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Our take on
regulation - banking crises et al
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HERE
Change for the sake of it
Most Money Marketing readers will know that
I have always been confrontational over the human rights of
IFAs. Nothing has changed my strongly held belief the Human
Rights Act 1998 is being breached because of the Financial
Services Authority’s refusal to apply the law of the land to its
procedures and those created for the Financial Ombudsman
Service, I also feel strongly about its failure to ensure that
Walter Merricks and his staff took account of the laws which
still apply to pre N2 business, you will hear more of that
another time. With regard to the limitation periods it was David
Kenmir who confirmed to me that the FSA could not override
statute.
Recently I have held a series of meetings
with policy makers and those influencing the RDR debate. Firstly
in October 2009 with Hector Sants, then with Lesley Titcomb and
her team at the beginning of December 2009 following which Mike
Fenwick went to the FSA’s Edinburgh office in early January
2010. I then met Chris Cummings and a major network immediately
afterwards.
So where am I going with all this? Society
needs regulatory balance. I keep saying I see none not because
it is fun, I really don’t see any, however personal experience
has shown me that taking legal action after the event is daft
because it is your money the lawyers will gladly spend taking
your side while it is also your money the regulators willingly
spend defending theirs!
I firmly believe that a change of direction
is needed despite the loud calls for confrontation to continue,
I believe we have a lot to offer the regulators, decades of
experiencing failed regulation at first hand in fact! Mike
Fenwick predicted almost all of the problems which gradually
befell our clients since 1985 yet nobody listened, why? Was it
because powerful lobby groups had the ear of the regulator?
Small to medium IFAs haven’t featured in anyone’s plans despite
the fact that they ‘generate’ so few complaints, they still
don’t and the evidence is here before us in the Retail
Distribution Review, a review which will create a distribution
cartel for the banks, the insurers, the direct sales outfits and
of course the networks, can anybody tell me how many complaints
most of them generate?
You would be forgiven for believing that
the FSA is the biggest threat to your existence but at the same
time you might not be surprised to learn that it is in fact
other EU states which want to get rid of you, anybody smaller
than ‘mid-cap’ faces the proverbial oblivion within ten to
fifteen years so please don’t think that passing a few more
exams is you passport to a rosy future with less competition. In
order to clarify the situation this applies to insurance,
mortgages, plumbers, electricians and any other small firm.
Why I am writing this – we can make a
difference. All financial services firms deserve to be treated
fairly, as do all their clients. We have come to the conclusion
that consulting is the way forward, engaging with the regulators
wherever they may be and encouraging them to see things from the
bottom up instead of this top down approach which hasn’t worked,
even a former regulator has admitted this in confidence.
Small firms
are not the problem, although they can be part of the solution.
Evan Owen
Regulatory Consultant
The pages on this website are under
review so please accept our apologies for all errors or
omissions.
www.fs-du.co.uk
A fishy tale
Qualifications maketh the 'professional'? An
educationalist's view
Opinion of
Anthony Speaight QC:
"There are growing concerns that the pendulum of
consumer protection has swung too far in the case of the
Financial Ombudsman Service and small independent financial
advisers. The FOS appears regularly to be exercising its
discretion to adjudicate upon claims against small IFAs up to
its maximum theoretical jurisdiction of £100,000. There is
rarely an oral hearing. And there are good reasons to believe
that sometimes FOS makes substantial awards in cases which
would be rejected by the courts. On other occasions
compensation seems to be calculated in a more generous manner
than a court would assess damages. By reason of very large
excesses and other insurance shortcomings some such IFAs have
no insurance which responds. There is no appeal on the merits.
Such a system would be tolerable if the maximum award were
modest – say
£5,000 (which is the maximum summary compensation under the
legal professions’ schemes for "inadequate professional
service"). It would also be tolerable if, as is the case
with the summary system of adjudication in the construction
industry under the Housing Grants Construction and
Regeneration Act 1996, there could be a complete rehearing
before a court. And it might even be tolerable if it were
applied only against very large companies
But an unappealable, compulsory, summary jurisdiction
against small traders making awards as great as £100,000 is,
in my view, both wrong in principle and producing injustice in
practice."
Information Tribunal dismisses HM Treasury appeal against
ICO Decision Notice and must disclose information relating to
Gordon Brown's declaration that the Financial Services and
Markets Bill was compatible with human rights legislation.
Suggestions from a barrister,
things to do when faced with the FOS if you want to make any
possible future case against it as water tight as you can.
STAND
YOUR GROUND
Qualifications maketh the 'professional'? An
educationalist's view
Submission
to House of Lords Select Committee on Regulators - Call for
evidence - UK Economic Regulators (Copyright)
Their report is HERE
...The word is independent. There are many definitions but
let's take a look at three:
1. Not influenced or controlled by others in matters of
opinion, conduct, etc.; thinking or acting for oneself: an
independent thinker.
