|
| |
| |
(a) | that an act or omission of the approved regulator (or a series of such |
| |
acts or omissions) has had, or is likely to have, an adverse impact on |
| |
one or more of the regulatory objectives, and |
| |
(b) | that, in all the circumstances of the case, it is appropriate to take the |
| |
action proposed under subsection (1). |
| 5 |
(3) | A direction under subsection (1)(b) may impose conditions with which the |
| |
performance targets must conform. |
| |
(4) | If the Board proposes to take action under this section in respect of an |
| |
approved regulator it must give notice to the approved regulator— |
| |
(a) | describing the action it proposes to take, |
| 10 |
(b) | specifying the acts or omissions to which the proposed action relates |
| |
and any other facts which, in the opinion of the Board, justify the taking |
| |
| |
(c) | specifying the time (not being earlier than the end of the period of 28 |
| |
days beginning with the day on which the notice is given) before which |
| 15 |
representations with respect to that action may be made. |
| |
(5) | Before taking action under this section, the Board must consider any |
| |
representations which are duly made. |
| |
(6) | In exercising its regulatory functions, an approved regulator must seek to meet |
| |
any performance target set for or by it under this section. |
| 20 |
(7) | The Board must publish any target set or direction given by it under this |
| |
| |
(8) | An approved regulator must publish any target set by it pursuant to a direction |
| |
| |
(9) | The Board may take such steps as it regards as appropriate to monitor the |
| 25 |
extent to which any performance target set under this section is being, or has |
| |
| |
| |
| |
(1) | This section applies if the Board is satisfied— |
| 30 |
(a) | that an act or omission of an approved regulator (or a series of such acts |
| |
or omissions) has had, or is likely to have, an adverse impact on one or |
| |
more of the regulatory objectives, |
| |
(b) | that an approved regulator has failed to comply with any requirement |
| |
imposed on it by or under this Act (including this section) or any other |
| 35 |
| |
(c) | that an approved regulator— |
| |
(i) | has failed to ensure that the exercise of its regulatory functions |
| |
is not prejudiced by any of its representative functions, or |
| |
(ii) | has failed to ensure that decisions relating to the exercise of its |
| 40 |
regulatory functions are, so far as reasonably practicable, taken |
| |
independently from decisions relating to the exercise of its |
| |
representative functions. |
| |
(2) | If, in all the circumstances of the case, the Board is satisfied that it is |
| |
appropriate to do so, it may direct the approved regulator to take— |
| 45 |
| |
| |
|
| |
| |
(a) | in a case within subsection (1)(a), such steps as the Board considers will |
| |
counter the adverse impact, mitigate its effect or prevent its occurrence |
| |
| |
(b) | in a case within subsection (1)(b) or (c), such steps as the Board |
| |
considers will remedy the failure, mitigate its effect or prevent its |
| 5 |
| |
(3) | A direction under subsection (2)— |
| |
(a) | may only require an approved regulator to take steps which it has |
| |
| |
(b) | may require an approved regulator to take steps with a view to the |
| 10 |
modification of any part of its regulatory arrangements. |
| |
(4) | The Board may not exercise its powers under this section so as to give a |
| |
direction requiring an approved regulator to take steps in respect of a specific |
| |
disciplinary case or other specific regulatory proceedings (as opposed to all, or |
| |
a specified class of, such cases or proceedings). |
| 15 |
(5) | For the purposes of this section a direction to take steps includes a direction |
| |
which requires an approved regulator to refrain from taking a particular |
| |
| |
(6) | The power to give a direction under this section is subject to any provision |
| |
made by or under any other enactment. |
| 20 |
(7) | The Board may take such steps as it regards as appropriate to monitor the |
| |
extent to which a direction under this section is being, or has been, complied |
| |
| |
(8) | Where the Board revokes a direction under this section, it must— |
| |
(a) | give the approved regulator to whom the direction was given notice of |
| 25 |
| |
| |
| |
Schedule 7 makes provision about the procedure which must be complied with |
| |
before a direction is given under section 31. |
| 30 |
33 | Enforcement of directions |
| |
(1) | If at any time it appears to the Board that an approved regulator has failed to |
| |
comply with a direction given under section 31, the Board may make an |
| |
