FSLA has submitted a response to the FCA’s Consultation Paper CP24/2 titled “Our Enforcement Guide and publicising enforcement investigations – a new approach”. FSLA considers that the FCA’s proposal to identify investigation subjects (whether firms or individuals) at the commencement of an enforcement investigation where it is in the public interest to do so, may not deliver on the FCA’s stated objectives namely: to build trust and show the public that the FCA is “on the case”; to educate and deter by being clearer about the types of misconduct which will warrant a formal investigation; and to improve accountability of the FCA by shining a light on the efficiency and pace of its investigations. Our response examines the significant legal and practical challenges which the FCA may face as a result of such a fundamental policy shift and explores some alternative approaches which could enable the FCA to achieve its aims in a proportionate manner which balances the public interest and consumer protection with the irreparable harm which could be caused to investigation subjects (especially where over 60% of investigations are closed with no enforcement action being taken).
Please note: The response as submitted on behalf of FSLA and is intended to capture the overall weight of contributions received from its membership, but the views, thoughts, and opinions expressed in this response belong to the individual authors of this paper (and not for example the author’s employer, chambers, organisation, committee or other group or individual members of FSLA). For the avoidance of doubt, this paper does not contain the views of or purport to make any representations on behalf of any FSLA members who are employed by the FCA, the Bank of England (including the Prudential Regulatory Authority) or any other regulatory bodies.