The basic facts
The United Kingdom (UK) government is committed to negotiating a new relationship between the UK and the European Union (EU), and holding an in / out referendum, before the end of 2017.
The basic legal position – holding a referendum
The Government’s European Union Referendum Bill was introduced into the House of Commons and had its first reading on 28 May 2015. Its second reading debate took place on 9 June 2015; and it was considered in Committee on 16 and 18 June 2015. A report and third reading are pending. When they have taken place, the Bill will move to the House of Lords, and the process will be repeated.
The basic legal position – staying in the EU
If the UK decides to stay in the EU, some of the EU’s Regulations and Directives might need to change, and some of the UK’s EU Directive implementing laws will probably need to change.
The nature and extent of the EU Regulation and Directive changes will probably depend on the UK’s post-referendum EU status. For example, if the UK is still a member of the EU, but (say) the EU’s insurance and banking Directives will no longer apply in or to the UK, an EU Omnibus Directive might be used to amend every reference to “the member states of the European Union” in these Directives, to “the member states of the European Union, excluding the United Kingdom” (or something similar).
The nature and extent of the UK Directive implementing law changes will probably depend on how the relevant Directives have been implemented into UK law, and whether the intention is to retain, amend or revoke the relevant laws. In all probability,[i]primary and secondary legislation, and PRA and FCA rules, will be used to maintain the whole of the relevant UK Directive implementing statutes, statutory instruments and rules, on a transitional or grandfathering basis, until the Government, PRA and FCA (as the case may be) have had an opportunity to consider whether to retain, amend or revoke each relevant law or rule, so that it properly matches the Government or regulators’ own policies in the relevant areas. For the PRA, for example, this might mean developing, consulting on, and then implementing a supplement to, or a replacement for, some or all of the Solvency II Directive, and/or some or all of CRD III and IV – an undertaking that is likely to take several years to complete.
These transitional or grandfathering rules could also be used to implement relevant EU Regulations into UK law, with effect from the moment that (for example) the European Commission’s Solvency II Delegated and CRD IV Implementing Regulations cease to apply in and to the UK, to prevent “gaps” appearing in the UK’s legislative framework, unless and until the Government and regulators have had an opportunity to consider whether, and if so how, they would like to fill these “gaps” overtime.
If this is right, it suggests a period of material uncertainty while we wait to see whether the UK will remain in the EU; and, if it will, when and how the UK’s law will change in those particular areas that have been governed or harmonised by EU law, where EU law will no longer apply, and the UK has a free hand.
The basic legal position – withdrawing from the EU
If the UK decides to leave the EU, it will be required to give notice to the European Council[ii] , and withdrawal negotiations will follow.
It appears[iii] that, if this notice is given, (a) the European Commission will make recommendations to the Council for the conduct of negotiations with the UK; and (b) the Council will consider these recommendations, before nominating an EU negotiator, agreeing negotiating guidelines, and authorising the opening of EU / UK negotiations.
If the EU and UK Government reach an agreement, that agreement will be subject to adoption by a qualified majority of the Council, acting on behalf of the EU, after it has obtained the consent of the European Parliament . This agreement may also be subject to ratification by the UK’s Parliament, although the details are from clear.
At least from an EU perspective, the purpose of the EU / UK negotiations would be to seek to agree (a) the terms of the UK’s withdrawal from the EU, taking into account the nature of the relationship the UK will have with the EU after its withdrawal takes effect (if any); and (b) the extent to which EU legal rights and obligations will continue to apply to the UK, and to and between the legal and natural persons of the UK and EU, after the withdrawal takes effect.
If an agreement is reached, the European Treaties will cease to apply to the UK when the agreement comes into force on a date to be agreed between the parties. If there is no agreement, the Treaties will cease to apply to the UK two years after the UK gives notice of its intention to withdraw. It is therefore at least possible that, if the UK chooses to leave the EU, its law will remain stable until (at least) 2019, even if the UK’s international relationships, economy and political environment begin to change before the end of 2017.
