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2021 | OriginalPaper | Buchkapitel

3. Boardroom Morality and the ‘Fit and Proper’ Test: An Aristotelian Perspective

verfasst von : Owen Kelly

Erschienen in: Ethical Discourse in Finance

Verlag: Springer International Publishing

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Abstract

This chapter argues that Aristotle’s character-based ethics are immanent in the regulatory frameworks of the UK financial services industry; and that questions of character can never be entirely removed from the regulator’s assessment of a person’s suitability to work in it. It proposes some Aristotelian methods by which this factor can be taken into account. The ‘Fit and Proper Test’ is a cornerstone of the UK’s approach to regulating the industry. Only people who pass a test can hold certain senior roles and responsibilities. While most of the test concerns empirically measurable matters, such as compliance with professional standards and legal codes, it retains an element of character judgement—applicants need to have honesty and integrity. Aristotle provides the definitive account of how individual ethics derive from character. This chapter argues that he also provides practical guidance for contemporary financial regulators, as they seek to prevent unethical behaviour.

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Fußnoten
1
The full list of these criteria is as follows:
“FIT 2.1.
In determining a person's honesty, integrity and reputation, the FCA will have regard to all relevant matters including, but not limited to, those set out in FIT 2.1.3 G which may have arisen either in the United Kingdom or elsewhere. The FCA should be informed of these matters (see SUP 10A.14.17 R and SUP 10C.14.18R), but will consider the circumstances only where relevant to the requirements and standards of the regulatory system. For example, under FIT 2.1.3 G(1), conviction for a criminal offence will not automatically mean an application will be rejected. The FCA treats each candidate's application on a case-by-case basis, taking into account the seriousness of, and circumstances surrounding, the offence, the explanation offered by the convicted person, the relevance of the offence to the proposed role, the passage of time since the offence was committed and evidence of the individual's rehabilitation.
FIT 2.1.1.
A firm determining the honesty, integrity and reputation of staff being assessed under FIT, should consider all relevant matters, including those set out in FIT 2.1.3 G, which may have arisen either in the United Kingdom or elsewhere. Firms should inform themselves of relevant matters, including checking for convictions for criminal offences (where possible) and contacting previous employers who have employed that candidate or person. If any staff being assessed under FIT has a conviction for a criminal offence, the firm should consider the seriousness of and circumstances surrounding the offence, the explanation offered by that person, the relevance of the offence to the proposed role, the passage of time since the offence was committed and evidence of the individual’s rehabilitation.
FIT 2.1.2.
In considering the matters in FIT 2.1.1 G, the FCA will look at whether the person'sreputation might have an adverse impact upon the firm for which the controlled function is or is to be performed and at the person's responsibilities.
FIT 2.1.2 A.
In considering the reputation of staff being assessed under FIT 2.1.1 AG a firm should have regard to whether that person's reputation might have an adverse impact upon the firm for which the function is to be performed and the person's responsibilities.
FIT 2.1.3.
The matters referred to in FIT 2.1.1 G to which the FCA will have regard, and to which a firm should also have regard, include, but are not limited to:
1.
whether the person has been convicted of any criminal offence; this must include, where provided for by the Rehabilitation Exceptions Orders to the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (as applicable), any spent convictions; particular consideration will be given to offences of dishonesty, fraud, financial crime or an offence under legislation relating to companies, building societies, industrial and provident societies, credit unions, friendly societies, banking, other financial services, insolvency, consumer credit companies, insurance, consumer protection, money laundering, market manipulation and insider dealing, whether or not in the United Kingdom;
 
2.
whether the person has been the subject of any adverse finding or any settlement in civil proceedings, particularly in connection with investment or other financial business, misconduct, fraud or the formation or management of a body corporate;
 
3.
whether the person has been the subject of, or interviewed in the course of, any existing or previous investigation or disciplinary proceedings, by the appropriate regulator, by other regulatory authorities (including a previous regulator), clearing houses and exchanges, professional bodies or government bodies or agencies;
 
4.
whether the person is or has been the subject of any proceedings of a disciplinary or criminal nature, or has been notified of any potential proceedings or of any investigation which might lead to those proceedings;
 
5.
whether the person has contravened any of the requirements and standards of the regulatory system or the equivalent standards or requirements of other regulatory authorities (including a previous regulator), clearing houses and exchanges, professional bodies or government bodies or agencies;
 
6.
whether the person has been the subject of any justified complaint relating to regulated activities;
 
7.
whether the person has been involved with a company, partnership or other organisation that has been refused registration, authorisation, membership or a licence to carry out a trade, business or profession, or has had that registration, authorisation, membership or licence revoked, withdrawn or terminated or has been expelled by a regulatory or government body;
 
8.
whether, as a result of the removal of the relevant licence, registration or other authority, the person has been refused the right to carry on a trade, business or profession requiring a licence, registration or other authority;
 
9.
whether the person has been a director, partner, or concerned in the management, of a business that has gone into insolvency, liquidation or administration while the personhas been connected with that organisation or within one year of that connection;
 
10.
whether the person, or any business with which the person has been involved, has been investigated, disciplined, censured or suspended or criticised by a regulatory or professional body, a court or Tribunal, whether publicly or privately;
 
11.
whether the person has been dismissed, or asked to resign and resigned, from employment or from a position of trust, fiduciary appointment or similar;
 
12.
whether the person has ever been disqualified from acting as a director or disqualified from acting in any managerial capacity;
 
13.
whether, in the past, the person has been candid and truthful in all their dealings with any regulatory body and whether the person demonstrates a readiness and willingness to comply with the requirements and standards of the regulatory system and with other legal, regulatory and professional requirements and standards.”.
 
(FCA Handbook, FIT 2.1 Honesty, integrity and reputation. (n.d.). Retrieved January 15, 2021, from https://​www.​handbook.​fca.​org.​uk/​handbook/​FIT/​2/​?​view=​chapter).
 
Literatur
Zurück zum Zitat Aristotle, R. C., & Broadie, S. (2002). Aristotle: Nicomachean ethics. Oxford University Press. Aristotle, R. C., & Broadie, S. (2002). Aristotle: Nicomachean ethics. Oxford University Press.
Metadaten
Titel
Boardroom Morality and the ‘Fit and Proper’ Test: An Aristotelian Perspective
verfasst von
Owen Kelly
Copyright-Jahr
2021
DOI
https://doi.org/10.1007/978-3-030-81596-7_3