Tougher Marketing Rules For FinTech Investments In The UK

The Financial Conduct Authority is consulting on tougher rules for the marketing of 'fintech' investments, including investment based‑crowdfunding, peer‑to‑peer (P2P) lending, other 'non‑readily realisable securities', non‑mainstream pooled investments (similar to unlisted investment funds) and speculative illiquid securities, as well as cryptoassets (when proposed Treasury regulations bring them within the financial promotions regime). The consultation ends on 23 March 2022. Firms will have 3 months to comply from publication of the final rules (cryptoasset changes will apply from the date when the Treasury changes apply). Based on experience in the P2P lending sector, the impact is likely to be severe, effectively restricting consumers to bank deposits and expensive listed instruments while shielding incumbent banks and investment firms from competition.

Classification of high‑risk investments.

The FCA intends to divide its rules into those that apply to ‘Restricted Mass Market Investments’ and those that apply to ‘Non‑Mass Market Investments.’ They have not yet applied their Speculative Illiquid Securities rules but may do so later in 2022. 

Consumer journey 

The FCA proposes to strengthen risk warnings and appropriateness tests, ban inducements to invest, introduce positive 'friction' in the investment process to give consumers a chance to reconsider their commitment and 'improve' the classification of different types of clients. 

The role of firms approving and communicating financial promotions

There will be a regulated 'section 21 gateway' for firms who approve financial promotions to ensure those firms have relevant expertise in the promotions they approve and that the quality of financial promotions is high. 

Qualifying cryptoassets

The Treasury is still considering its definition of cryptoassets for these purposes, but has indicated that a ‘qualifying cryptoasset’ for UK financial marketing rules will be "any cryptographically secured digital representation of value or contractual rights which is fungible and transferable," excluding otherwise regulated investments, e-money and fiat money, Non-fungible tokens (NFTs) and tokens that operate like gift cards/vouchers with 'one or more vendors or merchants in payment for goods or services'.

The FCA intends to generally apply the same rules to cryptoassets as currently apply to ‘Restricted Mass Market Investments’ (Non‑Readily Realisable Securities and Peer‑to‑Peer lending agreements), but would not allow ‘Direct Offer’ Financial Promotions of qualifying cryptoassets to be made to self‑certified sophisticated investors. New rules aside, financial promotions relating to cryptoassets will also need to comply with existing financial promotion rules, including the requirements for the promotion to be clear, fair and not misleading.

Controlled activities

The UK regulations (Financial Promotion Order) specifies a series of 'controlled activities' that are the main business of firms who deal in 'controlled investments'. Of those activities the government considers that only some are relevant to qualifying cryptoassets and most associated with misleading cryptoasset promotions seen by the FCA:

• dealing in securities and contractually based investments;
• arranging deals in investments;
• managing investments;
• advising on investments;
• agreeing to carry on specified kinds of activity.

The government had considered whether to add to this list activities relating to the provision of cryptoasset exchanges, cryptoasset ATMs, 'airdrops'; as well as cryptoasset lending (where firms take cryptoasset ‘deposits’ and pay ‘interest’ from the income received from cryptoasset borrowers); and 'DeFi platforms' (decentralised apps or 'dapps' which are not controlled by a central authority and use a series of smart contracts to automate peer-to-peer lending, peer-to-contract lending, borrowing or trading with financial instruments on a permissionless network, e.g. to enable users to earn interest on their tokens by connecting token holders to other borrowers). However, the government believes these activities could well be covered by the above set of controlled activities - so it is not to say those activities are exempt merely because they are not specified. 

In addition, the exemptions that currently only apply to activities relating to insurance and deposit taking; and marketing unlisted securities to certified high net worth individuals and self-certified sophisticated investors will not apply to qualifying cryptoassets.

Impact

The FCA's clear intention is to dampen enthusiasm for certain investments, particularly cryptoassets, among investors who don't understand what they are investing in and/or cannot afford to lose the amount they invest. The FCA explains it this way:

A key part of the strategy is addressing the harm from consumers investing in high‑risk investments that do not match their risk tolerance. This can lead to unexpected and significant losses for consumers and undermine wider confidence in investments, making it harder for all firms to raise capital. We do not want to unnecessarily restrict consumers who want to invest, but we want them to be able to access and identify investments that suit their circumstances and attitude to risk.

As ever, the concern must be that regulated firms and consumers facing these hurdles will be shut out of the markets for innovative products (as has happened with P2P lending). That would leave consumers with low return savings accounts and 'safe' listed products that have both high fees and low returns; and favour incumbent banks and investment firms over new market entrants.

In the UK, at least, there does not seem to be any middle ground... rather like our politics.

 

FCA Calls For Input On #P2Plending and #CrowdInvestment Rules

It's been two years since the FCA created specific rules governing peer-to-peer lending and crowd-investment in securities, and the FCA promised a review of those rules in 2016. That review has just begun with a call for input closing on 8 September. 

This comes at an important time for the industry, as the FCA's report reveals that it has only processed 9 of 97 applications for authorisation by P2P lending platforms (44 of which operate under a two year old interim permission) and only 9 firms have been authorised to join the 25 firms that were operating in the crowd-investment market during the FCA's interim review in 2015. This shows that the FCA authorisation process, and regulation itself, are significant 'choke points' in the development of innovative financial services, notwithstanding firm support for the sector from the Treasury and strong growth in supply and demand from consumers and small businesses on existing platforms. 

It remains to be seen whether the FCA will further complicate life for crowdfunding entrepreneurs and their customers or clear the regulatory path to facilitate the growth of alternatives to the declining supply of bank finance, likely to worsen post-Brexit...

UK Continues To Clear The Path For Growth Of Alternative Finance

Draft legislation has now been published to allow bad debt relief for investors in peer to peer loans, in addition to the new Personal Savings Allowance announced in the Summer Budget.