The range of legal options, if the UK chooses to leave
The UK might choose to withdraw from the EU absolutely. If this happens, then it is at least possible that (a) the EU’s Treaties and Regulations will immediately cease to form part of UK law, unless the UK uses “saving” or “grandfathering” legislation to give itself the time it needs to consider, and then vary or revoke them, without “gaps” suddenly appearing in the UK’s legal system; (b) the UK’s Directive implementing laws, and those parts of UK law that rest on the jurisprudence of the EU Courts, will probably remain valid and effective, unless and until they are repealed, or a UK Court finds they no longer have legal effect, generating significant uncertainty about what is valid, and what is not; as well as about how law that was previously European should be interpreted now that it is not; and (c) the UK will no longer be obliged to implement the EU’s Directives, or comply with the jurisprudence of the EU Courts, although it might still choose to do so.
At the other extreme, the UK might become a non-EU member of the European Economic Area (EEA). If this happens, EU law will probably continue to apply in and to the UK, in materially the same way that it applies today, but the UK’s EU membership levies will fall or cease; the grants paid by the EU to parts of the UK will fall or cease; and the UK will no longer have a right to negotiate, or seek to influence, the terms of EU law and policy.
The UK could also (a) cease to be a member of the EU, but decline to become a member of the EEA; and/or (b) seek to negotiate bi-lateral trading arrangements with one or more of the members of the EEA, if that can reasonably and lawfully be done.
What legal and practical risks does this generate for UK (re)insurers, banks, fund managers and other regulated firms?
Anecdotal evidence suggests that UK Plc is already devoting a significant amount of time and resource to the identification and possible mitigation of the risks associated with a Brexit (both independently, and at the behest of the regulators, which are contingency planning in materially the same way).
The result is that UK Plc is beginning to delay material investment and other decisions, because management time and attention is focussed, and resources are being spent, on contingency planning and related issues; and/or because business is gradually becoming concerned that a decision taken ahead of the referendum may be regretted afterwards.
As the date of the in / out referendum approaches, the amount of time and resource being devoted to contingency planning is likely to increase (at least up to the point where the planning is substantially done); and more investment and other decisions are likely to delayed. Some of this may continue after the referendum result has been published, even if the UK decides to stay in the EU, given the uncertainties described above.
Each of these risks generates risks of its own. For example (a) the risk that individual business, macro-economic, security and other risks will begin to emerge, unnoticed and unmitigated, whilst the UK contingency plans against the risk of aBrexit;[iv] (b) the risk that product and market innovation will slow; and the level of M&A and other corporate activity will fall, as time and resources are devoted to other things; and (c) the risk that Financial markets will falter as the referendum approaches and investors worry about the result, adversely affecting the value of their assets.
If the UK votes to leave the EU, the uncertainty generated by Brexit negotiations may be complicated by a second Scottish Independence referendum, and Scotland’s subsequent attempts to remain in the EU (if Scotland votes for independence on this occasion), whilst the rest of the UK negotiates the terms of its exit.
Losing the passport
One of the biggest risks to UK domiciled (re)insurers, banks and other regulated firms is likely to be the possible loss of the European passport, and the single European market in financial services, (in each case) if the UK leaves the EU and does not remain within the EEA on terms which secure the future of the passport.
The passport and single European market give EEA domiciled regulated financial services firms the right to trade freely, on a cross-border services basis, across the EEA, (often) without having to register in or comply with the laws of the other EEA member states, and without having to establish a physical presence there either. The passport also gives these businesses the right to establish one or more branches in any or all of the other EEA countries; and a broadly level playing field on which to compete.
The passport, and the right of UK domiciled financial services firms to access to the EEA market on level playing field terms, could be lost in the event of a Brexit. Even if these rights entirely lost, they may be restricted, and that might mean that some UK businesses and/or their counterparties will choose to relocate into the EEA, rather than lose some or all of the regulatory and competitive benefits associated with being domiciled there. If this happens, it could make it more difficult, or more expensive, for those that stay in the UK to do business, when compared with things as they are.
Each of these things generates a second layer of risk. Many of the UK’s prudential rules are generated in Europe. At the moment, the UK is in a position to influence these rules, and it often “holds the pen“, so European Regulations and Directives often suit the UK, to a material degree. However, the EU sometimes makes rules which the UK regards as insufficiently prudent, or too harsh. The result is that, if there is a Brexit, the UK may take the opportunity to relax some rules (for example, the cap on bankers’ annual bonuses), and tighten others (for example, Solvency II’s capital requirement, and the senior insurance managers regime), generating a second layer of risk, which is more difficult to predict.
