04 Aug Grounds Exist for RDR Judicial Review According to Lawyer
Charles Brasted, who is the Counsel in Hogan Lovells UK & EU Public Law & Policy practice has claimed that industry wide calls for a judicial review on the upcoming RDR would have grounds, however the courts would be likely to provide "wide margin of appreciation" for the regulations.
Alan Lakey, partner at Hertfordshire-based Highclere Financial Services, recently spoke to the FTAdvisor
about the situation, commenting "There needs to be a discussion about that [a judicial review into the RDR] and if there should be one the industry needs to come together and fund it. Commission, qualifications are for me two subjects."
Mr Brasted added "The making of rules and guidance and all the things that go into the FSA handbook by the FSA is an action that is amenable to a judicial review.
"A judicial review is a powerful but limited remedy. The courts aren't there to decide what the best answer is in place of the regulator, they are there to ensure the regulator is acting lawfully.
"If [the FSA is] being entirely unreasonable or failing to take into account consideration then those can be grounds of unlawfulness, but in those kinds of matters the court will give the regulator a wide margin of appreciation."
He claims that any court would recognise that the FSA had done a lot of work on the subject and will thus be regarded as an expert in the subject "far more than the court" should such a judicial review be raised.
Mr Brasted concludes " It is a whole different bag of policies being finalised at different times, under different legal instruments.
They are all challengeable - unreasonableness, rationality and potentially procedural grounds -
procedural fairness and adequate consultation and whether the regulator has explained the proposals and if the responses have been properly listened to.
"There are a range of grounds there that you could put together in challenging the rules."