Part XXVI Notices
Warning notices
387 Warning notices.
(1)
A warning notice must—
(a)
state the action which the F1regulator giving the notice (“the regulator concerned”) proposes to take;
(b)
be in writing;
(c)
give reasons for the proposed action;
(d)
state whether section 394 applies; and
(e)
if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it.
F2(1A)
Where the PRA is the regulator concerned and the FCA proposes to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) F3, 55I(8) or 61(2D), the warning notice given by the PRA must—
(a)
state that fact, and
(b)
give the reasons for the FCA's proposal.
(2)
(3)
F7The regulator concerned may extend the period specified in the notice.
F8(3A)
Where the PRA receives any representations in response to a warning notice given by it under section 55X(1) or (2) or 62(2) in a case falling within subsection (1A) it must—
(a)
if the representations are in writing, give a copy to the FCA, or
(b)
if they are not in writing and have not been given directly to the FCA by the person making them, provide the FCA with a record of them.
(4)
F9The regulator concerned must then decide, within a reasonable period, whether to give the person concerned a decision notice.
Decision notices
388 Decision notices.
(1)
A decision notice must—
(a)
be in writing;
(b)
give F10the reasons of the regulator giving the notice (“the regulator concerned”) for the decision to take the action to which the notice relates;
(c)
state whether section 394 applies;
(d)
if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and
(e)
give an indication of—
(i)
any right to have the matter referred to the Tribunal which is given by this Act; and
(ii)
the procedure on such a reference.
F11(1A)
Where the PRA is the regulator concerned and the FCA has decided to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) F12, 55I(8) or 61(2D), the decision notice given by the PRA must—
(a)
state that fact, and
(b)
give the reasons for the FCA's decision.
(2)
If the decision notice was preceded by a warning notice, the action to which the decision notice relates must be action under the same Part as the action proposed in the warning notice.
(3)
F13The regulator concerned may, before it takes the action to which a decision notice (“the original notice”) relates, give the person concerned a further decision notice which relates to different action in respect of the same matter.
(4)
F14The regulator concerned may give a further decision notice as a result of subsection (3) only if the person to whom the original notice was given consents.
(5)
If the person to whom a decision notice is given under subsection (3) had the right to refer the matter to which the original decision notice related to the Tribunal, he has that right as respects the decision notice under subsection (3).
Conclusion of proceedings
389 Notices of discontinuance.
(1)
If F15a regulator decides not to take—
(a)
the action proposed in a warning notice F16given by it, or
(b)
the action to which a decision notice F17given by it relates,
it must give a notice of discontinuance to the person to whom the warning notice or decision notice was given.
(2)
But subsection (1) does not apply if the discontinuance of the proceedings concerned results in the granting of an application made by the person to whom the warning or decision notice was given.
(3)
A notice of discontinuance must identify the proceedings which are being discontinued.
390 Final notices.
(1)
If F18a regulator has given a person a decision notice and the matter was not referred to the Tribunal within the F19time required by Tribunal Procedure Rules, F20the regulator must, on taking the action to which the decision notice relates, give the person concerned and any person to whom the decision notice was copied a final notice.
(2)
If F21a regulator has given a person a decision notice and the matter was referred to the Tribunal, F22the regulator must, on taking action in accordance with any directions given by—
(a)
the Tribunal, or
F23(b)
a court on an appeal against the decision of the Tribunal,
give that person and any person to whom the decision notice was copied F24the notice required by subsection (2A).
F25(2A)
The notice required by this subsection is—
(a)
in a case where the regulator is acting in accordance with a direction given by the Tribunal under section 133(6)(b), or by the court on an appeal from a decision by the Tribunal under section 133(6), a further decision notice, and
(b)
in any other case, a final notice.
(3)
A final notice about a statement must—
(a)
set out the terms of the statement;
(b)
give details of the manner in which, and the date on which, the statement will be published.
(4)
A final notice about an order must—
(a)
set out the terms of the order;
(b)
state the date from which the order has effect.
(5)
A final notice about a penalty must—
(a)
state the amount of the penalty;
(b)
state the manner in which, and the period within which, the penalty is to be paid;
(c)
give details of the way in which the penalty will be recovered if it is not paid by the date stated in the notice.
