Under-represented by FOS complaints versus the banks, the IFA sector is, especially since the 2008 crisis, in its best-ever position to lobby for compliance change. But rules must be followed.
Here is a list of “banned” lobbying arguments that fail to stand up:
Breach of human rights. Heather Moor & Edgecomb proved the European Court of Human Rights rejects this argument about FOS.
Repugnant to the rule of law. Again rejected in HM & E about FOS by Strasbourg and the Court of Appeal. Much is written on defining the rule of law and almost as much on whether apartheid followed it.
Illegality. Occasionally, the regulator strays a bit close to the line – take the current use of attestations as perhaps the exercising of a power not yet granted to the FCA. Regulators may be stupid (or worse) but they rarely act illegally.
The regulator or the Government never consulted on this. Regulators do not make rules that work against the industry without consulting in some form or another.
An anti-IFA bias. Perhaps true of the early FSA but simply not correct now. Try charming the FOS or the FCA rather than calling them crooked – you will have more joy with your lobbying efforts.
Bring a court case to test the issue. Good rule of thumb? “Only sue when you know you can win.”
The FCA and the FOS win such a high percentage of cases through having strong legal resources. Acting legally and acting well are totally different things.
Adam Samuel is an independent compliance consultant