The Chancellor of the Exchequer launched a Treasury review of the fairness, transparency, speed and efficiency of the institutional arrangements and processes for enforcement decision- making at the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) on 6 May. The review continues the government’s focus on strengthening accountability in the financial services industry and will report to the Chancellor by autumn 2014.
For enforcement action to be effective, wrongdoers must believe that they face a real and tangible risk of being held to account and must expect to face meaningful and proportionate sanctions. The general public must also have confidence that wrongdoers will be subject to sanctions and that the enforcement machinery will be robust enough to deliver those sanctions when wrongdoing occurs.
The review will consider the design and governance of the respective institutional arrangements and processes at the regulators, including: the process for referring cases for enforcement investigation; the process for coordinating investigations and enforcement action taken by the FCA and PRA; the operation of the early settlement process; the operation of the post-investigation administrative processes for reaching disciplinary decisions; the arrangements for the subjects of enforcement action to make representations to the regulators; and the arrangements for referring cases to the Upper Tribunal. The review will include a comparison of these arrangements with international practice. It will not consider individual cases or the merits of individual decisions, or the processes of the Upper Tribunal itself. The full terms of reference are reproduced in Annex A.
This paper calls for evidence on the issues within the terms of reference for the review. As part of the evidence gathering process, the review team will also host roundtable discussions in London during June.
2. Statutory framework and enforcement processes
2.1 Statutory objectives
The FCA’s remit under the Financial Services and Markets Act 2000 (FSMA) includes the regulation of standards of conduct in retail and wholesale markets and the prudential supervision of firms not regulated by the PRA.
The FCA’s strategic objective is to ensure that markets within the scope of regulation under FSMA function well. To support this, the FCA currently has three operational objectives1:
- to secure an appropriate degree of protection for consumers
- to protect and enhance the integrity of the UK financial system
- to promote effective competition in the interests of consumers
The PRA is responsible under FSMA for the prudential supervision of banks, building societies, credit unions, insurers and major investment firms.
The PRA’s statutory objectives are:
- to promote the safety and soundness of these dual-regulated firms
- specifically for insurers, to contribute to securing an appropriate degree of protection for policyholders
The PRA is required to advance the first objective primarily by seeking to minimise any adverse effects of firm failure on the UK financial system and to ensure that firms carry on their business in a way that avoids adverse effects on the system. The PRA also has a secondary objective to facilitate effective competition in the markets for services provided by PRA-authorised persons.
The FCA and the PRA exercise enforcement powers within the context of their respective statutory objectives.
2.2 Statutory framework for enforcement
The enforcement powers available to the regulators are wide-ranging and have been debated extensively in Parliament. The aim of enforcement is to support the regulators’ statutory objectives, by changing the behaviour of market participants.
The statutory framework sets parameters for the exercise of enforcement powers. Section 395(1) of FSMA requires the regulators to determine the procedures they will follow when issuing a statutory notice in a disciplinary case. Section 395(2) requires the decision to issue a statutory notice to be taken by a person not directly involved in establishing the evidence on which the decision is based, or by two or more persons who include such a person. The objective of this separation between investigators and decision takers is to provide fairness to those who may be subject to disciplinary action.
Statutory enforcement notices
Three types of statutory notices are issued in the enforcement context:
- Warning Notice (section 387 of FSMA): states the action which the regulator proposes to take giving reasons and the opportunity for representations. Reforms made in the Financial Services Act 2012 make provision for information about certain warning notices to be published at an earlier stage in the process.
- Decision Notice (section 388 of FSMA): states the reasons for the action the regulator has decided to take. The FCA and PRA must publish such information about the matter to which the Decision Notice relates as they think appropriate.
- Final Notice (section 390 of FSMA): states the terms of action being taken. The same publication requirement as for a Decision Notice applies.
Within these constraints, the regulators have considerable flexibility to design their respective administrative processes for the exercise of enforcement powers.
2.3 Current enforcement processes
The FCA and the PRA have both adopted different governance arrangements and procedures to meet the requirements of FSMA.
