executive FSA Board member, managing director and Chief UK Economist at Morgan Stanley
  • Michael Slack – Non-executive FSA Board, Director of the British Insurance Brokers' Association
  • Hugh Stevenson – Non-executive FSA Board member, Chairman of the FSA Pension Plan Trustee Ltd
  • Mick McAteer – Non-executive FSA Board member, director, Financial Inclusion Centre.

Criticisms

The FSA rarely took on wider implication cases. For example, thousands of consumers have complained to the Financial Ombudsman Service about payment protection insurance (PPI) and bank charges. However, despite determining that there was a problem in the selling of PPI,[31][32][33] the FSA took effective action against very few firms in the case of PPI and it was the Office of Fair Trading (OFT) that finally took on the wider implications role in the case of bank charges. The FSA and the FOS had staff placed within their co-organisation to advise on wider implication issues. It is surprising, therefore, that so little action took place.

The FSA in an internal report into the handling of the collapse in confidence of customers of the Northern Rock Plc described themselves as inadequate.[34] It was reported that to prevent such a situation occurring again, the FSA was considering allowing a bank to delay revealing to the public when it gets into financial difficulties.[35]

The FSA was criticised in the final report of the European Parliament's inquiry into the crisis of the Equitable Life Assurance Society.[36] It is widely reported that the long-awaited Parliamentary Ombudsman's investigation into the government's handling of Equitable Life is equally scathing of the FSA's handling of this case[37]

The FSA ignored warning signals from Northern Rock building society and continued to allow the bank to operate without a risk mitigation programme for months before the bank's collapse.[38]

The FSA was criticised by some within the IFA community for increasing fees charged to firms and for the perceived retroactive application of current standards to historic business practices.

The perceived lack of action by the FSA in many cases, and allegations of regulatory capture led to it being nicknamed the Fundamentally Supine Authority by Private Eye magazine.

The FSA was not legally able to circumvent statute yet hid behind secret legal opinion regarding its summary removal of practitioners' legal rights in respect of their ability to use a longstop defence against stale claims.

FSA regulation was also often regarded as reactive rather than proactive. In 2004–05 the FSA was actively involved in crackdowns against financial advice firms who were involved in the selling of split-cap investment trusts and precipice bonds, with some success in restoring public confidence.. However, despite heavily criticising split-cap investment trusts, in 2007 it suddenly abandoned its investigation.[39] Where it was rather poorer in its remit is in actively identifying and investigating possible future issues of concern, and addressing them accordingly.

There were also some questions raised about the competence of FSA staff.[40]

The composition of the FSA board appeared to consist mainly of representatives of the financial services industry and career civil servants. There were no representatives of consumer groups. As the FSA was created as a result of criticism of the self-regulating nature of the financial services industry, having an independent authority staffed mainly by members of the same industry could be perceived as not providing any further advantage to consumers.

Although one of the prime responsibilities of the FSA was to protect consumers, the FSA was active in trying to ensure companies' anonymity when they were involved in misselling activity, preferring to side with the companies that have been found guilty rather than consumers.[41][42]

This was most obviously seen in the case known as the LAUTRO 19, where the FSA identified 19 insurers which had breached their contractual warranties by using incorrect charges to calculate the premiums for mortgage endowment policies. This miscalculation led to massive consumer detriment as well as vast and unquantifiable costs for the advisers who unwittingly sold these products. The FSA steadfastly refused to publicly name the miscreant companies and spent £100,000s on legal fees to baulk the efforts of the Information Commissioner who had concluded that naming the companies would be in the public interest.

It was announced in November 2008, that despite self-acknowledged failures by the FSA in effectively regulating the financial services industry, FSA staff would receive bonuses.[43] On 31 May 2008, The Times confirmed that FSA staff had received £20m in bonuses for 2008/09, a 40% increase on the previous year.[44]

On 11 February 2009, FSA deputy chairman, Sir James Crosby resigned after it was revealed that he had fired a whistleblower, Paul Moore, who had warned of dangerous lending practices at HBOS when he had been in charge of risk regulation.[45]

Lord Adair Turner, the then FSA chairman, defended the actions of the regulator on the BBC's Andrew Marr show on 13 February 2009. His comments were that other regulatory bodies throughout the world, which had a variety of different structures and which are perceived either as heavy touch or light touch also failed to predict the economic collapse. In line with the other regulators, the FSA had failed intellectually by focusing too much on processes and procedures rather than looking at the bigger economic picture. In response as to why Sir James Crosby had been appointed deputy chairman when his bank HBOS had been highlighted by the FSA as using risky lending practises, Lord Turner said that they had files on almost every financial institution indicating a degree of risk.[46]

Turner faced further criticism from the Treasury Select Committee on 25 February 2009, especially over failures to spot or act on reckless lending by banks before the crisis of 2008 occurred. He attributed much of the blame on the politicians at the time for pressuring the FSA into "light touch" regulation.[47]

