Part XXIII Public Record, Disclosure of Information and Co-operation

The public record

347 The record of authorised persons etc.

(1)

The F1FCA must maintain a record of every—

(a)

person who appears to the F1FCA to be an authorised person;

(b)

authorised unit trust scheme;

F2(ba)

authorised contractual scheme;

(c)

authorised open-ended investment company;

(d)

recognised scheme;

(e)

recognised investment exchange;

F3(f)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)

individual to whom a prohibition order relates;

(h)

approved person; F4. . .

F5(ha)

person to whom subsection (2A) applies; F6...

F7(hb)

appointed representative to whom subsection (2B) applies;

F8(hc)

appointed representative to whom subsection (2C) applies; and

(i)

person falling within such other class (if any) as the F1FCA may determine.

(2)

The record must include such information as the F1FCA considers appropriate and at least the following information—

(a)

in the case of a person appearing to the F1FCA to be an authorised person—

(i)

information as to the services which he holds himself out as able to provide; and

(ii)

any address of which the F1FCA is aware at which a notice or other document may be served on him;

(b)

in the case of an authorised unit trust scheme, the name and address of the manager and trustee of the scheme;

F9(ba)

in the case of an authorised contractual scheme, the name and address of the operator and depositary of the scheme;

(c)

in the case of an authorised open-ended investment company, the name and address of—

(i)

the company;

(ii)

if it has only one director, the director; and

(iii)

its depositary (if any);

(d)

in the case of a recognised scheme, the name and address of—

(i)

the operator of the scheme; and

(ii)

any representative of the operator in the United Kingdom;

(e)

in the case of a recognised investment exchange F10... the name and address of the exchange F11...;

(f)

in the case of an individual to whom a prohibition order relates—

(i)

his name; and

(ii)

details of the effect of the order;

(g)

in the case of a person who is an approved person—

(i)

his name;

(ii)

the name of the F12authorised person concerned;

(iii)

if the approved person is performing a controlled function under an arrangement with a contractor of the F13authorised person concerned, the name of the contractor.

F14(iv)

F15in a case where the authorised person concerned is a relevant authorised person, whether or not the person is a senior manager;

F16(h)

in the case of an approved person who is a senior manager in relation to F17a relevant F17an authorised person—

(i)

whether a final notice has been given to the person under section 390; and

(ii)

if so, any information about the matter to which the notice relates which has been published under section 391(4).

F18(i)

in the case of a mortgage intermediary—

(i)

the names of the persons within the management who are responsible for the activities specified by article 25A (arranging regulated mortgage contracts), article 36A (credit broking), article 53A (advising on regulated mortgage contracts) and article 53DA (advising on regulated credit agreements the purpose of which is to acquire land) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001; and

(ii)

whether the mortgage intermediary is a tied mortgage intermediary or not;

(j)

in the case of an appointed representative to whom subsection (2B) applies, the name of the mortgage intermediary on whose behalf the appointed representative acts;

F19(2A)

This subsection applies to—

(a)

an appointed representative to whom subsection (1A) F20or (1AA) of section 39 applies for whom the applicable register (as defined by subsection (1B) of that section) is the record maintained by virtue of subsection (1)(ha) above; F21and

(b)

a person mentioned in subsection (1)(a) of section 39A if—

(i)

the contract with an authorised person to which he is party complies with the applicable requirements (as defined by subsection (7) of that section), and

(ii)

the authorised person has accepted responsibility in writing for the person's activities in carrying on investment services business (as defined by subsection (8) of that section); F22...

F23(c)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24(2B)

This subsection applies to an appointed representative to whom section 39(1BA) applies or to whom that subsection would apply if the requirements of section 39(1BB) were not met.

F25(2C)

This subsection applies to an appointed representative of an authorised person who has a Part 4A permission by virtue of regulation 4 or 7 of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/XXXX).

(3)

If it appears to the F1FCA that a person in respect of whom there is an entry in the record as a result of one of the paragraphs of subsection (1) has ceased to be a person to whom that paragraph applies, the F1FCA may remove the entry from the record.