The FCA’s overall enforcement philosophy is “credible deterrence” and includes a commitment to identify potential problems at an early stage. Its aims in imposing sanctions are set out in its Decision Procedure and Penalties Manual:
The principal purpose of imposing a financial penalty or issuing a public censure is to promote high standards of regulatory and/or market conduct by deterring persons who have committed breaches from committing further breaches, helping to deter other persons from committing similar breaches, and demonstrating generally the benefits of compliant behaviour. Financial penalties and public censures are therefore tools that the FCA may employ to help it to achieve its statutory objectives2.
The FCA’s current administrative enforcement processes take into account changes made by the Financial Services Authority following an internal review published by the FSA in July 20053.
Referrals and investigation
Potential cases for enforcement action are assessed against published referral criteria. Referral decisions are made jointly by the FCA supervisory4 and enforcement functions.
FCA enforcement referral criteria
- Has there been actual or potential consumer loss/detriment?
- Is there evidence of financial crime or risk of financial crime?
- Are there actions or potential breaches that could undermine public confidence in the orderliness of financial markets?
- Are there issues that indicate a widespread problem or weakness at the firm/issuer?
- Is there evidence that the firm/issuer/individual has profited from the action or potential breaches?
- Has the firm/issuer/individual failed to bring the actions or potential breaches to the attention of the FCA?
- Is the issue to be referred relevant to an FCA strategic priority?
- If the issue does not fall within an FCA strategic priority, does the conduct in question make the conduct particularly egregious and presenting a serious risk to one of the FCA’s Objectives?
- What was the reaction of the firm/issuer/individual to the breach?
- Overall, is the use of the enforcement tool likely to further the FCA’s aims and Objectives?
- Does the suspected misconduct involve an overseas jurisdiction? If so, would enforcement action materially further investor protection or market confidence in that jurisdiction?
Not all the criteria will be relevant to every case and additional considerations may apply in other cases, e.g. suspected market misconduct.
Once a decision to refer the case to the enforcement function for investigation has been taken, investigators are appointed and the FCA gives written notice of the investigation to the firm or individual5. The FCA generally holds initial discussions with the firm or individual to provide an indication of the scope of the investigation and its processes. The FCA Enforcement Guide states it will have an “ongoing dialogue” with the subject through the enforcement process6, though unlike the Competition and Markets Authority it does not have a policy of formally offering investigation subjects regular opportunities to meet representatives of the case team.
Following the investigation work, the case is subject to an internal legal review by a lawyer who has not been part of the investigation. If appropriate, the FCA sends a Preliminary Investigation Report (PIR) to the firm or individual, who has a minimum of 28 days to respond. The PIR sets out the facts which the investigators consider relevant and is supplied to the subject of the investigation with the documentary evidence it refers to.
Where the investigators consider no enforcement action is appropriate, they will close the case and communicate this to the subject. If the investigators believe disciplinary action is justified and the case is not settled (see below), they submit papers to the Regulatory Decisions Committee (RDC). The RDC is the decision-maker on the issue of a statutory notice in all contested enforcement cases launched by the FCA. This is an administrative rather than a judicial process and the FCA executive cannot “appeal” the RDC’s decision.
The RDC is a Committee of the FCA Board and comprises a mixture of current and recently retired practitioners and non-practitioners all of whom are appointed on fixed terms to represent the public interest. The FCA selects members with a range of skills and experience which is intended to achieve fairness, enhance the objectivity and balance of the FCA’s decision making and assist in improving consistency across sectors and cases. The RDC has its own legal advisers and support staff. This is intended to ensure that the RDC is independent of the FCA’s enforcement function.
If the RDC decides it is appropriate, it will send out a Warning Notice informing the firm or individual of the action the FCA proposes to take and why. The firm or individual is given the opportunity to make written representations to the RDC and then make oral representations at the meeting. They also have the right, under section 394 of FSMA, to access material relied upon by the RDC in taking its decision, together with any secondary material which might undermine the decision.
After considering the representations and any new information that may have come to light, the RDC makes its decision and, if appropriate, issues a Decision Notice. Analysis of published data shows that in almost all contested disciplinary cases where the RDC issued a Warning Notice it subsequently issued a Decision Notice. This was the outcome in all but one contested disciplinary case closed at this stage in 2012-13 (this is consistent with the trend in earlier years), although in other cases the Decision Notice may have contained changes from the Warning Notice such as reducing or increasing the penalty or narrowing or expanding the range of breaches.