These measures are among those that address the key regulatory problems and perverse incentives that have been preventing the flow of finance to people and businesses who need it and improved returns to savers and investors. The first regulatory initiative was to regulate P2P lending, announced in 2013; while the first step in addressing incentives was to include P2P loans in ISAs - first announced in 2014.

In introducing the latest incentive measures the government says it remains "determined to increase competition in the financial sector, where new firms such as P2P platforms can thrive alongside the established players and compete to offer new and improved services to customers. This new relief will create a level playing field for the taxation of income from P2P lending when compared to the taxation of traditional forms of retail investment available from those established players."

The government's commitment is critical, given that the financial system is now less diverse than before the financial crisis blew up in 2008. Few bank reforms have actually taken effect - and some are being watered down. Recent fines and scandals also reveal little change in mainstream financial services culture from that described in the report of the Parliamentary Commission on Banking Standards and most recently in the damning report into the failure of HBOS.

From 6 April 2016, individuals investing in certain P2P loans will be able to set-off the losses they incur from loans in default against income they receive from other P2P loans, when calculating their savings income for tax purposes. 

In addition, under the Personal Savings Allowance announced in the Summer Budget 2015, the first £1,000 of savings income will be exempt from tax for basic rate taxpayers and the first £500 for higher rate taxpayers. An individual’s PSA will apply to interest they receive from P2P lending after any relief for bad debts. 

#Crowdfunding the EU

Suddenly it's all go on the EU crowdfunding front.

I'm still digesting last week's ESMA opinion on crowd-investing and the advice on how to regulate it, which is to be followed by the European Banking Authority's view on the regulation of P2P lending.

It's too early to expect anything conclusive - both ESMA and the EBA say they are merely supporting the Commission in its broader efforts to embed crowdfunding in a range of policy areas - but it's good to see official recognition of the benefits of crowdfunding, as well as the risks, and some sunlight on the highly technical challenges to accommodating the new business models. Let's hope they consider how any changes will impact customer experience, marketability and the need to scale these platforms quite quickly.

In addition to regulatory reform, it would be great if the EU agenda could evolve to include realigning traditional tax incentives to boost personal investment in new asset classes.

More on the detail soon!

Thoughts On The Growth Of EU #Crowdfunding

I've just spent a fascinating few days at the ECN Crowdfunding convention in Paris this week discussing the development of crowdfunding across the EU. The main focus was on regulation, since that is perceived as being the key difference from country to country. But of course there are other factors involved and these were also covered in the presentations. In particular, crowdfunding is a huge marketing challenge, given the vast advertising budgets of mainstream financial services providers and customer inertia. There are also many perverse incentives and implicit subsidies favouring the traditional financial models. I helped explain such problems in a recent submission The Finance Innovation Lab to the Competition and Markets Authority on retail/SME banking, for example.

A European twist on the scale and nature of the competitive problems was emphasised by an early presentation from our hosts, BpiFrance, a state financial institution targeting traditional funding at SMEs. It has 2000 staff in 37 offices and arranged funding of €10bn for 3500 French SMEs in 2012 alone. So not only do French crowdfunding platforms face a banking monopoly, but they must also compete against direct public programmes. With that kind of competition, it's little wonder the French crowdfunding market is only a twentieth the size of the UK! Thankfully, Bpi appears to have switched to supporting the development of many new private platforms, rather than trying fund plug the French SME funding gap all by itself - rather like the strategy adopted by the British Business Bank.

Of course, the SME funding gap is not exclusive to France. Christian Katz, CEO of SIX, the Swiss stock exchange, explained that the EU's 23 million companies face a funding gap of 2 trillion over the next 5 years. Yet only 11500 have access to the public markets. Currently, SMEs are creating 1 job for every 5 that big companies are eliminating. In other words, the companies that create the jobs are starved of access to working capital.

This kind of problem is not simply financial, and Joachim Schwerin, Policy Officer, DG Industry & Enterprise gave an excellent presentation on Friday explained how Crowdfunding features in five of the EC's key policies for stimulating economic growth:

• Improving access to finance, especially for SMEs;
• Financing projects that have found it hard to obtain traditional finance
• Boosting the digital economy
• Increasing the level of entrepreneurship, which is completely lacking in many EU countries; and
• Enhancing democracy, by enabling people to mobilise their savings to produce financial returns, rather than always having to trust their funds to banks and other traditional intermediaries that may not actually have their interests at heart.

Joachim outlined plans for extensive guidance to SMEs on types of crowdfunding via the EC's "Access to finance for SMEs" portal, highlighting the opportunities for SMEs rather than just focusing on the risks to investors. So watch that space during early 2015.

Many delegates were pressing Joachim to outline an EU regulatory timetable, but he was right to point out that this is premature. He confirmed that the EC is still in listening mode, which is as refreshing to hear now as it was in October. Regulation does not create markets, as the EC has discovered in its regulation of consumer credit and contract law. Indeed, it is plain from the recent French law and German proposals that regulating without an understanding of the market could kill them altogether.

For instance, the French authorities have limited participation in P2P lending to individuals who may only lend up to €1,000 per project/borrower. The authorities say this is necessary to ensure that lenders diversify the total amount they lend. This seems harmless enough until you realise the marketing challenge faced by someone starting a brand new P2P platform who cannot rely on a few large lenders to fund the bulk of early loans, or to step in where liquidity is scarce from time to time. Yet in more developed markets there is no evidence that lenders fail to diversify. In the latest UK market study Nesta has found that 88% of lenders say they engage in P2P business lending because they think diversification is important, which is supported by the figures:

"The average P2P business lending loan size is £73,222 and it takes approximately 796 transactions from individual lenders to the business borrower to fund a listed loan, with the average loan being just £91.95. P2P business lenders have, on average, a sizeable lending portfolio of £8,137 spread over a median of 52 business loans."

As a result, project-by-project caps are not a feature of the regulation of P2P lending in the UK, nor the rules allowing wider retail participation in crowd-investment. These regulations only took effect in April 2014, well after these markets were firmly established, well understood, and were able to benefit from the credibility that proportionate regulation can bring without being strangled by red tape.