F26(3A)

But if a person ceases to be a person to whom one of the paragraphs of subsection (1) applies as a F27result of a cancellation of that person's Part 4A permission under section 55J because one or more of the conditions in section 55K(1)(b) to (d) was met, the power conferred by subsection (3) is not exercisable for a period of five years from the date on which the person ceased to be a person to whom subsection (1) applied.

(3B)

Where the power conferred by subsection (3) is not exercisable in respect of an entry in the record as a result of subsection (3A) the FCA must—

(a)

make a note in the record that it considers the person to whom the entry relates has ceased to be person to whom one of the paragraphs of subsection (1) applies as a result of a cancellation of that person’s Part 4A permission for a reason mentioned in subsection (3A)(a) or (b); and

(b)

state why it considers that is the case.

(4)

But if the F1FCA decides not to remove the entry, it must—

(a)

make a note to that effect in the record; and

(b)

state why it considers that the person has ceased to be a person to whom that paragraph applies F28in any case where it has not already done so under subsection (3B).

F29(4A)

If the FCA cancels or varies the Part 4A permission of a mortgage intermediary and as a result the person to whom the entry relates no longer has a Part 4A permission to carry on a relevant mortgage activity within the meaning of section 55J(6C), the FCA must delete mention of such permission from the record without undue delay.

(5)

The F1FCA must—

(a)

make the record available for inspection by members of the public in a legible form at such times and in such place or places as the F1FCA may determine; and

(b)

provide a certified copy of the record, or any part of it, to any person who asks for it—

(i)

on payment of the fee (if any) fixed by the F1FCA; and

(ii)

in a form (either written or electronic) in which it is legible to the person asking for it.

(6)

The F1FCA may—

(a)

publish the record, or any part of it;

(b)

exploit commercially the information contained in the record, or any part of that information.

(7)

“Authorised unit trust scheme”, F30“authorised contractual scheme”, “authorised open-ended investment company” and “recognised scheme” have the same meaning as in Part XVII, and associated expressions are to be read accordingly.

(8)

“Approved person” means a person in relation to whom the F31FCA or the PRA has given its approval under section 59 and “controlled function” and “arrangement” have the same meaning as in that section.

F32(8A)

In this section—

F33...

F34“relevant authorised person” has the same meaning as in Part 5 (see section 71A),

“senior manager”, in relation to F35a relevant F35an authorised person, means a person who has approval under section 59 to perform a designated senior management function in relation to the carrying on by the authorised person of a regulated activity, and

“designated senior management function” F36means a function designated as a senior management function under section 59(6A) or (6B). F36has the meaning given by section 59ZB.

F37(9)

The authorised person concerned”, in relation to an approved person, means the person on whose application approval was given.

F38347ADuty of PRA to disclose information relevant to the record

(1)

The PRA must, for the purpose of assisting the FCA to comply with its duty under section 347—

(a)

notify the FCA if the information included in the record as required under section 347(2)(a) appears to the PRA to be incomplete or inaccurate,

(b)

if it makes a prohibition order relating to an individual, provide the FCA with information falling within section 347(2)(f) in relation to that order,

(c)

where it is the appropriate regulator in relation to an approved person, provide the FCA with information falling within section 347(2)(g) in relation to that approved person, and

(d)

where the FCA has notified the PRA that it considers it appropriate to include in the record information of a certain description, disclose to the FCA such information of that description as the PRA has in its possession.

(2)

The duty to provide information under this section does not apply to information which the PRA reasonably believes is in the possession of the FCA.

(3)

Subsection (1) does not require or authorise the disclosure of information whose disclosure is prohibited by or under section 348.

(4)

This section is without prejudice to any other power to disclose information.

(5)

In this section references to the “record” are to the record maintained under section 347.

Disclosure of information

348 Restrictions on disclosure of confidential information by F39FCA, PRAetc.

(1)

Confidential information must not be disclosed by a primary recipient, or by any person obtaining the information directly or indirectly from a primary recipient, without the consent of—

(a)

the person from whom the primary recipient obtained the information; and

(b)

if different, the person to whom it relates.