The impact on contractual relationships
It is perhaps unlikely that a UK vote to leave the EU; the beginning of EU / UK exit negotiations; or the success or failure of these negotiations, will trigger (for example) an ordinary force majeur or material adverse change clause, or give contractual parties the right to terminate a pre-existing agreement between them. But it might be worth expressly providing for any or all of these things in contracts that are still to be negotiated and entered into. It might also be worth including an additional interpretation clause, if a contract depends on or refers to EU law, or UK law with EU roots, in each case to mitigate the risks of uncertainty that might follow if, for example, an EU law no longer has effect in the UK, but it is replaced by a UK law (or vice versa) (in either case, does the new law apply, or not?); and/or that the relevant law will be interpreted and applied in accordance with European or UK legal principles, according to the preference of the parties.
Other risks, issues and opportunities
A Brexit could also:
- Lead to a short or medium-term decline in the UK’s economy and the health of the public finances, if banks, insurers, brokers, PE/VC find managers and others choose to relocate to stay inside the EU;
- Make it more difficult for UK domiciled (re)insurers to recruit and retain appropriately qualified and experienced staff;
- Generate an opportunity for those insurers that are willing and able to insure other businesses against some of the most clearly identifiable risks associated with a possible Brexit; and/or
- Push some (re)insurers and/or some books of business into run-off, as live carriers adjust their target market(s) to suit their new circumstances; and/or relocate to stay inside the EU, rather than risk losing the passport and other benefits that EU membership seems to bring.
[i]The UK’s Directive implementing laws might survive the disapplication of the EU’s relevant Directives to the UK. But this disapplication is likely to create uncertainty, which the transitional or grandfathering legislation and rules can be used to resolve. For example, it might not always be the case that the implementing law will survive the disapplication of the relevant Directive. And, if an implementing law does survive, there are likely to be questions about whether they should be interpreted in a way that is consistent with the interpretation and development of EU law; or UK law, with or without subsequent EU law developments to be taken into or left out of account.
[ii]See article 50 of the Consolidated Treaty on European Union, and the Treaty on the Functioning of the European Union.
[iii]From articles 50 and 218(3) of the Treaty on European Union, and the Treaty on the Functioning of the European Union.
[iv]This is a real risk. For example, it is thought that the Royal Bank of Scotland failed, at least in part, because the Bank and the Regulators had correctly identified the problems that caused its downfall, and they had started to address them; but their attention switched almost entirely to the implementation of and compliance with Basel II. When this happened, the original risks were abandoned, until it was too late to avoid crystallisation.
To take the nation’s financial pulse, we must go digital
By Pete Bulley, Director of Product, Aire
The last six months have brought the precarious financial situation of many millions across the world into sharper focus than ever before. But while the figures may be unprecedented, the underlying problem is not a new one – and it requires serious attention as well as action from lenders to solve it.
Research commissioned by Aire in February found that eight out of ten adults in the UK would be unable to cover essential monthly spending should their income drop by 20%. Since then, Covid-19 has increased the number without employment by 730,000 people between July and March, and saw 9.6 million furloughed as part of the job retention scheme.
The figures change daily but here are a few of the most significant: one in six mortgage holders had opted to take a payment holiday by June. Lenders had granted almost a million credit card payment deferrals, provided 686,500 payment holidays on personal loans, and offered 27 million interest-free overdrafts.
The pressure is growing for lenders and with no clear return to normal in sight, we are unfortunately likely to see levels of financial distress increase exponentially as we head into winter. Recent changes to the job retention scheme are signalling the start of the withdrawal of government support.
The challenge for lenders
Lenders have been embracing digital channels for years. However, we see it usually prioritised at acquisition, with customer management neglected in favour of getting new customers through the door. Once inside, even the most established of lenders are likely to fall back on manual processes when it comes to managing existing customers.
