Financial Services Bill (HL Bill 48)

(a) an authorised person,

(b) a recognised investment exchange,

(c) any other person lawfully carrying on a regulated activity,

(d) a person carrying on business in contravention of the general
5prohibition in section 19 of FSMA 2000, or

(e) an issuer of listed securities.

73 Duty of PRA to investigate and report on possible regulatory failure

(1) Subsection (4) applies where it appears to the PRA that—

(a) relevant public expenditure has been incurred in respect of a PRA-
10authorised person, and

(b) that expenditure might not have been incurred but for a serious failure
in—

(i) the system established by FSMA 2000 for the regulation of PRA-
authorised persons and their activities, so far as it relates to the
15functions of the PRA, or

(ii) the operation of that system, so far as it relates to those
functions.

(2) Subsection (4) also applies where it appears to the PRA that—

(a) events have occurred which—

(i) 20had or could have had a significant adverse effect on the safety
or soundness of one or more PRA-authorised persons, or

(ii) if the effecting and carrying out of contracts of insurance is a
PRA-regulated activity for the purposes of FSMA 2000, related
to a PRA-authorised person carrying on that activity and
25indicated a significant failure to secure an appropriate degree of
protection for policyholders, and

(b) those events might not have occurred, or the adverse effect or failure
might have been reduced, but for a serious failure in—

(i) the system established by FSMA 2000 for the regulation of PRA-
30authorised persons and their activities, so far as it relates to the
functions of the PRA, or

(ii) the operation of that system, so far as it relates to those
functions.

(3) Subsection (4) also applies where the Treasury direct the PRA that it appears to
35the Treasury—

(a) that the conditions in subsection (1)(a) and (b) are met in relation to a
specified person, or

(b) that the conditions in subsection (2)(a) and (b) are met in relation to
specified events.

(4) 40The PRA must—

(a) carry out an investigation into—

(i) the events that gave rise to the incurring of the public
expenditure mentioned in subsection (1)(a) and the
circumstances surrounding them, or

(ii) 45the events mentioned in subsection (2)(a) and the circumstances
surrounding them, and

(b) report to the Treasury on the result of the investigation.

(5) Subsection (4) does not apply by virtue of subsection (1) if the Treasury direct
the PRA that it is not required to carry out an investigation into the events
concerned.

74 Interpretation of section 73

(1) 5This section has effect for the interpretation of section 73.

(2) “Policyholder” has the same meaning as in FSMA 2000.

(3) Relevant public expenditure has been incurred in respect of a PRA-authorised
person (“P”) in each of the following cases (but no others)—

(a) where the Treasury or the Secretary of State have provided financial
10assistance to or in respect of P for the purposes of resolving or reducing
a threat to the stability of the UK financial system;

(b) where the Treasury have incurred expenditure in connection with the
exercise by the Treasury, the Secretary of State or the Bank of England
of any power under Parts 1 to 3 of the Banking Act 2009 in relation to P;

(c) 15where the scheme manager of the Financial Services Compensation
Scheme has received a loan from the National Loans Fund, or financial
assistance from the Treasury, for the purpose of funding expenses
incurred or expected to be incurred under the Financial Services
Compensation Scheme by reason of events relating to P.

(4) 20In subsection (3)(a) and (c) “financial assistance” includes giving guarantees or
indemnities and any other kind of financial assistance (actual or contingent),
but does not include the giving by the Treasury of an indemnity or guarantee
in respect of the provision of financial assistance by the Bank of England.

(5) The Treasury may by order made by statutory instrument provide that a
25specified activity or transaction, or class of activity or transaction, is to be or is
not to be treated as financial assistance for the purposes of subsection (3)(a),
and subsection (4) is subject to this subsection.

75 Modification of section 73 in relation to Lloyd’s

(1) This section applies only if PRA-authorised persons include—

(a) 30the Society, or

(b) other persons who carry on regulated activities in relation to anything
done at Lloyd’s.

