By Hannah Laming, Partner, and Craig Hogg, Associate at Peters & Peters Solicitors LLP
Before the coronavirus pandemic sent shockwaves through the UK economy, the Financial Conduct Authority (‘FCA’) stepped up its efforts to promote good governance and culture in the financial services sector, with the publication of its first discussion paper of 2020, entitled ‘Transforming culture in financial services – driving purposeful cultures’ (‘DP20/1’).
Published on 5 March, DP20/1 comprised a collection of firm and sector-specific essays, which drew from a broad range of contributors – including Zurich UK, The London Institute of Banking & Finance, and the University of Bath – with each piece discussing the concept of ‘purpose’. The aim was to better understand what constitutes effective governance and culture within the financial services sector.
The message outlined by the FCA was clear: although the regulator does not prescribe a ‘one-size-fits-all’ culture for the industry, it considers that a healthy and ‘purposeful’ culture within firms “leads to better outcomes for consumers and markets, and healthy and sustainable returns for shareholders”. A month later, the FCA re-emphasised the importance of good governance in the sector in its 2020/21 Business Plan, in which the regulator further underscored the importance of the Senior Managers and Certification Regime (‘SMCR’) in fostering healthy cultures and fair customer outcomes.
FCA’s wide regulatory ambit
The FCA’s policy efforts in this area are important – the regulator has oversight over a large and diverse population of financial services firms. The SMCR, for example, has been successively expanded over time: in December 2019, the scheme was first extended to encompass FCA solo-regulated firms, and is currently set to be introduced for benchmark administrators and appointed representatives from December 2020 onwards.
Although the deadline for solo-regulated firms to have completed their first “fitness and propriety” assessment of certified persons has now been delayed until 31 March 2021 on account of the COVID-19 pandemic (with the FCA further consulting over the appropriate deadline for other SMCR requirements, such as the date when the Conduct Rules will come into force) the expectation is that financial services firms continue to embrace SMCR initiatives.
In a statement issued at the end of June, the FCA stated that solo-regulated firms should continue with their SMCR programmes and, if they are able to certify staff earlier than March 2021, they should do so. The FCA also reminded firms that they should not wait to remove staff who are not fit and proper from certified roles. The expectation further remains that Conduct Rules training is effective, so that staff within solo-regulated firms are aware of the Conduct Rules and understand how to apply them.
Defining ‘healthy culture’
Despite this wide regulatory ambit, some common ground over what constitutes healthy cultures is emerging. Non-financial misconduct, such as serious personal misbehaviour, bullying, discrimination and sexual misconduct in the workplace, now fall squarely within the reach of SMCR. More specifically, the FCA has made plain that tolerance of non-financial misconduct will amount to a driver of unhealthy culture and senior managers who countenance or foster a culture of this kind will not be considered “fit and proper” under the SMCR.
In addition to the concept of ‘purpose’, in DP20/1, the FCA identified a further element as crucial to developing a healthy culture within firms: so-called ‘safety’. While ‘purpose’ encapsulates what a financial services firm should be trying to achieve (described by the regulator in the foreword as “the gravitational force that draws in and aligns teamwork, engagement, inspiration and creativity”), for a culture to be safe, the FCA states that employees must feel comfortable expressing their opinions and must be listened to when they do. Effective whistleblower protections, diversity and inclusion, and fostering psychological safety through a “speak up, listen up” culture are therefore of central importance to this mission.
The FCA’s approach to effecting cultural change should, if implemented expansively in the UK, serve as a model for financial regulatory bodies around the world. Back in 2018, the Chairman of the U.S. Securities and Exchange Committee, Jay Clayton, applauded the FCA’s “illuminating” early work in the area, observing that culture within firms is “collective” and “defined by the countless daily actions of its people”. The conclusions reached in DP20/1 continue this theme: for healthy cultures to develop, the FCA – and those international counterparts following its lead – must continue to act ambitiously to implement change across the entire hierarchy of financial services firms.
NDAs: a roadblock to long-lasting change?
