Financial Guidance and Claims Bill [HL]

Commons amendments

[The page and line refer to Bill 131, the Bill as first printed for the Commons.]

Clause 1

1

Page 2, line 6, at end insert “and the devolved authorities.”

Clause 3

2

Page 3, line 12, leave out subsection (7) and insert—

 

“(7)    

The consumer protection function is—

 

(a)    

to notify the FCA where, in the exercise of its other functions, the

 

single financial guidance body becomes aware of practices carried

 

out by FCA- regulated persons (within the meaning of section 139A

 

of the Financial Services and Markets Act 2000) which it considers

 

to be detrimental to consumers, and

 

(b)    

to consider the effect of unsolicited direct marketing on consumers

 

of financial products and services, and, in particular—

 

(i)    

from time to time publish an assessment of whether

 

unsolicited direct marketing is, or may be, having a

 

detrimental effect on consumers, and

 

(ii)    

advise the Secretary of State whether to make regulations

 

under section (Unsolicited direct marketing: other consumer

 

financial products etc) (unsolicited direct marketing: other

 

consumer financial products etc).”

Clause 4

3

Page 3, line 35, leave out Clause 4

Clause 5

4

Page 4, line 13, leave out subsection (2)

 

Clause 18

5

Page 14, line 17, after “where” insert “—

 

(i)    

the disclosure is for the purpose of enabling or facilitating

 

the exercise of the consumer protection function, or

 

(ii)    


 

 

 
 

2

 

6

Page 14, line 26, leave out “Data Protection Act 1998” and insert “data protection

 

legislation”

After Clause 18

7

Insert the following new Clause—

 

“Personal pension schemes: requirements to refer members to guidance etc

 

(1)    

Section 137FB of the Financial Services and Markets Act 2000 (FCA general

 

rules: disclosure of information about the availability of pensions

 

guidance) is amended as follows.

 

(2)    

After subsection (1), insert—

 

“(1A)    

The FCA must also make general rules requiring the trustees or

 

managers of a relevant pension scheme to take the steps mentioned

 

in subsections (1B) and (1C) in relation to an application from a

 

member or survivor—

 

(a)    

to transfer any rights accrued under the scheme, or

 

(b)    

to start receiving benefits provided by the scheme.

 

(1B)    

As part of the application process, the trustees or managers must

 

ensure that—

 

(a)    

the member or survivor is referred to appropriate pensions

 

guidance, and

 

(b)    

the member or survivor is provided with an explanation of

 

the nature and purpose of such guidance.

 

(1C)    

Before proceeding with the application, the trustees or managers

 

must ensure that the member or survivor has either received

 

appropriate pensions guidance or has opted out of receiving such

 

guidance.

 

(1D)    

The rules may—

 

(a)    

specify what constitutes appropriate pensions guidance;

 

(b)    

make further provision about how the trustees or managers

 

must comply with the duties in subsections (1B) and (1C)

 

(such as provision about methods of communication and

 

time limits);

 

(c)    

make further provision about how, and to whom, a member

 

or survivor may indicate that they have received or opted

 

out of receiving appropriate pensions guidance for the

 

purposes of subsection (1C);

 
 

(d)    

specify what the duties of the trustees or managers are in the

 

situation where a member or survivor does not respond to a

 

communication that is made for the purposes of complying

 

with the duty in subsection (1C);

 

(e)    

provide for exceptions to the duties in subsections (1B) and

 

(1C) in specified cases.”

 

(3)    

In subsection (2), for “this section” substitute “subsection (1)”.

 

(4)    

After subsection (2) insert—

 

“(2A)    

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

 

of subsection (1A), it must consult—

 

(a)    

the Secretary of State, and

 

 


 
 

3

 
 

(b)    

the single financial guidance body.”

 

(5)    

In subsection (3), for “the rules” substitute “rules to be made by virtue of

 

subsection (1)”.

 

(6)    

After subsection (3) insert—

 

“(3A)    

In determining what provision to include in rules to be made by

 

virtue of subsection (1A), the FCA must have regard to any

 

regulations that are for the time being in force under section 113B of

 

the Pension Schemes Act 1993 (occupational pension schemes:

 

requirements to refer members to guidance etc).”

 

(7)    

In subsection (4), for the definition of “pensions guidance” substitute—

 

““pensions guidance” means information or guidance provided by

 

any person in pursuance of the requirements mentioned in section

 

5 of the Financial Guidance and Claims Act 2018 (information etc

 

about flexible benefits under pension schemes);”.”

8

Insert the following new Clause—

 

“Occupational pension schemes: requirements to refer members to guidance etc

 

(1)    

The Pension Schemes Act 1993 is amended as set out in subsections (2) to

 

(5).

 

(2)    

After section 113A insert—

 

“113B 

Occupational pension schemes: requirements to refer members to

 

guidance etc

 

(1)    

The Secretary of State must make regulations requiring the trustees

 

or managers of an occupational pension scheme to take the steps

 

mentioned in subsections (2) and (3) in relation to an application

 

from a relevant beneficiary—

 

(a)    

to transfer any rights accrued under the scheme, or

 

(b)    

to start receiving benefits provided by the scheme.

