|
|
| |
| | |
|
| (2) | In exercising any functions within sub-paragraph (3), the Regulator |
|
| must act through its board. |
|
| (3) | The functions referred to in sub-paragraph (2) are— |
|
| (a) | giving general directions under section (Directions); |
|
| (b) | imposing generally-imposed requirements under section (System |
|
| |
| (4) | The function of issuing general guidance may not be discharged by an |
|
| officer or member of staff of the Regulator or of the FCA. |
|
| |
| 6 (1) | The Regulator must in respect of each of its financial years prepare an |
|
| annual plan which has been approved by the FCA. |
|
| (2) | The plan must be prepared— |
|
| (a) | in the case of the Regulator’s first financial year, as soon as |
|
| reasonably practicable after it is established, and |
|
| (b) | in the case of each subsequent financial year, before the start of |
|
| |
| (3) | The Regulator may, with the approval of the FCA, vary the plan in |
|
| respect of a financial year at any time after its preparation. |
|
| (4) | An annual plan in respect of a financial year must set out— |
|
| (a) | the aims of the Regulator for the year, |
|
| (b) | how the extent to which each of those aims is met is to be |
|
| |
| (c) | the relative priorities of each of those aims, and |
|
| (d) | how its resources are to be allocated among the activities to be |
|
| carried on in connection with the discharge of its functions. |
|
| (5) | In sub-paragraph (4) references to aims for a financial year include aims |
|
| for a longer period that includes that year. |
|
| (6) | Before preparing or varying an annual plan, the Regulator must |
|
| |
| |
| (b) | such other persons (if any) as the Regulator considers |
|
| |
| (7) | The Regulator must publish each annual plan, and each variation of an |
|
| annual plan, in the way it considers appropriate. |
|
| |
| 7 (1) | At least once a year, the Regulator must make a report to the FCA in |
|
| relation to the discharge of its functions. |
|
| |
| (a) | set out the extent to which the Regulator has met its aims and |
|
| priorities for the period covered by the report, |
|
| (b) | set out the extent to which the Regulator has advanced its |
|
| payment systems objectives, |
|
| (c) | include a copy of its latest accounts, and |
|
|
|
| |
| | |
|
| (d) | comply with any requirement specified in rules made by the |
|
| |
| (3) | The Regulator must publish each report in the way it considers |
|
| |
| (4) | Nothing in this paragraph requires the Regulator to make a report at any |
|
| time in the period of 12 months beginning with its establishment. |
|
| |
| (a) | require the Regulator to comply with any provision of the |
|
| Companies Act 2006 about accounts and their audit which would |
|
| not otherwise apply to it, or |
|
| (b) | direct that any provision of that Act about accounts and their |
|
| audit is to apply to the Regulator with such modifications as are |
|
| specified in the direction, whether or not the provision would |
|
| |
| (6) | Compliance with any requirement under sub-paragraph (5)(a) or (b) is |
|
| enforceable by injunction or, in Scotland, an order for specific |
|
| performance under section 45 of the Court of Session Act 1988. |
|
| (7) | Proceedings under sub-paragraph (6) may be brought only by the |
|
| |
| (8) | The FCA’s power to make rules under sub-paragraph (2)(d) is to be |
|
| treated as if it were a power of the FCA to make rules under FSMA 2000 |
|
| (and rules made under sub-paragraph (2)(d) are to be treated |
|
| |
| |
| 8 (1) | The Regulator must send a copy of its annual accounts to the |
|
| Comptroller and Auditor General and the Treasury as soon as is |
|
| |
| (2) | The Comptroller and Auditor General must— |
|
| (a) | examine, certify and report on accounts received under this |
|
| |
| (b) | send a copy of the certified accounts and the report to the |
|
| |
| (3) | The Treasury must lay the copy of the certified accounts and the report |
|
| |
| (4) | The Regulator must send a copy of the certified accounts and the report |
|
| |
| (5) | Except as provided for by paragraph 7(5), the Regulator 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. |
|
| (6) | In this paragraph “annual accounts” has the meaning given by section |
|
| 471 of the Companies Act 2006. |
|
|
|
| |
| | |
|
| |
| 9 (1) | For the purposes mentioned in sub-paragraph (2) the FCA may make |
|
| rules requiring participants in regulated payment systems to pay to the |
|
| FCA specified amounts or amounts calculated in a specified way. |
|
| |
| (a) | meeting the relevant costs (see sub-paragraph (3)), and |
|
| (b) | enabling the Regulator to maintain adequate reserves. |
|
| (3) | In this paragraph “the relevant costs” means— |
|
| (a) | the expenses incurred, or expected to be incurred, by the |
|
| Regulator in connection with the discharge of its functions, |
|
| (b) | the expenses incurred by the FCA in establishing the Regulator, |
|
| (c) | any other expenses incurred by the FCA in connection with the |
|
| discharge of its functions under this Part, and |
|
| (d) | any expenses incurred, or expected to be incurred, by the FCA in |
|
| connection with the discharge of the Regulator’s functions by an |
|
| officer or member of staff of the FCA under arrangements made |
|
| |
| | For the purposes of paragraph (b) it does not matter when the expenses |
|
| |
| (4) | Before making any rules under sub-paragraph (1) the FCA must consult |
|
| |
| (5) | The amounts to be paid under the rules may include a component to |
|
| cover the expenses of the FCA in collecting the payments (“collection |
|
| |
| (6) | The FCA must pay to the Regulator the amounts that it receives under |
|
| the rules, apart from the following amounts (which it may keep)— |
|
| (a) | amounts in respect of expenses falling within sub-paragraph |
|
| |
| (b) | amounts in respect of its collection costs. |
|
| (7) | In this paragraph “specified” means specified in the rules. |
|
| (8) | The FCA’s power to make rules under this paragraph is to be treated as |
|
| if it were a power of the FCA to make rules under FSMA 2000 (and rules |
|
| made under this paragraph are to be treated accordingly). |
|
| (9) | But the requirements to carry out a cost benefit analysis under section |
|
| 138I of FSMA 2000 do not apply in relation to rules made under this |
|
| |
| |
| 10 (1) | The Regulator must in respect of each of its financial years pay to the |
|
| Treasury its penalty receipts after deducting its enforcement costs. |
|
| (2) | The Regulator’s “penalty receipts” in respect of a financial year are any |
|
| amounts received by it during the year by way of penalties imposed |
|
| under section (Penalties). |
|
| (3) | The Regulator’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 section (Penalties). |
|
| (4) | For the purposes of sub-paragraph (3) the Regulator’s enforcement |
|
| |
| (a) | its powers under sections (Publication of compliance failures etc) to |
|
| |
| (b) | its powers under any other enactment specified by the Treasury |
|
| |
| (c) | its powers in relation to the investigation of relevant offences; |
|
| (d) | its powers in England and Wales or Northern Ireland in relation |
|
| to the prosecution of relevant offences. |
|
| (5) | In sub-paragraph (4) “relevant offences” means— |
|
| (a) | offences under this Part; |
|
| (b) | any other offences specified by the Treasury by order. |
|
| (6) | The Treasury may give directions to the Regulator as to how it is to |
|
| comply with its duty under sub-paragraph (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 sub-paragraph (3), |
|
| (b) | relate to the calculation and timing of the deduction in respect of |
|
| the Regulator’s enforcement costs, and |
|
| (c) | specify the time when any payment is required to be made to the |
|
| |
| (8) | The directions may also require the Regulator to provide the Treasury at |
|
| specified times with specified information relating to— |
|
| (a) | penalties that the Regulator has imposed under section |
|
| |
| (b) | the Regulator’s enforcement costs. |
|
| (9) | The Treasury must pay into the Consolidated Fund any sums received |
|
| by them under this paragraph. |
|
| 11 (1) | The Regulator must prepare and operate a scheme (“the financial |
