The UK has already made some important strides to regulate the cryptoasset sector over the last few years, focusing on consumer protection and anti-money laundering initiatives. This includes the UK’s Financial Conduct Authority (FCA) prohibiting the sale
of crypto-derivatives to retail consumers, the application of the Money Laundering Regulations to cryptoasset exchange and custodian wallet providers, requiring them to register with the FCA, and the extension of financial promotion restrictions to most cryptoassets.
Advancing to the next stage, the UK aims to bring cryptoassets within the 'regulatory perimeter' of its licensing regime. Under UK law, firms engaged in regulated financial or payment services must secure authorisation from the FCA—or sometimes from another
designated regulator—before offering these services, by way of business, in the UK. This process entails a thorough vetting procedure, and once authorised, firms must adhere to a robust framework of rules and submit to ongoing regulatory supervision.
Echoing a global trend, the UK is prepared to extend this regulatory oversight to cryptoassets, focusing initially on stablecoins. Anticipated legislation slated for this year is expected to mark the beginning of a new era in cryptoasset regulation.
What are stablecoins and why is the initial focus on them?
Stablecoins are a subset of cryptoassets designed to maintain a stable value by being pegged to a fiat currency or a basket of assets, offering a steadier alternative to the typically volatile unbacked cryptoassets. There are also other types of cryptoassets
such as ‘algorithmic stablecoins’, which generally use algorithms to control the stablecoin’s supply by increasing or decreasing the amount of stablecoins in circulation to stabilise the price.
Currently, stablecoins play a crucial role in the cryptoasset market, facilitating transactions between different cryptoassets and acting as gateways for consumers to enter or exit the market. Disruption or outage within the stablecoin chain could lead to
consumers being unable to access their money and make payments. Uncertainty about, or large fluctuations in, the value of the stablecoin could give rise to the type of financial stability risks typically associated with the operational or financial failure
of traditional payments systems.
Recognising these risks and their growing use in trading and potential for broader adoption as a mainstream payment method, the UK Government has chosen to prioritise the regulation of fiat-backed stablecoins in its initial regulatory efforts for the cryptoasset
sector.
Other types of stablecoins (like algorithmic stablecoins) will not be part of this first phase of cryptoasset regulation.
How will fiat-backed stablecoins be brought into the UK’s regulatory framework?
The legislation that empowered HM Treasury to bring fiat-backed stablecoins and other cryptoassets within scope of the financial services regulatory perimeter is the Financial Services and Markets Act 2023 (FSMA 2023), which received Royal Assent on 29 June
2023. Since then, in October 2023, HM Treasury has set out its final proposals on how it intends to proceed in relation to the regulation of fiat-backed stablecoins.
In summary, HM Treasury wants to bring forward secondary legislation very soon (during early 2024) to bring various activities, relating to fiat-backed stablecoins, within the regulatory perimeter, meaning firms will need to be licensed and supervised by
the FCA. This includes regulating:
- the use of regulated stablecoins as a means of payment: new legislation will amend the UK’s Payment Services Regulations 2017 so that they apply to fiat-backed stablecoins used in UK payments chains. Firms involved in these payments would need to
seek authorisation or registration as a payment service provider from the FCA. Plans to allow stablecoins issued overseas to be used for payments in the UK need fleshing out however. One option is for the “arranger” of the payment using an overseas stablecoin
to be appropriately licensed and held responsible for making sure that the stablecoin meets the FCA’s standards.
- the issuance and/or custody of regulated stablecoins: the issuance and custody of fiat-backed stablecoins (regardless of whether they are used in payments) will become regulated activities and subject to FCA supervision. This will be achieved by
amending the Financial and Market Act 2000 (Regulated Activities Order) 2001 (RAO).
In addition to the above, the scope of systemic regulation is also being expanded to provide for stablecoins. FSMA 2023 allows for payment systems and service providers using digital settlement assets to be recognised or designated by HM Treasury and so
become subject to supervision by the Bank of England and/or the Payments System Regulator. This means that potentially systemic stablecoins would be regulated like a traditional payment system. A special administration regime prioritising the return of customer
funds will also apply in the event of an insolvency.
What requirements will apply to regulated stablecoin issuers and custodians?
In November 2023, the FCA unveiled proposals regarding the regulatory requirements anticipated for firms that issue or provide custodial services for fiat-backed stablecoins. The proposed framework will seek to apply several existing regulatory standards,
that currently already apply to many FCA-authorised entities, to the realm of stablecoin activities.
This includes, by way of example, adherence to the FCA’s overarching ‘Principles for Business’, compliance with the Consumer Duty, and observance of rules within the FCA’s Conduct of Business sourcebook—such as those concerning inducements, client categorisation,
and the disclosure of costs and charges.
Furthermore, the existing conflict of interest rules, operational resilience requirements, and the senior managers and certification regime should also apply.
The primary challenge here, for both the FCA and regulated stablecoin providers, lies in adapting and applying these established rules to the novel operational models and inherent challenges of stablecoin issuance and custody.
For instance, the FCA noted in the context of inducements that if a stablecoin issuer holds stablecoins themselves, then in the event of market turbulence, the issuer may be incentivised to consider its own interests ahead of those of clients. This raises
the question of whether the FCA needs to draft any specific rules or guidance to tackle this issue.
