S.I. 2004/454: memorandum from
HM Treasury
Financial Services and Markets Act 2000 (Transitional
Provisions) (Complaints Relating to General Insurance and Mortgages)
Order 2004 (S.I. 2004/454)
1. By a letter dated 16th March 2004, the Committee
sought a Memorandum on the following points:
Explain the need for the words "the beginning
of" in sub-paragraphs (a) and (b) of the definition of "relevant
commencement date" in article 1(3).
2. Pursuant to article 1(2), the Order comes into
force on 31st October 2004 or 14th January 2005 as the case may
be. Section 4(a) of the Interpretation Act 1978 (as applied to
instruments by section 23) provides that the Order comes into
force in these circumstances at the beginning of 31st October
2004 or 14th January 2005 as the case may be.
3. The definition of "relevant commencement
date" in article 1(3) is used to avoid the problem of referring
to 2 different dates throughout the Order. The intention behind
the words "at the beginning of" is to ensure that the
dates provided for by the definition coincide with the commencement
provision.
4. However, the Treasury accepts that the words "at
the beginning of" in the definition are not necessary. The
Treasury regrets this error and will take steps to amend the definition
by deleting these words at the first available opportunity and
in any event before the instrument comes into force.
Further to this point:
(a) in article 2(1), is "after the relevant
commencement date" intended to mean at any time on
or after 14 January 2004 or, as the case may be, 31
October 2004, or is it intended to mean at any time after
whichever of those dates is applicable?
5. This provision is intended to mean on or after
the relevant commencement date. The Treasury regret this error
and will take steps to correct it at the first available opportunity
and in any event before the instrument comes into force.
The same question applies to the phrase "after
commencement" in article 11(5);
6. The Treasury accepts that this phrase introduces
further ambiguity. Having accepted that an amendment is necessary
in paragraph 5 above, the Treasury will take the opportunity to
remove the ambiguity by amending these words to read "on
or after the relevant commencement date".
(b) explain the effect, in article 2 (2)(b),
of the phrase "on or after the relevant commencement date".
7. Article 2(1) of the Order applies the ombudsman's
compulsory jurisdiction under FSMA to a complaint referred to
the ombudsman after commencement if the conditions in paragraph
(2) are satisfied. Sub-paragraph (2)(b) is a condition that the
person who committed the relevant act or omission was an authorised
person on or after the relevant commencement date, i.e. on or
after the beginning of 14th January 2005 or 31st October 2004
as the case may be. The Treasury takes the view that this wording
correctly reflects the policy objectives and that no amendment
is required.
22 March 2004
