APRIL 2015 ARE YOU READY FOR THE SENIOR MANAGERS AND CERTIFICATION REGIME?

Transcription

1 APRIL 2015 ARE YOU READY FOR THE SENIOR MANAGERS AND CERTIFICATION REGIME?

2 Page 2 SECTION 1 INTRODUCTION In July 2014 the PRA and FCA published a joint consultation paper titled, Strengthening accountability in banking: a new regulatory framework for individuals. The proposals reflected the recommendations of the Parliamentary Commission on Banking Standards (PCBS) and changes required by the Financial Services (Banking Reform) Act In March 2015 the PRA and FCA published their revised consultation paper based on feedback received. In addition they provided greater clarity with respect to the timeline for implementation of the new regulatory requirements. OBJECTIVES The PRA and FCA are seeking to create a new governance framework (a three tiered approach) within financial services Firms, whereby individuals take greater responsibility for their actions. This will make it easier for both Firms and the regulators to hold individuals to account, whilst having a positive impact on both individual and collective conduct. FIRMS IMPACTED The new regulatory framework for individuals will be applicable in full for UK banks, building societies, credit unions and PRA-designated investment firms (together Firms). The PRA and FCA in March 2015 published their proposal for extending the regulatory framework for individuals to UK Branches of Non-EEA Firms and EEA Firms (FCA supervision only).

3 Page 3 SECTION 2 UK FIRMS: A THREE TIERED APPROACH THE PRA AND FCA ARE PROPOSING TWO REGIMES AND WIDER CONDUCT RULES: Senior Managers Regime (SMR) To ensure there is an individual Senior Manager accountable for every aspect of regulated activity. As a result the PRA and FCA have identified 27 roles and 20 prescribed responsibilities to be allocated to Senior Managers undertaking 18 defined Senior Management Functions Certification Regime (CR) Individuals identified by the Firm as material risk takers (PRA defined term) or undertaking a Significant Harm Function (FCA defined term) must be certified as fit and proper by the firm in line with the Fit and Proper test for Approved Persons Conduct Rules A new set of Conduct Rules building on the existing Statements of Principle and Code of Practice for Approved Persons (APER). The Conduct Rules will apply to a broader range of staff. The conduct rules will be split across two tiers, those applying to Senior Managers only and those applying to all other staff, except those who perform a role that is not specific to the financial services business of the firm.

4 Page 4 SECTION 3 BRANCHES: A PROPORTIONATE APPROACH IN MARCH 2015 THE PRA AND FCA PUBLISHED THEIR PROPOSED APPROACH FOR EXTENDING THE REGIMES TO UK BRANCHES OF EEA AND NON-EEA FIRMS. THESE INCLUDE: UK BRANCHES OF EEA FIRMS The FCA proposes to apply a tailored EEA Branch Senior Manager (EBSM) to capture the individual(s) responsible for the management and conduct of the business of the incoming branch. This reflects the current coverage of senior individuals in EEA branches under the APER. In addition, the FCA will require incoming branches to appoint a Senior manager to the MLRO function The FCA proposes to align the scope of its CR for UK Branches of EEA Firms with that for UK relevant firms, where this is applicable under EU legislation for Branches of EEA Firms The FCA will apply its Conduct Rules to individuals within the FCA s SMR, Certification Regime, and all other employees other than ancillary staff whose role is not specific to the financial services business of the Firm The PRA will not be proposing any additional guidance relating to UK Branches of EEA Firms. UK BRANCHES OF NON-EEA FIRMS The most senior individual must be approved by the PRA as a bespoke Senior Management Function of Head of Overseas Branch The Chief Financial Officer, Chief Risk Officer or Head of Internal Audit will need to be approved as Senior Managers for the branch The FCA proposes to align the scope of its CR for UK Branches Non-EEA Firms with that for UK relevant Firms Senior Managers will be subject to the accountability requirements in the Financial Services and Markets Act (FSMA), including the requirement to submit a Statement of Responsibilities when applying for approval, the Conduct Rules, the Presumption of Responsibility and any potential ensuing regulatory sanctions The PRA and FCA s conduct rules will apply to all Senior Managers. In addition, a narrower set of individual conduct rules will apply to branch employees with the CR.

