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Review of Retained Provisions of the Consumer Credit Act: Final Report

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Review of Retained Provisions of the Consumer Credit Act: Final Report Review of retained provisions of the Consumer Credit Act: Final report Presented to Parliament pursuant to paragraph 20(8) of Part 5 of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014, SI 2014/366 March 2019 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: Final report Presented to Parliament pursuant to paragraph 20(8) of Part 5 of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014, SI 2014/366 3 © Financial Conduct Authority 2019 The text of this document (this excludes, where present, the Royal Arms and all departmental or agency logos) may be reproduced free of charge in any format or medium provided that it is reproduced accurately and not in a misleading context. The material must be acknowledged as Financial Conduct Authority copyright and the document title specified. Where third party material has been identified, permission from the respective copyright holder must be sought. Any enquiries related to this publication should be sent to us at Financial Conduct Authority 12 Endeavour Square London E20 1JN This publication is available at https://www.gov.uk/government/publications ISBN 978-1-912809-40-0 CCS CCS0319844880 03/19 Printed on paper containing 75% recycled fibre content minimum. Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office. 4 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: Final report Contents 1 Summary 6 2 Background and context 12 3 Our approach to the review 17 4 Overarching issues 21 5 Rights and protections 30 6 Information requirements 41 7 Sanctions (including unenforceability) 51 Review of retained provisions of the Consumer Credit Act: Annexes to the final report 65 Annex 1 The statutory requirement 66 Annex 2 Summary of responses to the interim report 68 Annex 3 Research undertaken 76 Annex 4 CCA provisions: allocation to themes 80 Annex 5 Rights and protections: supplementary analysis 86 Annex 6 Information requirements: supplementary analysis 112 Annex 7 Sanctions: supplementary analysis 139 Annex 8 List of abbreviations 150 5 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: Final report 1 Summary Why we are publishing 1.1 The Financial Conduct Authority (FCA) is required by legislation to arrange for a review of the Consumer Credit Act 1974 (CCA) and to report to Her Majesty’s Treasury (the Treasury) by 1 April 2019.1 The review must consider whether the repeal of CCA provisions would adversely affect the appropriate degree of protection for consumers. We refer to this as ‘the statutory question’. 1.2 The review must, in particular, consider: • which CCA provisions could be replaced by FCA rules or guidance under the Financial Services and Markets Act 2000 (FSMA) • the principle that a burden or restriction which is imposed in relation to the carrying on of an activity should be proportionate to the benefits 1.3 We published an interim report in August 2018, setting out our initial views and inviting comments.2 Following publication we also held 5 roundtable discussions involving a range of stakeholders including industry and consumer bodies. We received 30 written responses from stakeholders including firms, trade bodies, consumer groups and other interested parties (see Annex 2). 1.4 This final report sets out our views on the statutory question. It takes into account the views of stakeholders from the roundtable discussions and responses to the interim report and to the earlier Call for Input.3 1.5 Decisions about the future of CCA provisions will fall to the Government. This final report does not include formal recommendations to the Treasury, but provides analysis and evidence to enable decisions to be made. Who this applies to 1.6 Who needs to read this whole document • lenders under consumer credit agreements • owners under consumer hire agreements • credit brokers • credit reference agencies • trade bodies representing these firms 1 Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014, SI 2014/366 – Part 5 (Review of retained provisions of the Consumer Credit Act 1974). 2 DP18/7: Review of retained provisions of the Consumer Credit Act: Interim report (August 2018) – www.fca.org.uk/publications/ discussion-papers/dp18-7-consumer-credit-act-review-interim-report 3 Call for Input: Review of retained provisions of the Consumer Credit Act (February 2016) – www.fca.org.uk/news/news-stories/call- input-review-retained-provisions-consumer-credit-act 6 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: Final report • consumer organisations • the legal profession 1.7 Who may only need to read this summary • other firms engaged in credit-related activities • firms providing or administering regulated mortgages (paragraph 1.14 below) 1.8 Who else might be interested in this document • consumers with a loan or other credit product, or who hire goods The wider context 1.9 The FCA took over responsibility for regulating consumer credit in April 2014. As part of the transfer, Parliament repealed some CCA provisions and some were replaced by FCA rules. We were required to undertake a review of the remaining provisions. 