 

(2)    

As part of the application process, the trustees or managers must

 

ensure that—

 

(a)    

the beneficiary is referred to appropriate pensions

 

guidance, and

 

(b)    

the beneficiary is provided with an explanation of the

 

nature and purpose of such guidance.

 
 

(3)    

Before proceeding with the application, the trustees or managers

 

must ensure that the beneficiary has either received appropriate

 

pensions guidance or has opted out of receiving such guidance.

 

(4)    

The regulations may—

 

(a)    

specify what constitutes appropriate pensions guidance;

 

(b)    

make further provision about how the trustees or managers

 

must comply with the duties in subsections (2) and (3) (such

 

as provision about methods of communication and time

 

limits);

 

(c)    

make further provision about how, and to whom, a

 

beneficiary may indicate that they have received or opted

 

out of receiving appropriate pensions guidance for the

 

purposes of subsection (3);

 

 


 
 

4

 
 

(d)    

specify what the duties of the trustees or managers are in the

 

situation where a beneficiary does not respond to a

 

communication that is made for the purposes of complying

 

with the duty in subsection (3);

 

(e)    

provide for exceptions to the duties in subsections (2) and

 

(3) in specified cases;

 

(f)    

provide for the Secretary of State or another prescribed

 

person to issue guidance for the purposes of this section, to

 

which trustees or managers must have regard in complying

 

with their duties under the regulations.

 

(5)    

In determining what provision to include in the regulations, the

 

Secretary of State must have regard to any rules that are for the time

 

being in force under section 137FB(1A) of the Financial Services and

 

Markets Act 2000.

 

(6)    

In this section—

 

“relevant beneficiary”, in relation to a pension scheme,

 

means—

 

(a)    

a member of the scheme, or

 

(b)    

another person of a prescribed description,

 

who has a right or entitlement to flexible benefits under the

 

scheme;

 

“flexible benefits” has the meaning given by section 74 of the

 

Pension Schemes Act 2015;

 

“pensions guidance” means information or guidance provided

 

by any person in pursuance of the requirements mentioned

 

in section 5 of the Financial Guidance and Claims Act 2018

 

(information etc about flexible benefits under pension

 

schemes).”

 

(3)    

In section 115 (powers as respects failure to comply with information

 

requirements), in subsection (1), after “113” insert “, 113B”.

 

(4)    

In section 182(5) (power of Treasury to direct that regulation-making

 

powers are exercisable only in conjunction with them), after “except” insert

 

“regulations under section 113B or”.

 

(5)    

In section 185(2) (consultations about other regulations: exceptions), after

 

paragraph (c) insert—

 

“(ca)    

regulations under section 113B; or”.

 
 

(6)    

The Pension Schemes (Northern Ireland) Act 1993 is amended as set out in

 

subsections (7) to (9).

 

(7)    

After section 109A insert—

 

“109B 

Occupational pension schemes: requirements to refer members to

 

guidance etc

 

(1)    

The Department must make regulations requiring the trustees or

 

managers of an occupational pension scheme to take the steps

 

mentioned in subsections (2) and (3) in relation to an application

 

from a relevant beneficiary—

 

(a)    

to transfer any rights accrued under the scheme, or

 

(b)    

to start receiving benefits provided by the scheme.

 

 


 
 

5

 
 

(2)    

As part of the application process, the trustees or managers must

 

ensure that—

 

(a)    

the beneficiary is referred to appropriate pensions

 

guidance, and

 

(b)    

the beneficiary is provided with an explanation of the

 

nature and purpose of such guidance.

 

(3)    

Before proceeding with the application, the trustees or managers

 

must ensure that the beneficiary has either received appropriate

 

pensions guidance or has opted out of receiving such guidance.

 

(4)    

The regulations may—

 

(a)    

specify what constitutes appropriate pensions guidance;

 

(b)    

make further provision about how the trustees or managers

 

must comply with the duties in subsections (2) and (3) (such

 

as provision about methods of communication and time

 

limits);

 

(c)    

make further provision about how, and to whom, a

 

beneficiary may indicate that they have received or opted

 

out of receiving appropriate pensions guidance for the

 

purposes of subsection (3);

 

(d)    

specify what the duties of the trustees or managers are in the

 

situation where a beneficiary does not respond to a

 

communication that is made for the purposes of complying

 

with the duty in subsection (3);

 

(e)    

provide for exceptions to the duties in subsections (2) and

 

(3) in specified cases;

 

(f)    

provide for the Department or another prescribed person to

 

issue guidance for the purposes of this section, to which

 

trustees or managers must have regard in complying with

 

their duties under the regulations.

 

(5)    

In determining what provision to include in the regulations, the

 

Department must have regard to any rules that are for the time

 

being in force under section 137FB(1A) of the Financial Services and

 

Markets Act 2000.

