One of the new powers adopted by the FCA is, as explained in our Legal Update in October 2013, the power to issue warning notice statements to regulated entities and individuals. 

Although they have only recently been published, the FCA's first warning notice statements were issued on 28 November 2013. Both refer to individuals (an interest rate submitter at a bank and a manager at a bank) regarding activity undertaken in respect of interest rate benchmark submissions. The behaviour under investigation by the FCA includes colluding with traders at another panel bank and failing to take steps to address the absence of systems or controls governing the procedures for making interest rate benchmark submissions.

As discussed in October, the FCA has issued a policy statement on publishing warning notice statements. The stated reasons for publishing warning notice statements include highlighting at an earlier stage the types of behaviour the FCA considers unacceptable and introducing more openness into the regulatory process. While there has apparently been a delay in publicising warning notices issued in November, the statements still give an early indication of the types of behaviour currently being investigated by the FCA ahead of any final enforcement action (if any) being taken.

Following the presumption of anonymity for individuals on fairness grounds included in its policy, it is interesting to note that the FCA appears to have taken particular care to ensure the statements strike a balance between providing enough detail to be informative, while preventing identification of the individuals or banks.

However, perhaps the most important effect of the publication of the warning notice statements for the FCA is a PR effect. The statements keep in the public eye the regulatory activity being undertaken and, specifically, demonstrate that action is being taken at an individual level. This is in line with the FCA’s wish to focus on the responsibility of individuals.