(6)
A final notice about a requirement to make a payment or distribution in accordance with section 384(5) must state—
(a)
the persons to whom,
(b)
the manner in which, and
(c)
the period within which,
it must be made.
(7)
In any other case, the final notice must—
(a)
give details of the action being taken;
(b)
state the date on which the action is to be taken.
(8)
The period stated under subsection (5)(b) or (6)(c) may not be less than 14 days beginning with the date on which the final notice is given.
(9)
If all or any of the amount of a penalty payable under a final notice is outstanding at the end of the period stated under subsection (5)(b), F26the regulator giving the notice may recover the outstanding amount as a debt due to it.
(10)
If all or any of a required payment or distribution has not been made at the end of a period stated in a final notice under subsection (6)(c), the obligation to make the payment is enforceable, on the application of F27the regulator giving the notice, by injunction or, in Scotland, by an order under section 45 of the M1Court of Session Act 1988.
Publication
391 Publication.
F28(1)
In the case of a warning notice falling within subsection (1ZB)—
(a)
neither the regulator giving the notice nor a person to whom it is given or copied may publish the notice,
(b)
a person to whom the notice is given or copied may not publish any details concerning the notice unless the regulator giving the notice has published those details, and
(c)
after consulting the persons to whom the notice is given or copied, the regulator giving the notice may publish such information about the matter to which the notice relates as it considers appropriate.
(1ZA)
In the case of a warning notice not falling within subsection (1ZB), neither the regulator giving the notice nor a person to whom it is given or copied may publish the notice or any details concerning it.
(1ZB)
A warning notice falls within this subsection if it is given under—
(a)
section 63B;
(b)
section 67;
(c)
section 87M;
(d)
section 88B;
(e)
section 89K;
(f)
section 89R;
(g)
section 92;
(h)
section 126;
(i)
section 131H;
F29(ia)
section 142N;
F30(ib)
section 143T;
(ic)
section 143X;
(j)
section 192L;
(k)
section 207;
(kb)
section 309Z4;
(l)
section 312G;
F32(la)
section 312S;
(m)
section 345B (whether as a result of section 345(2) or 345A(3) or section 249(1) F33or 261K(1)).
F34(1A)
A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless the F35regulator giving the notice has published the notice or those details.
(2)
A notice of discontinuance must state that, if the person to whom the notice is given consents, the F36regulator giving the notice may publish such information as it considers appropriate about the matter to which the discontinued proceedings related.
(3)
A copy of a notice of discontinuance must be accompanied by a statement that, if the person to whom the notice is copied consents, the F37regulator giving the notice may publish such information as it considers appropriate about the matter to which the discontinued proceedings related, so far as relevant to that person.
(4)
F40(4A)
(5)
When a supervisory notice takes effect, the F45regulator giving the notice must publish such information about the matter to which the notice relates as it considers appropriate.
F46(5A)
Subsection (5) does not apply in relation to a notice given in accordance with section 137S(5) or (8)(a) (but see section 137S(11)).
F47(6)
The FCA may not publish information under this section if, in its opinion, publication of the information would be—
(a)
unfair to the person with respect to whom the action was taken (or was proposed to be taken),
(b)
prejudicial to the interests of consumers, or
(c)
detrimental to the stability of the UK financial system.
(6A)
The PRA may not publish information under this section if, in its opinion, publication of the information would be—
(a)
unfair to the person with respect to whom the action was taken (or was proposed to be taken),
(b)
prejudicial to the safety and soundness of PRA-authorised persons, or
(c)
in a case where section 2C applies, prejudicial to securing the appropriate degree of protection for policyholders.
(7)
Information is to be published under this section in such manner as the F48regulator considers appropriate.
F49(7A)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F49(7B)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8)
For the purposes of determining when a supervisory notice takes effect, a matter to which the notice relates is open to review if—
(a)
the period during which any person may refer the matter to the Tribunal is still running;
(b)
the matter has been referred to the Tribunal but has not been dealt with;
(c)
the matter has been referred to the Tribunal and dealt with but the period during which an appeal may be brought against the Tribunal’s decision is still running; or
(d)
such an appeal has been brought but has not been determined.
