Financial Services and Markets Act 2000

Part XXVIIIU.K. Miscellaneous

[F1Consumer redress schemes]U.K.

Textual Amendments

F1Ss. 404-404G and preceding cross-heading substituted (12.10.2010) for s. 404 and preceding cross-heading by Financial Services Act 2010 (c. 28), ss. 14, 26(3); S.I. 2010/2480, art. 2

[F2404 Consumer redress schemesU.K.

(1)This section applies if—

(a)it appears to the [F3FCA] that there may have been a widespread or regular failure by relevant firms to comply with requirements applicable to the carrying on by them of any activity;

(b)it appears to it that, as a result, consumers have suffered (or may suffer) loss or damage in respect of which, if they brought legal proceedings, a remedy or relief would be available in the proceedings; and

(c)it considers that it is desirable to make rules for the purpose of securing that redress is made to the consumers in respect of the failure (having regard to other ways in which consumers may obtain redress).

(2)“Relevant firms” means—

(a)authorised persons; F4. . .

(b)payment service providers.[F5 or

(c)electronic money issuers.]

(3)The [F3FCA] may make rules requiring each relevant firm (or each relevant firm of a specified description) which has carried on the activity on or after the specified date to establish and operate a consumer redress scheme.

(4)A “consumer redress scheme” is a scheme under which the firm is required to take one or more of the following steps in relation to the activity.

(5)The firm must first investigate whether, on or after the specified date, it has failed to comply with the requirements mentioned in subsection (1)(a) that are applicable to the carrying on by it of the activity.

(6)The next step is for the firm to determine whether the failure has caused (or may cause) loss or damage to consumers.

(7)If the firm determines that the failure has caused (or may cause) loss or damage to consumers, it must then—

(a)determine what the redress should be in respect of the failure; and

(b)make the redress to the consumers.

(8)A relevant firm is required to take the above steps in relation to any particular consumer even if, after the rules are made, a defence of limitation becomes available to the firm in respect of the loss or damage in question.

(9)Before making rules under this section, the [F3FCA] must consult the scheme operator of the ombudsman scheme.

(10)For the meaning of consumers, see section 404E.]

Textual Amendments

F2Ss. 404-404G and preceding cross-heading substituted (12.10.2010) for s. 404 and preceding cross-heading by Financial Services Act 2010 (c. 28), ss. 14, 26(3); S.I. 2010/2480, art. 2

F4Word in s. 404(2) omitted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by virtue of The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(4)(a) (with reg. 3)

F5S. 404(2)(c) and preceding word inserted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(4)(a) (with reg. 3)

[F1404ARules under s.404: supplementaryU.K.

(1)Rules under section 404 may make provision—

(a)specifying the activities and requirements in relation to which relevant firms are to carry out investigations under consumer redress schemes;

(b)setting out, in relation to any specified description of case, examples of things done, or omitted to be done, that are to be regarded as constituting a failure to comply with a requirement;

(c)setting out, in relation to any specified description of case, matters to be taken into account, or steps to be taken, by relevant firms for the purpose of—

(i)assessing evidence as to a failure to comply with a requirement; or

(ii)determining whether such a failure has caused (or may cause) loss or damage to consumers;

(d)as to the kinds of redress that are, or are not, to be made to consumers in specified descriptions of case and the way in which redress is to be determined in specified descriptions of case;

(e)as to the things that relevant firms are, or are not, to do in establishing and operating consumer redress schemes;

(f)securing that relevant firms are not required to investigate anything occurring after a specified date;

(g)specifying the times by which anything required to be done under any consumer redress scheme is to be done;

(h)requiring relevant firms to provide information to the [F6FCA];

(i)authorising one or more competent persons to do anything for the purposes of, or in connection with, the establishment or operation of any consumer redress scheme;

(j)for the nomination or approval by the [F6FCA] of persons authorised under paragraph (i);

(k)as to the circumstances in which, instead of a relevant firm, the [F6FCA] (or one or more competent persons acting on the [F6FCA's] behalf) may carry out the investigation and take the other relevant steps under any consumer redress scheme;

(l)as to the powers to be available to those carrying out an investigation by virtue of paragraph (k);

(m)as to the enforcement of any redress (for example, in the case of a money award, as a debt owed by a relevant firm).

(2)The only examples that may be set out in the rules as a result of subsection (1)(b) are examples of things done, or omitted to be done, that have been, or would be, held by a court or tribunal to constitute a failure to comply with a requirement.

(3)Matters may not be set out in the rules as a result of subsection (1)(c) if they have not been, or would not be, taken into account by a court or tribunal for the purpose mentioned there.

(4)The [F6FCA] must exercise the power conferred as a result of subsection (1)(d) so as to secure that, in relation to any description of case, the only kinds of redress to be made are those which it considers to be just in relation to that description of case.

(5)In acting under subsection (4), the [F6FCA] must have regard (among other things) to the nature and extent of the losses or damage in question.

(6)The provision that may be made under subsection (1)(h) includes provision applying (with or without modifications)—

(a)any provision of section 165; or

(b)any provision of Part 11 relating to that section.

(7)The reference in subsection (1)(k) to the other relevant steps under any consumer redress scheme is a reference to the [F6FCA] making the determinations mentioned in section 404(6) and (7) (with the firm still required to make the redress).

(8)If the rules include provision under subsection (1)(k), they must also include provision for—

(a)giving warning and decision notices, and

(b)conferring rights on relevant firms to refer matters to the Tribunal,

in relation to any determination mentioned in section 404(6) and (7) made by the [F6FCA].

(9)Nothing in this section is to be taken as limiting the power conferred by section 404.

Textual Amendments

404BComplaints to the ombudsman schemeU.K.

(1)If—

(a)a consumer makes a complaint under the ombudsman scheme in respect of an act or omission of a relevant firm, and

(b)at the time the complaint is made, the subject-matter of the complaint falls to be dealt with (or has been dealt with) under a consumer redress scheme,

the way in which the complaint is to be determined by the ombudsman is to be as mentioned in subsection (4).

[F7(1A)Subsection (1) does not apply if the consumer and the relevant firm agree that it should not apply.]

