2004 No. 355

FINANCIAL SERVICES AND MARKETS

The Financial Services and Markets Act 2000 (Consequential Amendments) Order 2004

Made11th February 2004

Laid before Parliament12th February 2004

Coming into force4th March 2004

The Treasury, in exercise of the powers conferred on them by section 426 of the Financial Services and Markets Act 20001, hereby make the following Order:

Citation, commencement and interpretation1.

(1)

This Order may be cited as the Financial Services and Markets Act 2000 (Consequential Amendments) Order 2004 and comes into force on 4th March 2004.

(2)

In this Order “the 2001 Order” means the Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 20012.

The Companies Act 1985 (c. 6)

Meaning of ‘offer of securities to the public’2.

(1)

The Companies Act 1985 is amended as follows.

(2)

In subsection (1)(b) of section 81 (restriction on public offers by private company), for “sections 58 to 60” substitute “sections 58 and 742A”.

(3)

In subsection (1) of section 742A (meaning of “offer to the public”)3, for “or Part VII (accounts)” substitute “, Part 7 (accounts) or section 744 (general interpretation)”.

The Building Societies Act 1986 (c. 53)

Summary financial statement for members and depositors3.

In subsection (9)(b) of section 76 of the Building Societies Act 1986 (summary financial statement for members and depositors), for “subsection (8)(a)” substitute “subsection (8)”.

The Finance Act 1994 (c. 9)

Disclosure of information to the Authority4.

In Part 6 of Schedule 7 to the Finance Act 1994 (insurance premium tax), after paragraph 28A insert—

“28B.
(1)
Notwithstanding any obligation not to disclose information that would otherwise apply, the Commissioners may disclose information to the Financial Services Authority (“the Authority”) for the purpose of assisting the Authority in the performance of its functions.
(2)
Information that has been disclosed to the Authority pursuant to this paragraph shall not be disclosed by the Authority except for the purpose of any proceedings connected with the operation of any provision of, or made under, any enactment in relation to insurance or to tax.”.

The Pensions Act 1995 (c. 26)

Restriction on employer-related investments5.

(1)

Section 40 of the Pensions Act 1995 (restrictions on employer-related investments) has effect without the amendments made by article 141(3) of the 2001 Order, and instead section 40 is amended in accordance with paragraph (2).

(2)

After subsection (2) insert—

“(2A)
In the definition of “employer-related investments” in subsection (2) “securities” means—
(a)
shares,
(b)
instruments creating or acknowledging indebtedness,
(c)
instruments giving entitlements to investments,
(d)
certificates representing securities.
(2B)
Subsection (2A) must be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order made under that section, and
(c)
Schedule 2 to that Act.”.

The Public Offers of Securities Regulations 1995 (S.I.1995/1537)

Exemption for offers to qualifying persons6.

(1)

In sub-paragraph (o)(i) of regulation 7(2) of the Public Offers of Securities Regulations 1995 (exemptions) for “a member of the same group as the issuer” substitute “a body corporate connected with the issuer”.

(2)

In paragraph (13) of that regulation4—

(a)

the definition of “group” is revoked, and

(b)

before the definition of “a relevant trustee” insert—

“a body corporate is “connected with” another body corporate if—
(a)
they are in the same group, within the meaning of section 421 of the Act, or
(b)
one is entitled, either alone or with any other body corporate in the same group, to exercise or control the exercise of a majority of the voting rights attributable to the share capital which are exercisable in all circumstances at any general meeting of the other body corporate or its holding company; and”.

Meaning of “the UK authority”7.

In paragraph 1(b) of Schedule 4 to the Public Offers of Securities Regulations 1995 (mutual recognition of prospectuses and listing particulars), for “Part IV” substitute “Part 6”.

The Limited Liability Partnerships Regulations 2001 (S.I.2001/1090)

Amendment of modifications to Part 7 of the Companies Act 19858.