(2)

In this Part “confidential information” means information which—

(a)

relates to the business or other affairs of any person;

(b)

was received by the primary recipient for the purposes of, or in the discharge of, any functions of the F40FCA, the PRA F41... or the Secretary of State under any provision made by or under this Act; and

(c)

is not prevented from being confidential information by subsection (4).

(3)

It is immaterial for the purposes of subsection (2) whether or not the information was received—

(a)

by virtue of a requirement to provide it imposed by or under this Act;

(b)

for other purposes as well as purposes mentioned in that subsection.

(4)

Information is not confidential information if—

(a)

it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section; or

(b)

it is in the form of a summary or collection of information so framed that it is not possible to ascertain from it information relating to any particular person.

(5)

Each of the following is a primary recipient for the purposes of this Part—

F42(a)

the FCA;

(aa)

the F43Bank of England;

F44(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

the Secretary of State;

F45(zd)

a person appointed to act as a temporary manager by the FCA or the PRA under section 71C;

(d)

a person appointed F46to collect or update information under section F47166A or to make a report under section 166;

(e)

any person who is or has been employed by a person mentioned in paragraphs (a) to (c);

F48(ea)

a person who is or has been engaged to provide services to a person mentioned in those paragraphs;

(f)

any auditor or expert instructed by a person mentioned in those paragraphs.

(6)

In subsection (5)(f) “expert” includes—

(a)

a competent person appointed by F49the FCA under section 97;

(b)

a competent person appointed by the F50FCA, the PRA or the Secretary of State to conduct an investigation under Part XI;

F51(c)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F52(7)

Nothing in this section applies to information received by a primary recipient for the purposes of, or in the discharge of, any functions of the FCA under the Competition Act 1998 or the Enterprise Act 2002 by virtue of Part 16A of this Act.

(For provision about the disclosure of such information, see Part 9 of the Enterprise Act 2002.)

F53(8)

In this section references to the Bank of England include the Bank acting in its capacity as the PRA.

349 Exceptions from section 348.

(1)

Section 348 does not prevent a disclosure of confidential information which is—

(a)

made for the purpose of facilitating the carrying out of a public function; and

(b)

permitted by regulations made by the Treasury under this section.

(2)

The regulations may, in particular, make provision permitting the disclosure of confidential information or of confidential information of a prescribed kind—

(a)

by prescribed recipients, or recipients of a prescribed description, to any person for the purpose of enabling or assisting the recipient to discharge prescribed public functions;

(b)

by prescribed recipients, or recipients of a prescribed description, to prescribed persons, or persons of prescribed descriptions, for the purpose of enabling or assisting those persons to discharge prescribed public functions;

(c)

by the F54FCA or the PRA to the Treasury or the Secretary of State for any purpose;

(d)

by any recipient if the disclosure is with a view to or in connection with prescribed proceedings.

(3)

The regulations may also include provision—

(a)

making any permission to disclose confidential information subject to conditions (which may relate to the obtaining of consents or any other matter);

(b)

restricting the uses to which confidential information disclosed under the regulations may be put.

F55(3A)

Section 348 does not apply to—

(a)

the disclosure by F56the Panel on Takeovers and Mergers of confidential information disclosed to it by the F57FCA or the PRA in reliance on subsection (1);

(b)

the disclosure of such information by a person obtaining it directly or indirectly from F58the Panel on Takeovers and Mergers.

F59(3B)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)

In relation to confidential information, each of the following is a “recipient”—

(a)

a primary recipient;

(b)

a person obtaining the information directly or indirectly from a primary recipient.

(5)

“Public functions” includes—

(a)

functions conferred by or in accordance with any provision contained in any enactment or subordinate legislation;

F60(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

similar functions F61to those referred to in paragraph (a) conferred on persons by or under provisions having effect as part of the law of a country or territory outside the United Kingdom;

(d)

functions exercisable in relation to prescribed disciplinary proceedings.

(6)

“Enactment” includes—

(a)

an Act of the Scottish Parliament;

(b)

Northern Ireland legislation.

(7)

“Subordinate legislation” has the meaning given in the M1Interpretation Act 1978 and also includes an instrument made under an Act of the Scottish Parliament or under Northern Ireland legislation.

