Part XI Information Gathering and Investigations
Powers to gather information
165F1Regulators power to require information F2: authorised persons etc.
(1)
F3Either regulator may, by notice in writing given to an authorised person, require him—
(a)
to provide specified information or information of a specified description; or
(b)
to produce specified documents or documents of a specified description.
(2)
The information or documents must be provided or produced—
(a)
before the end of such reasonable period as may be specified; and
(b)
at such place as may be specified.
(3)
An officer who has written authorisation from the F4regulator to do so may require an authorised person without delay—
(a)
to provide the officer with specified information or information of a specified description; or
(b)
to produce to him specified documents or documents of a specified description.
(4)
This section applies only to
F5(a)
(b)
in relation to the exercise by the PRA of the powers conferred by subsections (1) and (3), information and documents reasonably required by the Bank of England in connection with the exercise by the Bank of its functions in pursuance of its financial stability objective.
(5)
F8The regulator in question may require any information provided under this section to be provided in such form as it may reasonably require.
(6)
F9The regulator in question may require—
(a)
any information provided, whether in a document or otherwise, to be verified in such manner, or
(b)
any document produced to be authenticated in such manner,
as it may reasonably require.
(7)
The powers conferred by subsections (1) and (3) may also be F10exercised—
(a)
by either regulator, to impose requirements on a person who is connected with an authorised person;
(b)
(c)
by the FCA, to impose requirements on a recognised investment exchange;
(d)
by the FCA, to impose requirements on a person who is connected with a recognised investment exchange.
F13(da)
by the FCA, to impose requirements on a person who provides, or has provided, a service to an FCA investment firm or to a relevant parent undertaking of such a firm;
F14(e)
by either regulator, to impose requirements on a person who provides any service to an insurance undertaking, reinsurance undertaking or third-country insurance undertaking.
(8)
“Authorised person” includes a person who was at any time an authorised person but who has ceased to be an authorised person.
F15(8A)
“Financial stability objective” means the objective set out in section 2A of the Bank of England Act 1998.
(9)
(10)
“Specified” means—
(a)
in subsections (1) and (2), specified in the notice; and
(b)
in subsection (3), specified in the authorisation.
(11)
For the purposes of this section, a person is connected with F19another person (“A”) if he is or has at any relevant time been—
(a)
a member of A’s group;
(b)
a controller of A;
(c)
any other member of a partnership of which A is a member; F20...
(d)
(e)
involved in the administration of any trust arrangement relating to a funeral plan contract entered into or carried out by A.
F23(12)
In subsection (7)(b), the reference to a scheme that is recognised includes a scheme a part of which is recognised.
F24(13)
In this section, “funeral plan contract” has the same meaning as in article 59(2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
165AF26PRA's power to require information: financial stability
(1)
The F27PRA may, by notice in writing given to a person to whom this section applies, require the person—
(a)
to provide specified information or information of a specified description; or
(b)
to produce specified documents or documents of a specified description.
(2)
This section applies to—
(a)
a person who has a legal or beneficial interest in any of the assets of a relevant investment fund;
(b)
a person who is responsible for the management of a relevant investment fund;
(c)
a person (a “service provider”) who provides any service to an authorised person;
(d)
a person prescribed by an order made by the Treasury or any person of a description prescribed by such an order (and see also section 165C);
(e)
a person who is connected with a person to whom this section applies as a result of any of the above paragraphs.
(3)
This section applies only to
F28(a)
(b)
information and documents reasonably required by the Bank of England in connection with the exercise by the Bank of its functions in pursuance of its financial stability objective.
(4)
A notice may be given to a service provider, or to a person who is connected with a service provider, only if the F27PRA considers that—
(a)
the service or the way in which it (or any part of it) is provided, or
(b)
any failure to provide the service (or any part of it),
poses, or would be likely to pose, a serious threat to the stability of the UK financial system.