F50(8A)
Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a F51CSD requirement, this section has effect subject to Article 62 of the CSD regulation (publication of decisions).
F52(8AA)
A “CSD requirement” is a requirement imposed by—
(a)
the CSD regulation,
(b)
any EU regulation, originally made under the CSD regulation, which is retained direct EU legislation, or
(c)
any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the CSD regulation on or after IP completion day.
F53(8B)
Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a F54market abuse requirement, this section has effect subject to Article 34 of the market abuse regulation (publication of decisions).
F55(8BA)
A “market abuse requirement” is a requirement imposed by—
(a)
the market abuse regulation,
(b)
any EU regulation, originally made under the market abuse regulation, which is retained direct EU legislation, or
(c)
any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the market abuse regulation on or after IP completion day.
F56(8C)
Where a decision notice, final notice or supervisory notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by or under Article 4 or 15 of the SFT regulation, this section has effect subject to Article 26 of the SFT regulation (publication of decisions).
F57(8D)
Where a decision notice, final notice or supervisory notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by—
(a)
Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (the “PRIIPs regulation”), F58...
(b)
(c)
any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the PRIIPs regulation on or after IP completion day,
this section has effect subject to Article 29 of the PRIIPs regulation (publication of decisions).
F62(8E)
Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement F63imposed by—
(a)
the EU Benchmarks Regulation 2016,
(b)
any EU regulation, originally made under the EU Benchmarks Regulation 2016, which is retained direct EU legislation, or
(c)
any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the EU Benchmarks Regulation on or after IP completion day,
this section has effect subject to Article 45 of the EU Benchmarks Regulation 2016 (publication of decisions).
F64(8F)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F65(8G)
Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement F66imposed by—
(a)
the prospectus regulation,
(b)
any EU regulation, originally made under the prospectus regulation, which is retained EU law, or
(c)
any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the prospectus regulation on or after IP completion day,
this section has effect subject to Article 42 of the prospectus regulation (publication of decisions).
(9)
“Notice of discontinuance” means a notice given under section 389.
(10)
“Supervisory notice” has the same meaning as in section 395.
F67(11)
Section 425A (meaning of “consumers”) applies for the purposes of this section.
391AF69Publication: special provisions relating to F70capital requirements
(1)
This section applies where a decision notice or final notice relates to the imposition of a penalty F71for breach of—
(a)
a provision made in or under this Act for the purpose of implementing the capital requirements directive, or
(b)
a provision of the capital requirements regulation.
(2)
Where a regulator publishes information under section 391(4) about a matter to which a decision notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3)
Subject to subsection (4), where a regulator gives a final notice, the regulator must publish information on the type and nature of the breach and the identity of the person on whom the penalty is imposed.
(4)
Information about a matter to which a final notice relates must be published anonymously where—
(a)
the penalty is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b)
publication would jeopardise the stability of financial markets or an ongoing criminal investigation; or
(c)
publication would cause, insofar as it can be determined, disproportionate damage to the persons involved.
(5)
Where subsection (4) applies, the regulator may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the penalty is imposed.
(6)
Where a regulator publishes information in accordance with subsections (2) to (5), the regulator must—
(a)
publish the information on its official website; F72and
(b)
F74(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391B.Publication: special provisions relating to F76transparency obligations
(1)
This section applies where a decision notice, final notice or notice under section 89M relates to the imposition of a sanction or measure F77for breach of a provision made in or under this Act for the purpose of implementing the transparency obligations directive.
(2)
Where the FCA publishes information under section 391(4) or subsection (3) about a matter to which a decision notice or a notice under section 89M relates and the person to whom the notice is given refers the matter to the Tribunal—
(a)
the FCA must include information to that effect in the publication at the time of the publication, or,
(b)
if the matter is referred to the Tribunal after the publication, the FCA must update the publication or publish that information separately.
