Part

DEPP Decision Procedure and Penalties Manual

Chapter

Decisions by FSA staff under executive procedures

Printed on: 15/11/2024

Rulebook at: 01/08/2011

DEPP 4

Decisions by
FSA staff under executive procedures

DEPP 4.1

Executive decision maker

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Who takes the decision

DEPP 4.1.1

handbook-guidance
All statutory notice decisions under executive procedures will be taken either by a senior staff committee or by an individual FSA staff member.
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DEPP 4.1.2

handbook-guidance
In either case, the decision will be taken by FSA staff who have not been directly involved in establishing the evidence on which the decision is based, except in accordance with section 395(3) of the Act.
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Decisions by senior staff committee

DEPP 4.1.3

handbook-guidance
The FSA's senior executive committee will from time to time determine that particular categories of statutory notice decision to be taken under executive procedures will be taken by a senior staff committee.
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DEPP 4.1.4

handbook-guidance
A senior staff committee will consist of such FSA staff members as the FSA's senior executive committee may from time to time determine. The FSA's 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 the FSA's senior executive committee and, through it, to the FSA Board.
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DEPP 4.1.5

handbook-guidance
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.
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DEPP 4.1.6

handbook-guidance
A senior staff committee will operate on the basis of a recommendation from an FSA staff member of at least the level of associate, and with the benefit of legal advice from an FSA staff member of at least the level of associate.
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Decisions by individual FSA staff members

DEPP 4.1.7

handbook-guidance
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 the level of associate.
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DEPP 4.1.8

handbook-guidance
The individual who takes a decision under executive procedures is accountable to the FSA Board directly (if an executive director) or otherwise through line management responsible for the decision concerned.
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DEPP 4.1.9

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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.
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DEPP 4.1.10

handbook-guidance
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.
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Conflicts of interest

DEPP 4.1.11

handbook-guidance
(1) FSA staff 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. FSA staff subject to a conflict of interest must declare that interest to the person to whom they are immediately responsible for a decision.
(2) If a member of a senior staff committee has a potential conflict of interest in any matter in which he is asked to participate he will disclose the conflict to the secretariat of the senior staff committee, and disclose it:
(a) in the case of the chairman of the senior staff committee, to a member of the FSA's senior executive committee or, if the person with the conflict is the chairman of the FSA's senior executive committee, to the Chairman of the FSA;
(b) in the case of the deputy chairman of the senior staff committee, to the chairman of the committee, or if he is unavailable, to a member of the FSA's senior executive committee;
(c) in the case of any other member to the chairman or deputy chairman of the senior staff committee.
(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, he will require the member of the senior staff committee to stand down from consideration of the matter.
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DEPP 4.1.12

handbook-guidance
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.
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Procedure

DEPP 4.1.13

handbook-guidance
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 staff committee will perform the role of the Chairman of the RDC; and
(b) the secretariat to the senior staff committee will perform the role of the RDC staff;
(2) in a case where the decision will be taken by individual members of FSA staff, the distinction between the role of the RDC, its Chairman and the RDC staff has no application;
(3) the FSA staff responsible for taking the statutory notice decision may be advised by legal advisers who have also advised FSA staff recommending action by the FSA;
(4) the FSA will not normally disclose the communications between the FSA staff recommending that action be taken and those responsible for the decision to give the statutory notice unless the FSA 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 FSA staff under executive procedures; and
(5) DEPP 3.2.11 G and DEPP 3.2.21 G will not apply.
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DEPP 4.2

Urgent statutory notice cases

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DEPP 4.2.1

handbook-guidance
If FSA staff recommend that action be taken and they consider that the decision falls within the responsibility of a senior staff committee:
(1) in general the FSA staff's recommendation will go before the senior staff committee;
(2) in urgent statutory notice cases for which a senior staff committee is responsible, the decision to give the statutory notice may be taken by the chairman or, if he is unavailable, a deputy chairman of the senior staff committee, and, if it is practicable, one or more other members of the committee;
(3) the chairman or deputy chairman of the senior staff committee will take such a decision only if satisfied that the action proposed should occur before it is practicable to convene a meeting of the senior staff committee;
(4) in an exceptionally urgent statutory notice case, if in the FSA staff's opinion:
(a) the action should be taken before a recommendation to the chairman or a deputy chairman of the senior staff committee could be made; and
(b) an urgent decision on the proposed action is necessary to protect the interests of consumers;
the decision may be taken by a member of the FSA's executive of at least director of division level (which may include an acting director)or, in the case of a senior staff committee which reports directly to the FSA's senior executive committee, by a member of that committee.
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DEPP 4.2.2

handbook-guidance
In the circumstances described in DEPP 4.2.1 G (4) the FSA considers that it may be necessary for an FSA director of division or member of a senior staff committee to take the decision to give a supervisory notice even if he has been involved in establishing the evidence on which the decision is based, as permitted by section 395(3) of the Act. Where practicable, however, FSA staff will seek to ensure that the FSA director or committee member has not been so involved.
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