FCA proposes to publicise commencement of investigations against firms and individuals

• The Financial Conduct Authority (“FCA”) has shared proposals to publicise the commencement, progress and closure of its investigations into firms and in more limited circumstances individuals[1]. Such publicity includes naming the subject of the investigation and publishing updates. This will be a new approach. 
• Currently, the FCA publishes little information about investigations it has opened and their progress unless and until they result in censures or penalties.
• Whilst it is subject to a public interest test on a case-by-case basis and the FCA has stated that there is no presumption in favour of disclosure[2], it seems that generally the FCA will announce the commencement investigation into a firm unless there is a compelling reason not to do so. 
• The prospect of an adverse impact on the subject of the FCA’s announcement of an investigation will have no effect on the FCA’s decision whether or not to make an announcement.
• The FCA has stated that it will not generally announce when it has opened an investigation into a named individual given the legal considerations regarding information about individuals. 
• An announcement will contain sufficient information to enable consumers, firms and other market participants to understand the nature of the FCA’s concerns, including a summary of the suspected breach, failing or other misconduct. Firms and individuals will normally be given one business day’s advance notice, but the FCA can give no notice.
• Market participants and trade bodies have raised concerns and criticised these new FCA proposals.
• In this context, a firm is any entity such as a company, trust or financial institution that is within the FCA’s regulatory oversight. This includes overseas entities that carry out business in the UK.

FCA’s purpose

The FCA considers that there will be significant benefits from the publication of the commencement and progress of investigations into firms and individuals, including:

• Reassuring to the public that the FCA is transparent[3], taking appropriate and prompt action, and is actively monitoring and investigating firms and individuals.
• Publication of investigations will demonstrate to market participants and the public the types of behaviour that the FCA considers warrants FCA investigation. It will be a deterrent to incorrect behaviour. It will also encourage early whistleblowing.
• Other firms and individuals in the market can monitor and if appropriate improve their own standard of behaviour with a greater understanding of what the FCA considers to be best practice.

Public interest test

The FCA must be satisfied that an announcement or update will be in the public interest. This public interest test covers a broad range of factors including:

• Customer or investor protection;
• Helping the FCA’s investigation into a firm (e.g. by encouraging whistleblowers to come forward);
• Addressing public concern or speculation;
• Reassurance that the FCA is acting;
• Deterring future breaches; and
• Advancing the FCA’s statutory objectives (e.g. promoting market confidence)

The FCA has provided non-exhaustive examples of what it considers would not be in the public interest: (i) if there is an adverse impact the FCA’s investigation or other regulatory or criminal investigations; (ii) consumer interests; (iii) stability of the UK financial system or (iv) ability of the FCA to carry out its functions.

The FCA will not take into consideration any potential adverse impact on the firms or individuals that are the subject of the FCA’s investigation[4].

Confidential information

• There is no current specific restriction on the FCA publishing the fact that it is conducting an investigation. These proposals do not amount to a change in law.
• The FCA is obliged to protect confidential information that it receives (subject to exceptions)[5], follow due process before publishing any public censure statement[6] and consider the requirements of the other legislation and prohibitions on processing personal data.[7]

Practical considerations and market response

Certain industry bodies[8] have publicised their response in which they state that they do not agree with the FCA’s proposals set out in the FCA’s Consultation Paper. These concerns include: 

• the vague and overly broad criteria of the public interest test and resultant potential for confusion; 
• the legal basis of the FCA’s framework is unclear;
• unjustifiable and inappropriate failure by the FCA to take into consideration the negative publicity on the subject of the investigation, including on a subject’s share price, reputational damage and on its contractual terms; 
• generally no other jurisdiction’s regulator takes similar action, and so there is a risk that the UK market will be less attractive;
• no comparable industry sector’s regulator takes similar action;
• there is a real risk of a presumption of culpability at an announcement of a commencement of investigation;
• subsequent exacerbation of adverse consequences by immediate and 24-hour press reporting and potential social media misinformation;
• a lack testing of the implications;
• an announcement may have an adverse impact on a firm’s relationships with other regulators or public bodies;
• difficulty in managing costs if an investigation leads to third party claims that are defended; and
• whilst individuals are less likely to be named, many of the concerns listed apply similarly to them.

Such criticisms are made in the context that a high proportion of FCA investigations (67%) currently end with no further action taken. At closure of an investigation, reputational damage and other adverse consequences may have already occurred, such as a termination of or an adverse pause in a business relationship[9].

The FCA has responded to many of these concerns in its letter dated 25 April 2024 to the Financial Services Regulation Committee (a House of Lords Select Committee)[10]. The FCA’s consultation has closed. The Financial Services Regulation Committee has invited written submissions to its inquiry into the FCA’s proposals by 4 June 2024.

Next Steps

Firms and individuals can take actions to mitigate the risks that follow an investigation announcement. These actions might include close attention being paid to contractual terms to ensure that no termination right is caused by such an announcement; establishing a policy and procedure to respond to the FCA co-operatively and effectively reassure shareholders and the market; and considering obtaining internal and/external reports and other evidence on its behaviour and organisation that can help the FCA conclude its investigation promptly the minimize heightened risks of a protracted investigation and FCA updates.

If you would like further information, please contact Jeremy Ladyman or Garon Anthony.

[1] FCA Consultation Paper CP24/2 (the “Consultation Paper”): CP24/2: Our Enforcement Guide and publicising enforcement investigations - a new approach | FCA . The Consultation Paper also contains a proposal to simplify and update the Enforcement Guidance in the FCA Handbook.

[2] Letter dated 25 April 2024 from the FCA to Financial Services Regulation Committee: Letter from Therese Chambers and Steve Smart, Joint Executive Directors of Enforcement and Market Oversight at the FCA, to Lord Forsyth of Drumlean, responding to the Committee’s letter of 18 April 2024 regarding consultation CP24/2 on publicising enforcement investigations (25 April 2024) (parliament.uk)

[3] The FCA’s transparency obligations are set out in FSMA and the Legislative and Regulatory Reform Act 2006, and are supplemented by the FCA’s Code of Practice on Regulatory and Transparency Framework.

[4] Paragraph 3.8 and 3.28 (pages 14 and 17) of the Consultation Paper.

[5] Section 348 of FSMA

[6] Section 205 of FSMA

[7] Such as the Data Protection Act 2018, the UK General Data Protection Regulation (UK GDPR) and the European Convention on Human Rights.

[8] 240430_AFME ISDA response to CP24_2 Final.pdf

[9] Similar issues have also been raised by the Financial Services Regulation Committee: Letter from Lord Forsyth of Drumlean to Nikhil Rathi regarding the FCA's consultation CP24-2 on publicising enforcement investigations (parliament.uk)

[10] Letter from Therese Chambers and Steve Smart, Joint Executive Directors of Enforcement and Market Oversight at the FCA, to Lord Forsyth of Drumlean, responding to the Committee’s letter of 18 April 2024 regarding consultation CP24/2 on publicising enforcement investigations (25 April 2024) (parliament.uk)