Despite these positive developments, one continuing threat to the FCA’s goal of promoting purposeful and safe cultures is the ongoing use of non-disclosure agreements (‘NDAs’) to silence whistleblowers or those speaking up against discrimination or harassment. Such mechanisms hold the potential to wholly undermine compliance efforts, and to drive down transparency in the financial services sector.
For example, in its June 2020 report, ‘Silence in the City 2’, the whistleblowing charity Protect cites the case of an unnamed compliance professional working in a ‘financial institution’ who was subjected to bullying after blowing the whistle on financial irregularities in her firm. The individual concerned ultimately left the firm involved, but only after agreeing a settlement with the company that included signing an NDA.
While the All-Party Parliamentary Group on whistleblowing has recommended that NDAs be banned in whistleblowing cases, and the Advisory Conciliation and Arbitration Service (‘ACAS’) published guidance for employers and workers to that effect in February of this year, it still remains unclear to what extent this position will be embraced by financial services firms. For the time being, NDAs continue to be a mainstay of corporate reputation management.
Whilst the FCA has invested heavily in its ‘healthy culture’ initiatives to date, without greater regulation – particularly surrounding agreements like NDAs – its work to bring about meaningful change in the sector will continue to be undermined. To repeat the words of DP20/1 contributors, Professor Veronica Hope Hailey and Dr Imogen Cleaver of the University of Bath, change is needed “to move away from the orthodoxy that the role of directors is to optimise the return to shareholders, often at the expense of other stakeholders, and towards seeing businesses as ‘purposeful’, as part of society rather than ‘apart’ from society.”
UK’s Sunak extends COVID rescue plan but companies to pay more tax from 2023
By David Milliken and William Schomberg
LONDON (Reuters) – Finance minister Rishi Sunak announced a costly extension of his emergency aid programmes to see Britain’s economy through its current coronavirus lockdown, but announced a tax hike for many businesses as he began to focus on fixing the public finances.
Delivering an annual budget speech on Wednesday, Sunak said the economy will regain its pre-pandemic size in the middle of 2022, six months earlier than previously forecast, helped by Europe’s fastest COVID-19 vaccination programme.
But it will remain 3% smaller in five years’ time than it would have been without the damage wrought by the coronavirus crisis and extra support is needed now as the country remains under coronavirus restrictions, he said.
Among the new support measures was a five-month extension of his huge jobs rescue plan and more help for the self-employed, the continuation of an emergency increase in welfare payments, and an extension of a VAT cut for the hospitality sector.
A tax cut for home-buyers was also extended until the end of June.
“First, we will continue doing whatever it takes to support the British people and businesses through this moment of crisis,” Sunak told parliament.
“Second, once we are on the way to recovery, we will need to begin fixing the public finances – and I want to be honest today about our plans to do that. And, third, in today’s Budget we begin the work of building our future economy.”
Announcing forecasts by the Office for Budgetary Responsibility (OBR), Sunak said the economy was likely to grow by 4% in 2021, slower than a forecast of 5.5% made in November, reflecting the current lockdown which began in January.
Looking further ahead, the OBR forecast gross domestic product would grow 7.3%, 1.7% and 1.6% in 2022, 2023 and 2024 respectively. In November, the OBR had forecast growth in those years of 6.6%, 2.3% and 1.7%.
Sunak promised to do “whatever it takes” to steer the economy through what he hopes will be the final months of pandemic restrictions.
He has already racked up Britain’s highest borrowing since World War Two, which hit an estimated 17% of GDP in the 2020/21 financial year that is about to end and should fall to a still historically high 10.3% in 2021/22.
In a first move to raise taxes, Sunak announced he would raise corporation tax to 25% from 19% from 2023, by which time the economy should be past the pandemic crisis.
“Even after this change the UK will still have the lowest corporation tax rate in the G7 – lower than the United States, Canada, Italy, Japan, Germany and France,” he said.
Businesses with profits of 50,000 pounds or less would pay a new Small Profits Rate, maintained at the current rate of 19%.
Sunak also said he would freeze the amount of money that people can earn tax-free and the threshold for the higher rate of income tax until 2026.
(Writing by William Schomberg; Editing by Catherine Evans)
Renewable diesel boom highlights challenges in clean-energy transition
By Rod Nickel, Stephanie Kelly and Karl Plume
(Reuters) – For 17 years, trucker Colin Birch has been hitting the highways to collect used cooking oil from restaurants.