(1)

In the Limited Liability Partnerships Regulations 2001, Schedule 1 (modifications to provisions of Part 7 of the Companies Act 1985 applied by those Regulations) is amended as follows.

(2)

In the entry relating to section 247A of the Companies Act 1985 (“the Act”), for the modification to subsection (1)5 substitute—

“For paragraph (a) of subsection (1) substitute the following—
(a)
the limited liability partnership is, or was at any time within the financial year to which the accounts relate, a person (other than a banking limited liability partnership) who has permission under Part 4 of the Financial Services and Markets Act 2000 to carry on one or more regulated activities;”.”.

(3)

In the entry relating to section 249AA of the Act, for the modification to subsection (3)6 substitute—

“For subsection (3) substitute the following—
“(3)
Subsection (1) does not apply if at any time in the financial year in question the limited liability partnership was a person (other than a banking limited liability partnership) who has permission under Part 4 of the Financial Services and Markets Act 2000 to carry on one or more regulated activities.”.

(4)

In the entry relating to section 249B of the Act, for the modifications to subsection (1) substitute—

“(a)
omit the words “or (2)” and paragraphs (a) and (bb), and
(b)
in paragraph (b), after “it was a person” insert “(other than a banking limited liability partnership)”.”.

(5)

In the entry relating to section 262 of the Act—

(a)

in paragraph (b) of the modification to subsection (1)—

(i)

for “definition” substitute “definitions”, and

(ii)

before the definition of “limited liability partnership” insert—

““banking limited liability partnership” means a limited liability partnership which has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits (but does not include such a partnership which has permission to accept deposits only for the purpose of carrying on another regulated activity in accordance with that permission);”; and

(b)

after the entry relating to subsection (2) insert—

“subsection (3)
Insert the following subsection after subsection (3)—
“(3A)
The definition of banking limited liability partnership in subsection (1) must be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act.”.

(6)

In the entry relating to section 262A of the Act, in paragraph (b) of the modifications to that section—

(i)

for “entry” substitute “entries”, and

(ii)

after “the appropriate place—” insert—

““banking limited liability partnership” section 262”.

Amendment to modifications of remainder of provisions of the Companies Act 19859.

(1)

In the Limited Liability Partnerships Regulations 2001, Schedule 2 (modifications to remainder of provisions of the Companies Act 1985 applied by those Regulations) is amended as follows.

(2)

In the entry relating to section 450 of the Companies Act 1985, for the modification to subsection (1)7 substitute—

“Omit subsection (1A).”.

(3)

In the entry relating to section 460 of that Act, omit the modification of subsection (1)8.

Amendment to modifications of provisions of the Insolvency Act 198610.

(1)

In the Limited Liability Partnerships Regulations 2001, Schedule 3 (modifications to the Insolvency Act 1986) is amended as follows.

(2)

In the entry relating to section 8—

(a)

the entry relating to subsection (1A) is revoked, and

(b)

after the entry relating to subsection (4), insert—

“subsection (5)9
Omit subsection (5).
subsection (6)10
Omit subsection (6).”

(3)

In the entry relating to section 124A, for the modification to subsection (1) substitute—

“Omit paragraphs (b) and (bb).”.

The Financial Services and Markets Act 2000 (Consequential Amendments) Order 2002 (S.I.2002/1555)

Revocation of provision11.

Article 58 of the Financial Services and Markets Act 2000 (Consequential Amendments) Order 2002 (winding-up on petition of the Authority: partnerships) is revoked, and the amendment of paragraph (5C)11 of Article 143 of the Insolvency (Northern Ireland) Order 1989 by that article is treated as if it had not been made.

NORTHERN IRELAND LEGISLATION

The Companies (Northern Ireland) Order 1986 (S.I.1986/1032 (N.I. 6))

Meaning of “offer of securities to the public”12.

(1)

The Companies (Northern Ireland) Order 1986 is amended as follows.