The average life cycle of contested disciplinary cases closed in 2012-13 following a decision by the RDC was 37.8 months from the date of referral to the enforcement function to the date of closure. The length of the RDC element of the process varies significantly depending on the nature and complexity of the case. In larger cases the period between referral to the RDC and issue of the Decision Notice may take six months to a year, or longer.
Cases closed in 2012-13 after referral to the Upper Tribunal (see below) took on average 50.1 months from the date of referral to enforcement to resolution. Almost 40% of cases considered by the RDC are subsequently referred to the Upper Tribunal.
The parties may seek to resolve the issue by having settlement discussions at any stage of the process. Some 58% of cases closed between 2010-11 and 2012-13 were concluded by executive settlement. These cases were resolved on average 19.6 months after referral to enforcement, some 18 months earlier than cases concluded after consideration by the RDC and over 30 months earlier than cases referred to the Upper Tribunal.
Any settlement is subject to a high level legal review by a lawyer who has not been part of the investigation. The FCA operates special decision-making arrangements under which two members of FCA senior management take decisions on FCA settlements. This means that settlement discussions will take place without involving the RDC so that if settlement is not reached the RDC can consider the matter afresh.
The FCA treats settled outcomes in the same way as contested ones: they are regulatory decisions, taken by the FCA, the terms of which are accepted by the firm or individual. The FCA would expect to hold any settlement discussions on the basis that neither FCA staff nor the person concerned would seek to rely against the other on any admissions or statements made if the matter is considered subsequently by the RDC or the Upper Tribunal.
Penalties are discounted on a sliding scale of 30% to 0%, depending on how early in the process settlement is reached. The discount scheme results from the FCA’s view that it is in the public interest for matters to settle (and settle early) if possible, thus obtaining earlier compensation for consumers, saving FCA and industry resources, getting messages out to the market sooner and assisting in a public perception of timely and effective action.
The FCA has a four-stage process for calculating penalty discounts for early settlement:
Stage 1: the period from the commencement of an investigation until the FCA has a sufficient understanding of the nature and gravity of the breach to make a reasonable assessment of the appropriate penalty and the subject of the investigation has been allowed a reasonable opportunity to reach agreement on the amount of the penalty. A 30% penalty discount is applied to settlements reached at this stage.
Stage 2: the period from the end of stage 1 until the expiry of the period for making written representations or, if sooner, the date on which the written representations are sent in response to the giving of a Warning Notice. A 20% discount is applied.
Stage 3: the period from the end of stage 2 until the giving of a Decision Notice. A 10% discount is applied.
Stage 4: the period after the end of stage 3, including proceedings before the Upper Tribunal. No discount is applied.
The PRA’s published enforcement policies (set out in April 20137) have much in common with those of the FCA, but following public consultation the PRA Board implemented investigation and decision making procedures designed to reflect the expectation that the use of enforcement action would be infrequent relative to action by the FCA. This expectation is reflected in the PRA’s ability to outsource enforcement investigations to the FCA (and other third parties) rather than retain a large enforcement staff. This also simplifies coordination in cases where the FCA is investigating the same subject.
There are currently no completed PRA enforcement cases.
The decision as to whether the PRA should give a statutory notice is taken by a decision making committee (DMC). There are four DMCs:
- the PRA Board excluding the FCA Chief Executive Officer
- Supervision, Risk and Policy Committee, composed of the Chief Executive of the PRA and the Deputy Heads and Directors of the PRA
- Supervision and Assessment Panel, composed of the Deputy Heads and Directors of the PRA plus Heads of Department from Banking, Insurance, and/or Policy
- Panel of Heads of Departments and Managers
The more significant the firm and the greater the decision’s anticipated impact (on the firm and on the PRA’s objectives), the more senior the composition of the DMC. All DMC members are PRA employees and part of its executive management structure other than the members of the Board, where some members will be non-executives.
The PRA’s consultation on its approach to enforcement8 explained that enforcement decisions would be taken by executives to “embed the PRA’s forward looking and judgement-led approach”. The PRA explained that the involvement of a broad range of senior PRA staff would help ensure that decisions were made by those who had practical experience of regulating PRA-authorised firms and who understood the potential impact of those decisions.
