Financial Services Bill

Session 2012 - 13
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Other Bills before Parliament

Financial Services Bill

Financial Services Bill
Part 8 — Miscellaneous
161

(ba)
the PRA, and”.
89
International obligations
In Part 5 of the Banking Act 2009, after section 206A insert—
“206B
International obligations
(1)
If it appears to the Treasury that any action proposed to be taken by the
5
Bank of England in exercising its powers under this Part would be
incompatible with EU obligations or any other international obligations
of the United Kingdom, the Treasury may direct the Bank not to take
that action.
(2)
If it appears to the Treasury that any action which the Bank of England
10
has power under this Part to take is required for the purpose of
implementing any such obligation, the Treasury may direct the Bank to
take that action.
(3)
A direction under this section—
(a)
may include such supplemental or incidental requirements as
15
the Treasury consider necessary or expedient, and
(b)
is enforceable on an application by the Treasury, by injunction
or, in Scotland, by an order for specific performance under
section 45 of the Court of Session Act 1988.”
Further amendments
20
90
Amendments relating to new regulators
Schedule 17 contains amendments of the Banking Act 2009 related to the
provisions of Part 2 of this Act.
Part 8
Miscellaneous
25
Consumer credit
91
Power to make further provision about regulation of consumer credit
(1)
Subsection (2) applies on or at any time after the making after the passing of
this Act of an order under section 22 of FSMA 2000 which has the effect that an
activity (a “transferred activity”)—
30
(a)
ceases to be an activity in respect of which a licence under section 21 of
CCA 1974 is required or would be required but for the exemption
conferred by subsection (2), (3) or (4) of that section or paragraph 15(3)
of Schedule 3 to FSMA 2000, and
(b)
becomes a regulated activity for the purposes of FSMA 2000.
35
(2)
The Treasury may by order do any one or more of the following—
(a)
transfer to the FCA functions of the OFT under any provision of CCA
1974 that remains in force;

Financial Services Bill
Part 8 — Miscellaneous
162

(b)
provide that any specified provision of FSMA 2000 which relates to the
powers or duties of the FCA in connection with the failure of any
person to comply with a requirement imposed by or under FSMA 2000
is to apply, subject to any specified modifications, in connection with
the failure of any person to comply with a requirement imposed by or
5
under a specified provision of CCA 1974;
(c)
require the FCA to issue a statement of policy in relation to the exercise
of powers conferred on it by virtue of paragraph (b);
(d)
in connection with provision made by virtue of paragraph (b), provide
that failure to comply with a specified provision of CCA 1974 no longer
10
constitutes an offence or that a person may not be convicted of an
offence under a specified provision of CCA 1974 in respect of an act or
omission in a case where the FCA has exercised specified powers in
relation to that person in respect of that act or omission;
(e)
provide for the transfer to the Treasury of any functions under CCA
15
1974 previously exercisable by the Secretary of State;
(f)
provide that functions of the Secretary of State under CCA 1974 are
exercisable concurrently with the Treasury;
(g)
enable local weights and measures authorities to institute proceedings
in England and Wales for a relevant offence;
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(h)
provide that references in a specified enactment to the FCA’s functions
under FSMA 2000 include references to its functions resulting from any
order under this section.
(3)
In subsection (2)(g) “relevant offence” means an offence under FSMA 2000
committed in relation to an activity that is a regulated activity for the purposes
25
of that Act by virtue of —
(a)
an order made under section 22(1) of that Act in relation to an
investment of a kind falling within paragraph 23 or 23B of Schedule 2
to that Act, or
(b)
an order made under section 22(1A) of that Act.
30
(4)
On or at any time after the making of an order under section 22 of FSMA 2000
of the kind mentioned in subsection (1), the Treasury may, if in their opinion it
is desirable to do so having regard to the FCA’s operational objectives (as
defined in section 1B(3) of FSMA 2000) by order—
(a)
exclude the application of any provision of CCA 1974 in relation to a
35
transferred activity, or
(b)
repeal any provision of CCA 1974 which relates to a transferred
activity.
(5)
The additional powers conferred by section 96(2) on a person making an order
under this Act include power for the Treasury, when making an order under
40
this section—
(a)
to make such consequential provision as the Treasury consider
appropriate,
(b)
to amend any enactment, including any provision of, or made under,
this Act.
45
(6)
The provisions of this section do not limit—
(a)
the powers conferred by section 99 or by section 22 of FSMA 2000, or
(b)
the powers exercisable under Schedule 21 in connection with the
transfer of functions from the OFT.

