C87C86C85C101F1PART 9ARules and Guidance
Pt. 9A applied (with modifications) (31.12.2020) by The Transparency of Securities Financing Transactions and of Reuse (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/542), regs. 1, 35 (as amended by S.I. 2020/1385, regs. 1(4), 56(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (31.12.2020) by The Solvency 2 and Insurance (Amendment, etc.) (EU Exit) Regulations 2019 (S.I. 2019/407), regs. 1(2), 4, Sch. 3 (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 27(a) and S.I. 2020/1385, regs. 1(2), 54(2))
Pt. 9A applied (with modifications) (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 74 (as amended by S.I. 2020/1385, regs. 1(4), 52(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49A(12) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
C59C56C89C88C87C86C85C102C101CHAPTER 2Rules: modification, waiver, contravention and procedural provisions
Pt. 9A Ch. 2 applied (with modifications) by S.I. 2011/99, Sch. 3 para. 2A(2)(3) (as inserted (13.8.2017 for specified purposes, 13.10.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(c)(iii)(3)(f)(i)(6), Sch. 8 para. 5(31)(a) (with reg. 3) and as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 2(3)(a)(iii)-(v))
Pt. 9A Ch. 2 applied (with modifications) (13.8.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(b)(ii)(6), Sch. 6 para. 3(2) (with reg. 3) (as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 4(5)(a)(iii))
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 209(6) (with reg. 209(7)); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 208(7) (with reg. 208(8)); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A Ch. 2 applied in part (1.7.2021) by Regulation (EU) No. 600/2014, Art. 50D (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 12 (with Sch. 10 para. 13); S.I. 2021/739, reg. 3(o))
Modification or waiver of rules
C32C10C38C20C26C29C23C72C89C82C88C87C86C85C108C124C109C129138AModification or waiver of rules
C36C161
Either regulator may, on the application or with the consent of a person who is subject to rules made by that regulator, direct that all or any of those rules—
a
are not to apply to that person, or
b
are to apply to that person with such modifications as may be specified in the direction.
2
Subsection (1) does not apply to—
F3za
rules made by either regulator under section 64A (rules of conduct);
a
rules made by either regulator under section 137O (threshold condition code);
b
rules made by the FCA under section 247 (trust scheme rules) F2, section 248 (scheme particulars rules), section 261I (contractual scheme rules) or section 261J (contractual scheme particulars rules);
C8C123
An application must be made in such manner as the regulator may direct.
C39C21C8C30C24C17C27C37C12C334
A regulator may not give a direction unless it is satisfied that—
a
compliance by the person with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made, and
b
the direction would not adversely affect the advancement of any of the regulator's objectives.
C8C125
In subsection (4)(b) “objectives”, in relation to the FCA, means operational objectives.
C8C16C126
A direction may be given subject to conditions.
C8C16C127
The regulator may—
a
revoke a direction, or
b
vary it on the application, or with the consent, of the person to whom it relates.
8
“Direction” means a direction under this section.
C4C13C64C89C81C88C87C86C85C123C110138BPublication of directions under section 138A
1
Subject to subsection (2), a direction must be published by the regulator concerned in the way appearing to the regulator to be best calculated for bringing it to the attention of—
a
persons likely to be affected by it, and
b
persons who are, in the opinion of the regulator, likely to make an application for a similar direction.
2
Subsection (1) does not apply if the regulator is satisfied that it is inappropriate or unnecessary to publish the direction.
3
In deciding whether it is satisfied as mentioned in subsection (2), the regulator must—
a
consider whether the publication of the direction would be detrimental to the stability of the UK financial system,
b
take into account whether the direction relates to a rule contravention of which is actionable in accordance with section 138D,
c
consider whether publication of the direction would prejudice, to an unreasonable degree, the commercial interests of the person concerned or any other member of the person's immediate group, and
d
consider whether its publication would be contrary to an international obligation of the United Kingdom.
