The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) (Amendment) (No. 2) Regulations 2003

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) (Amendment) Regulations 2003 (S.I. 2003/1092) (“the revoked regulations”), which amended the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 (S.I. 2001/2188) (“the principal regulations”). The amendments to the principal regulations made by these Regulations replace, and are in substance identical to, those made by the revoked regulations. The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) (Amendment) Regulations 2003 (S.I. 2001/693) (which also amend the principal regulations) are not affected by these Regulations.

The purpose of these Regulations is to correct two errors in the revoked regulations. First, the title to the revoked regulations was identical to that of S.I. 2003/693, which amended the principal regulations earlier in the year. The term “(No. 2)” was inadvertently omitted from the title. Second, the provision numbered “12B”, inserted by the revoked regulations into the principal regulations, should have been numbered “12C”, as a regulation 12B had already been inserted into the principal regulations by the Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1755).

The amendments to the principal regulations originally enacted by the revoked regulations and re-enacted with corrections by these Regulations allow for the disclosure of certain confidential information by primary recipients as defined in section 348(5) of the Financial Services and Markets Act 2000 (“FMSA”)) and persons obtaining such information directly or indirectly from such recipients (hereafter collectively referred to as “primary recipients”), for the purposes of certain proceedings under the Proceeds of Crime Act 2002 (“POCA”) and to persons performing certain functions under that Act.

The principal regulations define the circumstances in which primary recipients are permitted to disclose “confidential information” as defined in section 348(2) of FSMA. The amendments re-enacted by these Regulations permit those recipients to disclose such information for the purposes of confiscation proceedings under Part 2, 3 or 4 of POCA.

In addition, the amendments permit confidential information which is “single market directive information” within the meaning of the principal regulations to be disclosed by primary recipients to persons upon whom functions are conferred by or under Part 2, 3 or 4 of POCA, for the purpose of enabling or assisting those persons to perform those functions.

In relation to information which is not “single market directive information” within the meaning of the principal regulations, the amendments permit disclosure by primary recipients for the purposes of any proceedings under POCA which have, or may be initiated. The amendments also permit such information to be disclosed by primary recipients to persons upon whom any functions are conferred by or under POCA, for the purpose of enabling or assisting those persons to perform those functions.