Second Financial Conduct Authority Consultation on Proposals for the Publication of Enforcement Measures

The U.K. Financial Conduct Authority has published its second consultation on a proposed new approach to publicising its enforcement investigations and changes to its Enforcement Guide. The FCA first consulted on these changes in February. However, following feedback that raised significant concerns, the FCA has published a further consultation which re-drafts the original proposals to try and address the concerns raised and give more clarity on how they would work in practice. Responses may be submitted until February 17, 2025 and the FCA board plans to decide on the proposals in Q1 2025.

The FCA is now proposing:

• that the impact of an announcement on the relevant firm would form part of its public interest test and be central to its consideration of whether to announce an investigation and name the firm;
• to give the relevant firm a copy of any draft announcement and 10 business days' notice to make their representations, with a further two business days' notice of publication of any announcement if the FCA decides to proceed after taking these representations into account. Originally, they had proposed only one day. The new proposed period is also intended to give firms time to consider whether they want, or are required, to make an announcement themselves;
• that the potential for an announcement to seriously disrupt public confidence in the financial system or the market should be a new factor in the public interest test; and
• the FCA will not make proactive announcements of investigations that are on-going when the proposals come into effect, although it may reactively confirm on-going investigations that are already in the public domain, where this confirmation is in the public interest.

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