|
| |
|
| |
(a) | for “the Authority”, in the first place, substitute “a regulator”, |
| |
(b) | after “authorised person” insert “or recognised investment |
| |
| |
(c) | for “the Authority”, in the second place, substitute “that regulator”. |
| 5 |
(4) | In subsection (4), for “Authority” substitute “regulator”. |
| |
(5) | In subsection (7), after “authorised person” insert “or recognised investment |
| |
| |
(6) | For “the Authority”, in each other place (including the heading), substitute |
| |
| 10 |
4 (1) | Section 343 (information given by auditor or actuary: persons with close |
| |
links) is amended as follows. |
| |
| |
(a) | in paragraph (a), after “authorised person” insert “or recognised |
| |
investment exchange,”, and |
| 15 |
(b) | in paragraph (b), after “authorised person” insert “or recognised |
| |
| |
| |
(a) | for “the Authority”, in the first place, substitute “a regulator”, |
| |
(b) | after “authorised person” insert “or recognised investment |
| 20 |
| |
(c) | for “the Authority”, in the second place, substitute “that regulator”. |
| |
(4) | In subsection (4), for “Authority” substitute “regulator”. |
| |
(5) | in subsection (7), after “authorised person” insert “or recognised investment |
| |
| 25 |
(6) | In subsection (8), after “authorised person” insert “or recognised investment |
| |
| |
(7) | For “the Authority”, in each other place (including the heading), substitute |
| |
| |
5 (1) | Section 344 (duty of auditor or actuary resigning to give notice) is amended |
| 30 |
| |
(2) | In each place for “Authority” substitute “appropriate regulator”. |
| |
(3) | In subsection (2)(a), after “authorised person” insert “or recognised |
| |
| |
(4) | In subsection (3)(a), for “Authority’s” substitute “regulator’s”. |
| 35 |
(5) | After subsection (3) insert— |
| |
“(4) | In this section “the appropriate regulator” means— |
| |
(a) | in the case of an auditor of, or an actuary acting for, a PRA- |
| |
authorised person, the PRA; |
| |
(b) | in any other case, the FCA.” |
| 40 |
6 (1) | For section 345 (disqualification of auditor or actuary) and the italic heading |
| |
|
| |
|
| |
|
| |
| |
345 | Disciplinary measures: FCA |
| |
(1) | Subsection (2) applies if it appears to the FCA that an auditor or |
| |
actuary to whom section 342 applies— |
| 5 |
(a) | has failed to comply with a duty imposed on the auditor or |
| |
actuary by rules made by the FCA, or |
| |
(b) | has failed to comply with a duty imposed under this Act to |
| |
communicate information to the FCA. |
| |
(2) | The FCA may do one or more of the following— |
| 10 |
(a) | disqualify the auditor or actuary from being the auditor of, or |
| |
(as the case may be) from acting as an actuary for, any |
| |
authorised person or any particular class of authorised |
| |
| |
(b) | disqualify the auditor from being the auditor of any |
| 15 |
recognised investment exchange or any particular class of |
| |
recognised investment exchange; |
| |
(c) | publish a statement to the effect that it appears to the FCA |
| |
that the auditor or (as the case may be) actuary has failed to |
| |
| 20 |
(d) | impose on the auditor or actuary a penalty, payable to the |
| |
FCA, of such amount as the FCA considers appropriate. |
| |
(3) | If an auditor or actuary has been disqualified by the PRA under |
| |
section 345A(4)(a), the FCA may disqualify the auditor or actuary, so |
| |
long as the disqualification under that provision remains in force, |
| 25 |
from being the auditor of, or (as the case may be) from acting as an |
| |
| |
(a) | any FCA-authorised person, |
| |
(b) | any particular class of FCA-authorised person, |
| |
(c) | any recognised investment exchange, or |
| 30 |
(d) | any particular class of recognised investment exchange. |
| |
(4) | In subsection (3) “FCA-authorised person” means an authorised |
| |
person who is not a PRA-authorised person. |
| |
(5) | Where under subsection (2) or (3) the FCA disqualifies a person from |
| |
being the auditor of an authorised person or recognised investment |
| 35 |
exchange or class of authorised person or recognised investment |
| |
exchange and that authorised person or recognised investment |