(2) Section 73 has effect as if—

(a) in subsection (1)(a) (and section 74(3)), the reference to a PRA-
35authorised person included a reference to a member of the Society,

(b) in subsection (2)(a)(i), the reference to one or more PRA-authorised
persons included a reference to the Society, and the members of the
Society, taken together, and

(c) in subsection (2)(a)(ii), the reference to a PRA-authorised person
40carrying on the activity of effecting and carrying out contracts of
insurance included a reference to—

(i) the Society, or

(ii) any other person who carries on PRA-regulated activities in
relation to anything done at Lloyd’s.

(3) 45In this section—

(a) “PRA-regulated activity” is to be read in accordance with section 22A
of FSMA 2000, and

(b) terms which are defined in Lloyd’s Act 1982 have the same meaning as
in that Act.

76 5Power of Treasury to require FCA or PRA to undertake investigation

(1) If the Treasury considers that it is in the public interest that either regulator
should undertake an investigation into any relevant events, it may give the
regulator a direction specifying the relevant events and requiring the regulator
to undertake an investigation into those events and the circumstances
10surrounding them and to report to the Treasury on the result of the
investigation.

(2) “Relevant events” means events that have occurred in relation to—

(a) a collective investment scheme,

(b) a person who is, or was at the time of the events, carrying on a regulated
15activity (whether or not as an authorised person), or

(c) listed securities or an issuer of listed securities.

(3) “Relevant events” do not include any events occurring before 1 December 2001
(but no such limitation applies to the reference in subsection (1) to surrounding
circumstances).

77 20Conduct of investigation

(1) Where a regulator is required by section 72 or 73 or under section 76 to carry
out an investigation, it is for the regulator to decide how it is to be carried out,
but this is subject to the following provisions.

(2) In carrying out such an investigation, the regulator must have regard to the
25desirability of minimising any adverse effect that the carrying out of the
investigation may have on the exercise by the regulator of any of its other
functions.

(3) The regulator may postpone the start of, or suspend, an investigation if it
considers it necessary to do so to avoid a material adverse effect on the exercise
30by it of any of its other functions.

(4) The regulator must notify the Treasury if it postpones the start of, or suspends,
an investigation under subsection (3), and the notification must specify when
the investigation will begin or resume.

(5) The Treasury may, by a direction to the regulator, control—

(a) 35the scope of the investigation;

(b) the period during which the investigation is to be carried out;

(c) the conduct of the investigation;

(d) the making of reports.

(6) A direction may, in particular—

(a) 40confine the investigation to particular matters;

(b) extend the investigation to additional matters;

(c) require the regulator to postpone the start of, or suspend, an
investigation until a specified time or until a further direction;

(d) where a notification has been received under subsection (3), require the
regulator to begin or resume the investigation immediately or at a
specified time;

(e) require the regulator to discontinue the investigation or to take only
5such steps as are specified in the direction;

(f) require the regulator to make such interim reports as are so specified.

(7) In exercising the power conferred on them by this section, the Treasury must
have regard to the desirability of minimising any adverse effect that the
carrying out of the investigation may have on the exercise by the regulator of
10any of its other functions.

78 Conclusion of investigation

On completion of an investigation required by section 72 or 73 or under section
76, the regulator must make a written report to the Treasury—

(a) setting out the result of the investigation,

(b) 15setting out the lessons (if any) that the regulator considers that it should
learn from the investigation, and

(c) making such recommendations (if any) as the regulator considers
appropriate.

79 Statements of policy

(1) 20Each regulator must prepare and issue a statement of its policy with respect to
the exercise of its functions under sections 72 to 78 (“the relevant sections”)
and, in particular—

(a) the matters it will take into account in determining whether the
conditions which give rise to its duty to carry out an investigation
25under section 72 or 73 (as the case may be) are met, and

(b) how it will carry out investigations under the relevant sections.

(2) A regulator may at any time alter or replace a statement issued by it under this
section.

(3) If a statement issued under this section is altered or replaced by a regulator, the
30regulator must issue the altered or replaced statement.

(4) A regulator must obtain the consent of the Treasury before issuing a statement
under this section.

(5) A statement issued under this section by a regulator must be published by the
regulator in the way appearing to the regulator to be best calculated to bring it
35to the attention of the public.

(6) A regulator must, without delay, give the Treasury a copy of any statement
which it publishes under this section.