2. Not subject to another's authority or jurisdiction;
autonomous; free: an independent businessman.
3. Expressive of a spirit of independence;
self-confident; unconstrained: a free and independent
citizen.
Long live IFAs
whatever method of payment their clients choose
Evidently
in response to articles including THIS
ONE
Sir Christopher Kelly, chairman of the Financial Ombudsman
Service gave a speech at the Association
of Finance Brokers (AFB) annual dinner on 2 July 2007. Our response is HERE
FSA mystery (PDF)
"Most
regulators’ careers end prematurely in failure and
disgrace." - HOWARD DAVIES : HENRY THORNTON
LECTURE : CITY UNIVERSITY BUSINESS SCHOOL : 4 NOVEMBER 1998
Letter from FSA
regarding 15 year long stop HERE
Hirst Opinion on FOS requirement to take account of what the
'former scheme' was required to do HERE
Open letter from
Terence O'Halloran to FSA
FOSSY
LOGIC!! Page
1 (1MB) Page 2
(4MB) Page 3 (1MB)
Subscribe to Money
Management The original writing is HERE
(HTML) or HERE
(Word)
UNFAIR
AND UNREASONABLE
Endowments
meet their targets, what was all the fuss about? Reproduced
with the kind permission of the Evening Standard. Copyright:
Evening Standard 2006.
Split-cap
‘compensation’ going to those who made millions and HERE
LIMITATION
and ANOTHER
and ANOTHER (1)
(2)
Please take care with any
opinion because that is all it is.
Letter to John
McFall HERE - Guess
what - No reply
PIA warned of
PIA perils HERE
Robber baron HERE
Letter
from FSA HERE
confirming our worst fears, regulated persons and companies
have no rights under common law. The letter is supposed to
address the fears we expressed during this meeting:
http://.fs.du.co.uk/meeting.htm
Letter
to FT
BACK
TO THE FUTURE?
There
may be trouble ahead......
More EMAILS
FOS
Goes to Strasbourg
False
Premises - Money Management
The IFA Defence
Union recommends the use of surveillance equipment when
dealing with the regulators or even clients, the following
story is that of another IFA who fell under the wheels
of this driverless juggernaut:
"Totally
endorse the recording of dealings with regulators
We were terminated by FIMBRA due to false allegations by a
couple of sick bully boys.
Almost by accident I had taken a micro recorder up (my
sister-in-law worked for an electronics firm). I had recorded
the conversation with the compliance officer at Hertsmere
House.
When we played back the recording it bore no resemblance to
the words we were alleged to have said and which were pivotal
to the case against us.
Our Solicitor let it be known that he had seen the transcript
of the tape, but no mention was made at our appeals tribunal.
Our Barrister did take the compliance officers apart and
showed them up for what they were..
There was an ex policemen that worked for the 2 compliance
officers that had taken a statement from us, at the hearing he
told the Tribunal that the written statement attributed to him
and used to bury us was not made by him (he at least was being
honest).
1) What would have happened if I didn't have the proof that
they were lying?
2) Why did they lie in the first place?
3) Why were they not disciplined for lying? (we couldn't
afford to take them to the High Court)
I am saddened by what happened, my Father thought naively
that if we just told the truth we would be alright. Just as
well that I am I bit more devious. I am still bitter for what
they did to my Family (unable to work for 3 months young
family to support and relying on state aid including milk
tokens) - I wonder whether Magee-Englefield and Hamp really
thought they had done a good job?
Thanks for all the support and help. (NO need to reply as
you are doing a great job into the nitty gritty)
Best Wishes
Yours Sincerely"
A Member
Dear
Mr Kenmir - Re: LAUTRO 'assumed expenses'
Depolarisation -
a shambles in the making
The Union is
the first port of call for advisers wherever they may be in
the UK and whatever area of business they have chosen to work
in. We welcome any person caught in the inhuman web of the
Financial Services and Markets Act, an Act that is not
compatible with the Human Rights Act 1998 so we will be
testing this soon, see THIS
and send it to YOUR MP as soon as possible, after
reading THIS
, THIS
Important legal
case HERE
Limitation
of liability
Responses
to ABI Commission Consultation Document From REAL people
to UNREAL people
Leviathan
at large
Leviathan
still at large
FSA
determined to give endowments a fair trial
Repayment
mortgages NOT
guaranteed to repay the loan - stunning revelation, not.
And HERE
and HERE
PENSIONS
REVIEW - WHAT A FARCE! Part
1 Part2 (.tif
files)
Then what
was said in Parliament
Re:
Article in Money Marketing entitled "IFAs seek legal
advice on misselling responsibility'. The quote in full was:
"the IFA Defence Union has been gathering opinions from
legal and actuarial experts as well as questioning the FSA.
