|
| |
|
(2) | In section 6 of that Act (which contains provision relating to applications) after |
| |
| |
“(2A) | The application must also be accompanied— |
| |
(a) | in the case of an application for a licence or for the renewal of a |
| |
licence, by the charge payable by virtue of section 6A; |
| 5 |
(b) | in any other case, by the specified fee.” |
| |
(3) | In section 191(1)(a) of that Act (special provisions as to Northern Ireland) after |
| |
“notices” insert “, charges”. |
| |
28 | Applications for standard licences |
| |
After section 24 of the 1974 Act insert— |
| 10 |
“24A | Applications for standard licences |
| |
(1) | An application for a standard licence shall, in relation to each type of |
| |
business which is covered by the application, state whether the |
| |
| |
(a) | for the licence to cover the carrying on of that type of business |
| 15 |
| |
(b) | for the licence to cover the carrying on of that type of business |
| |
only so far as it falls within one or more descriptions of |
| |
| |
(2) | An application within subsection (1)(b) in relation to a type of business |
| 20 |
shall set out the description or descriptions of business in question. |
| |
(3) | References in this Part to a type of business are references to a type of |
| |
business within subsection (4). |
| |
(4) | The types of business within this subsection are— |
| |
(a) | a consumer credit business; |
| 25 |
(b) | a consumer hire business; |
| |
(c) | a business so far as it comprises or relates to credit brokerage; |
| |
(d) | a business so far as it comprises or relates to debt-adjusting; |
| |
(e) | a business so far as it comprises or relates to debt-counselling; |
| |
(f) | a business so far as it comprises or relates to debt-collecting; |
| 30 |
(g) | a business so far as it comprises or relates to debt |
| |
| |
(h) | a business so far as it comprises or relates to the provision of |
| |
credit information services; |
| |
(i) | a business so far as it comprises or relates to the operation of a |
| 35 |
| |
| |
(a) | shall by general notice specify the descriptions of business |
| |
which can be set out in an application for the purposes of |
| |
subsection (2) in relation to a type of business; |
| 40 |
(b) | may by general notice provide that applications within |
| |
subsection (1)(b) cannot be made in relation to one or more of |
| |
the types of business within subsection (4)(c) to (i). |
| |
|
| |
|
| |
|
(6) | The power of the OFT under subsection (5) includes power to make |
| |
different provision for different cases or classes of case.” |
| |
29 | Issue of standard licences |
| |
(1) | In section 25 of the 1974 Act (licensee to be a fit person) for subsection (1) |
| |
| 5 |
“(1) | If an applicant for a standard licence— |
| |
(a) | makes an application within section 24A(1)(a) in relation to a |
| |
| |
(b) | satisfies the OFT that he is a fit person to carry on that type of |
| |
business with no limitation, |
| 10 |
| he shall be entitled to be issued with a standard licence covering the |
| |
carrying on of that type of business with no limitation. |
| |
(1AA) | If such an applicant— |
| |
(a) | makes an application within subsection (1)(b) of section 24A in |
| |
relation to a type of business, and |
| 15 |
(b) | satisfies the OFT that he is a fit person to carry on that type of |
| |
business so far as it falls within the description or descriptions |
| |
of business set out in his application in accordance with |
| |
subsection (2) of that section, |
| |
| he shall be entitled to be issued with a standard licence covering the |
| 20 |
carrying on of that type of business so far as it falls within the |
| |
description or descriptions in question. |
| |
(1AB) | An applicant who fails, in relation to a type of business, to satisfy the |
| |
OFT as mentioned in subsection (1) or (1AA) shall be entitled to be |
| |
issued with a standard licence covering the carrying on of that type of |
| 25 |
business so far as it falls within one or more descriptions of business |
| |
| |
(a) | he satisfies the OFT that he is a fit person to carry on that type |
| |
of business so far as it falls within the description or |
| |
descriptions in question; |
| 30 |
(b) | he could have applied for the licence to be limited in that way; |
| |
| |
(c) | the licence would not cover the doing of something which was |
| |
not covered by his application. |
| |
(1AC) | In this section ‘description of business’ means, in relation to a type of |
| 35 |
business, a description of business specified in a general notice under |
| |
| |
(1AD) | An applicant shall not, by virtue of this section, be issued with a licence |