4
The FCA must consult the PRA before publishing or deciding not to publish a direction which relates to—
a
a PRA-authorised person, or
b
an authorised person who has as a member of its immediate group a PRA-authorised person.
5
For the purposes of paragraphs (c) and (d) of subsection (3), the regulator must consider whether it would be possible to publish the direction without either of the consequences mentioned in those paragraphs by publishing it without disclosing the identity of the person concerned.
6
“Direction” means a direction under section 138A.
138BAF44Disapplication or modification of rules in individual cases
1
This section applies to rules made by a regulator if, or to the extent that, regulations made by the Treasury provide for it to apply.
2
The regulator may, on the application or with the consent of a person who is subject to the rules, give the person a permission that enables the person—
a
not to apply the rules, or
b
to apply the rules with the modifications specified in the permission.
3
Subsections (1) and (2) do not apply to—
a
rules made by either regulator under section 64A (rules of conduct);
b
rules made by either regulator under section 137O (threshold condition code);
c
rules made by the FCA under section 247 (trust scheme rules), section 248 (scheme particular rules), section 261I (contractual scheme rules) or section 261J (contractual scheme particulars rules);
d
rules made by the FCA under section 309Z(1) (rules of conduct).
4
The regulator may—
a
give permission under this section subject to conditions, and
b
revoke or vary permission given under this section.
5
Regulations under subsection (1) may make provision about procedural matters in relation to the giving of permission under this section.
6
Provision under subsection (5) may (among other things) include provision about—
a
the making of applications;
b
the determination of applications (including matters to be taken into account in doing so);
c
the giving and withdrawal of consent;
d
requirements as to notification or publication of decisions of a regulator under this section;
e
appeals in respect of decisions of a regulator under this section.
7
Before making regulations under this section in relation to rules made by a regulator the Treasury must consult the regulator.
Contravention of rules
C94C102C101C126C111C121C120C132138CEvidential provisions
1
If a particular rule made by either regulator so provides, contravention of the rule does not give rise to any of the consequences provided for by other provisions of this Act.
2
A rule made by a regulator which so provides must also provide—
a
that contravention may be relied on as tending to establish contravention of such other rule made by that regulator as may be specified, or
b
that compliance may be relied on as tending to establish compliance with such other rule made by that regulator as may be specified.
3
A rule may include the provision mentioned in subsection (1) only if the regulator making the rule considers that it is appropriate for it also to include the provision required by subsection (2).
4
In this section “rule” does not include a rule made under—
a
section 137O (threshold condition code);
b
section 192J (provision of information by parent undertakings).
C14C11C57C59C56C125C118C119138DActions for damages
1
A rule made by the PRA may provide that contravention of the rule is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.
2
A contravention by an authorised person of a rule made by the FCA is actionable at the suit of a private person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.
3
If rules made by the FCA so provide, subsection (2) does not apply to a contravention of a specified provision of the rules.
4
In prescribed cases, a contravention of a rule which by virtue of subsection (1) or (2) would be actionable at the suit of a private person is actionable at the suit of a person who is not a private person, subject to the defences and other incidents applying to actions for breach of statutory duty.
5
In subsections (1), (2) and (3) “rule” does not include—
F4za
rules under section 64A (rules of conduct);
F49zaa
rules under Part 5A;
a
Part 6 rules;
b
rules under section 137O (threshold condition code);
c
rules under section 192J (provision of information by parent undertakings);
d
a rule requiring an authorised person to have or maintain financial resources.
6
“Private person” has such meaning as may be prescribed.
C69C65C102C95C101C122C112C131138ELimits on effect of contravening rules
1
A person is not guilty of an offence by reason of a contravention of a rule made by either regulator.
2
No such contravention makes any transaction void or unenforceable.
3
Subsection (2) does not apply in relation to—
a
rules made by the FCA under section 137C, F10...
d
rules made by the FCA under section 137FDF60; or
Procedural provisions
C122138EAF45Matters to consider when making rules
1
This section applies where either regulator proposes to make rules.
