F1PART 2Regulatory Enforcement

Cases with more than one primary authority

29APrimary authority enforcement action inconsistent with another authority's advice etc

(1)

This section applies if—

(a)

a qualifying regulator nominated as a direct primary authority or a co-ordinated primary authority for the exercise of a function in relation to a person notifies the person, under section 25B(2)(a), of enforcement action that it proposes to take against the person pursuant to the function, and

(b)

within the referral period, the person notifies the primary authority that the person considers the action to be inconsistent with advice or guidance previously given (generally or specifically) by another qualifying regulator nominated as the primary authority for the exercise of the function in relation to the person.

(2)

Section 25C (but not section 29C) applies in relation to the proposed enforcement action as if the primary authority which gave the notification under section 25B(2)(a) were an enforcing authority under section 25C; and section 25B no longer applies in relation to the action.

(3)

“Referral period” in this section means the referral period mentioned in paragraph 5(2) of Schedule 4A (period in which the regulated person or the member may refer the proposed enforcement action to the Secretary of State).

29BConcurrent duties to notify primary authorities of enforcement action

(1)

This section applies if—

(a)

a qualifying regulator is nominated as a co-ordinated primary authority for the exercise of a function in relation to a person,

(b)

an enforcing authority proposes to take enforcement action against the person pursuant to the function, and

(c)

because of the nomination mentioned in paragraph (a), the enforcing authority is (ignoring this section) required under section 25C(2)(a) to notify the co-ordinated primary authority of the proposed enforcement action.

(2)

That requirement to notify the co-ordinated primary authority does not apply if condition A or B is met.

(3)

Condition A is that under section 25C(2)(a) the enforcing authority is required to notify another qualifying regulator of the proposed enforcement action because of that other qualifying regulator's nomination as a direct primary authority for the exercise of the function in relation to the person.

(4)

Condition B is that—

(a)

condition A is not met,

(b)

the enforcing authority is (ignoring this section) required under section 25C(2)(a) to notify at least one other qualifying regulator of the proposed enforcement action because of that other regulator's nomination as a co-ordinated primary authority for the exercise of the function in relation to the person, and

(c)

the enforcing authority has so notified that other regulator or (if there is more than one) it has so notified at least one of them.

29CEnforcement action notified to a primary authority inconsistent with another authority's advice etc

(1)

This section applies if—

(a)

a qualifying regulator is nominated as a direct primary authority or a co-ordinated primary authority for the exercise of a function in relation to a person,

(b)

that primary authority (“PA1”) is notified under section 25C(2)(a) of enforcement action that an enforcing authority proposes to take against the person pursuant to the function, and

(c)

PA1 decides not to give a direction under section 25C(4) directing the enforcing authority not to take the enforcement action, and does not refer the action to the Secretary of State under paragraph 4(1) of Schedule 4A.

(2)

PA1 must, within the relevant period, take reasonable steps to find out if—

(a)

another qualifying regulator nominated as the primary authority (“PA2”) for the exercise of the function in relation to the person has previously given advice or guidance (generally or specifically), and

(b)

the person considers the proposed enforcement action to be inconsistent with that advice or guidance.

(3)

If PA1 is of the view that such advice or guidance has previously been given and that the person considers the proposed enforcement action to be inconsistent with it, PA1 must—

(a)

refer the action to PA2, and

(b)

notify the enforcing authority and the person that it has done so.

(4)

If subsection (3) applies—

(a)

the reference of the proposed enforcement action by PA1 to PA2 under subsection (3)(a) is to be treated as a notification given by the enforcing authority to PA2 under section 25C(2)(a), and

(b)

accordingly, section 25C (but not this section) applies in relation to PA2 as the primary authority and ceases to apply in relation to PA1 as the primary authority.

(5)

“Relevant period” in this section has the same meaning as in section 25C (see subsection (9) of that section).

29DOverlapping inspection plans

(1)

This section applies if, in relation to an inspecting regulator, there is more than one relevant inspection plan in respect of the exercise of the same inspection function in relation to the same person.

(2)

An inspection plan is “relevant” in relation to an inspecting regulator if—

(a)

it is a plan made by it (as a primary authority) to which the Secretary of State has consented under section 26A(7), or

(b)

it is a plan notified to it (as an inspecting regulator) under section 26A(8)(b).

(3)

If—

(a)

the inspecting regulator is a direct primary authority for the exercise of the inspection function in relation to the person, and

(b)

there is a relevant inspection plan made by the regulator in relation to the exercise of the function in relation to the person,

section 26B(2) (duty of inspecting regulator to act in accordance with plans notified by the primary authority) does not apply in relation to the inspecting regulator by reason of it being notified of any other relevant inspection plan under section 26A(8)(b) in relation to the exercise of the function in relation to the person.

(4)

Subsection (5) applies if—

(a)

the inspecting regulator is a co-ordinated primary authority for the exercise of the inspection function in relation to the person, and

(b)

there is a relevant inspection plan which is made by a direct primary authority for the exercise of the function in relation to the person and notified to the inspecting regulator under section 26A(8)(b).

(5)

Where this subsection applies—

(a)

section 26B(1) (duty of primary authority to have regard to its own inspection plan) does not apply to the inspecting regulator (as primary authority) in relation to any relevant inspection plan made by it in respect of the exercise of the function in relation to the person;

(b)

in the application of section 26B(2) to the exercise of the function in relation to the person by the inspecting regulator, the reference to the inspection plan in that provision is to the plan mentioned in subsection (4)(b) only.

(6)

If—

(a)

the inspecting regulator is a co-ordinated primary authority for the exercise of the inspection function in relation to the person,

(b)

there is a relevant inspection plan made by the regulator in respect of the exercise of the function in relation to the person, and

(c)

subsection (5) does not apply,

section 26B(2) does not apply in relation to the exercise of the function by the inspecting regulator in relation to the person.

(7)

If none of subsections (3) to (6) apply, but more than one relevant inspection plan is notified to the inspecting regulator under section 26A(8)(b) in relation to the exercise of the inspection function in relation to the person, in section 26B(2) the reference to the plan is to be read—

(a)

if one of those plans is made by a direct primary authority for the exercise of the function in relation to the person, as a reference to that plan, and

(b)

otherwise, as a reference to any one of the plans notified to the regulator.