(7) In exercising, or deciding whether to exercise, its functions under the relevant
sections a regulator must have regard to any statement published by it under
40this section and for the time being in force.

(8) A regulator may charge a reasonable fee for providing a person with a copy of
a statement issued by it.

Publication of reports

80 Publication of reports of inquiries and investigations

(1) This section applies where a report is made to the Treasury under section 70 or
78.

(2) 5Subject to subsection (3), the Treasury must publish the report in full.

(3) The Treasury may withhold material in the report from publication to such
extent—

(a) as is required by any statutory provision, enforceable EU obligation or
rule of law, or

(b) 10as the Treasury consider to be necessary in the public interest, having
regard in particular to the matters mentioned in subsection (4).

(4) Those matters are—

(a) the extent to which withholding material might inhibit the allaying of
public concern;

(b) 15the risk of harm or damage that could be avoided or reduced by
withholding any material;

(c) any conditions of confidentiality subject to which any person acquired
information that was given to the inquiry or used in the investigation.

(5) In subsection (4)(b) “harm or damage” includes in particular—

(a) 20damage to national security or international relations;

(b) damage to the economic interests of the United Kingdom or a part of
the United Kingdom;

(c) damage caused by disclosure of commercially sensitive information.

(6) The Treasury must lay before Parliament whatever is published under
25subsection (2).

(7) If the Treasury receive a report under section 70 or 78, but withhold all or part
of the material in the report from publication, they must publish and lay before
Parliament a statement of their reasons for not publishing the report in full.

(8) Publication under subsection (2) or (7) is to be in such manner as the Treasury
30think fit.

(9) References to a report under section 70 or 78 include references to an interim
report required under section 68 or 77.

Supplementary

81 Interpretation and supplementary provision

(1) 35In this Part—

• “authorised person” has the same meaning as in FSMA 2000;

• “collective investment scheme” has the same meaning as in FSMA 2000;

• “consumer” has the meaning given in section 1G of FSMA 2000;

• “listed securities” means anything which has been admitted to the official
  40list under Part 6 of FSMA 2000;

• “PRA-authorised person” has the same meaning as in FSMA 2000;

• “recognised clearing house” has the same meaning as in FSMA 2000;

Financial Services BillPage 155

• “recognised investment exchange” has the same meaning as in FSMA
  2000;

• “regulated activity” has the same meaning as in FSMA 2000;

• “regulator” means the FCA or the PRA.

(2) 5A direction by the Treasury under this Part must be given in writing.

Part 6 Investigation of complaints against regulators

82 Arrangements for the investigation of complaints

(1) The regulators must—

(a) 10make arrangements (“the complaints scheme”) for the investigation of
complaints arising in connection with the exercise of, or failure to
exercise, any of their relevant functions (see section 83), and

(b) appoint an independent person (“the investigator”) to be responsible
for the conduct of investigations in accordance with the complaints
15scheme.

(2) For the purposes of this Part “the regulators” are the FCA, the PRA and the
Bank of England, and references to a regulator are to be read accordingly.

(3) The complaints scheme must be designed so that, as far as reasonably
practicable, complaints are investigated quickly.

(4) 20The Treasury’s approval is required for the appointment or dismissal of the
investigator.

(5) The terms and conditions on which the investigator is appointed must be such
as, in the opinion of the regulators, are reasonably designed to secure—

(a) that the investigator will be free at all times to act independently of the
25regulators, and

(b) that complaints will be investigated under the complaints scheme
without favouring the regulators.

83 Relevant functions in relation to complaints scheme

(1) This section has effect for the interpretation of the reference in section 82(1)(a)
30to the relevant functions of the regulators.

(2) The relevant functions of the FCA or the PRA are its functions other than its
legislative functions.

(3) The relevant functions of the Bank of England are its functions under Part 18 of
FSMA 2000 (recognised clearing houses) or under Part 5 of the Banking Act
352009 (inter-bank payment systems), other than its legislative functions.