(3)
Subject to subsection (4), where the FCA gives a final notice or a notice under section 89M, it must publish information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4)
Information about a matter to which a final notice or a notice under section 89M relates may be published anonymously where—
(a)
the sanction is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b)
failing to publish anonymously would seriously jeopardise the stability of the financial system or an ongoing official investigation; or
(c)
failing to publish anonymously would cause, insofar as it can be determined, disproportionate and serious damage to the persons involved.
(5)
Where subsection (4) applies, the FCA may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(6)
In this section, the “transparency obligations directive” has the same meaning as in section 103(1).
391C.Publication: special provisions relating to F79UCITS
(1)
This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure F80for breach of a provision made in or under this Act for the purpose of implementing the UCITS directive.
(2)
Where the FCA publishes information under section 391(4) or (5) about a matter to which a decision notice or supervisory notice relates and the person to whom the notice is given refers the matter to the Tribunal, the FCA must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3)
Subject to subsection (4), where the FCA gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4)
Subject to subsection (6), information about a matter to which a final notice relates must be published anonymously where—
(a)
the sanction or measure is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b)
failing to publish anonymously would jeopardise the stability of financial markets or an ongoing investigation; or
(c)
failing to publish anonymously would cause, insofar as it can be determined, disproportionate damage to the persons involved.
(5)
Where subsection (4) applies, the FCA may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(6)
Information about a matter to which a final notice relates must not be published where anonymous publication under subsection (4) is considered by the FCA to be insufficient to ensure—
(a)
that the stability of the financial markets would not be put in jeopardy; or
(b)
that the publication would be proportionate with regard to sanctions or measures which are considered by the FCA to be of a minor nature.
(7)
Where the FCA publishes information in accordance with subsections (2) to (5), the FCA must—
(a)
F82(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391D.Publication: special provisions relating to F84markets in financial instruments
(1)
This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure F85for breach of—
(a)
a provision made in or under this Act for the purpose of implementing the markets in financial instruments directive, or
(b)
a provision of the markets in financial instruments regulation.
(2)
Where a regulator publishes information under section 391(4) or (5) about a matter to which a supervisory notice or decision notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3)
Subject to subsections (4), (5), and (8) where a regulator gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4)
Subject to subsection (7) and (8), information about a matter to which a final notice relates must be published in accordance with subsection (5) where—
(a)
a regulator considers it to be disproportionate to publish the identity of a legal person on whom the sanction or measure is imposed following an assessment by the regulator of the proportionality of publishing the person’s identity;
(b)
a regulator considers it to be disproportionate to publish the personal data of an individual on whom the sanction or measure is imposed following an assessment by the regulator of the proportionality of publishing the personal data; or
(c)
the publication of information under subsection (3) would jeopardise the stability of the financial markets or an ongoing investigation.
(5)
Where subsection (4) applies, a regulator must—
(a)
defer the publication of the information about a matter to which a final notice relates until such time as subsection (4) ceases to apply; or
(b)
publish the information on an anonymous basis if publication on that basis would ensure the effective protection of any anonymised personal data in the information.
(6)
Where subsection (5)(b) applies, the regulator may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(7)
The regulator may make arrangements for the postponed publication of any personal data that is anonymised in information it publishes under subsection (5)(b) if—
(a)
publication of the data is postponed for a reasonable period of time; and
(b)
the regulator considers that subsection (5)(b) will no longer apply in respect of that data at the time of the postponed publication.
(8)
Information about a matter to which a final notice relates must not be published if publication in accordance with subsection (5) is considered by the regulator insufficient to ensure—
(a)
that the stability of the financial markets would not be put in jeopardy; or
(b)
that the publication of the information would be proportionate with regard to sanctions or measures which are considered by the regulator to be of a minor nature.
(9)
Where a regulator publishes information in accordance with subsections (2) to (7), the regulator must—
(a)
F87(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
391E.Publication: special provisions relating to F89insurance distribution
(1)
This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure F90for breach of a provision made in or under this Act for the purpose of implementing the insurance distribution directive.
(2)
Where a regulator publishes information under section 391(4) or (5) about a matter to which a decision notice or supervisory notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3)
Subject to subsection (4), where the regulator gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4)
The regulator may publish the information anonymously, defer publication of the information or withhold some, or all, of the information where—
(a)
following an obligatory prior assessment, the regulator considers that publication of the identity of the person, or any personal data, would be disproportionate; or
(b)
the regulator considers that publication would jeopardise the stability of financial markets or an ongoing investigation.