2
The regulator must have regard to any specified matters that are relevant to the making of the rules in question.
3
“Specified” means specified in regulations made by the Treasury for the purposes of this section.
4
The specification of a matter for the purposes of this section may apply generally to the making of rules or be limited in whatever way the Treasury consider appropriate, including by reference to—
a
the power under which the rules are made;
b
the persons to whom the rules apply;
c
the activities or subject-matter to which the rules relate.
5
The requirement imposed by subsection (2) does not apply in respect of any rules if, or to the extent that, the rules are made for the purposes of—
a
complying with a direction given by the Financial Policy Committee of the Bank of England under section 9H of the Bank of England Act 1998 (directions requiring macro-prudential measures), or
b
acting in accordance with a recommendation made by that Committee under section 9Q of that Act (recommendations about the exercise of the FCA and PRA functions).
6
The requirement to have regard to specified matters under this section when making rules is in addition to any other requirements to have regard to matters when making such rules imposed by another provision of this Act or by any other enactment.
C70C66C75C74C73C89C83C88C78C87C86C85C102C96C90C101C122C113C127138FNotification of rules
F61
If either regulator makes, alters or revokes any rules, that regulator must without delay give written notice F19to the Treasury.
F181A
The FCA must also give written notice to the Bank of England.
F72
C67C75C74C73C89C88C78C87C86C84C85C102C91C101C97C122C114C127138GRule-making instruments
1
Any power conferred on either regulator to make rules is exercisable in writing.
2
An instrument by which rules are made by either regulator (“a rule-making instrument”) must specify the provision under which the rules are made.
3
To the extent that a rule-making instrument does not comply with subsection (2), it is void.
4
A rule-making instrument must be published by the regulator making the rule in the way appearing to that regulator to be best calculated to bring it to the attention of the public.
5
The regulator making the rule may charge a reasonable fee for providing a person with a copy of a rule-making instrument.
6
A person is not to be taken to have contravened any rule made by a regulator if the person shows that at the time of the alleged contravention the rule-making instrument concerned had not been made available in accordance with this section.
C1C9C47C71C68C77C75C74C73C89C79C88C78C87C86C85C102C101C98C122C115C127138HVerification of rules
1
The production of a printed copy of a rule-making instrument purporting to be made by a regulator—
a
on which is endorsed a certificate signed by a member of staff of that regulator who is authorised by the regulator for that purpose, and
b
which contains the required statements,
is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.
2
The required statements are—
a
that the instrument was made by the FCA or the PRA (as the case may be),
b
that the copy is a true copy of the instrument, and
c
that on a specified date the instrument was made available to the public in accordance with section 138G(4).
3
A certificate purporting to be signed as mentioned in subsection (1) is to be taken to have been properly signed unless the contrary is shown.
4
A person who wishes in any legal proceedings to rely on a rule-making instrument may require the regulator that made the rule to endorse a copy of the instrument with a certificate of the kind mentioned in subsection (1).
C2C15C18C41C42C44C48C50C53C61C63C76C75C74C73C89C88C78C87C80C86C85C92C102C101C99C103C104C105C128138IConsultation by the FCA
1
Before making any rules, the FCA must—
a
consult the PRA, and
C19b
after doing so, publish a draft of the proposed rules in the way appearing to the FCA to be best calculated to bring them to the attention of the public.
2
The draft must be accompanied by—
C43a
a cost benefit analysis,
b
an explanation of the purpose of the proposed rules,
F51ba
an explanation of the ways in which having regard to specified matters under section 138EA(2) has affected the proposed rules,
c
any statement prepared under section 138K(2),
C7C62d
an explanation of the FCA's reasons for believing that making the proposed rules is compatible with its duties under section 1B(1) F53, (4A) and (5)(a), and
C19e
notice that representations about the proposals may be made to the FCA within a specified time.
C193
Before making the proposed rules, the FCA must have regard to any representations made to it in accordance with subsection (2)(e).