(2)If a consumer—

(a)is not satisfied with a determination made by a relevant firm under a consumer redress scheme, or

(b)considers that a relevant firm has failed to make a determination in accordance with a consumer redress scheme,

the consumer may, in respect of that determination or failure, make a complaint under the ombudsman scheme.

[F8(2A)The way in which a complaint mentioned in subsection (2) is to be determined by the ombudsman is to be as mentioned in subsection (4).

(2B)Subsection (2A) does not apply if the consumer and the relevant firm agree that it should not apply.]

[F9(3)In the following provisions of this section “relevant complaint” means—

(a)a complaint mentioned in subsection (1) other than one in relation to which subsection (1A) applies, or

(b)a complaint mentioned in subsection (2) other than one in relation to which subsection (2B) applies.]

(4)A relevant complaint is to be determined by reference to what, in the opinion of the ombudsman, the determination under the consumer redress scheme should be or should have been (subject to subsection (5)).

(5)If, in determining a relevant complaint, the ombudsman determines that the firm should make (or should have made) a payment of an amount to the consumer, the amount awarded by the ombudsman (a “money award”) must not exceed the monetary limit (within the meaning of section 229).

(6)But the ombudsman may recommend that the firm pay a larger amount.

(7)A money award—

(a)may specify the date by which the amount awarded is to be paid;

(b)may provide for interest to be payable, at a rate specified in the award, on any amount which is not paid by that date; and

(c)is enforceable by the consumer in accordance with Part 3 or 3A of Schedule 17 (as the case may be).

(8)If, in determining a relevant complaint, the ombudsman determines that the firm should take (or should have taken) particular action in relation to the consumer, the ombudsman may direct the firm to take that action.

(9)Compliance with a direction under subsection (8) is enforceable, on the application of the consumer, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.

(10)In consequence of the provision made by this section, sections 228(2) and 229 do not apply in relation to relevant complaints; but all other provision made by or under Part 16 applies in relation to those complaints.

(11)The compulsory jurisdiction of the ombudsman scheme is to include the jurisdiction resulting from this section.

(12)Nothing in subsection (1) is to be taken as requiring the ombudsman to determine a complaint in any case where (apart from that subsection) the complaint would not fall to be determined (whether as a result of rules made under Schedule 17 or otherwise).

(13)Nothing in subsection (2) is to be taken as conferring an entitlement on a person who, for the purposes of the ombudsman scheme, is not an eligible complainant in relation to the subject-matter of the determination mentioned there.

Textual Amendments

404CEnforcementU.K.

The following provisions—

(a)Part 14 (disciplinary measures), and

(b)so much of this Act as relates to any provision of that Part,

(which [F10, subject to section 415AA(1),] apply only in relation to authorised persons) are also to apply in relation to relevant firms which are not (or are no longer) authorised persons.

Textual Amendments

Modifications etc. (not altering text)

404DApplications to Tribunal to quash rules or provision of rulesU.K.

(1)Any person may apply to the Tribunal for a review of any rules made under section 404.

(2)The Tribunal may—

(a)dismiss the application; or

(b)make an order (a “quashing order”) quashing any rules made under section 404 or any provision of those rules.

(3)An application may be made only if permission to make it has first been obtained from the Tribunal.

(4)The Tribunal may grant permission to make an application only if it considers that the applicant has a sufficient interest in the matter to which the application relates.

(5)The general rule is that, in determining an application, the Tribunal is to apply the principles applicable on an application for judicial review.

(6)If (or so far as) an application relates to an example set out in the rules as a result of section 404A(1)(b), the Tribunal may determine whether the example constitutes a failure to comply with the requirement in question.

(7)If (or so far as) an application relates to a matter set out in the rules as a result of section 404A(1)(c), the Tribunal may determine whether the matter should be taken into account as mentioned in that provision.

(8)In the case of an application within subsection (6) or (7), the Tribunal's jurisdiction under that subsection is in addition to its jurisdiction under subsection (5).

(9)A quashing order may be enforced as if it were an order made, on an application for judicial review, by the High Court or, in Scotland, the Court of Session.

(10)The Tribunal may award damages to the applicant if—

(a)the application includes a claim for damages arising from any matter to which the application relates; and

(b)the Tribunal is satisfied that an award would have been made by the High Court or, in Scotland, the Court of Session if the claim had been made in an action begun in that court by the applicant when making the application.

(11)An award of damages under subsection (10) may be enforced as if it were an award made by the High Court or, in Scotland, the Court of Session.

(12)In the case of any proceedings under this section, the judge presiding at the proceedings must be—

(a)a judge of the High Court or the Court of Appeal or a judge of the Court of Session; or

(b)such other person as may be agreed from time to time by—

(i)the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland (as the case may be); and

(ii)the Senior President of Tribunals.

(13)Section 133 does not apply in the case of an application under this section, but—

(a)Tribunal Procedure Rules may make provision for the suspension of rules made under section 404 or of any provision of those rules, pending determination of the application; and

(b)in the case of an application within subsection (6) or (7), the Tribunal may consider any evidence relating to the application's subject-matter, whether or not it was available at the time the rules were made.

(14)If—

(a)the Tribunal refuses to grant permission to make an application under this section, and

(b)on an appeal by the applicant, the Court of Appeal grants the permission,

the Court of Appeal may go on to decide the application under this section.

404EMeaning of “consumers”U.K.

(1)For the purposes of sections 404 to 404B “consumers” means persons [F11who]—

(a)[F12who] have used, or may have contemplated using, any of the services within subsection (2); [F13or]

(b)[F12who] have relevant rights or interests in relation to any of the services within that subsection [F14; or

(c)in respect of whom a person carries on an activity which is specified in article 89G of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (seeking out etc claims) whether that activity, as carried on by that person, is a regulated activity or is, by reason of an exclusion provided for under the 2001 Order or the 2000 Act, not a regulated activity.]

(2)The services within this subsection are services provided by—

(a)authorised persons in carrying on regulated activities;

F15(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)authorised persons in communicating, or approving the communication by others of, invitations or inducements

[F16(i)]to engage in investment activity [F17; or

(ii)to engage in claims management activity;]

(d)authorised persons who are investment firms, or credit institutions, in providing relevant ancillary services;

(e)persons acting as appointed representatives; F18. . .

