Financial Services and Markets Bill - continued        House of Lords

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  PART X
  RULES AND GUIDANCE
  CHAPTER I
  RULE-MAKING POWERS
General rule-making power.     129. - (1) The Authority may make such rules applying to authorised persons with respect to the carrying on by them of regulated activities as appear to it to be necessary or expedient for the purpose of protecting the interests of persons-
 
 
    (a) who use, have used, or are or may be contemplating using, any of the services provided by authorised persons in carrying on regulated activities; or
 
    (b) who have rights or interests which-
 
      (i) are derived from, or are otherwise attributable to, or
 
      (ii) may be adversely affected by,
 
    the use of any such services by other persons.
      (2) Rules made under this section are referred to in this Act as the Authority's general rules.
 
      (3) The Authority's power to make general rules is not limited by any other power which it has to make regulating provisions.
 
      (4) The Authority's general rules may make provision applying to authorised persons even though there is no relationship between the authorised persons to whom the rules will apply and the persons whose interests will be protected by the rules.
 
      (5) General rules requiring authorised persons to have or maintain financial resources may contain requirements which take into account, in the case of an authorised person who is a member of a group, any activity of another member of the group.
 
      (6) General rules may not-
 
 
    (a) make provision prohibiting an EEA firm from carrying on, or holding itself out as carrying on, any activity which it has permission conferred by Part II of Schedule 3 to carry on in the United Kingdom;
 
    (b) make provision, as respects an EEA firm, about any matter responsibility for which is, under any of the single market directives, reserved to the firm's home state regulator.
Non-regulated activity rules.     130. - (1) The Authority may make such rules applying to authorised persons with respect to the carrying on by them of non-regulated activities as appear to it to be necessary or expedient to ensure that the carrying on of such an activity by an authorised person is unlikely to have an adverse effect on his carrying on of a regulated activity and, as a result, on users of services provided by him in carrying on that regulated activity.
 
      (2) Rules made under this section are referred to in this Act as the Authority's non-regulated activity rules.
 
      (3) Non-regulated activity rules requiring authorised persons to have or maintain financial resources may contain requirements which take into account, in the case of an authorised person who is a member of a group, any activity of another member of the group.
 
      (4) Non-regulated activity rules may not-
 
 
    (a) make provision prohibiting an EEA firm from carrying on, or holding itself out as carrying on, any activity which it has permission conferred by Part II of Schedule 3 to carry on in the United Kingdom;
 
    (b) make provision, as respects an EEA firm, about any matter responsibility for which is, under any of the single market directives, reserved to the firm's home state regulator.
      (5) "Non-regulated activity" means any activity which is not a regulated activity.
 
Miscellaneous ancillary matters.     131. - (1) Rules requiring an authorised person to have or maintain financial resources may contain provision-
 
 
    (a) as to the nature of those resources;
 
    (b) requiring him to maintain resources at the appropriate level.
      (2) "The appropriate level" is-
 
 
    (a) such level as may from time to time be notified to the authorised person by the Authority; or
 
    (b) such level as may otherwise be determined in accordance with the rules.
      (3) Rules relating to the handling of money held by an authorised person in specified circumstances ("clients' money") may-
 
 
    (a) make provision which results in that clients' money being held on trust in accordance with the rules;
 
    (b) treat two or more accounts as a single account for specified purposes (which may include the distribution of money held in the accounts);
 
    (c) authorise the retention by the authorised person of interest accruing on the clients' money; and
 
    (d) make provision as to the distribution of such interest which is not to be retained by him.
      (4) An institution with which an account is kept in pursuance of rules relating to the handling of clients' money does not incur any liability as constructive trustee if money is wrongfully paid from the account, unless the institution permits the payment-
 
 
    (a) with knowledge that it is wrongful; or
 
    (b) having deliberately failed to make enquiries in circumstances in which a reasonable and honest person would have done so.
      (5) In the application of subsection (3) to Scotland, the reference to money being held on trust is to be read as a reference to its being held as agent for the person who is entitled to call for it to be paid over to him or to be paid on his direction or to have it otherwise credited to him.
 
      (6) Rules may-
 
 
    (a) confer rights on persons to rescind agreements with, or withdraw offers to, authorised persons within a specified period; and
 
    (b) make provision, in respect of authorised persons and persons exercising those rights, for the restitution of property and the making or recovery of payments where those rights are exercised.
      (7) "Rules" means general rules or non-regulated activity rules.
 
      (8) "Specified" means specified in the rules.
 
Restriction on managers of authorised unit trust schemes.     132. - (1) The Authority may make rules prohibiting an authorised person who has permission to act as the manager of an authorised unit trust scheme from carrying on a specified activity.
 
      (2) Such rules may specify an activity which is not a regulated activity.
 
Insurance business rules.     133. - (1) The Authority may make rules prohibiting an authorised person who has permission to deal in contracts of insurance from carrying on a specified activity.
 
      (2) Such rules may specify an activity which is not a regulated activity.
 
      (3) The Authority may make rules in relation to contracts entered into by an authorised person in the course of carrying on long-term insurance business.
 
      (4) Such rules may, in particular-
 
 
    (a) restrict the descriptions of property or indices of the value of property by reference to which the benefits under such contracts may be determined;
 
    (b) make provision, in the interests of the protection of policyholders, for the substitution of one description of property, or index of value, by reference to which the benefits under a contract are to be determined for another such description of property or index.
      (5) Rules made under this section are referred to in this Act as insurance business rules.
 
Insurance business: regulations supplementing Authority's rules.     134. - (1) The Treasury may make regulations for the purpose of preventing a person who is not an authorised person but who-
 
 
    (a) is a parent undertaking of an authorised person who has permission to deal in contracts of insurance, and
 
    (b) falls within a prescribed class,
  from doing anything to lessen the effectiveness of asset identification rules.
 
      (2) "Asset identification rules" means rules made by the Authority which require an authorised person who has permission to deal in contracts of insurance to identify assets which belong to him and which are maintained in respect of a particular aspect of his business.
 
      (3) The regulations may, in particular, include provision-
 
 
    (a) prohibiting the payment of dividends;
 
    (b) prohibiting the creation of mortgages or charges (or in Scotland securities over property);
 
    (c) making mortgages or charges (or in Scotland securities over property) created in contravention of the regulations void.
      (4) The Treasury may by regulations provide that, in prescribed circumstances, mortgages or charges (or in Scotland securities over property) created in contravention of asset identification rules are void.
 
      (5) A person who contravenes regulations under subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
 
 
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