|
| |
|
61 | Other permitted disclosures |
| |
(1) | Section 56 does not preclude the disclosure by the Regulator of restricted |
| |
| |
(a) | the Secretary of State, |
| |
(b) | the Commissioners of Inland Revenue or their officers, or |
| 5 |
(c) | the Department for Social Development in Northern Ireland, |
| |
| if the disclosure appears to the Regulator to be desirable or expedient in the |
| |
interests of members of occupational pension schemes or personal pension |
| |
schemes or in the public interest. |
| |
(2) | Section 56 does not preclude the disclosure of restricted information— |
| 10 |
(a) | with a view to the institution of, or otherwise for the purposes of, any |
| |
| |
(b) | in connection with any other proceedings arising out of— |
| |
| |
(ii) | the Welfare Reform and Pensions Act 1999 (c. 30), |
| 15 |
(iii) | the Pensions Act 1995 (c. 26), or |
| |
(iv) | the Pension Schemes Act 1993 (c. 48), |
| |
| or any corresponding enactment in force in Northern Ireland, or any |
| |
proceedings for breach of trust in relation to an occupational pension |
| |
| 20 |
(c) | with a view to the institution of, or otherwise for the purposes of, |
| |
| |
(i) | section 7 or 8 of the Company Directors Disqualification Act |
| |
| |
(ii) | Article 10 or 11 of the Companies (Northern Ireland) Order 1989 |
| 25 |
(S.I. 1989/2404 (N.I. 18)), |
| |
(d) | in connection with any proceedings under— |
| |
(i) | the Insolvency Act 1986 (c. 45), or |
| |
(ii) | the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 |
| |
| 30 |
| which the Regulator has instituted or in which it has a right to be heard, |
| |
(e) | with a view to the institution of, or otherwise for the purposes of, any |
| |
disciplinary proceedings relating to the exercise of his professional |
| |
duties by a solicitor, an actuary, an accountant or an insolvency |
| |
| 35 |
(f) | with a view to the institution of, or otherwise for the purposes of, any |
| |
disciplinary proceedings relating to the exercise by a public servant of |
| |
| |
(g) | for the purpose of enabling or assisting an authority in a country |
| |
outside the United Kingdom to exercise functions corresponding to |
| 40 |
those of the Regulator under this Act, the Welfare Reform and Pensions |
| |
Act 1999, the Pensions Act 1995 or the Pension Schemes Act 1993, or |
| |
(h) | in pursuance of a Community obligation. |
| |
(3) | In subsection (2)(f), “public servant” means an officer or servant of the Crown |
| |
or of any prescribed authority. |
| 45 |
(4) | Section 56 does not preclude the disclosure by the Regulator of restricted |
| |
| |
(a) | the Director of Public Prosecutions, |
| |
|
| |
|
| |
|
(b) | the Director of Public Prosecutions for Northern Ireland, |
| |
| |
(d) | a procurator fiscal, or |
| |
| |
(5) | Section 56 does not preclude the disclosure of restricted information in any |
| 5 |
case where the disclosure is required by or by virtue of an enactment. |
| |
(6) | Section 56 does not preclude the disclosure of restricted information in any |
| |
case where the disclosure is to a Regulator-appointed trustee of an |
| |
occupational pension scheme for the purpose of enabling or assisting him to |
| |
exercise his functions in relation to the scheme. |
| 10 |
(7) | In subsection (6), “Regulator-appointed trustee” means a trustee appointed by |
| |
the Regulator under section 7 of the Pensions Act 1995 (c. 26) or any |
| |
corresponding provision in force in Northern Ireland. |
| |
(8) | Section 56 does not preclude the disclosure by any person mentioned in |
| |
subsection (1) or (4) of restricted information obtained by the person by virtue |
| 15 |
of that subsection, if the disclosure is made with the consent of the Regulator. |
| |
(9) | Section 56 does not preclude the disclosure by any person specified in the first |
| |
column of Schedule 3 of restricted information obtained by the person by |
| |
virtue of section 60(1), if the disclosure is made— |
| |
(a) | with the consent of the Regulator, and |
| 20 |
(b) | for the purpose of enabling or assisting the person to exercise any |
| |
functions specified in relation to him in the second column of the |
| |
| |
(10) | Before deciding whether to give its consent to such a disclosure as is mentioned |
| |
in subsection (8) or (9), the Regulator must take account of any representations |
| 25 |
made to it, by the person seeking to make the disclosure, as to the desirability |
| |
of the disclosure or the necessity for it. |
| |
62 | Disclosure of information by the Inland Revenue |
| |
(1) | This section applies to information held by any person in the exercise of tax |
| |
functions about any matter which is relevant, for the purposes of those |
| 30 |
functions, to tax or duty in the case of an identifiable person (in this section |
| |
referred to as “tax information”). |
| |