Finally, it was interesting to hear Christian Katz's recommendations to help ensure the success of crowdfunding in the EU, based on how stock exchanges have developed:

• Clear, common terminology;
• Code of conduct - especially promoting transparency - e.g. disclose the details underpinning credit ratings;
• Platform stability/availability;
• Fund recovery - safeguarding customer funds and how to get money out;
• Cross-border - don't ignore potential that the Internet brings;
• Positioning crowdfunding - e.g. as a source of pre-IPO funding (under €5m).

Each of these points merits a post in its own right, but an EU code of conduct would seem to be a good way to focus market participants on achieving them. The team at ECN presented some early thoughts. Clearly the code will need to be consistent with applicable national laws and accommodate all the different types of crowdfunding. It should also be negotiated by the CEOs of platforms, as they understand the development plans for their own businesses better than the lawyers and the policy staff. Such codes have already been agreed by the leading participants in more developed markets. For example, the Peer-2-Peer Finance Association (P2PFA) has developed Operating Principles specific to P2P lending, and the UK CrowdFunding Association (UKCFA) has produced its own code of practice to accommodate donation-based and investment-based crowdfunding.

While it is possible that specific enabling regulation may be necessary in some countries to initiate the ability to establish dedicated crowdfunding platforms (e.g. allowing normal loans to be concluded on such platforms, rather than only participation loans, or lifting the €100,000 limit on equity crowd-investment in Germany, for example), the EC's approach of allowing platforms to develop in line with self-regulation seems the wiser than rushing to regulate in detail.

Crowdfunding: Brussels Sprouts!

At last, the European Commission has realised that peer-to-peer finance might really be more efficient than banks at getting funding to those who need it. In Brussels, that translates roughly into "let's regulate". So, today the Commission launched a consultation aimed at understanding "crowdfunding: its potential benefits, risks, and the design of an optimal policy framework to untap the potential of this new form of financing."

The consultation paper is here, and responses are due by 31 December. The relevant Commission officials can be reached here. 

If my experience of the Commission's approach to regulating other aspects of e-commerce is anything to go by, it will be a huge challenge to educate officials - particularly for fast-moving entrepreneurs who have little time or resources to spare. 

Yet the risk of awkward, confusing and disproportionate regulation is high, so no one resident in the EEA can afford to be complacent.

So, at the very least, I'd recommend that any UK platforms and/or trade bodies capitalise on the evidence they've submitted to UK officials and Parliamentary committees over the past year or so, including whatever submissions are made in the current round of FCA consultations on peer-to-peer lending and crowd-investment. 

FCA's Consumer Credit Rules

The UK's Financial Conduct Authority (FCA) has published its detailed proposals for regulating consumer credit from 1 April 2014. Specific areas of focus include payday lending (Chapter 6), debt management (Chapters 7 and 9) and peer-to-peer lending (Chapter 8). The detailed rules are in the Appendices.

Peer-to-peer lending (P2P lending) is mentioned in the context of protection for borrowers and the transition arrangements for those who hold a Consumer Credit Licence or wish to take advantage of the interim permission regime. However, a separate consultation paper will cover the new regime for peer-to-peer finance or 'crowdfunding' platforms more generally, including protection for consumers who lend or invest through such platforms. I understand that is likely to be issued around 17 October. 

The consultation period ends on 3 December, and responses may be made online here. The final rules are expected in March 2014. 

The FCA's rules related to borrowing on P2P lending platforms are consistent with the way the consumer borrowing platforms already operate. Which is no surprise, since they have been calling for proportionate regulation for years now, and adopted their own self-regulatory code in July 2011. The key protective rules may be summarised as follows:

• It is proposed that platform operators cannot be an appointed representative of another firm 

• FCA proposes similar provisions in relation to pre-contractual explanations and creditworthiness for P2P lending. 

• introduces the concept of a 'P2P agreement' as a distinct form of regulated agreement

• the platform must provide adequate explanations of the key features of the credit agreement to borrowers (including identifying the key risks) before the agreement is made (see CONC 4.4)

• the platform must assess the creditworthiness of borrowers before granting credit (see CONC 5.5) 

•  rules relating to ‘financial promotions’ (see CONC 3 (where applicable)) 

• the platform must include in the agreement between borrower and lender a right for the borrower to withdraw from the agreement, without giving any reason, by giving verbal or written notice, within 14 days of the agreement being made (see CONC 11.2) 

• peer-to-peer lending platforms should be required to provide notices and information sheets to borrowers in arrears or default, directing them to sources of free and impartial debt advice (see CONC 7.18 to 7.20) 

• equivalent rules should be applied to the peer-to-peer lending platforms that help borrowers get high-cost short-term credit as to those applied to lenders providing such credit (see CONC 6.7.17 to 26 and 7.6.12 to 14) 

• peer-to-peer lending platforms should be required to provide a specific risk-warning to a borrower if the loan is secured against the borrower’s home – see CONC 4.4.5) 

• equivalent rules should be applied to peer-to-peer lending platforms carrying on debt collection (see CONC 7) and credit information services, including credit repair (see CONC 8.10) as to other consumer credit firms carrying on the same activities

• Borrowers with loans not regulated under the CCA (because of one of the exemptions) who borrow from firms currently authorised by the FCA will generally have access to FOS in relation to these loans.

Interestingly, the FCA does not anticipate that requirements with respect to P2P lending will affect mutual societies.

Why Our ISAs Don't 'Work'... Yet.

The Treasury consultation on expanding the ISA scheme provides a fresh opportunity to put our savings to work and boost economic growth at the same time.

What's wrong with ISAs?

The “Individual Savings Account” (ISA) rules encourage us to put £11,280 a year into bank cash deposits and a limited list of regulated bonds and shares by making the returns tax-free.

Last year the Treasury estimated that about 45% of UK adults have an ISA, with a total of £400bn split about equally between cash and stocks/shares.

