Financial Services and Markets Act 2000 (c. 8)

(The document as of February, 2008)

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(a) the period within which the decision to make to the order may be referred to the Tribunal has expired and no such reference has been made; or

(b) if such a reference has been made, the reference has been determined.

332 Rules in relation to persons to whom the general prohibition does not apply

(1) The Authority may make rules applicable to persons to whom, as a result of section 327(1), the general prohibition does not apply.

(2) The power conferred by subsection (1) is to be exercised for the purpose of ensuring that clients are aware that such persons are not authorised persons.

(3) A designated professional body must make rules--

(a) applicable to members of the profession in relation to which it is established who are not authorised persons; and

(b) governing the carrying on by those members of regulated activities (other than regulated activities in relation to which they are exempt persons).

(4) Rules made in compliance with subsection (3) must be designed to secure that, in providing a particular professional service to a particular client, the member carries on only regulated activities which arise out of, or are complementary to, the provision by him of that service to that client.

(5) Rules made by a designated professional body under subsection (3) require the approval of the Authority.

333 False claims to be a person to whom the general prohibition does not apply

(1) A person who--

(a) describes himself (in whatever terms) as a person to whom the general prohibition does not apply, in relation to a particular regulated activity, as a result of this Part, or

(b) behaves, or otherwise holds himself out, in a manner which indicates (or which is reasonably likely to be understood as indicating) that he is such a person,

is guilty of an offence if he is not such a person.

(2) In proceedings for an offence under this section it is a defence for the accused to show that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.

(4) But where the conduct constituting the offence involved or included the public display of any material, the maximum fine for the offence is level 5 on the standard scale multiplied by the number of days for which the display continued.

Part XXI Mutual Societies

Friendly societies

334 The Friendly Societies Commission

(1) The Treasury may by order provide--

(a) for any functions of the Friendly Societies Commission to be transferred to the Authority;

(b) for any functions of the Friendly Societies Commission which have not been, or are not being, transferred to the Authority to be transferred to the Treasury.

(2) If the Treasury consider it appropriate to do so, they may by order provide for the Friendly Societies Commission to cease to exist on a day specified in or determined in accordance with the order.

(3) The enactments relating to friendly societies which are mentioned in Part I of Schedule 18 are amended as set out in that Part.

(4) Part II of Schedule 18--

(a) removes certain restrictions on the ability of incorporated friendly societies to form subsidiaries and control corporate bodies; and

(b) makes connected amendments.

335 The Registry of Friendly Societies

(1) The Treasury may by order provide--

(a) for any functions of the Chief Registrar of Friendly Societies, or of an assistant registrar of friendly societies for the central registration area, to be transferred to the Authority;

(b) for any of their functions which have not been, or are not being, transferred to the Authority to be transferred to the Treasury.

(2) The Treasury may by order provide--

(a) for any functions of the central office of the registry of friendly societies to be transferred to the Authority;

(b) for any functions of that office which have not been, or are not being, transferred to the Authority to be transferred to the Treasury.

(3) The Treasury may by order provide--

(a) for any functions of the assistant registrar of friendly societies for Scotland to be transferred to the Authority;

(b) for any functions of the assistant registrar which have not been, or are not being, transferred to the Authority to be transferred to the Treasury.

(4) If the Treasury consider it appropriate to do so, they may by order provide for--

(a) the office of Chief Registrar of Friendly Societies,

(b) the office of assistant registrar of friendly societies for the central registration area,

(d) the office of assistant registrar of friendly societies for Scotland,

to cease to exist on a day specified in or determined in accordance with the order.

Building societies

336 The Building Societies Commission

(1) The Treasury may by order provide--

(a) for any functions of the Building Societies Commission to be transferred to the Authority;

(b) for any functions of the Building Societies Commission which have not been, or are not being, transferred to the Authority to be transferred to the Treasury.

(2) If the Treasury consider it appropriate to do so, they may by order provide for the Building Societies Commission to cease to exist on a day specified in or determined in accordance with the order.

(3) The enactments relating to building societies which are mentioned in Part III of Schedule 18 are amended as set out in that Part.

337 The Building Societies Investor Protection Board

The Treasury may by order provide for the Building Societies Investor Protection Board to cease to exist on a day specified in or determined in accordance with the order.

Industrial and provident societies and credit unions

338 Industrial and provident societies and credit unions

(1) The Treasury may by order provide for the transfer to the Authority of any functions conferred by--

(a) the [1965 c. 12.] Industrial and Provident Societies Act 1965;

(b) the [1967 c. 48.] Industrial and Provident Societies Act 1967;

(d) the [1975 c. 41.] Industrial and Provident Societies Act 1975;

(e) the [1978 c. 34.] Industrial and Provident Societies Act 1978;

(f) the [1979 c. 34.] Credit Unions Act 1979.

(2) The Treasury may by order provide for the transfer to the Treasury of any functions under those enactments which have not been, or are not being, transferred to the Authority.

(3) The enactments relating to industrial and provident societies which are mentioned in Part IV of Schedule 18 are amended as set out in that Part.

(4) The enactments relating to credit unions which are mentioned in Part V of Schedule 18 are amended as set out in that Part.

Supplemental

339 Supplemental provisions

(1) The additional powers conferred by section 428 on a person making an order under this Act include power for the Treasury, when making an order under section 334, 335, 336 or 338 which transfers functions, to include provision--

(a) for the transfer of any functions of a member of the body, or servant or agent of the body or person, whose functions are transferred by the order;

(b) for the transfer of any property, rights or liabilities held, enjoyed or incurred by any person in connection with transferred functions;

(c) for the carrying on and completion by or under the authority of the person to whom functions are transferred of any proceedings, investigations or other matters commenced, before the order takes effect, by or under the authority of the person from whom the functions are transferred;

(d) amending any enactment relating to transferred functions in connection with their exercise by, or under the authority of, the person to whom they are transferred;

(e) for the substitution of the person to whom functions are transferred for the person from whom they are transferred, in any instrument, contract or legal proceedings made or begun before the order takes effect.

(2) The additional powers conferred by section 428 on a person making an order under this Act include power for the Treasury, when making an order under section 334(2), 335(4), 336(2) or 337, to include provision--

(a) for the transfer of any property, rights or liabilities held, enjoyed or incurred by any person in connection with the office or body which ceases to have effect as a result of the order;

(b) for the carrying on and completion by or under the authority of such person as may be specified in the order of any proceedings, investigations or other matters commenced, before the order takes effect, by or under the authority of the person whose office, or the body which, ceases to exist as a result of the order;

(d) for the substitution of the Authority, the Treasury or such other body as may be specified in the order in any instrument, contract or legal proceedings made or begun before the order takes effect.

(3) On or after the making of an order under any of sections 334 to 338 ("the original order"), the Treasury may by order make any incidental, supplemental, consequential or transitional provision which they had power to include in the original order.

(4) A certificate issued by the Treasury that property vested in a person immediately before an order under this Part takes effect has been transferred as a result of the order is conclusive evidence of the transfer.

(5) Subsections (1) and (2) are not to be read as affecting in any way the powers conferred by section 428.

Part XXII Auditors and Actuaries

Appointment

340 Appointment

(1) Rules may require an authorised person, or an authorised person falling within a specified class--

(a) to appoint an auditor, or

(b) to appoint an actuary,

if he is not already under an obligation to do so imposed by another enactment.

(2) Rules may require an authorised person, or an authorised person falling within a specified class--

(a) to produce periodic financial reports; and

(b) to have them reported on by an auditor or an actuary.

(3) Rules may impose such other duties on auditors of, or actuaries acting for, authorised persons as may be specified.

(4) Rules under subsection (1) may make provision--

(a) specifying the manner in which and time within which an auditor or actuary is to be appointed;

(b) requiring the Authority to be notified of an appointment;

(d) as to remuneration;

(e) as to the term of office, removal and resignation of an auditor or actuary.

(5) An auditor or actuary appointed as a result of rules under subsection (1), or on whom duties are imposed by rules under subsection (3)--

(a) must act in accordance with such provision as may be made by rules; and

(b) is to have such powers in connection with the discharge of his functions as may be provided by rules.

(6) In subsections (1) to (3) "auditor" or "actuary" means an auditor, or actuary, who satisfies such requirements as to qualifications, experience and other matters (if any) as may be specified.

(7) "Specified" means specified in rules.

Information

341 Access to books etc

(1) An appointed auditor of, or an appointed actuary acting for, an authorised person--

(a) has a right of access at all times to the authorised person's books, accounts and vouchers; and

(b) is entitled to require from the authorised person's officers such information and explanations as he reasonably considers necessary for the performance of his duties as auditor or actuary.