| |
exchange is also, or any person within that class is also, a recognised |
| |
clearing house, the FCA must — |
| |
(a) | notify the Bank of England, and |
| 40 |
(b) | notify the disqualified person that it has made a notification |
| |
| |
(6) | The FCA may remove any disqualification imposed under |
| |
paragraph (a) or (b) of subsection (2) if satisfied that the disqualified |
| |
person will in future comply with the duty in question. |
| 45 |
(7) | The FCA may at any time remove any disqualification imposed |
| |
| |
|
| |
|
| |
|
345A | Disciplinary measures: PRA |
| |
(1) | The following provisions of this section have effect only if the |
| |
Treasury, by order made after consultation with the PRA, so provide. |
| |
(2) | Subsection (3) applies if it appears to the PRA that an auditor or |
| |
actuary to whom section 342 applies— |
| 5 |
(a) | has failed to comply with a duty imposed on the auditor or |
| |
actuary by rules made by the PRA, or |
| |
(b) | has failed to comply with a duty imposed under this Act to |
| |
communicate information to the PRA. |
| |
(3) | The PRA may exercise one or more of the specified powers. |
| 10 |
(4) | The specified powers are such one or more of the following as may |
| |
be specified in the order under subsection (1)— |
| |
(a) | to disqualify the auditor or actuary from being the auditor of, |
| |
or (as the case may be) from acting as an actuary for, any |
| |
PRA-authorised person or any particular class of PRA- |
| 15 |
| |
(b) | to publish a statement to the effect that it appears to the PRA |
| |
that the auditor or (as the case may be) actuary has failed to |
| |
| |
(c) | to impose on the auditor or actuary a penalty, payable to the |
| 20 |
PRA, of such amount as the PRA considers appropriate. |
| |
(5) | Where the PRA disqualifies a person under subsection (4)(a) it |
| |
| |
| |
(b) | notify the person concerned that it has made a notification |
| 25 |
| |
(6) | Where the PRA disqualifies a person from being the auditor of a |
| |
PRA-authorised person or class of PRA-authorised person, and that |
| |
PRA-authorised person is also, or any person within that class is also, |
| |
a recognised clearing house, the PRA must, in addition to complying |
| 30 |
| |
(a) | notify the Bank of England, and |
| |
(b) | notify the disqualified person that it has made a notification |
| |
| |
(7) | The PRA may remove any disqualification imposed under |
| 35 |
subsection (4)(a) if satisfied that the disqualified person will in future |
| |
comply with the duty in question. |
| |
345B | Procedure and right to refer to Tribunal |
| |
(1) | If the FCA proposes to act under section 345(2) or the PRA proposes |
| |
to act under section 345A(3), it must give the auditor or actuary to |
| 40 |
whom the action would relate a warning notice. |
| |
(2) | A warning notice about a proposal to impose a penalty must state the |
| |
| |
(3) | A warning notice about a proposal to publish a statement must set |
| |
out the terms of the statement. |
| 45 |
|
| |
|
| |
|
(4) | If the FCA decides to act under section 345(2) or the PRA decides to |
| |
act under section 345A(3), it must give the auditor or actuary to |
| |
whom the action would relate a decision notice. |
| |
(5) | A decision notice about the imposition of a penalty must state the |
| |
| 5 |
(6) | A decision notice about the publication of a statement must set out |
| |
the terms of the statement. |
| |
(7) | If the FCA decides to act under section 345(2) or the PRA decides to |
| |
act under section 345A(3), the auditor or actuary concerned may |
| |
refer the matter to the Tribunal. |
| 10 |
345C | Duty on publication of statement |
| |
| After a statement under section 345(2)(c) or 345A(4)(b) is published, |
| |
the regulator that published it must send a copy of the statement to— |
| |
(a) | the auditor or actuary, and |
| |
(b) | any person to whom a copy of the decision notice was given |
| 15 |
| |
345D | Imposition of penalties on auditors or actuaries: statement of policy |
| |
(1) | The FCA must prepare and issue a statement of its policy with |
| |
| |
