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

Disclosure of information

348 Restrictions on disclosure of confidential information by F1FCA, 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 F2FCA, the PRA F3... 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—

F4(a)

the FCA;

(aa)

the F5Bank of England ;

F6(b)

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

(c)

the Secretary of State;

F7(zd)

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

(d)

a person appointed F8to collect or update information under section F9166A 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);

F10(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 F11the FCA under section 97;

(b)

a competent person appointed by the F12FCA, the PRA or the Secretary of State to conduct an investigation under Part XI;

F13(c)

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

F14(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.)

F15(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 F16FCA 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.

F17(3A)

Section 348 does not apply to—

(a)

the disclosure by a recipient to which subsection (3B) applies of confidential information disclosed to it by the F18FCA or the PRA in reliance on subsection (1);

(b)

the disclosure of such information by a person obtaining it directly or indirectly from a recipient to which subsection (3B) applies.

(3B)

This subsection applies to—

(a)

the Panel on Takeovers and Mergers;

(b)

an authority designated as a supervisory authority for the purposes of Article 4.1 of the Takeovers Directive;

(c)

any other person or body that exercises public functions, under legislation in an EEA State other than the United Kingdom, that are similar to the F19functions of the FCA or the PRA or those of the Panel on Takeovers and Mergers.

(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;

(b)

functions conferred by or in accordance with any provision contained in the F20EU Treaties or any F20EU instrument;

(c)

similar functions 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)

F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

350 Disclosure of information by the Inland Revenue.

F22(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 F23subsection (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.

F24351 Competition information.

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

F25351ADisclosure 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 F26the 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 F27or authorised contractual scheme that is a master UCITS;

(b)

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

F28(ba)

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

(c)

the auditor of an authorised unit trust scheme F29or authorised contractual scheme that is a feeder UCITS;

(d)

the trustee of an authorised unit trust scheme that is a feeder UCITS; F30...

F31(da)

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

F32(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”, F33“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 F34FCA or the PRA for the purpose of assisting or enabling the F35either of them to discharge prescribed functions.

F36(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.