The FCA wants to change how it publicises its enforcement investigations to increase the transparency of its enforcement work and its deterrent effect, and to disseminate best practice. Following a review, it also wants to change its Enforcement Guide to reduce duplication and make information about its processes more accessible. The Enforcement Guide, therefore, is to be completely re-drafted. The speech discussed evolving the FCA’s enforcement approach to protect and grow UK markets, with the press release and Consultation explaining the FCA’s desire to improve pace and transparency around enforcement cases.
- In the future the FCA will focus on a streamlined portfolio of cases, aligned to its strategic priorities, where it can deliver the greatest impact.
- The FCA will also close more quickly those cases where no outcome is achievable.
- The moves are a step change from the current process where investigations are only announced in very limited circumstances.
- The key messages from the speech were:
- Firms and the market will benefit from the FCA being clearer about the types of misconduct it thinks warrant a formal investigation, by proactively publishing more information about enforcement investigations, including their opening and progress.
- This includes publishing the identity of the subject of the investigation, if that it is assessed as being in the public interest and if there are no compelling legal or other reasons not to.
- It will also include publishing updates on investigations and announcing that cases have closed where the investigations have not led to regulatory or other action.
- The FCA will continue to keep the fact of its investigations confidential in certain situations, but will decide whether and what to publish on a case-by-case basis, using a new public interest framework and taking all relevant facts and circumstances into account.
- The proposals recognise that there are specific legal considerations when information is published about individuals, so the FCA’s approach to publishing investigation announcements about individuals will be different; the FCA will not usually announce that it is investigating a named individual.
- The FCA’s intention is that an announcement will contain sufficient information for the public interest purposes it has identified in the relevant case, in particular to enable consumers, firms and other relevant market participants to understand the nature of our concerns.
- The FCA must speed up investigations to thwart criminals and send a signal to markets and consumers.
Feedback on the Consultation can be provided, by 16th April 2024, using the online response form, by writing to Enforcement Law and Policy Fat the FCA’s London address, or by email: cp24-2@fca.org.uk.