EXTENSION OF THE SENIOR MANAGERS AND CERTIFICATION REGIMES

Transcription

1 EXTENSION OF THE SENIOR MANAGERS AND CERTIFICATION REGIMES

2 02 Extension of The Senior Managers and Certification Regimes

3 The global financial crisis highlighted the difficulties with the culture in banks and in holding individuals to account for their failings. To help prevent the reoccurrence of these failings, the Parliamentary Commission recommended a number of measures. These included the implementation of a framework to provide clarity of responsibilities, ensure accountability and improve the competence and conduct of all levels of staff. To this end, in March 2016 the Financial Conduct Authority (FCA) introduced the Senior Managers and Certification Regime (SMCR) for Banks, with the aim that similar requirements be extended to all other financial services firms. In July 2017, the FCA published its long-awaited proposals for the extension of the rules on the SMCR. This will extend the SMCR to almost every firm the FCA regulates, from very small firms and those with limited permissions (including sole traders and consumer credit firms) to some of the largest global financial institutions. The FCA aims to introduce SMCR rules which are flexible and proportionate to the nature of and risk posed by these firms and it is anticipated these rules will commence from The extension of the SMCR framework will require the thousands of affected financial services firms to make fundamental changes to their compliance practices in advance of its implementation. There are three limbs to the framework: SMCR Chair NEDs & Exec Committee Senior Managers Regime CONDUCT RULES Material Risk Takers and their managers Significant Harm Function and their managers Certification Regime Above categories and all UK staff (excluding ancillary staff) Conduct Rules 03

4 1. The Senior Managers Regime (SMR) enhances the accountability and responsibilities of a narrower and more senior set of individuals (than those covered under the Certification Regime), including the senior executives of the regions/functions/businesses and non-executive directors who chair board committees. Under the SMR, these individuals are subject to approval by the FCA. Under the FCA s proposals, all FCA authorised firms should have at least one senior manager. We can assist firms with their assessment of the SMR, review of existing governance arrangements and the approval processes for Senior Managers, in addition to ongoing support to firms Senior Managers on their new obligations. 2. The Certification Regime requires a broader number of employees (than those covered under the SMR) who are Material Risk Takers (MRTs) or who perform a role within a firm which means that it is possible for the person to cause significant harm to the firm or its customers, to be certified by the firm (not by the FCA), as being fit and proper to undertake their role. This moves the onus from the regulator to firms themselves to conduct these fitness and propriety checks on individuals performing Certification Functions (as well as Senior Managers and Non-Executive Directors). We can assist firms with the implementation and satisfaction of their new responsibilities under the Certification Regime. 3. The Conduct Rules set out high-level standards of behaviour that will apply to almost all employees who perform financial services activities in a firm. Some Conduct Rules apply to all employees, while others only apply to Senior Managers. By applying the Conduct Rules to a broad range of staff, the FCA aims to improve individual accountability and awareness of conduct issues across firms. Firms are required to train their staff so that they know how the Conduct Rules apply to them. Firms must also notify the FCA when they have taken formal disciplinary action against a person for breaching a Conduct Rule. We can assist firms with interpretation, integration and application of the new Conduct Rules into their businesses. Senior Managers Regime (All firms) Senior Management Functions Duty of Responsibility Prescribed Responsibilities (not limited scope firms) Statements of Responsibilities Senior Manager Conduct Rules + Additional requirements for enhanced SMCR firms Individual Conduct Rules Annual Assessment of fitness and propriety Additional Senior Management Functions Additional Prescribed Responsibilities Responsibilities Maps and Overall Responsibility Function Handover Procedures Certification Regime People who aren t Senior Manager but whose job can cause significant harm to the firm or its customers. Certified by the firm annually. Significant Harm Functions outlined in these FCA Rules. Individual Conduct Rules Conduct Rules staff All staff who perform financial services roles. This does not include ancillary staff (for example, catering, security etc.). 04 Extension of The Senior Managers and Certification Regimes

5 How will the regime be extended? The FCA is proposing under the SMCR regime that FCA solo-regulated firms (i.e. those not also regulated by the PRA) will be broken into three categories: Core Regime These are baseline requirements applying to all regulated firms. All core requirements will apply to all soloregulated firms, except for Limited Scope Firms. Enhanced Regime For larger and more complex firms (<1% of those regulated by the FCA). There are additional requirements which include: (i) Responsibilities Maps; (ii) Handover Procedures; and Designated senior manager responsible for every area of the firm ( Overall Responsibility ). Limited Scope There is a reduced set of requirements for smaller firms, ie. those firms that currently adopt a limited application of the current Approved Persons Regime. This includes sole traders, limited permission consumer credit firms, insurance intermediaries whose principal business is not insurance mediation and internally managed Alternative Investment Funds. What are the key action points? Firms should take immediate steps to: Understand the new regime; Identify whether they are an Enhanced, Core or Limited Scope Firm; Identify staff responsible for implementing the SMCR and establish a working group; Identify senior manager roles and the responsibilities to be allocated between them; Develop job descriptions and revised contract terms for senior managers and certified persons; Design a process for annual fit and proper certification; and Review policies including remuneration, disciplinary, performance and whistleblowing. How can we help you? DLA Piper has a dedicated regulatory team with extensive experience acting for financial services and financial market participants and dealing with complex regulatory matters. We have extensive experience in advising both companies and individuals on the scope of their responsibilities under the SMCR and dealings with regulators. If you would like advice on your regulatory compliance or dealings with the FCA and/or PRA, please contact Michael McKee, Ian Mason, Louise Neave and/or Chris Whittaker. 05

6 Are you a firm that is currently exempt from the Approved Persons Regime? Yes You are not an SM&CR firm For example, a PSD firm that is not Authorised under FSMA No Are you a firm that is currently subject to a limited application of the Approved Persons Regime? Yes You are a Limited Scope SM&CR firm No You are a Core SM&CR firm unless one of the following applies: You are a Significant IFPRU firm You are a CASS Large firm You have Assets Under Managements of 50 billion or more (at any time in the last three years) You are a firm with total intermediary regulated business revenue of 35 million or more per annum You are an Enhanced SM&CR firm Source: FCA CP17/25, page Extension of The Senior Managers and Certification Regimes You are a firm with annual regulated revenue generated by consumer credit lending of 100 million or more per annum You are a mortgage lender (that is not a bank) with 10,000 or more regulated mortgages outstanding

7 TEAM CONTACTS Michael McKee Partner London T +44 (0) michael.mckee@dlapiper.com Ian Mason Legal Director London T +44 (0) ian.mason@dlapiper.com Louise Neave Legal Director Liverpool T +44 (0) louise.neave@dlapiper.com Paul Brown Legal Director London T +44 (0) paul.brown@dlapiper.com Chris Whittaker Associate London T +44 (0) christopher.whittaker@dlapiper.com 07

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