(a) | the imposition of penalties under section 345(2)(d), and |
| 20 |
(b) | the amount of penalties under that provision. |
| |
(2) | If by virtue of an order under section 345A(1), the PRA has power to |
| |
impose penalties under section 345A(4)(c), the PRA must prepare |
| |
and issue a statement of its policy with respect to— |
| |
(a) | the imposition of penalties under section 345A(4)(c), and |
| 25 |
(b) | the amount of penalties under that provision. |
| |
(3) | A regulator’s policy in determining what the amount of a penalty |
| |
should be must include having regard to— |
| |
(a) | the seriousness of the contravention, and |
| |
(b) | the extent to which the contravention was deliberate or |
| 30 |
| |
(4) | A regulator may at any time alter or replace a statement issued under |
| |
| |
(5) | If a statement issued under this section is altered or replaced, the |
| |
regulator must issue the altered or replacement statement. |
| 35 |
(6) | A regulator must, without delay, give the Treasury a copy of any |
| |
statement which it publishes under this section. |
| |
(7) | A statement issued under this section must be published by the |
| |
regulator in the way appearing to the regulator to be best calculated |
| |
to bring it to the attention of the public. |
| 40 |
(8) | In deciding whether to exercise a power under section 345(2)(d) in |
| |
the case of any particular contravention, the FCA must have regard |
| |
to any statement of policy published by it under this section and in |
| |
force at a time when the contravention occurred. |
| |
|
| |
|
| |
|
(9) | In deciding whether to exercise a power under section 345A(4)(c) in |
| |
the case of any particular contravention, the PRA must have regard |
| |
to any statement of policy published by it under this section and in |
| |
force at a time when the contravention occurred. |
| |
(10) | A regulator may charge a reasonable fee for providing a person with |
| 5 |
| |
345E | Statements of policy: procedure |
| |
(1) | Before a regulator issues a statement under section 345D, the |
| |
regulator must publish a draft of the proposed statement in the way |
| |
appearing to the regulator to be best calculated to bring it to the |
| 10 |
| |
(2) | The draft must be accompanied by notice that representations about |
| |
the proposal may be made to the regulator within a specified time. |
| |
(3) | Before issuing the proposed statement, the regulator must have |
| |
regard to any representations made to it in accordance with |
| 15 |
| |
(4) | If the regulator issues the proposed statement it must publish an |
| |
account, in general terms, of— |
| |
(a) | the representations made to it in accordance with subsection |
| |
| 20 |
(b) | its response to them. |
| |
(5) | If the statement differs from the draft published under subsection (1) |
| |
in a way which is, in the opinion of the regulator, significant, the |
| |
regulator must (in addition to complying with subsection (4)) |
| |
publish details of the difference. |
| 25 |
(6) | A regulator may charge a reasonable fee for providing a person with |
| |
a copy of a draft under subsection (1). |
| |
(7) | This section also applies to a proposal to alter or replace a statement.” |
| |
7 (1) | Section 392 (application of sections 393 and 394) is amended as follows. |
| |
(2) | In paragraph (a), for “345(2) (whether as a result of subsection (1) of that |
| 30 |
section” substitute “345B(1) (whether as a result of section 345(2), 345A(3)”. |
| |
(3) | In paragraph (b), for “345(3) (whether as a result of subsection (1) of that |
| |
section” substitute “345B(4) (whether as a result of section 345(2), 345A(3)”. |
| |
| |
| |
Amendments of Part 24 of FSMA 2000: insolvency |
| 35 |
1 | Part 24 of FSMA 2000 is amended as follows. |
| |
2 | In section 355 (interpretation of Part 24) at the end of subsection (1) insert— |
| |
“ “PRA-regulated person” means a person who— |
| |
(a) | is or has been a PRA-authorised person, |
| |
|
| |
|
| |
|
(b) | is or has been an appointed representative whose |
| |
principal (or one of whose principals) is, or was, a |
| |
PRA-authorised person, or |
| |
