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Can we trust regulators to obey the laws they impose?

Chris Hamblin, Editor, Editor, London, 2 January 2015

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The UK's Financial Conduct Authority, HM Treasury and the British civil service all stand accused of breaking laws and/or regulatory etiquette that no private firm would ever be allowed to break.

These institutions set the standard for much of the Anglo-Saxon regulatory world and they should be doing all they can to avoid any breath of scandal. Is it time to remove the barriers that stand between them and accountability in court?

It has been announced that Clive Adamson, the FCA's head of supervision, along with Zitah McMillan, the director of communications, is to leave the FCA. There has for some time been much speculation in the compliance press about Adamson's forthcoming departure, which according to the FCA website at the time of writing has still not happened. Why, people are wondering, is he still there?

The answer, according to many commentators, is that the FCA does not practice what it preaches. It was on 27 March this year that the London Daily Telegraph published price-sensitive information it had obtained from the FCA, quoting Adamson extensively. It reported that the FCA was planning an inquiry into 30 million policies that insurance companies had sold between the 1970s and the year 2000. The headline was “Savers locked into rip-off pensions and investors may be free to exit, regulators will say.” The next day, insurance shares plunged. The next week, Adamson, as would not have been the case at a regulated firm, still had his job.

Andrew Tyrie MP, the Chairman of the Treasury Select Committee, said of the scandal in which Adamson figured prominently: “The FCA has fallen well below the standards it requires of the firms it regulates...the body comprising the UK listing authority, in premeditated briefing, created a false market - causing considerable market uncertainty, worry for many consumers and some lasting damage.”

The non-executive directors of the FCA appointed Simon Davis, a commercial litigation partner at the City law firm of Clifford Chance, to apportion blame in an independent report. One conclusion was that “the procedures which exist within the supervisions and communications divisions [under Adamson and McMillan respectively] (including as set out in the divisional policies and the employee handbook) are inadequate and not of the standard which the FCA expects of those it regulates.”

Davis also concluded that “price-sensitive information”, although not a regulatory term, was equivalent to the “market-sensitive information” that the FCA obliges firms to be very careful with. It also thought it was the same as “inside information” as defined in s118C(2) Financial Services and Market Act. The FCA's interviewees all accepted that the FCA as regulator should regard itself in practice as subject to at least the standards it required of those it was regulating.

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