Key Implications
While it is certainly hoped that, in practice, firms and their senior individuals were acting in a way that reflects the spirit of the new regime, SMCR still arguably constitutes a significant practical change – expanding its reach, placing more responsibility on firms and a greater emphasis on individual accountability. Some key implications include:
1. Conduct rules have a broader reach, applying to a larger pool of employees when compared to the previous APER regime. Firms will need to ensure that its employees are aware of the conduct rules as they apply to them.
2. SMCR has effectively reduced the number of SMFs requiring FCA approval and increased the number of employees that would fall within the certification regime. This places a greater onus on firms. While those holding a SMF will need to obtain the FCAs pre-approval before taking on the role, the burden of assessing a certified employee’s fitness and propriety is now on a firm. Although previously firms would always make an assessment of an individual’s fitness and propriety, the regulator would always have the final say. Firms are now required to reach their own decision on this issue and face the consequences if they get it wrong. Firms are also required to provide regulatory references to a new employer and, given the new employer’s degree of reliance on the reference, will need to carefully consider what information to include and the appropriateness or adequacy of such information.
3. In terms of individual accountability, it should be easier for regulators to identify who is responsible for any given issue within a firm. However, the assessment of whether an individual is culpable for a regulatory failing remains the same. While the new regime introduces some specific rules, any enforcement action is likely to focus on the question of whether the person took reasonable steps. While this is not always easy to demonstrate, it is a relatively low threshold. The problem is that although the FCA has to establish that the individual failed to take reasonable steps, the practical burden will always fall on the senior manager to demonstrate what they did to fulfil their regulatory obligations.
Is it enough to right past wrongs?
The introduction of SMCR is a positive step for the industry in many ways. Establishing who is responsible for what within a firm, provides clarity for regulators, firms and individuals alike. However, in larger firms, the ability to attribute culpability for a control failing is unlikely to be as ‘black and white’ as it might appear on a Statement of Responsibilities. The regulator must be careful to avoid trying to create a culture of strict liability. The fact that an issue is said to be the responsibility of a particular individual, does not mean that individual has to take the blame. Life is never that simple – not even in politics.