But in 2010 Consumer Focus found that cash-ISAs were only earning an average of 0.41% interest (after initial ‘teaser’ rates expire). They also found that 60 per cent of savers never withdraw money from their account; and 30 per cent see their ISAs as an alternative to a pension. 

Yet the banks don't use this cheap £200bn very wisely. In fact, only £1 in every £10 of the credit they create is allocated to firms who contribute to economic growth (GDP) and 60% of new jobs. In other words, lending to businesses is just not our banks' core activity, even though we also guarantee their liabilities. They earn more by financing consumption and speculation in financial assets. They've even taken £9.5bn under the so-called "Funding for Lending" scheme, and lent even less than before...

So we need the ISA scheme to encourage people to put their ISA money - and the country - back to work.

That means adding alternative asset classes that provide a decent return by financing the real economy, such as those generated on peer-to-peer lending and crowd-investment platforms.

Why hasn't this been done already?

The Treasury has previously resisted calls to do this on two occasions over the past few years. Their defence has been that ISAs are popular, simple to understand, relatively low risk and peer-to-peer platforms are not regulated (see here at para 14 and here at page 13).

But on neither occasion did the Treasury acknowledge the risks posed by the huge concentration of ISA cash in low yield deposits. Or the potential benefits of enabling savers to make some of those funds available to consumers and small businesses at lower cost and far higher returns - especially given that peer-to-peer default rates have proved to be very low.

The regulatory concern also appears to have been misplaced. Banks have clearly demonstrated that regulation affords no guarantee that consumers will be treated fairly. And peer-to-peer platforms, which are already partly regulated by the Office of Fair Trading, have been requesting broader regulation for several years. As a result, the Treasury has begun consulting on plans for more comprehensive regulation by the new Financial Conduct Authority from 2014.

All of that means the latest consultation on adding new assets to the ISA scheme is a golden opportunity to convince the Treasury to let us put our savings to work. 

Let's not miss it.

Presentation on Regulating Alternative Finance

Here's my presentation from Monday's very well organised ACCA Alternative Finance Conference 2013.

Videos of the presentations are now available on the ACCA’s Alternative Finance site.

Regulating peer to-peer and alternative finance - sdj from Simon Deane-Johns

Submission To Parliamentary Commission on Banking Standards

In the interests of transparency, I've embedded below my submission to the Parliamentary Commission on Banking Standards.

Submission to commission on banking standards sdj 08 02 13 final from Simon Deane-Johns

A Financial Innovation Federation?

On Friday, the Finance Innovation Lab brought together various people who are active in the financial policy space to consider whether disruptive policies can help deliver a sustainable financial system. Chris Hewett explained where various policy ideas feature  in the evolution from a 'glint in the eye' to 'political battleground'. He then introduced short speeches on Reshaping the Banking Sector (from Tony Greenham of the NEF), Re-interpreting Fiduciary Duty (from Catherine Howarth of Fair Pensions) and Enabling the Growth of P2P finance (from yours truly, summarising recent submissions to government and the response - slides embedded below). Chris then invited us to discuss the best policy ideas based on the 3 approaches.

Our particular break out discussion focused on how a new regulatory 'channel' might "create an environment for responsible financial innovation to flourish". The context for this exercise was the government's reluctance to amend the financial regulatory framework and related tax incentives to promote alternative finance.

We thought that financial innovation could flourish within a forum comprising groups or networks that reflect the functions within any business - IT, marketing, finance, operations, legal and so on - with a group focused on facilitating the development of innovative business plans through a series of local, regional and national 'finance innovation labs'. Let's call this overall environment a "Financial Innovation Federation". The Federation could be governed via a council that would facilitate agreement on the criteria against which innovative ideas would be judged as being 'responsible' or not, as well as the governance of the body itself and that of its members.  Such agreement could be facilitated via an open, web-based system of governance in which all the members of the Federation could share their knowledge and vote on governance rules and so on. The council could comprise representatives of member businesses and their customers, independent non-executives, and representatives of the Financial Conduct Authority, HM Treasury and Business Innovation and Skills, so that the key regulators and policy makers would be directly engaged with the process of self-regulation and could not claim to be somehow separate from or 'above' the innovation process. The presence of government representatives would mean the approach would be better described as 'co-regulation', which has parallels in other industries. Proportionate formal regulation could evolve as necessary and appropriate.

The basic criteria against which innovative ideas could be judged as 'responsible' or not would be their simplicity, direct connection between participants, product neutrality, the promotion of diversification and whether a real customer problem is solved. The rules relating to the operation of the 'approved' services would focus on managing shared operational risks at the platform level, such as the Rules and Operating Principles of the Peer-to-Peer Finance Association (P2PFA). The overall result would be the creation of a 'safe harbour' in which many different innovative business models could flourish under the watchful gaze of a community of those with expertise in managing operational risk, as well as those charged with protecting consumers and the financial system itself.

In essence, this has already been happening over the past 6 months or so, in the context of submissions made to the Red Tape Challenge on Disruptive Business Models, the Breedon Taskforce and numerous approaches to the FSA by business teams seeking either regulatory guidance or authorisation. A 'Financial Innovation Federation' would draw all this knowledge together more tightly, enabling the more cost-efficient iteration of business plans and quicker time to market for responsible, workable, innovative business models.

We considered that the most useful next step towards establishing such a Financial Innovation Federation would be a meeting between the The Finance Innovation Lab, the P2PFA and other interested parties to explore the practicalities.

Enabling The Growth of P2P Finance - Simon Deane-Johns

View more PowerPoint from Simon Deane-Johns

Government Responds To Breedon

The Government has penned a rapidfire response welcoming the Breedon Taskforce report. Broadly, there is support to explore most of the avenues recommended, except the extension to the ISA programme.

