FCA proposals to publicise enforcement investigations

I recently posted about hot topics in enforcement and covered the regulator's proposal to publicise the fact that a firm has been referred for investigation (popularly referred to as the 'name and shame' proposal). This proposal has generated a significant amount of resistance from trade and industry bodies, lawyers, and politicians (including provoking a controversial intervention by the Chancellor who called on the FCA to reconsider its position). 

The FCA's consultation on its proposals to make changes to the enforcement process is now closed and following the announcement of a general election it looks unlikely that we will see much development in this space at least for a while. 

Following the announcement of the election the FCA will continue with its essential business but there will be no major consultations or rule changes during the election period and while Parliament is dissolved. 

Following the dissolution of Parliament all committees (with limited exceptions) have ceased to exist including the House of Lords Financial Services Regulatory Committee (the ‘Committee’).  On 24 May 2024 the Committee published a letter summarising its concerns about the ‘name and shame’ proposal. These concerns are, in brief, as follows:

• Financial services regulators in similar economies do not have a policy of early publication of enforcement investigations;
• The early publication of enforcement investigations could have adverse implications for investor confidence in the UK financial services markets;
• The early publication of enforcement investigations should not be a priority for the FCA over reducing the length of time it takes to conclude investigations (during all of which time named firms have allegations hanging over them) or international competitiveness; and
• There already exists a power to make the fact of an enforcement investigation public in exceptional circumstances.

I will be watching the progress of this consultation alongside our financial services regulatory team and wait with interest for further updates from the FCA on its future approach to enforcement. Watch this space for further updates. You can also subscribe to our regular financial services update here.

Due to the calling of a General Election on 4 July, Parliament will be dissolved on 30 May 2024. I wanted to write to you to set out some of the Committee’s views on your consultation on publicising enforcement, prior to the dissolution of the Committee.

https://committees.parliament.uk/publications/45091/documents/223458/default/