How can I successfully revoke a ban from the FCA?

FCA bans (or as the regulator calls them, ‘prohibition orders’) prevent an individual from performing certain functions related to regulated activity. Their practical effect is usually to stop the person from working in the financial services sector. 

Imposed by the FCA's regulatory decisions committee, prohibition orders can have devastating consequences and, as such, are much feared by financial services professionals. 

But while bans have a reputation for ending careers, this need not necessarily be the case. In time, it is possible to vary (that is, limit) or even revoke entirely a validly made ban to enable the individual to return to work. 

The law in this area is nuanced and complex, but two recent cases (one successful and one unsuccessful) indicate the parameters of a potentially successful application. 

What are FCA prohibition orders? 

The FCA’s power to prohibit individuals is found in section 56 of the Financial Services and Markets Act 2000.

Under this provision, the agency can prohibit someone from "performing a specified function, any function falling within a specified description or any function".

This may relate to "a specified regulated activity, any regulated activity falling within a specified description or all regulated activities". 

In practice, the FCA sometimes opts for what has become known as a ‘total’ prohibition, which prohibits the sanctioned individual from performing any function in relation to all regulated activity. 

The FCA regularly imposes prohibition orders. At the time of writing, 563 individuals are listed on the Financial Services Register as prohibited. This list does not include individuals like Jes Staley, former Barclays chief executive, who have referred (that is, appealed) an FCA decision to prohibit them to the Upper Tribunal.  

Any application to vary or revoke a ban must address the reoccurrence issue directly.

Section 56 of the FSMA 2000 does not explicitly provide for prohibition orders to be time limited. Because of this, prohibitions are open-ended and endure until the individual in question dies. 

But the FCA can impose a time limit of sorts by indicating when it would be ‘minded’ to revoke the order, if asked to do so, and in the absence of new evidence that the individual is not fit and proper. 

The agency rarely exercises this option. Indeed, this author is not aware of any example of the FCA doing this at all over the past five years. 

Banned individuals are instead left to work out themselves how long to wait until they go back to the FCA to ask for the order to be lifted or varied.