As is so often the case with regulation, it’s almost impossible to get an answer to a simple question like this without ending up being barraged by unhelpful and unfamiliar technical terms. With respect to investment firms like our clients, the answer is easy:
“If, in the course of business, you carry out designated investment business with respect to specified investments and the activity isn’t excluded, or you’re not exempt, you need to be authorised.”
But really, what use is that?!
The rules genuinely are detailed and complicated, and the terminology is technical so this can’t be a full guide but we can unpack the ‘easy answer’ above, separate out the different concepts and give a quick introduction to them so that you know what questions to ask next…
1) in the course of business
This part of the answer is not clearly defined by law but most people know whether they are doing something in the course of business or not. If it could make you money (whether or not it actually does) and if it’s a regular activity rather than a one-off happening, it’s likely to fall within “the course of business”.
2) designated investment business
This is just a part of the much wider “regulated activities” which range from insurance business to banking but these are the ones undertaken by most investment firms. These include (among others):
- arranging investments,
- advising on investments,
- operating a collective investment scheme,
- managing investments (eg in an EIS fund).
Again, common sense applies; if it feels like it should be regulated, it probably is.
3) specified investments
These are the investment instruments that are regulated. This category includes shares, options, warrants, debentures, units in a collective investment scheme (fund), government securities, &c..
There are several popular alternative asset classes that aren’t specified investments, most notably property (real estate) but also art, wine, stamps, antiques, and the like. You do not, therefore, need to be regulated in order to advise someone on their portfolio of wines.
Even within these asset classes, some caution is required; because units and shares are specified investments, advising somebody to buy into an art fund, or to buy a special purpose vehicle which owns a building, is likely to be regulated.
4) excluded activity
These are activites which, were it not for the specific exemption, would require you to be authorised. They include publishing media reports on financial matters, setting up employee share schemes, and buying or selling investments on your own behalf (as long as you don’t hold yourself out to the market as willing to do so).
5) exempt persons
Finally, these are people who have specific exemptions from requiring FSA authorisation because of who they are. These include regulated professional firms (mainly lawyers and accountants, where the activity is incidental to the professional services they offer), appointed representatives, central banks, and certain large investment exchanges. If you were going to fall into this category, you’d probably know already.
If you’re not sure whether you need to be authorised, it’s likely to be because you’re not sure if the activity you’re undertaking counts as ‘regulated activity’ or if you’re involved with ‘specified investments’ (2 & 3 above). These are the key areas where you may want to seek more advice.
Of course, if you’d like to discuss with us, whether or not you need regulation, please contact Simon Webber, StypersonPOPE’s MD, either by telephone or on email@example.com.