The Senior Managers Regime
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We recommend that firms assemble their project teams and start work on the various implementation actions as soon as possible. The regime will later be extended to cover all FSMA regulated firms by 2018. A table setting out the PRA and FCA SMFs is set out in the Annex to this briefing.
There are five core rules based on the concepts of integrity; duty of care, skill, and diligence; cooperation with regulators; giving due regard to the interest of consumers; and observing proper standards of market conduct. Under these circumstances, senior managers within financial services firms in the UK and worldwide need to be equipped with adequate regulatory management tools. So what are the regulators likely to look for in an SMR assessment visit?
The Senior Management Regime takes shape - For larger and more complex firms, the FCA expects that executive committee members or equivalent i.
Controlled functions are divided into two categories: significant influence functions SIFs and the customer dealing function. SIFs are sub-divided into certain categories including governing functions which covers directors, non-executive directors and the chief executive. An individual must obtain regulatory approval before he can perform a controlled function. UK banks, building societies and systemically important investment firms are dual regulated in the sense that conduct of business supervision is carried out by the FCA and prudential supervision by the PRA. Responsibility for controlled functions is also split between the PRA and the FCA. The PRA is the regulatory authority responsible for the approval of the governing functions. Disciplinary action The PRA and FCA may take disciplinary action against an approved person where the individual acts in a manner inconsistent with APER which may include a fine, suspension or the issuance of a public statement relating to the misconduct. Where the regulator believes that a person is no longer fit and proper to perform their role, it may withdraw approval and may prohibit the individual holding a controlled function in the future. The attestation strategy Despite the above requirements the UK regulators have often found it very difficult to bring enforcement action against senior management. Senior figures have continued to shelter behind an accountability firewall. The new regime can be found in Part IV of the Act. The substantive provisions in Part IV are yet to come into force. The remainder of this briefing note considers these regimes as described in the joint consultation paper. However, before doing so it is worth noting that the consultation does not extend to individuals and approved persons of Appointed Representatives of relevant firms. Therefore non-executive directors and directors in other group entities, that participate in the taking of decisions about the relevant firm, can be specified as SMFs. Enhancing accountability The Act gives the regulators the power to decide which functions are SMFs, and introduces into FSMA several provisions designed to promote a clear allocation of responsibilities to senior managers and enhance their individual accountability. Many of the SMFs will be familiar to authorised firms. The PRA states that this would be for individuals managing a business area or division so large, in relative terms to the size of the relevant firm, that it could jeopardise its safety and soundness, and so substantial in absolute terms that it warrants an SMF even though the senior manager performing it may report to the Chief Executive or another SMF. The PRA acknowledges that individuals could perform more than one SMF. However, in such cases the relevant firm would need to apply for separate approvals for each even though these may be combined in a single application. In such circumstances the PRA will expect each individual to be accountable for all responsibilities conferred by that SMF. Under this regime an individual who is employed in the parent or other group entity of a relevant firm but who is deemed via an arrangement with the relevant firm to exercise significant influence over its affairs is subject to approval. The PRA also notes that there may also be situations where an individual based outside a relevant firm is performing a SMF directly on behalf of the firm. In such instances regulatory approval will be required. The PRA gives the example where a group holding company whose board includes a group remuneration committee which takes decisions on behalf of all group entities. In such circumstances the chair of the group remuneration committee would require approval as chair of the remuneration committee of the relevant firm. These are set out below. PRA Prescribed Responsibilities 1. Performance by the firm of its obligations under the senior management regime, including implementation and oversight 2. Performance by the firm of its obligations under the Certification Rules 3. Ensuring and overseeing the integrity and independence of the internal audit function in accordance with SYSC 6. Ensuring and overseeing the integrity and independence of the compliance function in accordance with SYSC 6. Ensuring and overseeing the integrity and independence of the risk function in accordance with SYSC 7. Allocation of all prescribed responsibilities 10. Management of the allocation and maintenance of capital, funding and liquidity 14. If the firm does not have an individual performing the Chief Risk function, overseeing and demonstrating that the risk management policies and procedures which the firm has adopted in accordance with