|
|
| |
| | |
|
| (1D) | But a regulated activity may not be designated under subsection |
|
| (1B) if the agreement in question is one under which the |
|
| obligation of the borrower is secured on land. |
|
| (1E) | “Credit” includes any cash loan or other financial |
|
| |
| (1F) | A person guilty of an offence under subsection (1A) is liable— |
|
| (a) | on summary conviction, to imprisonment for a term not |
|
| exceeding the applicable maximum term or a fine not |
|
| exceeding the statutory maximum, or both; |
|
| (b) | on conviction on indictment, to imprisonment for a term |
|
| not exceeding two years, or a fine, or both. |
|
| (1G) | The “applicable maximum term” is— |
|
| (a) | in England and Wales, 12 months (or 6 months, if the |
|
| offence was committed before the commencement of |
|
| section 154(1) of the Criminal Justice Act 2003); |
|
| (b) | in Scotland, 12 months; |
|
| (c) | in Northern Ireland, 6 months.” |
|
| (3) | After subsection (3) insert— |
|
| “(4) | Subsection (1A) is subject to section 39(1D). |
|
| (5) | No proceedings may be brought against a person in respect of an |
|
| offence under subsection (1A) in a case where either regulator |
|
| has taken action under section 205, 206 or 206A in relation to the |
|
| alleged contravention within section 20(1) or (1A).” |
|
| (4) | In the heading to the section, at the end insert “or section 20(1) or (1A)”. |
|
| 2B | After section 23 insert— |
|
| “23A | Parliamentary control in relation to certain orders under section 23 |
|
| (1) | This section applies to the first order made under section 23(1B). |
|
| (2) | This section also applies to any subsequent order made under |
|
| section 23(1B) which contains a statement by the Treasury that, in |
|
| their opinion, the effect (or one of the effects) of the proposed |
|
| order would be that an activity would become a credit-related |
|
| |
| (3) | An order to which this section applies may not be made unless a |
|
| draft of the order has been laid before Parliament and approved |
|
| by a resolution of each House.” |
|
| 2C | After section 26 insert— |
|
| “26A | Agreements relating to credit |
|
| (1) | An agreement that is made by an authorised person in |
|
| contravention of section 20 is unenforceable against the other |
|
| party if the agreement is entered into in the course of carrying on |
|
| a credit-related regulated activity involving matters falling |
|
| within section 23(1C)(a). |
|
| (2) | The other party is entitled to recover— |
|
|
|
| |
| | |
|
| (a) | any money or other property paid or transferred by that |
|
| party under the agreement, and |
|
| (b) | compensation for any loss sustained by that party as a |
|
| result of having parted with it. |
|
| (3) | In subsections (1) and (2) “agreement” means an agreement— |
|
| (a) | which is made after this section comes into force, and |
|
| (b) | the making or performance of which constitutes, or is |
|
| part of, the credit-related regulated activity. |
|
| (4) | If the administration of an agreement involves the carrying on of |
|
| a credit-related regulated activity, the agreement may not be |
|
| enforced by a person for the time being exercising the rights of |
|
| the lender under the agreement unless that person has |
|
| permission, given under Part 4A or resulting from any other |
|
| provision of this Act, in relation to that activity. |
|
| (5) | If the taking of steps to procure payment of debts due under an |
|
| agreement involves the carrying on of a credit-related regulated |
|
| activity, the agreement may not be enforced by a person for the |
|
| time being exercising the rights of the lender under the |
|
| agreement unless the agreement is enforced in accordance with |
|
| |
| (a) | given under Part 4A to the person enforcing the |
|
| |
| (b) | resulting from any other provision of this Act.” |
|
| 3 | In section 27 (agreements made through unauthorised persons) for |
|
| subsection (1) substitute— |
|
| “(1) | This section applies to an agreement that— |
|
| (a) | is made by an authorised person (“the provider”) in the |
|
| course of carrying on a regulated activity, |
|
| (b) | is not made in contravention of the general prohibition, |
|
| (c) | if it relates to a credit-related regulated activity, is not |
|
| made in contravention of section 20, and |
|
| (d) | is made in consequence of something said or done by |
|
| another person (“the third party”) in the course of— |
|
| (i) | a regulated activity carried on by the third party |
|
| in contravention of the general prohibition, or |
|
| (ii) | a credit-related regulated activity carried on by |
|
| the third party in contravention of section 20. |
|
| (1A) | The agreement is unenforceable against the other party.” |