(8)

F62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

350 Disclosure of information by the Inland Revenue.

F63(1)

No obligation as to secrecy imposed by statute or otherwise prevents the disclosure of Revenue information to—

(a)

the FCA or the PRA, if the disclosure is made for the purpose of assisting or enabling that regulator to discharge its functions under this or any other Act, or

(b)

the Secretary of State, if the disclosure is made for the purpose of assisting in the investigation of a matter under section 168 or with a view to the appointment of an investigator under that section.

(2)

A disclosure may only be made under subsection (1) by or under the authority of the Commissioners of Inland Revenue.

(3)

Section 348 does not apply to Revenue information.

(4)

Information obtained as a result of F64subsection (1)(b) may not be used except—

(a)

for the purpose of deciding whether to appoint an investigator under section 168;

(b)

in the conduct of an investigation under section 168;

(c)

in criminal proceedings brought against a person under this Act or the M2Criminal Justice Act 1993 as a result of an investigation under section 168;

(d)

for the purpose of taking action under this Act against a person as a result of an investigation under section 168;

(e)

in proceedings before the Tribunal as a result of action taken as mentioned in paragraph (d).

(5)

Information obtained as a result of subsection (1) may not be disclosed except—

(a)

by or under the authority of the Commissioners of Inland Revenue;

(b)

in proceedings mentioned in subsection (4)(c) or (e) or with a view to their institution.

(6)

Subsection (5) does not prevent the disclosure of information obtained as a result of subsection (1) to a person to whom it could have been disclosed under subsection (1).

(7)

“Revenue information” means information held by a person which it would be an offence under section 182 of the M3Finance Act 1989 for him to disclose.

F65351 Competition information.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F66351ADisclosure under the UCITS directive

(1)

This section applies in relation to a disclosure made by a person who falls within subsection (2) for the purpose of compliance with requirements set out in rules made by F67the FCA or the PRA to implement Chapter VIII of the UCITS directive.

(2)

The following persons fall within this subsection—

(a)

the auditor of an authorised unit trust scheme F68or authorised contractual scheme that is a master UCITS;

(b)

the trustee of an authorised unit trust scheme that is a master UCITS;

F69(ba)

the depositary of an authorised contractual scheme that is a master UCITS;

(c)

the auditor of an authorised unit trust scheme F70or authorised contractual scheme that is a feeder UCITS;

(d)

the trustee of an authorised unit trust scheme that is a feeder UCITS; F71...

F72(da)

the depositary of an authorised contractual scheme that is a feeder UCITS; or

F73(e)

a person acting on behalf of a person within any of paragraphs (a) to (da)

(3)

A disclosure to which this section applies is not to be taken as a contravention of any duty to which the person making the disclosure is subject.

(4)

In this section, “authorised unit trust scheme”, F74“authorised contractual scheme”, “master UCITS” and “feeder UCITS” have the meaning given in section 237.

352 Offences.

(1)

A person who discloses information in contravention of section 348 or 350(5) is guilty of an offence.

(2)

A person guilty of an offence under subsection (1) is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum, or both;

(b)

on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(3)

A person is guilty of an offence if, in contravention of any provision of regulations made under section 349, he uses information which has been disclosed to him in accordance with the regulations.

(4)

A person is guilty of an offence if, in contravention of subsection (4) of section 350, he uses information which has been disclosed to him in accordance with that section.

(5)

A person guilty of an offence under subsection (3) or (4) is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.

(6)

In proceedings for an offence under this section it is a defence for the accused to prove—

(a)

that he did not know and had no reason to suspect that the information was confidential information or that it had been disclosed in accordance with section 350;

(b)

that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

353 Removal of other restrictions on disclosure.

(1)

The Treasury may make regulations permitting the disclosure of any information, or of information of a prescribed kind—

(a)

by prescribed persons for the purpose of assisting or enabling them to discharge prescribed functions under this Act or any rules or regulations made under it;

(b)

by prescribed persons, or persons of a prescribed description, to the F75FCA or the PRA for the purpose of assisting or enabling the F76either of them to discharge prescribed functions.