4
If the FCA makes the proposed rules, it must publish an account, in general terms, of—
a
the representations made to it in accordance with subsection (2)(e), and
b
its response to them.
F524A
The FCA must include, in the account mentioned in subsection (4), a list of the respondents who made the representations, where those respondents have consented to the publication of their names.
4B
The duty in subsection (4A) is not to be read as authorising or requiring such processing of personal data as would contravene the data protection legislation (but the duty is to be taken into account in determining whether particular processing of data would contravene that legislation).
4C
For the purposes of this section, the exemption relating to functions conferred on the FCA mentioned in paragraph 11 of Schedule 2 to the Data Protection Act 2018 (exemption from application of listed GDPR provisions) does not apply.
4D
Where representations are made to the FCA by a Committee of the House of Commons or the House of Lords or a Joint Committee of both Houses in accordance with subsection (2)(e), the FCA’s account mentioned in subsection (4) must also describe how the FCA has considered the representations made by that Committee in making the proposed rules.
5
If the rules differ from the draft published under subsection (1)(b) in a way which is, in the opinion of the FCA, significant the FCA must publish—
a
details of the difference (in addition to complying with subsection (4)) together with a cost benefit analysis, and
b
any statement prepared under section 138K(4).
6
The requirements to carry out a cost benefit analysis under this section do not apply in relation to rules made under—
a
section 136(2);
F8aa
section 137FB;
F16ab
section 137FBA;
F29ac
section 137FC;
F22ad
section 137SA;
F25ae
section 137SB;
b
subsection (1) of section 213 as a result of subsection (4) of that section;
c
section 234;
F30ca
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F31cb
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14cc
section 333T;
d
paragraph 23 of Schedule 1ZA;
F34e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
“Cost benefit analysis” means—
a
an analysis of the costs together with an analysis of the benefits that will arise—
i
if the proposed rules are made, or
ii
if subsection (5) applies, from the rules that have been made, and
b
subject to subsection (8), an estimate of those costs and of those benefits.
8
If, in the opinion of the FCA—
a
the costs or benefits referred to in subsection (7) cannot reasonably be estimated, or
b
it is not reasonably practicable to produce an estimate,
the cost benefit analysis need not estimate them, but must include a statement of the FCA's opinion and an explanation of it.
F508A
The requirement to provide the explanation referred to in subsection (2)(ba) does not apply in relation to any rules if—
a
the FCA considers that the delay involved in complying with that requirement would be prejudicial to the interests of consumers (as defined in section 425A) or other persons whose interests would be protected by the rules, or
b
the rules change existing rules and the changes consist of, or include, changes which, in the FCA’s opinion, are not material.
8B
Where an explanation is not provided by virtue of subsection (8A)(b), the draft of the rules must be accompanied by a statement of the FCA’s opinion.
9
The FCA may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1)(b).
F419A
This section does not apply to rules made by the FCA under section 271E.
10
Subsection (1)(a) does not apply to F9—
a
b
rules made by the FCA in relation to recognised investment exchanges under Part 18.
11
This section is subject to section 138L.
138IAF46FCA Cost Benefit Analysis Panel
1
The FCA must establish and maintain a panel of persons (to be known as the “FCA Cost Benefit Analysis Panel”) to provide advice in relation to cost benefit analyses for the purposes of section 138I.
2
Except as provided by subsection (3), the FCA must consult the FCA Cost Benefit Analysis Panel about the following matters—
a
the preparation of a cost benefit analysis under section 138I(2)(a) or (5)(a);
b
the preparation of its statement of policy under section 138IB.
3
The requirement to consult under subsection (2)(a) does not apply in such cases as may be set out in the statement of policy maintained under section 138IB.
4
Arrangements made by the FCA under subsection (1) for the establishment and maintenance of the FCA Cost Benefit Analysis Panel must include arrangements for the Panel to—
a
keep under review how the FCA is performing generally in carrying out its duties under section 138I(2)(a) and (5)(a), and
b
provide to the FCA whatever recommendations the Panel thinks appropriate as a result of such review.
