Session 2010 - 12
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Financial Services Bill


Financial Services Bill
Schedule 8 — Sections 26 to 31: minor and consequential amendments

221

 

(c)   

in paragraph (c), 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 (2C), at the end insert “or overseas clearing house”.

      (5)  

In subsection (5), for “the Authority” substitute “the appropriate regulator”.

5

16         

In section 298 (directions and revocation: procedure), in subsections (1),

(2)(a), (3), (5), (6), (7) (in both places) and (8), for “the Authority” substitute

“the appropriate regulator”.

17         

In section 299 (complaints about recognised bodies), in subsections (1) and

(2), for “Authority” substitute “appropriate regulator”.

10

18         

In section 300A (power to disallow excessive regulatory provision), in

subsections (2) (in both places) and (4), and in the heading, for “Authority”

substitute “appropriate regulator”.

19         

In section 300B (duty to notify proposal to make regulatory provision), in

subsections (1) to (3), for “Authority” substitute “appropriate regulator”.

15

20         

In section 300C (restriction on making provision before Authority decides

whether to act), in subsections (1), (2)(a), (3) (in both places), (4)(a) and (b),

and in the heading, for “Authority” substitute “appropriate regulator”.

21    (1)  

Section 300D (consideration by Authority whether to disallow proposed

provision) is amended as follows.

20

      (2)  

In subsections (1) to (4) and (5)(a) and (b), for “Authority” substitute

“appropriate regulator”.

      (3)  

In subsection (6)—

(a)   

in the opening words, for “the Authority” substitute “the appropriate

regulator”,

25

(b)   

in paragraph (b)—

(i)   

for “the Authority’s” substitute “the appropriate

regulator’s”, and

(ii)   

for “the Authority” substitute “the regulator concerned”, and

(c)   

in paragraph (c)(i) and (ii), for “the Authority” substitute “the

30

appropriate regulator”.

      (4)  

In the heading, for “Authority” substitute “appropriate regulator”.

22    (1)  

Section 301 (supervision of certain contracts) is amended as follows.

      (2)  

In subsection (2), for “the Authority” substitute “the Bank of England”.

      (3)  

In subsection (3)—

35

(a)   

for “the Authority”, in the first place, substitute “the FCA or the Bank

of England”, and

(b)   

for “the Authority”, in the second place, substitute “the Bank”.

      (4)  

In subsections (4)(a), (6)(a), (7) and (9), for “Authority” substitute “Bank of

England”.

40

23         

In section 301A (obligation to notify the Authority: acquisitions of control),

in subsections (1) and (2), and in the heading, for “the Authority” substitute

“the FCA”.

 
 

Financial Services Bill
Schedule 8 — Sections 26 to 31: minor and consequential amendments

222

 

24         

In section 301B (requirements for s.301A notices), in subsections (1) to (3), for

“Authority” substitute “FCA”.

25         

In section 301C (acknowledgement of receipt), in subsections (1) and (2), for

“Authority” substitute “FCA”.

26         

In section 301F (assessment: general), in subsections (1) to (3), for

5

“Authority” substitute “FCA”.

27    (1)  

Section 301G (assessment: procedure) is amended as follows.

      (2)  

In subsections (1) (in both places) and (2) to (5), for “Authority” substitute

“FCA”.

      (3)  

In subsection (6), for “the Authority’s” substitute “the FCA’s”.

10

28         

In section 301H (duration of approval), in subsections (1), (2) and (3) (in both

places), for “the Authority” substitute “the FCA”.

29         

In section 301I (objections by the Authority), in subsections (1) to (5), and in

the heading, for “Authority” substitute “FCA”.

30         

In section 301J (restriction notices), in subsections (1), (2)(b), (3) and (7), for

15

“Authority” substitute “FCA”.

31         

In section 301K (order for sale of shares), in subsection (1), for “the

Authority” substitute “the FCA”.

32    (1)  

Section 301L (offences under Chapter) is amended as follows.

      (2)  

In subsections (1) and (2) (in both places), for “the Authority” substitute “the

20

FCA”.

      (3)  

In subsection (4), for “the Authority’s” substitute “the FCA’s”.

      (4)  

In subsections (5) and (9), for “the Authority” substitute “the FCA”.

