Linklaters
25 Experts
8 Contributions by Linklaters Experts
PRACTICE NOTES
What is an attestation?
The Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) can seek an attestation from a firm when they are worried about, or looking into, an actual or possible breach of regulatory obligations. In essence, an attestation is the regulator asking a named individual within a regulated business—typically a manager who also holds a Senior Manager function—to give a signed written statement confirming the firm’s compliance with particular regulatory requirements affecting a defined part of the business. The FCA also employs attestations as part of day-to-day supervision; for example, every firm must annually attest that the details held on the Financial Services Register are correct (see Practice Note: The Financial Services Register). The PRA likewise uses attestations routinely, generally via standardised forms, while noting that it may require attestations addressing compliance with specific rules on an ad hoc basis. As
Financial Services
PRACTICE NOTES
The Lexis+® UK Financial Services Enforcement Database brings together granular details on every substantive FCA and PRA Final Notice and, where obtainable, Decision Notices issued from 2014 to date. The Database can be searched and refined by rule contravention, keyword, sector, date, prohibition order, financial penalty, and other actions, including referrals to the Upper Tribunal.
Prohibition orders
Under section 56 of the Financial Services and Markets Act 2000 (FSMA 2000), the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) may prohibit individuals who are not fit and proper from performing functions connected to regulated activities carried on by firms. The FCA or PRA may use this power where it considers it appropriate either to stop an individual performing any function in relation to regulated activities, or to limit the functions that individual may perform.
a particular regulated activity
any
Financial Services
PRACTICE NOTES
Search and seizure—the law
The Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) (together, the Regulators) possess powers to enter premises and carry out searches and seizures under a warrant. The chief power, and the focus of this Practice Note, arises under section 176 of the Financial Services and Markets Act 2000 (FSMA 2000). A range of the Regulators’ other key powers—exercisable both with and without a warrant—are outlined below under Other powers of search and seizure.
This Practice Note:
sets out the Regulators’ powers of entry, search and seizure
examines the duties on firms and individuals to co‑operate with the Regulators
offers practical guidance on preparing for a dawn raid
details how firms and individuals should respond when a warrant is executed
Power to apply for warrant
Under FSMA 2000, s 176, the Regulators may apply to a
Financial Services
PRACTICE NOTES
This Practice Note considers the implications of the Financial Conduct Authority’s (FCA) Consumer Duty for payments and electronic money (or e-money) firms
For the purposes of this Practice Note, a payments firm is used as a broad term for a ‘payment service provider’ (PSP) under the Payment Services Regulations 2017, SI 2017/752 (PSRs 2017).
Authorised payment institutions
Small payment institutions
Registered account information service providers
References to an e-money firm mean entities within the Electronic Money Regulations 2011, SI 2011/99 (EMRs 2011).
Authorised electronic money institutions
Small electronic money institutions
In broad terms, the Consumer Duty (the Duty) captures firms undertaking regulated activities in the UK that fall within the FCA’s scope. Some payment and e-money firms will deal directly with retail customers, while others participate indirectly through a distribution chain that reaches a retail end user. The Duty extends to both
Financial Services
PRACTICE NOTES
ARCHIVED: This Practice Note is archived and is not maintained. It sets out the process for creating a tax-advantaged share plan, including a company share option plan (CSOP), a share incentive plan (SIP) and a save as you earn (SAYE) scheme (a Qualified Plan). The process for enterprise management incentives (EMI) varies slightly and is not addressed here. For more on EMI, see Practice Notes: How EMI schemes work and key features—advance assurance and EMI—notification of grant of options to HMRC.
Overview
If a company is eligible to run a Qualified Plan (see Practice Notes: CSOP—qualifying companies and qualifying shares, SAYE—companies which qualify to operate an SAYE scheme and SIPs—qualifying companies and type of shares) and holds plan documents that meet legislative requirements, it can commence granting awards under it, with those awards potentially qualifying for the tax advantages set out in the
Share Incentives
PRACTICE NOTES
Public censures
The Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) hold disciplinary and enforcement powers to publicly censure individuals and firms that have breached requirements under the Financial Services and Markets Act 2000 (FSMA 2000), rules made by the FCA or PRA, or other applicable legislation. The Bank of England also possesses censure powers under FSMA 2000. Public censures help regulators highlight standards and principles, influence the subject’s behaviour, and deter others from similar misconduct. The regulators view public censures as a useful disciplinary measure where appropriate. They have applied them where a financial penalty would result in serious financial hardship, and where the subject has taken substantial, proactive steps to remedy breaches and tackle consumer harm. A public censure may also be issued alongside other enforcement or disciplinary actions, such as a prohibition order.
This Practice Note
Financial Services
PRACTICE NOTES
The Financial Services Enforcement Database holds comprehensive details of all substantive FCA and PRA Final Notices and, where available, Decision Notices issued from 2014 onwards. The Database can be searched and filtered by:
rule breaches
keywords
sector
date
seriousness
aggravating and mitigating factors
financial penalties
other actions, such as referrals to the Upper Tribunal
Background
The statutory power to require a firm to seek an independent view from a third party (a ‘skilled person’) on aspects of a regulated firm’s activities under section 166 of the Financial Services and Markets Act 2000 (FSMA 2000), as amended by the Financial Services Act 2012, is routinely used by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) within their regulatory toolkits.
Either the FCA or the PRA may exercise this power when they need further granular
Financial Services
PRECEDENTS
Letter notifying data subject of data breach under the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426
[ Data subject’s name and address ]
[ Date ]
Dear [ insert name ],
Notification of data breach
On [ insert date ] we identified that [ what has occurred, ie a personal data breach (including whether an unauthorised third party was involved) ]. [ We believe that the OR The ] incident is understood to have taken place on [ insert date ]. Our enquiries [ to date ] indicate that the data [ was accessed by an unauthorised person OR was disclosed without authorisation OR was stolen OR was lost OR was destroyed OR was altered ] [ may have ] comprised personal information, for example [ describe the data and, if possible, confirm whether you consider the recipient’s data to have been affected, eg the names and
Information Law
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