|
| penalty scheme”) for ensuring that the amounts that, as a result of the |
|
| deduction for which paragraph 10(1) provides, are retained by the |
|
| Regulator in respect of amounts paid to it by way of penalties imposed |
|
| under section (Penalties) are applied for the benefit of participants in |
|
| regulated payment systems. |
|
| (2) | The financial penalty scheme may, in particular, make different |
|
| provision with respect to different classes of participant. |
|
| (3) | The financial penalty scheme must ensure that those who have become |
|
| liable to pay a penalty to the Regulator in any financial year do not |
|
| receive any benefit under the scheme in the following financial year. |
|
| (4) | Up-to-date details of the financial penalty scheme must be set out in a |
|
| document (the “scheme details”). |
|
|
|
| |
| | |
|
| 12 (1) | The scheme details must be published by the Regulator in the way |
|
| appearing to it to be best calculated to bring them to the attention of the |
|
| |
| (2) | Before making the financial penalty scheme, the Regulator must publish |
|
| a draft of the proposed scheme in the way appearing to the Regulator to |
|
| be best calculated to bring it to the attention of the public. |
|
| (3) | The draft must be accompanied by notice that representations about the |
|
| proposals may be made to the Regulator within a specified time. |
|
| (4) | Before making the scheme, the Regulator must have regard to any |
|
| representations made to it in accordance with sub-paragraph (3). |
|
| (5) | If the Regulator makes the proposed scheme, it must publish an account, |
|
| |
| (a) | the representations made to it in accordance with sub-paragraph |
|
| |
| (b) | its response to them. |
|
| (6) | If the scheme differs from the draft published under sub-paragraph (2) |
|
| in a way which is, in the opinion of the Regulator, significant, the |
|
| Regulator must (in addition to complying with sub-paragraph (5)) |
|
| publish details of the difference. |
|
| (7) | The Regulator must, without delay, give the Treasury a copy of any |
|
| scheme details published by it. |
|
| (8) | The Regulator may charge a reasonable fee for providing a person with |
|
| |
| (a) | a draft published under sub-paragraph (2); |
|
| |
| (9) | Sub-paragraphs (2) to (6) and (8)(a) also apply to a proposal to alter or |
|
| replace the financial penalty scheme. |
|
| |
| 13 | The Regulator must maintain satisfactory arrangements for— |
|
| (a) | recording decisions made in the exercise of its functions, and |
|
| (b) | the safe-keeping of those records which it considers ought to be |
|
| |
| Exemption from liability in damages |
|
| 14 (1) | None of the following is to be liable in damages for anything done or |
|
| omitted in the discharge, or purported discharge, of the Regulator’s |
|
| |
| |
| (b) | any person (“P”) who is, or is acting as, an officer or member of |
|
| |
| (c) | any person who could be held vicariously liable for things done |
|
| or omitted by P, but only in so far as the liability relates to P’s |
|
| |
| (2) | If the Regulator has made arrangements under paragraph 5 for any of its |
|
| functions to be discharged by an officer or member of staff of the FCA, |
|
| references in sub-paragraph (1) to a person who is an officer or member |
|
|
|
| |
| | |
|
| of staff of the Regulator include references to the officer or member of |
|
| |
| (3) | Anything done or omitted by a person mentioned in sub-paragraph |
|
| (1)(b) or (c) while acting, or purporting to act, as a result of an |
|
| appointment under section (Reports by skilled persons) or (Appointment of |
|
| persons to conduct investigations) is to be taken for the purposes of sub- |
|
| paragraph (1) to have been done or omitted in the discharge or (as the |
|
| case may be) purported discharge of the Regulator’s functions. |
|
| (4) | 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 was unlawful |
|
| as a result of section 6(1) of the Human Rights Act 1998.” |
|
| |
| 15 | In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public |
|
| authorities to which Act applies), at the appropriate place insert— |