While there's no appetite to make formal changes to the tax and regulatory framework necessary to boost alternatives to banks, the good news is that the Government has acknowledged the industry's desire for proportionate regulation, and welcomed the self-regulatory initiative in setting up the Peer-to-Peer Finance Association to "help raise awareness among SMEs and investors and establish industry standards to protect investors and borrowers". The Government has also :

"...allocated £100m of the Business Finance Partnership to invest through non-traditional channels that can reach smaller businesses, which could include peer-to-peer lending as well as mezzanine loans and asset-based finance. The Government will request proposals for investment in May."

However, the Government "is not minded to amend the ISA scheme" by adding new asset classes. Ironically, the rationale for resisting the Breedon recommendation on this front provides the very basis on which it should be accepted. The ISA scheme is too popular and too narrow to be called "safe" and does not efficiently allocate spare cash to people and businesses who need it: 

"ISAs are a successful and popular product - around 45% of the adult population currently holds one – and their relative simplicity and the coherence of the brand are important to that success. ISAs already offer generous reliefs allowing people to invest up to £10,680 each year in a “stocks and shares” ISA without incurring tax on their returns. The range of qualifying investments includes securities issued by companies listed on a Recognised Stock Exchange: this may include companies of a range of sizes. There is also scope for UCITS, NURS and other investment funds that qualify for inclusion in an ISA to invest part of their funds in smaller, unlisted companies. The Government considers that this provides the right balance of risk given the nature of an ISA investment. The proposed changes would complicate the scheme and undermine its core purpose of providing a relatively simple, safe vehicle which encourages people to save."

Small investors' life savings should be placed in many more baskets than this. 

Breedon's 11 Ways To Finance Small Businesses

Following a rapid but inclusive review, the Breedon Taskforce has recommended 11 ways to improve the financing options for the UK's smaller businesses. As a result, the next few years promise a wealth of innovation and competition in the market for SME finance.

The report confirms that net bank lending to smaller businesses will continue to decline due to the banks' own credit problems and the capital adequacy headwind. In fact, the report estimates a funding gap of about £26bn to £59bn for SMEs over the next 5 years, and an overall finance gap of up to £190bn for UK business sector as a whole.

But the Taskforce has found plenty of scope for growth in alternatives, both in the form of new funding sources, as well as more traditional finance options that have developed in countries where banks have not been so dominant.

The most interesting aspects of the report are: 

1. the acknowledgement (in section 4) that the plethora of government interventions to date (EIS, EIG, etc. etc.) have failed to gain traction; 


2. the recommendation (in section 5) for either an extension to the ISA scheme (as also submitted here) or a new 'Enterprise Savings Account';


3. the acknowledgement (in section 5) that the financial regulatory and promotional framework presents barriers for investors and businesses alike (as also submitted here), and that capital controls and limits on unregulated investments are creating a culture of "reckless prudence" amongst regulated financial institutions (section 8);


4. acknowledgement (in section 7) that there is "some sense" in the request by peer-to-peer platform operators for "proportionate regulation, to protect investors and provide confidence" (as also submitted here) but that officials are concerned that "over-zealous regulation would add to costs, destroying the market before it has a chance to gain scale organically;"  


5. the recommendation (in section 7) that the government should lend in conjunction with the private sector via direct finance platforms;


6. encouragement (in section 6) for standardisation to promote the trade in invoices;


7. the recommendation (in section 5) to create an Agency for Business Lending that would "aggregate a large number of SME loans and finance them via the corporate bond markets" - although, presumably, this would have to be designed to avoid the downside of previous shadow banking activity which is unduly complex compared to direct finance (as also submitted here):

Source: Lipstick On a Pig, p.109.

Taxing Bad Debt

In January, I submitted to the Red Tape Challenge on Disruptive Business Models and the Breedon Taskforce a paper explaining how the government could encourage the development of peer-to-peer finance platforms. Since then, there has been some discussion about potential regulatory changes, as well as the basis on which individual lenders might deduct any bad debt they incur on loans to people and businesses before tax (as banks are allowed to do).  

In other words, personal investors/taxpayers should be entitled to a similar tax framework to the one used by the banks they are competing with in the provision of loans. For example, loans via two peer-to-peer (or direct finance) platforms are listed among the rates available today on MoneySupermarket for a personal loan of £5,000 over 3 years to a borrower with an "excellent profile". There are also competitive rates listed from another direct finance platform in the business loans section.

Denying ordinary taxpayers this tax benefit not only discourages them diversifying their investments, but also limits the flow of competitively priced funding for creditworthy people and businesses. It also means, perversely, that your bank can use your cheap ISA cash to compete against you in the lending markets - and gain a tax deduction on any bad debt that you cannot. So the tax rules are both anti-competitive and confer a selective advantage on some players in the personal and business lending markets - a state aid issue.

To allow you to deduct any bad debt from your income before tax, HMRC will no doubt want to know that your loans were made responsibly at arms-length and that there were decent attempts at recovering missed payments. Here are the criteria on which direct finance platforms ensure this: 

1. The platform operator is not a party to the instruments on its platform and segregates investors’/lenders’ funds, so it has no credit/investment risk, no temptation to engage in regulatory/tax arbitrage and derives no benefit from the segregated funds nor any of the tax benefit available to participating lenders;

2. Finance is drawn from many lenders at the outset according to objective criteria, so lenders are competing against each other on price and not merely choosing friends/family members to lend to;

3. Lenders can achieve diversification across many borrowers at the start, removing the need for subsequent costly re-packaging or securitisation;

4. The one-to-one legal relationship between each borrower and lender is maintained for the life of each loan via the same technology platform (with a back-up available), so all the loan data is readily available to participants and for collections/enforcement activity as well as creating an audit trail for tax purposes;

5. The platform operators abide by applicable legislation such as anti-money laundering regulations: HMRC will want to know who the participants are too so they need to be properly identified;

6. The platform operators can provide information on lenders’ income to HMRC to allow them to collect taxes if desired.

 Of course, none of this would be an issue for the ordinary person, if you could simply lend your ISA money via a direct finance platform, instead of having to put in a savings account or in regulated stocks and shares.