5
The FCA must appoint one of the members of the FCA Cost Benefit Analysis Panel to be the chair of the Panel.
6
The Treasury’s approval is required for the appointment or dismissal of the chair.
7
The FCA must appoint to the FCA Cost Benefit Analysis Panel such persons with knowledge or experience of the preparation of cost benefit analyses as it considers appropriate.
8
The FCA must appoint to the FCA Cost Benefit Analysis Panel at least two individuals who are employed by persons authorised for the purposes of this Act by the FCA, with each one being employed by a different person.
9
The FCA may appoint to the FCA Cost Benefit Analysis Panel such other persons as it considers appropriate.
10
Subsections (7) to (9) are subject to section 1MA.
11
The FCA must consider representations that are made to it by the FCA Cost Benefit Analysis Panel.
12
The FCA must from time to time publish in such manner as it thinks fit responses to the representations.
138IBF47Statement of policy in relation to cost benefit analyses
1
The FCA must prepare and publish a statement of policy in relation to the preparation of cost benefit analyses for the purposes of section 138I.
2
The statement must provide information about—
a
the methodology adopted in preparing cost benefit analyses;
b
matters to which the FCA has regard in determining whether section 138I(8) applies;
c
matters to which the FCA has regard in determining whether an exemption under section 138L 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 138I(2)(e) 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;
f
arrangements to ensure that any recommendations in connection with cost benefit analyses that are made following a review carried out under section 138IA(4) are considered.
3
The statement may include whatever other information in relation to cost benefit analyses that the FCA considers appropriate.
4
The FCA may alter or replace a statement published under this section.
5
The FCA 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 FCA considers best designed to bring the statement to the attention of the public.
C42C46C52C49C54C75C74C73C89C88C78C87C86C85C106C116138JConsultation by the PRA
1
Before making any rules, the PRA must—
a
consult the FCA, and
b
after doing so, publish a draft of the proposed rules in the way appearing to the PRA to be best calculated to bring them to the attention of the public.
2
The draft must be accompanied by—
b
an explanation of the purpose of the proposed rules,
F55ba
an explanation of the ways in which having regard to specified matters under section 138EA(2) has affected the proposed rules,
c
any statement prepared under section 138K(2),
d
an explanation of the PRA's reasons for believing that making the proposed rules is compatible with its duties under—
i
section 2B(1) or, as the case requires, section 2C(1) or 2D(3), and
ii
section 2H, and
e
notice that representations about the proposals may be made to the PRA within a specified time.
3
Before making the proposed rules, the PRA must have regard to any representations made to it in accordance with subsection (2)(e).
4
If the PRA makes the proposed rules, it must publish an account, in general terms, of—
a
the representations made to it in accordance with subsection (2)(e), and
b
its response to them.
F564A
The PRA must include, in the account mentioned in subsection (4), a list of the respondents who made the representations, where those respondents have consented to the publication of their names.
4B
The duty in subsection (4A) is not to be read as authorising or requiring such processing of personal data as would contravene the data protection legislation (but the duty is to be taken into account in determining whether particular processing of data would contravene that legislation).
4C
For the purposes of this section, the exemption relating to functions conferred on the PRA mentioned in paragraph 9 of Schedule 2 to the Data Protection Act 2018 (exemption from application of listed GDPR provisions) does not apply.
4D
Where representations are made to the PRA by a Committee of the House of Commons or the House of Lords or a Joint Committee of both Houses in accordance with subsection (2)(e), the PRA’s account mentioned in subsection (4) must also describe how the PRA has considered the representations made by that Committee in making the proposed rules.
5
If the rules differ from the draft published under subsection (1)(b) in a way which is, in the opinion of the PRA, significant the PRA must publish—
C5a
details of the difference (in addition to complying with subsection (4)) together with a cost benefit analysis, and
b
any statement prepared under section 138K(4).
