Financial Services and Markets Act 2023

7 U.K. After section 104 insert—

“104A Requirements in connection with public consultations

(1) This section applies where the Payment Systems Regulator issues a public consultation.

(2) The Payment Systems Regulator must include information in the consultation about any engagement by the Payment Systems Regulator with the statutory panels of the Payment Systems Regulator, the FCA and the PRA in relation to the matters being consulted on.

(3) The Payment Systems Regulator is not required under subsection (2) to include any information whose publication would in the opinion of the Payment Systems Regulator be against the public interest.

(4) For the purposes of this section, the Payment Systems Regulator issues a public consultation if it publishes any proposals for the purpose of bringing them to the attention of the public (whether or not under a duty to do so imposed by an enactment).

(5) In this section a “statutory panel”—

(a) in relation to the Payment Systems Regulator, means a panel established under section 103(3),

(b) in relation to the FCA, has the meaning given by section 1RA(8) of FSMA 2000, and

(c) in relation to the PRA, has the meaning given by section 2NA(8) of FSMA 2000.

104B Duty of Regulator to review generally applicable requirements

The Payment Systems Regulator must keep under review generally any generally applicable requirements.

104C Statement of policy relating to review of requirements

(1) The Payment Systems Regulator must prepare and publish a statement of its policy with respect to its review of requirements under section 104B.

(2) The statement must provide information about—

(a) how representations (including by a relevant panel) can be made to the Regulator with respect to its review of requirements under section 104B, and

(b) the arrangements to ensure that those representations are considered.

(3) In this section “relevant panel” means—

(a) a panel of the Payment Systems Regulator established under section 103(3),

(b) a panel of the FCA mentioned in section 1RA(8) of FSMA 2000, and

(c) a panel of the PRA mentioned in section 2NA(8) of FSMA 2000.

(4) If a statement published under this section is altered or replaced by the Payment Systems Regulator, the Regulator must publish the altered or replaced statement.

(5) A statement prepared under this section must be published by the Payment Systems Regulator in the way appearing to the Regulator to be best designed to bring it to the attention of the public.

104D Requirement to review specified requirements

(1) The Treasury may by direction require the Payment Systems Regulator to carry out a review of any generally applicable requirement specified in the direction if—

(a) the requirement has been in force for at least 12 months,

(b) the Treasury consider that it is in the public interest that the requirement is reviewed, and

(c) it does not appear to the Treasury that—

(i) the regulator is carrying out, or proposes to carry out, a review of that requirement, or

(ii) if the regulator proposes to carry out a review, the proposals are appropriate for the purposes of carrying out an effective review.

(2) The Treasury must consult the Payment Systems Regulator before giving a direction under subsection (1).

(3) In exercising the power under this section, the Treasury must have regard to the desirability of minimising any adverse effect that the carrying out of the review may have on the exercise by the Payment Systems Regulator of any of its other functions.

(4) A direction under subsection (1) may—

(a) specify the period within which a review must be carried out;

(b) determine the scope and conduct of a review;

(c) require the provision of interim reports during the carrying out of a review.

(5) Provision made in a direction under subsection (4)(b) may include a requirement—

(a) for a review to be carried out by a person appointed by the Payment Systems Regulator who is independent of the Regulator;

(b) for any such appointment to be made only with the approval of the Treasury.

(6) As soon as practicable after giving the direction the Treasury must—

(a) lay before Parliament a copy of the direction, and

(b) publish the direction in such manner as the Treasury think fit.

(7) Subsection (6) does not apply where the Treasury consider that publication of the direction would be against the public interest.

(8) A direction under this section may be varied or revoked by the giving of a further direction.

104E Report on certain reviews

(1) This section applies where the Treasury have given a direction to the Payment Systems Regulator under section 104D(1) to carry out a review.

(2) The Payment Systems Regulator must provide a written report to the Treasury as to the opinion of the Regulator in relation to the following matters—

(a) whether the requirements under review advance one or more of the payment systems objectives;

(b) whether and to what extent the requirements are functioning effectively and achieving their intended purpose;

(c) whether any amendments need to be made to the requirements and, if so, what those amendments should be;

(d) whether any requirements should be withdrawn (with or without replacement);

(e) whether any other action should be taken and, if so, what that action should be.