application to the High Court under this section. |
| |
(2) | If, on an application under this section, the High Court decides that the |
| 35 |
approved regulator has failed to comply with the direction in question, it may |
| |
order the approved regulator to take such steps as the High Court directs for |
| |
securing that the direction is complied with. |
| |
(3) | This section is without prejudice to any other powers conferred on the Board |
| |
| 40 |
| |
| |
|
| |
| |
| |
| |
(1) | This section applies if the Board is satisfied— |
| |
(a) | that an act or omission of an approved regulator (or a series of such acts |
| |
or omissions) has had, or is likely to have, an adverse impact on one or |
| 5 |
more of the regulatory objectives, and |
| |
(b) | that, in all the circumstances of the case, it is appropriate to act under |
| |
| |
(2) | The Board may publish a statement censuring the approved regulator for the |
| |
act or omission (or series of acts or omissions). |
| 10 |
35 | Public censure: procedure |
| |
(1) | If the Board proposes to publish a statement under section 34 in respect of an |
| |
approved regulator, it must give notice to the approved regulator— |
| |
(a) | stating that the Board proposes to publish such a statement and setting |
| |
out the terms of the proposed statement, |
| 15 |
(b) | specifying the acts or omissions to which the proposed statement |
| |
| |
(c) | specifying the time (not being earlier than the end of the period of 28 |
| |
days beginning with the day on which the notice is given to the |
| |
approved regulator) before which representations with respect to the |
| 20 |
proposed statement may be made. |
| |
(2) | Before publishing the statement, the Board must consider any representations |
| |
| |
(3) | Before varying any proposed statement set out in a notice under subsection |
| |
(1)(a), the Board must give notice to the approved regulator— |
| 25 |
(a) | setting out the proposed variation and the reasons for it, and |
| |
(b) | specifying the time (not being earlier than the end of the period of 28 |
| |
days beginning with the day on which the notice is given to the |
| |
approved regulator) before which representations with respect to the |
| |
proposed variation may be made. |
| 30 |
(4) | Before varying the proposal, the Board must consider any representations |
| |
| |
| |
| |
(1) | This section applies if the Board is satisfied— |
| 35 |
(a) | that an act or omission of an approved regulator (or a series of such acts |
| |
or omissions) has had an adverse impact on one or more of the |
| |
regulatory objectives, and |
| |
(b) | that, in all the circumstances of the case, it is appropriate to impose a |
| |
financial penalty on the approved regulator. |
| 40 |
| |
| |
|
| |
| |
(2) | The Board may impose a penalty, in respect of the act or omission (or series of |
| |
acts or omissions), of such an amount as it considers appropriate, but not |
| |
exceeding the maximum amount prescribed under subsection (3). |
| |
(3) | The Board must make rules prescribing the maximum amount of a penalty |
| |
which may be imposed under this section. |
| 5 |
(4) | Rules may only be made under subsection (3) with the consent of the Secretary |
| |
| |
(5) | A penalty under this section is payable to the Board. |
| |
(6) | For the purposes of this section and sections 37 to 39, references to an approved |
| |
regulator are to a body which was an approved regulator at the time the act or |
| 10 |
omission (or series of acts or omissions) within subsection (1)(a) occurred |
| |
(whether or not the body subsequently ceased to be an approved regulator). |
| |
(7) | In sections 37 to 39 references to a “penalty” are to a penalty under this section. |
| |
37 | Financial penalties: procedure |
| |
(1) | If the Board proposes to impose a penalty on an approved regulator, it must |
| 15 |
give notice to the approved regulator— |
| |
(a) | stating that the Board proposes to impose a penalty and the amount of |
| |
the penalty proposed to be imposed, |
| |
(b) | specifying the acts or omissions to which the proposed penalty relates, |
| |
(c) | specifying the other facts which, in the Board’s opinion, justify the |
| 20 |
imposition of a penalty and the amount of the penalty, and |
| |
(d) | specifying the time (not being earlier than the end of the period of 21 |
| |
days beginning with the day on which the notice is published under |
| |
subsection (8)) before which representations with respect to the |
| |
proposed penalty may be made. |
| 25 |
(2) | Before imposing a penalty on an approved regulator, the Board must consider |
| |
any representations which are duly made. |
| |
(3) | Where the Board proposes to vary the amount of a proposed penalty stated in |
| |
a notice under subsection (1)(a), the Board must give notice to the approved |
| |
| 30 |
(a) | setting out the proposed variation and the reasons for it, and |
| |
(b) | specifying the time (not being earlier than the end of the period of 21 |
| |
days beginning with the day on which the notice is published under |
| |
subsection (8)) before which representations with respect to the |
| |
proposed variation may be made. |
| 35 |
(4) | Before varying the proposal, the Board must consider any representations |
| |
| |
(5) | As soon as practicable after imposing a penalty, the Board must give notice to |
| |
| |
(a) | stating that it has imposed a penalty on the approved regulator and its |
| 40 |
| |
(b) | specifying the acts or omissions to which the penalty relates, |
| |
(c) | specifying the other facts which, in the Board’s opinion, justify the |
| |
imposition of the penalty and its amount, and |
| |
| |
| |
|
| |
| |
(d) | specifying a time (not being earlier than the end of the period of 42 days |
| |
beginning with the day on which the notice is given to the approved |
| |
regulator), before which the penalty is required to be paid. |
| |
(6) | The approved regulator may, within the period of 21 days beginning with the |
| |
day on which it is given the notice under subsection (5), make an application |
| 5 |
to the Board for it to specify different times by which different portions of the |
| |
| |
(7) | If an application is made under subsection (6) in relation to a penalty, the |
| |
penalty is not required to be paid until the application has been determined. |
| |
(8) | The Board must publish any notice given under this section. |
| 10 |
38 | Appeals against financial penalties |
| |
(1) | An approved regulator on whom a penalty is imposed may appeal to the court |
| |
on one or more of the appeal grounds. |
| |
(2) | The appeal grounds are— |
| |
(a) | that the imposition of the penalty was not within the power of the |
| 15 |
| |
(b) | that any of the requirements of section 37 have not been complied with |
| |
in relation to the imposition of the penalty and the interests of the |
| |
approved regulator have been substantially prejudiced by the non- |
| |
| 20 |
(c) | that the amount of the penalty is unreasonable; |
| |
(d) | that it was unreasonable of the Board to require the penalty imposed or |
| |
any portion of it to be paid by the time or times by which it was |
| |
| |
(3) | An appeal under subsection (1) must be made— |
| 25 |
(a) | within the period of 42 days beginning with the day on which the notice |
| |
under section 37(5) is given to the approved regulator in respect of the |
| |
| |
(b) | where the appeal relates to a decision of the Board on an application by |
| |
the approved regulator under section 37(6), within the period of 42 |
| 30 |
days beginning with the day on which the approved regulator is |
| |
notified of the decision. |
| |
(4) | On any such appeal, where the court considers it appropriate to do so in all the |
| |
circumstances of the case and is satisfied of one or more of the appeal grounds, |
| |
| 35 |
| |
(b) | substitute a penalty of such lesser amount as the court considers |
| |
| |
(c) | in the case of the appeal ground in subsection (2)(d), substitute for any |
| |
time imposed by the Board a different time or times. |
| 40 |
(5) | Where the court substitutes a penalty of a lesser amount it may require the |
| |
payment of interest on the substituted penalty at such rate, and from such time, |
| |
as it considers just and equitable. |
| |
(6) | Where the court specifies as a time by which the penalty, or a portion of the |
| |
penalty, is to be paid a time before the determination of the appeal under this |
| 45 |
| |
| |
|
| |
| |
section, it may require the payment of interest on the penalty, or portion, from |
| |
that time at such rate as it considers just and equitable. |
| |
(7) | Except as provided by this section, the validity of a penalty is not to be |
| |
questioned by any legal proceedings whatever. |
| |
(8) | In this section “the court” means the High Court. |
| 5 |
39 | Recovery of financial penalties |
| |
(1) | If the whole or any part of a penalty is not paid by the time by which it is |
| |
required to be paid, the unpaid balance from time to time carries interest at the |
| |
rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110). |
| |
(2) | If an appeal is made under section 38 in relation to a penalty, the penalty is not |
| 10 |
required to be paid until the appeal has been determined or withdrawn. |
| |
(3) | If the Board grants an application under subsection (6) of section 37 in relation |
| |
to a penalty but any portion of the penalty is not paid by the time specified in |