(5)
Information or documents required under this section must be provided or produced—
(a)
before the end of such reasonable period as may be specified; and
(b)
at such place as may be specified.
(6)
The F27PRA may require any information provided under this section to be provided in such form as it may reasonably require.
(7)
The F27PRA may require—
(a)
any information provided, whether in a document or otherwise, to be verified in such manner as it may reasonably require; or
(b)
any document produced to be authenticated in such manner as it may reasonably require.
F30(7A)
“Financial stability objective” means the objective set out in section 2A of the Bank of England Act 1998.
(8)
In this section—
“management” includes any of the activities listed in F31Schedule 6 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
“relevant investment fund” means an investment fund whose assets consist of or include financial instruments which—
(a)
are traded in the United Kingdom; or
(b)
were issued by a body incorporated in the United Kingdom;
“service” includes facility;
“specified” means specified in the notice.
(9)
For the purposes of the definition of “relevant investment fund”—
(a)
arrangements may constitute an investment fund even if there is only one person participating in the arrangements; and
(b)
the reference to financial instruments has the F32same meaning as in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (see article 3(1) of that Order).
(10)
For the purposes of this section a person is connected with another person (“A”) if the person is or has at any relevant time been—
(a)
a member of A's group;
(b)
a controller of A;
(c)
any other member of a partnership of which A is a member; or
(d)
in relation to A, a person mentioned in Part 1 of Schedule 15 (reading references in that Part to the authorised person as references to A).
165BSafeguards etc in relation to exercise of power under section 165A
(1)
(2)
The notice under subsection (1) must—
(a)
give the F34PRA's reasons for proposing to impose the requirement; and
(b)
specify a reasonable period within which the person may make representations to the F33PRA.
(3)
The F33PRA must then decide, within a reasonable period, whether to impose the requirement.
(4)
Subsections (1) to (3) do not apply in any case where the F33PRA is satisfied that it is necessary for the information or documents to be provided or produced without delay.
(5)
(6)
The F33PRA must prepare a statement of its policy with respect to the exercise of the power conferred by section 165A.
(7)
The statement requires the approval of the Treasury.
(8)
If the Treasury approve the statement, the F33PRA must publish it.
(9)
The power conferred by section 165A may not be exercised before the statement has been published.
165COrders under section 165A(2)(d)
F35(1)
The Treasury may make an order under section 165A(2)(d) only if either or both of the following conditions is met in relation to the provision made by the order.
(1A)
Condition A is that the Treasury consider that—
(a)
the activities carried on by the prescribed person or persons of the prescribed description, or the way in which those activities (or any part of them) are carried on, or
(b)
any failure to carry on those activities (or any part of them),
pose, or would be likely to pose, a serious threat to the stability of the UK financial system.
(1B)
Condition B is that the provision implements all or part of a recommendation made by the Financial Policy Committee of the Bank of England under section 9P of the Bank of England Act 1998.
(2)
Subject as follows, an order under section 165A(2)(d) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(3)
Subsection (2) does not apply in any case where the Treasury are satisfied that it is necessary to make an order under section 165A(2)(d) without laying a draft for approval.
(4)
In that case, the order—
(a)
must be laid before Parliament after being made; and
(b)
ceases to have effect at the end of the relevant period unless before the end of that period it is approved by a resolution of each House of Parliament.
(5)
If an order ceases to have effect as a result of subsection (4)(b) that does not affect—
(a)
anything done under it; or
(b)
the power to make a new one.
(6)
“Relevant period” means a period of 28 days beginning with the day on which the order is made.
(7)
In calculating the relevant period no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8)
If a statutory instrument containing an order under section 165A(2)(d) would, apart from this subsection, be treated as a hybrid instrument for the purposes of the Standing Orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.
F36166 Reports by skilled persons.
(1)
This section applies where either regulator has required or could require a person to whom subsection (2) applies (“the person concerned”) to provide information or produce documents with respect to any matter (“the matter concerned”).
