A2D. Risk-based approach to regulation
Risk-based regulation
The higher the perceived risk to the regulator’s objectives the greater the regulatory attention.
When the FSA took over from the previous insurance regulators it initially continued their less flexible ‘one size fits all’ approach that had only limited reference to the actual risk presented by individual firms. However, in 2003 it announced that, from that time forward, it intended to adopt a more flexible risk-based of the acceptance of Basel II (see section B) and brought insurance into line with banking, for which regulation had been risk-based for a number of years.
Therefore, the FSA now seeks to identify the key risks to its statutory objectives posed by individual firms, markets and market mechanism, and new developments and occurrences, and then allocates its regulatory resources according to the degree of risk assessed. Thus, the greater the perceived risk in respect of confidence in the financial system, customer protection, or financial crime, the higher is the priority for regulatory attention.
A risk-based approach means concentrating resources on specific firms, specific industry or market sectors or mechanism, or on specific themes of current concern, for example a particular type of product. Since regulatory action is now risk driven, routine monitoring visits have become only a minor feature of the framework. This approach recognizes the respective responsibilities both of consumers and of firms’ senior management, and the undesirability of seeking to remove all risk of feature from the financial system.
Aim of risk-based regulation
We expect firms to identify and manage the risks that they are bearing. No financial services regulator can attempt to operate a zero failure regime without both burdening the industry with high costs, which would inevitably be passed on to consumers, and sharply reducing consumer choice by eliminating products (including equity-based products), which includes an element of risk. Moreover, no regulatory regime can guarantee to prevent fraud and its consequences. Our regulatory approach is designed to enable us to identify, and take mitigating action in respect of, significant risks to our objectives (with ‘significant; being judged in terms of both the probability of a risk crystallizing and the impact if it were to crystallize), but is not designed to ensure that there are no failures. This approach is consistent with our principles of good regulation.
The implication of the risk-based approach is that risk is at the heart of everything the FSA does as a regulator:
• It influences the nature of the regulation itself (i.e. what is covered by the regulation);
• It affects the way in which the regulator conducts itself and how it looks at firms (firms are individually risk assessed, and greater regulatory effort is expended on higher risk firms); and
• It is embedded throughout the regulations themselves (the requirement for firms to identify and manage risk and establish appropriate control systems are constantly mentioned).
FSA and firms: Different views of risk
The FSA, in terms of the regulations created and the role it performs, considers risk in terms of risk to the achievement of its statutory objectives. From the high level nature of its strategic objectives, the risks that the FSA is seeking to manage are extremely complex and pervasive, with multiple potential causes spread across both firms and markets. Whereas risk and risk management within a company relates to the entire range of risks (both straightforward and complex) that the firm faces in conducting its business, which have only an indirect connection to the FSA’s statutory objectives.
A2E. Principles-based regulation
We saw earlier that the Chief Executive of the FSA said: ‘We do not hear arguments about the existence of regulation…but we do hear extensive debate about how regulation is conducted’.
In reality, the FSA had a thankless task. It had to respond to the various demands of the UK Government, the EU Commission, the UK financial services industry, and a vocal consumer lobby. Moreover, it took over the responsibilities of a dozen specialist regulators. A trade journal for IFAs expressed the view of many by suggesting that the FSA has been over-stretched.
Doing too much?
The FSA has grown into a mighty regulator, but at many times it appears to have too many plates spinning at once and not enough people to catch them when they fall.
In 2006 the FSA decided to become less prescriptive. It said that in future it would concentrate increasingly on general principles rather than imposing detailed rules. This ‘principles-based’ regulation differs significantly from the approach taken in the past. It differs also from that in some other regimes, notably the USA, where the regulators set out specific rules to cover almost every possible contingency. This transformation to principles-based regulation is likely to be gradual, although a number of sourcebooks have already been withdrawn and some others simplified.
Such a focus away from detailed rules onto high-level principles should result in much less bureaucracy and cost, and should simplify the subject of regulation for all involved. In turn this should lead to lower prices and improved customer service. As far as firms are concerned, it undoubtedly means that key decisions will be pushed further up the organization structure, placing more pressure on the Board and senior management.
Greater responsibility for the Board
We understand that this more overt responsibility will, for some boards, represent a new and difficult challenge and they will need the experience and insight to make sound judgment calls and be willing to accept the responsibility.
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