(2) | No obligation as to secrecy imposed by section 182 of the Finance Act 1989 |
| |
(c. 26) or otherwise shall prevent the disclosure of tax information to the |
| |
Regulator for the purpose of enabling or assisting the Regulator to discharge |
| 35 |
| |
(3) | Where tax information is disclosed to the Regulator by virtue of subsection (2), |
| |
it must, subject to subsection (4), be treated for the purposes of section 56 as |
| |
| |
(4) | Sections 58 to 61 do not apply to tax information, and such information must |
| 40 |
| |
(a) | to, or in accordance with authority given by, the Commissioners of |
| |
Inland Revenue or the Commissioners of Customs and Excise, or |
| |
(b) | with a view to the institution of, or otherwise for the purposes of, any |
| |
| 45 |
|
| |
|
| |
|
(5) | In this section “tax functions” has the same meaning as in section 182 of the |
| |
Finance Act 1989 (c. 26). |
| |
| |
| |
(1) | The Regulator may, if it considers it appropriate to do so in any particular case, |
| 5 |
publish a report of the consideration given by it to the exercise of its functions |
| |
in relation to that case and the results of that consideration. |
| |
(2) | The publication of a report under subsection (1) may be in such form and |
| |
manner as the Regulator considers appropriate. |
| |
(3) | For the purposes of the law of defamation, the publication of any matter by the |
| 10 |
Regulator shall be absolutely privileged. |
| |
| |
| |
(1) | The Regulator may issue codes of practice— |
| |
(a) | containing practical guidance in relation to the exercise of functions |
| 15 |
under the pensions legislation, and |
| |
(b) | regarding the standards of conduct and practice expected from those |
| |
who exercise such functions. |
| |
(2) | The Regulator must issue one or more such codes of practice relating to |
| |
| 20 |
(a) | what constitutes a “reasonable” period for the purposes of any |
| |
provision of the pensions legislation which requires any action to be |
| |
taken within such a period; |
| |
(b) | the discharge of the duty imposed by section 44 (duty to notify |
| |
Regulator of certain events); |
| 25 |
(c) | the discharge of the duty imposed by section 45 (duty to report |
| |
| |
(d) | the discharge of duties imposed by sections 180 and 184 (duties of |
| |
trustees or managers to prepare, review and revise, a statement of |
| |
funding principles and a schedule of contributions); |
| 30 |
(e) | the discharge of the duty imposed by section 185(2) or (3) of this Act |
| |
(duties of trustees or managers of occupational pension schemes to |
| |
report failures to pay employer contributions timeously); |
| |
(f) | the discharge of the duties imposed by sections 196 and 197 (member- |
| |
nominated trustees and directors); |
| 35 |
(g) | the obligations imposed by sections 200 and 201 (requirements for |
| |
knowledge and understanding: individual and corporate trustees); |
| |
(h) | the discharge of the duty imposed by section 49(9)(b) of the Pensions |
| |
Act 1995 (c. 26) (duty of trustees or managers of occupational pension |
| |
schemes to report material failures by employers to pay contributions |
| 40 |
deducted from employee’s earnings timeously); |
| |
(i) | the discharge of the duty imposed by section 88(1) of that Act (duties of |
| |
trustees and managers of money purchase schemes to report failures to |
| |
pay employer contributions timeously); |
| |
|
| |
|
| |
|
(j) | the discharge of the duty imposed by section 111A(7A) of the Pension |
| |
Schemes Act 1993 (c. 48) (duty of trustees or managers of personal |
| |
pension schemes to report material failures to pay employer |
| |
contributions timeously); |
| |
(k) | such other matters as are prescribed for the purposes of this section. |
| 5 |
(3) | The Regulator may from time to time revise the whole or any part of a code of |
| |
practice issued under this section and issue that revised code. |
| |
(4) | The Regulator may revoke a code of practice issued under this section. |
| |
(5) | A failure on the part of any person to observe any provision of a code of |
| |
practice does not of itself render that person liable to any legal proceedings. |
| 10 |
| This is subject to section 14(3)(a) and (7) (power for improvement notice to |
| |
direct that person complies with code of practice and civil penalties for failure |
| |
| |
(6) | A code of practice issued under this section is admissible in evidence in any |
| |
legal proceedings and, if any provision of such a code appears to the court or |
| 15 |
tribunal concerned to be relevant to any question arising in the proceedings, it |
| |
must be taken into account in determining that question. |
| |
| |
| “legal proceedings” includes proceedings of the Pensions Ombudsman; |
| |
| 20 |
| “the pensions legislation” means any enactment contained in or made by |
| |
| |
