MiFID II call recording for UK advisers: what still applies post-Brexit

Brexit did not remove MiFID II obligations

A common misconception among UK-based advisers is that Brexit removed the obligation to comply with MiFID II. It did not. Under the European Union (Withdrawal) Act 2018, the UK onshored MiFID II into domestic law as “UK MiFID.” The substantive obligations — including Article 16's call recording and record-keeping requirements — remain in force, administered by the FCA rather than ESMA.

The practical implication is that IFA firms advising on MiFID financial instruments (which includes most investment products, collective investment schemes, and pension transfers) remain subject to call recording requirements. Those requirements have not been relaxed since Brexit — if anything, the FCA's Consumer Duty has added an additional overlay of evidential obligation.

What Article 16 requires

Article 16(7) of UK MiFID requires investment firms to record telephone conversations and keep copies of electronic communications relating to transactions concluded in the course of dealing on their own account or the provision of client order services.

The FCA's SYSC 10A extends this to face-to-face client meetings where the content of the meeting is relevant to a regulated transaction or recommendation. In practice, for IFA firms, this means any client meeting in which you give a personal recommendation relating to a MiFID financial instrument should be recorded — or, where recording is not practicable, a contemporaneous written record must be produced.

Which communications must be recorded

Retention: the five-year rule

SYSC 10A.1.10 requires that records of communications relating to client orders and transactions are retained for a minimum of five years from the date of the communication. For communications relating to pension business, the FCA has indicated a preference for longer retention — typically the lifetime of the pension relationship.

This five-year minimum applies to:

• The audio recording itself (where a call or meeting was recorded)
• Any transcript of the recording
• The suitability report or file note produced from the meeting
• Any related electronic communications (emails, messages) that formed part of the advice process

TakeNote retains all audio files and transcripts for a minimum of five years from the date of processing, in compliance with these requirements. Files are stored exclusively within Microsoft Azure UK South and are accessible to compliance personnel throughout the retention period.

Client notification requirements

SYSC 10A.1.7 requires that firms inform clients, prior to the provision of services, that telephone conversations and electronic communications will be recorded. This notification must be given before any substantive business conversation takes place — a brief mention at the start of a recorded meeting is not sufficient if no prior written notification has been given.

In practice, this means client-facing documentation (engagement letters, terms of business, initial disclosure documents) should clearly state that meetings may be recorded for regulatory purposes. TakeNote includes model notification language in its onboarding documentation.

The consequence of non-compliance

Failure to comply with SYSC 10A is a breach of FCA rules, exposing the firm to supervisory action, public censure, and — in cases where the missing record relates to a client dispute — a significantly weakened evidential position before the Financial Ombudsman Service. In a disputed advice case, the absence of a contemporaneous meeting record is frequently determinative.

For IFA principals, the call recording obligation is not optional and the five-year retention requirement is not discretionary. TakeNote exists, in part, to make compliance with these requirements the path of least resistance rather than an additional administrative burden.