F91(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
In this section “supervisory notice” has the same meaning as in section 395.
F92391F.Publication: special provisions relating to the prospectus regulation
(1)
Subsection (2) applies where a decision notice or final notice relates to the imposition of a sanction or measure F93for an infringement of the prospectus regulation, and —
(a)
following an assessment by the FCA of the proportionality of publishing personal data of a person on whom the sanction or measure is imposed, the FCA considers it disproportionate to do so, or
(b)
publication of personal data of a person on whom the sanction or measure is imposed would jeopardise the stability of financial markets or an ongoing investigation.
(2)
The FCA—
(a)
if publication on an anonymous basis of information about the matter to which the notice relates would ensure the effective protection of the personal data, must publish the information on an anonymous basis;
(b)
otherwise, must defer publication of the information until the conditions in subsection (1) cease to be met,
but this is subject to subsection (4).
(3)
The FCA may make such arrangements as to the publication of information under subsection (2)(a) (including as to the timing of publication) as the FCA considers necessary to ensure effective protection of the personal data.
(4)
The FCA must not publish the notice, or information about the matter to which the notice relates, if actions under subsection (2) are considered by the FCA to be insufficient to ensure —
(a)
that the stability of the financial markets would not be put in jeopardy; or
(b)
that, in cases involving sanctions or measures considered by the FCA to be of a minor nature, information is published only where it is proportionate to do so.
(5)
In this section, “personal data”, in relation to a person who is not an individual, means the person’s identity.
Third party rights and access to evidence
392 Application of sections 393 and 394.
Sections 393 and 394 apply to—
(a)
a warning notice given in accordance with section F9455Z(1), 57(1), 63(3), F9563B(1), 67(1), 88(4)(b), F96section 88B(1), 92(1), 126(1), F97131H(1), F98142T(1), F99143N(1), 143T(1), 143U(2), 143X(1), F100192L(1) F101, 192R(8), 192Z(1), 207(1), 255(1), F102261V(1), F103271N(2), 271R(3), 280(1), F104282B(3), F105309C(1)(b), 309P(1)(b), 309V(1), 309Z4(1), F106section 312G(1), F107312S(1), 331(1), F108345B(1) (whether as a result of section 345(2), 345A(3) or section 249(1) F109or 261K(1)) F110, 385(1) or 412B(4) or (8) F111or paragraph 5(6) of Schedule 6A;
(b)
a decision notice given in accordance with section F11255Z(2), 57(3), 63(4), F11363B(3), 67(4), 88(6)(b), F114section 88B(5), 92(4), 127(1), F115131H(4), F116142T(4), F117143N(2), 143T(3), 143U(2), 143X(5), F118192L(4) F119, 192R(9), 192Z(4), 208(1), 255(2), F120261V(2), F121271N(3), 271R(4), 280(2), F122282B(4), F123309C(3), 309P(2), 309V(3), 309Z4(6) F124section 312H(1), F125312S(3), 331(3), F126345B(4) (whether as a result of section 345(2), 345A(3) or section 249(1) F127or 261K(1)) F128, 386(1) or 412B(5) or (9) F129or paragraph 5(7) of Schedule 6A.
393 Third party rights.
(1)
If any of the reasons contained in a warning notice to which this section applies relates to a matter which—
(a)
identifies a person (“the third party”) other than the person to whom the notice is given, and
(b)
in the opinion of the F130regulator giving the notice, is prejudicial to the third party,
a copy of the notice must be given to the third party.
(2)
Subsection (1) does not require a copy to be given to the third party if the F131regulator giving the notice —
(a)
has given him a separate warning notice in relation to the same matter; or
(b)
gives him such a notice at the same time as it gives the warning notice which identifies him.
(3)
(4)
If any of the reasons contained in a decision notice to which this section applies relates to a matter which—
(a)
identifies a person (“the third party”) other than the person to whom the decision notice is given, and
(b)
in the opinion of F134the regulator giving the notice, is prejudicial to the third party,
a copy of the notice must be given to the third party.
(5)
If the decision notice was preceded by a warning notice, a copy of the decision notice must (unless it has been given under subsection (4)) be given to each person to whom the warning notice was copied.
(6)
Subsection (4) does not require a copy to be given to the third party if F135the regulator giving the notice—
(a)
has given him a separate decision notice in relation to the same matter; or
(b)
gives him such a notice at the same time as it gives the decision notice which identifies him.
(7)
Neither subsection (1) nor subsection (4) requires a copy of a notice to be given to a third party if F136the regulator giving the notice considers it impracticable to do so.
(8)
Subsections (9) to (11) apply if the person to whom a decision notice is given has a right to refer the matter to the Tribunal.
(9)
A person to whom a copy of the notice is given under this section may refer to the Tribunal—
(a)
the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
(b)
any opinion expressed by F137the regulator giving the notice in relation to him.
(10)
The copy must be accompanied by an indication of the third party’s right to make a reference under subsection (9) and of the procedure on such a reference.
(11)
A person who alleges that a copy of the notice should have been given to him, but was not, may refer to the Tribunal the alleged failure and—
(a)
the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
(b)
any opinion expressed by F138the regulator giving the notice in relation to him.
(12)
Section 394 applies to a third party as it applies to the person to whom the notice to which this section applies was given, in so far as the material F139to which access must be given under that section relates to the matter which identifies the third party.
(13)
A copy of a notice given to a third party under this section must be accompanied by a description of the effect of section 394 as it applies to him.
(14)
Any person to whom a warning notice or decision notice was copied under this section must be given a copy of a notice of discontinuance applicable to the proceedings to which the warning notice or decision notice related.
394 Access to F140FCA or PRA material.
(1)
If F141a regulator gives a person (“A”) a notice to which this section applies, it must—
(a)
allow him access to the material on which it relied in taking the decision which gave rise to the obligation to give the notice;
(b)
allow him access to any secondary material which F142, in the regulator's opinion, might undermine that decision.
(2)
But F143the regulator giving the notice does not have to allow A access to material under subsection (1) if the material is excluded material or it—
(a)
relates to a case involving a person other than A; and
(b)
was taken into account by F143the regulator giving the notice in A’s case only for purposes of comparison with other cases.
(3)
F144The regulator giving the notice may refuse access A to particular material which it would otherwise have to allow him access to if, in its opinion, allowing him access to the material—
(a)
would not be in the public interest; or
(b)
would not be fair, having regard to—
(i)
the likely significance of the material to A in relation to the matter in respect of which he has been given a notice to which this section applies; and
(ii)
the potential prejudice to the commercial interests of a person other than A which would be caused by the material’s disclosure.
(4)
If F145the regulator giving the notice does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of—
(a)
the existence of the protected item; and
(b)
F146the regulator's decision not to allow him access to it.
(5)
If F147the regulator giving the notice refuses under subsection (3) to allow A access to material, it must give him written notice of—
(a)
the refusal; and
(b)
the reasons for it.
(6)
“Secondary material” means material, other than material falling within paragraph (a) of subsection (1) which—
(a)
was considered by F148the regulator giving the notice in reaching the decision mentioned in that paragraph; or
(b)
was obtained by F149the regulator giving the notice in connection with the matter to which that notice relates but which was not considered by it in reaching that decision.
(7)
“Excluded material” means material which—
F150(a)
is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by F151section 56 of the Investigatory Powers Act 2016; or
(c)
is a protected item (as defined in section 413).
The F152FCA's and PRA's procedures
395 The F153FCA's and PRA's procedures.
F154(1)
Each regulator must determine the procedure that it proposes to follow in relation to the following—
(a)
a decision which gives rise to an obligation to give a supervisory notice,
(b)
in the case of the FCA, a decision which—
(i)
gives rise to an obligation for it to give a warning notice or decision notice, or
(ii)
gives rise to an obligation for the PRA to include a statement under section 387(1A) in a warning notice or a statement under section 388(1A) in a decision notice,
(c)
in the case of the PRA, a decision which gives rise to an obligation for it to give a warning notice or decision notice, other than a decision which depends entirely on a decision of the FCA of the kind mentioned in paragraph (b)(ii), and
(d)
a decision under section 391(1)(c) to publish information about the matter to which a warning notice relates.
