The Transfer of Functions (Financial Services) Order 1992

Article 3

SCHEDULE 1 FUNCTIONS RETAINED BY THE SECRETARY OF STATE

The Prevention of Fraud (Investments) Act 1958

1.  The function under section 14(8) (consent to prosecutions).

The Companies Act 1985

2.  The functions under sections 65(3)(b) and 77(5)(a) (prescribing manner in which translation to be certified as correct translation).

The Company Securities (Insider Dealing) Act 1985

3.  The function under section 8 (punishment of contraventions).

The Financial Services Act 1986

4.  The functions under section 6 (injunctions and restitution orders).

5.  The function of taking disciplinary action under section 47A (in respect of failure to comply with statements of principle) in so far as the action consists of a function specified in this Schedule.

6.  The function of giving a direction under section 59 (employment of prohibited persons) and associated functions, where the direction would have the effect of prohibiting the employment of an individual in connection with investment business carried on in connection with or for the purpose of insurance business at Lloyd's, being employment by any person who is an exempted person as respects such business.

7.  The functions under section 60 (public statements as to person’s misconduct) and 61(1) (injunctions) in any case in which those functions are exercisable by virtue of a contravention of a direction of the kind described in paragraph 6 above.

8.  The functions under section 61(1)—

(a) with respect to a person who is an exempted person by virtue of section 42 in any case in which the contravention or proposed contravention arises or is likely to arise in the course of investment business as respects which the person is exempt; or

(b) exercisable by virtue of section 61(1)(a)(ii) or (iii) (injunctions relating to contraventions of sections 47, 56, 57 or 59 or of requirements imposed under section 58(3)).

9.  The functions under section 61(3) in relation to a contravention of a provision referred to in section 61(1)(a)(ii) or (iii) by a person who neither is, nor has ever been, an authorised person or appointed representative.

10.  The functions under section 61 in relation to a contravention or proposed contravention of section 130.

11.  The functions under sections 72 and 73 (winding up orders).

12.  The functions under section 94 (investigations).

13.  The functions under sections 97 to 101 (references to Tribunal) in so far as they arise out of a notice or a copy of a notice which, by virtue of any other paragraph of this Schedule, falls, after the coming into force of this Order, to be served by the Secretary of State.

14.  The functions under section 105 (investigation powers).

15.  The functions under section 106 (exercise of investigative powers by officer etc.).

16.  The functions under section 128B (relevance of information given and action taken by other regulatory authorities) and subsections (1), (4) and (5) of section 128C (enforcement in support of overseas regulatory authority) in so far as they relate to any other function specified in this Schedule.

17.  The function under subsection (3)(c) of section 128C.

18.  The functions under subsections (3) and (4) of section 130 (restriction on promotion of contracts of insurance).

19.  The functions under section 138 (insurance brokers).

20.  The functions under subsection (3) of section 148 (exemptions from disclosure) but without prejudice to the existing concurrent power of the Treasury under that subsection.

21.  The functions under subsection (3) of section 165 (exemptions from disclosure) but without prejudice to the existing concurrent power of the Treasury under that subsection).

22.  The functions under sections 177 and 178 (investigations into insider dealing and penalties for failure to co-operate).

23.  In so far as they relate to insurance business which is not also investment business, the functions under—

(a) section 183 (reciprocal facilities for financial business),

(b) section 184 (investment and insurance business), or

(c) section 186 (variation and revocation of notices).

24.  The functions under section 199 (powers of entry).

25.  The functions under section 201 (prosecutions).

26.  The following functions under Schedule 10 (regulated insurance companies)—

(a) the function under sub-paragraph (2) of paragraph 3 (certification as to requirement in sub-paragraph (1));

(b) the function under paragraph 4(6) of determining (before a delegation order is made transferring functions of making rules and regulations in relation to a regulated insurance company) whether the rules and regulations will take proper account of Part II of the Insurance Companies Act 1982 or, as the case may be, of the provisions for corresponding purposes in the law of the member State in which the company is established;

(c) functions under paragraph 6 (procedure on exercise of powers of intervention);

(d) functions under paragraph 10 (consultation with designated agency).

The Uncertificated Securities Regulations 1992

27.  The functions under regulations 26(2) (inspection of registers) and 110 (investigations).

Article 4

SCHEDULE 2 FUNCTIONS EXERCISABLE JOINTLY BY THE SECRETARY OF STATE AND THE TREASURY

The Financial Services Act 1986

1.  The function of revoking a recognition order in respect of a recognised self-regulating organisation whose members include or may include regulated insurance companies on the ground that—

(a) the requirement specified in paragraph 3(1) of Schedule 10 is not satisfied; or

(b) the organisation has contravened sub-paragraph (3) or (4) of paragraph 6 of that Schedule as applied by sub-paragraph (5) of paragraph 6.

2.  The function of giving a direction under subsection (1) of section 33, where the function—

(a) falls within paragraph (a) of that subsection, and

(b) is made in respect of a regulated insurance company.

3.  The function of taking disciplinary action under section 47A (in respect of failure to comply with statements of principle) in so far as the action consists of a function specified in this Schedule.