(2)

In paragraph (1) of Article 10A (meaning of “offer to the public”)12, before “Part V (alloment of shares and debentures)” insert “Article 2(3) (interpretation),”.

(3)

In paragraph (1)(b) of Article 91 (restriction on public offers by private company), for “Articles 68 to 70” substitute “Articles 68 and 10A”.

Provision for security of information obtained13.

(1)

Sub-paragraphs (c) and (d) of Article 442(1) of the Companies (Northern Ireland) Order 1986 (“the 1986 Order”) have effect without the amendments made by article 62(2) of the 2001 Order, and instead sub-paragraph (c) is amended in accordance with paragraph (2).

(2)

In sub-paragraph (c), the words “section 94 or 177 of the Financial Services Act 1986” are repealed.

(3)

The amendment made to sub-paragraph (d) of Article 442(1) of the 1986 Order by article 62(5) of the 2001 Order is treated as if it had not been made.

(4)

In sub-paragraph (dd) of article 442(1) of the 1986 Order, for “the Insurance Companies Act 1982, or the Financial Services Act 1986,” substitute “or the Financial Services and Markets Act 2000,”.

(5)

The provisions substituted for sub-paragraphs (fa) to (i) of Article 442(1) of the 1986 Order by Article 62(6) of the 2001 Order are treated as if they had not been substituted for sub-paragraphs (fa) to (i), and instead are substituted for sub-paragraphs (fa) to (h) of Article 442(1) of the 1986 Order.

(6)

Paragraph (3)(b) of Article 442 of the 1986 Order has effect without the amendment made by Article 62(9) of the 2001 Order, and instead paragraph (3)(b) is amended in accordance with paragraph (7).

(7)

In paragraph (3)(b) of Article 442 of the 1986 Order, the words “or section 94 or 177 of the Financial Services Act 1986” are repealed.

The Insolvency (Northern Ireland) Order 1989 (S.I.1989/2405 (N.I. 19))

Limitation on power to make an administration order14.

(1)

The substitution of sub-paragraph (a) of Article 21(5) of the Insolvency (Northern Ireland) Order 198913 by article 57 of the Financial Services and Markets Act 2000 (Consequential Amendments) Order 2002 (limitation of power to make an administration order)14 is treated as if it had not been made, and instead that sub-paragraph is substituted in accordance with paragraph (2).

(2)

For sub-paragraph (a) substitute—

“(a)
it effects or carries out contracts of insurance, but is not—
(i)
exempt from the general prohibition, within the meaning of section 19 of the Financial Services and Markets Act 2000, in relation to effecting or carrying out contracts of insurance, or
(ii)
an authorised deposit taker within the meaning given by paragraph (1B), and effecting or carrying out contracts of insurance in the course of a banking business;”.

Power to apply Parts 2 to 7 to formerly authorised banks15.

(1)

The amendments made to the cross-heading to Article 366 of the Insolvency (Northern Ireland) Order 1989 by article 59(2) of the Financial Services and Markets Act 2000 (Consequential Amendments) Order 2002 (power to apply Parts 2 to 7 to formerly authorised banks)15 is treated as if it had not been made, and instead that cross heading is amended in accordance with paragraph (2).

(2)

For the cross heading to that Article substitute “Formerly authorised banks”.

(3)

In paragraph (1) of that Article16, for “any company” substitute “any person”.

The Banks (Administration Proceedings) Order (Northern Ireland) 1991 (S.R. (NI) 1991/295)

Application of Part III of the 1989 Order to former authorised institutions16.

In the Banks (Administration Proceedings) Order (Northern Ireland) 1991, for the cross heading to Article 3 (application of the 1989 Order with modifications to banks) substitute—

“Application of the 1989 Order with modifications to former authorised institutions”.

The Insolvency Rules (Northern Ireland) 1991 (S.R. 1991 No. 364)

Interpretation of “deposit-taker”17.

(1)

The Insolvency Rules (Northern Ireland) 1991 are amended as follows.

