Financial Services and Markets Bill - continued        House of Lords

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  PART XXVI
  NOTICES
 
Warning notices
Warning notices.     375. - (1) A warning notice must-
 
 
    (a) be in writing;
 
    (b) give reasons for the proposed action; and
 
    (c) describe the effect of subsection (5).
      (2) If any of the reasons relates to a matter which-
 
 
    (a) identifies a person ("the third party") other than the person to whom the warning notice is given, and
 
    (b) in the opinion of the Authority, is prejudicial to the third party,
  a copy of the notice must be given to the third party unless the Authority considers it impracticable to do so.
 
      (3) The warning notice must specify a reasonable period (which may not be less than 28 days) within which the person to whom it is given or copied may make representations to the Authority.
 
      (4) The Authority must then decide, within a reasonable period, whether to carry out its proposal.
 
      (5) The Authority must allow the person to whom a warning notice is given to have access to the evidence on which it relied in deciding on its proposed action.
 
 
Decision notice
Decision notices.     376. - (1) A decision notice must-
 
 
    (a) be in writing;
 
    (b) (if appropriate) specify the date on which the decision takes effect;
 
    (c) give the Authority's reasons for the decision to take, or not to take, the action to which the notice relates; and
 
    (d) give an indication of-
 
      (i) any right to have the matter referred to the Tribunal which is given by this Act; and
 
      (ii) the procedure on such a reference.
      (2) If any of the reasons relates to a matter which-
 
 
    (a) identifies a person ("the third party") other than the person to whom the decision notice is given, and
 
    (b) in the opinion of the Authority, is prejudicial to the third party,
  a copy of the notice must be given to the third party unless the Authority considers it impracticable to do so.
 
      (3) If the person to whom a decision notice is given has a right to refer the matter to the Tribunal-
 
 
    (a) a third party to whom a copy of the notice is given may refer to the Tribunal-
 
      (i) the decision in question, so far as it is based on a reason of the kind mentioned in subsection (2); or
 
      (ii) any opinion expressed by the Authority in relation to him;
 
    (b) the copy must be accompanied by an indication of the third party's right to make a reference under paragraph (a) and the procedure on such a reference;
 
    (c) a person who alleges that a copy of the notice should have been given to him, but was not, may refer to the Tribunal the alleged failure and-
 
      (i) the decision in question, so far as it is based on a reason of the kind mentioned in subsection (2); or
 
      (ii) any opinion expressed by the Authority in relation to him.
      (4) A date specified under subsection (1)(b) may not be earlier than the date of the notice.
 
      (5) The Authority must publish such information about the matter to which a decision notice relates, in such way, as it considers appropriate.
 
      (6) But the Authority may not-
 
 
    (a) publish any information while the decision is open to review; or
 
    (b) publish information publication of which would, in its opinion, be unfair to the person with respect to whom the decision was made or prejudicial to the interests of consumers.
      (7) For the purposes of subsection (6), a decision is open to review if-
 
 
    (a) the period during which any person may refer the matter to the Tribunal is still running;
 
    (b) the matter has been referred to the Tribunal but has not been dealt with;
 
    (c) the matter has been referred to the Tribunal and dealt with but the period during which an appeal may be brought against the Tribunal's decision is still running; or
 
    (d) such an appeal has been brought but has not been determined.
 
The Authority's procedures
The Authority's procedures.     377. - (1) The Authority must determine the procedure that it proposes to follow in relation to the giving of warning notices and decision notices.
 
      (2) That procedure must be designed to secure, among other things, that the decision which gives rise to the obligation to give a warning notice or decision notice is taken by a person not directly involved in establishing the evidence on which that decision is based.
 
      (3) The Authority must publish a statement of the procedure.
 
      (4) The statement must be published in the way appearing to the Authority to be best calculated to bring it to the attention of the public.
 
      (5) The Authority may charge a reasonable fee for providing a person with a copy of the statement.
 
      (6) The Authority must, without delay, give the Treasury a copy of any statement which it issues under this section.
 
      (7) When giving a warning notice or a decision notice, the Authority must follow its stated procedure.
 
      (8) If the Authority changes the procedure in a material way, it must publish a revised statement.
 
      (9) The Authority's failure in a particular case to follow its procedure as set out in the latest published statement does not affect the validity of a warning notice or decision notice given in that case.
 
      (10) But subsection (9) does not prevent the Tribunal from taking into account any such failure in considering a matter referred to it.
 
Statements under section 377: consultation.     378. - (1) Before issuing a statement of procedure under section 377, the Authority must publish a draft of the proposed statement in the way appearing to the Authority to be best calculated to bring it to the attention of the public.
 
      (2) The draft must be accompanied by notice that representations about the proposal may be made to the Authority within a specified time.
 
      (3) Before issuing the proposed statement of procedure, the Authority must have regard to any representations made to it in accordance with subsection (2).
 
      (4) If the Authority issues the proposed statement of procedure it must publish an account, in general terms, of-
 
 
    (a) the representations made to it in accordance with subsection (2); and
 
    (b) its response to them.
      (5) If the statement of procedure differs from the draft published under subsection (1) in a way which is, in the opinion of the Authority, significant, the Authority must (in addition to complying with subsection (4)) publish details of the difference.
 
      (6) The Authority may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1).
 
      (7) This section also applies to a proposal to revise a statement of policy.
 
 
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Prepared 11 February 2000