Submission on New Model for Retail Finance

Set out below are both the initial summary and my full submission to the Red Tape Challenge and the BIS Taskforce on Non-bank Finance. I'm very grateful to the colleagues who contributed, as mentioned in the longer document.

In its invitation to submit evidence of ‘red tape’ that is inhibiting the development of ‘disruptive business models’, the Cabinet Office notes the example of Zopa, “a company that provides a platform for members of the public to lend to each other, who found that financial regulations simply didn’t know how to deal with a business that didn’t conform to an outdated idea of what a lender is…” 

This paper demonstrates that financial regulation similarly fails to deal with a range of non-bank, direct finance platforms (“Platforms”) that share some of the key characteristics of Zopa’s person-to-person lending platform (see Annex 1). Accordingly, financial regulation is failing to enable the cost efficient flow of surplus funds from ordinary people savers and investors to creditworthy people and businesses who need finance. In particular, as further explained in Annex 2, the current regulatory framework:

• generates confusion amongst ordinary people as to the basis on which they may lawfully participate on alternative finance Platforms (even though some are licensed by the Office of Fair Trading);

• creates legal and regulatory issues that vary greatly depending on the structure of Platform and instrument adopted, particularly where investment is for return, rather than by way of donation (without return) to a good cause. This means that detailed legal advice is needed for any Platform and this is itself a barrier to entry for some schemes which may not pose any significant risk to the public. Platforms may also require a level of regulatory authorisation which may be inappropriate, again considering the low level of risk to the public.

• does not make alternative finance products eligible for the usual mechanisms through which ordinary people save and invest (as explained in Annex 2), and the inability to deduct bad debt before tax and the tax on interest charged to cover bad debt exposes individual participants on Platforms to much higher ‘effective tax rates’ than their applicable statutory rates (see Annex 3);

• discourages ordinary savers and investors from adequately diversifying their investments;

• incentivises ordinary savers and investors to concentrate their money in bank cash deposits, and regulated stocks and shares;

• inhibits ordinary savers’ and investors’ from accessing fixed income returns that exceed long term savings rates;

• inhibits the development of peer-to-peer funding of other fixed term finance (e.g. mortgages and project/asset finance); and

• protects ‘traditional’ regulated financial services providers from competition.

These regulatory failings could be resolved by creating a new regulated activity of “operating a Platform”, for which the best-equipped regulatory authority would be the Financial Services Authority (as replaced by the Financial Conduct Authority). In tandem, or as alternatives, there could be exemptions based on size of investment or risk (e.g. some schemes or platforms may involve minimal investment in what is sometimes a socially useful venture); lesser regulation/authorisation within existing classes of regulated activity (as for small payment services providers or small e-money issuers) ; or the official endorsement of self-regulatory codes (as banks enjoy in relation to the Banking Code, for example). Direct and indirect incentives that selectively favour incumbent banks and investment funds should also be recognised and modified to balance the competitive landscape. Detailed regulatory changes are explained in Annex 4. 

Regulation of the platform would be independent of any regulation that may apply to the type of product offered to participants on the platform (e.g. loans, trade invoices, debentures to finance renewable energy and lending for social projects, as noted in Annex 1). However, exemptions from regulations governing financial promotions and offers to the public could be granted for instruments that are offered on Platforms. 

Proportionate regulation that obliges Platform operators to address operational risks common to all products would also enable economies of scale and sharing of consistent ‘best practice’, and leave product providers and other competent regulators to focus solely on product-specific issues (e.g. consumer credit, charitable purposes). Similarly, participants on such Platforms do not need to be treated as if they are participating in the course of a ‘business’ if the Platform itself meets all the compliance requirements that a business of that kind would otherwise have to meet. 

Given the established nature of the financial regulatory framework and the dominance of incumbent banks in the provision of debt finance to individuals and small businesses in particular, it is unrealistic to assume that new business models will thrive without some alteration to the regulatory framework to enable rapid market entry and to facilitate strong, responsible growth.

Alternative finance briefing paper simon deane-johns 27 01 12

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Red Tape Challenge Submission - Summary

In its invitation to submit evidence of ‘red tape’ that is inhibiting the developmentof ‘disruptive business models’, the Cabinet Office notes the example of Zopa, “a company that provides a platform for members of the public to lend to each other, who found that financial regulations simply didn’t know how to deal with a business that didn’t conform to an outdated idea of what a lender is…” 

Financial regulation similarly fails to deal with a range of non-bank finance platforms that share some of the key characteristics of Zopa’s person-to-person lending platform. Accordingly, financial regulation is failing to enable the cost efficient flow of surplus funds from ordinary people savers and investors to creditworthy people and businesses who need finance. In particular, the current framework: 

1. generates confusion amongst ordinary people as to the basis on which they may lawfully participate on alternative finance platforms (even though some are licensed by the Office of Fair Trading); 
2. does not make alternative finance products eligible for the usual mechanisms through which ordinary people save and invest, exposing lenders to higher ‘effective tax rates’; 
3. discourages ordinary savers and investors from adequately diversifying their investments; 
4. incentivises ordinary savers and investors to concentrate their money in bank cash deposits, and regulated stocks and shares; 
5. inhibits ordinary savers’ and investors’ from accessing fixed income returns that exceed long term savings rates; 
6. inhibits the development of peer-to-peer funding of other fixed term finance (e.g.mortgages and project/asset finance, and even short term funding of invoices); and
7. protects ‘traditional’ regulated financial services providers from competition. 

These regulatory failings could be resolved by creating a new regulated activity of operating a direct finance platform, for which the best-equipped regulatory authority would be the Financial Services Authority (as replaced by the Financial Conduct Authority). Regulation of the platform would be independent of any regulation that may apply to the type of product offered to participants on the platform (e.g. loans, trade invoices, debentures to finance renewable energy and lending for social projects). Proportionate regulation that obliges platform operators to address operational risks common to all products would also enable economies of scale and sharing of consistent best practice, and leave product providers and other competent regulators to focus solely on product-specific issues (e.g. consumer credit, charitable purposes). 

