DP18/5: a duty of care and potential alternative approaches

Discussion opened: DP18/5
17/07/2018
Discussion closed
02/11/2018
02/11/2018

On 17 July 2018, alongside our Approach to Consumers, we published a Discussion Paper on a duty of care and potential alternative approaches.

Show DP 18/5 (PDF)

Why we issued this Discussion Paper

In our Mission 2017, we committed to produce a Discussion Paper to explore the potential merits of a duty of care as part of our Handbook Review following the UK’s exit from the EU in 2019. We stated that it would be difficult to make extensive changes to the FCA Handbook at the same time as undertaking the major overhaul needed to put the EU Withdrawal legislation into effect.

We recognised the wider debate on this issue, including feedback received on this topic following our Future Approach to Consumers 2017. We launched this Discussion Paper to help us understand more fully what outcomes a New Duty might be able to achieve and what a New Duty for firms in financial services might do to enhance behaviour in the financial services market.

We published this Discussion Paper to:

  • Help us better understand whether there is a gap in our regulatory and legal framework, or the way we apply it in practice, that could be addressed by introducing a New Duty.
  • Better understand and consider possible alternative approaches that might address stakeholders’ concerns.
  • Understand what a New Duty for firms might do to enhance good conduct and culture in financial services, including how this could influence consumer outcomes, alongside the Senior Managers and Certification Regime (SM&CR).
  • Assess whether change is desirable and, if so:

- What form it could take

- How it would work in practice alongside our current framework

- What consequences it would have for consumers, firms and the FCA.

We asked a number of questions on whether a New Duty (duty of care or other change) would provide additional consumer protection, including with regard to redress for consumers.

Who this applies to

We invited views from all parties with an interest in this issue. This includes:

  • Consumer groups and individual consumers.
  • Industry groups / trade bodies.
  • Regulated firms.
  • Policy-makers and regulatory bodies.
  • Industry experts and commentators.
  • Academics and think tanks.

Next steps 

The Discussion Paper closed on 2 November 2018. We received a large number of responses from the full range of our stakeholders.

Since launching the Discussion Paper, we have also gathered additional views through a series of stakeholder events.

We welcome the quality of the engagement and responses, which have been constructive and thoughtful. This has given us a range of differing views on what any New Duty could address, the different forms a New Duty could take and the protection this could afford consumers.

Whilst the content of the responses varied, all respondents recognise the prospect of any potential New Duty, in whatever form, could mean a significant change to financial services conduct and regulation.  

We are now carefully reviewing and considering the responses and will use these to inform the next steps in our work, which will be announced in Spring 2019.