(a) | the Pension Schemes Act 1993, |
| |
(b) | Part 1, and section 33, of the Pensions Act 1995 (c. 26), other than |
| |
sections 62 to 66A of that Act (equal treatment), |
| 25 |
(c) | Part 1 of the Welfare Reform and Pensions Act 1999 (c. 30), or |
| |
| |
(8) | Sections 65 and 66 make provision about the procedure to be followed when a |
| |
code of practice is issued or revoked. |
| |
65 | Procedure for issue and publication of codes of practice |
| 30 |
(1) | Where the Regulator proposes to issue a code of practice it must prepare and |
| |
publish a draft of the code. |
| |
(2) | Where the Regulator publishes a draft under subsection (1), it must consult— |
| |
(a) | such persons as it considers appropriate, and |
| |
(b) | any other persons the Secretary of State requires it to consult. |
| 35 |
(3) | Having considered any representations made on the draft, the Regulator must |
| |
make such modifications to it as it considers appropriate. |
| |
(4) | Subsections (2) and (3) do not apply— |
| |
(a) | to a code made for the purpose only of consolidating other codes issued |
| |
| 40 |
(b) | to a code if the Secretary of State considers consultation inexpedient by |
| |
| |
(5) | If the Regulator determines to proceed with a draft, it must send it to the |
| |
| |
|
| |
|
| |
|
(a) | if he approves of it, must lay it before Parliament, and |
| |
(b) | if he does not approve of it, must publish details of his reasons for |
| |
| |
(6) | Where a draft is laid before Parliament under subsection (5)(a)— |
| |
(a) | if within the period mentioned in subsection (7) either House so |
| 5 |
resolves, no further proceedings may be taken on the draft code, |
| |
(b) | if no such resolution is passed, the Regulator must issue the code in the |
| |
| |
(7) | The period referred to in subsection (6)(a) is the period of 40 days— |
| |
(a) | beginning with the day on which the draft is laid before Parliament (or, |
| 10 |
if it is laid before the two Houses on different days, with the later of the |
| |
| |
(b) | ignoring any period during which Parliament is dissolved or |
| |
prorogued or during which both Houses are adjourned for more than |
| |
| 15 |
(8) | The fact that no further proceedings may be taken on a draft code in accordance |
| |
with subsection (6)(a) does not prevent the laying of a new draft. |
| |
(9) | A code issued in accordance with subsection (6)(b) shall come into effect on |
| |
such day as the Secretary of State may by order appoint. |
| |
| Without prejudice to section 238, such an order may contain such transitional |
| 20 |
provisions or savings as appear to the Secretary of State to be necessary or |
| |
expedient in connection with the code of practice brought into operation. |
| |
(10) | The Regulator must arrange for any code issued by it under section 64 to be |
| |
published in the way appearing to it to be appropriate. |
| |
(11) | The Regulator may charge a reasonable fee for providing a person with a copy |
| 25 |
of a code published under this section. |
| |
(12) | This section applies to a revised code as it applies to the first issue of a code. |
| |
66 | Revocation of codes of practice |
| |
(1) | A code of practice may be revoked by the Secretary of State by order. |
| |
(2) | An order under this section may be made only with the consent of the |
| 30 |
| |
(3) | Without prejudice to section 238, an order under this section may contain such |
| |
savings as appear to the Secretary of State to be necessary or expedient in |
| |
connection with the revocation of the code. |
| |
Exercise of regulatory functions |
| 35 |
67 | The Regulator’s procedure in relation to its regulatory functions |
| |
(1) | The Regulator must determine the procedure that it proposes to follow in |
| |
relation to the exercise of its regulatory functions. |
| |
(2) | For the purposes of this Part the “regulatory functions” of the Regulator are— |
| |
(a) | the power to issue an improvement notice under section 14, |
| 40 |
(b) | the power to issue a third party notice under section 15, |
| |
|
| |
|
| |
|
(c) | the reserved regulatory functions (see Schedule 2), |
| |
(d) | the power to vary or revoke under section 75 (to the extent that it does |
| |
not fall within paragraph (c)), |
| |
(e) | the power under section 2(3)(a) of the Welfare Reform and Pensions Act |
| |
1999 (c. 30) to refuse to register a scheme under section 2 of that Act, |
| 5 |
(f) | the power to make an order under section 7 of the Pensions Act 1995 |
| |
(c. 26) appointing a trustee (to the extent that it does not fall within |
| |
| |
(g) | the power to give directions under section 72B of that Act (directions |
| |
facilitating winding up), and |
| 10 |
(h) | such other functions of the Regulator as may be prescribed. |
| |
(3) | The Determinations Panel must determine the procedure to be followed by it |
