1. What are your views on the Government’s proposal to carry forward CCA conduct requirements which cannot be easily replicated in FCA rules? Do you agree with the Government’s intention to require the FCA to review these retained CCA provisions, with a view to moving to rules-based alternatives wherever possible?
We agree with the advantages of empowering the FCA to make binding rules. While this enables a swift response to issues identified, governance of the FCA should ensure that appropriate consultation is carried out – ie when it would not impede the timeliness of an urgent response.
Another note of caution concerning the introduction of rules to address significant issues concerns possible claims that individual liberty is under threat. The same is true of the FCA’s new product intervention power. Furthermore, the availability of credit and choice, which enhance spending power, not only stands to enhance the wellbeing of the consumer of the credit, but also businesses and the wider public who benefit from that increased spending power. Intervention by the FCA must be supported by a clear public interest claim.
The high level conduct requirements and Principles for Business will have a different status, and any changes must be subject to extensive consultation.
The replication of OFT guidance in the rules of the FCA seems appropriate given that the FCA will have the flexibility to amend its rules. However, there is still a place for guidance, as it encourages the user to focus on underlying principles and take responsibility for the course of action chosen. Therefore, changes in the status of OFT guidance should be undertaken with caution.
It is intended that the regulatory framework, outside of legislation will comprise Principles for Business, high level conduct standards, rules and guidance. The purpose and status of each of these must be made clear. We do not agree that the Principles for Business should be regarded as a ‘belt and braces’ approach, as they should perform a different function to the other standards and guidance. Instead, they should be regarded as fundamental. It appears to us that the high level conduct standards might be viewed as minimum standards expected in order to be able to meet the Principles for Business, with other rules being necessary to specific situations, and guidance being constructive but advisory.
We support the intended approach to cost-benefit analysis concerning FCA rules, and agree that using the Consumer Credit Act provisions as a baseline is a proportionate and expeditious approach.
2. How, if at all, do you think industry codes can complement FCA conduct regulation?
We believe that voluntary codes can complement the rules and Principles for Business of the FCA, and it will surely be of benefit to consumers for the FCA to work with trade associations to ensure a coherent approach, providing clarity to both consumers and firms. As part of this, trade associations’ codes should be required to highlight that in the case of inconsistency or doubt, the rules and principles of the FCA will prevail.
Looking beyond such alignment of regulations, important consumer protections within industry codes should be introduced into the FCA’s rules and guidance, while not overlooking the benefits of principles-based standards.