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Part 8 — Miscellaneous
163

(7)
In this section—
“CCA 1974” means the Consumer Credit Act 1974;
“the OFT” means the Office of Fair Trading.
Amendments of Companies Act 1989
92
Amendments of Companies Act 1989
5
(1)
Section 166 of the Companies Act 1989 (power of Secretary of State to give
directions to recognised investment exchange or recognised clearing house) is
amended as follows.
(2)
In subsection (2)(a)—
(a)
for “Authority”, in the first place, substitute “appropriate regulator”,
10
and
(b)
for “Authority”, in the second place, substitute “regulator”.
(3)
In subsection (2)(b)—
(a)
for “Authority”, in the first place, substitute “appropriate regulator”,
and
15
(b)
for “Authority”, in the second place, substitute “regulator”.
(4)
In subsection (3)—
(a)
for “Authority” substitute “appropriate regulator”,
(b)
omit the “or” following paragraph (a), and
(c)
at the end insert—
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“(c)
in either case, that the direction is necessary having
regard to the public interest in the stability of the
financial system of the United Kingdom, or
(d)
in either case, that the direction is necessary—
(i)
to facilitate a proposed or possible use of a
25
power under Part 1 of the Banking Act 2009
(special resolution regime), or
(ii)
in connection with a particular exercise of a
power under that Part.”
(5)
In subsection (7)—
30
(a)
for “Authority”, in the first place, substitute “appropriate regulator”,
and,
(b)
omit the words from “The Authority shall not” to the end.
(6)
After that subsection insert—
“(7A)
Where the exchange or clearing house is acting in accordance with a
35
direction under subsection (2)(a) that was given only by virtue of
paragraph (a) of subsection (3), the appropriate regulator shall not give
a direction under subsection (7) unless it is satisfied that the direction
under that subsection will not impede or frustrate the proper and
efficient conduct of the default proceedings.
40
(7B)
Where the exchange or clearing house has taken action under its default
rules without being directed to do so, the appropriate regulator shall
not give a direction under subsection (7) unless—

Financial Services Bill
Part 8 — Miscellaneous
164

(a)
it is satisfied that the direction under that subsection will not
impede or frustrate the proper and efficient conduct of the
default proceedings, or
(b)
it is satisfied that the direction is necessary—
(i)
having regard to the public interest in the stability of the
5
financial system of the United Kingdom,
(ii)
to facilitate a proposed or possible use of a power under
Part 1 of the Banking Act 2009 (special resolution
regime), or
(iii)
in connection with a particular exercise of a power
10
under that Part.”
(7)
In subsection (8), for “Authority” substitute “the regulator which gave the
direction”.
(8)
At the end insert—
“(9)
“The appropriate regulator”—
15
(a)
in relation to a recognised UK investment exchange, means the
FCA, and
(b)
in relation to a recognised UK clearing house, means the Bank
of England.”
(9)
In the heading, omit “of Secretary of State”.
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Settlement systems
93
Evidencing and transfer of title to securities without written instrument
In section 785 of the Companies Act 2006 (provision enabling procedures for
evidencing and transferring title), at the end insert—
“(7)
The regulations may confer functions on any person, including—
25
(a)
the function of giving guidance or issuing a code of practice in
relation to any provision made by the regulations, and
(b)
the function of making rules for the purposes of any provision
made by the regulations.
(8)
The regulations may, in prescribed cases, confer immunity from
30
liability in damages.”
Director of Savings
94
Provision of services by Director of Savings
(1)
The Director of Savings (“the Director”) may enter into arrangements with a
public body for the provision by the Director, or persons authorised by the
35
Director, of services to the body.
(2)
Arrangements are to be on such terms, including terms as to payment, as may
be agreed.
(3)
“Public body” means a person or body whose functions are of a public nature.

Financial Services Bill
Part 9 — General
165

Part 9
General
Further amendments and repeals
95
Further minor and consequential amendments and repeals
(1)
Schedule 18 contains further amendments of FSMA 2000 and other
5
enactments.
(2)
Schedule 19 contains further consequential repeals.
Orders
96
Orders: general
(1)
Any power of the Treasury or the Secretary of State to make an order under this
10
Act is exercisable by statutory instrument.
(2)
Any order made by the Treasury or the Secretary of State under this Act may—
(a)
contain such incidental or transitional provision as the Treasury
consider appropriate, and
(b)
make different provision for different cases.
15
97
Orders: Parliamentary control
(1)
A statutory instrument containing (alone or with other provision) an order to
which subsection (2) applies may not be made unless a draft of the instrument
has been laid before Parliament and approved by a resolution of each House.
(2)
This subsection applies to—
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(a)
an order under Part 3 (mutual societies);
(b)
an order under section 91 (power to make further provision about
regulation of consumer credit);
(c)
an order under section 99 (power to make further consequential
amendments) that amends or repeals primary legislation.
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(3)
A statutory instrument containing an order under this Act, other than an
instrument to which subsection (1) applies or an instrument containing only
provision made under section 103 (commencement), is subject to annulment in
pursuance of a resolution of either House of Parliament.
(4)
In this section “primary legislation” means—
30
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation.