House of Commons Amendments

Session 2014 - 15
Internet Publications
Other Bills before Parliament

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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.

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.

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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—

(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

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(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.

(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.

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(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.

(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.

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(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.

(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.

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(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).

(9)
The Treasury must pay into the Consolidated Fund the amounts

received by them under subsection (8).

(10)
In this section the “Treasury’s pensions guidance costs” means the

expenses incurred, or expected to be incurred, by the Treasury—

(a)
in giving pensions guidance or arranging for it to be given by

designated guidance providers,

(b)
in meeting the expenses of designated guidance providers

incurred in connection with the giving of the guidance

(including expenses incurred by virtue of sections 333G(2),

333L and 333P), whether by means of the power conferred by

section 333D or otherwise,

(c)
in providing services to designated guidance providers to

support them in giving the guidance,

(d)
in increasing awareness of the availability of the guidance,

(e)
in undertaking or commissioning research relating to the

giving of the guidance, and

(f)
otherwise in connection with the carrying out of its functions

under section 333B.

(11)
The Treasury may by regulations amend the definition of the

“Treasury’s pensions guidance costs” in subsection (10).”

3
In section 1B (the FCA’s general duties), after subsection (7) insert—

“(7A)
The FCA’s general functions do not include its general pensions

guidance functions (see section 333N(3)).”

4
After section 137FA insert—

“137FB
FCA general rules: disclosure of information about the availability

of pensions guidance

(1)
The FCA must make general rules requiring information about the

availability of pensions guidance to be given by the trustees or

managers of a relevant pension scheme to members of the scheme with

a right or entitlement to cash balance benefits or other money purchase

benefits.

(2)
Before the FCA publishes a draft of any rules to be made by virtue of

this section, it must consult—

(a)
the Secretary of State, and

(b)
the Treasury.

(3)
In determining what provision to include in the rules, the FCA must

have regard to any regulations that are for the time being in force under

section 113 of the Pension Schemes Act 1993 concerning the giving

of information about the availability of pensions guidance to members

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of pension schemes with a right or entitlement to cash balance benefits

or other money purchase benefits.

(4)
In this section—

“cash balance benefits” has the meaning given by section 152(5) of the

Finance Act 2004;

“money purchase benefits” has the meaning given by section 152(4) of

the Finance Act 2004;

“pensions guidance” means pensions guidance given by virtue of Part

20A;

“relevant pension scheme” means a pension scheme set up by a person

with permission under this Act to establish—

(a)
a personal pension scheme within the meaning of an order under

section 22, or

(b)
a stakeholder pension scheme within the meaning of such an

order.”

5
In section 138I (rules: consultation by the FCA)—

(a)
in subsection (6) (exemption from requirement to carry out a cost

benefit analysis), after paragraph (a) insert—

“(aa)
section 137FB;”;

(b)
in that subsection, after paragraph (c) insert—

“(ca)
section 333P;

(cb)
section 333Q;”;

(c)
in subsection (10) (rules to which requirement to consult the PRA does

not apply), after “apply to” insert “—

(a)
rules made by the FCA under section 137FB, 333P or

333Q, or

(b)
”.

6
In section 139A (power of the FCA to give guidance), after subsection (1)

insert—

“(1A)
The FCA may not give guidance under this section relating to its

functions under sections 333G, 333H, 333I, 333J and 333P (see

section 333O for provision about the giving of guidance relating to

these functions).”

7
In section 140A (competition scrutiny: interpretation), in subsection (1), in

paragraph (a) of the definition of “regulating provisions”—

(a)
in sub-paragraph (ii), after “section 139B(5)” insert “or 333O(9)”;

(b)
after sub-paragraph (iv) insert—

“(v)
standards set under section 333G;

(vi)
statement issued by the FCA under 333J;”.

8
In section 168 (appointment of persons to carry out investigations in particular

cases), in subsection (2)(a), after “section 24(1)” insert “or 333F”.

9
In section 429 (Parliamentary control of statutory instruments), in subsection

(2) (regulations subject to the affirmative resolution procedure), for “or 262”

substitute “, 262, 333C or 333Q”.

10
In Schedule 1ZA (the FCA), in paragraph 8 (arrangements for discharging

functions)—

(a)
in sub-paragraph (3) (legislative functions that must be exercised by

the FCA acting through its governing body), in paragraph (c)(i), for

“or 312J” substitute “, 312J or 333J”;

(b)
in sub-paragraph (3), after paragraph (d) insert—



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