In its June quarterly consultation paper, the FCA announced proposals to make amendments to the Handbook relating to its powers to vary or cancel the permissions of firms authorised under Part 4A of the Financial Services and Markets Act 2000 (FSMA) to carry on FCA regulated activities.
In the Financial Services Act 2021, which has relevantly amended FSMA, the FCA has been provided with an additional process through which it can vary or cancel the permissions of firms we have authorised under Part 4A. This new process will sit alongside the existing cancellation and variation process in FSMA.
The Treasury will specify the date from which this new power will apply in a commencement order.
This follows on from January 2021, when the FCA reminded firms of their obligation to regularly review regulatory permissions to ensure they are up to date and, importantly, removed where not needed. This is consistent with the actions the FCA has been taking with firms involved in defined benefit pension transfer advice over the past eighteen months or so, where many firms have been ‘encouraged’ to vary their permissions so that they cannot continue to advise on DB transfers.
Use it or lose it
The FCA has announced their intention to use the new power, where the conditions described below are satisfied, in a ‘use it or lose it’ exercise.
The new cancellation and variation power will allow the FCA to vary or cancel an FCA-authorised firm’s Part 4A permission where:
- the firm appears to us not to be carrying on any FCA-regulated activity, including, but not only, where the firm has failed to pay a periodic fee or levy, or to provide the FCA with information, such as an annual return, required under the Handbook; and
- the FCA has served on the firm two notices and the firm has not responded or taken other steps as directed.
Why this is happening
The new power will allow the FCA to more quickly cancel or vary the permissions of Part 4A authorised firms who appear to no longer be carrying on FCA-regulated activities and to reflect this cancellation or variation on the Financial Services Register. The Register is a valuable source of information for anyone who wants to check the details of firms working in regulated financial services. It can thereby help consumers to avoid financial harm such as scams.
Firms that have not used their regulatory permissions to earn any income for the last 12 months are at risk of having their authorisation cancelled, to reduce the risk of firms having a permission to carry out regulated financial services purely to add credibility to their unregulated activities.