Similarly, there is no reason why products distributed via these platforms should not also be eligible for the usual mechanisms through which ordinary people save and invest, such as ISAs, pensions and enterprise investment schemes.

I'm off to Number 10 today to discuss these issues, and will be submitting a more detailed paper in the coming weeks, both to the Red Tape Challenge and the BIS Taskforce on alternative business finance. I'm interested in any comments you may have.

Alternatives To Traditional Business Funding

Huge thanks to MarketInvoice for the kind invitation to their event at the Cass Business School yesterday. The event really highlighted the gravity of the SME funding situation and the giant leap in understanding that is required of politicians and policy-makers in this area.

Chuka Umunna MP, Shadow Secretary for BIS, gave the keynote, and the panel included Andrew Cave, the Head of Policy at the Federation of Small Businesses, Emmanouil Schizas of ACCA Global, as well as Anil Stocker of MarketInvoice and Andy Ralph, director of a company that has raised significant amounts of invoice finance in the past quarter. 

Chuka gave some useful context:

• All the recent banking industry figures point to a significant contraction in lending to SMEs in the past quarter. Worse, SME Finance Monitor says over half of SMEs applying for overdrafts this year for the first time have been refused, and more than 400,000 SMEs who wanted to apply for an overdraft in the third quarter  didn’t do so – a third because they were discouraged by their bank.
• A recent BACS report also suggests that "half of all the UK’s small and medium sized enterprises are awaiting late payments. On average, each firm is owed £39,000 in late payments, with the total amount owed to SMEs having reached a staggering record figure of £33.6bn."

Less helpful, however, were Labour's proposed solutions to this mess. In summary, notwithstanding his glowing endorsement of MarketInvoice's as a useful private sector alternative to bank finance and the acknowledged need for more non-bank competition, Chuka said that Labour wants:

• Banks to improve local relationship management;
• The government to be more active and directly involved in improving payment and supply chain management;
• To create a new agency along the lines of the US Small Business Administration and Small Business Investment Company programme, whereby SBICs use their own capital plus funds borrowed with an SBA guarantee to make investments in qualifying small businesses - a phenomenal soure of moral hazhard and downright fraud that's been well documented by David Einhorn in his US Senate Committee testimony and the book "Fooling Some of the People All of the Time"; and
• To use government procurement to help SMEs (notwithstanding Labour's notorious reputation for waste in that area).

Perhaps it's beyond his shadow brief, but it was notable that Chuka made no mention of the discussion of alternative regulatory solutions here and in the US, nor the Cabinet Office focus on red tape that inhibits disruptive business models that specifically identifies alternative finance platforms. There was no reaction to the suggestion that alternative payment providers should enjoy the same tax subsidies that banks and other regulated institutions enjoy through ISA/pension allowances and individuals' ability to off-set losses against income. And no thought appeared to have been given to the idea of a clearly defined 'safe harbour' for the likes of MarketInvoice and peer-to-peer platforms from the rules on collective investment schemes and/or arranging deals in investments, to enable them to start up more confidently, quickly and efficiently.

In fact, Chuka's pitch rather underscored his party's role in helping to create our desperate need for alternatives to traditional business funding. Let's hope we see some decent ideas from the opposition in future.

In the meantime, it's down to the participants on MarketInvoice, Funding Circle and CrowdCube and the many angel networks to carry the alternative funding hopes of SMEs.

US Crowdfunding Bill

"It's time for reflection..." FT.com

Further to my recent post on a new regulatory model for retail finance, the US House of Representative has passed a Bill HR 2930 (still subject to Senate and Presidential approval) which would enable the issuer of securities to raise small amounts of money from many people (crowdfunding) on the basis summarised below. Please note that I've used the helpful summary from VentureBeat, but replaced "company" with "issuer", as I see no reason on my reading of the bill and the definition of "issuer" in the Securities Act 1933 why this would not enable person-to-person lending, rather than merely raising capital for corporations. However, I'm not a US securities lawyer, and you should seek your own independent legal advice ;-)

• "The [issuer] may only raise a maximum of $1 million, or $2 million if the [issuer] provides potential investors with audited financial statements.

• Each investor is limited to investing an amount equal to the lesser of (i) $10,000 or (ii) 10% of his or her annual income.

• The issuer or the intermediary, if applicable, must take a number of steps to limit the risk to investors, including (i) warning them of the speculative nature of the investment and the limitations on resale, (ii) requiring them to answer questions demonstrating their understanding of the risks, and (iii) providing notice to the SEC of the offering, including certain prescribed information.”

As mentioned previously, it would be great to see this sort of support for alternative finance from the UK authorities.

A New Regulatory Model For Retail Finance

"It's time for reflection..." FT.com

Non-bank retail finance models have been gaining momentum worldwide over the past six years, in spite of our creaking financial regulatory framework. Finally, it seems that framework is about to become more directly supportive. 

The mid-noughties saw the launch of various innovative person-to-person finance platforms in the UK, US, Germany and elsewhere, which have been tracked here. These were launched by teams that spent considerable time and expense trying to accommodate existing regulation that favoured incumbents, with little or no regulatory assistance. Meanwhile, the regulatory authorities discovered that their framework, ironically designed to protect consumers, actually guaranteed the worst banking excesses and failed to contain the downside to complex "shadow banking" system in which the incumbent institutions were also involved. And although taxpayers have had to step in and effectively democratise the financial markets, we are still unable to extract badly needed funding from retail banks.

Against that background, it is perverse that the regulatory framework does not already directly facilitate simple, low cost, alternative financial services. And let's not forget that banks and other retail investment institutions continue to enjoy indirect tax subsidies through individuals' ability to off-set losses, as well as ISA and pension allowances for which unregulated alternative investments do not qualify.

