House of Commons Amendments

Session 2014 - 15
Internet Publications
Other Bills before Parliament

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Designation of guidance providers

333E
Designation of providers of pensions guidance

(1)
In this Part “designated guidance provider” means—

(a)
the Pensions Advisory Service Limited,

(b)
the National Association of Citizens Advice Bureaux,

(c)
the Scottish Association of Citizens Advice Bureaux,

(d)
the Northern Ireland Association of Citizens Advice Bureaux,

or

(e)
a person designated by the Treasury as someone who must, in

giving pensions guidance, comply with standards set by the

FCA under section 333G.

(2)
Before designating a person under subsection (1)(e), the Treasury

must—

(a)
consult the FCA,

(b)
notify the person to be designated, and

(c)
consider any representations made.

(3)
The Treasury may revoke a designation under subsection (1)(e).

(4)
The Treasury must give notice in writing of a designation under

subsection (1)(e) or the revocation of a designation under subsection

(3) to the person designated or (as the case may be) the person whose

designation has been revoked.

(5)
The Treasury must send a copy of a notice given under subsection (4)

to—

(a)
all other designated guidance providers, and

(b)
the FCA.

(6)
The Treasury must from time to time publish, in such manner as they

consider appropriate, a list of the persons who are designated under

subsection (1)(e).

False claims when giving pensions guidance

333F
Offence of falsely claiming to be giving pensions guidance under

Treasury arrangements

(1)
It is an offence for a person who is not giving pensions guidance under

arrangements made with the Treasury—

(a)
to describe himself (in whatever terms) as a person who is

doing so, or

(b)
to behave, or otherwise hold himself out, in a manner which

indicates (or which is reasonably likely to be understood as

indicating) that he is doing so.

(2)
For the purposes of subsection (1), pensions guidance given by a

designated guidance provider is given under arrangements made with

the Treasury.

(3)
In proceedings for an offence under this section it is a defence for the

accused to show that the accused took all reasonable precautions and

exercised all due diligence to avoid committing the offence.

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(4)
A person guilty of an offence under this section is liable on summary

conviction—

(a)
in England and Wales, to imprisonment for a term not

exceeding 51 weeks or a fine, or both;

(b)
in Scotland, to imprisonment for a term not exceeding 12

months or a fine not exceeding level 5 on the standard scale,

or both;

(c)
in Northern Ireland, to imprisonment for a term not exceeding

6 months or a fine not exceeding level 5 on the standard scale,

or both.

(5)
In relation to an offence committed before section 281(5) of the

Criminal Justice Act 2003 comes into force, the reference in

subsection (4)(a) to 51 weeks is to be read as a reference to 6 months.

(6)
In relation to an offence committed before section 85(1) of the Legal

Aid, Sentencing and Punishment of Offenders Act 2012 comes into

force, the reference in subsection (4)(a) to a fine is to be read as a

reference to a fine not exceeding level 5 on the standard scale.

Standards for giving of pensions guidance by designated guidance providers

333G
Standards for giving of pensions guidance by designated guidance

providers

(1)
The FCA must from time to time set standards for the giving of

pensions guidance by designated guidance providers.

(2)
A failure by a designated guidance provider to comply with a standard

set under this section is actionable at the suit of a private person who

suffers loss as a result of the failure, subject to the defences and other

incidents applying to actions for breach of statutory duty.

(3)
In subsection (2) “private person” has the same meaning as in section

138D.

(4)
Standards set under this section may provide for subsection (2) not to

apply to a failure to comply with a specified provision of the standards.

(5)
The procedural provisions of this Act in the first column of the table

apply to the setting of standards under this section as if references in

those provisions to the making of rules (however expressed) were

references to the setting of standards and with the additional

modifications in the second column.

Procedural provisions
Additional modifications

of this Act

Sections 138G and
Treat the references to a rule-

138H
making instrument as references to

a standard-making instrument.

Section 138I
Treat—

(a)
subsection (1)(a) as if it

were omitted;

(b)
subsection (2)(d) as if it

referred to an explanation

of the FCA’s reasons for

believing that setting the

proposed standards would

secure an appropriate

degree of protection for

recipients of pensions

guidance from designated

guidance providers.

Section 138L
Treat the reference in subsection

(1) to consumers (as defined in

section 425A) as a reference to

recipients of pensions guidance

from designated guidance

providers.

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333H
Monitoring of compliance with standards by designated guidance

providers

(1)
The FCA must maintain arrangements for monitoring compliance by

designated guidance providers with the standards set under section

333G.