(2)
This subsection applies to—
(a)
an authorised person (“A”),
(b)
any other member of A's group,
(c)
a partnership of which A is a member, or
(d)
a person who has at any relevant time been a person falling within paragraph (a), (b) or (c),
who is, or was at the relevant time, carrying on a business.
(3)
The regulator mentioned in subsection (1) may either—
(a)
by notice in writing given to the person concerned, require the person concerned to provide the regulator with a report on the matter concerned, or
(b)
itself appoint a person to provide the regulator with a report on the matter concerned.
(4)
When acting under subsection (3)(a), the regulator may require the report to be in such form as may be specified in the notice.
(5)
The regulator must give notice of an appointment under subsection (3)(b) to the person concerned.
(6)
The person appointed to make a report—
(a)
must be a person appearing to the regulator to have the skills necessary to make a report on the matter concerned, and
(b)
where the appointment is to be made by the person concerned, must be a person nominated or approved by the regulator.
(7)
It is the duty of—
(a)
the person concerned, and
(b)
any person who is providing (or who has at any time provided) services to the person concerned in relation to the matter concerned,
to give the person appointed to prepare a report all such assistance as the appointed person may reasonably require.
(8)
The obligation imposed by subsection (7) is enforceable, on the application of the regulator in question, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.
(9)
A regulator may make rules providing for expenses incurred by it in relation to an appointment under subsection (3)(b) to be payable as a fee by the person concerned.
(10)
The powers conferred by this section may also be exercised by the FCA in relation to a person to whom subsection (11) F37, (12) or (13) applies, (and references to the person concerned are to be read accordingly).
(11)
This subsection applies to—
(a)
a recognised investment exchange (“A”),
(b)
any other member of A's group,
(c)
a partnership of which A is a member, or
(d)
a person who has at any time been a person falling within paragraph (a), (b) or (c),
who is, or was at the relevant time, carrying on a business.
F38(12)
This subsection applies to a person who provides, or has provided, a service to an FCA investment firm or to a relevant parent undertaking of such a firm.
F39(13)
This subsection applies to a person who is or has at any relevant time been involved in the administration of any trust arrangement relating to a funeral plan contract entered into or carried out by an authorised person.
(14)
In this section, “funeral plan contract” has the same meaning as in article 59(2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
166AAppointment of skilled person to collect and update information
(1)
This section applies if either regulator considers that an authorised person has contravened a requirement in rules made by that regulator to collect, and keep up to date, information of a description specified in the rules.
(2)
The regulator may either—
(a)
require the authorised person to appoint a skilled person to collect or update the information, or
(b)
itself appoint a skilled person to do so.
(3)
References in this section to a skilled person are to a person—
(a)
appearing to the regulator to have the skills necessary to collect or update the information in question, and
(b)
where the appointment is to be made by the authorised person, nominated or approved by the regulator.
(4)
The regulator must give notice of an appointment under subsection (2)(b) to the authorised person.
(5)
The skilled person may require any person to provide all such assistance as the skilled person may reasonably require to collect or update the information in question.
(6)
A requirement imposed under subsection (5) is enforceable, on the application of the regulator in question, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.
(7)
A contractual or other requirement imposed on a person (“P”) to keep any information in confidence does not apply if—
(a)
the information is or may be relevant to anything required to be done as a result of this section,
(b)
an authorised person or a skilled person requests or requires P to provide the information for the purpose of securing that those things are done, and
(c)
the regulator in question has approved the making of the request or the imposition of the requirement before it is made or imposed.
(8)
An authorised person may provide information (whether received under subsection (7) or otherwise) that would otherwise be subject to a contractual or other requirement to keep it in confidence if it is provided for the purposes of anything required to be done as a result of this section.
(9)
A regulator may make rules providing for expenses incurred by it in relation to an appointment under subsection (2)(b) to be payable as a fee by the authorised person.
(10)
In this section “authorised person”, in relation to the PRA, means PRA-authorised person.