|
| 4 | In section 28 (agreements made unenforceable by section 26 or 27)— |
|
| (a) | at the end of subsection (1) insert “, other than an agreement |
|
| entered into in the course of carrying on a credit-related |
|
| |
| (b) | in the heading to the section, at the end insert “: general cases”. |
|
| 5 | After section 28 insert— |
|
| “28A | Credit-related agreements made unenforceable by section 26, 26A |
|
| |
| (1) | This section applies to an agreement that— |
|
|
|
| |
| | |
|
| (a) | is entered into in the course of carrying on a credit-related |
|
| |
| (b) | is unenforceable because of section 26, 26A or 27. |
|
| (2) | The amount of compensation recoverable as a result of that |
|
| |
| (a) | the amount agreed by the parties, or |
|
| (b) | on the application of either party, the amount specified in |
|
| a written notice given by the FCA to the applicant. |
|
| (3) | If on application by the relevant firm the FCA is satisfied that it |
|
| is just and equitable in the circumstances of the case, it may by |
|
| written notice to the applicant allow— |
|
| (a) | the agreement to be enforced, or |
|
| (b) | money paid or property transferred under the agreement |
|
| |
| (4) | In considering whether to allow the agreement to be enforced or |
|
| (as the case may be) the money or property paid or transferred |
|
| under the agreement to be retained the FCA must— |
|
| (a) | if the case arises as a result of section 26 or 26A, have |
|
| regard to the issue mentioned in subsection (5), or |
|
| (b) | if the case arises as a result of section 27, have regard to |
|
| the issue mentioned in subsection (6). |
|
| (5) | The issue is whether the relevant firm reasonably believed that |
|
| by making the agreement the relevant firm was neither |
|
| contravening the general prohibition nor contravening section |
|
| |
| (6) | The issue is whether the provider knew that the third party was |
|
| (in carrying on the credit-related regulated activity) either |
|
| contravening the general prohibition or contravening section 20. |
|
| (7) | An application to the FCA under this section by the relevant firm |
|
| may relate to specified agreements or to agreements of a |
|
| specified description or made at a specified time. |
|
| (8) | “The relevant firm” means— |
|
| (a) | in a case falling within section 26, the person in breach of |
|
| |
| (b) | in a case falling within section 26A or 27, the authorised |
|
| |
| (9) | If the FCA thinks fit, it may when acting under subsection (2)(b) |
|
| |
| (a) | limit the determination in its notice to specified |
|
| agreements, or agreements of a specified description or |
|
| made at a specified time; |
|
| (b) | make the determination in its notice conditional on the |
|
| doing of specified acts by the applicant. |
|
| 28B | Decisions under section 28A: procedure |
|
| (1) | A notice under section 28A(2)(b) or (3) must— |
|
| (a) | give the FCA’s reasons for its determination, and |
|
| (b) | give an indication of— |
|
|
|
| |
| | |
|
| (i) | the right to have the matter referred to the |
|
| Tribunal that is conferred by subsection (3), and |
|
| (ii) | the procedure on such a reference. |
|
| (2) | The FCA must, so far as it is reasonably practicable to do so, give |
|
| a copy of the notice to any other person who appears to it to be |
|
| affected by the determination to which the notice relates. |
|
| (3) | A person who is aggrieved by the determination of an |
|
| application under section 28A(2)(b) or (3) may refer the matter to |
|
| |
234 | Page 226, line 38, at end insert— |
|
| “( ) | In section 130 (guidance), in subsection (1)(b), for “section 397 of this |
|
| Act” substitute “Part 6A of the Financial Services Act 2012”.” |
|
235 | Page 227, line 43, leave out ““UCITS directive”” and insert ““auctioning |
|
| |
236 | Page 228, line 24, at end insert— |
|
| “( ) | After subsection (1) insert— |
|
| “(1A) | Each regulator’s policy with respect to the imposition of |
|
| penalties, suspensions or restrictions under this Part must |
|
| include policy with respect to their imposition in relation to |
|
| conduct which constitutes or may constitute an offence by virtue |
|
| of section 23(1A) (authorised persons carrying on credit-related |
|
| regulated activities otherwise than in accordance with |
|
| |
237 | Page 229, line 13, leave out from beginning to “qualifying” in line 14 and insert “for |
|
| sub-paragraph (i) (but not the “or” following it) substitute— |
|
| “(i) | which is imposed by or under this Act or by a” |
|
238 | Page 230, line 11, leave out from beginning to “qualifying” in line 12 and insert “for |
|
| sub-paragraph (i) (but not the “or” following it) substitute— |
|
| “(i) | which is imposed by or under this Act or by a” |