F77(c)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)

Regulations under this section may not make any provision in relation to the disclosure of confidential information by primary recipients or by any person obtaining confidential information directly or indirectly from a primary recipient.

(3)

If a person discloses any information as permitted by regulations under this section the disclosure is not to be taken as a contravention of any duty to which he is subject.

F78Information received from Bank of England

353AInformation received from Bank of England

(1)

F79The FCA must not disclose to any person specially protected information.

(2)

“Specially protected information” is information in relation to which the first and second conditions are met.

(3)

The first condition is that F80the FCA received the information from the Bank of England.

(4)

The second condition is that the Bank notified the F81FCA that the Bank held the information for the purpose of its functions with respect to any of the following—

(a)

monetary policy;

(b)

financial operations intended to support financial institutions for the purposes of maintaining stability;

(c)

the provision of private banking services and related services.

(5)

The notification referred to in subsection (4) must be—

(a)

in writing, and

(b)

given before, or at the same time as, the Bank discloses the information.

(6)

The prohibition in subsection (1) does not apply—

F82(a)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)

where the Bank has consented to disclosure of the information;

(c)

to information which has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section;

F83(d)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)

In this section references to disclosure by or to F84the FCA or by the Bank include references to disclosure by or to—

(a)

persons who are, or are acting as,—

(i)

officers of, or members of the staff of, the F85FCA, or

(ii)

officers, employees or agents of the Bank, or

(b)

auditors, experts, contractors or investigators appointed by the F86FCA or the Bank under powers conferred by this Act or otherwise.

(8)

References to disclosure by F87the FCA do not include references to disclosure between persons who fall within any paragraph of subsection (7)(a) or (b) in relation to F88the FCA.

(9)

F89The FCA must take such steps as are reasonable in the circumstances to prevent the disclosure of specially protected information, in cases not excluded by subsection (6), by those who are or have been—

(a)

its officers or members of staff (including persons acting as its officers or members of staff);

(b)

auditors, experts, contractors or investigators appointed by the F90FCA under powers conferred by this Act or otherwise;

(c)

persons to whom the F91FCA has delegated any of its functions.

F92(10)

In this section references to the Bank of England include the Bank acting in its capacity as the PRA.

Co-operation

F93354 Authority’s duty to co-operate with others.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F93354AFCA's duty to co-operate with others

(1)

The FCA must take such steps as it considers appropriate to co-operate with other persons (whether in the United Kingdom or elsewhere) who have functions—

(a)

similar to those of the FCA, or

(b)

in relation to the prevention or detection of financial crime.

(2)

The persons referred to in subsection (1) do not include the Bank of England or the PRA (but see sections 3D and 3Q).

F94(2A)

Subsection (1) does not apply in relation to the Competition and Markets Authority in a case where the FCA has made a reference under section 131 of the Enterprise Act 2002 as a result of section 234I (but see section 234L).

(3)

The FCA must take such steps as it considers appropriate to co-operate with—

(a)

the Panel on Takeovers and Mergers;

F95(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

any F96... person or body that exercises functions of a public nature, under legislation in any country or territory outside the United Kingdom, that appear to the FCA to be similar to those of the Panel on Takeovers and Mergers.

(4)

Co-operation may include the sharing of information which the FCA is not prevented from disclosing.

(5)

“Financial crime” has the meaning given in section 1H(3).

354BPRA's duty to co-operate with others

(1)

The PRA must take such steps as it considers appropriate to co-operate with—

(a)

other persons (whether in the United Kingdom or elsewhere) who have functions similar to those of the PRA, and

(b)

other bodies that have functions relevant to financial stability.

(2)

The persons referred to in subsection (1) do not include the F97FCA (but see section 3D).

(3)

Co-operation may include the sharing of information which the PRA is not prevented from disclosing.

F98354CPRA's duty to provide information to Bank of England

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Provision of information to ESMA, the Commission and other EEA States

F99354D.Information under the markets in financial instruments directive

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F99354E.Competent authorities under the markets in financial instruments directive: designation and co-operation

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F99354F.Information under the transparency obligations directive

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F99354G.Information under the UCITS directive

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F99354H.Information under the Insurance Distribution Directive

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .