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| | 63ZE | Statement of policy: procedure |
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| | (1) | Before issuing a statement of policy under section 63ZD, a regulator |
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| | (“the issuing regulator”) must— |
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| | (a) | consult the other regulator, and |
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| | (b) | publish a draft of the proposed statement in the way |
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| | appearing to the issuing regulator to be best calculated to |
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| | bring it to the attention of the public. |
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| | (2) | The duty of the FCA to consult the PRA under subsection (1)(a) |
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| | applies only in so far as the statement of policy applies to persons |
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| | whose approval under section 59 relates to the performance of a |
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| | function designated by the FCA as a senior management function |
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| | under section 59(6A) in relation to the carrying on by PRA- |
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| | authorised persons of regulated activities. |
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| | (3) | The draft must be accompanied by notice that representations |
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| | about the proposal may be made to the issuing regulator within a |
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| | (4) | Before issuing the proposed statement, the issuing regulator must |
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| | have regard to any representations made to it in accordance with |
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| | (5) | If the issuing regulator issues the proposed statement it must |
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| | publish an account, in general terms, of— |
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| | (a) | the representations made to it in accordance with subsection |
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| | (b) | its response to them. |
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| | (6) | If the statement differs from the draft published under subsection |
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| | (1) in a way which is in the opinion of the issuing regulator |
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| | significant, the issuing regulator— |
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| | (a) | must before issuing it carry out any consultation required |
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| | by subsection (1)(a), and |
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| | (b) | must (in addition to complying with subsection (5)) publish |
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| | details of the difference. |
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| | (7) | The issuing regulator may charge a reasonable fee for providing a |
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| | person with a draft published under subsection (1)(b). |
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| | (8) | This section also applies to a proposal to alter or replace a |
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52 | Insert the following new Clause— |
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| | | “Extension of limitation periods for imposing sanctions |
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| | (1) | Section 63A of FSMA 2000 (power to impose penalties) is amended as |
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| | (2) | In subsection (4), for “period of three years” substitute “relevant period”. |
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| | (3) | After subsection (5A) insert— |
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| | “(5B) | “The relevant period” is— |
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| | (a) | in relation to the performance of a controlled function |
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| | without approval before the day on which this subsection |
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| | comes into force, the period of 3 years, and |
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| | (b) | in relation to the performance of a controlled function |
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| | without approval on or after that day, the period of 6 years.” |
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| | (4) | Section 66 of FSMA 2000 (disciplinary powers) is amended as follows. |
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| | (5) | In subsection (4), for “period of three years” substitute “relevant period”. |
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| | (6) | After subsection (5) insert— |
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| | “(5ZA) | “The relevant period” is— |
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| | (a) | in relation to misconduct which occurs before the day on |
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| | which this subsection comes into force, the period of 3 years, |
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| | (b) | in relation to misconduct which occurs on or after that day, |
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53 | Insert the following new Clause— |
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| | “Certification of employees by relevant authorised persons |
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| | After section 63D of FSMA 2000 insert— |
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| | “Certification of employees |
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| | 63E | Certification of employees by relevant authorised persons |
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| | (1) | A relevant authorised person (“A”) must take reasonable care to |
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| | ensure that no employee of A performs a specified function under |
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| | an arrangement entered into by A in relation to the carrying on by |
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| | A of a regulated activity, unless the employee has a valid certificate |
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| | issued by A under section 63F. |
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| | (2) | “Specified function”— |
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| | (a) | in relation to the carrying on of a regulated activity by a |
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| | PRA-authorised person, means a function of a description |
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| | specified in rules made by the FCA or the PRA, and |
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| | (b) | in relation to the carrying on of a regulated activity by any |
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| | other authorised person, means a function of a description |
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| | specified in rules made by the FCA. |
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| | (3) | The FCA may specify a description of function under subsection |
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| | (2)(a) or (b) only if, in relation to the carrying on of a regulated |
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| | activity by a relevant authorised person of a particular |
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| | (a) | the function is not a controlled function in relation to the |
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| | carrying on of that activity by a relevant authorised person |
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| | (b) | the FCA is satisfied that the function is nevertheless a |
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| | significant-harm function. |
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| | (4) | The PRA may specify a description of function under subsection |
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| | (2)(a) only if, in relation to the carrying on of a regulated activity by |
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| | a relevant PRA-authorised person of a particular description— |
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| | (a) | the function is not a controlled function in relation to the |
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| | carrying on of that activity by a relevant PRA-authorised |
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| | person of that description, but |
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| | (b) | the PRA is satisfied that the function is nevertheless a |
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| | significant-harm function. |
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| | (5) | A function is a “significant-harm function”, in relation to the |
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| | carrying on of a regulated activity by an authorised person, if— |
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| | (a) | the function will require the person performing it to be |
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| | involved in one or more aspects of the authorised person’s |
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| | affairs, so far as relating to the activity, and |
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| | (b) | those aspects involve, or might involve, a risk of significant |
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| | harm to the authorised person or any of its customers. |
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| | (a) | keep under review the exercise of its power under |
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| | subsection (2) to specify any significant-harm function as a |
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| | (b) | exercise that power in a way that it considers will minimise |
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| | the risk of employees of relevant authorised persons |
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| | performing significant-harm functions which they are not |
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| | fit and proper persons to perform. |
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| | (7) | Subsection (1) does not apply to an arrangement which allows an |
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| | employee to perform a function if the question of whether the |
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| | employee is a fit and proper person to perform the function is |
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| | reserved under any of the single market directives or the emission |
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| | allowance auctioning regulation to an authority in a country or |
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| | territory outside the United Kingdom. |
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| | “controlled function” has the meaning given by section 59(3); |
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| | “customer”, in relation to an authorised person, means a |
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| | person who is using, or who is or may be contemplating |
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| | using, any of the services provided by the authorised |
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| | “relevant PRA-authorised person” means a PRA-authorised |
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| | person that is a relevant authorised person. |
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| | (9) | In this section any reference to an employee of a person (“A”) |
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| | includes a reference to a person who— |
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| | (a) | personally provides, or is under an obligation personally to |
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| | provide, services to A under an arrangement made between |
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| | A and the person providing the services or another person, |
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| | (b) | is subject to (or to the right of) supervision, direction or |
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| | control by A as to the manner in which those services are |
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| | (10) | For the meaning of “relevant authorised person”, see section 71A. |
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| | 63F | Issuing of certificates |
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| | (1) | A relevant authorised person may issue a certificate to a person |
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| | under this section only if the authorised person is satisfied that the |
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| | person is a fit and proper person to perform the function to which |
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| | (2) | In deciding whether the person is a fit and proper person to |
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| | perform the function, the relevant authorised person must have |
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| | regard, in particular, to whether the person— |
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| | (a) | has obtained a qualification, |
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| | (b) | has undergone, or is undergoing, training, |
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| | (c) | possesses a level of competence, or |
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| | (d) | has the personal characteristics, |
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| | | required by general rules made by the appropriate regulator in |
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| | relation to employees performing functions of that kind. |
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| | (3) | In subsection (2) “the appropriate regulator” means— |
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| | (a) | in relation to employees of PRA-authorised persons, the |
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| | (b) | in relation to employees of any other authorised person, the |
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| | (4) | A certificate issued by a relevant authorised person to a person |
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| | (a) | state that the authorised person is satisfied that the person |
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| | is a fit and proper person to perform the function to which |
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| | the certificate relates, and |
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| | (b) | set out the aspects of the affairs of the authorised person in |
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| | which the person will be involved in performing the |
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| | (5) | A certificate issued under this section is valid for a period of 12 |
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| | months beginning with the day on which it is issued. |
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| | (6) | If, after having considered whether a person is a fit and proper |
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| | person to perform a specified function, a relevant authorised |
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| | person decides not to issue a certificate to the person under this |
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| | section, the authorised person must give the person a notice in |
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| | (a) | what steps (if any) the authorised person proposes to take in |
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| | relation to the person as a result of the decision, and |
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| | (b) | the reasons for proposing to take those steps. |
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| | (7) | A relevant authorised person must maintain a record of every |
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| | employee who has a valid certificate issued by it under this section. |
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| | (8) | Expressions used in this section and in section 63E have the same |
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| | meaning in this section as they have in that section.”” |
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54 | Insert the following new Clause— |
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| | (1) | Part 5 of FSMA 2000 (performance of regulated activities) is amended as |
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| | (2) | Omit sections 64 and 65 (and the italic cross-heading preceding them). |
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| | (3) | Before section 66 insert— |
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