Session 2012 - 13
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Financial Services Bill


Financial Services Bill
Schedule 3 — Financial Conduct Authority and Prudential Regulation Authority: Schedules to be substituted as Schedules 1ZA and 1ZB to FSMA 2000

180

 

14    (1)  

The FCA must send a copy of its annual accounts to the

Comptroller and Auditor General as soon as is reasonably

practicable.

      (2)  

The Comptroller and Auditor General must—

(a)   

examine, certify and report on accounts received under

5

this paragraph, and

(b)   

send a copy of the certified accounts and the report to the

Treasury.

      (3)  

The Treasury must lay the copy of the certified accounts and the

report before Parliament.

10

      (4)  

Except as provided by paragraph 13(1), the FCA is exempt from

the requirements of Part 16 of the Companies Act 2006 (audit), and

its balance sheet must contain a statement to that effect.

      (5)  

In this paragraph “annual accounts” has the meaning given in

section 471 of the Companies Act 2006.

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Part 2

Status

Status

15         

In relation to any of its functions—

(a)   

the FCA is not to be regarded as acting on behalf of the

20

Crown, and

(b)   

its members, officers and staff are not to be regarded as

Crown servants.

Exemption from requirement for use of “limited” in name of FCA

16         

The FCA is to continue to be exempt from the requirements of the

25

Companies Act 2006 relating to the use of “limited” as part of its

name.

17         

If the Secretary of State is satisfied that any action taken by the

FCA makes it inappropriate for the exemption given by paragraph

16 to continue, the Secretary of State may, after consulting the

30

Treasury, give a direction removing it.

Part 3

Penalties and fees

Penalties

18    (1)  

In determining its policy with respect to the amounts of penalties

35

to be imposed by it under this Act, the FCA must take no account

of the expenses which it incurs, or expects to incur, in discharging

its functions.

      (2)  

The FCA must prepare and operate a scheme (“the financial

penalty scheme”) for ensuring that—

40

 
 

Financial Services Bill
Schedule 3 — Financial Conduct Authority and Prudential Regulation Authority: Schedules to be substituted as Schedules 1ZA and 1ZB to FSMA 2000

181

 

(a)   

the amounts paid to it by way of penalties imposed under

this Act (other than Part 6 or 18) are applied for the benefit

of authorised persons, and

(b)   

the amounts paid to it by way of penalties imposed under

Part 6 of this Act are applied for the benefit of—

5

(i)   

issuers of securities admitted to the official list, and

(ii)   

issuers who have requested or approved the

admission of financial instruments to trading on a

regulated market.

      (3)  

The financial penalty scheme may, in particular, make different

10

provision with respect to different classes of authorised person or

issuer.

      (4)  

Up-to-date details of the financial penalty scheme must be set out

in a document (“the scheme details”).

19    (1)  

The scheme details must be published by the FCA in the way

15

appearing to it to be best calculated to bring them to the attention

of the public.

      (2)  

Before making the financial penalty scheme, the FCA must

publish a draft of the proposed scheme in the way appearing to the

FCA to be best calculated to bring it to the attention of the public.

20

      (3)  

The draft must be accompanied by notice that representations

about the proposals may be made to the FCA within a specified

time.

      (4)  

Before making the scheme, the FCA must have regard to any

representations made to it in accordance with sub-paragraph (3).

25

      (5)  

If the FCA makes the proposed scheme, it must publish an

account, in general terms, of—

(a)   

the representations made to it in accordance with sub-

paragraph (3), and

(b)   

its response to them.

30

      (6)  

If the scheme differs from the draft published under sub-

paragraph (2) in a way which is, in the opinion of the FCA,

significant, the FCA must (in addition to complying with sub-

paragraph (5)) publish details of the difference.

      (7)  

The FCA must, without delay, give the Treasury a copy of any

35

scheme details published by it.

      (8)  

The FCA may charge a reasonable fee for providing a person with

a copy of—

(a)   

a draft published under sub-paragraph (2);

(b)   

scheme details.

40

      (9)  

Sub-paragraphs (2) to (6) and (8)(a) also apply to a proposal to

alter or replace the financial penalty scheme.