|
| “The Payment Systems Regulator established under section |
|
| (The Payment Systems Regulator) of the Financial Services |
|
| (Banking Reform) Act 2013.” |
|
| |
| 16 | In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities: |
|
| general), under the heading “Industry, business, finance etc.”, at the |
|
| appropriate place insert— |
|
| “The Payment Systems Regulator established under section |
|
| (The Payment Systems Regulator) of the Financial Services |
|
| (Banking Reform) Act 2013.”” |
|
176 | Insert the following new Schedule— |
|
| “Procedure for appeals to the CMA |
|
| Functions of CMA to be discharged by group |
|
| 1 | Except where specified otherwise in this Schedule, the functions of the |
|
| CMA with respect to an appeal are to be carried out on behalf of the |
|
| CMA by a group constituted for the purpose by the chair of the CMA |
|
| under Schedule 4 to the Enterprise and Regulatory Reform Act 2013. |
|
| 2 (1) | Schedule 4 to the Enterprise and Regulatory Reform Act 2013 is |
|
| |
| (2) | In paragraph 35(1) (membership of CMA panel), after paragraph (c) |
|
| |
| “(ca) | at least one person (a “payment systems panel |
|
| member”) appointed to the CMA panel under |
|
| paragraph 1(1)(b) for the purpose of being available for |
|
| selection as a member of a group constituted to carry |
|
| out functions on behalf of the CMA with respect to an |
|
| appeal made in accordance with section (Appeals to |
|
| Competition and Markets Authority) of the Financial |
|
|
|
| |
| | |
|
| Services (Banking Reform) Act 2013 (a “specialist |
|
| payment systems group”);”. |
|
| (3) | In paragraph 38 (membership of CMA groups), after sub-paragraph (5) |
|
| |
| “(5A) | In the case of a specialist payment systems group, the group |
|
| must include at least one payment systems member.” |
|
| (4) | In paragraph 48 (performance of functions of chair with respect to |
|
| constitution etc of CMA group), in sub-paragraph (4)(c), at the end |
|
| |
| “(v) | Schedule (Procedure for appeals to the CMA) to |
|
| the Financial Services (Banking Reform) Act |
|
| |
| Application for permission to bring appeal |
|
| 3 (1) | An application for permission to bring an appeal may be made only by |
|
| sending a notice to the CMA requesting the permission. |
|
| (2) | An application for permission to appeal must be accompanied by all |
|
| such information as may be required by appeal rules. |
|
| (3) | Appeal rules may require information contained in an application for |
|
| permission to appeal to be verified by a statement of truth. |
|
| (4) | A person who applies for permission to bring an appeal in accordance |
|
| with this paragraph is referred to in this Schedule as the appellant. |
|
| (5) | The appellant must send the Payment Systems Regulator— |
|
| (a) | a copy of the application for permission to appeal at the same |
|
| time as it is sent to the CMA, and |
|
| (b) | such other information as may be required by appeal rules. |
|
| (6) | The CMA’s decision whether to grant permission to appeal is to be taken |
|
| by an authorised member of the CMA. |
|
| (7) | Before the authorised member decides whether to grant permission |
|
| under this paragraph, the Payment Systems Regulator must be given an |
|
| opportunity of making representations or observations, in accordance |
|
| |
| (8) | The CMA’s decision on an application for permission must be made— |
|
| (a) | where the Payment Systems Regulator makes representations or |
|
| observations in accordance with paragraph 5(2), before the end |
|
| of 10 working days beginning with the first working day after the |
|
| day on which those representations or observations are received; |
|
| (b) | in any other case, before the end of 14 working days beginning |
|
| with the first working day after the day on which the application |
|
| for permission was received. |
|
| (9) | The grant of permission may be made subject to conditions, which may |
|
| |
| (a) | conditions which limit the matters that are to be considered on |
|
| |
| (b) | conditions for the purpose of expediting the determination of the |
|
| |
|