1.10 We published a Call for Input in February 2016 to invite views from stakeholders on our proposed priorities, timescales and conduct of the review. In accordance with the statutory requirement (Annex 1), we published an interim report in August 2018 setting out our initial views and inviting views and evidence from stakeholders. 1.11 Our objective is the continuing development of an effective and proportionate regulatory regime which ensures appropriate protections for consumers, recognising that some customers in this market may be vulnerable. We also looked to identify areas where there may be scope to simplify or modernise aspects of the regime or remove unnecessary or disproportionate burdens, reflecting our broader approach of principles-based, outcomes focused regulation. 1.12 Some CCA provisions and associated regulations implement aspects of the Consumer Credit Directive (CCD). On 16 July 2018, the Government published the Consumer Credit (Amendment) (EU Exit) Regulations 2018 under the European Union (Withdrawal) Act 2018. The Regulations amend the CCA and related legislation to make sure the legislation functions effectively when the UK leaves the European Union (EU). On 25 February 2019, a further statutory instrument was laid before Parliament which, when made, will give firms a 6-month transitional period to comply with relevant changes. 1.13 Throughout the review we have assumed that substantive changes to provisions implementing the CCD will not be possible at this time. 1.14 Mortgage firms should note that some CCA provisions extend to regulated mortgages which are otherwise regulated under our Mortgages and Home Finance: Conduct of Business sourcebook (MCOB). These include section 126 (enforcement of land mortgages) and section 129 (time orders). In addition, some CCA provisions continue to apply to second charge mortgages entered into before 21 March 2016, even though the loans are now regulated mortgage contracts. 7 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: Final report Overview of this report 1.15 This document has 7 chapters: • In Chapter 2, we set out the background and rationale for the statutory requirement to undertake a review. We also summarise the background to the retained provisions and the main legislative changes since 1974. • In Chapter 3, we summarise the approach we have taken to the review, and to answering the statutory question. We explain the principles we have used and how we have approached the review through 3 inter-related themes: – rights and protections – information requirements – sanctions (including unenforceability) • In Chapter 4, we set out some overarching issues that we have identified during our analysis, including the particular features of the consumer credit market that are relevant when considering what requirements are necessary to deliver an appropriate degree of consumer protection. • In Chapters 5, 6 and 7 we set out our views on the statutory question against each of the 3 themes. In each case we supplement this with an annex setting out more details in relation to the relevant provisions. Summary of our views 1.16 We summarise below our assessment for each of the 3 themes. In forming our views, we have taken into account the views of stakeholders on the interim report and discussions at stakeholder roundtables. Rights and protections (Chapter 5) 1.17 This theme includes credit brokerage fees, connected lender liability, variation of agreements, default and enforcement, credit-tokens, pawnbroking, withdrawal and cancellation, early repayment, termination, time orders and unfair relationships. 1.18 Our view remains that the protections offered by these provisions continue to be important, and should be retained in some form. 1.19 A small number of provisions covered by this theme could, in principle, be replaced by FCA rules that could achieve a comparable standard of consumer protection. An example is the right to a refund of credit brokerage fees under section 155. This would have the advantage of bringing it together with existing FCA rules and guidance on credit broker fees. In these cases, we see merit in repealing the relevant provisions with a view to replacing them by FCA rules. 1.20 However, for most provisions in this theme, our view remains that they could not be repealed without adversely affecting the appropriate degree of consumer protection. This is because it would not be possible to replicate the same level of protection under the FCA’s current rule-making powers. As such, we see merit in keeping the provisions in the CCA or other legislation. 8 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: Final report 1.21 We recognise, however, that there are issues with some of the provisions, including some raised by stakeholders.
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