While substantial innovation in consumer and small business lending has been possible, UK rules against marketing investments like bonds, shares and unregulated collective investment schemes, have made it much harder to offer alternative funding for SME start-ups, trade finance and even social projects. Given a more proportionate investment regime, the likes of Crowdcube, MarketInvoice, Buzzbnk, Social Impact Bonds and the Green Investment Bank, for example, might operate rather differently. They would no doubt also be joined by existing and new P2P platforms as a substantial alternative to banks and other fee-hungry investment institutions.

Oddly, given its reputation for fast-paced innovation, the US is even less supportive of alternative retail financial models. Zopa, for example, which led the growth of P2P platforms with its launch in the UK, was unable to launch its P2P model in the US despite lengthy consultation with securities regulators. And life has been unnecessarily complicated for the likes of Prosper and Lending Club ever since.

To help remedy the regulatory imbalance, as mentioned in August, three of the leading UK commercial P2P platforms launched the Peer-to-Peer Finance Association and an accompanying set of self-regulatory measures. Their focus is platforms on which the majority of lenders and borrowers are consumers or small businesses, rather than, say, ‘investment clubs’ or networks of sophisticated investors. 

And in September the New York Times reported that there are three proposals in the US to allow peer-to-peer financing without securities registration and disclosure requirements:

"One petition, prepared in 2010 by the Sustainable Economies Law Center and, fittingly, paid for by a grass-roots crowdfunding effort, asks the S.E.C. to permit entrepreneurs to raise up to $100 per individual and an aggregate of up to $100,000 without requiring expensive registration and disclosure.

President Obama, as part of his jobs act, advocates an exemption for sums totaling up to $1 million. Representative Patrick McHenry, a Republican from North Carolina, has drafted legislation that would allow companies to obtain up to $5 million from individuals through crowdfunded ventures, with a cap of $10,000 per investor, or 10 percent of their annual incomes, whichever is smaller."

How would this work in practice?

The challenge (and benefit) associated with such 'safe harbours' is that there is very little room for fee income. This in turn favours 'thin intermediaries', like the new electronic finance platforms, as a means of broad, open distribution. Proportionately regulated, these platforms can deliver greater efficiency, transparency and cost savings that benefit providers and consumers alike. 

Specifically, these platforms can be the focus of regulation designed to control operational risk; deliver transparency (through adequate product disclosure and ‘my account’ functionality); and centralise customer service and complaints handling, with ultimate referral to financial ombudsmen. Focusing those regulatory burdens on the platforms would shift significant compliance costs away from the product providers who rely on the platforms as a means of distribution. This would also mean specialist product regulators could focus their resources on 'vertical' issues related to specific products and their providers rather than 'horizontal' issues that are common to all. Such is the primary intent behind the P2PFA's Operating Principles, for example, which cover lending to both consumers and small businesses.

In addition, since social investments and P2P finance offerings both involve some credit risk and therefore the potential for losses, tax rules should allow off-setting against gains and income derived via these platforms. And there is no reason why instruments so distributed should not also qualify for ISA and pension allowances.

Consumers and small businesses should expect further developments in this space throughout 2012.

Regulating P2P Finance

From a standing start in March 2005, this year peer-to-peer finance will account for more than £100 million of loans to individuals and small businesses in the UK. The timing is perfect, given that our banks are lending less and paying lower savings rates, and new capital rules will drive further need for alternative funding.

Yet, as I noted last year, while these platforms deliver very real social and economic benefits by enabling people rather than banks to share most of the margin between savings rates and funding costs, the financial regulatory and tax framework does not directly accommodate them. So, ironically, new entrants whose business models are founded on openness, fairness, transparency and individual consumer control must spend a huge amount of time and start-up capital figuring out a regulatory path through a regime that is not only designed to force recalcitrant 'traditional' financial institutions to treat customers fairly but also subsidises their marketing efforts with favourable tax allowances.

While the various P2P providers were also considering the merits of forming a self-regulatory body to act as a focal point for more helpful enabling regulation, a further catalyst was the BIS consultation on moving responsibility for consumer credit from the OFT to the Financial Conduct Authority (the FSA's replacement). Having helped frame Zopa's positive response to that consultation, I was happy to help apply the same regulatory approach we'd suggested to a set of operating principles that could form the basis of an interim self-regulatory framework. Collaboration with both Ratesetter and Funding Circle ultimately led to the formation of the "Peer to Peer Finance Association" in July, with invitations extended to others.

The intention of the P2PFA is to enable the development of platforms that facilitate open consumer and small business participation, rather than merely 'investment clubs' or networks reserved for sophisticated investors. As a result, the term “Peer to Peer Finance” is broadly defined in the Rules to mean "any funding arrangement that comprises direct, one-to-one contracts between a single recipient and multiple providers of funds, where the majority of providers and borrowers are consumers or small businesses." The desire for scalable, open or 'mass' access is underlined by the definition of “Platform” as "an electronic system that facilitates Peer to Peer Finance." Generally, funding is likely to be in the form of simple one-to-one loans, but other instruments may evolve over time.

As stated on the Association's web site:

"The Association’s Rules and Operating Principles set out the key requirements for the transparent, fair, robust and orderly operation of peer-to-peer finance platforms and cover:

1. Senior management systems and controls;
2. Minimum capital requirements;
3. Segregation of participants’ funds;
4. Clear rules governing use of the platform, consistent with these Operating Principles;
5. Marketing and customer communications that are clear, fair and not misleading;
6. Secure and reliable IT systems;
7. Fair complaints handling; and
8. The orderly administration of contracts in the event a platform ceases to operate.

The Peer-to-Peer Finance Association is run by a Management Committee, made up of one representative from each member, with one member acting as Chairman for one year on a rotating basis. Giles Andrews, CEO of Zopa, will act as the Committee’s initial Chairman. As new members join the Association, their representative will join the Management Committee.

Membership of the Peer-to-Peer Association is subject to the Rules of the Association and members must comply with the Association’s Operating Principles."

The Rules, Bye-laws and Operating Principles are set out here.