Overview – How does it compare to the General Scheme?
The Bill largely aligns and in fact elaborates on many areas set out in the General Scheme for the Individual Accountability Framework 2021.
Importantly, the Individual Accountability Framework (“IAF”) is confirmed as comprising four elements – Senior Executive Accountability Regime (“SEAR”), Conduct Standards, Fitness and Probity and Enforcement and Investigations. SEAR will apply to the (c.150) Regulated Financial Service Providers (RSFPs) previously referenced by the CBI.
Clearer and more specific practical direction is expected when the CBI guidance is released. In the meantime, set out below are some of the key points from the Bill compared to the General Scheme.
One thing is clear – Regulated Financial Services Providers must prepare now.
Sets out categories of responsibilities of persons performing Pre-approval Control Function (PCF) roles
RSFPs must identify and allocate to each PCF:
- Inherent responsibilities pertaining to the PCF role itself, and
- All other responsibilities pertaining the RFSP’s affairs.
Legal Duty to take Reasonable Steps
As previously outlined in the General Scheme, the Bill confirms that PCF persons identified and allocated inherent or other responsibilities, shall take any reasonable steps in the circumstances to secure that, the aspects of the affairs relevant to the allocated responsibilities are conducted so far as to avoid contravention of RSFP regulatory requirements. The Bill further clarifies that avoiding contravention includes avoiding continuation of a contravention.
It is expected that the CBI will consult on more specific regulations and guidance in relation to all of the above in Q4 2022 and beyond.
- Management Responsibility Maps and Statements of Responsibilities required for RFSPs and PCF holders, in scope respectively.
- Appears to follow the UK SMCR regime as expected.
- CBI regulatory guidance will be critical in determining the specifics regarding Responsibility allocation category examples, and format / structure of Management Responsibility Maps and Statements of Responsibilities.
Confirms per the General Scheme, that there will be three sets of enforceable standards applicable to RSFPs, and clarifies that the “Common Conduct Standards” will only be applicable to Controlled Functions (CF).
- Business standardswhich will apply to RSFPs;
- Common conduct standards, limited to those performing CF roles; and
- Additional conduct standards, which will only apply to performing PCF roles and other senior persons of influence (to be identified by RSFPs).
RFSPs must have systems, controls processes, and procedures in place to ensure compliance with all of the above. This includes establishing policies on the integration of the common conduct standards into the conduct of the firm’s affairs.
RFSPs are also required to notify affected persons of their obligations in relation to the above, and to provide training on such standards.
Legal Duty to take Reasonable Steps to meet Common and Additional Conduct Standards
The Bill specifies that relevant Persons (identified CFs and PCFs) shall take reasonable steps to ensure that Common Standards and Additional Standards are met respectively.
It is expected that the CBI will consult on more specific regulations and guidance in relation to all of the above once the Bill is enacted.
- The Bill is largely as per General Scheme, with Common Conduct Standards confirmed as being limited to CFs.
- Additional CBI regulation and guidance is likely to take consideration of proportionality and could include some sector, and classification considerations in relation to applicability.
- Identification of affected persons, and development of policies and processes to ensure compliance throughout the RSFP, including training (rolled out to CFs and PCFs) will be critical.
3. Fitness and Probity (F&P)
- Formally brought into scope of the Bill including relevant Persons (CFs and PCFs).
- In particular, financial holding companies, mixed financial holding companies, insurance holding companies, and investment holding companies.
- Persons can only be permitted to perform a CF or PCF where a certificate of compliance with F&P standards is given to the CBI, and;
- The person has agreed in writing to comply with any such standard.
- CBI investigation of a person’s Fitness and Probity can look back 6 years – i.e. a Control Function Holder can be investigated in relation to an RFSP, if that person has performed a controlled function in relation to a RFSP within the period of 6 years immediately preceding the commencement of the investigation.
- Where a person is suspended from performing a CF role, the maximum period of the suspension is extended from three to six months, and the period for which the suspension can be further extended by the High Court is extended to 24 months.
- Holding Companies are formally part of the scope of F&P.
- Appropriate and comprehensive records management in respect of PCF and CF holders that move on from the organisation will be critical.
- RSFPs will need to ensure that exit packages / arrangements for senior personnel consider impacts of the Bill.
4. Enforcement and Investigations enhancements
Some key highlights:
- Formal extension of the application of the administrative sanctions procedure to persons performing CF roles and to certain holding companies.
- Provision for the appointment of a specialist panel from which appointments may be made for the purposes of certain decisions.
- Provision for the admissibility of business records at an inquiry.
- Formal requirements for the CBI in respect of notifying individuals and RFSPs under investigation, including CBI taking reasonable steps to keep relevant RFSPs and individuals informed of progress.
- Increased maximum suspension periods arising from investigations from 3 to 6 months. In addition, the period for which the suspension can be further extended by the High Court to 24 months.
- Where a person concerned claims legal privilege and refuses to produce a document or material when requested to do so in the investigation process, the Court may give direction to appoint an independent legal party to examine the relevant material, and prepare a report on same for the Court.
- Sets out formalised process for completion and communication of investigation outcomes.
- Introduces alternative procedure, in certain circumstances, when a prescribed contravention is acknowledged by a person (previously this procedure was only applicable to RFSPs), there may be no need for an inquiry, and a sanction could be directly imposed by the CBI.
- The Bill introduces numerous amendments to the Central Bank of Ireland Act of 1942 and the Central Bank Reform Act of 2010. As part of organisational IAF preparation, RSFPs should consider independent legal advisory and support in interpreting these amendments, and their impacts on existing engagement processes and operating models.
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