Financial Services and Markets Act 2000 (c. 8)

(The document as of February, 2008)

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

(a) made for the purpose of facilitating the carrying out of a public function; and

(b) permitted by regulations made by the Treasury under this section.

(2) The regulations may, in particular, make provision permitting the disclosure of confidential information or of confidential information of a prescribed kind--

(a) by prescribed recipients, or recipients of a prescribed description, to any person for the purpose of enabling or assisting the recipient to discharge prescribed public functions;

(b) by prescribed recipients, or recipients of a prescribed description, to prescribed persons, or persons of prescribed descriptions, for the purpose of enabling or assisting those persons to discharge prescribed public functions;

(d) by any recipient if the disclosure is with a view to or in connection with prescribed proceedings.

(3) The regulations may also include provision--

(a) making any permission to disclose confidential information subject to conditions (which may relate to the obtaining of consents or any other matter);

(b) restricting the uses to which confidential information disclosed under the regulations may be put.

(4) In relation to confidential information, each of the following is a "recipient"--

(a) a primary recipient;

(b) a person obtaining the information directly or indirectly from a primary recipient.

(5) "Public functions" includes--

(a) functions conferred by or in accordance with any provision contained in any enactment or subordinate legislation;

(b) functions conferred by or in accordance with any provision contained in the Community Treaties or any Community instrument;

(c) similar functions conferred on persons by or under provisions having effect as part of the law of a country or territory outside the United Kingdom;

(d) functions exercisable in relation to prescribed disciplinary proceedings.

(6) "Enactment" includes--

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation.

(7) "Subordinate legislation" has the meaning given in the [1978 c. 30.] Interpretation Act 1978 and also includes an instrument made under an Act of the Scottish Parliament or under Northern Ireland legislation.

350 Disclosure of information by the Inland Revenue

(1) No obligation as to secrecy imposed by statute or otherwise prevents the disclosure of Revenue information to--

(a) the Authority, or

(b) the Secretary of State,

if the disclosure is made for the purpose of assisting in the investigation of a matter under section 168 or with a view to the appointment of an investigator under that section.

(2) A disclosure may only be made under subsection (1) by or under the authority of the Commissioners of Inland Revenue.

(3) Section 348 does not apply to Revenue information.

(4) Information obtained as a result of subsection (1) may not be used except--

(a) for the purpose of deciding whether to appoint an investigator under section 168;

(b) in the conduct of an investigation under section 168;

(c) in criminal proceedings brought against a person under this Act or the [1993 c. 36.] Criminal Justice Act 1993 as a result of an investigation under section 168;

(d) for the purpose of taking action under this Act against a person as a result of an investigation under section 168;

(e) in proceedings before the Tribunal as a result of action taken as mentioned in paragraph (d).

(5) Information obtained as a result of subsection (1) may not be disclosed except--

(a) by or under the authority of the Commissioners of Inland Revenue;

(b) in proceedings mentioned in subsection (4)(c) or (e) or with a view to their institution.

(6) Subsection (5) does not prevent the disclosure of information obtained as a result of subsection (1) to a person to whom it could have been disclosed under subsection (1).

(7) "Revenue information" means information held by a person which it would be an offence under section 182 of the [1989 c. 26.] Finance Act 1989 for him to disclose.

351 Competition information

(1) A person is guilty of an offence if he has competition information (whether or not it was obtained by him) and improperly discloses it--

(a) if it relates to the affairs of an individual, during that individual's lifetime;

(b) if it relates to any particular business of a body, while that business continues to be carried on.

(2) For the purposes of subsection (1) a disclosure is improper unless it is made--

(a) with the consent of the person from whom it was obtained and, if different--

(i) the individual to whose affairs the information relates, or

(ii) the person for the time being carrying on the business to which the information relates;

(b) to facilitate the performance by a person mentioned in the first column of the table set out in Part I of Schedule 19 of a function mentioned in the second column of that table;

(d) for the purpose of criminal proceedings in any part of the United Kingdom;

(e) in connection with the investigation of any criminal offence triable in the United Kingdom or any part of the United Kingdom;

(f) with a view to the institution of, or otherwise for the purposes of, civil proceedings brought under or in connection with--

(i) a competition provision; or

(ii) a specified enactment.

(3) A person guilty of an offence under this section is liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum;

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

(4) Section 348 does not apply to competition information.

(5) "Competition information" means information which--

(a) relates to the affairs of a particular individual or body;

(b) is not otherwise in the public domain; and

(6) "Competition provision" means any provision of--

(a) an order made under section 95;

(b) Chapter III of Part X; or

(7) "Specified enactment" means an enactment specified in Part II of Schedule 19.

352 Offences

(1) A person who discloses information in contravention of section 348 or 350(5) is guilty of an offence.

