DP18/5 response form

We are asking for comments on this Discussion Paper by 2^nd November 2018.

Please use this online form or alternatively write to: Consumer Insight, Financial Conduct Authority, 12 Endeavour Square, London, E20 1JN

Email: [email protected]

We make all responses to formal consultation available for public inspection unless the respondent requests otherwise. We will not regard a standard confidentiality statement in an email message as a request for non-disclosure.

Despite this, we may be asked to disclose a confidential response under the Freedom of Information Act 2000. We may consult you if we receive such a request. Any decision we make not to disclose the response is reviewable by the Information Commissioner and the Information Rights Tribunal.

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Q1: Do you believe there is a gap in the FCA’s existing regulatory framework that could be addressed by introducing a New Duty, whether through a duty of care or other change(s)? If you believe that there is, please explain what change(s) you want to see.

Q1 additional information

We are particularly interested in your views on:

i.The types of harm and/or misconduct any changes would address.

ii.Whether a New Duty should be introduced and, if so, what form it should take.

iii.What additional consumer protection and benefit this would provide, above the current regime (including over and above the existing implied term in the Consumer Rights Act (CRA) for reasonable care and skill).

iv.How a New Duty could and should act to mitigate or remove conflicts of interest, including the types of conflicts which exist in the provision of financial services?

v.Whether a New Duty could reduce complexity and bring greater clarity, or whether it could result in an additional layer of regulation and make it more complex, and, if so, how?

vi.Whether other alternatives could help address any gaps, for example, extending the clients’ best interests rule to different activities.

vii.Whether we should introduce more detailed rules and guidance, and, if so, what specific rules and guidance are required?

viii.Whether the scope of any changes should differ between markets and whether it should include wholesale transactions.

Q2: What might a New Duty for firms in financial services do to enhance positive behaviour and conduct from firms in the financial services market, and incentivise good consumer outcomes?

Q3: How would a New Duty increase our effectiveness in preventing and tackling harm and achieving good outcomes for consumers? Do you believe that the way we regulate results in a gap that a New Duty would address?

Q4: Should the FCA reconsider whether breaches of the Principles should give rise to a private right for damages in court? Or should breaching a New Duty give this right?

Q5: Do you believe that a New Duty would be more effective in preventing harm and would therefore mean that redress would need to be relied on less? If so, please set out the ways in which a New Duty would improve the current regime.

First published: 17/07/2018 Last updated: 17/07/2018