(2)

In Rule 0.2 of those Rules (interpretation), insert the following in the appropriate places—

““authorised deposit-taker” means a person with permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits, and this definition must be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act;”; and

““former authorised deposit-taker” means a person who—
(a)
is not an authorised deposit-taker,
(b)
was formerly an authorised institution under the Banking Act 198717, or a recognised bank or a licensed institution under the Banking Act 197918, and
(c)
continues to have liability in respect of any deposit for which it had a liability at a time when it was an authorised institution, recognised bank or licensed institution,
and in this definition references to a “deposit” must be read with section 22 of the Financial Services and Markets Act 2000, any relevant order made under that section, and Schedule 2 to that Act;”.

Authorised deposit-takers and former authorised deposit-takers18.

(1)

In rule 2.08 of those Rules (manner in which service to be effected), for paragraph (5)(a) substitute—

“(a)
is an authorised deposit-taker or former authorised deposit-taker,”.

(2)

In rule 4.001 (voluntary winding up; winding up by the court), in paragraph (1)(b)19 for “authorised institutions or former authorised institutions within the meaning of the Banking Act 1987” substitute “authorised deposit-takers or former authorised deposit-takers”.

(3)

In rule 4.007 (presentation and filing of petition), in paragraph (4)(f)20 for “an authorised institution or former authorised institution within the meaning of the Banking Act 1987” substitute “an authorised deposit-taker or a former authorised deposit-taker”.

(4)

In rule 4.055 (first meetings (No CVL Application)), in paragraph (8) for “an authorised institution or former authorised institution within the meaning of the Banking Act 1987” substitute “an authorised deposit-taker or a former authorised deposit-taker”.

(5)

In rule 4.056 (first meeting of creditors (CVL)), in paragraph (3) for “an authorised institution or former authorised institution within the meaning of the Banking Act 1987” substitute “an authorised deposit-taker or a former authorised deposit-taker”.

(6)

In rule 4.078 (additional provisions as regards certain meetings), in paragraph (1) for “an authorised institution or former authorised institution within the meaning of the Banking Act 1987” substitute “an authorised deposit-taker or a former authorised deposit-taker”.

The Scheme Manager of the Financial Services Compensation Scheme19.

(1)

In rule 4.001 of those Rules (voluntary winding up; winding up by the court), in paragraph (1)(b), for “Deposit Protection Board” substitute “the scheme manager”.

(2)

In rule 4.078 (additional provisions as regards certain meetings)—

(a)

In paragraph (2)21 for “to the Deposit Protection Board” substitute “to the scheme manager established under section 212(1) of the Financial Services and Markets Act 2000”, and

(b)

in paragraphs (3), (4), (5), (6) and (7) for “the Board” substitute “the scheme manager”.

(3)

In Schedule 1 (Deposit Protection Board’s Voting Rights) for “Deposit Protection Board” or “Board” wherever occurring, substitute “scheme manager”.

Additional creditor members20.

In rule 4.160 of those Rules (membership of committee), for paragraph (7) substitute—

“(7)
The following categories of person are to be regarded as additional creditor members —
(a)
a representative of the Financial Services Authority who exercises the right under section 371(4)(b) of the Financial Services and Markets Act 2000 to be a member of the committee;
(b)
a representative of the scheme manager who exercises the right under section 215(4) of that Act to be a member of the committee.”.

Debts not provable unless all other claims have been paid in full21.

In rule 12.03 of those Rules (provable debts), for sub-paragraphs (a) and (b) of paragraph (4) substitute—

“(a)
in a winding up or a bankruptcy, any claim arising by virtue of section 382(1)(a) of the Financial Services and Markets Act 2000, not being a claim also arising by virtue of section 382(1)(b) of that Act;”.

The Insolvent Partnerships Order (Northern Ireland) 1995 (S.R. 1995 No. 225)

Supplementary powers of the court: winding up of insolvent partnerships22.