(f)payment service providers in providing payment services.[F19 or

(g)electronic money issuers in issuing electronic money.]

(3)A person (“P”) has a “relevant right or interest” in relation to any services within subsection (2) if P has a right or interest—

(a)which is derived from, or is otherwise attributable to, the use of the services by others; or

(b)which may be adversely affected by the use of the services by persons acting on P's behalf or in a fiduciary capacity in relation to P.

(4)If a person is providing a service within subsection (2) as a trustee, the persons who have been, or may have been, beneficiaries of the trust are to be treated as persons who have used, or may have contemplated using, the service.

(5)A person who deals with another person (“B”) in the course of B providing a service within subsection (2) is to be treated as using the service.

(6)In this section—

  • F20...

  • F20...

  • F21...

  • [F22“engage in claims management activity” has the meaning given by section 21;]

  • “engage in investment activity” has the meaning given by section 21;

  • [F23“electronic money” has the same meaning as in the Electronic Money Regulations 2011 and any reference to issuing electronic money must be read accordingly;]

  • “payment services” has the same meaning as in the Payment Services Regulations [F242017];

  • “payment service provider” means a person who is a payment service provider for the purposes of those regulations as a result of falling within any of paragraphs (a) to [F25(g)] of the definition in regulation 2(1);

  • “relevant ancillary services” has the meaning given by section 138(1C).

Textual Amendments

F11Word in s. 404E(1) omitted (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(a)(i)

F12Word in s. 404E(1)(a)(b) inserted (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(a)(ii)

F13Word in s. 404E(1)(a) omitted (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(a)(iii)

F14S. 404E(1)(c) and word inserted (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(a)(iv)

F15S. 404E(2)(b) omitted (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 10(15)(a) (with art. 11(2))

F16Words in s. 404E(2)(c) renumbered as s. 404E(2)(c)(i) (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(b)

F17S. 404E(2)(c)(ii) and word inserted (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(b)

F18Word in s. 404E(2) omitted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by virtue of The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(4)(b)(i) (with reg. 3)

F19S. 404E(2)(g) and preceding word inserted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(4)(b)(i) (with reg. 3)

F20Words in s. 404E(6) omitted (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 10(15)(b) (with art. 11(2))

F22Words in s. 404E(6) inserted (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 91(6)(c)

F23S. 404E(6): definition of "electronic money" inserted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(4)(b)(ii) (with reg. 3)

Modifications etc. (not altering text)

C2S. 404E modified by S.I. 2001/544, art. 60S(1)(3) (as inserted (14.2.2014 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), arts. 1(3)(4), 2(37))

C3S. 404E modified by S.I. 2001/544, art. 60LA(1)(3) (as inserted (14.2.2014 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), arts. 1(3)(4), 2(33))

C4S. 404E modified (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 89

404FOther definitions etcU.K.

(1)For the purposes of sections 404 to 404B—

  • “redress” includes—

    (a)

    interest; and

    (b)

    a remedy or relief which could not be awarded in legal proceedings;

  • “specified” means specified in rules made under section 404.

(2)In determining for the purposes of those sections whether an authorised person has failed to comply with a requirement, anything which an appointed representative has done or omitted as respects business for which the authorised person has accepted responsibility is to be treated as having been done or omitted by the authorised person.

(3)References in those sections to the failure by a relevant firm to comply with a requirement applicable to the carrying on by it of any activity include anything done, or omitted to be done, by it in carrying on the activity—

(a)which is in breach of a duty or other obligation, prohibition or restriction; or

(b)which otherwise gives rise to the availability of a remedy or relief in legal proceedings.

(4)It does not matter whether—

(a)the duty or other obligation, prohibition or restriction, or

(b)the remedy or relief,

arises as a result of any provision made by or under this or any other Act, a rule of law or otherwise.

(5)References in sections 404 to 404B to a relevant firm include—

(a)a person who was at any time a relevant firm but has subsequently ceased to be one; and

(b)a person who has assumed a liability (including a contingent one) incurred by a relevant firm in respect of a failure by the firm to comply with a requirement applicable to the carrying on by it of any activity.

(6)References in those sections to the carrying on of an activity by a relevant firm are, accordingly, to be read in that case with the appropriate modifications.

[F26(6A)References in sections 404 and 404E to an “electronic money issuer” are references to a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011.]

(7)If the [F27FCA] varies a permission or authorisation of a person so as to impose requirements on the person to establish and operate a scheme which corresponds to, or is similar to, a consumer redress scheme, the provision that may be included in the permission or authorisation as varied includes—

(a)provision imposing requirements on the person corresponding to those that could be included in rules made under section 404; and

(b)provision corresponding to section 404B.

(8)In subsection (7) the reference to the variation of a permission or authorisation by the [F27FCA] is a reference to—

[F28(a)the variation under section 55H or 55J of a Part 4A permission,

(aa)the imposition or variation of a requirement under section 55L, or]

(b)the variation under regulation 8 or [F2912] of the Payment Services Regulations [F302017] of an authorisation under those regulations.[F31 or

(c)the variation under regulation 8 or 11 of the Electronic Money Regulations 2011 of an authorisation under those regulations.]

Textual Amendments

F26S. 404F(6A) inserted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(5)(i) (with reg. 3)

F28S. 404F(8)(a)(aa) substituted for s. 404F(8)(a) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 20(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F31S. 404F(8)(c) and preceding word inserted (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xv)(b), 79, Sch. 4 para. 2(5)(ii) (with reg. 3)

404GPower to widen the scope of consumer redress schemesU.K.

(1)The Treasury may by order amend the definition of “relevant firms” in section 404 or the definition of “consumers” in section 404E (or both).

(2)An order under this section may make consequential amendments of any provision of sections 404 to 404F.]

Third countriesU.K.

F32405 Directions.U.K.

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

Textual Amendments

F32Ss. 405-408 omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 49 (with reg. 7)

F32406 Interpretation of section 405.U.K.

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

Textual Amendments

F32Ss. 405-408 omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 49 (with reg. 7)

F32407 Consequences of a direction under section 405.U.K.

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

Textual Amendments

F32Ss. 405-408 omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 49 (with reg. 7)

F32408 EFTA firms.U.K.

