The FCA has stated in its Business Plan 2021/22 that it will consult on "proposals to streamline decisions about authorisation and specific supervisory and enforcement actions" and that the FCA "propose to change the balance of decisions taken by the FCA Executive and our Regulatory Decisions Committee." The FCA's rationale for this consultation is premised on its expectation to "intervene in real-time more often to prevent harm to consumers and market integrity." However, the checks and balances provided by the Regulatory Decisions Committee ("RDC") are an important safeguard for the FCA and those subject to its processes alike. Understanding how this consultation will change the landscape will be important to the regulated community and practitioners.
As the reader will know, the RDC is the final stage of decision-making within the FCA. The RDC operates separately from the rest of the FCA. The separation of the RDC ensures that decisions are not made by FCA staff who are recommending action against a firm or individual. The RDC is involved in a range of authorisation, enforcement and supervisory matters.
Changing the balance of decisions taken by the FCA Executive and the RDC in clear cut cases may not be problematic and will likely help the FCA with its important goal "to prevent and stop harm faster and more effectively". It may even lighten the RDC's considerable caseload allowing it to operate more efficiently. However, in those cases where there are nuances, striking the right balance between RDC scrutiny and FCA desire for swift action, to ensure a fair outcome will be an important one. Nikhil Rathi, the FCA's CEO, delivered a speech at the FinTech Week event on 20 April 2021, where he recognised this balance by stating: "we can, ultimately, take away people’s ability to earn a living in their chosen profession. The RDC, therefore, plays a vital role in ensuring our decisions are fair." The devil will be in the detail of the consultation.