In July 2015 the FCA published Consultation Paper 14/13: Strengthening accountability in banking: a new regulatory regime for individuals (CP14/13). In CP14/13 the FCA consulted on, amongst other things, guidance on how it would bring enforcement action against individuals under the new individual accountability regime, including under the Conduct Rules.
Earlier this year the FCA published Consultation Paper 15/22: Strengthening accountability in banking: Final rules (including feedback on CP14/31 and CP15/5) and consultation on extending the Certification Regime to wholesale market activities (CP15/22) in which it set out final rules in relation to the Senior Managers’ Regime, the Certification Regime and the Conduct Rules.
The FCA has now published Policy Statement 15/29: Strengthening accountability in banking: Final amendments to the Decision Procedure and Penalties Manual and the Enforcement Guide (PS15/29). In PS15/29 the FCA sets out its feedback to the responses on the proposed amendments to the Decision Procedure and Penalties Manual (DEPP) and the Enforcement Guide (EG) as set out in CP14/13, and its final amendments to them.
In PS15/29 the FCA notes that other than in relation to the presumption of responsibility, it received very few responses to its proposed amendments to DEPP and EG. In chapter 2 of PS15/29 it summarises the feedback to the responses relating to DEPP and EG that did not concern the presumption of responsibility.
In October 2015, HM Treasury published a paper entitled Senior Managers and Certification Regime: extension to all FSMA authorised persons. In this paper the Government stated that it was replacing the presumption of responsibility for Senior Managers with a duty of responsibility. In PS15/29 the FCA confirms that it will therefore not be publishing final guidance on the presumption of responsibility on which it consulted on earlier. The FCA also states:
“The Government’s proposal to extend the SMR and Certification Regime to all financial services firms and to replace the presumption of responsibility for Senior Managers with a duty of responsibility is subject to Parliamentary approval. We will consider whether and what guidance to give on the duty of responsibility, if it is created, in due course.”
The guidance in DEPP and EG will apply from 7 March 2016.