On 17 April 2009, a whistleblower (former FSA employee) alleged that the FSA had turned a blind eye to the explosion in purchases of whole sale loans taken on by various UK building societies from 2005 onwards. The FSA denied the claims – "This is not whistleblowing, it is green ink" a spokesman said. "The allegations are a farrago of lies, distortions and half truths made by an obviously disgruntled former employee who clearly has an axe to grind. It does not paint a realistic picture of our supervision of building societies."[48]

On 18 August 2012, the Treasury Select Committee criticised the FSA for its poor enforcement of the LIBOR rate setting rules.[49]

More principles-based regulation

There were suggestions that the FSA stifled the UK financial services industry through over-regulation, following a leaked letter from Prime Minister Tony Blair during 2005. This incident led Callum McCarthy, then Chief Executive of the FSA, to formally write to the Prime Minister asking him to either explain his opinions or retract them.[50]

The Prime Minister's criticisms were viewed as particularly surprising since the FSA's brand of light-touch financial regulation was typically popular with banks and financial institutions in comparison with the more prescriptive rules-based regulation employed by the US Securities and Exchange Commission and by other European regulators;[51] by contrast, most critiques of the FSA accused it of instigating a regulatory "race to the bottom" aimed at attracting foreign companies at the expense of consumer protection.[52]

The FSA countered that its move away from rules-based regulation towards more principles-based regulation, far from weakening its consumer protection goals, could in fact strengthen them: "Our Principles are rules. We can take enforcement action on the basis of them; we have already done so; and we intend increasingly to do so where it is appropriate to do so."[53] As an example, the enforcement action taken in late 2006 against firms mis-selling payment protection insurance was based on their violation of principle six of the FSA's Principles for Business, rather than requiring the use of the sort of complex technical regulations that many in financial services find burdensome.[54]

Enforcement cases

The FSA was criticised for its supposedly weak enforcement program.[55][56][57] For example, while FSMA prohibits insider trading, the FSA only successfully prosecuted two insider dealing cases, both involving defendants who did not contest the charges.[58] Likewise, since 2001, the FSA only sought insider trading fines eight times against individuals and companies it regulated,[59] despite the FSA's own studies indicating that unexplained price movements occur prior to around 25 percent of all UK corporate merger announcements.[60]

After the HBOS insider trading scandal, the FSA informed MPs on 6 May 2008 that they planned to crack down on inside trading more effectively and that the results of their efforts would be seen in 2008/09[61] On 22 June, the Daily Telegraph reported that the FSA had wrapped up their case into HBOS insider trading and no action would be taken.[62] On 26 June, the HBOS chairman said that "There is a strong case for believing that the UK is exceptionally bad at dealing with white-collar crime".[63]

On 29 July 2008, however, it was announced that the Police, acting on information supplied by the FSA, had arrested workers at UBS and JP Morgan Cazenove for alleged insider dealing and that this was the third case within a week.[64] A year after the subprime mortgage crisis had made global headlines, the FSA levied a record £900,000 on an IFA for selling subprime mortgages.[65]

Actions relating to the 2007—2009 credit crisis

The FSA was held by some observers to be weak and inactive in allowing irresponsible banking to precipitate the credit crunch which commenced in 2007, and which has involved the shrinking of the UK housing market, increasing unemployment (especially in the financial and building sectors), the public acquisition of Northern Rock in mid-February 2008, and the takeover of HBOS by Lloyds TSB. On 18 September 2008, the FSA announced a ban on short selling to reduce volatility in difficult markets lasting until 16 January 2009.[66][67]

Certainly, the FSA's implementation of capital requirements for banks was lax relative to some other countries. For example, it was reported[68] that Australia's Commonwealth Bank is measured as having 7.6% Tier 1 capital under the rules of the Australian Prudential Regulation Authority, but this would be measured as 10.1% if the bank was under the jurisdiction of the FSA.

In March 2009, Lord Turner published a regulatory review of the global financial crisis.[69] The review broadly acknowledges that 'light touch' regulation had failed and that the FSA should concentrate on macroeconomic regulation as well as scrutinising individual companies. The review also proposed cross-border regulation of banks. There were no further promises to improve consumer protection or to directly intervene against financial institutions who treat their customers badly. The review was reportedly met with widespread relief in the city of London where firms had feared a 'revolution' in the way that they would be regulated.[70]

Financial Services Authority logotype
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See also

References
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  2. "NDS.coi.gov.uk". NDS.coi.gov.uk. Archived from the original on 26 March 2009. Retrieved 9 August 2011.
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  40. Regulator, heal thyself, The Economist, 20 January 2005
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  50. Freedom of Information request for disclosure of the letter from Sir Callum McCarthy to the Prime Minister. FSA, 29 May 2007
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  52. Speech by SEC Chairman: 'The Hunters and the Stag': Why National Securities Regulators Must Collaborate In the Era of Global Investing 16 November 2006
  53. Treating Customers Fairly and more principles based regulation Clive Briault, managing director for Retail Markets, FSA, 24 July 2006
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  59. FSA Struggles With Insider Trading That Doesn't Happen in U.K., Bloomberg, 11 June 2007
  60. Measuring Market Cleanliness, FSA, March 2006
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  70. "City relief as Turner shuns revolution". Financial Times. 18 March 2009. Retrieved 9 August 2011.
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