UK FCA Enforcement: Reading the tea leaves

Frustratingly, the FCA's new enforcement leadership has been slow to share their vision for their function.  In the absence of public pronouncements from them directly, we're relying on others to spill the tea. And few sources of what the FCA's enforcement leaders might be planning to get up to are better than their own line management!

The UK FCA's Chair Ashley Alder and CEO Nikhil Rathi spent the morning of 12 December with the Treasury Committee.  A few points relating to enforcement came out of the hearing.

The FCA is currently looking at the way the enforcement division operates – including in terms of speed and also triaging cases.  It sounds like the FCA is heeding Upper Tribunal Judge Herrington's rebuke in the Seiler case, where he challenged whether it is appropriate for the FCA to 'continue with an investigation which it does not have the resources to complete within a reasonable period of time'.

It was suggested the FCA is (at least considering) using some variety of AI in relation to e-data review in enforcement cases.  Given even the Courts embraced this ages ago, the FCA certainly isn't going to win any awards for innovation in this regard. Let's hope the adoption of technological change in other areas of the FCA is a bit pacier!

It sounded like they are not rushing to enforce in relation to the Consumer Duty with Mr Rathi saying that enforcement will come 'some way down the track'.  Allowing the Duty to 'settle in' is sensible but it doesn't quite fit with the impression given in the FCA's Business Plan 2023/24 where it described an 'additional Interventions team within Enforcement [which] will be ready from day one of the duty coming into force to enable rapid action where immediate consumer harm is detected', so firms perhaps ought not depend on this.