The Bank of England's approach to Brexit

Following on from the FCA’s consultation papers on Brexit which were published earlier this month, the Bank of England (BoE) has now issued a package of communications setting out proposed changes to its rules and some of the binding technical standards that have been allocated to it under the Financial Regulators’ Powers (Technical Standards etc.) (Amendment etc.) (EU Exit) Regulations 2018.

The communications are relevant to all firms authorised and regulated by the PRA, EEA firms undertaking cross-border activities into the UK, UK financial market infrastructures (FMIs) regulated by the BoE, and non-UK central counterparties (CCPs) and non-UK central securities depositories (CSDs) providing cross-border services into the UK.

The package of communications comprise of

• Dear CEO letter from Sam Woods (CEO, PRA) to all PRA authorised firms, as well as EEA firms that passport into the UK.
• Dear CEO letters from Sir Jon Cunliffe (Deputy Governor Financial Stability, BoE) updating non-UK CCPs and non-UK CSDs on the BoE’s approach to EU withdrawal.
• BoE consultation paper setting out the general approach to making changes to rules and binding technical standards (BTS), including the proposed use of transitional powers. The consultation paper also contains a draft Supervisory Statement indicating the BoE’s expectations of firms and FMIs in relation to EU level 3 guidelines and recommendations.
• PRA consultation paper setting out the key changes to PRA rules and relevant BTS. The consultation covers changes related to EU legislation where HM Treasury (HMT) has either published its policy intention or published related legislation in draft.
• BoE consultation paper setting out the key changes to FMI-related BTS and rules. The consultation paper also contains a draft Supervisory Statement on the BoE’s expectations of FMIs in relation to non-binding domestic material.
• BoE consultation paper setting out changes to BTS in relation to resolution. The consultation paper also proposes how firms should interpret the three BoE Statements of Policy on resolution in light of any deficiencies arising from Brexit.

The BoE also reports that it has updated its website by adding a single webpage that brings together previous communications on Brexit. This includes information for firms on the temporary permissions regime and information on the process for incoming FMIs.

The communications are an important component of the UK’s contingency planning for a so called "hard Brexit" where the Withdrawal Agreement (containing an implementation period) is not ratified by 11pm on March 29, 2019 (Exit day).

The Dear CEO letter from Sam Woods contains messages for both PRA authorised firms and EEA firms that currently passport into the UK.

In terms of PRA authorised firms the key messages are

• The approach to the PRA’s communications is to keep the onshoring process as simple as possible – the proposed changes do not reflect any change in policy but instead update existing requirements to reflect the UK’s exit from the EU.
• The PRA’s position is that, in all but a few areas, UK regulated firms do not need to take action now to implement the changes in UK law arising from Brexit. If the Withdrawal Agreement is ratified and the implementation period takes effect, the changes in the communications will not take effect until after it (and may be further modified). If the Withdrawal Agreement is not ratified (and the implementation period does not come into effect) the PRA expects to use the powers that the Government has proposed to provide it to grant transitional relief to ensure that firms have sufficient time to comply with the changes.

In relation to EEA firms that currently passport into the UK, the Dear CEO letter reminds them that in the event the Withdrawal Agreement is ratified, PRA authorisation will only be needed by the end of the implementation period. If the Withdrawal Agreement is not ratified, EEA firms will need to make the relevant notification and use the temporary permissions regime.

Finally, in terms of contract continuity the Dear CEO letter states that the PRA notes “the UK Government’s commitment, in December 2017, to lay additional legislation, if necessary, to ensure contractual obligations not covered by the temporary permissions regime can continue to be met.”

The Dear CEO letter to non-UK CSDs deals with three questions

• What will the UK’s proposed recognition regime for non-UK CSDs look like post Brexit?
• Does a CSD need UK recognition post Brexit?
• How does a non-UK CSD apply to use the transitional regime in advance of applying for recognition?

The Dear CEO letter states that UK domestic law requirements for recognition of non-UK CSDs will “in essence” be the same as the current requirements for recognition of third country CSDs in the EU under Article 25 of the Central Securities Depositories Regulation (CSDR). The transitional regime will also be similar to the one described in article 69 of the CSDR.