 

(6)    

In this section—

 

“relevant beneficiary”, in relation to a pension scheme,

 

means—

 

(a)    

a member of the scheme, or

 

(b)    

another person of a prescribed description,

 
 

who has a right or entitlement to flexible benefits under the

 

scheme;

 

“flexible benefits” has the meaning given by section 74 of the

 

Pension Schemes Act 2015;

 

“pensions guidance” means information or guidance provided

 

by any person in pursuance of the requirements mentioned

 

in section 5 of the Financial Guidance and Claims Act 2018

 

(information etc about flexible benefits under pension

 

schemes).”

 

(8)    

In section 111 (powers as respects failure to comply with information

 

requirements), in subsection (1), after “109” insert “or 109B”.

 

 


 
 

6

 
 

(9)    

In section 177(6) (power of Department of Finance to direct that regulation-

 

making powers are exercisable only in conjunction with them), after

 

“except” insert “regulations under section 109B or”.”

Clause 20

9

Transpose Clause 20 to before Clause 23

After Clause 22

10

Insert the following new Clause—

 

“Unsolicited direct marketing: pensions

 

(1)    

The Secretary of State may make regulations prohibiting unsolicited direct

 

marketing relating to pensions.

 

(2)    

The regulations may—

 

(a)    

make provision about when a communication is to be, or is not to

 

be, treated as unsolicited;

 

(b)    

make provision for exceptions to the prohibition;

 

(c)    

confer functions on the Information Commissioner and on OFCOM

 

(including conferring a discretion);

 

(d)    

apply (with or without modifications) provisions of the data

 

protection legislation or the Privacy and Electronic

 

Communications (EC Directive) Regulations 2003 (S.I. 2003/2426)

 

(including, in particular, provisions relating to enforcement).

 

(3)    

The regulations may—

 

(a)    

make different provision for different purposes;

 

(b)    

make different provision for different areas;

 

(c)    

make incidental, supplementary, consequential, transitional or

 

saving provision.

 

(4)    

Regulations under this section are to be made by statutory instrument.

 

(5)    

A statutory instrument containing regulations under this section may not

 

be made unless a draft of the instrument has been laid before, and

 

approved by a resolution of, each House of Parliament.

 
 

(6)    

If before the end of June in any year the Secretary of State has not made

 

regulations under this section (whether or not in that year), the Secretary of

 

State must—

 

(a)    

publish a statement, by the end of July in that year, explaining why

 

regulations have not been made and setting a timetable for making

 

the regulations, and

 

(b)    

lay the statement before each House of Parliament.

 

(7)    

In this section, “OFCOM” means the Office of Communications established

 

by section 1 of the Office of Communications Act 2002.”

11

Insert the following new Clause—

 

“Unsolicited direct marketing: other consumer financial products etc

 

(1)    

The Secretary of State must keep under review whether a prohibition on

 

unsolicited direct marketing in relation to consumer financial products and

 

services other than pensions would be appropriate.

 

 


 
 

7

 
 

(2)    

If the Secretary of State considers that such a prohibition would be

 

appropriate, the Secretary of State may make regulations applying

 

regulations made under section (Unsolicited direct marketing: pensions) to

 

other consumer financial products and services (with or without

 

modifications).

 

(3)    

In considering whether to make such regulations, the Secretary of State

 

must take into account any advice received from the single financial

 

guidance body under section 3(7)(b)(ii) (consumer protection function:

 

advice on effect on consumers of unsolicited direct marketing).

 

(4)    

The regulations may—

 

(a)    

make different provision for different purposes;

 

(b)    

make different provision for different areas;

 

(c)    

make incidental, supplementary, consequential, transitional or

 

saving provision.

 

(5)    

Regulations under this section are to be made by statutory instrument.

 

(6)    

A statutory instrument containing regulations under this section may not

 

be made unless a draft of the instrument has been laid before, and

 

approved by a resolution of, each House of Parliament.”

Clause 23

12

Page 17, line 2, at end insert—

 

“the “consumer protection function” has the meaning given in section

 

3(7);

 

“the data protection legislation” has the same meaning as in the Data

 

Protection Act 2018 (see section 3 of that Act);”

 

13

Page 17, line 7, at end insert—

 

““direct marketing” means the communication (by whatever means)

 

of advertising or marketing material which is directed to particular

 

individuals;”

Clause 24

14

Page 17, line 21, at end insert—

 

“( )    

In section 1H (interpretation provisions for FCA’s objectives)—

 

(a)    

in subsection (2), at the end of paragraph (c) insert “or to engage in

 

claims management activity”;

 

(b)    

in subsection (8), at the appropriate place insert—

 

““engage in claims management activity” has the

 

meaning given in section 21;”.”

15

Page 18, line 7, at end insert—

 

“( )    

In section 137R (financial promotion rules)—

 

(a)    

in subsection (1), omit the “or” at the end of paragraph (a) and after

 

that paragraph insert—

 

“(aa)    

to engage in claims management activity, or”;

 

(b)    

in subsection (6), for “has” substitute “and “engage in claims

 

management activity” have”.”

 

 

 

 


 
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24 April 2018