FCA publicity consultation: Back to where we started?

The FCA yesterday announced that it will not be pursuing much of its controversial proposed policy on publicising investigations (which we have previously blogged on, here, here, here, here and here).

The FCA’s 11 March 2025 letter to the Treasury Select Committee explains that the FCA has listened to the consensus of consultation feedback and, to its credit, decided to amend its approach. It is very unusual for the FCA to change its position on a proposed policy so radically in response to a consultation, which is a good indication of the strength of feeling around this particular proposal. 

The FCA will therefore now not proceed with proposals to publicise investigations into regulated firms carrying out authorised activities, on the basis of a public interest test. Instead, the existing exceptional circumstances test will continue to apply, to determine if the FCA should publicise investigations in such cases.

The FCA does indicate that it will proceed with proposals in relation to:

• publishing more details on an anonymous basis, for example, via a regular bulletin such as Enforcement Watch – which has been suggested in consultation responses as a potentially useful tool to meet the FCA’s stated objectives of increasing transparency and improving market/industry education;
• reactively confirming investigations which are officially announced by others – which is (assuming that such announcements have previously been made by the investigation subject itself or another regulator, to the same degree) unlikely to be controversial; and
• “public notifications” as to “the potentially unlawful activities of unregulated firms and regulated firms operating outside the regulatory perimeter, where doing so protects consumers or furthers the investigation”. The FCA explains in this regard that “[a]round 60% of our investigations into firms relate to activities of unregulated firms, which are often frauds involving significant consumer harm, where we have no supervisory tools available”.

Next steps

The announcement will be a welcome development for regulated firms facing investigations into authorised activities. It will, however, be interesting to see how the FCA applies the exceptional circumstances test, going forwards. The FCA has previously indicated that it had itself interpreted the threshold for this standard as being a ‘high bar’ (thus, in part, justifying the need for the proposals in the first place). 

For unregulated firms and regulated firms thinking about other situations, it will also be necessary better to understand and consider the detail of the FCA’s remaining proposals, and in particular which investigations may still be publicised, and on what precise basis.

The FCA plans to engage actively with stakeholders before publishing a final policy statement, and updated Enforcement Guide, by the end of June.