The transitional regime will enable non-UK CSDs to continue to provide CSD services in the UK until the recognition process is complete. Non-UK CSDs that wish to continue to provide CSD services in the UK after Exit day are encouraged to indicate their intent to use the transitional regime now, prior to legislation coming into force. If they reply to the Dear CEO letter saying they wish to use the transitional regime, then the BoE will, upon the legislation coming into force and subject to its terms, treat this as a notification and confirm that it has done so. A non-UK CSD can rescind the notification at any point by notifying the BoE.

Non-UK CSDs may use the transitional regime until the recognition process is complete. However, a non-UK CSD must apply for recognition within six months of a positive equivalence decision being made by the BoE of the jurisdiction in which the CSD is established.

Non-UK CSDs are invited to write to the BoE indicating among other things

• Their intention to provide CSD services in the UK and use the transitional regime after the UK has left the EU.
• Which activities they will be conducting in the UK.
• If they undertake any non-exempt regulated activities that would require Part 4A permission under the Financial Services and Markets Act 2000 (FSMA).

The Dear CEO letter adds that the BoE will publish on its website the names of all non-UK CSDs that have given an indication of their intention to provide CSD services in the UK and use the transitional regime.

The Dear CEO letter to non-UK CCPs provides an update on how the BoE intends to recognise non-UK CCPs post Exit day. The Dear CEO letter has been produced in light of the relevant draft statutory instrument, The Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018, being laid before Parliament.

The BoE states that it expects the draft statutory instrument to come into force in Q4 2018 (subject to the Parliamentary process). Once the statutory instrument has come into force non-UK CCPs will be able to submit formal applications for recognition to the BoE. The manner in which non-UK CCPs are expected to make the application is set out in Annex I to the Dear CEO letter. Significantly, the information is materially the same as is currently required by third country CCPs applying to the EU for recognition, with only limited changes made to replace references to "the EU" with references to "the UK". An application fee of £35,000 is also proposed.

The draft statutory instrument also provides for a temporary recognition regime for non-UK CCPs as part of the UK’s contingency planning for a no-deal Brexit. The temporary recognition regime will allow eligible non-UK CCPs, for which recognition decisions have not been made, to continue providing clearing services in the UK for a limited period of time post Brexit. The eligibility criteria is listed in Annex II of the Dear CEO letter. To enter the temporary recognition regime, an eligible non-UK CCP will need to inform the BoE in one of two ways: (i) providing a notification to the BoE before Exit day; or (ii) submitting an application for recognition before Exit day. The information the BoE expects non-UK CCPs to provide as part of their notification for entry into the temporary recognition regime is listed in Annex III of the Dear CEO letter. Once the temporary recognition regime comes into effect, the BoE will publish on its website a list of non-UK CCPs that have been recognised under it.

The BoE has published a consultation paper setting out its proposed general approach to amending financial services legislation under the European Union (Withdrawal) Act 2018 (EUWA 2018). Importantly, the BoE sets out in this consultation paper its general approach to

• Making changes.
• Using the temporary transitional power that HMT previously said that it would legislate for so that onshoring changes can be phased in.
• The approach to EU guidelines and recommendations.

General approach to making changes

To provide background to the BoE’s proposals, the consultation paper notes that the Government is making a number of common changes to onshored legislation, the key common legislative changes include

• EEA firms that were able to provide services into the UK through passporting arrangements will need to seek authorisation to continue to be able to do so after Exit day. Similarly, EEA FMIs will need to seek recognition to be able to continue to provide services.
• Roles and responsibilities that are currently being carried out by EU authorities are being reallocated to the most appropriate UK authority.
• Detailed obligations that arise as part of EU membership for UK regulators to share information and co-operate with EU authorities will be deleted.
• Where capital or liquidity consolidation was only required at the EU level previously, this will be required at the UK level after Exit day.

General approach for the use of the temporary transitional power

The general approach is that the temporary transitional power will be used in such a manner as to ensure that firms and FMIs providing services within the BoE’s and PRA’s regulatory remits do not have to prepare immediately to implement onshoring changes by Exit day. The power is intended to be used in a broad way to delay the application of onshoring changes that would otherwise result in firms/FMIs needing to take action before Exit day for compliance purposes.

The proposed broad use of the transitional power would mean

• Firms and FMIs would continue to treat EU27 exposures and assets preferentially, particularly under the Capital Requirements Regulation regime.
• Firms and FMIs would continue to report and disclose regulatory data on the same basis as prior to Exit day.
• UK groups that are part of EEA headquartered banking groups would not need to comply with consolidated liquidity requirements at the UK level.
• credit unions could continue to place deposits with EEA credit institutions.

The above list is not exhaustive. The PRA has considered three instances where it would not use the power to delay onshoring changes to firms’ obligations – as the granting of transitional relief would undermine its statutory objectives. The situations relate to: contractual recognition of bail-in terms, stay of resolution and proposed changes to the Depositor Protection and Policyholder Protection Parts of the PRA Rulebook.

EU guidelines and recommendations

The BoE is not proposing to reproduce or make amendments to the content of individual guidelines and recommendations ahead of Exit day. To provide clarity for UK firms and FMIs, included in appendices 1 to 3 of the draft statement of policy (attached to the consultation paper) are a list of guidelines that are currently complied with in the UK: firms and FMIs will be expected to comply with these guidelines after Exit day to the extent they remain relevant. The guidelines listed in the appendices include those derived from

• The Bank Recovery and Resolution Directive
• The Capital Requirements Directive IV
• Capital Requirements Regulation
• European Market Infrastructure Regulation
• Markets in Financial Instruments Directive II

Consultation Paper 26/18 – UK withdrawal from the EU: changes to PRA Rulebook and onshored BTS (CP26/18) sets out the PRA’s proposals to fix deficiencies in the PRA Rulebook arising from Brexit, and in relation to BTS within its remit that will be onshored into UK law. However, the BTS addressed by CP26/18 are limited to those for which HMT has already published draft statutory instruments for. The PRA also sets out proposals on how its non-binding materials, including Supervisory Statements, Statements of Policy and the Approach Documents, should be read by firms when the UK leaves the EU.

Importantly, the proposals in CP26/18 will only come into effect on Exit day if the Withdrawal Agreement is not ratified. If the Withdrawal Agreement is ratified, then the proposals will not come into effect until after the implementation period (December 31, 2020) and they may be further modified to take into account any agreement the UK and EU may reach on the future relationship.

Non-binding PRA material

Chapter 2 of CP26/18 deals with PRA non-binding materials, and a draft Supervisory Statement is set out in Appendix 1. The draft Supervisory Statement explains that the general approach that the PRA is taking is that it will not be making line-by-line amendments to its non-binding materials (except for Supervisory Statement 18/15: Depositor and dormant account protection) and instead firms will need to interpret these in light of the UK leaving the EU, including any amendments made to UK legislation under the EUWA 2018.  The draft Supervisory Statement provides some examples of proposed changes. For instance, it states that any reference to passporting, or processes associated with passporting, are redundant. Where capital or liquidity consolidation was previously only required at the EEA level, this would be required at the UK level after Exit day. Firms will need to interpret references to EEA consolidated group, to UK consolidated group.

Reporting requirements

The approach to reporting and disclosure requirements is covered in chapter 3 of CP26/18. The general approach is that the PRA is not proposing to make line-by-line changes to regulatory reporting requirements but instead proposes a more proportionate approach that is further described in a draft Supervisory Statement set out in Appendix 2. The draft Supervisory Statement covers a general approach to reporting requirements by setting out various different types of EU-based references and a default approach to how these should be interpreted. It then goes on to describe specific cases including reporting and disclosure requirements based on the Capital Requirements Regulation.

Banks, building societies and designated investment firms

Chapter 4 of CP26/18 is an important chapter in that it describes proposals relating to PRA-regulated banks, building societies and designated investment firms. Of particular importance is the discussion regarding the contractual recognition of bail-in and stay in resolution. The proposed changes to the PRA rules on the contractual recognition of bail-in are set out in Appendix 4.

The PRA makes two important proposals

• It proposes to amend Rule 2.1 of the Contractual Recognition of Bail-In Part of the PRA Rulebook, so that the requirement does not apply in respect of EEA law governed liabilities that were created before Exit day. Firms will be required to comply with the contractual recognition of bail-in requirement in respect of new or materially amended EEA law governed liabilities created after Exit day. Firms’ existing stock of EEA law governed liabilities at Exit day would not need to be updated under the proposals. The PRA does not propose to grant transitional relief in respect of liabilities that are intended to count towards a firm’s minimum requirement for own funds and eligible liabilities (MREL). EEA law governed liabilities, other than phase two liabilities (unsecured debt that is not a debt instrument), that are issued or materially amended after Exit day and that are subject to the contractual recognition of bail-in rules, will not be subject to a temporary transitional power and will be required to include a contractual recognition term. However, in relation to new or materially amended EEA law governed phase two liabilities after Exit day, the PRA does propose to use a temporary transitional power to delay the obligation to include a contractual recognition of bail-in term.
• The Stay in Resolution rules will not be amended although the PRA clarifies that firms would be required to comply with these rules in respect of new EEA law governed financial arrangements (or existing financial arrangements materially amended) after Exit day. The existing stock of financial arrangements governed by EEA law at Exit day would not need to be updated under the PRA Stay in Resolution rules. The PRA does not intend to use a temporary transitional power in respect of the Stay in Resolution rules given their importance to support orderly resolution.