(4) For the purposes of subsection (2), the following are the FCA’s legislative
functions—

(a) making rules under FSMA 2000;

(b) issuing codes under section 64 or 119 of FSMA 2000;

(c) 40issuing statements under—

(i) section 63C, 64, 69, 88C, 89S, 93, 124, 131J, 138N, 192H, 192N,
210 or 312J of FSMA 2000,

(ii) section 345D of FSMA 2000 (whether as a result of section 345(2)
or 345A(3) or section 249(1) of that Act), or

(iii) section 79 of the Financial Services Act 2012;

(d) giving directions under section 316, 318 or 328 of FSMA 2000;

(e) 5issuing general guidance, as defined in section 139B(5) of FSMA 2000.

(5) For the purposes of subsection (2), the following are the PRA’s legislative
functions—

(a) making rules under FSMA 2000;

(b) issuing codes under section 64 of FSMA 2000;

(c) 10issuing statements under—

(i) section 63C, 64, 69, 192H, 192N, 210 or 345D of FSMA 2000, or

(ii) section 79 of the Financial Services Act 2012;

(d) giving directions under section 316 or 318 of FSMA 2000;

(e) issuing guidance under section 2I of FSMA 2000.

(6) 15For the purposes of subsection (3), the following functions of the Bank of
England under Part 18 of FSMA 2000 are legislative functions—

(a) making rules;

(b) issuing statements—

(i) under section 312J, or

(ii) 20by virtue of the application by Schedule 17A of a provision
mentioned in subsection (5)(c)(i) of this section.

(7) For the purposes of subsection (3), the following functions of the Bank of
England under Part 5 of the Banking Act 2009 are legislative functions—

(a) publishing principles or codes of practice under sections 188 and 189;

(b) 25preparing statements under section 198(3).

84 Consultation in relation to, and publication of, complaints scheme

(1) Before making the complaints scheme, the regulators must publish a draft of
the proposed scheme in the way appearing to them to be best calculated to
bring it to the attention of the public.

(2) 30The draft must be accompanied by notice that representations about it may be
made to any of the regulators within a specified time.

(3) Before making the proposed complaints scheme, the regulators must have
regard to any representations made to any of them in accordance with
subsection (2).

(4) 35If the regulators make the proposed complaints scheme, they must publish an
account, in general terms, of—

(a) the representations made to any of them in accordance with subsection
(2), and

(b) their response to the representations.

(5) 40If the complaints scheme differs from the draft published under subsection (1)
in a way which is, in the opinion of the regulators, significant the regulators
must (in addition to complying with subsection (4)) publish details of the
difference.

(6) The regulators must publish up-to-date details of the complaints scheme
45including, in particular, details of—

(a) the provision made under section 85(5), and

(b) the powers which the investigator has to investigate a complaint.

(7) Those details must be published in the way appearing to the regulators to be
best calculated to bring them to the attention of the public.

(8) 5The regulators must notify the Treasury of the publication of details under
subsection (6).

(9) A regulator may charge a reasonable fee for providing a person with a copy
of—

(a) a draft published under subsection (1), or

(b) 10details published under subsection (6).

(10) Subsections (1) to (5) and (9)(a) also apply to a proposal to alter or replace the
complaints scheme.

85 Investigation of complaints

(1) A regulator is not obliged to investigate in accordance with the complaints
15scheme a complaint which it reasonably considers would be more
appropriately dealt with in another way (for example by referring the matter
to the Upper Tribunal or by the institution of other legal proceedings).

(2) The complaints scheme must provide—

(a) for reference to the investigator of any complaint which a regulator is
20investigating,

(b) for the investigator—

(i) to have the means to conduct a full investigation of the
complaint,

(ii) to report to the regulator to which the complaint relates and the
25complainant on the result of the investigator’s investigation,
and

(iii) to be able to publish the investigator’s report (or part of it) if the
investigator considers that it (or the part) ought to be brought to
the attention of the public, and

(c) 30for the meeting by the regulators of the expenses of the scheme.

(3) If a regulator has decided not to investigate a complaint, it must notify the
investigator.

(4) If the investigator considers that a complaint of which the investigator has been
notified under subsection (3) ought to be investigated, the investigator may
35proceed as if the complaint had been referred to the investigator under the
complaints scheme.

