Financial Services Bill

Session 2010 - 12
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Other Bills before Parliament

Financial Services Bill

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
93

(4)
A rule-making instrument must be published by the regulator making
the rule in the way appearing to that regulator to be best calculated to
bring it to the attention of the public.
(5)
The regulator making the rule may charge a reasonable fee for
providing a person with a copy of a rule-making instrument.
5
(6)
A person is not to be taken to have contravened any rule made by a
regulator if the person shows that at the time of the alleged
contravention the rule-making instrument concerned had not been
made available in accordance with this section.
138H
Verification of rules
10
(1)
The production of a printed copy of a rule-making instrument
purporting to be made by a regulator—
(a)
on which is endorsed a certificate signed by a member of staff of
that regulator who is authorised by the regulator for that
purpose, and
15
(b)
which contains the required statements,

is evidence (or in Scotland sufficient evidence) of the facts stated in the
certificate.
(2)
The required statements are—
(a)
that the instrument was made by the FCA or the PRA (as the
20
case may be),
(b)
that the copy is a true copy of the instrument, and
(c)
that on a specified date the instrument was made available to
the public in accordance with section 138G(4).
(3)
A certificate purporting to be signed as mentioned in subsection (1) is
25
to be taken to be have been properly signed (unless the contrary is
shown).
(4)
A person who wishes in any legal proceedings to rely on a rule-making
instrument may require the regulator that made the rule to endorse a
copy of the instrument with a certificate of the kind mentioned in
30
subsection (1).
138I
Consultation by the FCA
(1)
Before making any rules, the FCA must—
(a)
consult the PRA, and
(b)
after doing so, publish a draft of the proposed rules in the way
35
appearing to the FCA to be best calculated to bring them to the
attention of the public.
(2)
The draft must be accompanied by—
(a)
a cost benefit analysis,
(b)
an explanation of the purpose of the proposed rules,
40
(c)
any statement prepared under section 138K(2),
(d)
an explanation of the FCA’s reasons for believing that making
the proposed rules is compatible with section 1B(1), and
(e)
notice that representations about the proposals may be made to
the FCA within a specified time.
45

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
94

(3)
Before making the proposed rules, the FCA must have regard to any
representations made to it in accordance with subsection (2)(e).
(4)
If the FCA makes the proposed rules, it must publish an account, in
general terms, of—
(a)
the representations made to it in accordance with subsection
5
(2)(e), and
(b)
its response to them.
(5)
If the rules differ from the draft published under subsection (1)(b) in a
way which is, in the opinion of the FCA, significant the FCA must
publish—
10
(a)
details of the difference (in addition to complying with
subsection (4)) together with a cost benefit analysis, and
(b)
any statement prepared under section 138K(4).
(6)
The requirements to carry out a cost benefit analysis under this section
do not apply in relation to rules made under—
15
(a)
section 136(2);
(b)
subsection (1) of section 213 as a result of subsection (4) of that
section;
(c)
section 234;
(d)
paragraph 20 of Schedule 1ZA;
20
(e)
paragraph 12 of Schedule 1A.
(7)
“Cost benefit analysis” means—
(a)
an analysis of the costs together with an analysis of the benefits
that will arise—
(i)
if the proposed rules are made, or
25
(ii)
if subsection (5) applies, from the rules that have been
made, and
(b)
subject to subsection (8), an estimate of those costs and of those
benefits.
(8)
If, in the opinion of the FCA—
30
(a)
the costs or benefits referred to in subsection (7) 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.
35
(9)
The FCA may charge a reasonable fee for providing a person with a
copy of a draft published under subsection (1)(b).
(10)
Subsection (1)(a) does not apply to rules made by the FCA in relation to
recognised investment exchanges under Part 18.
(11)
This section is subject to section 138L.
40
138J
Consultation by the PRA
(1)
Before making any rules, the PRA must—
(a)
consult the FCA, and