33         

In section 312A (exercise of passport rights by EEA market operator), in

subsection (1)(b), for “the Authority” substitute “the FCA”.

25

34         

In section 312B (removal of passport rights from EEA market operator), in

subsections (1) (in each place), (3), (4)(b), (5), (6), (7)(a) and (b), (8)(b), (9) to

(11) and (12) (in both places), for “Authority” substitute “FCA”.

35         

In section 312C (exercise of passport rights by recognised investment

exchange), in subsections (2) to (6), for “Authority” substitute “FCA”.

30

36         

In section 392 (warning and decisions notices: application of provisions

relating to third party rights and access to evidence)—

(a)   

in paragraph (a), after “section 280(1),” insert “section 312G(1),”, and

(b)   

in paragraph (b), after “section 280(2),” insert “section 312H(1),”.

37         

In section 412A (approval and monitoring of trade-matching and reporting

35

systems), in subsections (1), (2), (4), (5) (in both places), (6) (in both places)

and (7), for “Authority” substitute “FCA”.

38         

In section 412B (procedure for approval and suspension or withdrawal of

approval), in subsections (1) to (6), (7) (in both places), (8) and (9), for

“Authority” substitute “FCA”.

40

 
 

Financial Services Bill
Schedule 9 — Discipline and enforcement
Part 3 — Market abuse

223

 

Schedule 9

Section 34

 

Discipline and enforcement

Part 1

Introductory

1          

FSMA 2000 is amended as follows.

5

Part 2

Authorised persons acting without permission

2     (1)  

Section 20 (authorised persons acting without permission) is amended as

follows.

      (2)  

In subsection (1)—

10

(a)   

in the opening words, after “an authorised person” insert “other than

a PRA-authorised person”,

(b)   

for paragraph (a) substitute—

“(a)   

given to that person under Part 4A, or”, and

(c)   

in the words after paragraph (b), for “Authority” substitute “ FCA”.

15

      (3)  

After that subsection insert—

“(1A)   

If a PRA-authorised person carries on a regulated activity in the

United Kingdom, or purports to do so, otherwise than in accordance

with permission given to the person under Part 4A or resulting from

any other provision of this Act, the person is to be taken to have

20

contravened—

(a)   

a requirement imposed by the FCA, and

(b)   

a requirement imposed by the PRA.”

      (4)  

In subsection (2), for “The contravention” substitute “A contravention

within subsection (1) or (1A)”.

25

      (5)  

In subsection (3), for “the contravention”, in the first place, substitute “a

contravention within subsection (1) or (1A)”.

Part 3

Market abuse

3     (1)  

In the provisions of Part 8 (market abuse) mentioned in sub-paragraph (2),

30

for “Authority” or “Authority’s”, in each place, substitute “FCA” or “FCA’s”.

      (2)  

The provisions are: sections 119, 120 (including the heading), 121 to 130A

and 131A.

      (3)  

In section 121 (codes: procedure), for subsection (10) substitute—

“(10)   

“Cost benefit analysis” means—

35

(a)   

an analysis of the costs together with an analysis of the

benefits that will arise—

(i)   

if the proposed code is issued, or

 
 

Financial Services Bill
Schedule 9 — Discipline and enforcement
Part 4 — Disciplinary measures

224

 

(ii)   

if subsection (5)(b) applies, from the code that has

been issued, and

(b)   

subject to subsection (10A), an estimate of those costs and of

those benefits.

(10A)   

If, in the opinion of the FCA—

5

(a)   

the costs or benefits referred to in subsection (10) cannot

reasonably be estimated, or

(b)   

it is not reasonably practicable to produce an estimate,

   

the cost benefit analysis need not estimate them, but must include a

statement of the FCA’s opinion and an explanation of it.”

10

Part 4

Disciplinary measures

4          

In Part 14 (disciplinary measures), before section 205 insert—

“204A   

  Meaning of “relevant requirement” and “appropriate regulator”

(1)   

The following definitions apply for the purposes of this Part.

15

(2)   

“Relevant requirement” means a requirement imposed—

(a)   

by or under this Act, or

(b)   

by a qualifying EU provision specified, or of a description

specified, for the purposes of this subsection by the Treasury

by order.