It’s different for fintechs. Unburdened by legacy systems, they’ve been able to begin with digital to offer a new generation of consumers better, more intuitive service. Most often this is digitised, mobile and seamless, and it’s spreading across sectors. While established banks and service providers are catching up — offering mobile payments and on-the-go access to accounts — this part of their service is still lagging. Nowhere is this felt harder than in customer management.
Time for a digital solution in customer management
With digital moving higher up the agenda for lenders as a result of the pandemic, many still haven’t got their customer support properly in place to meet demand. Manual outreach is still relied upon which is both heavy on resource and on time.
Lenders are also grappling with regulation. While many recognise the moral responsibility they have for their customers, they are still blind to the new tools available to help them act effectively and at scale.
In 2015, the FCA released its Fair Treatment of Customers regulations requiring that ‘consumers are provided with clear information and are kept appropriately informed before, during and after the point of sale’.
But when the individual financial situation of customers is changing daily, never has this sentiment been more important (or more difficult) for lenders to adhere to. The problem is simple: the traditional credit scoring methods relied upon by lenders are no longer dynamic enough to spot sudden financial change.
The answer lies in better, and more scalable, personalised support. But to do this, lenders need rich, real-time insight so that lenders can act effectively, as the regulator demands. It needs to be done at scale and it needs to be done with the consumer experience in mind, with convenience and trust high on the agenda.
Placing the consumer at the heart of the response
To better understand a customer, inviting them into a branch or arranging a phone call may seem the most obvious solution. However, health concerns mean few people want to see their providers face-to-face, and fewer staff are in branches, not to mention the cost and time outlay by lenders this would require.
Call centres are not the answer either. Lack of trained capacity, cost and the perceived intrusiveness of calls are all barriers. We know from our own consumer research at Aire that customers are less likely to engage directly with their lenders on the phone when they feel payment demands will be made of them.
If lenders want reliable, actionable insight that serves both their needs (and their customers) they need to look to digital.
Asking the person who knows best – the borrower
So if the opportunity lies in gathering information directly from the consumer – the solution rests with first-party data. The reasons we pioneer this approach at Aire are clear: firstly, it provides a truly holistic view of each customer to the lender, a richer picture that covers areas that traditional credit scoring often misses, including employment status and savings levels. Secondly, it offers consumers the opportunity to engage directly in the process, finally shifting the balance in credit scoring into the hands of the individual.
With the right product behind it, this can be achieved seamlessly and at scale by lenders. Pulse from Aire provides a link delivered by SMS or email to customers, encouraging them to engage with Aire’s Interactive Virtual Interview (IVI). The information gathered from the consumer is then validated by Aire to provide the genuinely holistic view of a consumer that lenders require, delivering insights that include risk of financial difficulty, validated disposable income and a measure of engagement.
No lengthy or intrusive phone calls. No manual outreach or large call centre requirements. And best of all, lenders can get started in just days and they save up to £60 a customer.
Too good to be true?
This still leaves questions. How can you trust data provided directly from consumers? What about AI bias – are the results fair? And can lenders and customers alike trust it?
To look at first-party misbehaviour or ‘gaming’, sophisticated machine-learning algorithms are used to validate responses for accuracy. Essentially, they measure responses against existing contextual data and check its plausibility.
Aire also looks at how the IVI process is completed. By looking at how people complete the interview, not just what they say, we can spot with a high degree of accuracy if people are trying to game the system.
AI bias – the system creating unfair outcomes – is tackled through governance and culture. In working towards our vision of a world where finance is truly free from bias or prejudice, we invest heavily in constructing the best model governance systems we can at Aire to ensure our models are analysed systematically before being put into use.
This process has undergone rigorous improvements to ensure our outputs are compliant by regulatory standards and also align with our own company principles on data and ethics.
That leaves the issue of encouraging consumers to be confident when speaking to financial institutions online. Part of the solution is developing a better customer experience. If the purpose of this digital engagement is to gather more information on a particular borrower, the route the borrower takes should be personal and reactive to the information they submit. The outcome and potential gain should be clear.
The right technology at the right time?
What is clear is that in Covid-19, and the resulting financial shockwaves, lenders face an unprecedented challenge in customer management. In innovative new data in the form of first-party data, harnessed ethically, they may just have an unprecedented solution.