Beyond the existing regulatory provisions, the FCA is considering specific rules tailored to the unique nature of stablecoin issuers and custodians. The two principal expectations for issuers are to ensure that their stablecoins consistently maintain their
value relative to the designated reference currency (or currencies) and that holders can promptly redeem their value at par.
To achieve this, the FCA proposes that issuers will be required to hold backing assets that are not only stable in value but also sufficiently liquid, allowing for quick redemption by consumers. The FCA has set out more granular proposals concerning (amongst
other details) the management, composition, and safeguarding of these backing assets and the redemption rights for holders.
For custodians of stablecoins, the FCA's proposed regulations underscore the importance of asset protection. This includes a proposal to apply certain core components of the FCA’s Client Assets sourcebook (CASS), such as segregating client stablecoins from
the custodian's own assets, maintaining records to clearly establish asset ownership, and implementing effective organisational controls to mitigate the risk of loss or diminution of clients' custody assets – for example, due to misuse, fraud or poor administration.
In scenarios where custodians engage third parties or sub-custodians, they would be mandated to conduct thorough due diligence and establish contractual arrangements that ensure stringent controls and governance over client stablecoin holdings are maintained.
The FCA’s proposals also set out their envisaged prudential sourcebook for regulated stablecoin issuers and custodians, which will cover the potential scope of the new prudential requirements, the sorts of capital and liquidity requirements that may be appropriate
for these businesses and the need for regulatory reporting of prudential matters. The working title of the new sourcebook is ‘CRYPTOPRU.’
What is the expected timing on the finalisation of this new regulatory regime?
As noted above, in their October 2023 proposals, HM Treasury noted that it intends to bring forward secondary legislation as soon as possible and by early 2024, subject to available parliamentary time.
With Easter nearly upon us and a General Election on the horizon, the Government faces a degree of urgency to proceed. However, the adoption of secondary legislation simplifies the Parliamentary process compared to primary legislation, enhancing the likelihood
of meeting the 2024 target.
After the feedback period for its November proposals ended on February 6, 2024, the FCA is expected to publish draft rules for cryptoasset issuers and custodians later in the year for consultation by the market.
Looking beyond 2024:What is ‘phase 2’ of the UK’s plans?
Beyond the initial focus on stablecoins, the UK Government is preparing for a more comprehensive ‘phase 2’ of cryptoasset regulation. This ambitious next step aims to establish new regulated activities that encompass the issuance, exchange, investment, risk
management, lending, and custody of a wider array of cryptoassets, extending beyond the scope of fiat-backed stablecoins alone.
Following a consultation in February 2023 on the future financial services regulatory framework for cryptoassets, the Government published its response in October. This document refined and adjusted the original proposals, taking into account the industry
feedback received.
Draft legislation for this broader regulatory sweep is apparently anticipated for 2024. However, with an election impending and the current focus on establishing regulations for fiat-backed stablecoins, the timeline for these measures may be subject to change.
The commitment to a more fully regulated cryptoasset sector is clear, but the exact trajectory will depend on the legislative calendar and the prioritisation of these extensive regulatory developments.
How does all of this compare to the EU’s MiCAR?
Compared to the EU, the UK is following a more phased approach to introducing a licensing regime for the cryptoasset sector – and it is generally looking to adapt the existing UK regulatory framework to bring cryptoassets within scope of the UK regulatory
perimeter in a staged and proportionate manner.
This contrasts with the ‘big bang’ approach taken in the EU. After several years in the making, the EU’s Markets in Crypto Assets Regulation (MiCAR) will finally start to apply in 2024. It is intended to be a single pan-European crypto regime intended to
provide comprehensive regulation of the crypto industry and replace the divergent approaches of its member states. Although many elements of MiCAR echo EU regulations already applicable in other, more traditional, markets – fundamentally MiCAR represents a
new, standalone piece of regulation.
Whilst the UK is focussing on the regulation of fiat-backed stablecoins as part of the initial phase, MiCAR is going full steam ahead to regulate a large array of cryptoassets. Cryptoassets within the scope of MiCAR may fall into one of three buckets:
- Electronic money tokens (EMTs), which are cryptoassets that “purport to maintain a stable value by referencing” the value of a single fiat currency;
- Asset-referenced tokens (ARTs), which are cryptoassets that purport to maintain a stable value by referencing “any other value or right or a combination thereof” (which are not otherwise regulated, such as financial instruments); and
- A third catch-all category which captures any other cryptoasset that is not an electronic money token or asset-referenced token.
MiCAR does not expressly define the term “stablecoin”, but the concepts of ARTs and EMTs, are intended to capture the two potential forms a stablecoin may take (unless they already qualify as something that would be regulated outside of MiCAR, such as a
financial instrument under the recast Markets in Financial Instruments Directive (MiFID II)). Unlike the UK’s phase 1 plans, MiCAR will capture, from the out-set not just fiat-backed stablecoins, but other types such as algorithmic stablecoins (which can be
ARTs).
There are some further key differences between the EU’s MiCAR and the UK’s proposed phase 1 and phase 2 regulatory regimes. This includes various different approaches to categorisation, the definition of ‘cryptoasset’, the scope of regulated activities,
the potential nature of the disclosure obligations for cryptoasset issuers – amongst various other topics.