101.47-51

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Lords Amendments to the Financial Services Bill

47

“(1)
On an application made by a licensee the OFT may, if it thinks fit,

by notice to the licensee end the suspension of a licence under

section 32A, whether the suspension was for a fixed period or for a

period determined in accordance with section 32B.”

(5)
In section 33A (power of OFT to impose requirements on licensees) after

subsection (6) insert—

“(6A)
A requirement imposed under this section during a period of

suspension cannot take effect before the end of the suspension.”

(6)
After section 34 insert—

“34ZA
Representations to OFT: suspension under section 32A

(1)
Where this section applies to an invitation by the OFT to any person

(“P”) to submit representations, the OFT must invite P, within 21

days after the notice containing the invitation is given to P or

published, or such longer period as the OFT may allow—

(a)
to submit P’s representations in writing to the OFT, and

(b)
to give notice to the OFT, if P thinks fit, that P wishes to

make representations orally,


and where notice is given under paragraph (b) the OFT must

arrange for the oral representations to be heard.

(2)
The OFT must reconsider its determination under section 32A and

determine whether to confirm it (with or without variation) or

revoke it and in doing so must take into account any

representations submitted or made under this section.

(3)
The OFT must give notice of its determination under this section to

the persons who were required to be invited to submit

representations about the original determination under section 32A

or, where the invitation to submit representations was required to

be given by general notice, must give general notice of the

confirmation or revocation.”

(7)
In section 34A (winding-up of standard licensee’s business), in subsection

(2)—

(a)
in paragraph (c), omit “suspend or”, and

(b)
after paragraph (c) insert—

“(d)
a determination to suspend such a licence under

section 32A (including a determination made under

section 34ZA on reconsidering a previous

determination under section 32A);”.

(8)
In section 41 (appeals) after subsection (1) insert—

“(1ZA)
References in the table to a determination as to the suspension of a

standard licence or group licence are to be read as references to a

determination under section 34ZA to confirm a determination to

suspend a standard licence or group licence.”

(9)
Nothing in this section affects the powers conferred by section 22 of FSMA

2000 or section 91 of this Act.”
139
Insert the following new Clause—

48


“Payment to Treasury of penalties received by Financial Services Authority

(1)
The Financial Services Authority (“the FSA”) must in respect of its financial

year beginning with 1 April 2012 and each subsequent financial year pay to

the Treasury its penalty receipts after deducting its enforcement costs.

(2)
The FSA’s “penalty receipts” in respect of a financial year are any amounts

received by it during the year by way of penalties imposed under FSMA

2000.

(3)
The FSA’s “enforcement costs” in respect of a financial year are the

expenses incurred by it during the year in connection with—

(a)
the exercise, or consideration of the possible exercise, of any of its

enforcement powers in particular cases, or

(b)
the recovery of penalties imposed under FSMA 2000.

(4)
For this purpose the FSA’s enforcement powers are—

(a)
its powers under any of the provisions mentioned in subsection (5),

(b)
its powers under any other enactment specified by the Treasury by

order,

(c)
its powers in relation to the investigation of relevant offences, and

(d)
its powers in England and Wales or Northern Ireland in relation to

the prosecution of relevant offences.

(5)
The provisions referred to in subsection (4)(a) are the following provisions

of FSMA 2000—

(a)
section 56 (prohibition orders),

(b)
section 63A (penalties relating to performance of controlled

functions without approval),

(c)
section 66 (disciplinary powers in relation to approved persons),

(d)
section 87M (public censure of issuer),

(e)
section 89 (public censure of sponsor),

(f)
section 89K (public censure of issuer),

(g)
section 91 (penalties for breach of Part 6 rules),

(h)
section 123 (penalties in case of market abuse),

(i)
section 131G (short selling etc: power to impose penalty or issue

censure),

(j)
sections 205, 206 and 206A (disciplinary measures),

(k)
section 249 (disqualification of auditor for breach of trust scheme

rules),

(l)
section 345 (disqualification of auditor or actuary), and

(m)
Part 25 (injunctions and restitution).

(6)
“Relevant offences” are—

(a)
offences under FSMA 2000,

(b)
offences under subordinate legislation made under that Act,

(c)
offences falling within section 402(1) of that Act, and

(d)
any other offences specified by the Treasury by order.

(7)
The Treasury may give directions to the FSA as to how the FSA is to comply

with its duty under subsection (1).

(8)
The directions may in particular—

49

(a)
specify descriptions of expenditure that are, or are not, to be

regarded as incurred in connection with either of the matters

mentioned in subsection (3),

(b)
relate to the calculation and timing of the deduction in respect of the

FSA’s enforcement costs, and

(c)
specify the time when any payment is required to be made to the

Treasury.

(9)
The directions may also require the FSA to provide the Treasury at

specified times with information relating to—

(a)
penalties that the FSA has imposed under FSMA 2000, or

(b)
the FSA’s enforcement costs.

(10)
The Treasury must pay into the Consolidated Fund any sums received by

them under this section.

(11)
The scheme operated by the FSA under paragraph 16 of Schedule 1 to

FSMA 2000 is, in the case of penalties received by the FSA on or after 1

April 2012, to apply only in relation to sums retained by the FSA as a result

of the deduction for which subsection (1) provides.

