Related provisions for REC 4.8.2
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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) an individual with authority to act as its chairman; and(2) at least two other members.
Statutory notice decisions to be taken under executive procedures, and not falling within the responsibility of a senior staff committee, will be taken by an individual FSA staff member. The decision will be:(1) made by an executive director of the FSA Board or his delegate (who will be of at least the level of associate);(2) on the recommendation of an FSA staff member of at least the level of associate; and(3) with the benefit of legal advice from an FSA staff member of at least
An FSA staff member who considers that a statutory notice decision should be taken above his own level is free to refer that decision to a more senior level. If an FSA staff member consults another staff member about a decision, the decision remains the independent decision of the FSA 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 FSA staff member with responsibilities in relation to the decision concerned) considers that it warrants collective consideration, the individual may:(1) take the decision himself, following consultation with other FSA staff members, as above; or(2) refer it to a senior staff committee, which will take the decision itself.
The procedure for taking decisions under executive procedures will generally be less formal and structured than that for decisions by the RDC. Broadly, however, FSA 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) in a case where the decision will be taken by a senior staff committee: (a) the chairman or deputy chairman of the senior
FSA staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to the RDC that the FSA takes formal action. The FSA may also be invited to exercise certain powers by the persons who would be affected by the exercise of those powers. In these circumstances if the person concerned has agreed to or accepted the action proposed then the decisions referred to in DEPP 2.5.13 G will be taken by FSA staff under executive procedures
The decisions referred to in DEPP 2.5.12 G are:(1) the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;(2) the decision to give a warning notice or decision notice pursuant to section 280(1) or (2)(a) (revocation of recognised
The FSA expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FSA decision maker.
Decisions on whether to give a statutory notice will be taken by a 'decision maker'. The FSA's assessment of who is the appropriate decision maker is subject to the requirements of section 395 of the Act and will depend upon the nature of the decision, including its complexity, importance and urgency. References to the 'decision maker' in DEPP are to:(1) the Regulatory Decisions Committee (RDC); or(2) FSA staff under executive procedures; or(3) FSA staff under the settlement decision
The decision maker will also take decisions associated with a statutory notice (a 'statutory notice associated decision'). Statutory notice associated decisions include decisions:(1) to set or extend the period for making representations;(2) on whether the FSA is required to give a copy of the statutory notice to any third party and, if so, the period for the third party to make representations; and(3) on whether to refuse access to FSA material, relevant to the relevant statutory
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making by FSA staff under executive procedures (DEPP 4);(4) the procedure for decision making by FSA staff under the settlement decision procedure (DEPP 5).
The RDC has no power under the Act to require persons to attend before it or provide information. It is not a tribunal and will make a decision based on all the relevant information available to it, which may include views of FSA staff about the relative quality of witness and other evidence.
If the RDC decides that the FSA should give a warning notice or a first supervisory notice:(1) the RDC will settle the wording of the warning notice or first supervisory notice, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure
If the RDC decides that the FSA should give a decision notice or a second supervisory notice:(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FSA is required to give a copy of the notice to a third party;
The FSA will consider the full circumstances of each case when determining whether or not to take action for a financial penalty or public censure. Set out below is a list of factors that may be relevant for this purpose. The list is not exhaustive: not all of these factors may be applicable in a particular case, and there may be other factors, not listed, that are relevant.(1) The nature, seriousness and impact of the suspected breach, including:(a) whether the breach was deliberate
Key steps in the section 298 and (for RAPs) regulation 5 procedure3The FSA will:Guidance(1)give written notice to the recognised body (or applicant);The notice will state why the FSA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made .(2)take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the recognised body or of the applicant,
When making a decision on an application for registration under the RCB Regulations, or in relation to material changes to the contractual terms of the regulated covered bond, or in relation to a change of owner, or when seeking to use direction, revocation or penalty powers, the RCB Regulations require the FSA to give the subject of the intended action a warning notice and a decision notice. The recipient of a warning notice has the right to make representations to the decision
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FSA staff;(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.
When considering an application for approval as a sponsor the FSA may:(1) carry out any enquiries and request any further information which it considers appropriate, including consulting other regulators;(2) request that the applicant or its specified representative answer questions and explain any matter the FSA considers relevant to the application;(3) take into account any information which it considers appropriate in relation to the application.22(4) [deleted]22[Note: The
DEPP9gives guidance on the FSA's decision making procedures including the procedures it will follow if it proposes to refuse an application for variation of Part IV permission either in whole or in part (for example, an application granted by the FSA but subject to limitations or requirements not applied for).9
If a decision maker is asked to decide whether to give a decision notice or second supervisory notice, it will:(1) review the material before it;(2) consider any representations made (whether written, oral or both) and any comments by FSA staff or others in respect of those representations;(3) decide whether to give the notice and the terms of any notice given.
Under section 388(3) of the Act, following the giving of a decision notice but before the FSA takes action to which the decision notice relates, the FSA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FSA can only do this if the person receiving the further decision notice gives its consent. In these circumstances the following procedure will apply:(1) FSA staff will recommend
Where the FSA is proposing or deciding to publish a statement censuring an RAP or impose a penalty on the RAP under regulation 5A of the RAP Regulations, the FSA's decision maker will be the RDC. This is to ensure that the FSA's power to censure or impose a penalty on an RAP has the same layer of separation in the decision making process, and is exercised consistently with, similar penalty and censure powers of the FSA under other legislation. The RDC will make its decisions following
The FSA will follow the executive procedures for statutory notice decisions and statutory notice associated decisions if it:(1) proposes to refuse to approve a prospectus; or(2) decides to refuse to approve a prospectus after having given the applicant a written notice.Note: DEPP 44 sets out the executive procedures for statutory notice decisions and statutory notice associated decisions.4
FSA staff responsible for the taking of a statutory notice decision under executive procedures may refer the matter to the RDC for the RDC to decide whether to give the statutory notice if:(1) the RDC is already considering, or is shortly to consider, a closely related matter; and(2) the relevant FSA staff believe, having regard to all the circumstances, that the RDC should have responsibility for the decision. The relevant considerations might include: (a) the desirability of
1This manual (DEPP) is relevant to firms, approved persons and other persons, whether or not they are regulated by the FSA. It sets out:(1) the FSA's decision-making procedure for giving statutory notices. These are warning notices, decision notices and supervisory notices (DEPP 1.2 to DEPP 5);(2) the FSA's policy with respect to the imposition and amount of penalties under the Act (see DEPP 6);(2A) 2the FSA's policy with respect to the imposition of suspensions or restrictions,
(1) When deciding whether to take enforcement action under Part 7 of the RCB Regulations, and what form that enforcement action should take, the FSA will consider all relevant factors, including:(a) the relevant factors on decisions to take action set out in DEPP 6.2.1 G;(b) whether any contractual or other arrangements agreed between the parties can be used effectively to address any perceived failure under the RCB Regulations; and(c) the interests of investors in the relevant