There is quite a lot going on during FinTech Week.

Today, Nikhil Rathi, CEO of the FCA, delivered a speech entitled "Levelling the playing field – innovation in the service of consumers and the market".

I am heartened to see that Mr Rathi confirms the FCA's approach towards risky investments, which it made absolutely clear in contrast to a number of its peers during the "WallStreetBets" market shock: "We have been blunt. If you invest, you should be able to afford to lose it all" - caveat emptor remains to a refreshing extent.

However, no matter how well intentioned, the review of the work and role of the Regulatory Decisions Committee makes me nervous, particularly in the context of FinTech and emerging or innovative technologies/products. 

The reason is "edge-cases": examples which test the Perimeter and/or come down eventually to FCA or public policy. It is all very well (and good) fast-tracking cases through the RDC which are squarely within the Perimeter, but (given the supervisory and enforcement powers of regulatory bodies and the difficulty of challenging them) is it correct that edge-cases are fast-tracked also?

Mr Rathi quite rightly notes "[w]e can allow firms to operate or not. We can, ultimately, take away people’s ability to earn a living in their chosen profession." Following the obiter judgment of Lady Justice Andrews in Russell Adams v. Options SIPP UK LLP [2020] EWHC 1229, there is a risk already that courts will apply a "holistic" approach to the Perimeter (and permit the FCA to do so, also). Lady Justice Andrews is an exceedingly experienced judge and would not have chosen her words lightly, so we need to take her views seriously (even if she did not deliver the judgment of the court). 

This makes me concerned that Mr Rathi's noting that the "RDC, therefore, plays a vital role in ensuring our decisions are fair" misses the point of the supervisory and enforcement work of the FCA in the lead-up to any case going before the RDC, because if a case reaches the RDC, quite bluntly a significant amount of damage will have been done to the business in question by that point (monetarily, reputationally etc) and that business may have been operated reasonably and legitimately.

Do I have an alternative proposal? I am afraid not. All I say is that in our desire to create a financial services market fit for the future and to grab all advantages available to us outside the EEA from a regulatory perspective, some of the old-style ways of conducting regulatory oversight might remain fit for purpose.