Under FSMA 2000 (as amended for the new FCA), the regulator is obliged to have regard in all its activities to the principle of transparency. Accordingly, in March this year, the FCA published a Discussion Paper regarding steps it proposes to take to improve its own transparency (said to be at the heart of the new organisation), which included a proposal in relation to enforcement activity. The proposal was to use the pre-existing Annual Enforcement Performance Accounts (the latest of which is covered elsewhere in this issue, "Enforcement Annual Performance Account 2012/13") to publish further additional information about enforcement activity. This included further information about:
- why certain topics were being focussed on for thematic enforcement activity;
- how resources were being allocated within enforcement and some of the delays; and
- difficulties encountered by FCA Enforcement.
The FCA has now published its response to the Discussion Paper and the replies received, and its proposal remains unchanged. Unsurprisingly, most respondents were in favour of the proposed increase in transparency of FCA Enforcement activity. In particular, the FCA said that respondents were interested in the kind of information that would enable them to understand the FCA's Enforcement priorities and the reasons behind its decisions. However, consumer organisations felt that the proposals did not go far enough. They wanted the identities of firms and individuals subject to enforcement activity to be published. Whilst the FCA said that it would continue to consider all feedback when compiling future Annual Enforcement Performance Accounts, it seems highly unlikely that this response will be adopted (though on a similar theme see the FCA's new power to publish details relating to Warning Notices and the consultation regarding the process to be followed, covered in Enforcement Watch 9 "FCA consults on procedure for publishing information about Warning Notices").
The Enforcement Annual Performance Account 2012/13 has been prepared with the FCA's finalised policy in mind. The FCA says that it will continue to consider respondents' feedback when preparing future Performance Accounts. We shall have to see what additional types of information may be disclosed in the future.