The Future of Software Supply Chain Security: A focus on open source management
By Emile Monette, Director of Value Chain Security at Synopsys
Software Supply Chain Security: change is needed
Attacks on the Software Supply Chain (SSC) have increased exponentially, fueled at least in part by the widespread adoption of open source software, as well as organisations’ insufficient knowledge of their software content and resultant limited ability to conduct robust risk management. As a result, the SSC remains an inviting target for would-be attackers. It has become clear that changes in how we collectively secure our supply chains are required to raise the cost, and lower the impact, of attacks on the SSC.
A report by Atlantic Council found that “115 instances, going back a decade, of publicly reported attacks on the SSC or disclosure of high-impact vulnerabilities likely to be exploited” in cyber-attacks were implemented by affecting aspects of the SSC. The report highlights a number of alarming trends in the security of the SSC, including a rise in the hijacking of software updates, attacks by state actors, and open source compromises.
This article explores the use of open source software – a primary foundation of almost all modern software – due to its growing prominence, and more importantly, its associated security risks. Poorly managed open source software exposes the user to a number of security risks as it provides affordable vectors to potential attackers allowing them to launch attacks on a variety of entities—including governments, multinational corporations, and even the small to medium-sized companies that comprise the global technology supply chain, individual consumers, and every other user of technology.
The risks of open source software for supply chain security
The 2020 Open Source Security and Risk Analysis (OSSRA) report states that “If your organisation builds or simply uses software, you can assume that software will contain open source. Whether you are a member of an IT, development, operations, or security team, if you don’t have policies in place for identifying and patching known issues with the open source components you’re using, you’re not doing your job.”
Open source code now creates the basic infrastructure of most commercial software which supports enterprise systems and networks, thus providing the foundation of almost every software application used across all industries worldwide. Therefore, the need to identify, track and manage open source code components and libraries has risen tremendously.
License identification, patching vulnerabilities and introducing policies addressing outdated open source packages are now all crucial for responsible open source use. However, the use of open source software itself is not the issue. Because many software engineers ‘reuse’ code components when they are creating software (this is in fact a widely acknowledged best practice for software engineering), the risk of those components becoming out of date has grown. It is the use of unpatched and otherwise poorly managed open source software that is really what is putting organizations at risk.
The 2020 OSSRA report also reveals a variety of worrying statistics regarding SSC security. For example, according to the report, it takes organisations an unacceptably long time to mitigate known vulnerabilities, with 2020 being the first year that the Heartbleed vulnerability was not found in any commercial software analyzed for the OSSRA report. This is six years after the first public disclosure of Heartbleed – plenty of time for even the least sophisticated attackers to take advantage of the known and publicly reported vulnerability.
The report also found that 91% of the investigated codebases contained components that were over four years out of date or had no developments made in the last two years, putting these components at a higher risk of vulnerabilities. Additionally, vulnerabilities found in the audited codebases had an average age of almost 4 ½ years, with 19% of vulnerabilities being over 10 years old, and the oldest vulnerability being a whopping 22 years old. Therefore, it is clear that open source users are not adequately defending themselves against open source enabled cyberattacks. This is especially concerning as 99% of the codebases analyzed in the OSSRA report contained open source software, with 75% of these containing at least one vulnerability, and 49% containing high-risk vulnerabilities.
Mitigating open source security risks
In order to mitigate security risks when using open source components, one must know what software you’re using, and which exploits impact its vulnerabilities. One way to do this is to obtain a comprehensive bill of materials from your suppliers (also known as a “build list” or a “software bill of materials” or “SBOM”). Ideally, the SBOM should contain all the open source components, as well as the versions used, the download locations for all projects and dependencies, the libraries which the code calls to, and the libraries that those dependencies link to.
Creating and communicating policies
Modern applications contain an abundance of open source components with possible security, code quality and licensing issues. Over time, even the best of these open source components will age (and newly discovered vulnerabilities will be identified in the codebase), which will result in them at best losing intended functionality, and at worst exposing the user to cyber exploitation.
Organizations should ensure their policies address updating, licensing, vulnerability management and other risks that the use of open source can create. Clear policies outlining introduction and documentation of new open source components can improve the control of what enters the codebase and that it complies with the policies.
