On Friday 26th April, the FCA made a move that sparked both support and controversy (but mainly controversy) by defending its 'name and shame' plans. As no doubt you are already aware, the FCA is considering a significant shift in its approach to enforcement investigations. The proposal? To publicly name companies under investigation at an earlier stage and with greater frequency. This move has ignited a vigorous debate, with proponents arguing for increased transparency and deterrence, while opponents warn of potential damage to reputations and competitiveness. To ensure a balanced view, I considered the pros and cons of this proposed approach:
Pros:
Transparency and Deterrence: The FCA contends that greater transparency is essential for maintaining public trust and deterring misconduct. By publicly naming companies under investigation, the FCA aims to send a clear message that regulatory standards will be rigorously enforced. This approach can potentially discourage unethical behaviour and promote compliance within the industry.
Consumer Protection: Publicising investigations can empower consumers to make informed decisions about the companies with which they engage. Awareness of ongoing investigations may prompt consumers to exercise caution or seek alternatives, thereby protecting themselves from potential harm.
Encouraging Reporting: The FCA asserts that naming companies under investigation could encourage individuals with relevant evidence to come forward. Increased transparency may create a more conducive environment for whistleblowers and witnesses to report misconduct, facilitating more effective regulatory oversight.
Market Stability: Contrary to concerns about negative impacts on share prices, the FCA cites evidence suggesting minimal market disruption following public disclosure of investigations. This suggests that the proposed changes may not significantly harm companies' valuations or stability, thereby maintaining market confidence.
Cons:
Reputational Damage: Critics argue that publicising investigations could unfairly tarnish the reputations of companies, particularly if allegations are later proven unfounded. Concerns about reputational damage may deter investment, erode consumer trust, and impede companies' ability to conduct business effectively.
Competitiveness and Attractiveness: Trade bodies warn that the proposed changes could diminish the UK's competitiveness as a financial centre (and if anyone knows me, they will know how vocal I am on this worry!). Fear of public scrutiny may drive companies away from the UK market, seeking jurisdictions with less stringent disclosure requirements, ultimately undermining the country's economic prospects.
Potential for Injustice: There are apprehensions that publicly naming companies under investigation could lead to premature judgment and unfairly penalise innocent parties. Critics argue that the proposed approach lacks nuance and discretion, potentially harming companies that are ultimately found to be blameless.
Regulatory Overreach: Some perceive the FCA's proposal as an overreach of regulatory authority, raising concerns about the balance between regulatory enforcement and market dynamics innovation and investment, advocating for a more measured and proportionate regulatory approach.
Author - Lorraine Mouat - Head of Payment Services