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

Textual Amendments

F32Ss. 405-408 omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 49 (with reg. 7)

409 Gibraltar.U.K.

(1)The Treasury may by order—

(a)modify Schedule 3 so as to provide for Gibraltar firms of a specified description to qualify for authorisation under that Schedule in specified circumstances;

(b)modify Schedule 3 so as to make provision in relation to the exercise by UK firms of rights under the law of Gibraltar which correspond to [F33the EEA rights that UK firms had immediately before IP completion day];

F34(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)modify section 264 so as to make provision in relation to collective investment schemes constituted under the law of Gibraltar;

F35(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F36(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The fact that a firm may qualify for authorisation under Schedule 3 as a result of an order under subsection (1) does not prevent it from applying for a [F37Part 4A permission].

(3)“Gibraltar firm” means a firm which has its head office in Gibraltar or is otherwise connected with Gibraltar.

F38(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)“Specified” means specified in the order.

(6)“UK firm” [F39means a person whose head office is in the United Kingdom or is otherwise connected with the United Kingdom; and “EEA right” has] the same meaning as in Schedule 3.

[F40(7)For the purposes of this section, Schedule 3 and section 264, and regulations made under that Schedule or that section, continue to apply on and after IP completion day as they had effect immediately before IP completion day, but subject to any modifications specified in an order under this section.

(8)In relation to the exercise of Gibraltar-related market access rights and persons exercising those rights, the relevant legislation (as defined in subsections (11) and (12)) continues to apply on or after IP completion day as if it had not been repealed, revoked or amended by regulations under section 8 of the European Union (Withdrawal) Act 2018, but this is subject to—

(a)subsection (9), and

(b)any further modifications specified in an order under this section.

(9)The relevant legislation is to be read as if references to a person's rights under any EU legislation were to the person's rights deriving from that legislation.

(10)“Gibraltar-related market access rights” means

(a)rights conferred by virtue of subsection (1)(a) or (d), or

(b)the rights mentioned in subsection (1)(b).

(11)“The relevant legislation” means—

(a)in section 31 (authorised persons), subsection (1)(b);

(b)section 34 (EEA firms);

(c)section 36 (persons authorised as a result of paragraph 1(1) of Schedule 5);

(d)section 37 (exercise of EEA rights by UK firms);

(e)Part 13 (incoming firms: intervention by FCA or PRA) and regulations made under that Part;

(f)sections 266 to 269 (which relate to schemes recognised under section 264);

(g)in Schedule 5 (persons concerned in collective investment schemes), paragraphs 1(1) and (2) and 2(1);

(h)the Financial Services and Markets Act 2000 (Compensation Scheme: Electing Participants) Regulations 2001;

(i)Part 4 (mergers) of the Undertakings for Collective Investment in Transferable Securities Regulations 2011;

(j)any other provision of primary or subordinate legislation which is repealed, revoked, amended or modified by the EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018;

(k)any other provision of primary or subordinate legislation which is repealed, revoked, amended or modified on IP completion day by regulations under section 8(1) of the European Union (Withdrawal) Act 2018 and which relates to—

(i)authorisation by virtue of Part 2 of Schedule 3 or by virtue of paragraph 1(1) of Schedule 5, or persons authorised by virtue of those provisions,

(ii)the exercise by UK firms of EEA rights (as defined in Schedule 3), or

(iii)the recognition of collective investment schemes under section 264, or schemes so recognised.

(12)“The relevant legislation” does not include rules made by the FCA or the PRA.]

Textual Amendments

F35S. 409(1)(e) omitted (1.7.2011) by virtue of The Undertakings for Collective Investment in Transferable Securities Regulations 2011 (S.I. 2011/1613), reg. 2(30)

F37Words in s. 409(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 23 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

International [F41powers and] obligationsU.K.

Textual Amendments

[F42409AConsultation in relation to deference decisionsU.K.

(1)This section applies where a regulator is proposing to take a relevant action.

(2)The regulator—

(a)must consider the effect of the relevant action on notified deference decisions, and

(b)if having done so it appears to the regulator that there is a material risk that the relevant action would be incompatible with a notified deference decision, must consult the Treasury about the likely effect of the action on the decision.

(3)Subsection (2) applies only if a duty to consult applies in respect of the taking of the relevant action.

(4)For the purposes of subsection (1) a regulator proposes to take a “relevant action” if—

(a)it proposes to make rules under this Act or any other enactment, or

(b)it proposes to make changes to its general policies and practices so far as relating to its supervisory functions under section 1L (FCA supervisory functions) or (as the case may be) section 2K (PRA supervisory functions).

(5)For the purposes of subsection (2)—

(a)“deference decision” means a decision of the Treasury that the law and practice of another country or territory is, so far as relating to financial services and markets, equivalent to the law and practice of the United Kingdom (either generally or as it relates to a particular matter);

(b)a deference decision is a “notified deference decision” if the Treasury have, by notice in writing, informed the regulator that it is relevant for the purposes of this section;

(c)a relevant action is “incompatible” with a notified deference decision if the action would result in the law and practice of the United Kingdom ceasing to be equivalent to the law and practice of the other country or territory to which the deference decision relates.

(6)For the purposes of subsection (3) a duty to consult applies in respect of a relevant action if—

(a)the duty imposed by section 138I or 138J to publish a draft of proposed rules applies in respect of the action, or

(b)any other duty (whether or not imposed by a provision of this Act) to publish the proposal to take the action in question applies.

(7)Section 138M(1) (consultation: exemptions for temporary product intervention rules) is to be ignored for the purposes of subsection (6) in determining whether a duty to consult applies in respect of a relevant action.

(8)The requirement imposed by subsection (2)(b) must be carried out before the duty to consult in respect of the relevant action is carried out.

(9)The requirements imposed by subsection (2) do not apply to the extent that the regulator takes a relevant action—

(a)by the making of product intervention rules under section 137D if the condition in subsection (10) is met,

(b)by the making of rules under Part 9C (see instead section 143G(3)),

(c)by the making of rules under Part 9D (see instead section 144C(3)),

(d)by the making of rules under Part 12B (see instead section 192XB(2)),

(e)in order to comply with a direction given by the Financial Policy Committee of the Bank of England under section 9H of the Bank of England Act 1998 (directions required macro-prudential measures), or

(f)in order to act in accordance with a recommendation made by that Committee under section 9Q of that Act (recommendations about the exercise of functions).