(3) As soon as practicable after receiving the report the Treasury must—

(a) lay before Parliament a copy of the report, and

(b) publish the report in such manner as the Treasury think fit.

(4) When complying with subsection (3) the Treasury may withhold material from the report if the Treasury consider that publication of the material would be against the public interest.

104F Power of Treasury to require the imposition of generally applicable requirements

(1) The Treasury may by regulations require the Payment Systems Regulator to exercise a power under this Part to impose a generally applicable requirement in relation to a specified activity or a specified description of person.

(2) Regulations under this section may—

(a) specify matters that the requirement must cover;

(b) specify a period within which the requirement must be made.

(3) But except so far as permitted by subsection (2), regulations under this section may not require the requirement to be imposed—

(a) in a specified form or with specified content, or

(b) to achieve or advance a specified outcome.

(4) If no period is specified under subsection (2)(b) the requirement must be imposed as soon as reasonably practicable after the coming into force of the regulations.

104G Consultation with the FCA Cost Benefit Analysis Panel

(1) Except as provided by subsection (2), the Payment Systems Regulator must consult the FCA Cost Benefit Analysis Panel, and that Panel must provide advice, about the following matters—

(a) the preparation of a cost benefit analysis under section 104(3)(a) or (6);

(b) the preparation of its statement of policy under section 104H.

(2) The requirement to consult under subsection (1)(a) does not apply in such cases as may be set out in the statement of policy maintained under section 104H.

(3) The FCA Cost Benefit Analysis Panel must—

(a) keep under review how the Payment Systems Regulator is performing generally in carrying out its duties under section 104(3)(a) and (6), and

(b) provide to the Payment Systems Regulator whatever recommendations the Panel thinks appropriate as a result of such review.

(4) The Payment Systems Regulator must consider representations that are made to it by the FCA Cost Benefit Analysis Panel.

(5) The Payment Systems Regulator must from time to time publish in such manner as it thinks fit responses to the representations.

(6) In this section references to the “FCA Cost Benefit Analysis Panel” are to the panel established under section 138IA of FSMA 2000.

104H Statement of policy in relation to cost benefit analyses

(1) The Payment Systems Regulator must prepare and publish a statement of policy in relation to the preparation of cost benefit analyses for the purposes of section 104.

(2) The statement must provide information about—

(a) the methodology adopted in preparing cost benefit analyses;

(b) matters to which the Payment Systems Regulator has regard in determining whether section 104(8) applies;

(c) matters to which the Payment Systems Regulator has regard in determining whether section 104(10) or (11) applies in relation to the preparation of a cost benefit analysis;

(d) arrangements to ensure that representations in connection with a cost benefit analysis that are made in accordance with section 104(3)(d) are considered;

(e) cases in which the requirement to consult the FCA Cost Benefit Analysis Panel in relation to the preparation of a cost benefit analysis does not apply.

(3) The statement may include whatever other information in relation to cost benefit analyses that the Payment Systems Regulator considers appropriate.

(4) The Payment Systems Regulator may alter or replace a statement published under this section.

(5) The Payment Systems Regulator must publish a statement as altered or replaced under subsection (4).

(6) Publication under this section is to be made in such manner as the Payment Systems Regulator considers best designed to bring the statement to the attention of the public.

104I Statement of policy on panel appointments

(1) The Payment Systems Regulator must prepare and publish a statement of policy in relation to the appointment of members to any panel established under section 103(3).

(2) The statement must provide information about—

(a) the process adopted for making appointments;

(b) matters considered in determining who is appointed.

(3) The statement may provide whatever other information in relation to the making of appointments that the Payment Systems Regulator considers appropriate.

(4) The Payment Systems Regulator may alter or replace a statement published under this section.

(5) The Payment Systems Regulator must publish a statement as altered or replaced under subsection (4).

(6) Before publishing a statement under this section the Payment Systems Regulator must—

(a) consult the Treasury about the proposed statement, and

(b) have regard to any representations the Treasury make in response to the consultation.

(7) Publication under this section is to be made in such manner as the Payment Systems Regulator considers best designed to bring the statement to the attention of the public.”

Commencement Information

I1 Sch. 7 para. 7 not in force at Royal Assent, see s. 86(3)

I2 Sch. 7 para. 7 in force at 29.8.2023 for specified purposes by S.I. 2023/779, reg. 4(ccc)(v)