On 28 July 2022, the Department of Finance published the Central Bank (Individual Accountability Framework) Bill 2022 (the Bill).
The main features of the Bill are aligned with those of the General Scheme of the Central Bank (Individual Accountability Framework) Bill 2021 (the Heads of Bill) which was published on 27 July 2021.
The origins of the Heads of Bill can be found in the Central Bank's 2018 Report on Behaviour and Culture of the Irish Retail Banks (the 2018 Report). The 2018 Report originally outlined the four pillars of the individual accountability framework (IAF) including:
- conduct standards
- fitness and probity reforms
- reforms to simplify regulatory enforcement against individuals
- the senior executive accountability regime (SEAR).
The Explanatory Memorandum to the Bill sets out the purpose of the Bill, namely to confer powers on the Central Bank to strengthen and enhance individual accountability in the financial services sector.
While the Bill contains greater detail on the individual accountability framework, it does not greatly alter the key features of the four pillar structure set out initially in the 2018 Report and expanded on in the Heads of Bill published in July 2021.
There continues to be political impetus to implement this framework as soon as possible. We have been helping many of our clients for some time to prepare for the individual accountability regime.
Some notable features of the Bill examined under each of the four pillars of the individual accountability framework include the following:
1. CONDUCT STANDARDS
A. STANDARDS FOR BUSINESS
Business conduct standards will apply to all regulated financial services providers (RFSPs) regardless of sector. The standards for business are substantially the same at those in the Heads of Bill with the key differences being:
Market integrity – the reference to an RFSP's obligations regarding the integrity of the market, which had been included as a market conduct obligation in the 2018 Report but not mentioned in the Heads of Bill, has reappeared in the Bill.
Dealing with regulators - an RFSP's obligations when dealing with regulators will be expanded in two ways (i) engagement and cooperation with regulators should be in good faith and without delay and (ii) for this purpose regulators will include financial regulation authorities outside the State performing functions comparable to those performed by the Central Bank under financial services legislation.
B. STANDARDS FOR INDIVIDUALS
Common conduct standards will apply to persons performing controlled function (CF) roles. Some expected behaviours for each particular standard are set out in the Bill.
Market conduct – The concept of observing proper standards of market conduct, which was included in the Heads of Bill, will include a requirement to conduct operations in compliance with trading venue rules to which the RFSP is subject by law and any market codes that may apply.
Dealing with regulators - The Bill will expand an obligation on CFs under the Heads of Bill to cooperate with the Central Bank in good faith and without delay, to financial regulation authorities outside the State.
Additional conduct standards will apply (in addition to the common conduct standards) to more senior persons, those performing pre-approval controlled functions (PCFs) in relation to all RFSPs and others who perform any other function by which the person may exercise a significant influence on the conduct of the RSFPs affairs.
STANDARDS FOR INDIVIDUALS AND THE DUTY TO TAKE STEPS
In relation to common conduct standards and additional conduct standards, breach and enforcement, the Heads of Bill published in July 2021 provided that it would be a defence if the individual could show that he or she acted "reasonably in all the circumstances of the case", and it provided a non-exhaustive list of matters that may be relevant to assessing whether a person acted reasonably.
The Bill provides that individuals subject to common conduct standards and/or additional conduct standards shall be required to take "any steps that it is reasonable in the circumstances for the person to take" to ensure relevant conduct standards are met.
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