(12)
When section 5(2) is fully in force, the Treasury may by order repeal this

section.”
140
Insert the following new Clause—


“Payment to Treasury of penalties received by Bank of England

(1)
The Bank of England (“the Bank”) must in respect of each of its financial

years pay to the Treasury its penalty receipts after deducting its

enforcement costs.

(2)
The Bank’s “penalty receipts” in respect of a financial year are any amounts

received by the Bank during the year by way of penalties imposed under

any of the following provisions—

(a)
sections 192K and 312F of FSMA 2000, and

(b)
section 198 of the Banking Act 2009.

(3)
The Bank’s “enforcement costs” in respect of a financial year are the

expenses incurred by it during the year in connection with—

(a)
the exercise, or consideration of the possible exercise, of any of its

enforcement powers in particular cases, or

(b)
the recovery of penalties imposed under any of the provisions

mentioned in subsection (2).

(4)
For this purpose the Bank’s enforcement powers are—

(a)
its powers under any of the provisions mentioned in subsection (5),

(b)
its powers under any other enactment specified by the Treasury by

order,

(c)
its powers in relation to the investigation of offences under FSMA

2000 or of any other offences specified by the Treasury by order,

and

(d)
its powers in England and Wales or Northern Ireland in relation to

the prosecution of offences under FSMA 2000 or of any other

offences specified by the Treasury by order.

(5)
The provisions referred to in subsection (4)(a) are as follows—

50

(a)
sections 192K to 192N of FSMA 2000 (parent undertakings), as

applied to the Bank by Schedule 17A to that Act,

(b)
sections 312E and 312F of that Act (disciplinary measures in

relation to clearing houses),

(c)
sections 380, 382 and 384 of that Act (injunctions and restitution), as

applied to the Bank by Schedule 17A to that Act, and

(d)
sections 197 to 200 and 202A of the Banking Act 2009 (inter-bank

payment systems).

(6)
The Treasury may give directions to the Bank as to how the Bank is to

comply with its duty under subsection (1).

(7)
The directions may in particular—

(a)
specify descriptions of expenditure that are, or are not, to be

regarded as incurred in connection with either of the matters

mentioned in subsection (3),

(b)
relate to the calculation and timing of the deduction in respect of the

Bank’s enforcement costs, and

(c)
specify the time when any payment is required to be made to the

Treasury.

(8)
The directions may also require the Bank to provide the Treasury at

specified times with specified information relating to—

(a)
penalties that the Bank has imposed under the provisions

mentioned in subsection (2), or

(b)
the Bank’s enforcement costs.

(9)
The Treasury must pay into the Consolidated Fund any sums received by

them under this section.”
Clause 97
141
Page 165, line 20, at end insert—

“( )
an order under section 34(2) (power to amend sections 391 and 395

of FSMA 2000);”
142
Page 165, line 27, after “which” insert “section (Affirmative procedure for certain

orders) or”
Clause 100
143
Page 166, line 41, at end insert—

“(aa)
make provision treating any relevant instrument which was made,

issued or given by the Financial Services Authority under any

enactment before section 5 is fully in force and is designated by the

FCA, the PRA or the Bank of England (or any two or more of them)

in accordance with the order—

(i)
as having been made, issued or given by the designating

body or bodies;

(ii)
as having been made, issued or given (or also made, issued

or given) under a corresponding provision of this Act or of

an enactment as amended by or under this Act;

(ab)
make provision enabling a body which makes a designation by

virtue of paragraph (aa) to modify the instrument being designated;

51

(ac)
make provision treating anything done before section 5 is fully in

force by persons appointed by the Financial Services Authority

with the approval of the Treasury as having been done by the FCA;

(ad)
make provision treating anything done before section 5 is fully in

force by persons appointed by the Prudential Regulation Authority

Limited with the approval of the Treasury and the Bank of England

as having been done by the PRA;”
144
Page 167, line 1, leave out “rules made,”
145
Page 167, line 20, at end insert—

“(b)
“relevant instrument” means rules, guidance, requirements or a

code, scheme, statement or direction.”
Clause 103
146
Page 167, line 35, at end insert—

“section (Payment to Treasury of penalties received by Financial Services

Authority);”
147
Page 167, line 41, leave out “Section 94 comes” and insert “Sections 94 and

(Suspension of licences under Part 3 of Consumer Credit Act 1974) come”
Schedule 1
148
Page 170, line 11, leave out “Bank” and insert “Oversight Committee”
149
Page 170, leave out lines 12 to 14
150
Page 170, line 30, leave out from “stability” to end of line 31
151
Page 170, line 32, leave out “Bank” and insert “Oversight Committee”
152
Page 170, line 35, at end insert “Financial Policy”
153
Page 170, line 37, after “bankrupt,” insert “that a debt relief order (under Part 7A

of the Insolvency Act 1986) has been made in respect of M,”
154
Page 170, line 42, leave out “Bank” and insert “Oversight Committee”
155
Page 171, leave out lines 3 to 5
156
Page 171, line 15, leave out “7” and insert “6”
157
Page 171, line 16, leave out “7” and insert “6”
Schedule 2
158
Page 173, line 18, after “2” insert—

“(a)
for “director” substitute “non-executive director”, and

(b)
”
159
Page 173, line 20, at end insert—

    “( )
In paragraph 4, for “director” substitute “non-executive director”.”
160
Page 173, line 21, after “5” insert—

“(a)
in sub-paragraph (1), for “director” substitute “non-executive

director”, and

(b)
”