The JEP has asked if the JFSC is a friend or foe.

The question posed by the Jersey Evening Post (JEP) reporter Orlando Crowcroft’s 15 June 2024 article (see below) regarding the Jersey Financial Services Commission (JFSC) as a friend or foe is a provocative one that reflects the complexities of regulatory bodies in financial jurisdictions. The lack of response from the JFSC or other bodies to such public inquiries may indicate the delicate balance these institutions strive to maintain between regulatory confidentiality and the public's right to transparency. The question itself is not inherently negative; rather, it should catalyse a broader conversation about the nature of regulation and oversight.

Orlando's article has the potential to serve as a gateway to a more nuanced dialogue, shedding light on the intricacies of regulatory frameworks and their impact on the financial sector and the public interest. In Jersey, as in many other jurisdictions, the challenge lies in navigating the fine line between protecting sensitive information and fostering an environment of openness that engenders trust and confidence in regulatory processes.

The debate is not limited to the JFSC; it extends to the entire regulatory ecosystem in Jersey, encompassing various sectors and stakeholders. The call for a balanced approach is not just a local issue but a global one, where the demand for transparency must be weighed against the need for discretion in regulatory affairs. This global relevance underscores the need for a collective effort to address this issue.

The courage to engage with such complex issues. Through such thoughtful consideration and public discourse, progress can be made towards achieving the equilibrium that respects the confidentiality required by regulators and the clarity demanded by the public.

The question posed by Orlando is valid and necessary for the evolution of regulatory practices. It invites introspection and debate, essential for developing a robust regulatory environment responsive to all its constituents' needs. I hope an ongoing conversation is sparked by articles like Orlando's and provides a step towards demystifying regulation and fostering a culture of accountability and transparency in Jersey's financial landscape.

After thinking long and hard about this question, I decided to stick my head above the parapet (albeit I’m aware of the potential criticism from some ☹). So, to an open and frank discussion on Orlando's questions, my thoughts follow:-

Mathew Beale's thoughts:-

The role of financial service regulators is multifaceted and complex, often sparking debate on whether they act as friends or foes to the financial industry and the public. On one hand, regulators are tasked with overseeing the financial system to ensure stability, protect consumers, and prevent systemic risks. This involves enforcing compliance with laws and regulations, which can sometimes appear opaque or non-transparent to outside observers.

However, the lack of transparency can be attributed to several factors, including protecting sensitive financial information, preventing market manipulation, and maintaining confidentiality in investigations. Moreover, transparency is not always straightforward in financial regulation due to the intricate nature of financial systems and the technical details involved in regulatory processes.

On the other hand, critics argue that when regulators operate without full transparency, it can lead to a lack of accountability, reduced trust from the public, and potentially unfair practices.

The debate on regulatory transparency often centres around finding the right balance between the confidentiality required for effective oversight and the public's right to be informed about regulatory actions and decisions.

Interestingly, it is not only Jersey where there are questions about the regulator - concerns and questions are also being asked elsewhere, for example:-

• The Maltese courts have declared the FIAU fines and sanctions policy “COMPLETELY ILLEGAL” because supervised entities have no right to a fair hearing. Also, a landmark judgment was handed down in a case brought by payment processing company Phoenix Payments against the FIAU’s power to act as Investigator, Prosecutor and Judge
• In the Cayman Islands, a significant case involved Intertrust Corporate Services (Cayman) Ltd. and the Cayman Islands Monetary Authority. The Authority had imposed fines and prevented individuals from working due to alleged anti-money laundering policies and procedures deficiencies. However, the court found that the Authority had acted significantly unreasonably. This decision has been seen as a landmark ruling, and it has sparked discussions about the role and actions of regulatory bodies.
• In Guernsey, a case involving Artemis Trustees has put the island’s approach to regulation on trial. Three senior figures from Artemis Trustees were successful in overturning directorship bans and reducing the fines levied against them. This case has raised questions about who regulates the regulator and the balance of power in financial services.

Sources

• https://www.comsuregroup.com/news/maltese-courts-refuse-to-uphold-fiau-illegal-aml-fines-and-refuse-eu-referral/
• https://cilr.judicial.ky/judgments/cayman-islands-law-reports/Cases/CILR2021/CILR212166.aspx
• https://www.judicial.ky/judgments
• https://guernseypress.com/news/voices/richard-digard/2023/05/12/laffaire-artemis-puts-regulation-on-trial/
• https://www.gfsc.gg/commission/enforcement/judicial-decisions

These cases [there are more] highlight the ongoing dialogue and legal challenges related to regulatory decisions in the financial sector. They underscore the importance of checks and balances in the system and the need for regulatory bodies to act reasonably and fairly. It’s a complex and evolving area of law that continues to be shaped by these and other court decisions.

Advocate Olaf Blakeley has commented on the JFSC and has also been referenced in news articles. Here are some key points from his comments:

1. Concerning the Lumiere case in Jersey, Blakeley highlighted that the current system was broken. He stated that the Lumiere case, which led to investors collectively losing £3M, underscored the need for better investor protection.
2. Blakeley has also expressed concerns about the JFSC’s approach to regulation. He believes that the JFSC is too focused on handbooks, procedure sheets, and checklists while weak on preventative measures. He has represented numerous financial bodies in disputes with the regulator with successful outcomes.
3. Following a data breach at the JFSC, Blakeley called for an independent review of the regulator and its policies and procedures. He questioned who would fine the JFSC due to the data breach and who would pay for the independent body to supervise, investigate, and report on the regulator’s procedures.
4. He has also successfully brought actions against the Competition Regulator.

Sources

• http://www.blakeleylegal.com/regulatory.html / http://www.blakeleylegal.com/people.html
• https://www.bailiwickexpress.com/jsy/news/lumiere-case-shows-investors-need-better-protection/
• https://www.comsuregroup.com/news/a-view-from-advocate-olaf-blakeley-who-watches-the-watchdog/

These comments highlight Blakeley’s perspective on the JFSC and suggest areas for improvement in the regulatory framework. They underscore the importance of robust regulation, effective preventative measures, and the need for transparency and accountability in the financial sector.

The JFSC was criticised by Jersey courts in several cases. Here are a few examples:

1. SWM Limited v Jersey Financial Service Commission: In this case, the Royal Court of Jersey quashed a decision of the JFSC to revoke the registration of SWM Limited as an investment business and to issue a related public statement.
2. Case involving Emma Mathew, former Head of Communications at JFSC: This case revolved around a claim of constructive unfair dismissal brought against the JFSC by Emma Mathew. The JFSC’s relationship with Mathew was described as “toxic” in the Royal Court. The JFSC attempted to strike the claim out, saying it was out of the eight-week timeframe, but the Tribunal Employment might still decide to let the case proceed.

These cases [there are more] highlight some of the challenges and criticisms faced by the JFSC in its regulatory role. They underscore the importance of checks and balances in the system, and the need for regulatory bodies to act reasonably and fairly.

SOURCES

• https://www.walkersglobal.com/images/Publications/Advisory/2019/Jersey_-_Successful_appeal_against_the_Jersey_regulators_decision_-_June2019.pdf
• https://www.bailiwickexpress.com/jsy/news/finance-regulator-appeals-strike-out-constructive-unfair-dismissal-claim/
• https://www.bailiwickexpress.com/jsy/news/constructive-dismissal-claim-against-jfsc-was-out-time-court-says/
• https://www.bailiwickexpress.com/jsy/news/finance-regulator-appeals-strike-out-constructive-unfair-dismissal-claim/

The Jersey Financial Services Commission (JFSC) reversed a decision after 13 years involving Mr. Russell Shelton Homer. Here are the details:

1. In 2009, following an investigation by the JFSC, Mr. Homer was issued with directions under Article 23 (1) of the Financial Services (Jersey) Law and directions under the equivalent provisions of the other regulatory laws. These directions restricted Mr. Homer’s employment in Jersey’s financial services industry. An associated public statement was issued on 20 July 2010.
2. Mr. Homer applied to the JFSC to have the direction withdrawn. He submitted information and documentation for the JFSC’s consideration.
3. On 21 September 2022, the JFSC agreed to exercise its statutory power to withdraw the directions fully. This decision was made after considering Mr. Homer’s submissions and relevant information in the JFSC’s possession.
4. Since 2009, Mr. Homer had not been able to work gainfully in Jersey’s financial services industry because the directions prohibited him from acting as a principal person or being employed as a principal person or key person, as defined under the Financial Services (Jersey) Law 1998.
5. The JFSC issued a public statement on 13 October 2022 stating it has withdrawn all Directions against Mr. Homer.

This case is significant as it highlights the importance of managing regulatory risk and the impact of regulatory decisions on individuals and businesses. It also underscores the ability of regulatory bodies to review and reverse their decisions when presented with new information or arguments. Interestingly, we never heard from Mr Homer after his vindication after 13 years. One question: why?

SOURCES

• https://www.comsuregroup.com/news/withdrawing-a-13-year-regulatory-jfsc-ban-is-a-huge-decision/
• https://www.jerseyfsc.org/news-and-events/mr-russell-shelton-homer/
• https://www.jerseyfsc.org/news-and-events/withdrawal-of-directions-mr-russell-shelton-homer-mr-homer/

Closer to home.

• The JFSC has openly advised it to train independent regulatory consultants employed by firms to conduct regulatory effectiveness testing and root cause analysis for the JFSC. Albeit not all consultants, just a few.  How can this be fair to others, including Comsure?  https://www.comsuregroup.com/news/the-paradox-of-independent-regulatory-consultants-being-trained-by-a-regulator/
• In August 2020 – I (Mathew Beale), as Comsure’s CEO, questioned a conflict of interest – the result was an officer of the JFSC quit as an advisor of a commercial enterprise; https://www.comsuregroup.com/about/gallery/jfsc-regulator-quits-advisory-panel-after-conflict-of-interest-complaint/

Unsurprisingly, as a regulatory consultant since 2005 at Comsure, and my earlier work at another advisor and 7 years at the JFSC, I have witnessed many situations and heard many tales that can add colour to the debate; however, for the purposes of this musing, I have stuck to the two above factual matters.

Finally, and looking across to the US, the following initiatives are noteworthy:-

• Those highlighted by the Regulatory Transparency Project in the US delve into the complexities of financial services and corporate governance, examining how transparency can be improved without compromising regulatory effectiveness.
• The RTP exists because we have grown accustomed to modern government issuing and enforcing new rules to protect certain public goods. Still, regulations also have the potential to stifle innovation and harm the most vulnerable among us. Therefore, it’s important to review how regulations succeed or fail us and consider how to improve them. The RTP provides a platform for this necessary discussion and understanding.
• It underscores the importance of transparency, effective oversight, and robust discussion to navigate the complexities and achieve optimal outcomes.

Sources

• https://rtp.fedsoc.org/ / https://rtp.fedsoc.org/about/

In conclusion,

• While financial service regulators may not always operate with the level of transparency desired by all stakeholders, their role is crucial in maintaining a stable and fair financial system.
• The ongoing discourse on regulatory transparency and fairness is vital in shaping policies that uphold the integrity of the financial system and the public's trust in it.
• The challenge lies in achieving a balance that satisfies regulatory confidentiality while meeting the public's demand for openness and clarity in regulatory practices.
• I hope Orlando's article opens the door to a more balanced and open discussion about regulation and regulatory processes in Jersey (and not just at the JFSC!!) because we are all in this together.

Orlando Crowcroft’s 15 JUNE 2024 article  

Orlando Crowcroft’s article reads as follows:-

YOU don’t have to be a journalist to know that it can be very difficult to get information out of the government.

One of the tools we have is the Freedom of Information Law, which – as I am sure many of you know – allows anyone to request information held by public bodies.

