Regulatory enforcement mini-series part 1: Will the FCA change its mind on its proposal to 'name and shame' firms?

Ashurst Legal Outlook Podcast

In the first of a new mini-series on regulatory enforcement, we tackle an issue that is prompting much debate in the UK financial services industry: the FCA’s proposal to begin publicly naming firms right at the outset of investigations.

This episode marks the beginning of a new mini-series exploring new approaches from the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA). In each episode, we explore concerns about how the regulators are conducting investigations and we suggest what they might do differently to ensure that they act both fairly and effectively.

In episode one, Ashurst colleagues Nathan Willmott, Adam Jamieson and Eleanor Robinson discuss the proposal for the FCA to name and shame firms at the start of investigations, focusing principally on the reactions of industry and politicians to its recent consultation. Together, the trio highlight some unintended consequences and repercussions if the FCA proceeds with this approach, including the potential undermining of consumer trust, along with the difficulties meeting its aspirations for transparency and accountability, and speculate on the likelihood of the FCA doing a u-turn on this aspect of its proposals.

The trio discuss the comments from the House of Lords Financial Services Regulation Committee and the FCA's arguments in response.

Nathan and Adam explore the FCA's motivations for proposing the "naming and shaming" policy and consider the arguments made around consumer protection. Eleanor comments that the FCA are "in between a rock and a hard place" in trying to navigate a position which offers politicians and the public the information on ongoing investigations which they frequently seek, whilst ensuring that the FCA does not put growth and competitiveness of UK at risk through being too transparent about who it is investigating. Adam comments, "I do think that there was a growing momentum around the time that this letter was published that actually perhaps the FCA may change their mind in relation to the proposal. Then when this landed, I think we've seen the press, lawyers, industry bodies all pushing quite hard in unison and believing, in fact, that the FCA may change its position."

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The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions.

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1. Regulatory enforcement mini-series part 1: Will the FCA change its mind on its proposal to 'name and shame' firms? (00:00:00)

2. Marker 01 (00:30:07)