The evidence strongly suggests that IFAs have a case for
misrepresentation of risk against providers with many products
but accept the argument that the regulator is culpable in some
areas and that the providers have a right to want to challenge
it. IFAs cannot be held responsible for misrepresentations
made by either party, they have been the whipping boy for far
too long. If IFAs are afraid of taking on the providers they
should ask themselves how much time and money they are wasting
on defending claims relating to 'unsuitable advice' when the
complaint is in fact about the product, the FSA have indicated
that it would be appropriate to refer such complaints to the
provider".
FSA warns of
high cost of small IFAs OUR
RESPONSE HERE
What
a week that was NEWS
Did
you know? - Commission costs an average of 3% within
investment business, compliance costs 9%... is the FSA adding
value? Considering it costs investors three times more than
the IFA distribution channel any sane person would come to the
conclusion that regulatory interference is counter
productive.
Complaint
to Callum McCarthy - FSA
Complaint
to Walter Merricks - FOS
ENDOWMENTS
- THE FACTS
Falconer
call to end claims culture: A Department for
Constitutional Affairs spokesman said: "This is a complex
and controversial issue where the Government cannot provide
all the solutions". OH YES IT CAN!! Here are the
simple solutions:
-
Follow the
lead of our astute Irish neighbours who require claimants
to sign an affidavit.
-
Penalise
those who tell lies.
-
Restore
some burden of proof to the complainant.
-
Charge the
complainant a fee that is refundable if successful.
-
Regulate
the 'clams handlers' - we have already reported a number
of IFAs who also have an 'unregulated' arm. How they can
claim to be 'unregulated' is in dispute when financial
advice is being provided.
Simple
solutions? Of course they are but why can't they be
implemented? Why is this so painful?
Also see: Complaints
and the Proceeds of Crime Act 2002
OPINION
of ANTHONY SPEAIGHT QC on FSMA 2000 and COMPATIBILITY
with ECHR (STILL VALID)
http://www.parliament.the-stationery-office.co.uk/pa/cm199899/cmbills/121/1999121.htm
EUROPEAN CONVENTION ON HUMAN RIGHTS
Mr Chancellor of the Exchequer has made the following
statement under section 19(1)(a) of the Human Rights Act 1998:
In my view the provisions of the Financial Services and
Markets Bill are compatible with the Convention rights.
The
Pensions Ombudsman and Article 6 of the European Convention on
Human rights HERE
If you
don't have the time or the inclination to read it here is a
brief synopsis : The FSMA is NOT compatible with the ECHR,
we have asked for sight of opinion. Also see HERE
IFADU
Response to FSA Consultation Paper 04/12
Gary
Stidolph Response
Susan
King Response
APCIMS
N2+2
Making
a fuss about the FOS This article is published in the
September 2004 issue of Money Management Magazine. To
subscribe call 020 8606 7545 or visit www.FTadviser.com
The only problem is a reference to primary legislation being
required to amend the FSMA and rein in those empowered by it
(in their own interpretation) when the fact is that the FSMA
allows just one of Her Majesty's Ministers to change
anything he/she wishes at any time and as often as he/she
deems fit. Well that's democracy? See HERE
We need copies of
FOS decision letters that advisers feel are incorrect so
please fax them to us on 0845 4585299, we will be compiling a
database that will be used to find inconsistencies. We have
quite a few interesting developments on this front, more to
follow.
FOS
Jurisdiction: It has been brought to our attention that
many IFAs are not aware of the full facts relating to the
jurisdiction of the FOS for any complaints relating to advice
provided before 1st December 2001.
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We can provide advice :
The regulatory climate is becoming more prescriptive
and the use of 100% hindsight by those in authority is
causing advice to be deemed inappropriate many years
after it was given in good faith, all advisers need
support from:
- Legal Experts
- Compliance Advisers
- PI insurance specialists
We have a list of people with experience of reversing
FOS decisions and success in appeals tribunals.
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Many professions
have their own defence union:
Lawyers,
Accountants and Doctors have a union to turn to in times of
need. Now IFAs will have their very own defence union.
In the words of
Tony Blair
Source:
The Hutton debate
in Parliament and the following is quoted from Hansard,
Columns 770 and 771 on 4 February 2004 - the words are spoken
by the Prime Minister:
*I somehow feel
that I am not being entirely persuasive in certain quarters.
We cannot have a
situation in which we end up translating what we know today
back into the context of what was known and thought in
September 2002, and then reaching a judgment.*
Only
the financial services regulatory system has 100% hindsight
The more corrupt
the State the more numerous the laws. -- Cornelius Tacitus
Click on the
'About' button to find out more and join our mailing list on
the links page.
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