(2)
Sections 165 and 167 apply for the purpose of enabling the FCA to

monitor compliance but as if—

(a)
references to an authorised person or a former authorised

person were references to a designated guidance provider or a

former designated guidance provider;

(b)
section 165(7)(b) to (d) were omitted;

(c)
the reference in section 167(5A)(b) to the FCA or the PRA

were a reference to the FCA.

(3)
Section 175 applies as if a power that the FCA or an investigator has

by virtue of subsection (2) were a power under Part 11.

(4)
Section 177 applies as if a requirement imposed by virtue of

subsection (2) were a requirement imposed under Part 11.

(5)
References in a provision of Part 11 to section 165, 167, 175 or 177

include the relevant section as applied with modifications by this

section.

333I
Failure by designated guidance providers to comply with standards:

FCA recommendations

(1)
If the FCA considers that a designated guidance provider has failed to

comply with a standard set under section 333G the FCA may—

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(a)
recommend steps that the designated guidance provider might

take to prevent the continuance or recurrence of the failure or

to make redress to those affected by the failure, and

(b)
having made such a recommendation, recommend that the

Treasury give a direction under section 333L.

(2)
The FCA must publish a recommendation made under subsection

(1)(b) unless the FCA considers that to do so—

(a)
would be against the public interest, or

(b)
would be inappropriate for some other reason.

(3)
If the condition in subsection (2)(a) or (b) is satisfied in relation to a

recommendation but would not be satisfied if the FCA published part

only of the recommendation, the FCA may publish that part.

333J
FCA policy on making recommendations under section 333I

(1)
The FCA must prepare and issue a statement of its policy with respect

to the making of recommendations under section 333I.

(2)
The FCA may at any time alter or replace a statement issued under this

section.

(3)
If a statement issued under this section is altered or replaced, the FCA

must issue the altered or replaced statement.

(4)
The FCA may issue a statement under this section only with the

consent of the Treasury.

(5)
A statement issued under this section must be published by the FCA

in the way appearing to the FCA to be best calculated to bring it to the

attention of the public.

(6)
The FCA may charge a reasonable fee for providing a person with a

copy of the statement.

333K
FCA policy on making recommendations under section 333I:

procedure

(1)
Before issuing a statement under section 333J, the FCA must—

(a)
consult the Treasury, and

(b)
publish a draft of the proposed statement in the way appearing

to the FCA to be best calculated to bring it to the attention of

the public.

(2)
The draft must be accompanied by notice that representations about

the proposal may be made to the FCA within a specified time.

(3)
Before issuing the proposed statement, the FCA must have regard to

any representations made to it within the specified time.

(4)
If the FCA issues the proposed statement it must publish an account,

in general terms, of—

(a)
the representations made to it within the specified time, and

(b)
its response to them.

(5)
If the statement differs from the draft published under subsection

(1)(b) in a way which is, in the opinion of the FCA, significant, the

FCA must (in addition to complying with subsection (4)) publish

details of the difference.

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(6)
The FCA may charge a reasonable fee for providing a person with a

copy of a draft published under subsection (1)(b).

(7)
This section also applies to a proposal to alter or replace a statement.

333L
Failure by designated guidance providers to comply with standards:

Treasury directions

(1)
If the Treasury consider that a designated guidance provider has failed

to comply with a standard set under section 333G the Treasury may

direct the provider to take such steps as the Treasury consider

appropriate—

(a)
to prevent the continuance or recurrence of the failure;

(b)
to make redress to those affected by the failure.

(2)
The Treasury may give a direction under subsection (1) only if the

FCA has made a recommendation under section 333I(1)(b) (although

the terms of the direction need not be the same as that recommended

by the FCA).

(3)
The Treasury must—

(a)
give notice in writing of a direction under subsection (1), and

(b)
send a copy of the notice to the FCA.

(4)
The notice must inform the designated guidance provider that

representations about why the direction should not be published may

be made to the Treasury within a specified time.

(5)
Once the time specified under subsection (4) has elapsed, the Treasury

must publish the direction unless—

(a)
the Treasury consider that to do so would be against the public

interest;

(b)
having considered representations made by the designated

guidance provider within the specified time, the Treasury

consider that it would be inappropriate to do so for some other

reason.

(6)
If the condition in subsection (5)(a) or (b) is satisfied in relation to a

direction but would not be satisfied if the Treasury published part only

of the direction, the Treasury may publish that part.

(7)
A direction under subsection (1) is enforceable, on an application

made by the Treasury, by injunction or, in Scotland, by an order for

specific performance under section 45 of the Court of Session Act

1988.

333M
Directions to designated guidance providers under section 333L:

relationship with power to revoke a designation

(1)
The power conferred by section 333L(1) is exercisable in addition to,

or instead of, the power conferred by section 333E(3) to revoke a

designation.

(2)
If the power in section 333E(3) is exercised before the power in

section 333L(1) the reference in section 333L(1) to a designated

guidance provider is to be read as a reference to a person who, at the

time of the failure to comply, was a designated guidance provider.

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(3)
Subsection (1) does not limit the grounds on which the power in

section 333E(3) may be exercised.

FCA’s duties and power to give guidance

333N
FCA’s duties

(1)
The FCA must discharge its general pensions guidance functions with

a view to securing an appropriate degree of protection for recipients of

pensions guidance from designated guidance providers.

(2)
In discharging its general pensions guidance functions the FCA must

have regard to—

(a)
its strategic and operational objectives in section 1B(2) and

(3), and

(b)
the regulatory principles in section 3B.

(3)
In this section the FCA’s “general pensions guidance functions”

means its functions of—

(a)
setting standards under section 333G,

(b)
issuing statements under section 333J,

(c)
giving general guidance under section 333O (see section

333O(9)),

(d)
making rules under section 333P, and

(e)
determining the general policy and principles by reference to

which it performs particular functions under this Part.

333O
Power of the FCA to give guidance

(1)
The FCA may give guidance consisting of such information and

advice relating to its functions under sections 333G, 333H, 333I, 333J

and 333P as it considers appropriate.

(2)
Subsection (3) applies where the FCA proposes to give guidance to

designated guidance providers generally, or to a class of designated

guidance providers, in relation to standards set under section 333G or

rules made under section 333P.

(3)
Where this subsection applies, subsections (1)(b), (2)(e) and (3) of

section 138I apply to the proposed guidance as they apply to proposed

rules, unless the FCA considers that the delay in complying with those

provisions would be prejudicial to the interests of recipients of

pensions guidance from designated guidance providers.

(4)
The FCA may—

(a)
publish its guidance,

(b)
offer copies of its published guidance for sale at a reasonable

price, and

(c)
if it gives guidance in response to a request made by any

person, make a reasonable charge for that guidance.

(5)
On giving any general guidance, the FCA must give written notice to

the Treasury without delay.

(6)
If the FCA alters any of its general guidance, it must give written

notice to the Treasury without delay.

(7)
The notice under subsection (6) must include details of the alteration.

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(8)
If the FCA revokes any of its general guidance, it must give written

notice to the Treasury without delay.

(9)
In this section “general guidance” means guidance given by the FCA

under this section which is—

(a)
given to persons generally, to designated guidance providers

generally or to a class of designated guidance provider,

(b)
intended to have continuing effect, and

(c)
given in writing or other legible form.

Funding of pensions guidance

333P
Funding of FCA’s pensions guidance costs

(1)
For the purpose of meeting the FCA’s pensions guidance costs the

FCA must make rules requiring designated guidance providers, or any

specified class of designated guidance provider, to pay to the FCA

specified amounts or amounts calculated in a specified way.

(2)
Before the FCA publishes a draft of the rules it must consult the

Treasury.

(3)
The amounts to be paid under the rules may include a component—

(a)
to cover the expenses of the FCA in collecting the payments;

(b)
to enable the FCA to maintain an adequate reserve.

(4)
In this section the “FCA’s pensions guidance costs” means the

expenses incurred, or expected to be incurred, by the FCA in

connection with the carrying out of the functions conferred on it by

this Part other than by section 333Q.

333Q
Funding of Treasury’s pensions guidance costs

(1)
The Treasury must, from time to time, notify the FCA of the amount

of the Treasury’s pensions guidance costs.

(2)
Having been so notified, the FCA must make rules requiring

authorised persons, or any specified class of authorised person, to pay

to the FCA specified amounts or amounts calculated in a specified way

with a view to recovering the amount notified under subsection (1).

(3)
The amounts to be paid under the rules may include a component to

cover the expenses of the FCA in collecting the payments (“collection

costs”).

(4)
Before the FCA publishes a draft of the rules it must consult the

Treasury.

(5)
The rules may be made only with the consent of the Treasury.

(6)
The Treasury may notify the FCA of matters that they will take into

account when deciding whether or not to give consent for the purposes

of subsection (5).

(7)
The FCA must have regard to any matters notified under subsection

(6) before publishing a draft of rules to be made under this section.

(8)
The FCA must pay to the Treasury the amounts that it receives under

rules made under this section apart from amounts in respect of its

collection costs (which it may keep).



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