(2)
That procedure must be designed to secure, among other things F155that—
(a)
a decision falling within any of paragraphs (a) to (c) of subsection (1) is taken—
(i)
by a person not directly involved in establishing the evidence on which the decision is based, or
(ii)
by 2 or more persons who include a person not directly involved in establishing that evidence,
(b)
a decision falling within paragraph (d) of subsection (1) is taken—
(i)
by a person other than the person by whom the decision was first proposed, or
(ii)
by 2 or more persons not including the person by whom the decision was first proposed, and
(c)
a decision falling within paragraph (d) of subsection (1) is taken in accordance with a procedure which is, as far as possible, the same as that applicable to a decision which gives rise to an obligation to give a warning notice and which falls within paragraph (b) or (c) of subsection (1).
(3)
But the procedure may permit a decision which gives rise to an obligation to give a supervisory notice to be F156taken otherwise than as mentioned in subsection (2) if the person taking the decision is of a level of seniority laid down by the procedure and—
(a)
in the case of procedure proposed by the FCA, the FCA considers that, in the particular case, it is necessary in order to advance one or more of its operational objectives, or
(b)
in the case of procedure proposed by the PRA, the PRA considers that, in the particular case, it is necessary in order to advance any of its objectives.
(4)
A level of seniority laid down by the procedure for the purposes of subsection (3)(b) must be appropriate to the importance of the decision.
(5)
(6)
(7)
F161The regulator issuing the statement may charge a reasonable fee for providing a person with a copy of the statement.
(8)
(9)
When F164a regulator gives a supervisory notice, or a warning notice or decision notice, F165other than a warning notice or decision notice relating to a decision of the PRA that is required by a a decision of the FCA of the kind mentioned in subsection (1)(b)(ii) F166the regulator must follow its stated procedure.
F167(9A)
When the FCA takes a decision falling within subsection (1)(b)(ii), it must follow its stated procedure.
(10)
(11)
F170A regulator's failure in a particular case to follow its procedure as set out in the latest published statement does not affect the validity of a notice given in that case.
(12)
But subsection (11) does not prevent the Tribunal from taking into account any such failure in considering a matter referred to it.
(13)
“Supervisory notice” means a notice F171or notification given in accordance with section—
F172(za)
55XA(1) or (5) (where subsection (6) applies);
F173(a)
55Y(4), (7) or (8)(b);
F174(aa)
63ZC(4), (8) or (9)(b);
F175(ab)
71H(2), (3), (4), (9) or (11)(a);
(b)
78(2) or (5);
F176(bza)
78A(2) or (8)(b);
F177(bzb)
section 88F(2), (5) or (6)(b);
F178(bzc)
section 89V(2), (5) or (6)(b);
F179(ba)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(bb)
87O(2) or (5);
F181(bbza)
122I;
F182(bbzb)
section 122IA;
F184(bba)
section 137S(5) or (8)(a);
F185(bbb)
section 143O(3), (6) or (8)(b);
F186(bc)
191B(1);
F187(bd)
section 192U(1), (7) or (8);
(c)
197(3), (6) or (7)(b);
(d)
259(3), (8) or (9)(b);
F188(da)
261Z1(3), (8) or (9)(b);
F189(e)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F190(ea)
section 271M(3), (6) or (7)(b);
(f)
282(3), (6) or (7)(b);
F191(fa)
301J(1);
(g)
321(2) or (5).
396 Statements under section 395: consultation.
(1)
(2)
The draft must be accompanied by notice that representations about the proposal may be made to the F197regulator publishing the draft within a specified time.
(3)
F198Before a regulator issues the proposed statement of its procedure, it must have regard to any representations made to it in accordance with subsection (2).
(4)
If the F199regulator issues the proposed statement of its procedure, it must publish an account, in general terms, of—
(a)
the representations made to it in accordance with subsection (2); and
(b)
its response to them.
(5)
(6)
(7)
This section also applies to a proposal to revise a statement of policy.