Listing regime – FCA’s latest proposals for transparency around enforcement decisions

The FCA has published a further consultation paper (CP24/2, Part 2) on its proposals to increase transparency around enforcement and investigations.

The paper follows the FCA’s initial proposals contained in CP24/2, published in February 2024, where it proposed that it would announce publicly when it has opened an investigation and give updates as it progresses (see our blog post here).

Significant concerns were raised in relation to the original consultation and this second phase of the consultation is intended to address some of those concerns.

The FCA is proposing four key changes to its original proposals:

• the potential negative impact on a firm would be explicitly considered as part of the assessment of whether disclosure would be in the public interest;
• firms would be given 10 days’ notice ahead of any announcement being made, rather than the one day originally consulted on. During this period, firms could make representations. If the FCA decides to announce, firms would then have an additional two business days' notice before it is published;
• the potential for an announcement to seriously disrupt public confidence in the financial system or the market would also be included as a new factor in the public interest test; and
• the FCA would not announce investigations which began before any changes to the policy come into effect (but it may reactively confirm investigations which are already in the public domain, where this is in the public interest).

The FCA says that if the proposals were to come into effect, they would only lead to additional proactive announcements of investigations in a very small number of cases.

The FCA says it continues to welcome feedback on its proposals and asks for comments via an online questionnaire by 17 February 2025. It aims to make a final decision in the first quarter of 2025.