20

(3)   

The PRA is “the appropriate regulator” in the case of a contravention

of—

(a)   

a requirement that is imposed under any provision of this Act

by the PRA,

(b)   

a requirement under section 56(6) where the authorised

25

person concerned is a PRA-authorised person and the

prohibition order concerned is made by the PRA,

(c)   

a requirement under section 59(1) or (2) where the authorised

person concerned is a PRA-authorised person and the

approval concerned falls to be given by the PRA.

30

(4)   

In the case of a contravention of a requirement that is imposed by a

qualifying EU provision, “the appropriate regulator” for the purpose

of any provision of this Part is whichever of the PRA or the FCA (or

both) is specified by the Treasury by order in relation to the

qualifying EU provision for the purposes of that provision of this

35

Part.

(5)   

In the case of a contravention of a requirement where the

contravention constitutes an offence, the “appropriate regulator” is

whichever of the PRA or the FCA has power to prosecute the offence

(see section 401).

40

(6)   

The FCA is “the appropriate regulator” in the case of a contravention

of any other requirement imposed by or under this Act.

(7)   

The Treasury may by order amend the provisions defining “the

appropriate regulator”.”

 
 

Financial Services Bill
Schedule 9 — Discipline and enforcement
Part 4 — Disciplinary measures

225

 

5          

In section 205 (public censure)—

(a)   

for “Authority”, in the first place, substitute “appropriate regulator”,

and

(b)   

for the words from “a requirement” to “may” substitute “a relevant

requirement imposed on the person, it may”.

5

6     (1)  

Section 206 (financial penalties) is amended as follows.

      (2)  

In subsection (1)—

(a)   

for “Authority” substitute “appropriate regulator”, and

(b)   

for the words from “a requirement” to “UCITS directive,” substitute

“a relevant requirement imposed on the person,”.

10

      (3)  

In subsection (3), for “Authority” substitute “regulator that imposed the

penalty”.

7     (1)  

Section 206A (suspending permission to carry on regulated activities etc.) is

amended as follows.

      (2)  

In subsection (1), for “Authority” substitute “appropriate regulator”.

15

      (3)  

After that subsection insert—

“(1A)   

The power conferred by subsection (1) is also exercisable by the FCA

if it considers that an authorised person has contravened a

requirement imposed on the person by—

(a)   

the Payment Services Regulations 2009, or

20

(b)   

the Electronic Money Regulations 2011.”

      (4)  

In subsection (2)—

(a)   

in the definition of “permission”, for “the Authority” substitute “the

FCA or the PRA”, and

(b)   

omit the definition of “relevant requirement”.

25

      (5)  

In subsection (6), for “Authority” substitute “appropriate regulator”.

8          

In section 207(1) (proposal to take disciplinary measures), for “the

Authority” substitute “a regulator”.

9          

In section 208(1) and (4) (decision notice), for “the Authority”, in each place,

substitute “a regulator”.

30

10         

In section 209 (publication), for “the Authority” substitute “the regulator

concerned”.

11    (1)  

Section 210 (statements of policy) is amended as follows.

      (2)  

In subsection (1), for “The Authority” substitute “Each regulator”.

      (3)  

In subsection (2), for “The Authority’s” substitute “A regulator’s”.

35

      (4)  

In subsection (3)—

(a)   

for “The Authority” substitute “A regulator”, and

(b)   

after “issued” insert “by it”.

      (5)  

In subsection (4), for “replaced, the Authority” substitute “replaced by a

regulator, the regulator”.

40

      (6)  

In subsection (5), for “The Authority” substitute “A regulator”.

 
 

Financial Services Bill
Schedule 9 — Discipline and enforcement
Part 5 — Injunctions and restitution

226

 

      (7)  

In subsection (6)—

(a)   

after “section” insert “by a regulator”, and

(b)   

for “Authority”, in both places, substitute “regulator”.

      (8)  

In subsection (7)—

(a)   

for “the Authority” substitute “a regulator”, and

5

(b)   

after “published” insert “by it”.

      (9)  

In subsection (8), for “Authority” substitute “regulator”.

12    (1)  

Section 211 (statements of policy: procedure) is amended as follows.

      (2)  

In subsection (1)—

(a)   

for “issuing” substitute “a regulator issues”, and

10

(b)   

for “Authority”, in both places, substitute “regulator”.

