PS25/5 confirms that the FCA’s ‘name and shame’ proposals from the 2024 consultation are not being progressed.  The FCA had announced in March 2025, by way of a letter to the Treasury Select Committee, that it was not pursuing this proposal and would instead retain the ‘exceptional circumstances’ test for pro-actively announcing its investigations.  The new ENFG does, however, contain some changes to the FCA’s policy for pro-actively announcing investigations.  These seem materially in line with the TSC letter.

Under the new policy, while the general restrictions on confidentiality in s348 Financial Services and Markets Act 2000 (FSMA) will remain in force, there will in summary be three further situations – in addition to the general ‘exceptional circumstances’ test – in which the FCA may make a proactive announcement that it is carrying out an investigation.

• Where the FCA is investigating a person for suspected unauthorised activity or a suspected criminal offence in relation to an unregulated activity.  Here, the FCA may make public that it is investigating the person if it considers such an announcement is “desirable for the purpose of warning or alerting consumers or investors, or to help the investigation itself, for example by bringing forward witnesses”. In deciding whether to make an announcement, the new policy provides that the FCA will consider the potential prejudice that it believes may be caused to any persons who are, or who are likely to be, a subject of the investigation (ENFG 4.1.6).
• Where it is investigating a named person but the fact of that investigation has already been made public by that person, an affiliated company, a regulatory body, a government or a public body. The FCA’s announcement may also confirm the subject matter of the investigation to the extent that it has already been made public (ENFG 4.1.7).
• Where the FCA considers it is “desirable for the purpose of educating persons generally” as to the types of conduct that the FCA is investigating or to encourage compliance with the FCA’s rules or other requirements (in such cases the FCA’s new policy is that it may make public that it is investigating a particular matter without naming or otherwise identifying the subject of the investigation) (ENFG 4.1.8).

These new changes respond to feedback in the consultations.  In short, the FCA found through the consultation process that, while there was widespread opposition to its original ‘name and shame’ proposals, particularly from the financial services industry, there was a measure of support for the proposals above.

Some operational details do, however, emerge from PS25/5 beyond the policy outlines presented in the March 2025 letter to the TSC.  A number of these were raised as points of potential concern in the consultation process and could in practice be significant to the subjects of some FCA investigations (as well as their advisers).  In particular:

• the FCA has recognised that “there will clearly be instances when we would not share any information [at all] because of potentially serious impacts on wider financial stability or a risk of wider negative market impacts” (para 2.64).  There might therefore still be scope for subjects of some investigations to argue that no pro-active announcement should be made at all, even in the three new circumstances contemplated by the policy;
• there is likely to be some variation over when the FCA makes pro-active announcements.  While it appears that the FCA will consider this aspect of its policy early in its investigations (para 2.63), it notes that timing will depend on the investigation and the provisions of its amended policy on which it is relying.  The FCA gives as an example that it might reactively confirm that it is investigating a person many months after the investigation had started, if it had only become public knowledge at that stage.  Conversely, it might share information to warn consumers about suspected unauthorised activities quite early on in an investigation (para 2.68); and
• there may also be some variance in where announcements are made: the indications are they could be posted on the FCA’s website or potentially on the Financial Services Register, Warning List and/or Firm Checker facility (para 2.69).

Overall, the FCA’s amended policy proposals are far less radical than those on which it originally consulted, particularly in part 1 of CP 24/2.  A number of uncertainties do, however, remain.  The ‘exceptional circumstances’ test in the old guide in practice led to the FCA rarely announcing its investigations pro-actively.  The expanded policy, its development history to date, and the types of arguments the FCA has been advancing throughout the consultation period, all suggest that it would be reasonable to anticipate an overall increase in the number of pro-active announcements of investigations that the FCA will make in the future.  It would also be sensible to expect closer scrutiny (and perhaps greater argument than in the past) over whether the circumstances of any particular investigation are ‘exceptional’.

