|
| |
|
(b) | subsections (3) and (4) were omitted, and |
| |
(c) | the reference in subsection (5)(a) to authorised persons or |
| |
recognised investment exchanges were a reference to |
| |
recognised clearing houses. |
| |
(4) | Section 192E has effect as if the reference in subsection (1) to an |
| 5 |
authorised person or recognised investment exchange were a |
| |
reference to a recognised clearing house. |
| |
(5) | Section 192I has effect as if the reference in subsection (1)(a) to the |
| |
other regulator and the Bank were a reference to the FCA and the |
| |
| 10 |
(6) | Before the Bank gives a notice under section 192E(1) or (8)(b)— |
| |
(a) | if the notice relates to the parent undertaking of an |
| |
authorised person or recognised investment exchange, the |
| |
Bank must consult the FCA, and |
| |
(b) | if the notice relates to the parent undertaking of a PRA- |
| 15 |
authorised person, the Bank must also consult the PRA. |
| |
| |
18 (1) | Section 342 (information given by auditor to a regulator) applies |
| |
in relation to a relevant auditor as if— |
| |
(a) | the references in that section to a recognised investment |
| 20 |
exchange were to a recognised clearing house, |
| |
(b) | in the case of an auditor of a recognised clearing house |
| |
which is also an authorised person or recognised |
| |
investment exchange, the references to a regulator |
| |
| 25 |
(c) | in the case of an auditor of a recognised clearing house not |
| |
falling within paragraph (b), the references to a regulator |
| |
| |
(2) | A “relevant auditor” is a person who is, or has been, an auditor of |
| |
a recognised clearing house appointed under or as a result of a |
| 30 |
| |
19 (1) | Section 343 (information given by auditor: person with close links) |
| |
applies in relation to a relevant auditor as if— |
| |
(a) | the references in that section to a recognised investment |
| |
exchange were to a recognised clearing house, |
| 35 |
(b) | in the case of an auditor of a recognised clearing house |
| |
which is an authorised person or which is a recognised |
| |
investment exchange, the references to a regulator |
| |
| |
(c) | in the case of an auditor of a recognised clearing house not |
| 40 |
falling within paragraph (b), the references to a regulator |
| |
| |
(2) | A “relevant auditor” is a person who— |
| |
(a) | is, or has been, an auditor of a recognised clearing house |
| |
appointed under or as a result of a statutory provision, and |
| 45 |
(b) | is, or has been, an auditor of a person who has close links |
| |
with the recognised clearing house. |
| |
|
| |
|
| |
|
20 | Section 344 (duty of auditor resigning to give notice) applies to an |
| |
auditor to whom section 342 applies (whether by virtue of |
| |
paragraph 18 or otherwise) as if— |
| |
(a) | the references in that section to a recognised investment |
| |
exchange were to a recognised clearing house, |
| 5 |
(b) | in the case of an auditor of a recognised clearing house |
| |
which is neither an authorised person nor a recognised |
| |
investment exchange, the reference in the definition of “the |
| |
appropriate regulator” to the FCA were a reference to the |
| |
| 10 |
(c) | in the case of an auditor of a recognised clearing house |
| |
which is a PRA-authorised person, the reference in the |
| |
definition of “the appropriate regulator” to the PRA were |
| |
a reference to the PRA and the Bank, |
| |
(d) | in the case, not falling within paragraph (c), of an auditor |
| 15 |
of a recognised clearing house which is an authorised |
| |
person or which is a recognised investment exchange, the |
| |
reference in the definition of “the appropriate regulator” to |
| |
the FCA were a reference to the FCA and the Bank. |
| |
21 | Sections 345A to 345E apply to auditors to whom section 342 |
| 20 |
applies only by virtue of paragraph 18 as if— |
| |
(a) | the references in those sections to an auditor or actuary to |
| |
whom section 342 applies were to an auditor to whom |
| |
section 342 applies by virtue of paragraph 18, |
| |
(b) | the references in those sections to a PRA-authorised person |
| 25 |
were to a recognised clearing house, |
