Financial Services Bill

Session 2012 - 13
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Financial Services Bill

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
124

(c)
in subsections (3)(c), (4) to (9) and (11), for “Authority” substitute
“PRA”, and
(d)
after subsection (12) insert—
“(13)
Before giving a notice under any provision of this section, the
PRA must consult the FCA.”
5
(10)
In section 322 (rules applicable to former underwriting members)—
(a)
in subsection (1), for “The Authority” substitute “The PRA”,
(b)
in subsection (4), for “Part X (except sections 152 to 154)” substitute
“Part 9A (except sections 137R, 138F, 138G and 138H)”, and
(c)
at the end insert—
10
“(5)
In the event that the activity of effecting or carrying out
contracts of insurance as principal is not to any extent a PRA-
regulated activity, the function conferred on the PRA by
subsection (1) is exercisable instead by the FCA.”
Information
15
38
Information, investigations, disclosure etc.
Schedule 12 contains miscellaneous amendments of FSMA 2000, including
amendments relating to information gathering, investigations and disclosure.
Auditors and actuaries
39
Auditors and actuaries
20
Schedule 13 contains miscellaneous amendments of Part 22 of FSMA 2000
(auditors and actuaries).
Consumer protection and competition
40
Provisions about consumer protection and competition
(1)
After section 234B of FSMA 2000 insert—
25
“Part 16A
Consumer protection and competition
Super-complaints and references to FCA
234C
Complaints by consumer bodies
(1)
A designated consumer body may make a complaint to the FCA that a
30
feature, or combination of features, of a market in the United Kingdom
for financial services is, or appears to be, significantly damaging the
interests of consumers.
(2)
“Designated consumer body” means a body designated by the
Treasury by order.
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Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
125

(3)
The Treasury—
(a)
may designate a body only if it appears to them to represent the
interests of consumers of any description, and
(b)
must publish in such manner as they think fit (and may from
time to time vary) criteria to be applied by them in determining
5
whether to make or revoke a designation.
(4)
“Consumers” has the meaning given in section 1G.
(5)
In this section—
(a)
“market in the United Kingdom” has the meaning given in
section 140A;
10
(b)
the reference to a feature of a market in the United Kingdom for
financial services has a meaning corresponding to that which a
reference to a feature of a market in the United Kingdom for
goods and services has (by virtue of section 140A(3)) for the
purposes of Chapter 4 of Part 9A.
15
234D
Reference by scheme operator or regulated person
(1)
A relevant person may make a reference to the FCA where it appears to
that person that either the first set of conditions or the second set of
conditions are satisfied.
(2)
Each of the following is a “relevant person”—
20
(a)
the scheme operator;
(b)
a regulated person.
(3)
The first set of conditions is—
(a)
that there may have been—
(i)
in the case of a reference by the scheme operator, a
25
regular failure by one or more regulated persons to
comply with requirements applicable to the carrying on
by them of any activity, or
(ii)
in the case of a reference by a regulated person, a regular
failure by that person to comply with requirements
30
applicable to the carrying on by that person of any
activity, and
(b)
that as a result consumers have suffered, or may suffer, loss or
damage in respect of which, if they brought legal proceedings,
a remedy or relief would be available in the proceedings.
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(4)
The reference to the failure by a regulated person (“R”) to comply with
a requirement applicable to the carrying on by R of any activity
includes anything done, or omitted to be done, by R in carrying on the
activity—
(a)
which is a breach of a duty or other obligation, prohibition or
40
restriction, or
(b)
which otherwise gives rise to the availability of remedy or relief
in legal proceedings.
(5)
It does not matter whether—
(a)
the duty or other obligation, prohibition or restriction, or
45
(b)
the remedy or relief,

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
126


arises as a result of any provision made by or under this or any other
Act, a rule of law or otherwise.
(6)
The second set of conditions is—
(a)
in the case of a reference by the scheme operator, that one or
more regulated persons have, on a regular basis, acted or failed
5
to act, in such a way that, if a complaint were made under the
ombudsman scheme in relation to that conduct, the
ombudsman would be likely to determine the complaint in
favour of the complainant,
(b)
in the case of a reference by a regulated person, that the
10
regulated person has, on a regular basis, acted or failed to act in
such a way that, if a complaint were made under the
ombudsman scheme in relation to that conduct, the
ombudsman would be likely to determine the complaint in
favour of the complainant, and
15
(c)
in either case, that if the complaint fell within the compulsory
jurisdiction or the consumer credit jurisdiction, the ombudsman
would be likely to make an award under section 229(2)(a) or (b).
(7)
“Consumers” has the meaning given in section 1G.
(8)
“Regulated person” means—
20
(a)
an authorised person,
(b)
an electronic money issuer, as defined in section 1H(8),
(c)
a payment service provider, as defined in section 1H(8).
234E
Response by FCA
(1)
The FCA must within 90 days after the day on which it receives a
25
complaint under section 234C or a reference under section 234D
publish a response stating how it proposes to deal with the complaint
or reference, and in particular—
(a)
whether it has decided to take any action, or to take no action,
and
30
(b)
if it has decided to take action, what action it proposes to take.
(2)
The response must—
(a)
include a copy of the complaint or reference, and
(b)
state the FCA’s reasons for its proposals.
(3)
The Treasury may by order amend subsection (1) by substituting any
35
period for the period for the time being specified there.
234F
Section 234E: exceptions
(1)
This section applies where the FCA has received a reference under
section 234D from a person who is a relevant person as a result of
subsection (2)(b) of that section.
40
(2)
The duty to respond in section 234E does not apply if the FCA considers
that the reference is frivolous, vexatious or has been made in bad faith.
(3)
The FCA must within 90 days after the day on which it receives the
reference inform the person who made it that—
(a)
the duty to respond under section 234E does not apply by virtue
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of this section, and

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000
127

(b)
its reasons for reaching the conclusion in paragraph (a).
(4)
The Treasury may by order amend subsection (3) by substituting any
period for the period for the time being specified there.
234G
Guidance
(1)
The guidance given by the FCA under section 139A—
5
(a)
must include guidance about the presentation of a reasoned
case for a complaint under section 234C or a reference under
section 234D, and
(b)
may include guidance about such other matters as appears to
the FCA to be appropriate for the purposes of section 234C or
10
234D.
(2)
Guidance given under this section is to be taken to be general guidance
as defined in section 139B(5).
Competition
234H
Power of FCA to make request to Office of Fair Trading
15
(1)
The FCA may ask the Office of Fair Trading (“the OFT”) to consider
whether a feature, or combination of features, of a market in the United
Kingdom for financial services may prevent, restrict or distort
competition in connection with the supply or acquisition of any
financial services in the United Kingdom or a part of the United
20
Kingdom.
(2)
The OFT must, within 90 days after the day on which it receives the
request, publish a response stating how it proposes to deal with the
request and in particular—
(a)
whether it has decided to take any action, or to take no action,
25
in response to the request, and
(b)
if it has decided to take action, what action it proposes to take.
(3)
The response must state the OFT’s reasons for its proposals.
(4)
The Treasury may by order amend subsection (2) by substituting any
period for the period for the time being specified there.
30
(5)
In this section—
(a)
“market in the United Kingdom” has the meaning given in
section 140A(1);
(b)
the reference to a feature of a market in the United Kingdom for
financial services has a meaning corresponding to that which a
35
reference to a feature of a market in the United Kingdom for
goods and services has (by virtue of section 140A(3)) for the
purposes of Chapter 4 of Part 9A.”
Insolvency
41
Insolvency
40
Schedule 14 contains amendments of Part 24 of FSMA 2000 (insolvency).