It has its limitations (if the government wants to keep something hidden they can usually find a relevant exemption) but it is a powerful weapon in the fight for open government and against graft and corruption.

In the UK, fellow journalists and I use the FoI Act often: including to request information from the Financial Conduct Authority (FCA), the regulatory body for the finance industry.

So this week, I fired off a request under the Freedom of Information Law to the Jersey equivalent of the FCA, the Jersey Financial Services Commission (JFSC).

Guess what, it didn’t work.

I was informed that the JFSC is not considered a public body and, as such, cannot be FoI-ed.

A little digging revealed that I am not the first person to be surprised about this.

In August 2022, a complainant mounted a valiant effort via the FoI appeals process to argue that the JFSC was a public body and should be subject to FoI.

He or she (FoI requests are anonymous so our complainant will have to remain in the shadows) took their battle all the way to the commissioner, the final stage of appeal, and, in April 2023 it was finally rejected.

The commissioner’s report, which is available online, points out that the FoI Law of 2011 specifically excludes the JFSC from the law.

It also excludes the Jersey Competition Regulatory Authority, Jersey Law Commission, the Jersey Appointments Commission and the now defunct Waterfront Enterprise Board, “or successor” which, of course, is now Ports of Jersey, which is also exempt from the law.

“The Law will not apply to these bodies until they are added to Schedule 1 by Regulation, and there are no immediate plans to do so,” it says.

Why? Well, I will accept answers to that question on a postcard, but it does seem strange to me that the FCA is subject to the UK FoI legislation and its Jersey equivalent isn’t.

What it means practically is that it is extremely difficult for journalists to get information out of a body that regulates the Island’s finance industry, our biggest employer and economic keel.

I’ve been told by a number of people that the JFSC has been increasingly difficult to work with, and so after my FoI bid went nowhere, I asked the JFSC outright for the information I wanted:

“How many complaints have been made against the regulator in each of the last five years? Of these, how many were upheld? What was the result of those that were upheld?”

I was told that, until November 2023, data on complaints was not collected and there was no requirement for the JFSC to report complaints made against it – which is odd because that is exactly what they require of the people they regulate. What’s good for the golden goose is not, apparently, good for the gander.

As such, the first report on complaints against the JFSC – which was set up in 1998(!) – will not be released until it is approved by the board, at some point around the end of 2024.

I asked for data gathered prior to 2023 and was pointed in the direction of the JFSC’s 2024 Industry Survey, only the second(!!) that the body has ever commissioned.

It was carried out by an independent market research agency and received a total of 416 respondents, including trust companies, fund service providers, investment, accountancy, banking and insurance businesses.

Confusingly, 18 of these were then handpicked to take part in in-depth interviews which added “context and detail” to the initial results.

Methods like these, my friends, is why freedom-of-information is so important: How about you just give us the data – all 416 responses – and we interpret it.

Anyway, the findings weren’t all bad: 24% of respondents believed that the JFSC acts “very well” in the best interests of Jersey (up from 23% last year) and 42% that it does so “well”, down from 49% in 2023. Only 7% answered “not at all” (the remaining 27% chose “somewhat”).

But the report also found issues with timeliness and consistency, as well as the perception that the JFSC is evasive and unapproachable.

Over half (55%) of those polled said that their engagement with the JFSC had got worse compared to a year earlier.

So, something is going on at Jersey’s regulator, and in the absence of the usual channels to find out exactly what, I am relying on you.

1. Are you a local company that has had experiences with the JFSC and want to talk about it discreetly?
2. What is the general experience of the finance industry when it comes to the regulator?
3. Could things be done better, and if so how?
4. Is the golden goose at risk of being strangled by heavy-handed overregulation?

Reach out to me at orlando@allisland. media or 07473 254086.

What do you think?

Source:- https://edition.pagesuite.com/infinity/article_popover_share.aspx?guid=66cd6245-b150-4a81-9a18-70e00d70ff87&share=true&appcode=JEEVPO