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
95

(b)
after doing so, publish a draft of the proposed rules in the way
appearing to the PRA to be best calculated to bring them to the
attention of the public.
(2)
The draft must be accompanied by—
(a)
a cost benefit analysis,
5
(b)
an explanation of the purpose of the proposed rules,
(c)
any statement prepared under section 138K(2),
(d)
an explanation of the PRA’s reasons for believing that making
the proposed rules is compatible with section 2B(1) or, as the
case requires, section 2C(1) or 2D(3), and
10
(e)
notice that representations about the proposals may be made to
the PRA within a specified time.
(3)
Before making the proposed rules, the PRA must have regard to any
representations made to it in accordance with subsection (2)(e).
(4)
If the PRA makes the proposed rules, it must publish an account, in
15
general terms, of—
(a)
the representations made to it in accordance with subsection
(2)(e), and
(b)
its response to them.
(5)
If the rules differ from the draft published under subsection (1)(b) in a
20
way which is, in the opinion of the PRA, significant the PRA must
publish—
(a)
details of the difference (in addition to complying with
subsection (4)) together with a cost benefit analysis, and
(b)
any statement prepared under section 138K(4).
25
(6)
The requirements to carry out a cost benefit analysis under this section
do not apply in relation to rules made under—
(a)
section 136(2);
(b)
subsection (1) of section 213 as a result of subsection (4) of that
section;
30
(c)
section 234;
(d)
paragraph 28 of Schedule 1ZB;
(e)
paragraph 12 of Schedule 1A.
(7)
“Cost benefit analysis” means—
(a)
an analysis of the costs together with an analysis of the benefits
35
that will arise—
(i)
if the proposed rules are made, or
(ii)
if subsection (5) applies, from the rules that have been
made, and
(b)
subject to subsection (8), an estimate of those costs and of those
40
benefits.
(8)
If, in the opinion of the PRA—
(a)
the costs or benefits referred to in subsection (7) cannot
reasonably be estimated, or
(b)
it is not reasonably practicable to produce an estimate,
45

the cost benefit analysis need not estimate them, but must include a
statement of the PRA’s opinion and an explanation of it.

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
96

(9)
The PRA may charge a reasonable fee for providing a person with a
copy of a draft published under subsection (1)(b).
(10)
This section is subject to section 138L.
138K
Consultation: mutual societies
(1)
Subsection (2) applies where a regulator proposes to make a rule (“the
5
proposed rule”) which would apply both to—
(a)
authorised persons which are mutual societies, and
(b)
other authorised persons.
(2)
The regulator must prepare a statement setting out—
(a)
its opinion whether or not the impact of the proposed rule on
10
persons within subsection (1)(a) will be significantly different
from its impact on persons within subsection (1)(b), and
(b)
if so, details of the difference.
(3)
Subsection (4) applies where a regulator makes a rule which—
(a)
applies both to—
15
(i)
authorised persons which are mutual societies, and
(ii)
other authorised persons, and
(b)
differs from the draft of the proposed rule published under
section 138I(1)(b) or section 138J(1)(b) (as the case may be).
(4)
The regulator must prepare a statement setting out—
20
(a)
its opinion whether or not the impact of the rule is significantly
different from the impact of the proposed rule on—
(i)
the persons within subsection (3)(a)(i), and
(ii)
those persons as compared with persons within
subsection (3)(a)(ii), and
25
(b)
if so, details of the difference.
(5)
A “mutual society” is—
(a)
a building society within the meaning of the Building Societies
Act 1986;
(b)
a friendly society within the meaning of the Friendly Societies
30
Act 1992;
(c)
a registered society within the meaning of the Industrial and
Provident Societies Act 1965;
(d)
an EEA mutual society.
(6)
An “EEA mutual society” is—
35
(a)
a body which is a European Cooperative Society for the
purposes of Council Regulation (EC) No 1435/2003 (statute for
a European Cooperative Society);
(b)
a body which is established as a cooperative under the law of an
EEA state as mentioned in that Regulation;
40
(c)
a body which is a cooperative or mutual undertaking of such
description as the Treasury specify by order and which is
established or operates in accordance with the laws of an EEA
state.