Central Bank Reform Act 2010
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Bank may prohibit person from carrying out controlled function, etc. |
43.— (1) Subject to subsection (4), if the Bank or the Governor has reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function or any controlled function, the Bank or the Governor, as the case may be, may issue a notice in writing (in this Part called a “prohibition notice”) forbidding the person— | |
(a) to carry out the controlled function, the specified part of a controlled function or any controlled function, as the case requires, or | ||
(b) to carry out the controlled function, the specified part of such a function or any controlled function, as the case requires, otherwise than in accordance with a specified condition or conditions, | ||
either for a specified period or indefinitely. | ||
(2) Without prejudice to the generality of subsection (1), the Bank or the Governor may form the opinion referred to in that subsection if satisfied that— | ||
(a) the person does not have the experience, qualifications or skills necessary to perform properly and effectively the controlled function, the specified part of a controlled function or any controlled function, as the case may be, | ||
(b) the person does not satisfy an applicable standard of fitness and probity in a code issued pursuant to section 50 , | ||
(c) the person has participated in serious misconduct in relation to the business of a regulated financial service provider, | ||
(d) the person has directly or indirectly provided information to the Bank, the Governor or the Head of Financial Regulation (whether pursuant to this Part or otherwise) that the person knew or ought to have known was false or misleading, | ||
(e) the person has directly or indirectly provided information that the person knew or ought to have known was false or misleading to another person in order for it to be provided to the Bank, the Governor or the Head of Financial Regulation, | ||
(f) the person has caused or sought to cause information requested by the Head of Financial Regulation by evidentiary notice from a regulated financial service provider or a person who is carrying out a controlled function not to be provided by the due date, | ||
(g) the person has failed to comply with an evidentiary notice or a suspension notice, or | ||
(h) the person has been convicted of an offence (whether in the State or outside the State) of money laundering or terrorist financing or an offence involving fraud, dishonesty or breach of trust. | ||
(3) The Bank or the Governor shall not issue a prohibition notice in relation to a person unless— | ||
(a) either— | ||
(i) all of the following requirements have been satisfied: | ||
(I) the Head of Financial Regulation has conducted an investigation into the person’s fitness and probity in accordance with this Chapter; | ||
(II) section 41 has been complied with in relation to that investigation and the report of it; | ||
(III) the Bank or the Governor, as the case may be, has considered the report and any submissions made (within the period specified pursuant to section 41 (4)) to the Head of Financial Regulation in relation to any matter in the report, | ||
or | ||
(ii) there are undisputed facts that in the reasonable opinion of the Bank or the Governor render an investigation unnecessary, and the person and any regulated financial service provider concerned have been afforded a reasonable opportunity to make a submission in relation to the matter, | ||
(b) the person and the regulated financial service provider have been afforded such a hearing in relation to the proposed issue of the prohibition notice as is necessary to do justice in the circumstances, and | ||
(c) the Bank or the Governor, as the case may be, is satisfied that the issue of a prohibition notice is necessary in the circumstances. | ||
(4) When considering whether to issue a prohibition notice, the Bank or the Governor, as the case may be, shall have particular regard to— | ||
(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and | ||
(b) the need to protect users of financial services. | ||
(5) A prohibition notice may be expressed to apply— | ||
(a) to one or more specified controlled functions or parts of controlled functions or all controlled functions, and | ||
(b) in relation to the performance of any such controlled function or part of a controlled function for one or more regulated financial service providers, a class of regulated financial service providers or every regulated financial service provider. | ||
(6) A prohibition notice may be served in any of the ways that a suspension notice may be served. | ||
(7) A prohibition notice— | ||
(a) takes effect on first service on either the prohibited person or the regulated financial service provider concerned, and | ||
(b) if an application is made to the Court under section 45 before the notice ceases to have effect, continues to have effect until that application is determined by the Court or withdrawn. | ||
Subject to section 46 , a prohibition notice ceases to have effect at the end of 2 months (or a shorter period specified in the notice) beginning on the day after it is first served as mentioned in paragraph (a) if no application is made to the Court within that period. | ||
(8) A prohibited person shall not perform a controlled function if doing so would require the person to contravene a prohibition notice served on the person. | ||
(9) A regulated financial service provider shall not permit a prohibited person to perform a controlled function if doing so would require the person to contravene a prohibition notice served on the regulated financial service provider. | ||
(10) The Bank may publish a prohibition notice if, in the opinion of the Governor, it is necessary to do so in order to achieve the purposes of this Part. | ||
(11) A prohibition notice does not alter the contractual rights of any person to remuneration or benefits. Those rights shall continue to be determined in accordance with the relevant contract. | ||
(12) The Bank or the Governor, as the case may be— | ||
(a) shall not continue a prohibition notice for longer than is necessary to achieve those purposes, and | ||
(b) shall not make an application to the Court under section 45 in relation to a prohibition notice unless the Bank or the Governor is satisfied that it is necessary that the notice continue for longer than 2 months to achieve the purposes referred to in subsection (4). |