| |
unless he satisfies the OFT that the name or names under which he |
| |
would be licensed is or are not misleading or otherwise undesirable.” |
| 40 |
(2) | For subsection (2) of that section substitute— |
| |
“(2) | In determining whether an applicant for a licence is a fit person for the |
| |
purposes of this section the OFT shall have regard to any matters |
| |
appearing to it to be relevant including (amongst other things)— |
| |
(a) | the applicant’s skills, knowledge and experience in relation to |
| 45 |
consumer credit businesses, consumer hire businesses or |
| |
ancillary credit businesses; |
| |
|
| |
|
| |
|
(b) | such skills, knowledge and experience of other persons who the |
| |
applicant proposes will participate in any business that would |
| |
be carried on by him under the licence; |
| |
(c) | practices and procedures that the applicant proposes to |
| |
implement in connection with any such business; |
| 5 |
(d) | evidence of the kind mentioned in subsection (2A). |
| |
(2A) | That evidence is evidence tending to show that the applicant, or any of |
| |
the applicant’s employees, agents or associates (whether past or |
| |
present) or, where the applicant is a body corporate, any person |
| |
appearing to the OFT to be a controller of the body corporate or an |
| 10 |
associate of any such person, has— |
| |
(a) | committed any offence involving fraud or other dishonesty or |
| |
| |
(b) | contravened any provision made by or under— |
| |
| 15 |
(ii) | Part 16 of the Financial Services and Markets Act 2000 so |
| |
far as it relates to the consumer credit jurisdiction under |
| |
| |
(iii) | any other enactment regulating the provision of credit to |
| |
individuals or other transactions with individuals; |
| 20 |
(c) | contravened any provision in force in an EEA State which |
| |
corresponds to a provision of the kind mentioned in paragraph |
| |
| |
(d) | practised discrimination on grounds of sex, colour, race or |
| |
ethnic or national origins in, or in connection with, the carrying |
| 25 |
| |
(e) | engaged in business practices appearing to the OFT to be |
| |
deceitful or oppressive or otherwise unfair or improper |
| |
(whether unlawful or not).” |
| |
(3) | In subsection (3) of that section for “(2)” substitute “(2A)”. |
| 30 |
30 | Guidance on fitness test |
| |
After section 25 of the 1974 Act insert— |
| |
“25A | Guidance on fitness test |
| |
(1) | The OFT shall prepare and publish guidance in relation to how it |
| |
determines, or how it proposes to determine, whether persons are fit |
| 35 |
persons as mentioned in section 25. |
| |
(2) | If the OFT revises the guidance at any time after it has been published, |
| |
the OFT shall publish it as revised. |
| |
(3) | The guidance shall be published in such manner as the OFT thinks fit |
| |
for the purpose of bringing it to the attention of those likely to be |
| 40 |
| |
(4) | In preparing or revising the guidance the OFT shall consult such |
| |
persons as it thinks fit. |
| |
(5) | In exercising and performing its powers and duties by virtue of this |
| |
Part the OFT shall have regard to the guidance as most recently |
| 45 |
| |
|
| |
|
| |
|
31 | Variation of standard licences etc. |
| |
(1) | In section 30 of the 1974 Act (variation of licences by request) for subsection (1) |
| |
| |
“(1) | If it thinks fit, the OFT may by notice to the holder of a standard |
| |
| 5 |
(a) | in the case of a licence which covers the carrying on of a type of |
| |
business only so far as it falls within one or more descriptions of |
| |
business, vary the licence by— |
| |
(i) | removing that limitation; |
| |
(ii) | adding a description of business to that limitation; or |
| 10 |
(iii) | removing a description of business from that limitation; |
| |
(b) | in the case of a licence which covers the carrying on of a type of |
| |
business with no limitation, vary the licence so that it covers the |
| |
carrying on of that type of business only so far as it falls within |
| |
one or more descriptions of business; |
| 15 |
(c) | vary the licence so that it no longer covers the carrying on of a |
| |
| |
(d) | vary the licence so that a type of business the carrying on of |
| |
which is not covered at all by the licence is covered either— |
| |
(i) | with no limitation; or |
| 20 |
(ii) | only so far as it falls within one or more descriptions of |
| |
| |
(e) | vary any term of the licence not relating to the activities it |
| |
| |
(1A) | The OFT may vary a licence under subsection (1) only in accordance |
| 25 |
with an application made by the holder of the licence. |
| |
