Legal issues for the UK consumer finance industry
On 2 October 2019, the UK Financial Conduct Authority published a further policy statement, PS 19/25, on overdraft pricing and competition remedies.
The policy statement makes changes to the definition of ‘private bank’ in the Banking Conduct of Business Sourcebook. It also introduces a requirement for firms to publish a range of overdraft pricing information. Its aim is to increase transparency and raise awareness of a firm’s overdraft charging structures.
On 26 July 2019, the UK Financial Conduct Authority published a policy statement, PS19/20, setting out its final rules and guidance on:
– the extension of the Senior Managers & Certification Regime to FCA solo-regulated firms and a new directory; and
– a new directory of individuals working in financial services.
For in-house lawyers, and importantly, a Head of Legal is excluded from the requirement to be approved as a Senior Manager.
The new SMCR rules come into force on 9 December 2019.
On 25 March 2019, the UK Financial Conduct Authority (the FCA) published a press release and its policy paper on its long-awaited ‘Review of retained provisions of the Consumer Credit Act 1974’ (the Paper). The Paper has been presented to the Government and follows on from the FCA’s interim report (published in August 2018).
The devil is, of course, always in the detail (particularly where consumer credit is concerned). However, and somewhat frustratingly, it appears the FCA’s views in the Paper broadly follows its views set out in the interim report.
For example, the FCA says certain ‘rights and protections’ need to be maintain in legislation (but some rights and protections could be transferred to the FCA’s handbook) (see Chapter 5). But it seems the awfully complex modifying agreement provisions in Section 82 of the Consumer Credit Act 1974 (the CCA), which have long-since passed their sell-by date and often cause lenders headaches when they want to do ‘the right thing’, will remain (see para 5.23).
Similarly, the FCA says the information requirements provide an “appropriate degree” of consumer protection and should be kept. But the impact of the sanctions, and some of the information, needs further consideration (see Chapters 6 and 7).
But what the Report overlooks is the fact that the current regime is complicated for both consumers and lenders (and the sanctions are more serious than those which apply to a mortgage lender). Even a very experienced Court of Appeal, in McGinn v Grangewood Securities Limited [2002] EWCA Civ 522, said (in para 1) that the appeal in that case raised “a number of issues under the [CCA] which has recently provided so much work for the courts. Like others, this case demonstrates the unsatisfactory state of the law at present. Simplification of a part of the law which is intended to protect consumers is surely long overdue so as to make it comprehensible to layman and lawyer alike. At present it is certainly not comprehensible to the former and is scarcely comprehensible to the latter“. Since that decision, we have had further significant changes in 2005, 2007/2008, 2011 and 2014 (none of which have made the regime any easier to understand). No doubt the Court of Appeal will have more to say on this in the future.