(2) "Appointed" means appointed under or as a result of this Act.

342 Information given by auditor or actuary to the Authority

(1) This section applies to a person who is, or has been, an auditor of an authorised person appointed under or as a result of a statutory provision.

(2) This section also applies to a person who is, or has been, an actuary acting for an authorised person and appointed under or as a result of a statutory provision.

(3) An auditor or actuary does not contravene any duty to which he is subject merely because he gives to the Authority--

(a) information on a matter of which he has, or had, become aware in his capacity as auditor of, or actuary acting for, the authorised person, or

(b) his opinion on such a matter,

if he is acting in good faith and he reasonably believes that the information or opinion is relevant to any functions of the Authority.

(4) Subsection (3) applies whether or not the auditor or actuary is responding to a request from the Authority.

(5) The Treasury may make regulations prescribing circumstances in which an auditor or actuary must communicate matters to the Authority as mentioned in subsection (3).

(6) It is the duty of an auditor or actuary to whom any such regulations apply to communicate a matter to the Authority in the circumstances prescribed by the regulations.

(7) The matters to be communicated to the Authority in accordance with the regulations may include matters relating to persons other than the authorised person concerned.

343 Information given by auditor or actuary to the Authority: persons with close links

(1) This section applies to a person who--

(a) is, or has been, an auditor of an authorised person appointed under or as a result of a statutory provision; and

(b) is, or has been, an auditor of a person ("CL") who has close links with the authorised person.

(2) This section also applies to a person who--

(a) is, or has been, an actuary acting for an authorised person and appointed under or as a result of a statutory provision; and

(b) is, or has been, an actuary acting for a person ("CL") who has close links with the authorised person.

(3) An auditor or actuary does not contravene any duty to which he is subject merely because he gives to the Authority--

(a) information on a matter concerning the authorised person of which he has, or had, become aware in his capacity as auditor of, or actuary acting for, CL, or

(b) his opinion on such a matter,

if he is acting in good faith and he reasonably believes that the information or opinion is relevant to any functions of the Authority.

(4) Subsection (3) applies whether or not the auditor or actuary is responding to a request from the Authority.

(5) The Treasury may make regulations prescribing circumstances in which an auditor or actuary must communicate matters to the Authority as mentioned in subsection (3).

(6) It is the duty of an auditor or actuary to whom any such regulations apply to communicate a matter to the Authority in the circumstances prescribed by the regulations.

(7) The matters to be communicated to the Authority in accordance with the regulations may include matters relating to persons other than the authorised person concerned.

(8) CL has close links with the authorised person concerned ("A") if CL is--

(a) a parent undertaking of A;

(b) a subsidiary undertaking of A;

(d) a subsidiary undertaking of a parent undertaking of A.

(9) "Subsidiary undertaking" includes all the instances mentioned in Article 1(1) and (2) of the Seventh Company Law Directive in which an entity may be a subsidiary of an undertaking.

344 Duty of auditor or actuary resigning etc. to give notice

(1) This section applies to an auditor or actuary to whom section 342 applies.

(2) He must without delay notify the Authority if he--

(a) is removed from office by an authorised person;

(b) resigns before the expiry of his term of office with such a person; or

(3) If he ceases to be an auditor of, or actuary acting for, such a person, he must without delay notify the Authority--

(a) of any matter connected with his so ceasing which he thinks ought to be drawn to the Authority's attention; or

(b) that there is no such matter.

Disqualification

345 Disqualification

(1) If it appears to the Authority that an auditor or actuary to whom section 342 applies has failed to comply with a duty imposed on him under this Act, it may disqualify him from being the auditor of, or (as the case may be) from acting as an actuary for, any authorised person or any particular class of authorised person.

(2) If the Authority proposes to disqualify a person under this section it must give him a warning notice.

(3) If it decides to disqualify him it must give him a decision notice.

(4) The Authority may remove any disqualification imposed under this section if satisfied that the disqualified person will in future comply with the duty in question.

(5) A person who has been disqualified under this section may refer the matter to the Tribunal.

Offence

346 Provision of false or misleading information to auditor or actuary

(1) An authorised person who knowingly or recklessly gives an appointed auditor or actuary information which is false or misleading in a material particular is guilty of an offence and liable--

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(2) Subsection (1) applies equally to an officer, controller or manager of an authorised person.

(3) "Appointed" means appointed under or as a result of this Act.