(2) A person guilty of an offence under subsection (1) is liable--

(a) on summary conviction, to imprisonment for a term not exceeding three 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.

(3) A person is guilty of an offence if, in contravention of any provision of regulations made under section 349, he uses information which has been disclosed to him in accordance with the regulations.

(4) A person is guilty of an offence if, in contravention of subsection (4) of section 350, he uses information which has been disclosed to him in accordance with that section.

(5) A person guilty of an offence under subsection (3) or (4) is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.

(6) In proceedings for an offence under this section it is a defence for the accused to prove--

(a) that he did not know and had no reason to suspect that the information was confidential information or that it had been disclosed in accordance with section 350;

(b) that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

353 Removal of other restrictions on disclosure

(1) The Treasury may make regulations permitting the disclosure of any information, or of information of a prescribed kind--

(a) by prescribed persons for the purpose of assisting or enabling them to discharge prescribed functions under this Act or any rules or regulations made under it;

(b) by prescribed persons, or persons of a prescribed description, to the Authority for the purpose of assisting or enabling the Authority to discharge prescribed functions.

(2) Regulations under this section may not make any provision in relation to the disclosure of confidential information by primary recipients or by any person obtaining confidential information directly or indirectly from a primary recipient.

(3) If a person discloses any information as permitted by regulations under this section the disclosure is not to be taken as a contravention of any duty to which he is subject.

Co-operation

354 Authority's duty to co-operate with others

(1) The Authority must take such steps as it considers appropriate to co-operate with other persons (whether in the United Kingdom or elsewhere) who have functions--

(a) similar to those of the Authority; or

(b) in relation to the prevention or detection of financial crime.

(2) Co-operation may include the sharing of information which the Authority is not prevented from disclosing.

(3) "Financial crime" has the same meaning as in section 6.

Part XXIV Insolvency

Interpretation

355 Interpretation of this Part

(1) In this Part--

"the 1985 Act" means the [1985 c. 66.] Bankruptcy (Scotland) Act 1985;
"the 1986 Act" means the [1986 c. 45.] Insolvency Act 1986;
"the 1989 Order" means the [S.I. 1989/2405 (N.I. 19).] Insolvency (Northern Ireland) Order 1989;
"body" means a body of persons--
(a)
over which the court has jurisdiction under any provision of, or made under, the 1986 Act (or the 1989 Order); but
(b)
which is not a building society, a friendly society or an industrial and provident society; and
"court" means--
(a)
the court having jurisdiction for the purposes of the 1985 Act or the 1986 Act; or
(b)
in Northern Ireland, the High Court.

(2) In this Part "insurer" has such meaning as may be specified in an order made by the Treasury.

Voluntary arrangements

356 Authority's powers to participate in proceedings: company voluntary arrangements

(1) This section applies if a voluntary arrangement has been approved under Part I of the 1986 Act (or Part II of the 1989 Order) in respect of a company or insolvent partnership which is an authorised person.

(2) The Authority may make an application to the court in relation to the company or insolvent partnership under section 6 of the 1986 Act (or Article 19 of the 1989 Order).

(3) If a person other than the Authority makes an application to the court in relation to the company or insolvent partnership under either of those provisions, the Authority is entitled to be heard at any hearing relating to the application.

357 Authority's powers to participate in proceedings: individual voluntary arrangements

(1) The Authority is entitled to be heard on an application by an individual who is an authorised person under section 253 of the 1986 Act (or Article 227 of the 1989 Order).

(2) Subsections (3) to (6) apply if such an order is made on the application of such a person.

(3) A person appointed for the purpose by the Authority is entitled to attend any meeting of creditors of the debtor summoned under section 257 of the 1986 Act (or Article 231 of the 1989 Order).

(4) Notice of the result of a meeting so summoned is to be given to the Authority by the chairman of the meeting.

(5) The Authority may apply to the court--

(a) under section 262 of the 1986 Act (or Article 236 of the 1989 Order); or

(b) under section 263 of the 1986 Act (or Article 237 of the 1989 Order).

(6) If a person other than the Authority makes an application to the court under any provision mentioned in subsection (5), the Authority is entitled to be heard at any hearing relating to the application.

358 Authority's powers to participate in proceedings: trust deeds for creditors in Scotland

(1) This section applies where a trust deed has been granted by or on behalf of a debtor who is an authorised person.

(2) The trustee must, as soon as practicable after he becomes aware that the debtor is an authorised person, send to the Authority--

(a) in every case, a copy of the trust deed;

(b) where any other document or information is sent to every creditor known to the trustee in pursuance of paragraph 5(1)(c) of Schedule 5 to the 1985 Act, a copy of such document or information.

(3) Paragraph 7 of that Schedule applies to the Authority as if it were a qualified creditor who has not been sent a copy of the notice as mentioned in paragraph 5(1)(c) of the Schedule.

