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Feeling surprised? Why Financial Services GCs should complete this governance survey; and why others should watch this space

21 March 2016

Our Smarter Law blogs often focus on the importance for GCs of looking ahead at the law and regulation that is known to be coming and doing their best to help their business to be aware of and prepared for anticipatable change in good time – after all, no one likes to have been surprised by the predictable.

We also believe that good GCs have crucial roles that have a real and substantial effect on the management of their legal function and on their business generally – after all, if they did not why would the CEO and the CFO be prepared to pay their salaries?

Good GCs try to look ahead and plan for known future changes, and in Financial Services there is a lot of change coming up in the next two years (ie coming to your departmental budget planning cycles within the next two years) to which FS GCs are going to have to help their firms and their individual senior manager colleagues respond ­– ranging from regulatory employment references and record keeping to internal audit via providing access to independent legal advice for whistleblowing champions.

And then there is the personal element – who would like to be told that they are insignificant?

And yet having a Significant Influence Function within Financial Services firms carries substantial personal and team-related risk and compliance burdens for those individuals. So the FCA's recent announcement that it will be consulting on whether GCs, as heads of the legal function in authorised firms, should be subjected to individual accountability under the Senior Managers Regime (SMR) as well as SRA legal services regulation is important and its impact could be wide ranging.

The Senior Managers Regime (and the insurance version, SIMR) came into force on 8 March and, with all other FS sectors to be subject to the regime by 2018, it is likely that what is done for banks and insurers is likely to be influential for other sectors.

Consequently, our consulting, financial services and solicitors' regulatory teams at RPC have launched a confidential self-assessment survey on key themes of the new regimes and in relation to some of the anticipated content of the FCA's consultation on including the role of the GC within the SMR.   We encourage you and your peers to complete it, both to help you to assess where you and your firm are personally and because we will make available anonymised summary data to respondents so that you can understand how you compare to your peers and see where there are emerging areas of concern and uncertainty in the industry.

The 10-15 minutes that it takes to complete will hopefully provide useful learning and validation of knowledge as well as allowing you to see how you compare to the market.

Even if you are not in an FS firm, the outcomes of the FCA's consultation are likely to be important for you. In order to decide whether or not to make the legal function subject to the SMR, the FCA is going to have to consider aspects of the GC's function that are pertinent to the role in all sectors – not just in FS – and so the conclusions drawn are likely to impact on the perception of the role generally in other sectors. Where FS regulators go, governance norms in other sectors tend to follow.  So please do engage with the topic and monitor what happens.

The more relevant and careful respondents that we have the better, for obvious reasons – so please do encourage your peers to complete the survey too.

The survey will close at the end of April and we will report back on key themes emerging.

Thank you in advance for taking the time to respond: https://www.surveymonkey.co.uk/r/NTDZWTP