(5) The complaints scheme must confer on the investigator the power to
recommend, if the investigator thinks it appropriate, that the regulator to
which a complaint relates takes either or both of the following steps—

(a) 40makes a compensatory payment to the complainant, or

(b) remedies the matter complained of.

(6) The complaints scheme must require the regulator to which a complaint
relates, in a case where the investigator—

(a) has reported that the complaint is well-founded, or

(b) 45has criticised the regulator in a report,

to inform the investigator and the complainant of the steps which it proposes
to take in response to the report.

(7) The investigator may require the regulator to which a complaint relates to
publish the whole or a specified part of the response.

(8) 5The investigator may appoint a person to conduct the investigation on the
investigator’s behalf but subject to the investigator’s direction.

(9) An officer or employee of any of the regulators may not be appointed under
subsection (8).

(10) Subsection (2) is not to be taken as preventing a regulator from making
10arrangements for the initial investigation of a complaint to be conducted by the
regulator.

86 Exemption from liability in damages

(1) Neither the investigator appointed under section 82 nor a person appointed to
conduct an investigation on the investigator’s behalf under section 85(8) is to
15be liable in damages for anything done or omitted in the discharge, or
purported discharge, of functions in relation to the investigation of a
complaint.

(2) Subsection (1) does not apply—

(a) if the act or omission is shown to have been in bad faith, or

(b) 20so as to prevent an award of damages made in respect of an act or
omission on the ground that the act or omission was unlawful as a
result of section 6(1) of the Human Rights Act 1998.

Part 7 Amendments of Banking Act 2009

25Special resolution regime and bank administration

87 Objectives and conditions

(1) The Banking Act 2009 is amended as follows.

(2) In section 3 (interpretation: other expressions), after “this Part—” insert—

• ““client assets” means assets which an institution has undertaken
  30to hold for a client (whether or not on trust, and whether or not
  the undertaking has been complied with),”.

(3) In section 4 (special resolution objectives), after subsection (8) insert—

“(8A) Objective 6, which applies in any case in which client assets may be
affected, is to protect those assets.

(8B) 35Objective 7 is to minimise adverse effects on institutions (such as
investment exchanges and clearing houses) that support the operation
of financial markets.”

(4) In section 8(2) (Condition A: private sector purchaser and bridge bank)—

(a) in paragraph (b) for “the banking systems of the United Kingdom, or”
40substitute “those systems,”, and

(b) after paragraph (c) insert “, or

(d) the protection of any client assets that may be affected.”

(5) In section 47 (restriction of partial transfers), for subsection (3) substitute—

“(3) Provision under subsection (2) may, in particular, refer to—

(a) 5particular classes of deposit;

(b) particular classes of client assets.”

(6) In the Table in section 261 (index of defined terms), after the entry relating to
“central counterparty clearing services”, insert—

88 10Private sector purchasers

(1) The Banking Act 2009 is amended as follows.

(2) After section 26 insert—

“26A Private sector purchaser: reverse share transfer

(1) This section applies where the Bank of England has made a share
15transfer instrument in accordance with section 11(2) (“the original
instrument”) providing for the transfer of securities issued by a bank to
a person (“the original transferee”).

(2) The Bank of England may make one or more private sector reverse
share transfer instruments in respect of securities issued by the bank
20and held by the original transferee.

(3) A private sector reverse share transfer instrument is a share transfer
instrument which—

(a) provides for transfer to the transferor under the original
instrument;

(b) 25makes other provision for the purposes of, or in connection
with, the transfer of securities which are, could be or could have
been transferred under paragraph (a).

(4) The Bank of England must not make a private sector reverse share
transfer instrument without the written consent of the original
30transferee.

(5) Sections 7, 8 and 50 do not apply to a private sector reverse share
transfer instrument (but it is to be treated in the same way as any other
share transfer instrument for all other purposes including for the
purposes of the application of a power under this Part).

(6) 35Before making a private sector reverse share transfer instrument the
Bank of England must consult—

(a) the PRA,

(b) the FCA, and

(c) the Treasury.

(7) 40Section 26 applies where the Bank of England has made a private sector
reverse share transfer instrument.”