The make-up of the DMCs is intended to ensure that proposed decisions are subject to robust internal challenge. Wherever possible, the PRA will ensure that the DMC has not been directly involved in establishing the evidence on which a decision will be based. All DMCs will include at least one person who has not been directly involved in establishing the evidence. DMC members who feel they might be conflicted may recuse themselves.
Unlike the FCA’s RDC, the DMC considers a settlement agreement after it has been agreed in principle by PRA staff. The DMC may endorse the proposed settlement or decline it. In the latter case, the DMC may invite PRA staff and the person concerned to enter into further discussions. Penalties are discounted on the same sliding scale as that applied by the FCA.
FSMA places the FCA and the PRA under a duty to co-ordinate and to maintain a memorandum describing how they will comply with that duty. The memorandum of understanding9 provides that in respect of firms, and of groups containing firms regulated by both the FCA and the PRA, “the regulators will determine whether any investigation against a firm or officer/employee should be carried out by the FCA, by the PRA, or jointly, and how any investigation and subsequent proceedings should be co-ordinated”.
The MoU also summarises the requirements in FSMA for each regulator to consult the other in advance of, amongst other things, issuing Warning and Decision Notices. Where separate investigations by both regulators are required, the PRA and the FCA must decide cases and any consequential disciplinary actions separately, even if both investigations are conducted by FCA staff.
2.4 Upper Tribunal
Following the issue of a Decision Notice by the RDC (in the case of the FCA) and the DMC (in the case of the PRA) the firm or individual concerned may refer the matter to the Upper Tribunal (Tax and Chancery Chamber). This is not an appeal: rather the Tribunal considers the matter afresh and decides what the appropriate action is for the FCA or PRA to take. Most referrals to the Upper Tribunal are decided following an oral hearing. Hearings are held in public unless the judge directs otherwise and can involve the examination of witnesses and the disclosure of information. Judgements made by the Upper Tribunal may be appealed to the Court of Appeal on a point of law.
2.5 International comparisons
Financial services regulators in other jurisdictions also face the challenge of delivering fair and effective enforcement processes. The review will consider what lessons might be learned from practice in other jurisdictions.
3. Issues for discussion
This chapter invites views on the overall effectiveness of current enforcement decision making processes at the regulators. It then looks at each of the key decision points in the current enforcement processes and invites views on whether the processes and supporting institutional arrangements deliver an appropriate balance between fairness, transparency, speed and efficiency. It also calls for evidence to support any proposals to amend the current enforcement model.
There is much information in the public domain about the FCA’s enforcement processes and analysis of enforcement activity. The PRA has published enforcement policies but there are currently no completed enforcement cases. There is therefore less evidence on which to base responses to the questions posed in this chapter. Respondents are invited to say whether any points they make or conclusions they draw apply to both the PRA and the FCA.
The objective of enforcement action is to deter wrongdoers and encourage improved compliance. To deliver this objective, wrongdoers (whether they are firms or individuals) must believe that they face a real and tangible risk of being held to account. They must also expect to face meaningful and proportionate sanctions. The general public must also have confidence that wrongdoers will be subject to sanctions.
The PRA has said10 that the intention in deploying disciplinary powers might include:
reinforcing the PRA’s objectives and priorities; changing, and promoting high standards of, regulatory behaviour; the need to signal to a firm, and to the regulated community more widely, about the circumstances in which the PRA considers a firm’s behaviour to be unacceptable; and deterring future misconduct.
The profile of enforcement action has risen in recent years with an exponential increase in the value of fines levied. The total value of fines increased from £33.6 million in 2009-10 to £432.2 million in 2012-13. There has also been a greater focus on taking action against senior individuals.
Do current enforcement processes and supporting institutional arrangements provide credible deterrence across the spectrum of firms and individuals potentially subject to the exercise of enforcement powers by the regulators? If not, what is the impediment to credible deterrence and where does it arise?
3.3 Referral of cases
The regulators’ respective statutory objectives reflect the integration of rulemaking, supervision and enforcement functions in their design. Under this model, the decision to refer a case from the supervision function to the enforcement function should be assessed in the context of the delivery of statutory objectives.
This holistic approach should score well against an efficiency test, but real or perceived fairness and transparency might not be secured if the referral process was either flawed or not well understood. The FCA seeks to deliver fairness and transparency by publishing and applying enforcement referral criteria. The PRA has not published referral criteria to date.
Are the criteria for referring a case from the FCA supervisory function to the enforcement function clear and used appropriately? Are all key criteria identified? If not, what improvements could be made? Should the FCA give certain factors more weight than others?
Should the PRA say more publically about its enforcement processes? In particular, should the PRA publish enforcement referral criteria?
3.4 Coordinating investigations and enforcement action
Securing “effective coordination between the enforcement processes of the prudential and conduct regulators” was one of four challenges for the new regulators in the field of enforcement identified by the Parliamentary Commission on Banking Standards (PCBS)11.
The MoU between the FCA and the PRA on co-ordination and co-operation requires the regulators to work closely together on enforcement cases. Nevertheless, concerns about how this would work in practice were evident amongst respondents to the PRA’s consultation on its policy and procedure regarding the exercise of aspects of its disciplinary and other enforcement powers.
Are the enforcement sections of the FCA/PRA MoU being applied in practice? If not, please give specific examples of implementation deficiencies.
Is the MoU the most effective way to deliver effective co-ordination? If not, what alternative mechanism should be developed for enforcement cases?
Do any suggestions for improvement or reform relate to the referral stage, the investigation stage, the decision making stage or all three stages?
3.5 Making representations
Individuals and firms have the opportunity to make representations at various stages in the enforcement processes operated by the FCA and the PRA. The first formal opportunity to do so is at the Preliminary Investigation Report (PIR) stage, where one is issued, but before that the subject of the investigation is made aware of the scope of the investigation and will usually be interviewed.
The opportunities to make representations and the timescales for doing so are:
- PIR: 28 days to make representations with the option to request extra time
- Warning Notice: as decided by the RDC/DMC, with the option to request extra time; it is not unusual for the oral representations meeting to be held several months after the Warning Notice is issued
Once a Decision Notice has been issued, individuals and firms have 28 days to make a referral to the Upper Tribunal.
Feedback published by the FSA in 2013 demonstrated that some firms and individuals felt that the regulator had already made their decision before the investigation stage had begun. The process of investigation and decision is a testing time for firms and particularly for individuals. The decision to grant extra time for representations to be made is at the discretion of the regulator.
Is the scope of investigations made sufficiently clear to those subject to them?
Should the regulators offer the opportunity for regular progress meetings during the investigation?
Are there sufficient opportunities for individuals and firms to make representations?
Does the time allotted for making representations strike the right balance between fairness and speed?
Should the regulators publish factors they will take into account when considering whether to grant extra time?
3.6 Settlement process
Both the FCA and the PRA encourage early settlement. This option is taken more often by firms than by individuals. Some firms which gave feedback after going through the enforcement process expressed concern about the amount of evidence the FSA was willing to share with firms and individuals before settlement. The firms noted that this made it difficult for them to assess whether or not the allegations could be substantiated by the evidence.
The PRA’s settlement policy is untested. All respondents to the PRA’s consultation on its approach to enforcement supported proposals for a settlement policy. The DMC will consider a settlement agreement submitted by PRA investigators. The process is intended to lead to a proportionate penalty given the circumstances of each case. A programme of discounts similar to that operated by the FCA will apply.
Settlements are faster and more efficient than exhausting the decision making process. They often deliver fairness to consumers by providing earlier opportunity for redress. Is it appropriate to give a discount for early settlement? Should there be any types of case where such discounts are not available? Could the settlement process be changed to offer clearer incentives to settle after the time limit for receiving a 30% discount has expired? Do you agree with the incentives given?
Do the current approaches to settlement also deliver fairness to firms and individuals subject to enforcement action, bearing in mind that settlement is a voluntary process? If not, what improvements could be made better to balance the interests of all parties?
3.7 Decision making process
A perceived lack of independence in the disciplinary decision making process at the regulators has been a familiar theme. It was raised in 2005 during the FSA’s enforcement process review and again in response to the PRA’s consultation on its approach to enforcement. The issue has also been debated in Parliament.
A clear message received by the FSA during its review was the need to improve levels of awareness about the status, constitution and operation of the RDC. The report noted that it was “easy to fall into the trap” of thinking of the RDC as a tribunal making a judicial determination between two sides, whereas in fact the RDC is part of the regulator and makes decisions on its behalf. The report recommended, “A particularly important point that the FSA needs to continue to explain is the extent to which the RDC is part of FSA but operationally independent of the Executive”.
Following the review, the FSA introduced a number of reforms to increase transparency and separation between investigators and decision-makers which are now given operational effect by the FCA, including:
- disclosing to the subject of the investigation all substantive communications between the enforcement case team and the RDC
- giving the RDC its own dedicated legal advice function
- setting out in decision notices how the RDC has dealt with the key points made by the subject of enforcement action
The PRA’s executive-based approach is intended to ensure that disciplinary decisions are made by those with practical experience of regulating PRA-authorised firms and who understand the potential impact of those decisions. All DMCs will include at least one person who has not been directly involved in establishing the evidence.
The PCBS identified retaining “the independence and separation of the enforcement function” as one of the challenges facing the regulators.
The composition of the RDC and the fairness of the regulators’ decision making processes to firms and individuals have also been raised as issues.
Since the changes made by the FSA in 2005, FCA executives make early settlement decisions and the RDC takes the decisions on the issue of statutory notices in contested cases. How does this compare with the PRA’s executive-based approach? Could further changes be applied to either regulator’s processes to improve the balance between fairness, transparency, speed and efficiency?
Should the composition of the RDC/DMC be changed? If so, why and how?
Almost 40% of cases considered by the RDC are subsequently referred to the Upper Tribunal. Does the RDC process duplicate too much the Tribunal process for firms and individuals who are likely to refer a Decision Notice to the Tribunal? What changes could be made to make the process more proportionate and/or efficient, consistent with the delivery of the regulatory objectives?
3.8 International comparisons
The review will undertake a comparative analysis of arrangements and processes for enforcement decision-making in other jurisdictions.
What more could the UK learn from international practice?
Are there specific features of other jurisdictions’ enforcement processes which might be introduced in the UK?
4. Annex A: Terms of reference
The Chancellor of the Exchequer has set the following terms of reference for the review:
To review the fairness, transparency, speed and efficiency (“the principles”) of the processes for enforcement decision-making at the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA).
The review will consider the design and governance of the institutional arrangements and processes at the regulators against the principles and taking account of the respective roles of the FCA and the PRA, as well as the relationship between these processes and the Upper Tribunal. In particular, the review will consider the key decision points in relation to:
- the interface between supervision and enforcement, particularly the decision making process for referring cases for enforcement investigation and possible action
- the approach adopted by the regulators to co-ordinating investigations and enforcement action
- the arrangements for the subjects of enforcement action to understand the case against them and to make representations to the regulators
- the operation of the settlement process, including the incentives for early settlement
- the operation of the respective post-investigation administrative processes for reaching disciplinary decisions in the FCA and PRA and including: the composition and accountability of the decision making committees; the degree of separation of the decision making process from the investigatory process; and the arrangements for referring cases to the Upper Tribunal
The review will also consider how the above arrangements compare with international practice. The review will not consider the merits of individual decisions to take or not to take enforcement action.
4.3 Process and timing
The review will consult publicly and report to the Chancellor of the Exchequer by autumn 2014.
Section 2 of the Financial Services (Banking Reform) Act 2013 also makes modifications to the operational objectives of the FCA. This section is not yet in force. ↩
Decision Procedure and Penalties Manual, paragraph 6.1.2 ↩
References to the FCA’s supervisory function include its Markets Division and other areas that refer cases to enforcement. ↩
Written notice must be given under section 170 of FSMA stating the provision(s) under which investigators are appointed and the reason for the appointment. Exceptions to this requirement include insider dealing and market abuse investigations, or where the FCA believes the notice would be likely to result in the investigation being frustrated. ↩
Enforcement Guide, paragraph 4.13 ↩
The Bank of England, Prudential Regulation Authority – The PRA’s approach to enforcement: consultation on proposed statutory statements of policy and procedure ↩