In paragraph (1) of Article 15 of the Insolvent Partnerships Order (Northern Ireland) 1995 (supplemental powers of the court), for the text of paragraph (5C) of Article 143 of the Insolvency (Northern Ireland) Order 1989 (as that Article is modified by paragraph (1)), substitute—

“(5C)
Where the High Court makes an order for the winding up of an insolvent partnership under—
(a)
section 73(1)(a) of the Financial Services Act 198622;
(b)
section 92(3)(a) of the Banking Act 198723; or
(c)
section 367(3) of the Financial Services and Markets Act 2000,
the Court may make an order as to the future conduct of the winding up proceedings, and any such order may apply any provisions of the Insolvent Partnerships Order (Northern Ireland) 1995 with any necessary modifications.”.

Partnerships which are authorised persons: administration orders23.

(1)

In paragraph 2 of Schedule 2 to the Insolvent Partnerships Order (Northern Ireland) 1995 (modified provisions of Part III of the Order), in the text of Article 21(1)(a) of the Insolvency (Northern Ireland) Order 1989 (as modified by that paragraph) after “or 188” insert “or paragraph (1A)”.

(2)

In that paragraph, after the text of Article 21(1) of the Insolvency (Northern Ireland) Order 1989 (as modified by that paragraph) insert—

“(1A)
An authorised deposit-taker which defaults on an obligation to pay any sum due and payable in respect of a relevant deposit is deemed to be unable to pay its debts.
(1B)
In paragraph (1A)—
(a)
“authorised deposit taker” means a person (being a partnership) who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits, other than a person who has such permission only for the purpose of carrying on another regulated activity in accordance with that permission; and
(b)
“relevant deposit” must be read with—
(i)
section 22 of the Financial Services and Markets Act 2000,
(ii)
any relevant order under that section, and
(iii)
Schedule 2 to that Act,
but any restriction on the meaning of deposit which arises from the identity of the person making it is to be disregarded.”.

(3)

In that paragraph, for the text of Article 21(4) of the Insolvency (Northern Ireland) Order 1989 (as modified by that paragraph) substitute—

“(4)
An administration order shall not be made in relation to a partnership after an order has been made for it to be wound up by the court as an unregistered company, nor after an order has been made in relation to it by virtue of Article 11 of the Insolvent Partnerships Order (Northern Ireland) 1995.
(4A)
An administration order shall not be made against a partnership if—
(a)
it has permission under Part 4 of the Financial Services and Markets Act 2000 to effect or carry out contracts of insurance in the United Kingdom;
(b)
it continues to have a liability in respect of a deposit which was held by it in accordance with the Banking Act 1979 or the Banking Act 1987, but is not an authorised deposit taker, within the meaning given by paragraph (1B).
(4B)
The definition of “authorised deposit taker” in paragraph (1B)(a) and paragraph (4A)(b) must be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act.”.

Authorised deposit takers and former authorised institutions: restriction on presentation of bankruptcy petition by partners24.

(1)

In paragraph 3 of Schedule 7 to the Insolvent Partnerships Order (Northern Ireland) 1995 (provisions of the Order which apply with modifications for the purposes of Article 11 where joint bankruptcy petition is presented by individual members without winding up partnership as unregistered company), in the text of Article 238(2) of the Insolvency (Northern Ireland) Order 1989 (as modified by that paragraph), for “which is an authorised institution or former authorised institution within the meaning of the Banking Act 1987” substitute—

“if the partnership—
(a)
has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits, other than such a permission only for the purpose of carrying on another regulated activity in accordance with that permission, or
(b)
continues to have a liability in respect of a deposit which was held by it in accordance with the Banking Act 1979 or the Banking Act 1987.”.

(2)

In that paragraph, in the text of Article 238 of the Insolvency (Northern Ireland) Order 1989 (as modified by that paragraph), after sub-paragraph (2) insert—

“(2A)
Paragraph (2)(a) must be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act.”.