(10)The condition referred to in subsection (9)(a) is that the FCA considers it necessary not to comply with the requirement imposed by subsection (2) for the purpose of advancing—

(a)the consumer protection objective, or

(b)if an order under section 137D(1)(b) is in force, the integrity objective.]

Textual Amendments

[F43409BNotification in relation to international trade obligationsU.K.

(1)This section applies where it appears to a regulator that there is a material risk that a relevant action it proposes to take would be incompatible with an international trade obligation.

(2)The regulator must give written notice to the Treasury of the proposed action before proceeding to take it.

(3)Subsection (2) applies only if a duty to consult applies in respect of the taking of the relevant action.

(4)For the purposes of subsection (1) a regulator proposes to take a “relevant action” if—

(a)it proposes to make rules under this Act or any other enactment, or

(b)it proposes to make changes to its general policies and practices so far as relating to its supervisory functions under section 1L (FCA supervisory functions) or (as the case may be) section 2K (PRA supervisory function).

(5)For the purposes of subsection (3) a duty to consult applies in respect of a relevant action if—

(a)the duty imposed by section 138I or 138J to publish a draft of proposed rules applies in respect of the action, or

(b)any other duty (whether or not imposed by a provision of this Act) to publish the proposal to take the action in question applies.

(6)Section 138M(1) (consultation: exemptions for temporary product intervention rules) is to be ignored for the purposes of subsection (5) in determining whether a duty to consult applies in respect of a relevant action.

(7)The requirement imposed by subsection (2) must be carried out before the duty to consult in respect of the relevant action is carried out.

(8)The requirement imposed by subsection (2) does not apply to the extent that the regulator takes a relevant action—

(a)by the making of product intervention rules under section 137D if the condition in subsection (9) is met,

(b)in order to comply with a direction given by the Financial Policy Committee of the Bank of England under section 9H of the Bank of England Act 1998 (directions requiring macro-prudential measures), or

(c)in order to act in accordance with a recommendation made by that Committee under section 9Q of that Act (recommendations about the exercise of functions).

(9)The condition referred to in subsection (8)(a) is that the FCA considers it necessary not to comply with the requirement imposed by subsection (2) for the purpose of advancing—

(a)the consumer protection objective, or

(b)if an order under section 137D(1)(b) is in force, the integrity objective.

(10)Subsection (11) applies in a case where a notice under subsection (2) is not given because of subsection (3) or (8)(a).

(11)The regulator must give written notice to the Treasury of the relevant action it has taken as soon as reasonably practicable after taking it if it appears to the regulator that there is a material risk that the action is incompatible with an international trade obligation.

(12)In this section “international trade obligation” means an obligation of the United Kingdom that relates to financial services or markets under—

(a)a free trade agreement, as defined by section 5(1) of the Trade Act 2021, or

(b)the agreement establishing the World Trade Organisation signed at Marrakesh on 15 April 1994.]

Textual Amendments

410 International obligations.U.K.

(1)If it appears to the Treasury that any action proposed to be taken by a relevant person would be incompatible with [F44any] international obligations of the United Kingdom, they may direct that person not to take that action.

(2)If it appears to the Treasury that any action which a relevant person has power to take is required for the purpose of implementing any such obligations, they may direct that person to take that action.

(3)A direction under this section—

(a)may include such supplemental or incidental requirements as the Treasury consider necessary or expedient; and

(b)is enforceable, on an application made by the Treasury, by injunction or, in Scotland, by an order for specific performance under section 45 of the M1Court of Session Act 1988.

(4)“Relevant person” means—

[F45(a)the FCA;

(aa)the PRA;

(ab)the Bank of England when exercising functions conferred on it by Part 18;]

F46(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)any recognised investment exchange (other than one which is an overseas investment exchange);

(d)any recognised clearing house (other than one which is an overseas clearing house);

[F47(da)any recognised CSD;]

(e)a person included in the list maintained under section 301; or

(f)the scheme operator of the ombudsman scheme.

Textual Amendments

F45S. 410(4)(a)(aa)(ab) substituted for s. 410(4)(a) (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 47, 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F46S. 410(4)(b) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), ss. 16(14)(i), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C5S. 410 applied (1.12.2001) by S.I. 1995/1537, reg. 23(3) (as amended (1.12.2001) by S.I. 2001/3649, arts. 1, 509(d))

Marginal Citations

[F48Fees to meet Treasury expensesU.K.

Textual Amendments

410AFees to meet certain expenses of the TreasuryU.K.

(1)The Treasury may by regulations—

(a)enable the Treasury from time to time by direction to require the FCA, the PRA or the Bank of England (each a “regulator”) to require the payment of fees by relevant persons, or such class of relevant person as may be specified in, or determined by the regulator in accordance with, the direction, for the purpose of meeting relevant expenses incurred by the Treasury;

(b)make provision about how the regulator to which a direction is given is to comply with the direction;

(c)require the regulator to pay to the Treasury, by such time or times as may be specified in the direction, the amount of any fees received by the regulator.

(2)“Relevant expenses” are expenses (including any expenses of a capital nature) which are attributable to United Kingdom membership of, or Treasury participation in, a prescribed international organisation so far as those expenses—

(a)represent a contribution (by way of subscription or otherwise) to the resources of the international organisation, and

(b)are in the opinion of the Treasury attributable to functions of the organisation which relate to financial stability or financial services.

(3)The regulations must provide for the charging of fees in pursuance of a direction given under the regulations to the FCA or the PRA to be by rules made by that regulator.

(4)The provisions of Chapter 2 of Part 9A apply to rules of the FCA or the PRA providing for the charging of fees in pursuance of a direction given under the regulations—

(a)in the case of the FCA, as they apply to rules relating to the payment of fees under paragraph 23 of Schedule 1ZA;

(b)in the case of the PRA, as they apply to rules relating to the payment of fees under paragraph 31 of Schedule 1ZB.