(c) | is carrying on or has carried on a PRA-regulated |
| |
activity in contravention of the general prohibition.” |
| 5 |
3 (1) | Section 356 (powers to participate in proceedings: company voluntary |
| |
arrangements) is amended as follows. |
| |
(2) | In subsections (1) and (2), for “the Authority” substitute “the appropriate |
| |
| |
| 10 |
(a) | for “the Authority”, in the first place, substitute “a regulator”, and |
| |
(b) | for “the Authority”, in the second place, substitute “the appropriate |
| |
| |
(4) | After subsection (3) insert— |
| |
“(4) | “The appropriate regulator” means— |
| 15 |
(a) | in the case of a PRA-authorised person— |
| |
(i) | for the purposes of subsections (1) and (2), the FCA or |
| |
| |
(ii) | for the purposes of subsection (3), each of the FCA |
| |
| 20 |
(b) | in any other case, the FCA. |
| |
(5) | If either regulator makes an application to the court under any of |
| |
those provisions in relation to a PRA-authorised person, the other |
| |
regulator is entitled to be heard at any hearing relating to the |
| |
| 25 |
(5) | In the heading, for “Authority’s powers” substitute “Powers of FCA and |
| |
| |
4 (1) | Section 357 (powers to participate in proceedings: individual voluntary |
| |
arrangements) is amended as follows. |
| |
(2) | In subsections (1) to (5), for “Authority” substitute “appropriate regulator”. |
| 30 |
| |
(a) | for “the Authority”, in the first place, substitute “a regulator”, and |
| |
(b) | for “the Authority”, in the second place, substitute “the appropriate |
| |
| |
(4) | After subsection (6) insert— |
| 35 |
“(7) | “The appropriate regulator” means— |
| |
(a) | in the case of a PRA-authorised person— |
| |
(i) | for the purposes of subsections (1) and (4) to (6), each |
| |
of the FCA and the PRA, and |
| |
(ii) | for the purposes of subsection (3), the FCA or the |
| 40 |
| |
(b) | in any other case, the FCA. |
| |
(8) | If either regulator makes an application to the court under any of the |
| |
provisions mentioned in subsection (5) in relation to a PRA- |
| |
|
| |
|
| |
|
authorised person, the other regulator is entitled to be heard at any |
| |
hearing relating to the application.” |
| |
(5) | In the heading, for “Authority’s powers” substitute “Powers of FCA and |
| |
| |
5 (1) | Section 358 (powers to participate in proceedings: trust deeds for creditors |
| 5 |
in Scotland) is amended as follows. |
| |
(2) | In subsections (2) to (4), for “Authority” substitute “appropriate regulator”. |
| |
| |
(a) | for “the Authority”, in the first place, substitute “the appropriate |
| |
| 10 |
(b) | for “the Authority”, in the second place, substitute “that regulator”. |
| |
(4) | In subsection (6), for “the Authority” substitute “a regulator”. |
| |
(5) | After subsection (6) insert— |
| |
“(6A) | “The appropriate regulator” means— |
| |
(a) | in the case of a PRA-authorised person— |
| 15 |
(i) | for the purposes of subsections (2), (3) and (4), each of |
| |
| |
(ii) | for the purposes of subsection (5), the FCA or the |
| |
| |
(b) | in any other case, the FCA.” |
| 20 |
(6) | In the heading, for “Authority’s powers” substitute “Powers of FCA and |
| |
| |
6 (1) | Section 359 (administration order) is amended as follows. |
| |
(2) | In subsection (1), for “Authority” substitute “FCA”. |
| |
(3) | After subsection (1) insert— |
| 25 |
“(1A) | The PRA may make an administration application under Schedule |
| |
B1 to the 1986 Act or Schedule B1 to the 1989 Order in relation to a |
| |
company or insolvent partnership which is a PRA-regulated |
| |
| |
(4) | In subsection (2), for “the Authority” substitute “a regulator”, and |
| 30 |
(5) | In subsection (4), in the definition of “authorised deposit taker”, for “Part |
| |
IV”, in both places, substitute “Part 4A”. |
| |
7 (1) | Section 361 (administrator’s duty to report) is amended as follows. |
| |
(2) | In subsection (2), for “Authority” substitute “appropriate regulator”. |
| |
(3) | After subsection (2) insert— |
| 35 |
“(2A) | “The appropriate regulator” means— |
| |
(a) | where the regulated activity is a PRA-regulated activity, the |
| |
| |
(b) | in any other case, the FCA.” |
| |
|
| |
|