An area that could prove particularly tricky for firms to navigate is the announcement of investigations into suspected unauthorised activity (the first of the three new scenarios; ENFG 4.1.6).  While PS25/5 confirms (at para 2.48) that the FCA “will not generally announce” when it has opened an investigation into a named individual (rather than a firm), bearing in mind the criminal (ss19 and 23 FSMA) context to such matters, and the technical complexity of the perimeter itself, there remains a real risk of reputational damage to firms that become the subjects of FCA investigations in this area, particularly where a firm has inadvertently traded over the perimeter.  Published enforcement data show this type of enforcement activity is currently an area of focus for the Authority.  It is to be hoped that the FCA would adopt a pragmatic position on announcements in cases where the unauthorised business has happened for a purely technical reason with no, or easily remediable, consumer harm.

Given the media and Parliamentary focus on the FCA’s ‘name and shame’ proposals, it might be easy to overlook the considerable number of other changes that ENFG is making to the old Enforcement guide.  Whilst the other changes are generally more technical in nature, in short they represent a very substantial rework of the document.

In some cases, blocks of content have been moved out of ENFG to other locations.  In particular, the old Enforcement guide’s content on issues such as the variation and cancellation of permissions – now seen by the FCA as more supervisory than enforcement tools – will be moved to the Supervision Manual (SUP).  In other cases – especially content about some of the FCA’s significant, but typically lesser used, powers (injunctions, insolvency, collective investment schemes, disqualification of auditors and actuaries, restitution and redress) has been rationalised and moved to appendices.  In further cases, material has been deleted where the FCA considered it duplicative of other material.  Whilst these changes undoubtedly shorten the new ENFG compared to its predecessor, from a technical perspective it is not necessarily beneficial to the subjects of investigations, particularly where its effect may be to make it more difficult to predict how the FCA might use the relevant powers.

Here is a summary of other key changes that ENFG has made (the list is not exhaustive).

• Case selection.  Material from Chapter 2 of the old Enforcement Guide covering how the FCA selects cases for enforcement has been deleted and replaced with a link to a page on the FCA’s website that sets out (at a high level) its case opening criteria.  There does appear to be a subtle change of approach here, in that while the FCA has historically consulted on changes to its Enforcement guide, including the content on case selection, and has indicated in PS25/5 that it will continue to consult on future changes to ENFG, it appears it will not in the future be consulting on changes to its website, including the material on case selection that now sits there rather than in the guide.  It notes in PS25/5 that “as with our Approach to Supervision and our FCA Strategy, we will not generally consult on our enforcement strategy or changes to it. We will however, continue to review and update the website” (para 3.19). 
• Privilege in relation to firm-commissioned reports.  The FCA has long recognised in the previous Enforcement Guide the existence of legal privilege in English law and the fact that firms may wish to provide it with material on a limited waiver basis.  Some changes have, however, been made to the drafting in the relevant parts of ENFG to the effect that the FCA may accept material over which an investigation subject asserts privilege without agreeing the fact or extent of that privilege.  The FCA asserts that this is not a change in its underlying approach (para 3.24), however through the changed wording in ENFG, the FCA appears to be more clearly reserving the right to argue that material ostensibly provided to it under limited waiver is not in fact privileged at all.
• Attendance of certain lawyers at compelled interviews. The new ENFG is being amended so that the FCA reserves the right to exclude a lawyer from accompanying a person to a compelled interview on the basis that the presence of that lawyer risks prejudicing its investigation. The example it gives is where a lawyer might act for multiple parties in the same investigation.  This is not a new area of controversy, there are cogent arguments as to why existing professional regulation should be sufficient to address this risk, and that individuals should also be entitled to be accompanied by a lawyer of their choosing.  The new wording of ENFG may, however, lead to more argument over this issue more often.
• Scoping meetings.  Whilst to date these have been used routinely, the new ENFG adopts a position in which they will be used case by case instead.  The FCA’s new guidance at ENFG 2.4.1 indicates that the FCA will generally hold such a meeting where the subject of an investigation specifically requests it.
• Preliminary findings letters and preliminary investigation reports.  The FCA asserts it no longer uses these (but has moved instead to a different form of internal report prepared by investigators following their investigation). References to them are accordingly being deleted.
• Private warnings. The FCA asserts that these have not been used for some time and accordingly references to them in ENFG are being deleted. Letters from the FCA to firms following investigations are, however, still common and depending on how they are written may perform materially the same function.

The detail will matter when assessing the effect of these changes on a particular investigation.  If you would like to discuss any of these changes further, please contact David Pygott.