(1B) | References in this section to a description of business in relation to a |
| |
| |
(a) | are references to a description of business specified in a general |
| |
notice under section 24A(5)(a); and |
| 30 |
(b) | in subsection (1)(a) (apart from sub-paragraph (ii)) include |
| |
references to a description of business that was, but is no longer, |
| |
| |
(2) | In subsection (1) of section 31 of that Act (compulsory variation of licences) for |
| |
“the licence should be varied” substitute “it should take steps mentioned in |
| 35 |
| |
(3) | After that subsection insert— |
| |
| |
(a) | in the case of a standard licence, steps mentioned in section |
| |
30(1)(a)(ii) and (iii), (b), (c) and (e); |
| 40 |
(b) | in the case of a group licence, the varying of terms of the |
| |
| |
(4) | After subsection (7) of that section insert— |
| |
“(8) | Subsection (1) shall have effect in relation to a standard licence as if an |
| |
application could be made for the renewal or further renewal of the |
| 45 |
licence on the same terms (except as to expiry) even if such an |
| |
|
| |
|
| |
|
application could not be made because of provision made in a general |
| |
notice under section 24A(5). |
| |
(9) | Accordingly, in applying subsection (1AA) of section 25 in relation to |
| |
the licence for the purposes of this section, the OFT shall treat |
| |
references in that subsection to the description or descriptions of |
| 5 |
business in relation to a type of business as references to the description |
| |
or descriptions of business included in the licence in relation to that |
| |
type of business, notwithstanding that provision under section 24A(5).” |
| |
(5) | In section 32 of that Act (suspension and revocation of licences) after |
| |
| 10 |
“(9) | The OFT has no power to revoke or to suspend a standard licence |
| |
simply because, by virtue of provision made in a general notice under |
| |
section 24A(5), a person cannot apply for the renewal of such a licence |
| |
on terms which are the same as the terms of the licence in question.” |
| |
32 | Winding-up of standard licensee’s business |
| 15 |
(1) | After section 34 of the 1974 Act insert— |
| |
“34A | Winding-up of standard licensee’s business |
| |
(1) | Where the OFT determines to take a step falling within subsection (2) |
| |
in relation to a standard licence, it may, if it thinks fit, defer the taking |
| |
of that step for such period as it thinks fit for the purpose of enabling |
| 20 |
the licensee to transfer or otherwise to wind up his business or any part |
| |
| |
(2) | The steps falling within this subsection are— |
| |
(a) | the refusal of an application for the renewal of the licence; |
| |
(b) | the renewal of the licence in terms different to those applied for; |
| 25 |
(c) | the variation of the licence under section 31; |
| |
(d) | the suspension or revocation of the licence. |
| |
(3) | Subject to subsection (4), where the OFT defers the taking of a step |
| |
falling within subsection (2), the licence shall continue in effect for the |
| |
| 30 |
(a) | on the same terms (disregarding the OFT’s determination to |
| |
take the step falling within subsection (2)); or |
| |
(b) | in the case of a step falling within subsection (2)(b), on the terms |
| |
| |
| and, in the case of a step falling within subsection (2)(a) or (b), |
| 35 |
notwithstanding that apart from this subsection the licence would |
| |
expire before the end of the period of the deferral. |
| |
(4) | Where the OFT defers the taking of a step falling within subsection (2), |
| |
| |
(a) | specify activities or descriptions of activities which are to be |
| 40 |
excluded from the activities authorised to be carried on by |
| |
virtue of subsection (3); |
| |
(b) | specify requirements which must be complied with by the |
| |
licensee during the period of the deferral in relation to the |
| |
activities authorised to be carried on by virtue of that |
| 45 |
| |
|
| |
|
| |
|
(c) | terminate the period of the deferral if the licensee fails to |
| |
comply with a requirement specified under paragraph (b). |
| |
(5) | Under subsection (4)(a) an activity may be excluded for the whole of |
| |
the period of the deferral or for only a specified part of it. |
| |
| 5 |
(a) | defer the taking of a step falling within subsection (2) in relation |
| |
to a licence only on the application of the licensee; and |
| |
(b) | require the licensee’s application to be made (if one is to be |
| |
made at all) within the period of 21 days beginning with the day |
| |
on which the OFT gives the licensee a notice under this |
| 10 |
subsection or within such longer period as the OFT may allow. |
| |