(5)Paragraph 36(1) of Schedule 17A applies to the charging of fees by the Bank of England in pursuance of a direction given to the Bank under the regulations.

(6)The regulations may in particular—

(a)make provision about what is, or is not, to be regarded as an expense;

(b)specify requirements that the Treasury must comply with before giving a direction;

(c)enable a direction to be varied or revoked by a subsequent direction;

(d)confer functions on a regulator.

(7)An amount payable to a regulator as a result of—

(a)any provision of rules made by the FCA or the PRA as a result of the regulations, or

(b)the imposition of fees by the Bank of England as a result of a direction given under the regulations to the Bank,

may be recovered as a debt due to the regulator.

(8)“Relevant persons” means—

(a)in the case of a direction given to the PRA, PRA-authorised persons;

(b)in the case of a direction given to the FCA, authorised persons and recognised investment exchanges who (in either case) are not PRA-authorised persons;

(c)in the case of a direction given to the Bank of England, recognised clearing houses [F49and recognised CSDs], other than those falling within paragraph (a) or (b).

(9)This section is subject to section 410B.

Textual Amendments

410BDirections in pursuance of section 410AU.K.

(1)In this section “a fees direction” means a direction given by the Treasury as a result of regulations under section 410A.

(2)Before giving a fees direction to the FCA, the PRA or the Bank of England (each a “regulator”), the Treasury must consult the regulator concerned.

(3)A fees direction must—

(a)be in writing;

(b)except in the case of a direction that revokes a previous direction or a direction that varies a previous direction without affecting the total amount intended to be raised by the fees, specify the total amount intended to be raised by the fees to be charged by the regulator and explain how that amount is calculated;

(c)contain such other information as may be prescribed.

(4)As soon as practicable after giving a fees direction, the Treasury must lay before Parliament a copy of the direction.]

Tax treatment of levies and repaymentsU.K.

411 Tax treatment of levies and repayments.U.K.

F50(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)F51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F50S. 411(1) repealed (1.12.2001) by S.I. 2001/3629, arts. 1(2)(a), 109, Sch.

F51S. 411(2) repealed (1.4.2009 with effect in accordance with s. 1329(1) of the amending Act) by Corporation Tax Act 2009 (c. 4), ss. 1326, 1329(1), Sch. 3 Pt. 1 (with Sch. 2 Pts. 1, 2)

Gaming contractsU.K.

412 Gaming contracts.U.K.

(1)No contract to which this section applies is void or unenforceable because of—

(a)F52. . . Article 170 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985; or

(b)F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)This section applies to a contract if—

(a)it is entered into by either or each party by way of business;

(b)the entering into or performance of it by either party constitutes an activity of a specified kind or one which falls within a specified class of activity; and

(c)it relates to an investment of a specified kind or one which falls within a specified class of investment.

(3)Part II of Schedule 2 applies for the purposes of subsection (2)(c), with the references to section 22 being read as references to that subsection.

(4)Nothing in Part II of Schedule 2, as applied by subsection (3), limits the power conferred by subsection (2)(c).

(5)“Investment” includes any asset, right or interest.

(6)“Specified” means specified in an order made by the Treasury.

Textual Amendments

Commencement Information

I1S. 412 wholly in force at 1.12.2001; s. 412 not in force at Royal Assent see s. 431(2); s. 412 in force for certain purposes at 25.2.2001 by S.I. 2001/516, art. 2(b), Sch. Pt. 2; s. 412 in force in so far as not already in force at 1.12.2001 by S.I. 2001/3538, art. 2(1)

[F54Trade-matching and reporting systems]U.K.

Textual Amendments

F54Ss. 412A, 412B and preceding cross-heading inserted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 18

F55412AApproval and monitoring of trade-matching and reporting systemsU.K.

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

Textual Amendments

F55Ss. 412A, 412B omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 50 (with reg. 7)

F55412BProcedure for approval and suspension or withdrawal of approvalU.K.

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

Textual Amendments

F55Ss. 412A, 412B omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 50 (with reg. 7)

Limitation on powers to require documentsU.K.

413 Protected items.U.K.

(1)A person may not be required under this Act to produce, disclose or permit the inspection of protected items.

(2)“Protected items” means—

(a)communications between a professional legal adviser and his client or any person representing his client which fall within subsection (3);

(b)communications between a professional legal adviser, his client or any person representing his client and any other person which fall within subsection (3) (as a result of paragraph (b) of that subsection);

(c)items which—

(i)are enclosed with, or referred to in, such communications;

(ii)fall within subsection (3); and

(iii)are in the possession of a person entitled to possession of them.

(3)A communication or item falls within this subsection if it is made—

(a)in connection with the giving of legal advice to the client; or

(b)in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings.

(4)A communication or item is not a protected item if it is held with the intention of furthering a criminal purpose.

Modifications etc. (not altering text)

C6S. 413 applied (1.5.2009 for certain purposes and 1.11.2009 otherwise) by The Payment Services Regulations 2009 (S.I. 2009/209), regs. 1(2)(b)(xiii)(c), 95, Sch. 5 para. 8 (with reg. 3)

C7S. 413 applied (11.2.2010) by The Cross-Border Payments in Euro Regulations 2010 (S.I. 2010/89), reg. 19, Sch. para. 6

C8S. 413 applied (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xiv)(b), 62, Sch. 3 para. 9 (with reg. 3)

C13S. 413 applied (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 1 para. 24 (with reg. 7)

C20S. 413 applied (30.1.2024 for specified purposes) by The Securitisation Regulations 2024 (S.I. 2024/102), reg. 2(1)(e)(2), Sch. 1 para. 14 (with reg. 52(3), Sch. 3)

C21S. 413 applied (30.1.2024 for specified purposes, 1.11.2024 in so far as not already in force) by The Securitisation Regulations 2024 (S.I. 2024/102), reg. 2(1)(e)(2), Sch. 1 para. 14 (with reg. 52(3), Sch. 3); as amended by S.I. 2024/705, regs. 1(2), 2(2)

Service of noticesU.K.

414 Service of notices.U.K.

(1)The Treasury may by regulations make provision with respect to the procedure to be followed, or rules to be applied, when a provision of or made under this Act requires a notice, direction or document of any kind to be given or authorises the imposition of a requirement.

