The naming and shaming saga appears finally to be at an end. The FCA has published its responses to feedback on its proposals to revise its Enforcement Guide (from EG to ENFG effective from 3 June 2025), including proposals for greater transparency about enforcement investigations.
The FCA first published its EG in 2007, and it has since grown significantly. It has added to it when it gets new powers and to provide further information about its enforcement policies, approaches and practices.
The FCA says that it had become unhelpfully inaccessible and, in part, outdated. It consulted on streamlining, focusing, and updating it in 2024. In particular, it included proposals for a new investigation publicity policy to provide a measured increase in investigation transparency under a public interest test. Proposing an increase in transparency reflected a recommendation by the Public Accounts Committee.
Following feedback and other stakeholder engagement, it revised the proposals and published a further consultation in November 2024.
However, industry and trade bodies ( and the House of Lords Treasury Select Committee) continued to have concerns about proposals to name regulated firms under investigation where a public interest test was met. The FCA says that it has carefully considered those concerns, and given the lack of broad consensus, it has decided to further limit the policy changes and confirmed this in a letter to the Treasury Select Committee in March.
In the final version of the revised ENFG, the FCA has kept the exceptional circumstances test in its existing investigation publicity policy for regulated firms. In addition, it has highlighted three instances where that test will no longer apply. In limited circumstances, the FCA will be able to:
- announce and name the subjects of its investigations into suspected unauthorised activity or criminal offences related to unregulated activity.
- reactively confirm that it is investigating in specific circumstances.
- share information on an anonymised basis.
Hopefully, this is a further step on a journey that will address the damage done to the sector's confidence in the FCA and prevent future unnecessary damage to the reputation of firms, staff and the broader financial services sector. It's an interesting issue in light of the fact that the CMA and Ofcom name the companies they are investigating before they have made a decision on any wrongdoing, and it begs the question of whether other regulators should reconsider their policies on naming companies which might be innocent of wrongdoing.
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