SYSC 7. The FCA states that the roles of executive director and non-executive director, money laundering reporting and compliance oversight SMFs are broadly similar as currently defined in the FCA Handbook. The FCA states that the test that should be applied when determining whether an individual performs a Significant Responsibility SMF is whether the board has delegated to them overall responsibility for a particular function and they are primarily responsible for reporting to the board in respect of that function. To provide assistance, the FCA has provided a list of key functions for which it thinks are likely to apply to most relevant firms set out below. It is important to stress that firms will not necessarily be expected to appoint a single individual as an SMF for each function in the list. Key functions excludes control functions 1. Establishing and operating systems and controls in relation to financial crime 2. Safekeeping and administration of assets of clients 3. Financial or investment advice 7. First line quality assurance of sales 12. Trading for clients 13. Retail lending decisions 16. Wholesale lending decisions 17. Design and manufacturing of products intended for wholesale customers 18. Design and manufacture of products intended for retail customers 19. Production and distribution of marketing materials and communications 20. Customer complaints handling 22. For larger and more complex firms, the FCA expects that executive committee members or equivalent i. A table setting out the PRA and FCA SMFs is set out in the Annex to this briefing. Such maps should also set out how responsibilities have been allocated, including whether they have been allocated to more than one person. Handover arrangements Another new requirement that the regulators propose relates to handover arrangements. Which regulator to apply to? The Certification Regime Certification functions The Act amended FSMA by introducing a certification regime. This regime provides that firms will have to certify certain employees as being fit and proper to perform certain functions. These functions are known as significant harm functions. Importantly, in the consultation paper significant harm functions were described as certification functions. No direct approval from a regulator An individual performing a certification function will not be subject to direct approval by the PRA or FCA. However, a firm must take reasonable care to ensure that an employee does not perform a certification function without having first been certified as fit and proper to do so. This certification must be renewed on an annual basis. What firms does the certification regime apply to? Credit unions are not subject to the CRR or the associated remuneration requirements. Given this the PRA proposes a separate definition which will use elements of the material risk taker definition that it believes could be relevant to a credit union. FCA certification regime The FCA believes that the certification regime should apply to a wider population of individuals. Which regime All employees falling within the PRA certification regime will also be within the wider FCA certification regime. Single certificate It is expected that a firm will be able to make a single assessment and issue a single certificate to its employee in respect of a particular certification function. In instances where an individual performs multiple certification functions their fitness and propriety for each function will need to be assessed even though they may be covered by a single certificate. The PRA states that this is because the question of fitness and propriety of staff in those branches, insofar as it relates to prudential matters, is reserved to the Home State supervisor. The FCA notes that it has more powers over EEA firms than the PRA as conduct matters are not reserved to the Home State supervisor. However, it also notes that the position in relation to conduct issues to branches has the potential to be more complicated than the prudential position and has deferred its consultation on this issue. Fitness and propriety FCA approach The FCA is currently of the view that the guidance in FIT is equally applicable and relevant for firms when assessing the fitness and propriety of senior managers and those within the certification regime. However, the FCA does intend to make certain amendments to this guidance so that its application and relevance is more apparent. PRA approach The PRA proposes to make rules to dis-apply the existing guidance in the FIT sourcebook and replace it with new material in a supervisory statement. However, its general expectations regarding fitness and propriety, and the factors it will consider in making an assessment will not change significantly. Conduct Rules New rules The PRA and FCA are both proposing new conduct rules for certain employees of relevant firms. The PRA is proposing that new conduct rules will apply to individuals who are approved by the PRA or FCA as senior managers or who fall within the PRA certification regime. The PRA will also apply new conduct rules to those who are performing FCA specified SMFs. The FCA states that the only employees who would not be caught in scope would be those whose role would be fundamentally the same as it would be if they worked in a non-financial services firm. In the consultation paper the FCA sets out a list of such persons and this is set out below. Individuals not covered by FCA Conduct Rules 1. Archive Records management 3. Post room staff 13. Corporate Social Responsibility staff 5. Data controllers and processors under the Data Protection Act 6. Personal