| |
in relation to any exercise by it on behalf of the Regulator of— |
| |
(a) | the power to determine whether to exercise a regulatory function, and |
| |
(b) | where the Panel so determines to exercise a regulatory function, the |
| 15 |
power to exercise the function in question. |
| |
(4) | The procedure determined under this section— |
| |
(a) | must provide for the procedure required under— |
| |
(i) | section 70 (standard procedure), and |
| |
(ii) | section 72 (special procedure), and |
| 20 |
(b) | may include such other procedural requirements as the Regulator or, as |
| |
the case may be, the Panel considers appropriate. |
| |
(5) | This section is subject to— |
| |
(a) | sections 73 to 78 (the remaining provisions concerning the procedure in |
| |
relation to the regulatory functions), and |
| 25 |
(b) | any regulations made by the Secretary of State under paragraph 19 of |
| |
| |
68 | Publication of procedure in relation to regulatory functions |
| |
(1) | The Regulator must issue a statement of the procedure determined under |
| |
| 30 |
(2) | The Regulator must arrange for the statement to be published in the way |
| |
appearing to it to be appropriate. |
| |
(3) | The Regulator may charge a reasonable fee for providing a person with a copy |
| |
| |
(4) | If the procedure determined under section 67 is changed in a material way, the |
| 35 |
Regulator must publish a revised statement. |
| |
(5) | The Regulator must, without delay, give the Secretary of State a copy of any |
| |
statement which it issues under this section. |
| |
69 | Application of standard and special procedure |
| |
(1) | The Regulator must comply with the standard procedure (see section 70) or, |
| 40 |
where section 71 applies, the special procedure (see section 72) in a case |
| |
| |
(a) | the Regulator considers that the exercise of one or more of the |
| |
regulatory functions may be appropriate, or |
| |
|
| |
|
| |
|
(b) | an application is made under or by virtue of any of the provisions listed |
| |
in section 11(6) for the Regulator to exercise a reserved regulatory |
| |
| |
(2) | For the purposes of section 70, references to the regulatory action under |
| |
consideration in a particular case are— |
| 5 |
(a) | in a case falling within subsection (1)(a), references to the exercise of the |
| |
one or more regulatory functions which the Regulator considers that it |
| |
may be appropriate to exercise, and |
| |
(b) | in a case falling within subsection (1)(b), references to the exercise of the |
| |
reserved regulatory function which is the subject-matter of the |
| 10 |
| |
(3) | Neither section 70 (standard procedure) nor section 72 (special procedure) |
| |
apply in relation to a determination whether to exercise a regulatory function |
| |
on a review under section 73 (compulsory review of regulatory action). |
| |
| 15 |
(1) | The procedure determined under section 67 must make provision for the |
| |
| |
(2) | The “standard procedure” is a procedure which provides for— |
| |
(a) | the giving of notice to such persons as it appears to the Regulator |
| |
would be directly affected by the regulatory action under consideration |
| 20 |
| |
(b) | those persons to have an opportunity to make representations, |
| |
(c) | the consideration of any such representations and the determination |
| |
whether to take the regulatory action under consideration, |
| |
(d) | the giving of notice of the determination to such persons as appear to |
| 25 |
the Regulator to be directly affected by it (“a determination notice”), |
| |
(e) | the determination notice to contain details of the right of referral to the |
| |
Tribunal under subsection (3), |
| |
(f) | the form and further content of warning notices and determination |
| |
notices and the manner in which they are to be given, and |
| 30 |
(g) | the time limits to be applied at any stage of the procedure. |
| |
(3) | Where the standard procedure applies, the determination which is the subject- |
| |
matter of the determination notice may be referred to the Tribunal (see section |
| |
| |
(a) | any person to whom the determination notice is given as required |
| 35 |
under subsection (2)(d), and |
| |
(b) | any other person who appears to the Tribunal to be directly affected by |
| |
| |
(4) | Where that determination was a determination to exercise a regulatory |
| |
function, the Regulator must not exercise the function— |
| 40 |
(a) | during the period within which the determination may be referred to |
| |
the Tribunal (see section 77(1)), and |
| |
(b) | if the determination is so referred, until the reference, and any appeal |
| |
against the Tribunal’s determination, has been finally disposed of. |
| |
(5) | Subsection (4) does not apply where the determination is a determination to |
| 45 |
exercise any of the following functions— |
| |
|
| |
|