Chapter 4 also covers the regulatory technical standards (RTS) for risk-mitigation techniques for over-the-counter (OTC) derivative contracts not cleared by a CCP. This RTS imposes risk management obligations on firms for non-cleared OTC derivative transactions. These obligations apply to firms individually. The general approach that the PRA proposes is to treat Member States as third countries. The PRA notes that this approach to onshoring may require repapering of bilateral agreements, as well as changes to the arrangements counterparties have in place in respect of collateral for these derivative transactions.

The PRA proposes other amendments to the RTS, including those in relation to

• The range of eligible collateral.
• The range of credit institutions where case collected as initial margin can be maintained.
• Covered bond exemption.
• References to UCITS and alternative investment fund managers.

The PRA notes that the RTS contain a number of phase-in provisions (including initial margin and the application of the requirements to single-stock equity options). The PRA advises that whilst as a matter of law these provisions are not onshored under the EUWA 2018, firms should plan on the assumption that “requirements arising from new EU legislation that comes into effect during an implementation period lasting until December 31, 2020 would apply to them.”

In terms of ring-fenced banks, the PRA refers to an earlier HMT policy note confirming that ring-fenced bodies will be permitted to continue operating through a branch or a subsidiary in the EEA immediately after Exit day. However, the PRA proposes to amend one rule (Rule 16.3 of the Ring-fenced Bodies Part of the PRA rulebook) requiring ring-fenced bodies that use non-UK CCPs or CSDs to ensure comparable outcomes in respect of account segregation to those specified for UK-based CCPs and CSDs.

Insurers and credit unions

Chapters 5 and 6 deal with insurers and credit unions respectively. The chapter on insurance covers proposals regarding the location of branch assets and admissible assets. In relation to credit unions the PRA notes that 55 credit unions currently have deposits and investments with non-UK (EEA) providers and that all but one of these providers have confirmed that they intend to apply for UK authorisation following Exit day. The PRA states that “it seems likely that credit unions which have placed funds with these institutions will be able to keep them there (albeit that the funds may be transferred to a different entity of the same banking group).”

Temporary permissions regime

The temporary permissions regime is covered in chapter 7 and the PRA focuses on adjustments to the definition of non-Directive insurer and the applicability of the Senior Manager and Certification Regime (SM&CR) to firms without a branch in the UK.

The PRA proposes to apply the SM&CR rules for UK branches of third country firms to firms in the temporary permissions regime including, with modifications, to cross-border service providers without a UK branch. The PRA also makes specific proposals relating to the shortened notification process known as "deemed approval" under the draft statutory instrument that implements with the temporary permissions regime (The EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018). In particular the PRA proposes to provide firms within the temporary permissions regime with a period of up to 12 weeks from Exit day in which to obtain deemed (or full) approval for individuals who require it. The Certification Regime and requirements concerning regulatory references will also be applied to cross-border service providers who enter the temporary permissions regime (with or without a branch).

Financial Services compensation scheme

The PRA makes a number of proposals in chapter 8 relating to the Financial Services Compensation Scheme (FSCS). In particular the PRA proposes to change its rules to provide that from Exit day, FSCS depositor protection would only protect depositors with eligible deposits held by UK establishments of firms with FSMA Part 4A permissions to accept deposits. The PRA also discusses the position as regards deposits held by UK establishments of EEA firms and deposits held by UK firms’ branches in the EEA. In relation to the latter the PRA proposes to amend its rules such that the deposits will no longer be protected by the FSCS.

The BoE consultation paper dealing with changes to FMI rules and onshored BTS is relevant to FMIs supervised by the BoE, as well as market infrastructures and market participants. Essentially the BoE sets out proposals that are intended to fix deficiencies arising from Brexit in onshored BTS that the BoE as FMI supervisor will be responsible for.

The changes in the consultation paper would only come into effect on Exit day where the Withdrawal Agreement is not ratified. If the Withdrawal Agreement is ratified, then the proposed amendments would come into force at the end of the implementation period (albeit they may be further modified depending on any agreement between the UK and the EU on the future relationship).

This consultation paper is relevant to all firms subject to the BoE’s resolution powers. It sets out the BoE’s proposals for fixing deficiencies arising from Brexit in relation to the onshored Bank Recovery and Resolution Directive (BRRD) BTS for which it is responsible.

Like the other BoE/PRA consultation papers the proposals will have an effect on Exit day only if the Withdrawal Agreement is not ratified. If the Withdrawal Agreement is ratified, the proposed changes will apply at the end of the implementation period (albeit they may be further modified depending on any agreement between the UK and the EU on the future relationship).

The BRRD BTS to which the BoE proposes to make changes to are as follows

• Articles 22 to 32 (on group resolution plans and assessments of resolvability), 37 to 41 (on independence of valuers), and 50 to 109 (on joint decisions as part of resolution colleges) of Commission Delegated Regulation (EU) 2016/1075 (BTS 2016/1075).
• Commission Delegated Regulation (EU) 2016/1400 (on business reorganisation plans).
• Commission Delegated Regulation (EU) 2016/1401 (on the methodologies and principles for valuation of derivatives liabilities).
• Commission Delegated Regulation (EU) 2016/1450 (on the methodology for setting a minimum requirement for own funds and eligible liabilities) (BTS 2016/1450).
• Commission Delegated Regulation (EU) 2016/1712 (on the minimum level of information on financial contracts that should be maintained).
• Commission Implementing Regulation (EU) 2016/962 (on the transmission of information to the EBA) (BTS 2016/962).
• Commission Delegated Regulation (EU) 2018/344 (on methodologies for valuation of difference in treatment in resolution).
• Commission Delegated Regulation (EU) 2018/345 (on the methodology for assessing the value of assets and liabilities).
• Commission Implementing Regulation (EU) 2018/308 9 on the transmission of information concerning firms’ minimum requirements for own funds and eligible liabilities to the EBA) (BTS 2018/308).

The BoE is not consulting on amendments to Commission Implementing Regulation (EU) 2016/1066 (on provision of information for the purpose of resolution plans). This is on the basis that the EBA is proposing to repeal this BTS and replace it with an updated one. The BoE will bring forward proposals on the updated BTS before Exit day.

There are a few material amendments to the BRRD BTS that the BoE discusses in chapter 3. These include

• Removing references to "resolution financing arrangements" in BTS 2016/1450, and instead cross referring to UK legislation that contains the relevant provisions concerning resolution financing.
• Deleting a number of BTS. For example: articles 50 to 109 of BTS 2016/1075 (regarding the organisation of resolution colleges and taking of joint decisions on group resolution planning, resolvability assessments, removal of impediments to resolution, setting of MREL and taking resolution), BTS 2016/962 and BTS 2018/308.

The BoE states that it has not made changes to the BRRD BTS where certain concepts, while not identical, have a pre-existing and clear counterpart in UK law. The PRA gives the example that certain BRRD BTS refer to "ex ante" and "ex post" valuations. The PRA states that these should continue to be read as references to the pre-resolution and full valuations under the Banking Act 2009 (the Act). Similarly the BRRD BTS references to "sale of business tool" and "bridge institution" should continue to be read as references to the "private sector purchaser" and "bridge bank" options under the Act.

The BoE also makes a number of comments in chapter 2 concerning interpreting the existing Statements of Policy on resolution. In particular, the PRA makes the following points

• References to BRRD (and other EU Directive) requirements should be read as being references to the relevant UK legislation that onshored the relevant provisions. Similarly, references to EU Regulations should be treated as references to the relevant UK onshored regulation.
• References to any BRRD BTS should be taken to refer to the relevant onshored BTS as amended by the BoE or PRA/FCA.
• Any references to European resolution colleges, or to associated responsibilities or procedural obligations that the BoE has with regards resolution colleges, should be interpreted as not applying
• Statements that the BoE will engage with the EBA should be considered as no longer applying.
• References to obligations for the BoE to consider the economy, financial markets, financial system and/or financial stability of EEA states when exercising its powers be instead interpreted as obligations for the BoE to consider the economy, financial markets, financial system and/or financial stability of the UK.

Deadline for comments on the consultation papers

The deadline for comments on all the consultation papers is January 2, 2019.