| |
(c) | in a case where the Bank disqualifies a person from being |
| |
an auditor of a recognised clearing house that is also a |
| |
recognised investment exchange, section 345A(5)(a) |
| |
required the Bank to notify the FCA, and |
| 30 |
(d) | the references in sections 345D and 345E to a regulator |
| |
| |
Public record and disclosure of information |
| |
22 | Section 347 (record of authorised persons, recognised investment |
| |
exchanges, etc), so far as it relates to recognised investment |
| 35 |
exchanges, applies in relation to the Bank as if references in that |
| |
section to a recognised investment exchange were to a recognised |
| |
| |
23 | Sections 348 to 350 and 353 (disclosure of information) apply in |
| |
relation to information received by the Bank for the purposes of, |
| 40 |
or in the discharge of, any of its functions relating to recognised |
| |
| |
Injunctions and restitution |
| |
24 (1) | The power to make an application under section 380(1), (2) or (3) |
| |
(injunctions) is exercisable by the Bank. |
| 45 |
(2) | For the purposes of the application, any reference in that section to |
| |
a relevant requirement is to— |
| |
|
| |
|
| |
|
(a) | a requirement that is imposed by or under any provision of |
| |
Part 18 of this Act that relates to a recognised clearing |
| |
| |
(b) | a requirement that is imposed under any other provision |
| |
| 5 |
(c) | a requirement that is imposed by any qualifying EU |
| |
provision that is specified, or of a description specified, for |
| |
the purposes of this sub-paragraph by the Treasury by |
| |
| |
(d) | a requirement that is imposed by this Act and whose |
| 10 |
contravention constitutes an offence that the Bank has |
| |
power to prosecute under this Act (see section 401, as |
| |
applied by paragraph 29). |
| |
25 (1) | The power to make an application under section 382(1) (restitution |
| |
order) is exercisable by the Bank. |
| 15 |
(2) | For the purposes of the application, any reference in that section to |
| |
a relevant requirement is to be read in accordance with paragraph |
| |
| |
26 (1) | The power conferred by section 384(5) (power of FCA to require |
| |
restitution order) is exercisable by the Bank. |
| 20 |
(2) | That power is exercisable if the Bank is satisfied that a recognised |
| |
clearing house has contravened a relevant requirement, or been |
| |
knowingly concerned in the contravention of a relevant |
| |
| |
(a) | that profits have accrued to the recognised clearing house |
| 25 |
as a result of the contravention; or |
| |
(b) | that one or more persons have suffered loss or been |
| |
otherwise adversely affected as a result of the |
| |
| |
(3) | For the purposes of that power, “relevant requirement” is to be |
| 30 |
read in accordance with paragraph 24(2) of this Schedule. |
| |
(4) | Where this paragraph applies, section 384(5) and (6) are to have |
| |
| |
(a) | any reference to the person concerned were a reference to |
| |
the recognised clearing house; and |
| 35 |
(b) | any reference to subsection (1) were a reference to sub- |
| |
paragraph (2) of this paragraph. |
| |
| |
27 | The provisions of Part 26 of this Act (notices) apply in relation to a |
| |
warning or decision notice given by the Bank under section 192L, |
| 40 |
312G or 312H as they apply in relation to such a notice given by |
| |
the FCA under that section. |
| |
| |
28 | Section 398 (misleading the FCA: residual cases) applies to |
| |
information given to the Bank in purported compliance with— |
| 45 |
|
| |
|
| |
|
(a) | a requirement that is imposed by or under any provision of |
| |
Part 18 of this Act that relates to a recognised clearing |
| |
| |
(b) | a requirement that is imposed under any other provision |
| |
of this Act by the Bank; or |
| 5 |
(c) | a requirement that is imposed by any qualifying EU |
| |
provision specified, or of a description specified, for the |
| |
purposes of this paragraph by the Treasury by order. |
| |
29 (1) | Section 401 (proceedings for an offence) applies to the Bank as if |
| |
for the purposes of subsections (2)(a) and (3)(a) of that section the |
| 10 |