Part XXIII Public Record, Disclosure of Information and Co-operation

The public record

347 The record of authorised persons etc

(1) The Authority must maintain a record of every--

(a) person who appears to the Authority to be an authorised person;

(b) authorised unit trust scheme;

(d) recognised scheme;

(e) recognised investment exchange;

(f) recognised clearing house;

(g) individual to whom a prohibition order relates;

(h) approved person; and

(i) person falling within such other class (if any) as the Authority may determine.

(2) The record must include such information as the Authority considers appropriate and at least the following information--

(a) in the case of a person appearing to the Authority to be an authorised person--

(i) information as to the services which he holds himself out as able to provide; and

(ii) any address of which the Authority is aware at which a notice or other document may be served on him;

(b) in the case of an authorised unit trust scheme, the name and address of the manager and trustee of the scheme;

(i) the company;

(ii) if it has only one director, the director; and

(iii) its depositary (if any);

(d) in the case of a recognised scheme, the name and address of--

(i) the operator of the scheme; and

(ii) any representative of the operator in the United Kingdom;

(e) in the case of a recognised investment exchange or recognised clearing house, the name and address of the exchange or clearing house;

(f) in the case of an individual to whom a prohibition order relates--

(i) his name; and

(ii) details of the effect of the order;

(g) in the case of a person who is an approved person--

(i) his name;

(ii) the name of the relevant authorised person;

(iii) if the approved person is performing a controlled function under an arrangement with a contractor of the relevant authorised person, the name of the contractor.

(3) If it appears to the Authority that a person in respect of whom there is an entry in the record as a result of one of the paragraphs of subsection (1) has ceased to be a person to whom that paragraph applies, the Authority may remove the entry from the record.

(4) But if the Authority decides not to remove the entry, it must--

(a) make a note to that effect in the record; and

(b) state why it considers that the person has ceased to be a person to whom that paragraph applies.

(5) The Authority must--

(a) make the record available for inspection by members of the public in a legible form at such times and in such place or places as the Authority may determine; and

(b) provide a certified copy of the record, or any part of it, to any person who asks for it--

(i) on payment of the fee (if any) fixed by the Authority; and

(ii) in a form (either written or electronic) in which it is legible to the person asking for it.

(6) The Authority may--

(a) publish the record, or any part of it;

(b) exploit commercially the information contained in the record, or any part of that information.

(7) "Authorised unit trust scheme", "authorised open-ended investment company" and "recognised scheme" have the same meaning as in Part XVII, and associated expressions are to be read accordingly.

(8) "Approved person" means a person in relation to whom the Authority has given its approval under section 59 and "controlled function" and "arrangement" have the same meaning as in that section.

(9) "Relevant authorised person" has the meaning given in section 66.

Disclosure of information

348 Restrictions on disclosure of confidential information by Authority etc

(1) Confidential information must not be disclosed by a primary recipient, or by any person obtaining the information directly or indirectly from a primary recipient, without the consent of--

(a) the person from whom the primary recipient obtained the information; and

(b) if different, the person to whom it relates.

(2) In this Part "confidential information" means information which--

(a) relates to the business or other affairs of any person;

(b) was received by the primary recipient for the purposes of, or in the discharge of, any functions of the Authority, the competent authority for the purposes of Part VI or the Secretary of State under any provision made by or under this Act; and

(3) It is immaterial for the purposes of subsection (2) whether or not the information was received--

(a) by virtue of a requirement to provide it imposed by or under this Act;

(b) for other purposes as well as purposes mentioned in that subsection.

(4) Information is not confidential information if--

(a) it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by this section; or

(b) it is in the form of a summary or collection of information so framed that it is not possible to ascertain from it information relating to any particular person.

(5) Each of the following is a primary recipient for the purposes of this Part--

(a) the Authority;

(b) any person exercising functions conferred by Part VI on the competent authority;

(d) a person appointed to make a report under section 166;

(e) any person who is or has been employed by a person mentioned in paragraphs (a) to (c);

(f) any auditor or expert instructed by a person mentioned in those paragraphs.

(6) In subsection (5)(f) "expert" includes--

(a) a competent person appointed by the competent authority under section 97;

(b) a competent person appointed by the Authority or the Secretary of State to conduct an investigation under Part XI;

349 Exceptions from section 348

(1) Section 348 does not prevent a disclosure of confidential information which is--

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