| |
relation to it by the Board under that subsection, the Board may where it |
| |
considers it appropriate require so much of the penalty as has not already been |
| 15 |
paid to be paid immediately. |
| |
(4) | Where a penalty, or any portion of it, has not been paid by the time when it is |
| |
| |
(a) | no appeal relating to the penalty has been made under section 38 |
| |
during the period within which such an appeal can be made, or |
| 20 |
(b) | an appeal has been made under that section and determined or |
| |
| |
| the Board may recover from the approved regulator, as a debt due to the Board, |
| |
any of the penalty and any interest which has not been paid. |
| |
| 25 |
40 | Intervention directions |
| |
(1) | The Board may give an approved regulator an intervention direction in |
| |
relation to any of the approved regulator’s regulatory functions if the Board is |
| |
| |
(a) | that an act or omission of an approved regulator (or a series of such acts |
| 30 |
or omissions) has had, or is likely to have, an adverse impact on one or |
| |
more of the regulatory objectives, and |
| |
(b) | that, in all the circumstances of the case, it is appropriate to give the |
| |
| |
(2) | An intervention direction, in relation to a regulatory function of an approved |
| 35 |
regulator, is a direction— |
| |
(a) | that the regulatory function is to be exercised by the Board or a person |
| |
| |
(b) | that the approved regulator must comply with any instructions of the |
| |
Board or its nominee in relation to the exercise of the function. |
| 40 |
(3) | The Board may not determine that it is appropriate to give an intervention |
| |
direction unless it is satisfied that the matter cannot be adequately addressed |
| |
by the Board exercising the powers available to it under sections 30 to 39. |
| |
| |
| |
|
| |
| |
(4) | Part 1 of Schedule 8 makes provision about the procedure which must be |
| |
complied with before an intervention direction is given and the manner in |
| |
which such a direction is to be given. |
| |
(5) | The Board must make rules as to the persons it may nominate for the purposes |
| |
| 5 |
41 | Intervention directions: further provision |
| |
(1) | This section applies where an intervention direction has effect in respect of a |
| |
function of an approved regulator (“the relevant function”). |
| |
(2) | The approved regulator must give the specified person all such assistance, in |
| |
connection with the proposed exercise of the relevant function by the specified |
| 10 |
person in pursuance of the direction, as the approved regulator is reasonably |
| |
| |
(3) | On an application by the specified person (or a person appointed by the |
| |
specified person to act on its behalf) a judge of the High Court, Circuit judge or |
| |
justice of the peace may issue a warrant authorising that person to— |
| 15 |
(a) | enter and search the premises of the approved regulator, and |
| |
(b) | take possession of any written or electronic records found on the |
| |
| |
(4) | The person so authorised may, for the purpose of the exercise by the specified |
| |
person of the relevant function, take copies of written or electronic records |
| 20 |
found on a search carried out by virtue of the warrant. |
| |
(5) | The judge or justice of the peace may not issue the warrant unless satisfied that |
| |
its issue is necessary or desirable for the exercise by the specified person of the |
| |
| |
(6) | The Secretary of State must make regulations— |
| 25 |
(a) | specifying further matters which a judge or justice of the peace must be |
| |
satisfied of, or matters which a judge or justice of the peace must have |
| |
regard to, before issuing a warrant, and |
| |
(b) | regulating the exercise of a power conferred by a warrant issued under |
| |
subsection (3) or by subsection (4) (whether by restricting the |
| 30 |
circumstances in which a power may be exercised, by specifying |
| |
conditions to be complied with in the exercise of a power, or otherwise). |
| |
(7) | Regulations under subsection (6)(b) must in particular make provision as to the |
| |
circumstances in which written or electronic records of which a person has |
| |
taken possession by virtue of a warrant issued under subsection (3) may be |
| 35 |
copied or must be returned. |
| |
(8) | But the Secretary of State may not make regulations under subsection (6) |
| |
| |
(a) | they are made in accordance with a recommendation made by the |
| |
| 40 |
(b) | the Secretary of State has consulted the Board about the making of the |
| |
| |
(9) | In this section “the specified person” means the Board or, where a person is |
| |
nominated by it as mentioned in section 40(2), that person. |
| |
| |
| |
|