|
239 | Page 231, line 16, leave out ““UCITS directive”” and insert ““auctioning |
|
| |
240 | Page 233, line 18, leave out “and” |
|
241 | Page 233, line 19, at end insert “, and |
|
| (c) | for “a final notice” substitute “the notice required by subsection |
|
| |
| ( ) | After that subsection insert— |
|
| “(2A) | The notice required by this subsection is— |
|
| (a) | in a case where the regulator is acting in accordance with |
|
| a direction given by the Tribunal under section 133(6)(b), |
|
| or by the court on an appeal from a decision by the |
|
| Tribunal under section 133(6), a further decision notice, |
|
| |
| (b) | in any other case, a final notice.”.” |
|
242 | Page 234, line 30, at end insert— |
|
|
|
| |
| | |
|
| “( ) | In subsection (7A), for “the Authority” substitute “a regulator”.” |
|
243 | Page 235, line 44, at end insert “, and |
|
| (d) | a decision under section 391(1)(c) to publish information about |
|
| the matter to which a warning notice relates.” |
|
244 | Page 236, line 1, leave out from “from” to end of line 3 and insert ““, that the |
|
| decision” to the end and insert “that— |
|
| (a) | a decision falling within any of paragraphs (a) to (c) of subsection |
|
| |
| (i) | by a person not directly involved in establishing the |
|
| evidence on which the decision is based, or |
|
| (ii) | by 2 or more persons who include a person not directly |
|
| involved in establishing that evidence, |
|
| (b) | a decision falling within paragraph (d) of subsection (1) is |
|
| |
| (i) | by a person other than the person by whom the decision |
|
| |
| (ii) | by 2 or more persons not including the person by whom |
|
| the decision was first proposed, and |
|
| (c) | a decision falling within paragraph (d) of subsection (1) is taken |
|
| in accordance with a procedure which is, as far as possible, the |
|
| same as that applicable to a decision which gives rise to an |
|
| obligation to give a warning notice and which falls within |
|
| paragraph (b) or (c) of subsection (1).”” |
|
245 | Page 237, line 30, at end insert— |
|
| “30A | In section 400 (offences by a body corporate etc) after subsection (6) |
|
| |
| “(6A) | References in this section to an offence under this Act include a |
|
| reference to an offence under Part 6A of the Financial Services |
|
| Act 2012 (offences relating to financial services).”” |
|
246 | Page 237, line 31, at end insert— |
|
| “( ) | For subsection (1) substitute— |
|
| “(1) | In this section “offence” means— |
|
| (a) | an offence under this Act, |
|
| (b) | an offence under subordinate legislation made under this |
|
| |
| (c) | an offence under Part 6A of the Financial Services Act |
|
| 2012 (offences relating to financial services).”” |
|
247 | Page 238, line 17, leave out from “of” to end of line 18 and insert “any other |
|
| |
248 | Page 238, line 23, at end insert— |
|
| “32A | In section 403 (jurisdiction and procedure in respect of offences), in |
|
| subsection (7), at the end insert “or an offence under Part 6A of the |
|
| Financial Services Act 2012 (offences relating to financial services).” |
|
|
249 | Page 239, line 33, at end insert— |
|
|
|
| |
| | |
|
| “( ) | In subsection (7), omit “board members,”.” |
|
250 | Page 242, line 11, at end insert— |
|
| “ | In section 221 (powers of court), in subsection (2), after “director or” |
|
| |
| | In section 222 (statutory immunity), in subsection (1), omit “board |
|
| |
|
251 | Page 243, line 17, at end insert— |
|
| “ | In section 232 (powers of court), in subsection (2), after “director or” |
|
| |
252 | Page 244, line 22, at end insert— |
|
| “ | In paragraph 6 (status), in sub-paragraph (2), omit “board members,”.” |
|
|
253 | Page 250, line 22, at end insert— |
|
| |
| (a) | in paragraph (a), for “or 397” substitute “or under Part 6A of the |
|
| Financial Services Act 2012”, and |
|
| (b) | after paragraph (b) insert— |
|
| “(ba) | an authorised person may have contravened |
|
| section 20 in relation to a credit-related regulated |
|
| |
254 | Page 250, line 34, leave out from “for” to end of line 35 and insert ““the Authority” |
|
| substitute “a regulator”,” |
|
255 | Page 250, leave out line 37 and insert— |
|
| “(g) | for paragraph (k) substitute—” |
|
256 | Page 254, line 20, leave out sub-paragraph (4) |
|
257 | Page 255, leave out lines 29 and 30 and insert— |
|
| “(i) | officers of, or members of the staff of, the regulator, or” |
|
258 | Page 255, line 31, leave out “directors,” |
|
259 | Page 255, line 43, leave out “or members of its governing body” |
|
|
260 | Page 257, line 11, at end insert— |
|
| “1A | In Part 22 (auditors and actuaries), before section 340 (and the italic |
|
| heading immediately before it) insert— |
|
|