(7) | If the licensee makes an application, unless the OFT determines to defer |
| |
the taking of the step falling within subsection (2) in accordance with |
| |
the application, it shall, before determining it, by notice— |
| |
(a) | inform the licensee, giving its reasons, that (as the case may be) |
| 15 |
it is minded to refuse the application, or to grant it in terms |
| |
different from those applied for, describing them; and |
| |
(b) | invite the licensee to submit to the OFT representations in |
| |
support of his application in accordance with section 34. |
| |
| 20 |
(a) | give a notice under subsection (6), and |
| |
(b) | consider (in whole or in part) the licensee’s application, |
| |
| before it determines whether to take the step falling within subsection |
| |
| |
(9) | Accordingly the OFT may, before it determines whether to take the step |
| 25 |
falling within subsection (2), do (in whole or in part) anything that it |
| |
must do under subsection (7) or section 34(1) or (2) in relation to the |
| |
| |
(2) | Sections 29(5) and 32(5) of that Act (which give the OFT power to give |
| |
directions allowing licensees to carry agreements into effect) shall cease to have |
| 30 |
| |
(3) | In the Table in section 41 of that Act (appeals) before the entry relating to |
| |
“refusal to make order under section 40(2) in accordance with terms of |
| |
application” insert the following entry— |
| |
| | | | 35 | | 34A to defer the taking of a |
| | | | | | | | | | | | | |
|
33 | Consequential amendments relating to ss. 27 to 32 |
| |
(1) | In section 21(1) of the 1974 Act (businesses needing a licence) for “consumer |
| 40 |
hire business” substitute “a consumer hire business or an ancillary credit |
| |
| |
(2) | In section 22 of that Act (standard and group licences) after subsection (5) |
| |
|
| |
|
| |
|
| |
“(5A) | A group licence to carry on a business may limit the activities it covers |
| |
in any way the OFT thinks fit.” |
| |
(3) | In subsection (1) of section 23 of that Act (authorisation of specific activities) for |
| |
“this section” substitute “the terms of the licence”. |
| 5 |
(4) | In subsection (4) of that section for “Regulations may be made specifying” |
| |
substitute “The OFT may by general notice specify”. |
| |
(5) | After section 27 of that Act insert— |
| |
“27A | Standard licences held by consumer credit EEA firms |
| |
(1) | A consumer credit EEA firm shall not be entitled to hold a standard |
| 10 |
licence which covers any permitted activities. |
| |
| |
(a) | for the purposes of an application made by a consumer credit |
| |
EEA firm for a standard licence, sections 24A and 25 shall have |
| |
effect as if references to a type of business were references to a |
| 15 |
type of business excluding all permitted activities; |
| |
(b) | a standard licence issued to such a firm shall include a term |
| |
which has the effect of excluding from the licence all permitted |
| |
activities (an ‘EEA exclusion term’); and |
| |
(c) | for the purposes of a standard licence which has an EEA |
| 20 |
exclusion term, section 30(1) (including as applied by section |
| |
31(1A)) shall have effect as if references to a type of business |
| |
were references to a type of business excluding all activities |
| |
within the scope of that term. |
| |
(3) | Where a standard licence has been issued to a consumer credit EEA |
| 25 |
| |
(a) | there is a change in the firm’s permitted activities in |
| |
consequence of which the licence covers a permitted activity, |
| |
| |
(b) | the OFT is notified by either the firm or the Financial Services |
| 30 |
Authority of that change, |
| |
| the OFT shall by notice to the firm vary the licence’s EEA exclusion |
| |
term so as to secure compliance with subsection (1). |
| |
(4) | Where a standard licence has been issued to a consumer credit EEA |
| |
| 35 |
(a) | there is a change in the firm’s permitted activities in |
| |
consequence of which an activity that was a permitted activity |
| |
is no longer a permitted activity, or |
| |
(b) | the firm ceases to be a consumer credit EEA firm, |
| |
| the OFT may, if it thinks fit, by notice to the firm vary the licence’s EEA |
| 40 |
exclusion term so as to remove the activity mentioned in paragraph (a) |
| |
from the scope of the term or, in a case within paragraph (b), vary the |
| |
licence so as to remove the EEA exclusion term. |
| |
(5) | Subsections (1A) and (4) of section 30 shall apply in relation to a |
| |
variation of a standard licence under subsection (4) of this section as |
| 45 |
they apply in relation to a variation of a standard licence under that |
| |
| |
|
| |
|