6
The requirements to carry out a cost benefit analysis under this section do not apply in relation to rules made under—
a
section 136(2);
b
subsection (1) of section 213 as a result of subsection (4) of that section;
c
section 234;
d
paragraph 31 of Schedule 1ZB;
F38e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
“Cost benefit analysis” means—
a
an analysis of the costs together with an analysis of the benefits that will arise—
i
if the proposed rules are made, or
ii
if subsection (5) applies, from the rules that have been made, and
b
subject to subsection (8), an estimate of those costs and of those benefits.
8
If, in the opinion of the PRA—
a
the costs or benefits referred to in subsection (7) cannot reasonably be estimated, or
b
it is not reasonably practicable to produce an estimate,
the cost benefit analysis need not estimate them, but must include a statement of the PRA's opinion and an explanation of it.
F548A
The requirement to provide the explanation referred to in subsection (2)(ba) does not apply in relation to any rules if—
a
the PRA considers that the delay involved in complying with that requirement would—
i
be prejudicial to the safety and soundness of PRA-authorised persons, or
ii
in a case where section 2C applies, be prejudicial to securing the appropriate degree of protection for policyholders, or
b
the rules change existing rules and the changes consist of, or include, changes which, in the PRA’s opinion, are not material.
8B
Where an explanation is not provided by virtue of subsection (8A)(b), the draft of the rules must be accompanied by a statement of the PRA’s opinion.
9
The PRA may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1)(b).
10
This section is subject to F39sections 138L and 144E(3).
138JAF57PRA Cost Benefit Analysis Panel
1
The PRA must establish and maintain a panel of persons (to be known as the “PRA Cost Benefit Analysis Panel”) to provide advice in relation to cost benefit analyses for the purposes of section 138J.
2
Except as provided by subsection (3), the PRA must consult the PRA Cost Benefit Analysis Panel about the following matters—
a
the preparation of a cost benefit analysis under section 138J(2)(a) or (5)(a);
b
the preparation of its statement of policy under section 138JB.
3
The requirement to consult under subsection (2)(a) does not apply in such cases as may be set out in the statement of policy maintained under section 138JB.
4
Arrangements made by the PRA under subsection (1) for the establishment and maintenance of the PRA Cost Benefit Analysis Panel must include arrangements for the Panel to—
a
keep under review how the PRA is performing generally in carrying out its duties under section 138J(2)(a) and (5)(a), and
b
provide to the PRA whatever recommendations the Panel thinks appropriate as a result of such review.
5
The PRA must appoint one of the members of the PRA Cost Benefit Analysis Panel to be the chair of the Panel.
6
The Treasury’s approval is required for the appointment or dismissal of the chair.
7
The PRA must appoint to the PRA Cost Benefit Analysis Panel such persons with knowledge or experience of the preparation of cost benefit analyses as it considers appropriate.
8
The PRA must appoint to the PRA Cost Benefit Analysis Panel at least two individuals who are employed by PRA-authorised persons, with each one being employed by a different person.
9
The PRA may appoint to the PRA Cost Benefit Analysis Panel such other persons as it considers appropriate.
10
Subsections (7) to (9) are subject to section 2LA.
11
The PRA must consider representations that are made to it by the PRA Cost Benefit Analysis Panel.
12
The PRA must from time to time publish in such manner as it thinks fit responses to the representations.
13
The reference in subsection (1) to section 138J includes a reference to that section as applied in relation to the Bank of England by paragraphs 10(1) and 10A of Schedule 17A.
138JBF48Statement of policy in relation to cost benefit analyses
1
The PRA must prepare and publish a statement of policy in relation to the preparation of cost benefit analyses for the purposes of section 138J.
2
The statement must provide information about—
a
the methodology adopted in preparing cost benefit analyses;
b
matters to which the PRA has regard in determining whether section 138J(8) applies;
c
matters to which the PRA has regard in determining whether an exemption under section 138L 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 138J(2)(e) are considered;
e
cases in which the requirement to consult the PRA Cost Benefit Analysis Panel in relation to the preparation of a cost benefit analysis does not apply;
f
arrangements to ensure that any recommendations in connection with cost benefit analyses that are made following a review carried out under section 138JA(4) are considered.