4.  In so far as they relate to investment business which is also insurance business, the functions under—

(a) section 183 (reciprocal facilities for financial business),

(b) section 184 (investment and insurance business),

(c) sections 28, 29, 33, 34, 60, 61 and 97 to 101 in relation to a contravention of a partial restriction notice under section 184(4), or

(d) section 186 (variation and revocation of notices).

5.  The functions under section 128B (relevance of information given and action taken by other regulatory authorities) and subsections (1), (4) and (5) of section 128C (enforcement in support of overseas regulatory authority) in so far as they relate to any other function specified in this Schedule.

6.  In Schedule 10 (regulated insurance companies) the functions under paragraph 8(2) to (5) in so far as they relate to a direction of a description mentioned in paragraph 2 above.

The Companies Act 1989

7.—(1) Subject to sub-paragraphs (2) and (3) below, functions under the following provisions of Part VII, namely, sections 158(4) and (5), 160(5), 170 to 174, 176, 181, 185 and 186.

(2) The reference in sub-paragraph (1) above to the functions under section 170 does not include a reference to the function under subsection (1) of that section of approving an overseas investment exchange.

(3) The reference in sub-paragraph (1) above to functions under section 186 is a reference only to so much of the functions under that section as relates to any function under the other enactments specified in sub-paragraph (1) above.

Article 5.

SCHEDULE 3 FUNCTIONS EXERCISABLE CONCURRENTLY BY THE SECRETARY OF STATE AND THE TREASURY

1.  The functions under section 180 and 181 of the Financial Services Act 1986 (restrictions on disclosure).

2.  In Schedule 9 to that Act (designated agency status etc.), the function under paragraph 13 (communication of information).

3.  In section 82 of the Companies Act 1989 (request for assistance by overseas regulatory authority), the function under subsection (3) of being satisfied as to whether assistance requested by an overseas regulatory authority is for the purpose of its regulatory functions.

Article 10(1).

SCHEDULE 4 MODIFICATIONS OF ENACTMENTS

The Companies Act 1985

1.  In section 449(1)(d) of the Companies Act 1985 for the words “Secretary of State to exercise any of his functions” there shall be substituted “Secretary of State or the Treasury to exercise any of their functions”.

2.  Section 744 of that Act shall have effect, in relation to any provision of that Act conferring a function transferred to the Treasury by this Order, as if “prescribed” meant prescribed by statutory instrument made by the Treasury.

The Financial Services Act 1986

3.  In sections 178(10), 199(7) and 201(4) of the Financial Services Act 1986 (which extend the functions to which a delegation order may apply) for the words “Secretary of State”, in the last place where they occur in each of those provisions, there shall be substituted “Treasury”.

4.  In section 179(3) of that Act, before paragraph (a) there shall be inserted the following paragraph—

“(aa) the Treasury.”

5.  In section 180(1) of that Act, after paragraph (b) there shall be inserted the following paragraph—

“(bb) for the purpose of enabling or assisting the Treasury to exercise any of their powers under this Act or under Part III or VII of the Companies Act 1989.”

6.  In section 186 of that Act at the end of subsection (7) there shall be inserted “which varies or revokes a notice relating to the carrying on of a deposit-taking business as mentioned in section 185 above.”

7.  In section 205 of that Act, after the words “Secretary of State” there shall be inserted “or the Treasury”.

8.  In section 205A(1) of that Act, after the words “Secretary of State” there shall be inserted “or the Treasury”.

9.  In section 207(1) of that Act, at the end of the definition of “prescribed”, there shall be inserted “or the Treasury”.

10.  In Schedule 7 to that Act, in paragraph 1(2), for the words “Secretary of State” there shall be substituted “Treasury”.

The Banking Act 1987

11.—(1) In section 84 of the Banking Act 1987, in subsection (1), in the Table, after the entry relating to the Secretary of State there shall be inserted—

“The Treasury Functions under the Financial Services Act 1986 or under Part III or VII of the Companies Act 1989.”

(2) In subsection (6)(a)(ii) of that section after the words “Secretary of State” there shall be inserted “or the Treasury”.

The Companies Act 1989

12.  In section 87(4) of the Companies Act 1989, in the Table, after the entry relating to the Secretary of State there shall be inserted—

• “The Treasury Functions under the Financial Services Act 1986 or under this Part or Part VII of this Act.”

13.  In each of the following provisions of Part VII of that Act (which provide for the Secretary of State to consult the Treasury and the Bank of England)—

(a) section 171(6),

(b) section 172(3),

(c) section 173(6),

(d) section 174(5), and

(e) section 176(6),

for the words “shall consult the Treasury and” there shall be substituted “and the Treasury shall consult”.

The Friendly Societies Act 1992

14.  In section 64 of the Friendly Societies Act 1992 after subsection (3) there shall be inserted the following subsection—

“(3A) Nothing in section 63 above prohibits the disclosure of information to the Treasury in circumstances where it is desirable or expedient that the information should be disclosed for the purpose of facilitating the discharge by the Treasury of any functions of theirs under the Financial Services Act 1986 or under Part III or Part VII of the Companies Act 1989 nor does that section prohibit further disclosure of the information by the Treasury with the consent of the Commission.”