Prioritizing open source security efforts
Organisations should prioritise open source vulnerability mitigation efforts in relation to CVSS (Common Vulnerability Scoring System) scores and CWE (Common Weakness Enumeration) information, along with information about the availability of exploits, paying careful attention to the full life cycle of the open source component, instead of only focusing on what happens on “day zero.” Patch priorities should also be in-line with the business importance of the asset patched, the risk of exploitation and the criticality of the asset. Similarly, organizations must consider using sources outside of the CVSS and CWE information, many of which provide early notification of vulnerabilities, and in particular, choosing one that delivers technical details, upgrade and patch guidance, as well as security insights. Lastly, it is important for organisations to monitor for new threats for the entire time their applications remain in service.
On the Frontlines of Fraud: Tactics for Merchants to Protect Their Businesses
By Nicole Jass, Senior Vice President of Small Business and Fraud Products at FIS
Fraud isn’t new, but the new realities brought by COVID-19 for merchants, and the rising tide of attacks have changed the way we need to approach the fight. Even before the pandemic broke out earlier this year, the transition to digital payments was well underway, which means fighting fraud needs a multilayered, multi-channel approach. Not only do you want to increase approval rates, you want to protect your revenue and stop fraud before it happens.
A great place to start is working with your payment partners to refresh your company’s fraud strategies with emerging top three best practices:
- AI-based machine learning fraud solutions helps your business stay ahead of fraud trends. Leveraging data profiles to model both “good” and “bad” behavior helps find and reduce fraud. AI-based machine learning will be increasingly essential to stay ahead of the explosive and sophisticated eCommerce fraud.
- Increasing capabilities around device fingerprinting and behavioral data are essential to detect fraud before it happens. While much of the user-input values can be easily manipulated to look more authentic, device fingerprinting and behavioral data are captured in the background to derive unique details from the user’s device and behavior. Bringing in more unique elements into decisioning, can help authenticate the users and determine the validity of the transactions.
- Prioritize user authentication. User authentication is a vital linchpin in any fraud defense and should receive even greater priority today. Setting strong password requirements and implementing multi-factor authentication helps curb fraud attacks from account takeover.
As well as working with your payment partners it’s more critical than ever to protect online transactions while not jeopardizing legitimate purchases. Fortunately, there are a few things you can do right now to address these concerns:
- Monitor warning signs
Payment verification is an important part of protecting your business. There are a variety of strategies to employ including implementing technology utilizing artificial intelligence and machine learning to help catch certain patterns. In addition to technology, here are a few other tips that may serve as warning signs. These are not a guarantee fraud is occurring, but they are flags to investigate.
o The shipping address and billing address differ
o Multiple orders of the same item
o Unusually large orders
o Multiple orders to the same address with different cards
o Unexpected international orders
- Require identity verification
Finding a balance between protection and ease of purchase will ultimately help you protect your customers and your business. The following tactics can make it more difficult for fraudsters to be successful:
o For customers that have a login, require a minimum of eight characters as well as the use of special characters in your customers’ passwords
o Set up Two-Factor Authentication that requires a One-time Passcode (OTP) via SMS or email
o Use biometric authentication for mobile purchases or logins
- Monitor chargebacks
Keeping good records is essential for eCommerce. If a customer initiates a dispute, your only available recourse is to provide proof that the order was fulfilled. Be prepared to provide all the supporting information about a disputed transaction. Worldpay’s Disputes solutions can connect to your CRM and provide you dual-layer protection against friendly fraud, first deflecting them before they arise and then fully managing chargeback defenses on your behalf.
- Monitor declines
Credit card issuers mitigate fraud by automatically declining payments that look suspicious, based on unusual card activity such as drastic changes in spending patterns or uncommon geolocations of spending. You can check your own declined payment history to help spot a potential problem. When volumes increase, the help of a payments fraud management partner is beneficial.
- Protect your own wallet
While you take the steps to protect your business, it’s also important to be mindful of your own protection—it’s incumbent on all responsible consumers to be vigilant about their data. Whether it’s simple awareness of how the fraudsters are operating today, sticking to trusted brands when shopping online, and thinking twice about what data you share and who you share it with, you’ll soon see how often you are sharing personal information about yourself.
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