(2)The regulations may, in particular, make provision—

(a)as to the manner in which a document must be given;

(b)as to the address to which a document must be sent;

(c)requiring, or allowing, a document to be sent electronically;

(d)for treating a document as having been given, or as having been received, on a date or at a time determined in accordance with the regulations;

(e)as to what must, or may, be done if the person to whom a document is required to be given is not an individual;

(f)as to what must, or may, be done if the intended recipient of a document is outside the United Kingdom.

(3)Subsection (1) applies however the obligation to give a document is expressed (and so, in particular, includes a provision which requires a document to be served or sent).

(4)Section 7 of the M2Interpretation Act 1978 (service of notice by post) has effect in relation to provisions made by or under this Act subject to any provision made by regulations under this section.

Modifications etc. (not altering text)

C22S. 414 amended (1.12.2001) by S.I. 2001/2657, arts. 1(1), 10(7), 11(7) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)

S. 414 amended (1.12.2001) by S.I. 2001/3083, arts. 1(2), 10(7), 11(7); S.I. 2001/3538, art. 2(1)

C25S. 414(4) applied (28.12.2020 until IP completion day when the amending provision ceases to have effect in accordance with reg. 1(4) of the amending S.I.) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(4), 101(2) (with reg. 107)

Commencement Information

I2S. 414 wholly in force at 18.6.2001; s. 414 not in force at Royal Assent see s. 431(2); s. 414(1)-(3) in force at 25.2.2001 by S.I. 2001/516, art. 2(a), Sch. Pt. 1; s. 414 in force in so far as not already in force at 18.6.2001 by S.I. 2001/1820, art. 2, Sch.

Marginal Citations

JurisdictionU.K.

415 Jurisdiction in civil proceedings.U.K.

(1)Proceedings arising out of any act or omission (or proposed act or omission) of—

[F56(a)the FCA,

(aa)the PRA,

(ab)the Bank of England,]

F57(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the scheme manager, or

(d)the scheme operator,

in the discharge or purported discharge of any of its functions under this Act may be brought before the High Court or the Court of Session.

(2)The jurisdiction conferred by subsection (1) is in addition to any other jurisdiction exercisable by those courts.

Textual Amendments

F56S. 415(1)(a)-(ab) substituted for s. 415(1)(a) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 24 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F57S. 415(1)(b) omitted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by virtue of Financial Services Act 2012 (c. 21), ss. 16(14)(j), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C27S. 415 applied (1.12.2001) by S.I. 1995/1537, reg. 23(2) (as amended (1.12.2001) by S.I. 2001/3649, arts. 1, 509(c))

C28S. 415 modified (17.8.2001) by S.I. 2001/2617, arts. 2(a), 4(3), 8, Sch. 2 para. 8

C29S. 415 applied (with modifications) (6.4.2018 immediately after 2016 c. 16 (N.I.), s. 8(2) comes into force) by The Financial Services Act 2012 (Mutual Societies) Order 2018 (S.I. 2018/323), art. 1, Sch. 1 para. 2(2)(g) (with art. 3)

[F58Powers [F59under the Act] U.K.

Textual Amendments

F58S. 415A and preceding cross-heading inserted (8.4.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(1)(l), Sch. 2 para. 30

F59Words in s. 415A cross-heading substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 25(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

415APowers [F60under the Act] U.K.

Any power which the [F61FCA, the PRA or the Bank of England] has under any provision of this Act is not limited in any way by any other power which it has under any other provision of this Act.]

Textual Amendments

F60Words in s. 415A heading substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 25(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

[F62415AAApplication of powers to formerly authorised personsU.K.

(1)A power in the following provisions may be exercised in relation to persons who were at any time authorised persons (in addition to persons who are authorised persons at the time when the power is exercised)—

(a)section 168 (appointment of investigators in certain cases);

(b)section 205 (public censure);

(c)section 206 (financial penalties);

(d)section 384 (power to require restitution).

(2)Accordingly, references in the provisions listed in subsection (1), and in sections 207 to 209, to an authorised person are (so far as appropriate) to be read as including a person who was at any time an authorised person but who has ceased to be an authorised person.]

Textual Amendments

Modifications etc. (not altering text)

[F63Consultation [F64and co-operation] U.K.

Textual Amendments

F63S. 415B and cross-heading inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 41 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

415BConsultation in relation to taking certain enforcement actionU.K.

(1)The FCA must consult the PRA before taking a qualifying step in relation to a person who—

(a)is a PRA-authorised person, or

(b)has a qualifying relationship with a PRA-authorised person.

(2)The PRA must consult the FCA before taking a qualifying step.

(3)In this section any reference to the taking of a qualifying step is a reference to—

(a)the giving of a warning notice or decision notice under section 63B (performance of controlled functions without approval),

(b)the giving of a warning notice or decision notice under section 67 (disciplinary powers in relation to approved person),

F65(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the giving of a warning notice or decision notice under section 131H (short selling),

(e)the giving of a warning notice under section 207 or a decision notice under section 208 (breaches of requirements imposed by or under Act etc.),

(f)the giving of a warning notice under section 312G or a decision notice under section 312H (recognised bodies),

(g)the making of an application to the court under section 380, 381, 382 or 383 (injunctions or restitution), or

(h)the giving of a warning notice under section 385 or a decision notice under section 386 (power of FCA or PRA to require restitution).

(4)A person has a qualifying relationship with a PRA-authorised person (“A”) for the purposes of this section if—

(a)the person is a member of A's immediate group, or

(b)in the case of a qualifying step within subsection (3)(a) or (b), the person performs a [F66relevant senior management] function under an arrangement entered into by A, or by a contractor of A, in relation to the carrying on by A of a regulated activity.

F67...

[F68(5)In subsection (4)—

  • “arrangement” has the same meaning as in section 59;

  • “relevant senior management function” means a function which the FCA is satisfied is a senior management function as defined in section 59ZA (whether or not it [F69is a designated senior management function as defined by section 59ZB).]]]