Bank were an appropriate regulator in respect of each of the |
| |
| |
(a) | an offence under section 177(3) where the investigation is |
| |
being, or is likely to be, conducted on behalf of the Bank; |
| |
(b) | an offence under section 177(4) where the requirement is |
| 15 |
| |
(c) | an offence under section 177(6) where the warrant is issued |
| |
as a result of information on oath given by the Bank or a |
| |
person appointed by it to conduct an investigation on its |
| |
| 20 |
(d) | an offence under section 398(1) where the information was |
| |
| |
(2) | Section 401(3B) has effect subject to the provision made by this |
| |
paragraph (so that the FCA is not the appropriate regulator for the |
| |
purposes of subsections (2)(a) and (3)(a) in respect of the above |
| 25 |
| |
| |
30 | Paragraph 17 of Schedule 1ZB (records) applies in relation to the |
| |
recording of decisions made by the Bank in the exercise of its |
| |
functions relating to recognised clearing houses. |
| 30 |
| |
31 | Paragraph 18 of Schedule 1ZB (annual report by PRA) applies in |
| |
relation to the Bank, but— |
| |
(a) | as if for paragraphs (a) to (g) of sub-paragraph (1) there |
| |
| 35 |
“(a) | the discharge of its functions relating to recognised |
| |
| |
(b) | the extent to which, in its opinion, in discharging |
| |
those functions its financial stability objective has |
| |
| 40 |
(b) | as if sub-paragraph (3) were omitted. |
| |
|
| |
|
| |
|
| |
| |
32 (1) | The Bank of England may, in connection with the discharge of any |
| |
of its qualifying functions, require recognised clearing houses to |
| |
| 5 |
(2) | The “qualifying functions” of the Bank are— |
| |
(a) | its functions under or as a result of this Part of this Act, and |
| |
(b) | its functions under or as a result of a qualifying EU |
| |
provision that is specified, or of a description specified, for |
| |
the purposes of this sub-paragraph by the Treasury by |
| 10 |
| |
(3) | The power of the Bank to set fees includes power to set fees for the |
| |
purpose of meeting expenses incurred by it or the FCA— |
| |
(a) | in preparation for the exercise of functions by the Bank |
| |
under this Part of this Act, or |
| 15 |
(b) | for the purpose of facilitating the exercise by the Bank of |
| |
those functions or otherwise in connection with their |
| |
| |
(4) | It is irrelevant when the expenses were incurred (and, in |
| |
particular, it is irrelevant if expenses were incurred by the FCA at |
| 20 |
a time when it was known as the Financial Services Authority). |
| |
33 | Any fee which is owed to the Bank under paragraph 32 may be |
| |
recovered as a debt due to the Bank.” |
| |
| |
| |
Sections 26 to 31: minor and consequential amendments |
| 25 |
1 | FSMA 2000 is amended as follows. |
| |
2 (1) | Section 286 (qualification for recognition) is amended as follows. |
| |
(2) | In subsection (1)(a), for “the Authority” substitute “the appropriate |
| |
| |
(3) | In subsections (4A), (4C) and (6), for “the Authority” substitute “the FCA”. |
| 30 |
3 | In section 287 (application by an investment exchange), in subsections (1), (2) |
| |
(in both places) and (3)(d) and (e), for “the Authority” substitute “the FCA”. |
| |
4 (1) | Section 288 (application by a clearing house) is amended as follows. |
| |
(2) | In subsection (1), for “the Authority” substitute “the Bank of England”. |
| |
| 35 |
(a) | in the opening words, for “the Authority” substitute “the Bank of |
| |
| |
(b) | in paragraph (d), for “the Authority” substitute “the Bank”. |
| |
|
| |
|
| |
|
5 | In section 289 (applications: supplementary), in subsections (1), (2) (in both |
| |
places) and (3), for “the Authority” substitute “the appropriate regulator”. |
| |
6 (1) | Section 290 (recognition orders) is amended as follows. |
| |
| |
(a) | for “the Authority”, in the first place, substitute “the appropriate |
| 5 |
| |
(b) | for “the Authority”, in the second place, substitute “the regulator |
| |
| |
(3) | In subsection (1B), for “the Authority” substitute “the FCA”. |
| |
| 10 |
(5) | In subsection (3), for “the Authority” substitute “the appropriate regulator”. |
| |
| |
7 (1) | Section 290A (refusal of recognition on ground of excessive regulatory |