(4) The Authority must be given the same notice as the creditors of any meeting of creditors held in relation to the trust deed.

(5) A person appointed for the purpose by the Authority is entitled to attend and participate in (but not to vote at) any such meeting of creditors as if the Authority were a creditor under the deed.

(6) This section does not affect any right the Authority has as a creditor of a debtor who is an authorised person.

(7) Expressions used in this section and in the 1985 Act have the same meaning in this section as in that Act.

Administration orders

359 Petitions

(1) The Authority may present a petition to the court under section 9 of the 1986 Act (or Article 22 of the 1989 Order) in relation to a company or insolvent partnership which--

(a) is, or has been, an authorised person;

(b) is, or has been, an appointed representative; or

(2) Subsection (3) applies in relation to a petition presented by the Authority by virtue of this section.

(3) If the company or partnership is in default on an obligation to pay a sum due and payable under an agreement, it is to be treated for the purpose of section 8(1)(a) of the 1986 Act (or Article 21(1)(a) of the 1989 Order) as unable to pay its debts.

(4) "Agreement" means an agreement the making or performance of which constitutes or is part of a regulated activity carried on by the company or partnership.

(5) "Company" means--

(a) a company to which section 8 of the 1986 Act applies; or

(b) in relation to Northern Ireland, a company to which Article 21 of the 1989 Order applies.

360 Insurers

(1) The Treasury may by order provide that such provisions of Part II of the 1986 Act (or Part III of the 1989 Order) as may be specified are to apply in relation to insurers with such modifications as may be specified.

(2) An order under this section--

(a) may provide that such provisions of this Part as may be specified are to apply in relation to the administration of insurers in accordance with the order with such modifications as may be specified; and

(b) requires the consent of the Secretary of State.

(3) "Specified" means specified in the order.

361 Administrator's duty to report to Authority

(1) If--

(a) an administration order is in force in relation to a company or partnership by virtue of a petition presented by a person other than the Authority, and

(b) it appears to the administrator that the company or partnership is carrying on, or has carried on, a regulated activity in contravention of the general prohibition,

the administrator must report the matter to the Authority without delay.

(2) "An administration order" means an administration order under Part II of the 1986 Act (or Part III of the 1989 Order).

362 Authority's powers to participate in proceedings

(1) This section applies if a person other than the Authority presents a petition to the court under section 9 of the 1986 Act (or Article 22 of the 1989 Order) in relation to a company or partnership which--

(a) is, or has been, an authorised person;

(b) is, or has been, an appointed representative; or

(2) The Authority is entitled to be heard--

(a) at the hearing of the petition; and

(b) at any other hearing of the court in relation to the company or partnership under Part II of the 1986 Act (or Part III of the 1989 Order).

(3) Any notice or other document required to be sent to a creditor of the company or partnership must also be sent to the Authority.

(4) The Authority may apply to the court under section 27 of the 1986 Act (or Article 39 of the 1989 Order); and on such an application, section 27(1)(a) (or Article 39(1)(a)) has effect with the omission of the words "(including at least himself)".

(5) A person appointed for the purpose by the Authority is entitled--

(a) to attend any meeting of creditors of the company or partnership summoned under any enactment;

(b) to attend any meeting of a committee established under section 26 of the 1986 Act (or Article 38 of the 1989 Order); and

(6) If, during the course of the administration of a company, a compromise or arrangement is proposed between the company and its creditors, or any class of them, the Authority may apply to the court under section 425 of the [1985 c. 6.] Companies Act 1985 (or Article 418 of the [S.I. 1986/1032 (N.I. 6).] Companies (Northern Ireland) Order 1986).

Receivership

363 Authority's powers to participate in proceedings

(1) This section applies if a receiver has been appointed in relation to a company which--

(a) is, or has been, an authorised person;

(b) is, or has been, an appointed representative; or

(2) The Authority is entitled to be heard on an application made under section 35 or 63 of the 1986 Act (or Article 45 of the 1989 Order).

(3) The Authority is entitled to make an application under section 41(1)(a) or 69(1)(a) of the 1986 Act (or Article 51(1)(a) of the 1989 Order).

(4) A report under section 48(1) or 67(1) of the 1986 Act (or Article 58(1) of the 1989 Order) must be sent by the person making it to the Authority.

(5) A person appointed for the purpose by the Authority is entitled--

(a) to attend any meeting of creditors of the company summoned under any enactment;

(b) to attend any meeting of a committee established under section 49 or 68 of the 1986 Act (or Article 59 of the 1989 Order); and

364 Receiver's duty to report to Authority

If--

(a) a receiver has been appointed in relation to a company, and

(b) it appears to the receiver that the company is carrying on, or has carried on, a regulated activity in contravention of the general prohibition,

the receiver must report the matter to the Authority without delay.

