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Lords Amendments to the Financial Services (Banking Reform) Bill


 
 

47

92

Insert the following new Clause—

 

“Complaints

 

         

Complaints by representative bodies

 

(1)    

A designated representative body may make a complaint to the Payment

 

Systems Regulator that a feature, or combination of features, of a market in

 

the United Kingdom for services provided by payment systems is, or

 

appears to be, significantly damaging the interests of those who use, or are

 

likely to use, those services (“service-users”).

 

(2)    

“Designated representative body” means a body designated by the

 

Treasury by order.

 

(3)    

The Treasury—

 

(a)    

may designate a body only if it appears to them to represent the

 

interests of service-users of any description, and

 

(b)    

must publish in such manner as they think fit (and may from time

 

to time vary) criteria to be applied by them in determining whether

 

to make or revoke a designation.

 

(4)    

The reference in subsection (1) to a feature of a market in the United

 

Kingdom for services provided by payment systems is a reference to—

 

(a)    

the structure of the market concerned or any aspect of that

 

structure,

 

(b)    

any conduct (whether or not in the market concerned) of one or

 

more than one person who supplies or acquires services in the

 

market concerned, or

 

(c)    

any conduct relating to the market concerned of customers of any

 

person who supplies or acquires services,

 

    

and “conduct” includes any failure to act (whether or not intentional) and

 

any other unintentional conduct.

 

(5)    

In this section “market in the United Kingdom” includes a market which

 

operates only in a part of the United Kingdom.

 

(6)    

In section 234C of FSMA 2000 (complaints by consumer bodies), after

 

subsection (1) insert—

 

“(1A)    

But a complaint may not be made to the FCA under this section if it

 

is a complaint which could be made to the Payment Systems

 

Regulator by a designated representative body under section

 

(Complaints by representative bodies) of the Financial Services

 

(Banking Reform) Act 2013 (complaints by representative bodies).

 

    

“Designated representative body” and “the Payment Systems

 

Regulator” have the same meaning in this subsection as they have

 

in that section.””

93

Insert the following new Clause—

 

         

“Response by Regulator

 

(1)    

The Payment Systems Regulator must within 90 days after the day on

 

which it receives a complaint under section (Complaints by representative

 

bodies) publish a response stating how it proposes to deal with the

 

complaint, and in particular—


 
 

48

 
 

(a)    

whether it has decided to take any action, or to take no action, and

 

(b)    

if it has decided to take action, what action it proposes to take.

 

(2)    

The response must—

 

(a)    

include a copy of the complaint, and

 

(b)    

state the Payment Systems Regulator’s reasons for its proposals.

 

(3)    

The Treasury may by order amend subsection (1) by substituting any

 

period for the period for the time being specified there.”

94

Insert the following new Clause—

 

         

“Complaints: guidance

 

(1)    

The guidance given by the Payment Systems Regulator under section

 

(Guidance)—

 

(a)    

must include guidance about the presentation of a reasoned case for

 

a complaint under section (Complaints by representative bodies), and

 

(b)    

may include guidance about any other matters that appear to the

 

Payment Systems Regulator to be appropriate for the purposes of

 

that section.

 

(2)    

Guidance given in accordance with subsection (1) is to be treated as general

 

guidance for the purposes of this Part.”

95

Insert the following new Clause—

 

“Enforcement and appeals

 

         

Meaning of “compliance failure”

 

In this Part “compliance failure” means a failure by a participant in a

 

regulated payment system to—

 

(a)    

comply with a direction given under section (Directions), or

 

(b)    

comply with a requirement imposed under section (System rules) or

 

(Power to require granting of access to payment systems).”

96

Insert the following new Clause—

 

         

“Publication of compliance failures etc

 

(1)    

The Payment Systems Regulator may publish details of a compliance

 

failure by a participant in a regulated payment system.

 

(2)    

The Payment Systems Regulator may publish details of a sanction imposed

 

under section (Penalties).”

97

Insert the following new Clause—

 

         

“Penalties

 

(1)    

The Payment Systems Regulator may require a participant in a regulated

 

payment system to pay a penalty in respect of a compliance failure.

 

(2)    

A penalty—

 

(a)    

must be paid to the Payment Systems Regulator, and

 

(b)    

may be enforced by the Payment Systems Regulator as a debt.


 
 

49

 
 

(3)    

The Payment Systems Regulator must prepare a statement of the principles

 

which it will apply in determining—

 

(a)    

whether to impose a penalty, and

 

(b)    

the amount of a penalty.

 

(4)    

The Payment Systems Regulator must—

 

(a)    

publish the statement on its website,

 

(b)    

send a copy to the Treasury,

 

(c)    

review the statement from time to time and revise it if necessary

 

(and paragraphs (a) and (b) apply to a revision), and

 

(d)    

in applying the statement to a compliance failure, apply the version

 

in force when the compliance failure occurred.”

98

Insert the following new Clause—

 

         

“Warning notices

 

(1)    

Before imposing a sanction on any person the Payment Systems Regulator

 

must—

 

(a)    

give the person a notice in writing (a “warning notice”),

 

(b)    

give the person at least 21 days to make representations,

 

(c)    

consider any representations made, and

 

(d)    

as soon as is reasonably practicable, give the person a notice in

 

writing stating whether or not it intends to impose the sanction.

 

(2)    

In subsection (1) any reference to imposing a sanction is a reference to—

 

(a)    

publishing details under section (Publication of compliance failures

 

etc)(1), or

 

(b)    

requiring the payment of a penalty under section (Penalties).”

99

Insert the following new Clause—

 

         

“Injunctions

 

(1)    

If, on the application of the Payment Systems Regulator, the court is

 

satisfied—

 

(a)    

that there is a reasonable likelihood that there will be a compliance

 

failure, or

 

(b)    

that there has been a compliance failure and there is a reasonable

 

likelihood that it will continue or be repeated,

 

    

the court may make an order restraining the conduct constituting the

 

failure.

 

(2)    

If, on the application of the Payment Systems Regulator, the court is

 

satisfied—

 

(a)    

that there has been a compliance failure by a participant in a

 

regulated payment system, and

 

(b)    

that there are steps which could be taken for remedying the failure,

 

    

the court may make an order requiring the participant, and anyone else

 

who appears to have been knowingly concerned in the failure, to take such

 

steps as the court may direct to remedy it.

 

(3)    

If, on the application of the Payment Systems Regulator, the court is

 

satisfied—


 
 

50

 
 

(a)    

that there may have been a compliance failure by a participant in a

 

regulated payment system, or

 

(b)    

that a person may have been knowingly concerned in a compliance

 

failure,

 

    

the court may make an order restraining the participant or the person (as

 

the case may be) from dealing with any assets which it is satisfied the

 

participant or person is reasonably likely to deal with.

 

(4)    

The jurisdiction conferred by this section is exercisable—

 

(a)    

in England and Wales and Northern Ireland, by the High Court,

 

and

 

(b)    

in Scotland, by the Court of Session.

 

(5)    

In this section—

 

(a)    

references to an order restraining anything are, in Scotland, to be

 

read as references to an interdict prohibiting that thing,

 

(b)    

references to remedying a failure include mitigating its effect, and

 

(c)    

references to dealing with assets include disposing of them.”

100

Insert the following new Clause—

 

         

“Appeals: general

 

(1)    

A person who is affected by any of the following decisions of the Payment

 

Systems Regulator may appeal against the decision—

 

(a)    

a decision to give a direction under section (Directions) (other than

 

a general direction),

 

(b)    

a decision to impose a requirement under section (System rules)

 

(other than a generally-imposed requirement),

 

(c)    

a decision to exercise its power under section (Power to require

 

granting of access to payment systems), (Variation of agreements relating

 

to payment systems) or (Power to require disposal of interest in payment

 

system),

 

(d)    

a decision to impose a sanction.

 

(2)    

In subsection (1) the reference to imposing a sanction is a reference to—

 

(a)    

publishing details under section (Publication of compliance failures

 

etc)(1), or

 

(b)    

requiring the payment of a penalty under section (Penalties).

 

(3)    

If the decision is a CAT-appealable decision, the appeal must be made to

 

the Competition Appeal Tribunal in accordance with section (Appeals to

 

Competition Appeal Tribunal).

 

(4)    

A “CAT-appealable decision” means—

 

(a)    

a decision to give a direction under section (Directions),

 

(b)    

a decision to impose a requirement under section (System rules), or

 

(c)    

a decision to publish details under section (Publication of compliance

 

failures etc)(1).

 

(5)    

If the decision is a decision to impose a penalty on the person under section

 

(Penalties), the appeal must be made to the Competition Appeal Tribunal in

 

accordance with section (Appeals in relation to penalties).


 
 

51

 
 

(6)    

If the decision is a CMA-appealable decision, the appeal must be made to

 

the Competition and Markets Authority (“the CMA”) in accordance with

 

section (Appeals to Competition and Markets Authority).

 

(7)    

A “CMA-appealable decision” means—

 

(a)    

a decision to impose a requirement under section (Power to require

 

granting of access to payment systems),

 

(b)    

a decision to vary an agreement under section (Variation of

 

agreements relating to payment systems), or

 

(c)    

a decision to impose a requirement under section (Power to require

 

disposal of interest in payment system).

 

(8)    

The permission of the CMA is  required for an appeal to be made in

 

accordance with section (Appeals to Competition and Markets Authority).

 

(9)    

The CMA may refuse permission for an appeal only if—

 

(a)    

the appeal is made for reasons that are trivial or vexatious, or

 

(b)    

the appeal has no reasonable prospect of success.”

101

Insert the following new Clause—

 

         

“Appeals to Competition Appeal Tribunal

 

(1)    

This section applies where a person is appealing to the Competition Appeal

 

Tribunal (“the Tribunal”) against a CAT-appealable decision.

 

(2)    

The means of making an appeal is by sending the Tribunal a notice of

 

appeal in accordance with Tribunal rules.

 

(3)    

The notice of appeal must be sent within the period specified, in relation to

 

the decision appealed against, in those rules.

 

(4)    

In determining an appeal made in accordance with this section, the

 

Tribunal must apply the same principles as would be applied by a court on

 

an application for judicial review.

 

(5)    

The Tribunal must either—

 

(a)    

dismiss the appeal, or

 

(b)    

quash the whole or part of the decision to which the appeal relates.

 

(6)    

If the Tribunal quashes the whole or part of a decision, it may refer the

 

matter back to the Payment Systems Regulator with a direction to

 

reconsider and make a new decision in accordance with its ruling.

 

(7)    

The Tribunal may not direct the Payment Systems Regulator to take any

 

action which it would not otherwise have the power to take in relation to

 

the decision.

 

(8)    

The effect of a decision to publish details under section (Publication of

 

compliance failures etc)(1) is suspended by the making of an appeal against

 

the decision (and the details may not be published until the appeal has been

 

determined).

 

(9)    

The effect of any other CAT-appealable decision is not suspended by the

 

making of an appeal against the decision.

 

(10)    

In this section and section (Appeals in relation to penalties) “Tribunal rules”

 

means rules under section 15 of the Enterprise Act 2002.”


 
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