Concerns raised over changes to FCA decision making

twitter-iconfacebook-iconlinkedin-iconmail-iconprint-icon
Search supported by
Concerns raised over changes to FCA decision making

The Financial Conduct Authority is proposing changes to its decision-making process to enable it to make faster and more effective decisions, but some have warned about the side effects of this. 

The FCA is consulting on moving some decision-making from its Regulatory Decisions Committee (RDC) to its authorisations, supervision and enforcement divisions.

This means it will take away responsibility at board level and redistribute it to senior members of FCA staff close to the matters.

It said the changes will help improve how it tackles firms and individuals who do not meet the required standards and allow it to move more quickly to stop and prevent harm faster.

And while many have welcomed the proposals some are more sceptical of what they would allow the regulator to do.

Imogen Makin, head of financial services regulatory investigations at DWF, said: "We, and the firms and individuals we represent, would welcome swifter and more effective FCA action against scammers and unauthorised businesses on the regulatory perimeter, but these plans could be a recipe for the exercise of more arbitrary – and potentially excessive - power in relation to authorised firms struggling with compliance issues and individuals who merely made mistakes.

"Whilst the RDC is not a completely independent check on FCA powers, it does drive due process, which gives us a chance to make representations.”

Makin warned of situations where the regulator might take "unreasonably harsh, draconian action" which could have irreversible consequences for businesses and their senior managers. 

“Reference to giving 'greater responsibility for decisions to senior members of FCA staff' suggests this risk will only increase. The list of decisions that could be made by FCA staff is 'liberty and livelihood' stuff."

Likewise, Pippa Tasker, a financial services partner with law firm CMS, said: “The combination of Nikhil Rathi’s statement that he wants to build a more assertive regulator and ‘an organisation that tests its powers to the limit’, with the removal of the objective decision maker from the critical authorisation and permissions processes, could create a dangerous cocktail for firms.”

The FCA is embarking on a transformation programme and has previously said it wants to be a more innovative, assertive and adaptive regulator.

In today's consultation the decisions it wants to hand to FCA staff included:

  • imposing a requirement on a firm or varying its permissions by limiting or removing certain types of business;
  • making a final decision in relation to a firm’s application for authorisation or an individual’s approval that has been challenged;
  • The decision to take action, after the action is challenged by the firm, in removing a firm’s permissions because a firm does not meet the FCA’s regulatory requirements;
  • the decision to start commencing civil and/or criminal proceedings.

Certain decisions will be retained by the RDC including in relation to contentious enforcement cases, where the FCA is proposing a disciplinary sanction or seeking to impose a prohibition order.

Emily Shepperd, executive director of authorisations at the FCA, said: “The proposed changes will allow us to be more efficient by making best use of the breadth of expertise across the FCA and by putting certain decisions back to the subject matter experts. 

“As a result of that there will be greater accountability in those areas. The changes will help to increase the speed and reduce the regulatory costs of dealing with firms and individuals that fail to meet the FCA standards.”

Shepherd added: “As part of our transformation we will continue to take a fresh approach to tackle firms and individuals who do not meet the required standards. As part of this, we aim to become a forward looking, proactive regulator - one that is tough, assertive, confident, decisive and agile.”

Industry support

Adviser trade body Pimfa welcomed the FCA’s proposals, arguing they should make it a more “agile and proactive regulator.”

Simon Harrington, senior policy adviser at Pimfa, said: "We have been very clear – publicly and privately – that thriving retail markets depend on effective and proactive supervision of firms, which are either willingly or unknowingly introducing harm into the market.

"We believe that the proposals set out will make the regulator more efficient in its decision making and, provided that they are accompanied by improvements in identifying harm in the first place, lead to better outcomes for consumers."

David Savage, partner and head of financial crime at Stewarts, agreed as he said that in the past the FCA had been criticised for being reactive and taking too long to investigate wrongdoing in the regulated sector.  

“The proposed changes will be seen by many as a welcome development, particularly in circumstances in which the UK is now forging its own regulatory path,” he said. 

“By proposing to empower the authorisations, supervision and enforcement divisions to make on the ground decisions, it is to be hoped that the regulator will be proactive and streamlined, with authorisations and enforcement decisions communicated more promptly.  

“That said, in order for the proposals to work, the subject matter experts in the various divisions must feel supported within the FCA hierarchy and consistency of decision making will need to be scrutinised. I look forward to seeing the FCA take on a more forward looking and aggressive role.”

Ian Mason, partner and head of UK financial services regulatory team at law firm Gowling WLG, added the FCA's proposals represented a significant move towards decision-making on key regulatory issues by FCA executives, including decisions on authorisation. 

“Contentious enforcement decisions will still be taken by the RDC, and there will still be a right to challenge FCA decisions at the independent tribunal."

The consultation closes on September 17, 2021. Following this the FCA will consider the feedback and aims to publish a policy statement in November 2021.

sonia.rach@ft.com

What do you think about the issues raised by this story? Email us on FTAletters@ft.com to let us know