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DP18/7: Review of Retained Provisions of the Consumer Credit Act: Interim Report

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DP18/7: Review of Retained Provisions of the Consumer Credit Act: Interim Report Review of retained provisions of the Consumer Credit Act: Interim report Discussion Paper DP18/7 August 2018 DP18/7 Financial Conduct Authority Review of retained provisions of the Consumer Credit Act How to respond Contents We are asking for comments on 1 Summary 3 this interim report by 2 November 2 Background and context 9 2018. 3 Our approach to the review 14 You can send them to us using the 4 Overarching issues 18 form on our website at: www.fca. org.uk/dp18-07-response-form. 5 Rights and protections 26 6 Information requirements 41 Or in writing to: Charlie Gluckman 7 Sanctions (including unenforceability) 48 CCA Review 8 Next steps 59 Strategy & Competition Division Financial Conduct Authority Review of retained provisions of the Consumer Credit Act: 12 Endeavour Square Annexes to the Interim Report 60 London E20 1JN Annex 1 Telephone: List of questions 61 020 7066 7794 Annex 2 Email: The statutory requirement 62 [email protected] Annex 3 Call for Input: summary of responses 64 Annex 4 CCA provisions: allocation to themes 73 Annex 5 Rights and protections: supplementary analysis 79 How to navigate this Annex 6 document onscreen Information requirements: supplementary analysis 99 returns you to Annex 7 the contents list Sanctions: supplementary analysis 127 takes you to helpful Annex 8 abbreviations List of abbreviations 138 2 Financial Conduct Authority DP18/7 Review of retained provisions of the Consumer Credit Act Chapter 1 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 HM 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), and • 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 This interim report sets out our initial views, and invites comments. It is not intended to be a draft of our final report. It does not include proposed recommendations to the Treasury but indicates, in broad terms, our direction of thinking on the statutory question and related issues. We may include recommendations in the final report. 1.4 Decisions about the future of CCA provisions will fall to the Government. Our aim is to provide sufficient analysis and evidence in our final report to enable decisions to be made. In doing so, we want to take full account of the views and evidence of stakeholders. Who this applies to 1.5 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 • consumer organisations 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). 3 DP18/7 Financial Conduct Authority Chapter 1 Review of retained provisions of the Consumer Credit Act • the legal profession 1.6 Who may only need to read this summary? • other firms engaged in credit-related activities • firms providing or administering regulated mortgages2 1.7 Who else might be interested in this document? • consumers with a loan or other credit product, or who hire goods The wider context 1.8 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 are required to undertake a review of the remaining provisions. 1.9 We published a Call for Input in February 2016 to invite views from stakeholders on our proposed priorities, timescales and conduct of the review.3 1.10 We received 55 responses, which we summarise in Annex 3. We have taken these into account in our approach to the review and the issues we discuss in this report. We have also held ongoing discussions with the Treasury regarding the scope, timing and conduct of the review. 1.11 In accordance with the statutory requirement (Annex 2), we are publishing this interim report and inviting views from stakeholders. 1.12 On 16 July 2018, the Government published the Consumer Credit (Amendment) (EU Exit) Regulations 20184 under the European Union (Withdrawal) Act 2018.5 The Regulations amend the CCA and related legislation to ensure the legislation functions effectively when the UK leaves the European Union (EU). 1.13 The UK and the EU have reached agreement on the terms of an implementation period following the UK’s withdrawal from the EU. This is intended to operate until the end of 2020 and EU law would remain applicable in the UK during this time. However, the implementation period forms part of the withdrawal agreement, which is subject to further negotiations between the UK and EU before it is finalised. We have therefore assumed that substantive changes to provisions implementing Consumer Credit Directive (CCD) will not be possible at the current 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 2 See paragraph 1.14. 3 Call for Input: Review of retained provisions of the Consumer Credit Act (February 2016) – www.fca.org.uk/publication/call-for-input/ call-for-input-review-retained-provisions-consumer-credit-act.pdf 4 www.gov.uk/eu-withdrawal-act-2018-statutory-instruments/the-consumer-credit-amendment-eu-exit-regulations-2018 5 www.legislation.gov.uk/ukpga/2018/16/contents/enacted 4 Financial Conduct Authority DP18/7 Review of retained provisions of the Consumer Credit Act Chapter 1 mortgages) and section 129 (time orders).6 Additional 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 Overview of this interim report 1.15 This document has eight 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 our approach to the review, and to answering the statutory question. We explain the principles we have used and how we have approached the review through three key themes which are inter-related: – rights and protections – information requirements – sanctions (including unenforceability) • In Chapter 4, we explore a number of overarching issues that we have identified during our analysis. • In Chapters 5, 6 and 7 we set out our initial views on the statutory question against each of the three themes. In each case we supplement this with an annex setting out further details, including issues identified with the current provisions. • In Chapter 8, we summarise the steps we intend to take before submitting our final report to the Treasury, and invite stakeholders to submit their views. Our initial views 1.16 We summarise below our initial assessment for each of the three themes. In forming our initial views, we have taken into account the issues with retained provisions raised by stakeholders through the Call for Input.8 This includes concerns that compliance with the requirements can in some cases be overly burdensome with no corresponding benefit to consumers. In other cases, stakeholders raised concerns that provisions, in their current form, may not be protecting consumers in the way they were intended to do. 1.17 As we stated in the Call for Input, our objective in reviewing retained CCA provisions 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. This objective includes looking to simplify and 6 See Chapter 5 below. 7 Article 29 of the Mortgage Credit Directive Order 2015, SI 2015/910. 8 See Annex 3 for a summary of the responses to the Call for Input. 5 DP18/7 Financial Conduct Authority Chapter 1 Review of retained provisions of the Consumer Credit Act modernise the regime where possible and remove unnecessary or disproportionate burdens. Rights and protections (Chapter 5) 1.18 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. 1.19 Our initial view is that the protections offered by these provisions continue to be relevant, and should remain in some form, either in legislation or FCA rules. 1.20 Some 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. In these cases, our initial view is that the provisions should be repealed and replaced by FCA rules. 1.21 However, for most provisions in this theme, our initial view is 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 current provisions under our current rule-making powers. They should, therefore, be retained in the CCA. 1.22 We have identified issues with some CCA provisions (for example, section 75 on joint and several liability) which may need to be considered, whether the provisions remain in legislation or are replaced by FCA rules.
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