He works for Vancouver-based renderer West Coast Reduction Ltd, which processes the grease into a material to make renewable diesel, a clean-burning road fuel. That job has recently gotten much harder. Birch is caught between soaring demand for the fuel – driven by U.S. and Canadian government incentives – and scarce cooking oil supplies, because fewer people are eating out during the coronavirus pandemic.
“I just have to hustle more,” said Birch, who now sometimes travels twice as far across British Columbia to collect half as much grease as he once did.
His search is a microcosm of the challenges facing the renewable diesel industry, a niche corner of global road fuel production that refiners and others are betting on for growth in a lower-carbon world. Their main problem: a shortage of the ingredients needed to accelerate production of the fuel.
Unlike other green fuels such as biodiesel, renewable diesel can power conventional auto engines without being blended with diesel derived from crude oil, making it attractive for refiners aiming to produce low-pollution options. Refiners can produce renewable diesel from animal fats and plant oils, in addition to used cooking oil.
Production capacity is expected to nearly quintuple to about 2.65 billion gallons (63 million barrels) over the next three years, investment bank Goldman Sachs said in an October report.
Rising demand is creating both problems and opportunities across an emerging supply chain for the fuel, one small example of how the larger transition to green fuels is upending the energy economy. A renewable diesel boom could also have a profound impact on the agricultural sector by swelling demand for oilseeds like soybeans and canola that compete with other crops for finite planting area, and by driving up food prices.
Local and federal governments in the United States and Canada have created a mix of regulations, taxes or credits to stimulate more production of cleaner fuels. President Joe Biden has promised to move the United States toward net-zero emissions, and Canada’s Clean Fuel Standard requires lower carbon intensity starting in late 2022. California currently has a low-carbon standard that provides tradable credits to clean fuel producers.
But the feedstock supply squeeze is constraining the industry’s ability to comply with those efforts.
‘SPINNING FAT INTO GOLD’
Demand and prices for feedstocks from soybean oil to grease and animal fat is soaring. Used cooking oil is worth 51 cents per pound, up about half from last year’s price, according to pricing service The Jacobsen.
Tallow, made from cattle or sheep fat, sells for 47 cents per pound in Chicago, up more than 30% from a year ago. That’s boosting the fortunes of renderers such as Texas-based Darling Ingredients Inc and meat packers such as Tyson Foods Inc. Darling shares have about doubled in the last six months.
“They’re spinning fat into gold,” said Lonnie James, owner of South Carolina fats and oil brokerage Gersony-Strauss. “The appetite for it is amazing.”
Clean fuels could be a boon for North American refiners, among the pandemic’s hardest-hit businesses as grounded airlines and lockdowns hammered fuel demand. Refiners Valero Energy Corp, PBF Energy Inc and Marathon Petroleum Corp all lost billions in 2020.
Valero’s renewable diesel segment, however, posted a profit, and the company has announced plans to expand output. Marathon is seeking permits to convert a California refinery to produce renewable fuels, while PBF is considering a renewable diesel project at a Louisiana refinery.
The companies are among at least eight North American refineries that have announced plans to produce renewable fuels, including Phillips 66, which is reconfiguring a California refinery to produce 800 million gallons of green fuels annually.
Once new renewable diesel production capacity comes online, feedstocks are likely to become more scarce, said Todd Becker, chief executive of Green Plains Inc, a biorefining company that helps produce feedstocks.
Goldman Sachs estimates that an additional 1 billion gallons of total capacity could be added if not for issues with feedstock availability, permitting and financing.
“Everybody in North America and around the world are all trying to buy low carbon-intensity feedstocks,” said Barry Glotman, chief executive of West Coast Reduction.
His customers include the world’s biggest renewable diesel maker, Finland’s Neste. A spokesperson for Neste said the company sees more than enough feedstock supply to meet current demand and that development of new feedstocks can ensure supply in the future.
SOYBEAN, CANOLA BOOM
Renewable diesel producers are increasingly counting on soybean and canola oil to run new plants.
