SUP 10.6 Governing functions

Every firm will have one or more persons responsible for directing its affairs. These persons will be performing the governing functions and will be required to be approved persons unless the application provisions in SUP 10.1, or the particular description of a controlled function, provide otherwise. For example, each director of a company incorporated under the Companies Acts will perform the governing function in relation to that company.

10A sole trader does not fall within the description of the governing functions.

The effect of SUP 10.6.2 R is that a person who is approved to perform a governing function (other than the non-executive function) will not have to be specifically approved to perform any of the systems and controls functions or the significant management functions. However, a firm may apply for the systems and controls function or significant management functions to be explicitly added for such persons, if it wishes. . A person who is approved to perform a governing function will have to be additionally approved before he can perform any of the required functions or customer functions.2

46MIPRU 2.2.1 R6 provides that an insurance intermediary, other than a sole trader, must allocate to a director or senior manager the responsibility for the firm's insurance mediation activity.6MIPRU 2.2.2 R (1)6 provides that the firm may allocate this responsibility to one or more of the persons performing a governing function (other than the non-executive director function)5.

4Where a person performing a governing function is also responsible for the firm's insurance mediation activity, the words "(insurance mediation)" will be inserted after the relevant controlled function (see 6MIPRU 2.2.5 G6).

The definition of director includes a person in accordance with whose directions or instructions the directors are accustomed to act. Such a person is defined in section 2518 of the Companies Act 20068 as a "shadow director". The directors of a holding company would not, as such, be shadow directors. However, where, for example, a member of a holding company board frequently gives instructions to directors of a firm, either on his own or through a committee which takes frequent executive decisions, the firm should consider carefully whether he (and other members of the committee) should be approved to perform this function. An individual is not a shadow director (or director) because his job description included the word "director". Whether a person is a director within the definition is a question of fact in each case.2

Similarly, the fact that a person may have "director" in his title does not of itself make him a director within the meaning of the definition. Whether a person is a director will depend on the facts in each case.

A director can be a body corporate and may accordingly require approval as an approved person in the same way as a natural person may require approval.

Examples of responsibilities of a non-executive director may include:

1. (1)

   playing his part, by providing an independent perspective to the overall running of the business, in setting and monitoring the firm's strategy;

2. (2)

   scrutinising the approach of executive management, the firm's performance and its standards of conduct; and

3. (3)

   carrying out other responsibilities as assigned by the firm: for example, as a member of a board committee on audit or remuneration or as a member of a committee having the purpose of a With-profits Committee (see COB 6.11.6 (1)).

The extent of the responsibilities of a particular non-executive director will be a matter of fact in each case but they will not extend to executive responsibilities.

The title given to a person performing the chief executive function is likely to be "Chief Executive Officer" or similar. However, the title, or absence of title, does not of itself determine whether the activities of a person amount to the chief executive function.

This function is having the responsibility, alone or jointly with one or more others, under the immediate authority of the governing body, for the conduct of the whole of the business (or relevant activities); or, in the case of a branch in the United Kingdom of an overseas firm, for all of the activities subject to the UK regulatory system.

For a branch in the United Kingdom of an overseas firm, the FSA would not normally expect the overseas chief executive of the firm as a whole to be approved for this function where there is a senior manager under him with specific responsibility for those activities of the branch which are subject to the UKregulatory system. In some circumstances, the person within the firm responsible for UK operations may, if the function is likely to enable him to exercise significant influence over the branch, also perform the chief executive function (see SUP 10.7.4 G). The senior manager may be called a Managing Director, UK Regional Head, Branch Manager, UK Country Head; or, in the case of a non-EEA insurer with a branch in the United Kingdom, UK chief executive.1

A person performing the chief executive function may be a member of the governing body but need not be. If the chairman of the governing body is also the chief executive, he will be discharging this function. If the responsibility is divided between more than one person but not shared, there is no person exercising the chief executive function. But if that responsibility is discharged jointly by more than one person, each of those persons will be performing the chief executive function.

Note that a body corporate may be a chief executive. If so, it will need to be approved to perform the chief executive function.

For the purpose of this chapter, the definition of partner has been extended to include a "shadow partner", that is, a person in accordance with whose directions or instructions the partners are accustomed to act. This brings the concept of a partner into line with the concept of a director.

Any apportionment referred to in SUP 10.6.17 R (3)(b) will have taken place under SYSC 2.1.1 R. The FSA may ask to see details of the apportionment but will not require, as a matter of course, a copy of the material which records this (see SYSC 2.2).

The effect of SUP 10.1.18 R is that regulated activity in SUP 10.6.17 R (and elsewhere) is to be taken as not including an activity that is a non-mainstream exempt regulated activity. Therefore, a partner whose only regulated activities are incidental to his professional services, in a partnership whose principal purpose is to carry on other than regulated activities, need not be an approved person. What amounts to the principal purpose of the firm is a matter of fact in each case having regard to all the circumstances, including the activities of the firm as a whole. Any regulated activities which such a partner carries on are not within the description of the partner function.

The Limited Liability Partnerships Act 2000 provides for a legal entity to be formed under which every member of the limited liability partnership is the agent of the limited liability partnership. The effect of SUP 10.6.21 R is to treat a limited liability partnership as a partnership for the purposes of the partner function.

There are many kinds of unincorporated association. For example, it could be a committee of management of a property unit trust; or the board of trustees of an occupational pension scheme where the trustees themselves carry on regulated activities. The FSA would expect each member of the committee of management or board to be performing the director of unincorporated association function and therefore to need to be approved to do so.

A friendly society that is not subject to the Insurance Directives is often referred to as a non-directive friendly society. For the purposes of SUP 10 it is referred to as a small friendly society.

1. (1)

   Typically a non-directive friendly Society will appoint a "committee of management" to direct its affairs. However, the governing arrangements may be informal and flexible. If this is the case, the FSA would expect the society to resolve to give responsibility for the carrying on of regulated activities to one individual who is appropriate in all the circumstances. That individual may, for example, have the title of chief executive or similar. The individual would have to be an approved person under SUP 10.6.26 R.

2. (2)

   Any apportionment of responsibilities will have taken place under SYSC 2.1.1 R. The FSA may ask to see details of the apportionment but will not require, as a matter of course, a copy of the material which records this (seeSYSC 2.2).