assistants, secretaries 9. Audio visual technicians 19. Information Technology Support i. Vending machine staff 20. The PRA does not propose to introduce any further rules beyond the shared rules set out below. The rules are split into two tiers. The first tier comprises individual conduct rules which the regulators consider relevant across all the roles in which individuals are subject to the new conduct rules. The second tier rules only apply to senior managers, and reflect the management duties they have for the specific part of the firm they are responsible for, as well as their responsibility for the effective running of their firm as a whole. First tier — Individual conduct rules Rule 1: You must act with integrity. Rule 2: You must act with due skill, care and diligence. Rule 3: You must be open and cooperative with the FCA, the PRA and other regulators. Second tier — Senior management conduct rules SM1: You must take reasonable steps to ensure that the business of the firm for which you are responsible is controlled effectively. SM2: You must take reasonable steps to ensure that the business of the firm for which you are responsible complies with relevant requirements and standards of the regulatory system. SM3: You must take reasonable steps to ensure that any delegation of your responsibilities is to an appropriate person and that you oversee the discharge of the delegated responsibility effectively. SM4: You must disclose appropriately any information of which the FCA or PRA would reasonably expect notice. The FCA also proposes to introduce two additional rules: FCA only first tier — additional individual conduct rules Rule 4: You must pay due regard to the interests of customers and treat them fairly. Rule 5: You must observe proper standards of market conduct. The regulators propose to require notification of formal disciplinary action only if action was taken by the relevant firm in response to any action, failure to act, or circumstance that amounts to a breach of the conduct rules. Where the breach or suspected breach of a conduct rule is by a senior manager, it is proposed that the relevant firm will be required to notify the relevant regulator within 7 business days of it becoming aware of the matter. For other individuals, it is proposed that the notification is made to the regulators on a quarterly basis, with relevant firms compiling an aggregated list of actual or suspected individual breaches, the identities of those to whom the notification relates, and the disciplinary action that they need to report for that quarter. Criminal offence The Act provides that senior managers of banks and building societies may be prosecuted by the PRA or FCA for taking a decision that causes their institution to fail. For the offence to have been committed, at the time the decision was taken the senior manager must have been aware of a risk that its implementation would cause the institution to fail. The deadline for responding to the consultation document is January 30, 2015. Subject to Parliamentary approval, HM Treasury proposes to make the Financial Services and Markets Act 2000 Relevant Authorised Persons Order 2015. The effect of the Order will be to make third country financial services firms that have a branch in the UK and are credit institutions or PRA-designated investment firms into relevant authorised persons RAPs for the purposes of Part V of FSMA. However, the Order will not make a senior manager in such a branch potentially liable to the new offence relating to a decision causing a financial institution to fail. PRA approach The PRA proposes to require at least one individual per incoming non-EEA branch to be approved as an Overseas Branch Senior Executive Manager. The individual s approved will typically be performing activities akin to those of a CEO in relation to the branch. FCA approach In the consultation paper the FCA stated that it would consult on third country branches once HM Treasury had issued its consultation. However, at the time of writing this briefing note such consultation had not been published.
FCA Update: 2018 Extension to Senior Managers and Certification Regime
To fub assistance, the FCA has provided a list of key functions for senior managers regime date it thinks are likely to apply to most relevant firms set out below. SIFs are sub-divided into certain categories including governing senior managers regime date which covers directors, non-executive directors and the chief executive. These forms will go live on 10 Tout 2018. Handover arrangements Another new requirement that the regulators propose relates to handover arrangements. Single certificate It is expected that a firm will be able to make a single assessment and issue a single certificate to its employee in respect of a particular certification function. The FCA and PRA are civil to publish their respective policy statements and final rules this summer. In such circumstances the PRA will expect each individual to be accountable for all responsibilities conferred by that SMF. Disciplinary action The PRA and FCA may take disciplinary action against an approved person where the el acts in a manner inconsistent with APER which may include a fine, suspension or the issuance of a public statement relating to the misconduct. So what are the regulators likely to look for in an SMR assessment visit. The firms falling within the Core Regime will be those with civil services work at their heart. These responsibilities are called 'overall responsibilities'. However, the FCA does intend to make certain amendments to this guidance so that its application and relevance is more apparent.