Fees

20    (1)  

The FCA may make rules providing for the payment to it of such

fees, in connection with the discharge of any of its qualifying

45

 
 

Financial Services Bill
Schedule 3 — Financial Conduct Authority and Prudential Regulation Authority: Schedules to be substituted as Schedules 1ZA and 1ZB to FSMA 2000

182

 

functions, as it considers will (taking account of its expected

income from fees and charges provided for by any other provision

of this Act) enable it—

(a)   

to meet expenses incurred in carrying out its functions or

for any incidental purpose,

5

(b)   

to repay the principal of, and pay any interest on, any

relevant borrowing and to meet relevant commencement

expenses, and

(c)   

to maintain adequate reserves.

      (2)  

The “qualifying functions” of the FCA are—

10

(a)   

its functions under or as a result 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

order.

15

      (3)  

In sub-paragraph (1)(b)—

“relevant borrowing” means any money borrowed by the

FCA which has been used for the purpose of meeting

expenses incurred in relation to its assumption of

functions under this Act, and

20

“relevant commencement expenses” means expenses

incurred by the FCA—

(a)   

in preparation for the exercise of functions by the

FCA under this Act, or

(b)   

for the purpose of facilitating the exercise by the FCA

25

of those functions or otherwise in connection with

their exercise by it.

      (4)  

For the purposes of sub-paragraph (3) it is irrelevant when the

borrowing of the money, the incurring of the expenses or the

assumption of functions took place (and, in particular, it is

30

irrelevant if any of those things were done at a time when the FCA

was known as the Financial Services Authority).

      (5)  

In the case of rules made under Part 6 of this Act, the rules may, in

particular, require the payment of fees in respect of—

(a)   

the continued inclusion of securities or persons in any list

35

or register required to be kept by the FCA as a result of any

provision made by or under that Part,

(b)   

access to any list or register within paragraph (a), and

(c)   

the continued admission of financial instruments to

trading on a regulated market.

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      (6)  

In fixing the amount of any fee which is to be payable to the FCA,

no account is to be taken of any sums which the FCA receives, or

expects to receive, by way of penalties imposed by it under this

Act.

      (7)  

Any fee which is owed to the FCA under any provision made by

45

or under this Act may be recovered as a debt due to the FCA.

 
 

Financial Services Bill
Schedule 3 — Financial Conduct Authority and Prudential Regulation Authority: Schedules to be substituted as Schedules 1ZA and 1ZB to FSMA 2000

183

 

Services for which fees may not be charged

21         

The power conferred by paragraph 20 may not be used to

require—

(a)   

a fee to be paid in respect of the discharge of any of the

FCA’s functions under paragraph 13, 14, 19 or 20 of

5

Schedule 3, or

(b)   

a fee to be paid by any person whose application for

approval under section 59 has been granted.

Part 4

Miscellaneous

10

Exemption from liability in damages

22    (1)  

None of the following is to be liable in damages for anything done

or omitted in the discharge, or purported discharge, of the FCA’s

functions—

(a)   

the FCA;

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(b)   

any person (“P”) who is, or is acting as, an officer of, or

member of the staff of, the FCA or a member of its

governing body;

(c)   

any person who could be held vicariously liable for things

done or omitted by P, but only in so far as the liability

20

relates to P’s conduct.

      (2)  

Sub-paragraph (1) does not apply—

(a)   

if the act or omission is shown to have been in bad faith, or

(b)   

so as to prevent an award of damages made in respect of

an act or omission on the ground that the act or omission

25

was unlawful as a result of section 6(1) of the Human

Rights Act 1998.

Accredited financial investigators

23         

For the purposes of this Act anything done by an accredited

financial investigator within the meaning of the Proceeds of Crime

30

Act 2002 who—

(a)   

is, or is acting as, an officer of, or member of the staff of, the

FCA or a member of its governing body, or

(b)   

is appointed by the FCA under section 97, 167 or 168 to

conduct an investigation,

35

           

is to be treated as done in the exercise or discharge of a function of

the FCA.

Amounts required by rules to be paid to the FCA

24         

Any amount (other than a fee) which is required by rules to be

paid to the FCA may be recovered as a debt due to the FCA.

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Revised 10 May 2012