| |
provision) is amended as follows. |
| |
| 15 |
(a) | for “The Authority must” substitute “The appropriate regulator |
| |
| |
(b) | for “the Authority that” substitute “it that”. |
| |
(3) | In subsection (3), for “Authority” substitute “appropriate regulator”. |
| |
8 | In section 292 (overseas investment exchanges and overseas clearing house), |
| 20 |
in subsections (2), (3)(c) and (d), (4) and (5)(c), for “the Authority” substitute |
| |
“the appropriate regulator”. |
| |
9 | In section 292A (publication of information by recognised investment |
| |
exchange), in subsections (1), (3), (5) and (6), for “Authority” substitute |
| |
| 25 |
10 (1) | Section 293 (notification requirements) is amended as follows. |
| |
(2) | In subsections (1) to (3) and (5), for “Authority” substitute “appropriate |
| |
| |
(3) | In subsection (6), for “the Authority” substitute “the FCA and the Bank of |
| |
| 30 |
(4) | In subsection (7), for “the Authority” substitute “the Bank of England and |
| |
| |
(5) | In subsection (9), for “the Authority’s” substitute “the appropriate |
| |
| |
11 | For section 293A substitute— |
| 35 |
“293A | Information: compliance with EU requirements |
| |
The appropriate regulator may require a recognised body to give the |
| |
appropriate regulator such information as the appropriate regulator |
| |
reasonably requires in order to satisfy itself that the body is |
| |
complying with any qualifying EU provision that is specified, or of a |
| 40 |
description specified, for the purposes of this section by the Treasury |
| |
| |
|
| |
|
| |
|
12 | In section 294 (modification or waiver of rules), in subsections (1), (2), (4) and |
| |
(6), for “Authority” substitute “appropriate regulator”. |
| |
13 (1) | Section 295 (notification: overseas investment exchanges and overseas |
| |
clearing houses) is amended as follows. |
| |
(2) | In subsection (1), for “the Authority” substitute “the appropriate regulator”. |
| 5 |
(3) | In subsection (2), for the words from “likely” to the end substitute “likely to |
| |
affect the appropriate regulator’s assessment of whether it is satisfied as to |
| |
the requirements set out in section 292(3)”. |
| |
(4) | In subsection (3), for “the Authority” substitute “the appropriate regulator”. |
| |
| 10 |
14 (1) | Section 296 (power to give directions) is amended as follows. |
| |
(2) | In subsection (1), for “the Authority” substitute “the appropriate regulator”. |
| |
| |
(a) | for the words from “in the case of a recognised body which is a |
| |
recognised investment” to “the body” substitute “if it appears to the |
| 15 |
appropriate regulator that a recognised body”, and |
| |
(b) | for the words from “directly applicable” to the end substitute |
| |
“directly applicable EU regulation specified (or of a description |
| |
specified) in an order made by the Treasury”. |
| |
(4) | In subsection (2), for “The Authority” substitute “The regulator concerned”. |
| 20 |
| |
(a) | in the opening words, for “a recognised investment exchange other |
| |
than an overseas investment exchange” substitute “a recognised |
| |
body other than an overseas investment exchange or overseas |
| |
| 25 |
| |
(i) | for “the Authority”, in both places, substitute “the regulator |
| |
| |
(ii) | for “the exchange” substitute “the body”, and |
| |
(c) | in paragraph (b), for “the exchange” substitute “the body”. |
| 30 |
(6) | In subsection (3), for “the Authority” substitute “the regulator concerned”. |
| |
(7) | In subsection (4), for “the Authority” substitute “an appropriate regulator”. |
| |
(8) | In the heading, for “Authority’s” substitute “Appropriate regulator’s”. |
| |
15 (1) | Section 297 (revoking recognition) is amended as follows. |
| |
(2) | In subsections (1) and (2), for “the Authority” substitute “the appropriate |
| 35 |
| |
| |
(a) | in the opening words— |
| |
(i) | for “the Authority” substitute “the appropriate regulator”, |
| |
| 40 |
(ii) | omit “which is a recognised investment exchange”, |
| |
(b) | in paragraphs (a) and (b), after “exchange” insert “or (as the case may |
| |
be) of a clearing house”, and |
| |
|
| |
|