The Home Office’s new “early ILR concession”
On 26 October 2016, the FCA launched a consultation on its Mission, a document intended to inform the FCA's strategy and day-to-day work over the coming years.
On the Enforcement front, consistency rather than revolution is the theme emerging from the document. The clear objective of new CEO Andrew Bailey is to manage public and political expectations of what the FCA can achieve with its inevitably limited resources.
The strategy remains that enforcement action will only ensue in a relatively small and focused number of cases where action can be justified and will serve as a deterrent. This is not new: it is what the FCA does now. The purpose of restating it is no doubt to counter the constant criticism the organisation faces for not taking forward particular cases.
It is proposed that the term "referral to Enforcement" be replaced by a more neutral phrase to reflect the fact it is merely a stage of the investigation process: not all referrals will lead to enforcement action. While it may sound trivial, this is a positive step which underlines that there can be value in the investigation itself, whatever the outcome.
Finally, the Mission raises questions about the compatibility of the FCA practice of issuing private warnings with the organisation's overall transparency objectives. Private warnings are a non-statutory tool used to put a person on notice that a breach may have occurred but, for whatever reason, formal action will not be taken on this occasion. Use of such warnings is currently fairly limited but, in our view, to significantly curtail their use would be a mistake. Private warnings do have a place and value within the Enforcement tool-kit. If there are transparency concerns, then perhaps there should be a concerted effort to promote an understanding of the role and purpose of these warnings rather than seeking to limit their use.
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