The U.S. Agriculture Department (USDA) is forecasting record-high soybean demand from domestic processors and exporters this season, largely because of soaring global demand for livestock and poultry feed.
Crushers who produce oil from the crops are also scouring Western Canada for canola, helping to drive prices in February to a record futures high of C$852.10 per tonne. Soybeans reached $14.45 per bushel in the United States last week, the highest level in more than six years.
Rising food prices are a concern if the predicted demand for crops to generate renewable diesel materializes, said USDA Chief Economist Seth Meyer. U.S. renewable diesel production could generate an extra 500 million pounds of demand for soyoil this year, Juan Luciano, chief executive of agricultural commodities trader Archer Daniels Midland Co, said in January. That would represent a 2% year-over-year increase in total consumption.
Greg Heckman, CEO of agribusiness giant Bunge Ltd, in February called the renewable diesel expansion a long-term “structural shift” in demand for edible oils that will further tighten global supplies this year.
By 2023, U.S. soybean oil demand could outstrip U.S. production by up to 8 billion pounds annually if half the proposed new renewable diesel capacity is constructed, according to BMO Capital Markets.
That same year, Canadian refiners and importers will face their first full year complying with new standards to lower the carbon intensity of fuel, accelerating demand for renewable diesel feedstocks, said Ian Thomson, president of industry group Advanced Biofuels Canada.
Manitoba canola grower Clayton Harder said it is hard to envision a vast expansion of canola plantings because farmers need to rotate crops to keep soils healthy. Farmers may instead have to raise yields by improving agronomic practices and sowing better seed varieties, he said.
British Columbia refiner Parkland Corp is hedging its bets on feedstock supplies. The company is securing canola oil through long-term contracts, but also exploring how to use forestry waste such as branches and foliage, said Senior Vice President Ryan Krogmeier.
The competition to find new and sustainable biofuel feedstocks will be fierce, said Randall Stuewe, chief executive at Darling, the largest renderer and collector of waste oils.
“If there is a feedstock war, so be it,” he said.
(Reporting by Rod Nickel in Winnipeg, Stephanie Kelly in New York and Karl Plume in Chicago; editing by David Gaffen, Simon Webb and Brian Thevenot)
UK fishing sector sees more job losses if post-Brexit export troubles not tackled soon
By Maytaal Angel
LONDON (Reuters) – Britain could lose more jobs in its fishing sector if the current delays and increased costs involved in exporting to the EU post-Brexit are not ironed out soon, industry groups told British government officials on Tuesday.
Speaking at an Environment, Food and Rural Affairs (EFRA) select committee inquiry, representatives of Britain’s fishing sector said small to medium-sized enterprises were especially at risk and called on the government to urgently negotiate new export rules with the EU.
“(Even) if we get (export) systems sorted, we will still have cost implications. In the medium term, small companies will stop trade to Europe and it may even be their demise,” said Donna Fordyce, chief executive of Seafood Scotland.
“It’s a real worry. These people can’t see a future.”
Under a Brexit deal reached late last year, British trade with the EU remains free of tariffs and quotas. But the establishment of a full customs border means goods must be checked and paperwork filled in, damaging express delivery systems.
Fresh food sectors like fishing and meat have been particularly hard hit, with export paperwork costs soaring and delivery delays prompting EU buyers to reject British produce or to pay less for it.
Sarah Horsfall, co-chief executive of the Shellfish Association of Great Britain, said some British shellfish companies had already shut their doors, buckling under the pressure of the COVID-19 pandemic, and then Brexit.
She said paperwork costs per consignment have increased by 400-600 pounds. On top of that, companies often need to hire two or three extra staff just to fill in the paperwork, adding to costs.
Another point of contention for the British seafood sector is that EU exporters are currently not facing increased costs or delays in sending goods to Britain because the UK has postponed introducing reciprocal customs checks by three to six months.
“Exporters we deal with are considering relocating to the EU. We have to address this urgently if we want to grow, because at the moment we are at the risk of doing the opposite,” said Martyn Youell, senior manager of fisheries and quotas at fishing company Waterdance.
(Reporting by Maytaal Angel; Editing by Sonya Hepinstall)
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