C17C16C15C20F1PART 9ARules and Guidance
Pt. 9A applied (with modifications) (31.12.2020) by The Transparency of Securities Financing Transactions and of Reuse (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/542), regs. 1, 35 (as amended by S.I. 2020/1385, regs. 1(4), 56(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (31.12.2020) by The Solvency 2 and Insurance (Amendment, etc.) (EU Exit) Regulations 2019 (S.I. 2019/407), regs. 1(2), 4, Sch. 3 (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 27(a) and S.I. 2020/1385, regs. 1(2), 54(2))
Pt. 9A applied (with modifications) (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 74 (as amended by S.I. 2020/1385, regs. 1(4), 52(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49A(12) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
C10C9C19C18C17C16C15C21C20C24CHAPTER 2Rules: modification, waiver, contravention and procedural provisions
Pt. 9A Ch. 2 applied (with modifications) by S.I. 2011/99, Sch. 3 para. 2A(2)(3) (as inserted (13.8.2017 for specified purposes, 13.10.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(c)(iii)(3)(f)(i)(6), Sch. 8 para. 5(31)(a) (with reg. 3) and as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 2(3)(a)(iii)-(v))
Pt. 9A Ch. 2 applied (with modifications) (13.8.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(b)(ii)(6), Sch. 6 para. 3(2) (with reg. 3) (as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 4(5)(a)(iii))
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 209(6) (with reg. 209(7)); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 208(7) (with reg. 208(8)); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A Ch. 2 applied in part (1.7.2021) by Regulation (EU) No. 600/2014, Art. 50D (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 12 (with Sch. 10 para. 13); S.I. 2021/739, reg. 3(o))
Pt. 9A Ch. 2 applied in part (with modifications) (29.10.2024 for specified purposes) by S.I. 2017/701, reg. 15A (as inserted by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 2 para. 45 (with s. 2(3)); S.I. 2024/1071, reg. 3(c)(ii))
Procedural provisions
C3C5C7C6C8C13C12C11C19C18C14C17C16C15C22C23138JConsultation by the PRA
1
Before making any rules, the PRA must—
a
consult the FCA, and
b
after doing so, publish a draft of the proposed rules in the way appearing to the PRA to be best calculated to bring them to the attention of the public.
2
The draft must be accompanied by—
b
an explanation of the purpose of the proposed rules,
F5ba
an explanation of the ways in which having regard to specified matters under section 138EA(2) has affected the proposed rules,
c
any statement prepared under section 138K(2),
d
an explanation of the PRA's reasons for believing that making the proposed rules is compatible with its duties under—
i
section 2B(1) or, as the case requires, section 2C(1) or 2D(3), and
ii
section 2H, and
e
notice that representations about the proposals may be made to the PRA within a specified time.
3
Before making the proposed rules, the PRA must have regard to any representations made to it in accordance with subsection (2)(e).
4
If the PRA makes the proposed rules, it must publish an account, in general terms, of—
a
the representations made to it in accordance with subsection (2)(e), and
b
its response to them.
F64A
The PRA must include, in the account mentioned in subsection (4), a list of the respondents who made the representations, where those respondents have consented to the publication of their names.
4B
The duty in subsection (4A) is not to be read as authorising or requiring such processing of personal data as would contravene the data protection legislation (but the duty is to be taken into account in determining whether particular processing of data would contravene that legislation).
4C
For the purposes of this section, the exemption relating to functions conferred on the PRA mentioned in paragraph 9 of Schedule 2 to the Data Protection Act 2018 (exemption from application of listed GDPR provisions) does not apply.
4D
Where representations are made to the PRA by a Committee of the House of Commons or the House of Lords or a Joint Committee of both Houses in accordance with subsection (2)(e), the PRA’s account mentioned in subsection (4) must also describe how the PRA has considered the representations made by that Committee in making the proposed rules.
5
If the rules differ from the draft published under subsection (1)(b) in a way which is, in the opinion of the PRA, significant the PRA must publish—
C1a
details of the difference (in addition to complying with subsection (4)) together with a cost benefit analysis, and
b
any statement prepared under section 138K(4).
6
The requirements to carry out a cost benefit analysis under this section do not apply in relation to rules made under—
a
section 136(2);
b
subsection (1) of section 213 as a result of subsection (4) of that section;
c
section 234;
d
paragraph 31 of Schedule 1ZB;
F2e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
“Cost benefit analysis” means—
a
an analysis of the costs together with an analysis of the benefits that will arise—
i
if the proposed rules are made, or
ii
if subsection (5) applies, from the rules that have been made, and
b
subject to subsection (8), an estimate of those costs and of those benefits.
8
If, in the opinion of the PRA—
a
the costs or benefits referred to in subsection (7) cannot reasonably be estimated, or
b
it is not reasonably practicable to produce an estimate,
the cost benefit analysis need not estimate them, but must include a statement of the PRA's opinion and an explanation of it.
F48A
The requirement to provide the explanation referred to in subsection (2)(ba) does not apply in relation to any rules if—
a
the PRA considers that the delay involved in complying with that requirement would—
i
be prejudicial to the safety and soundness of PRA-authorised persons, or
ii
in a case where section 2C applies, be prejudicial to securing the appropriate degree of protection for policyholders, or
b
the rules change existing rules and the changes consist of, or include, changes which, in the PRA’s opinion, are not material.
8B
Where an explanation is not provided by virtue of subsection (8A)(b), the draft of the rules must be accompanied by a statement of the PRA’s opinion.
9
The PRA may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1)(b).
10
This section is subject to F3sections 138L and 144E(3).
Pt. 9A substituted for ss. 138-164 (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 24(1), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.