      (3)  

In subsections (2) to (4) and (5) (in both places), for “Authority” substitute

“regulator”.

      (4)  

In subsection (6), for “The Authority” substitute “A regulator”.

Part 5

15

Injunctions and restitution

13    (1)  

Section 380 (injunctions) is amended as follows.

      (2)  

In subsections (1) to (3), for “Authority” substitute “appropriate regulator”.

      (3)  

In subsection (6)(a)—

(a)   

in the opening words, for “Authority” substitute “appropriate

20

regulator”,

(b)   

in sub-paragraph (i), for the words from “any directly applicable” to

“UCITS directive” substitute “a qualifying EU provision specified, or

of a description specified, for the purposes of this subsection by the

Treasury by order”, and

25

(c)   

in sub-paragraph (ii), for the words from “which the Authority” to

the end substitute “mentioned in section 402(1)”.

      (4)  

In subsection (7), omit paragraph (a) (and the “and” at the end of it).

      (5)  

After subsection (7) insert—

“(8)   

The PRA is the “appropriate regulator” in the case of a contravention

30

of—

(a)   

a requirement that is imposed by the PRA under any

provision of this Act,

(b)   

a requirement under section 56(6) where the authorised

person concerned is a PRA-authorised person and the

35

prohibition order concerned is made by the PRA, or

(c)   

a requirement under section 59(1) or (2) where the authorised

person concerned is a PRA-authorised person and the

approval concerned falls to be given by the PRA.

(9)   

In the case of a contravention of a requirement that is imposed by a

40

qualifying EU provision, “the appropriate regulator” is whichever of

the PRA or the FCA (or both) is specified by the Treasury by order in

 
 

Financial Services Bill
Schedule 9 — Discipline and enforcement
Part 5 — Injunctions and restitution

227

 

relation to the qualifying EU provision for the purposes of this

section.

(10)   

In the case of a contravention of a requirement where the

contravention constitutes an offence under this Act, the “appropriate

regulator” is whichever of the PRA or the FCA has power to

5

prosecute the offence (see section 401).

(10)   

The FCA is the “appropriate regulator” in the case of a contravention

of any other requirement.

(11)   

The Treasury may by order amend the definition of “appropriate

regulator”.”

10

14    (1)  

Section 381 (injunctions in case of market abuse) is amended as follows.

      (2)  

In subsections (1) to (3), for “Authority” substitute “FCA”.

      (3)  

In subsection (4), after “The court” insert “may”.

15    (1)  

Section 382 (restitution orders) is amended as follows.

      (2)  

In subsection (1), for “Authority” substitute “appropriate regulator”.

15

      (3)  

In subsections (2) and (3), for “Authority” substitute “regulator concerned”.

      (4)  

In subsection (7), for “Authority” substitute “appropriate regulator”.

      (5)  

In subsection (9)(a)—

(a)   

in the opening words, for “Authority” substitute “appropriate

regulator”,

20

(b)   

in sub-paragraph (i), for the words from “any directly applicable” to

“UCITS directive” substitute “a qualifying EU provision specified, or

of a description specified, for the purposes of this subsection by the

Treasury by order”, and

(c)   

in sub-paragraph (ii), for the words from “which the Authority” to

25

the end substitute “mentioned in section 402(1)”.

      (6)  

In subsection (10), omit paragraph (a) (and the “and” at the end of it).

      (7)  

After subsection (10) insert—

“(11)   

The PRA is the “appropriate regulator” in the case of a contravention

of—

30

(a)   

a requirement that is imposed by the PRA under any

provision of this Act,

(b)   

a requirement under section 56(6) where the authorised

person concerned is a PRA-authorised person and the

prohibition order concerned is made by the PRA, or

35

(c)   

a requirement under section 59(1) or (2) where the authorised

person concerned is a PRA-authorised person and the

approval concerned falls to be given by the PRA.

(12)   

In the case of a contravention of a requirement that is imposed by a

qualifying EU provision, “the appropriate regulator” is whichever of

40

the PRA or the FCA (or both) is specified by the Treasury by order in

relation to the qualifying EU provision for the purposes of this

section.

 
 

 
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Revised 27 January 2012