Disqualification of a member of an insolvent partnership after investigation25.

In Schedule 8 to the Insolvent Partnerships Order (Northern Ireland) 1995 (provisions of Part II of the Companies (Northern Ireland) Order 1989 which apply with modifications for the purposes of Article 16), for the text of paragraphs (1) and (2) of Article 11 of the Companies (Northern Ireland) Order 1989 (as modified by that paragraph) substitute—

“(1)
If it appears to the Department from—
(a)
a report made by an inspector or person appointed to conduct an investigation under a provision mentioned in paragraph (1A), or
(b)
information or documents obtained under a provision mentioned in paragraph (1B),
that it is expedient in the public interest that a disqualification order should be made against any person who is or has been an officer of an insolvent partnership, it may apply to the High Court for such an order to be made against that person.
(2)
The provisions are—
(a)
Article 430 of the Companies Order,
(b)
section 167, 168, 169(1)(b) or 284 of the Financial Services and Markets Act 2000, or
(c)
regulations made as a result of section 262(2)(k) of that Act.
(2A)
The provisions are—
(a)
Articles 440 or 441 of the Companies Order,
(b)
section 2 of the Criminal Justice Act 198724,
(c)
section 28 of the Criminal Law (Consolidation) (Scotland) Act 199525,
(d)
section 83 of the Companies Act 198926, or
(e)
section 171 or 173 of the Financial Services and Markets Act 2000.”.

The Pensions (Northern Ireland) Order 1995 (S.I.1995/3213 (N.I. 22))

Restriction on employer-related investments26.

(1)

Article 40 of the Pensions (Northern Ireland) Order 1995 (employer-related investments) has effect without the amendments made by article 152(3) of the 2001 Order, and instead Article 40 is amended in accordance with paragraph (2).

(2)

After paragraph (2) insert—

“(2A)
In the definition of “employer-related investments” in paragraph (2), “securities” means—
(a)
shares,
(b)
instruments creating or acknowledging indebtedness,
(c)
instruments giving entitlements to investments,
(d)
certificates representing securities.
(2B)
Paragraph (2A) must be read with—
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order made under that section, and
(c)
Schedule 2 to that Act.”.

The Insolvency Regulations (Northern Ireland) 1996 (S.R. 1996 No.574)

Interpretation of the 1996 Regulations27.

In paragraph (1) of regulation 3 of the Insolvency Regulations (Northern Ireland) 1996 (interpretation and application), for the definition of “bank” substitute—

““bank” means—
(a)
a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits, or
(b)
an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act, which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) to accept deposits;”.

Nick Ainger

Joan Ryan

Two of the Lords Commissioners of Her Majesty’s Treasury

11th February 2004

(This note does not form part of the Order)

This Order is supplementary to—

the Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001 (S.I. 2001/3649) (“the principal order”) which came into force on 1st December 2001 at the same time as the coming into force of the Financial Services and Markets Act 2000 (c. 8) (“FSMA”); and
the Financial Services and Markets Act 2000 (Consequential Amendments) Order 2002 (S.I. 2002/1555) which came into force on 3rd July 2002.

This Order corrects or adjusts amendments made in those two orders, and makes additional amendments which are consequential upon the repeal by article 3 of the principal order of the legislation which established the regulatory regimes which have been replaced by FSMA.

Articles 2 to 5 make amendments to primary legislation, including a rectification to an amendment of section 40 of the Pensions Act 1995 (c. 26) made by the principal order.

Articles 6 to 11 amend secondary legislation, including amendments to the Schedules to the Limited Liability Partnerships Regulations 2001 which apply, with appropriate modifications, provisions of the Companies Act 1985 and the Insolvency Act 1986 to limited liability partnerships. These amendments reflect amendments made to the Companies Act and the Insolvency Act by the principal order.

Articles 12 to 27 amend Northern Ireland legislation.

“subsection (5)9	Omit subsection (5).
subsection (6)10	Omit subsection (6).”