Voluntary winding up

365 Authority's powers to participate in proceedings

(1) This section applies in relation to a company which--

(a) is being wound up voluntarily;

(b) is an authorised person; and

(2) The Authority may apply to the court under section 112 of the 1986 Act (or Article 98 of the 1989 Order) in respect of the company.

(3) The Authority is entitled to be heard at any hearing of the court in relation to the voluntary winding up of the company.

(4) Any notice or other document required to be sent to a creditor of the company must also be sent to the Authority.

(5) A person appointed for the purpose by the Authority is entitled--

(a) to attend any meeting of creditors of the company summoned under any enactment;

(b) to attend any meeting of a committee established under section 101 of the 1986 Act (or Article 87 of the 1989 Order); and

(6) The voluntary winding up of the company does not bar the right of the Authority to have it wound up by the court.

(7) If, during the course of the winding up of the company, a compromise or arrangement is proposed between the company and its creditors, or any class of them, the Authority may apply to the court under section 425 of the [1985 c. 6.] Companies Act 1985 (or Article 418 of the [S.I. 1986/1032 (N.I. 6).] Companies (Northern Ireland) Order 1986).

366 Insurers effecting or carrying out long-term contracts or insurance

(1) An insurer effecting or carrying out contracts of long-term insurance may not be wound up voluntarily without the consent of the Authority.

(2) If notice of a general meeting of such an insurer is given, specifying the intention to propose a resolution for voluntary winding up of the insurer, a director of the insurer must notify the Authority as soon as practicable after he becomes aware of it.

(3) A person who fails to comply with subsection (2) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) The following provisions do not apply in relation to a winding-up resolution--

(a) sections 378(3) and 381A of the [1985 c. 6.] Companies Act 1985 ("the 1985 Act"); and

(b) Articles 386(3) and 389A of the [S.I. 1986/1032 (N.I. 6).] Companies (Northern Ireland) Order 1986 ("the 1986 Order").

(5) A copy of a winding-up resolution forwarded to the registrar of companies in accordance with section 380 of the 1985 Act (or Article 388 of the 1986 Order) must be accompanied by a certificate issued by the Authority stating that it consents to the voluntary winding up of the insurer.

(6) If subsection (5) is complied with, the voluntary winding up is to be treated as having commenced at the time the resolution was passed.

(7) If subsection (5) is not complied with, the resolution has no effect.

(8) "Winding-up resolution" means a resolution for voluntary winding up of an insurer effecting or carrying out contracts of long-term insurance.

Winding up by the court

367 Winding-up petitions

(1) The Authority may present a petition to the court for the winding up of a body which--

(a) is, or has been, an authorised person;

(b) is, or has been, an appointed representative; or

(2) In subsection (1) "body" includes any partnership.

(3) On such a petition, the court may wind up the body if--

(a) the body is unable to pay its debts within the meaning of section 123 or 221 of the 1986 Act (or Article 103 or 185 of the 1989 Order); or

(b) the court is of the opinion that it is just and equitable that it should be wound up.

(4) If a body is in default on an obligation to pay a sum due and payable under an agreement, it is to be treated for the purpose of subsection (3)(a) as unable to pay its debts.

(5) "Agreement" means an agreement the making or performance of which constitutes or is part of a regulated activity carried on by the body concerned.

(6) Subsection (7) applies if a petition is presented under subsection (1) for the winding up of a partnership--

(a) on the ground mentioned in subsection (3)(b); or

(b) in Scotland, on a ground mentioned in subsection (3)(a) or (b).

(7) The court has jurisdiction, and the 1986 Act (or the 1989 Order) has effect, as if the partnership were an unregistered company as defined by section 220 of that Act (or Article 184 of that Order).

368 Winding-up petitions: EEA and Treaty firms

The Authority may not present a petition to the court under section 367 for the winding up of--

(a) an EEA firm which qualifies for authorisation under Schedule 3, or

(b) a Treaty firm which qualifies for authorisation under Schedule 4,

unless it has been asked to do so by the home state regulator of the firm concerned.

369 Insurers: service of petition etc. on Authority

(1) If a person other than the Authority presents a petition for the winding up of an authorised person with permission to effect or carry out contracts of insurance, the petitioner must serve a copy of the petition on the Authority.

(2) If a person other than the Authority applies to have a provisional liquidator appointed under section 135 of the 1986 Act (or Article 115 of the 1989 Order) in respect of an authorised person with permission to effect or carry out contracts of insurance, the applicant must serve a copy of the application on the Authority.

370 Liquidator's duty to report to Authority

If--

(a) a company is being wound up voluntarily or a body is being wound up on a petition presented by a person other than the Authority, and

(b) it appears to the liquidator that the company or body is carrying on, or has carried on, a regulated activity in contravention of the general prohibition,

the liquidator must report the matter to the Authority without delay.

371 Authority's powers to participate in proceedings

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