Textual Amendments

F66Words in s. 415B(4)(b) substituted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 15(2)(a); S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660))

F67Words in s. 415B(4) omitted (7.3.2016) by virtue of Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 15(2)(b); S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660))

F68S. 415B(5) inserted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 15(3); S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660))

F69Words in s. 415B(5) substituted (13.9.2018 for specified purposes, 10.12.2018 for specified purposes, 18.7.2019 for specified purposes, 9.8.2019 for specified purposes, 9.12.2019 for specified purposes, 7.12.2020 in so far as not already in force) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 4 para. 20; S.I. 2018/990, reg. 2(1)(2)(3) (with regs. 3-6); S.I. 2019/1136, reg. 2(2)(3)(4)(5) (with reg. 3)

Modifications etc. (not altering text)

C33S. 415B applied (30.1.2024 for specified purposes, 1.11.2024 in so far as not already in force) by The Securitisation Regulations 2024 (S.I. 2024/102), reg. 2(1)(e)(2), Sch. 1 para. 15 (with reg. 52(3), Sch. 3); as amended by S.I. 2024/705, regs. 1(2), 2(2)

[F70415CCo-operation and consultation in relation to exercise of functionsU.K.

(1)In exercising its functions under this Act a relevant organisation (“R”) must—

(a)take such steps as R considers appropriate to co-operate with each of the other relevant organisations in relation to matters of interest to that organisation, and

(b)consult such other persons as R considers appropriate in relation to any matters that R considers to be of interest to those persons.

(2)A matter is of interest to another relevant organisation for the purposes of subsection (1) if it appears to R that it has, or is likely to have, significant implications in relation to—

(a)the exercise by that other relevant organisation of functions under this Act, or

(b)the functioning generally of relevant markets within the meaning of section 1F.

(3)The relevant organisations must prepare and publish a statement of policy with respect to compliance with the duty under subsection (1).

(4)The relevant organisations may alter or replace a statement published under subsection (3).

(5)The relevant organisations must publish a statement as altered or replaced under subsection (4).

(6)The relevant organisations—

(a)must, at least once a year, prepare and publish a report on their compliance with the duty under subsection (1), and

(b)must put in place arrangements enabling representations to be made about their compliance with that duty (whether by seeking representations in response to the report or otherwise).

(7)Except in the case of the first report to be prepared under this section, a report prepared under subsection (6)(a) must include a summary of representations received in the preceding year in accordance with arrangements made under subsection (6)(b).

(8)Publication under this section is to be made in such manner as the relevant organisations consider best designed to bring the publication to the attention of the public.

(9)In this section “relevant organisation” means—

(a)the FCA;

(b)the scheme operator of the ombudsman scheme within the meaning of section 225(2);

(c)the scheme manager of the Financial Services Compensation Scheme within the meaning of section 212.]

Textual Amendments

Removal of certain unnecessary provisionsU.K.

416 Provisions relating to industrial assurance and certain other enactments.U.K.

(1)The following enactments are to cease to have effect—

(a)the M3Industrial Assurance Act 1923;

(b)the M4Industrial Assurance and Friendly Societies Act 1948;

(c)the M5Insurance Brokers (Registration) Act 1977.

(2)The M6Industrial Assurance (Northern Ireland) Order 1979 is revoked.

(3)The following bodies are to cease to exist—

(a)the Insurance Brokers Registration Council;

(b)the Policyholders Protection Board;

(c)the Deposit Protection Board;

(d)the Board of Banking Supervision.

(4)If the Treasury consider that, as a consequence of any provision of this section, it is appropriate to do so, they may by order make any provision of a kind that they could make under this Act (and in particular any provision of a kind mentioned in section 339) with respect to anything done by or under any provision of Part XXI.

(5)Subsection (4) is not to be read as affecting in any way any other power conferred on the Treasury by this Act.

Commencement Information

I3S. 416 wholly in force at 1.12.2001; s. 416 not in force at Royal Assent see s. 431(2); s. 416(4)(5) in force at 25.2.2001 by S.I. 2001/516, art. 2(a), Sch. Pt. 1; s. 416(1)(c)(3)(a) in force at 30.4.2001 by S.I. 2001/1282, art. 2(a); s. 416 in force at 1.12.2001 so far as not already in force (except sub-section (3)(b)(c) which are in force at 2.3.2002) by S.I. 2001/3538, art. 2(1)(4)

Marginal Citations

[F71Sustainability disclosure requirementsU.K.

Textual Amendments

F71Ss. 416A, 416B and cross-heading inserted (1.1.2024) by Financial Services and Markets Act 2023 (c. 29), ss. 21(2), 86(3); S.I. 2023/1382, reg. 9(1)(a)

416ASDR policy statementU.K.

(1)The Treasury may prepare an SDR policy statement.

(2)An “SDR policy statement” is a statement of the policies of His Majesty’s Government concerning disclosure requirements in connection with matters relating to sustainability.

(3)In preparing an SDR policy statement, the Treasury must consult the regulators.

(4)The Treasury must publish any SDR policy statement in such manner as they consider appropriate.

(5)The Treasury—

(a)must keep any SDR policy statement under review;

(b)may prepare a revised statement (and subsections (3) and (4) apply in relation to any revised statement);

(c)may withdraw any SDR policy statement.

(6)The Treasury may request a regulator to provide them with a report on any matter that the Treasury require in connection with the preparation of an SDR policy statement.

(7)A request for a report under subsection (6)—

(a)must be made in writing, and

(b)may require a regulator to send the report to the Treasury within such reasonable period as may be specified in the request (or such other period as may be agreed).

(8)A regulator must comply with a request under subsection (6).

(9)Nothing in section 348, or in regulations made under section 349, is to be taken as preventing or restricting the ability of a regulator to disclose information to the Treasury for the purposes of this section.

(10)Subsection (9) does not apply in relation to information provided to a regulator by a regulatory authority outside the United Kingdom.

416BFCA and PRA rules etcU.K.

(1)When making rules or issuing guidance in connection with disclosure concerning matters relating to sustainability, a regulator must have regard to any SDR policy statement (within the meaning of section 416A) that the Treasury have published and not withdrawn.

(2)For the purposes of this section, matters relating to sustainability include matters relating to—

(a)the environment, including climate change,

(b)social, community and human rights issues,

(c)tackling corruption and bribery, and

(d)governance, so far as relevant to matters within paragraphs (a) to (c).]