DEPP 4.1 Executive decision maker

1All statutory notice decisions under executive procedures and decisions referred to in DEPP 2.5.6A G3 will be taken either by a senior staff committee or by an individual FCA3 staff member.

In the3 case of a senior staff committee,3 the decision will be taken by FCA3 staff who have not been directly involved in establishing the evidence on which the decision is based or by two or more FCA staff who include a person not directly involved in establishing that evidence,3 except in accordance with section 395(3) of the Act.

In the case of an individual FCA staff member, the decision will be taken by someone who has not been directly involved in establishing the evidence on which the decision is based, except in accordance with section 395(3) of the Act.

5A decision made in accordance with section 395(3) of the Act by an individual FCA staff member who has been directly involved in establishing the evidence on which the decision is based will be taken by a member of FCA staff of at least Director level (which may include an acting Director).

An FCA4 senior executive committee will from time to time determine that particular categories of statutory notice decision to be taken under executive procedures and decisions referred to in DEPP 2.5.6A G3 may5 be taken by a senior staff committee.

A senior staff committee will consist of such FCA3 staff members as an FCA4 senior executive committee may from time to time determine. An FCA4 senior executive committee may authorise the chairman of a senior staff committee to select its other members. A senior staff committee is accountable for its decisions to an FCA4 senior executive committee and, through it, to the FCA3 Board.

A senior staff committee may operate through standing or specific sub-committees to consider particular decisions or classes of decision, for which accountability will lie through the committee. Each meeting of a senior staff committee, or sub-committee, will include:

1. (1)

   an individual with authority to act as its chairman; and

2. (2)

   at least one5 other member5.

A senior staff committee will operate on the basis of a recommendation from an FCA3 staff member of at least the level of associate, and with the benefit of legal advice from an FCA3 staff member of at least the level of associate.

Statutory notice decisions to be taken under executive procedures and decisions referred to in DEPP 2.5.6A G,3 which are not made by 5 a senior staff committee, will be taken by an individual FCA3 staff member. Subject to DEPP 2.5.7B,5 the decision will be:

1. (1)

   made by an executive director of the FCA3 Board or his delegate (who will be of at least the level of associate);

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2. (2)

   on the recommendation of an FCA3 staff member of at least the level of associate; and

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3. (3)

   with the benefit of legal advice from an FCA3 staff member of at least the level of associate.

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except for decisions made in relation to consumer redress schemes pursuant to provisions of the Consumer Redress Schemes sourcebook (CONRED), where (1) will apply, but not (2) or (3).2

The individual who takes a decision under executive procedures is accountable to the FCA3 Board directly (if an executive director) or otherwise through line management responsible for the decision concerned.

An FCA3 staff member who considers that a statutory notice decision or a decision referred to in DEPP 2.5.6A G3 should be taken above his own level is free to refer that decision to a more senior level. If an FCA3 staff member consults another staff member about a decision, the decision remains the independent decision of the FCA3 staff member who consults his colleague, unless it is agreed that the decision should instead be taken by the colleague, and the colleague has the delegated authority to do so.

If an individual responsible for a decision under executive procedures (or a more senior FCA3 staff member with responsibilities in relation to the decision concerned) considers that it warrants collective consideration, the individual may:

1. (1)

   take the decision himself, following consultation with other FCA3 staff members, as above; or

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2. (2)

   refer it to a senior staff committee, which will take the decision itself.

1. (1)

   FCA3staff are required by their contract of employment to comply with a code of conduct which imposes strict rules to cover the handling of conflicts of interest which may arise from personal interests or associations. FCA3 staff subject to a conflict of interest must declare that interest to the person to whom they are immediately responsible for a decision.

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2. (2)

   If a member of a senior staff committee has a potential conflict of interest in any matter in which they are4 asked to participate they4 will disclose the conflict to the secretariat of the senior staff committee, and disclose it:

   1. (a)

      in the case of the chairman of the senior staff committee, to a member of an FCA4 senior executive committee or, if the person with the conflict is the chairman of an FCA4 senior executive committee, to the Chairman of the FCA;3

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   2. (b)

      in the case of the deputy chairman of the senior staff committee, to the chairman of the committee, or if they are4 unavailable, to a member of an FCA4 senior executive committee;

   3. (c)

      in the case of any other member to the chairman or deputy chairman of the senior staff committee.

3. (3)

   If the person to whom the conflict has been disclosed in accordance with DEPP 4.1.11 G (2) considers it reasonable and appropriate, they4 will require the member of the senior staff committee to stand down from consideration of the matter.

The secretariat to the senior staff committee will record and document all disclosures of potential conflicts of interest and the steps taken to manage them.

The procedure for taking decisions under executive procedures will generally be less formal and structured than that for decisions by the RDC. Broadly, however, FCA3 staff responsible for taking statutory notice decisions under executive procedures will follow a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC except that:

1. (-1)

   5oral representations will not be permitted unless there are exceptional circumstances (DEPP 2.3.1A);

2. (1)

   in a case where the decision will be taken by a senior staff committee:

   the chairman or deputy chairman of the senior staff committee will perform the role of the Chairman of the RDC5;

3. (2)

   in a case where the decision will be taken by individual members of FCA3 staff, the distinction between the role of the RDC, its Chairman and the RDC staff has no application;

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4. (3)

   the FCA3 staff responsible for taking the statutory notice decision may be advised by legal advisers who have also advised FCA3 staff recommending action by the FCA;3

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5. (4)

   the FCA3 will not normally disclose the communications between the FCA3 staff recommending that action be taken and those responsible for the decision to give the statutory notice unless the FCA3 has stated publicly that it will adopt a practice of disclosing such communications, or a class of communications, in respect of particular categories of decision taken by FCA3 staff under executive procedures; and

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6. (5)

   DEPP 3.2.11 G and DEPP 3.2.21 G will not apply.

3Broadly, FCA staff responsible for taking decisions referred to in DEPP 2.5.6A G will follow a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC (subject to the exceptions in DEPP 4.1.13 G (1) to DEPP 4.1.13 G (5) which also reflects that these decisions are not statutory notice decisions.