5 Page 5 SECTION 4 ROADMAP TO THE NEW REGIMES FIRM March (TBC) 2015 (TBC) 7 March 2016 Strengthening accountability in banking UK branches of foreign banks PRA Policy Statement on accountability Publication of PRA and FCA and PRA Policy Statement on foreign branches SMR, CR and Conduct Rules come into effect March 2015 Strengthening accountability in banking Feedback on FCA CP14/13 / PRA CP14/ Spring/Summer 2015 Publication of PRA and FCA final rules on accountability 8 February 2016 SMR Submission of grandfathering notifications FIRM 7 March 2017 CR Deadline for issuing certificates for individuals under CR FIRM

6 Page 6 SECTION 5 HOW CAN BDO HELP? BDO HAS EXTENSIVE EXPERIENCE IN ESTABLISHING AND IMPLEMENTING FIT FOR PURPOSE GOVERNANCE AND REGULATORY FRAMEWORKS. WE CAN HELP YOU ENSURE YOU ARE READY THROUGH: Assisting you in understanding the requirements of the new regimes and their impact on your organisation Conducting a gap analysis of your firm s current governance and oversight arrangements against the new regimes Developing and executing a roadmap to ensure the new regimes are embedded throughout your firm in line with the s deadlines Designing and implementing appropriate systems and controls throughout your organisation to ensure compliance with the regimes Performing independent assurance reviews of SMFs Preparing and delivering on-going SMR, conduct risk and regulatory training programmes to senior management and staff. TO DISCUSS YOUR REQUIREMENTS FURTHER PLEASE CONTACT: FIONA RAISTRICK Partner +44 (0) fiona.j.raistrick@bdo.co.uk LEIGH WORMALD Partner +44 (0) leigh.wormald@bdo.co.uk

7 Page 7 SECTION 6 DETAILED REQUIREMENTS FOR UK FIRMS The table below articulates the key elements of each tier of the new regimes and the associated responsibilities on the firm prior to commencement and post commencement of the new rules. Tier of new regulation SENIOR MANAGERS REGIME Defined Prescribed Responsibilities and roles to be allocated to Senior Managers Regulators can hold individuals to account for their responsibilities powers to implement penalties and public censures New criminal offence for poor decisions that cause a firm to fail Current SIFs will be grandfathered in to the new SMF equivalents Regulators can impose conditions and time limits on approvals of SMFs CERTIFICATION REGIME Regulators have defined Certified Functions as employees that are material risk takers and/or can cause significant harm to the firm or its customers. This will affect a wider population of a firm s employees than the Approved Persons Regime. The onus will be on firms to: Identify managers and staff undertaking certified functions Check that they are fit and proper on appointment and on an ongoing basis The PRA and FCA are also proposing new remuneration rules to discourage material risk takers from taking excessive risks. Under the new rules, bonus payments must be deferred for a minimum of five to seven years, depending on seniority, with a phased approach to vesting. CONDUCT RULES Tier All staff (except ancillary staff) All staff(except ancillary staff) are expected to: Act with integrity Act with due skill, care and diligence Cooperate with regulators Treat customers fairly with due regard to their interests Observe proper standards of market conduct Tier Senior Managers only Senior Managers in line with their SMF will be responsible for ensuring: Effectiveness of business controls Compliance with regulatory requirements There is appropriate delegation of responsibilities with effective oversight There is appropriate disclosure of information to regulators. Firm requirements pre-commencement of new regime Submit initial Responsibilities Map covering all Prescribed Responsibilities Notify the regulators which existing SIFs will map across to the equivalent SMFs For each SMF submit a Statement of Responsibilities. Develop and implement a certification process, accompanied by an appropriate ongoing training plan Identify relevant individuals and issue first certificates of fitness within 12 months of the certification regime commencing. The Firm must ensure that Senior Managers, Certified Functions and all other staff except ancillary staff must be proficient in the Conduct Rules upon commencement. Firm on-going requirements post commencement Annual review of Responsibilities Map Submit Statement of Responsibilities for new SMF application or on significant change in role Re-certify annually or in the event of change in role or new joiner. Provide appropriate training prior to any change in role and new joiners Notify regulators of any actual or suspected breaches of the conduct rules and any disciplinary action taken relating to Senior Managers within 7 days (quarterly for all other employees).

8 The proposal contained in this document is made by BDO LLP and is in all respects subject to the negotiation, agreement and signing of a specific contract. It contains information that is commercially sensitive to BDO LLP, which is being disclosed to you in confidence and is not to be disclosed to any third party without the written consent of BDO LLP. Client names and statistics quoted in this proposal include clients of BDO LLP and clients of the international network of independent firms. BDO LLP, a UK limited liability partnership registered in England and Wales under number OC305127, is a member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. A list of members' names is open to inspection at our registered office, 55 Baker Street, London W1U 7EU. BDO LLP is authorised and regulated by the Financial Conduct Authority to conduct investment business. BDO is the brand name of the BDO network and for each of the BDO Member Firms. BDO Northern Ireland, a partnership formed in and under the laws of Northern Ireland, is licensed to operate within the international BDO network of independent member firms. April 2015 BDO LLP. All rights reserved.