3
The statement may include whatever other information in relation to cost benefit analyses that the PRA considers appropriate.
4
The PRA may alter or replace a statement published under this section.
5
The PRA 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 PRA considers best designed to bring the statement to the attention of the public.
C3C42C51C49C55C75C74C73C89C88C78C87C86C85C107138KConsultation: mutual societies
1
Subsection (2) applies where a regulator proposes to make a rule (“the proposed rule”) which would apply both to—
a
authorised persons which are mutual societies, and
b
other authorised persons.
2
The regulator must prepare a statement setting out—
a
its opinion whether or not the impact of the proposed rule on persons within subsection (1)(a) will be significantly different from its impact on persons within subsection (1)(b), and
b
if so, details of the difference.
3
Subsection (4) applies where a regulator makes a rule which—
a
applies both to—
i
authorised persons which are mutual societies, and
ii
other authorised persons, and
b
differs from the draft of the proposed rule published under section 138I(1)(b) or section 138J(1)(b) (as the case may be).
4
The regulator must prepare a statement setting out—
a
its opinion whether or not the impact of the rule is significantly different from the impact of the proposed rule on—
i
the persons within subsection (3)(a)(i), and
ii
those persons as compared with persons within subsection (3)(a)(ii), and
b
if so, details of the difference.
5
A “mutual society” is—
a
a building society within the meaning of the Building Societies Act 1986;
b
a friendly society within the meaning of the Friendly Societies Act 1992;
c
a registered society within the meaning of F5the Co-operative and Community Benefit Societies Act 2014;
F37d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F376
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F407
This section is subject to section 144E(3).
C42C75C74C73C89C88C78C87C86C85C102C100C101C93C117C130138LConsultation: general exemptions
C31C40C34C25C28C22C35C58C601
Sections 138I(1)(b) and (2) to (5) and 138K do not apply in relation to rules made by the FCA if the FCA considers that the delay involved in complying with them would be prejudicial to the interests of consumers, as defined in section 425A.
C31C40C34C25C28C22C352
Sections 138J(1)(b) and (2) to (5) and 138K do not apply in relation to rules made by the PRA if the PRA considers that the delay involved in complying with them would—
a
be prejudicial to the safety and soundness of PRA-authorised persons, or
b
in a case where section 2C applies, be prejudicial to securing the appropriate degree of protection for policyholders.
3
The provisions listed in subsection (4) do not apply if the regulator concerned considers that, making the appropriate comparison—
a
there will be no increase in costs, or
b
there will be an increase in costs but that increase will be of minimal significance.
4
Those provisions are—
a
subsections (2)(a) and (5)(a) of section 138I;
b
subsections (2)(a) and (5)(a) of section 138J.
5
The “appropriate comparison” means—
a
in relation to section 138I(2)(a) or 138J(2)(a), a comparison between the overall position if the rules are made and the overall position if the rules are not made;
b
in relation to section 138I(5)(a) or 138J(5)(a), a comparison between the overall position after the making of the rules and the overall position before they were made.
C75C74C73C89C88C78C87C86C85138MConsultation: exemptions for temporary product intervention rules
1
Sections 138I(1)(b) and (2) to (5) and 138K do not apply in relation to product intervention rules made by the FCA if it considers that it is necessary or expedient not to comply with them for the purpose of advancing—
a
the consumer protection objective or the competition objective, or
b
if an order under section 137D(1)(b) is in force, the integrity objective.
2
Any rules made as a result of subsection (1) (“temporary product intervention rules”) are to cease to have effect at the end of the period specified in the rules.
3
The longest period that may be specified is the period of 12 months beginning with the day on which the rules come into force.
4
Nothing in subsection (2) prevents the FCA from revoking temporary product intervention rules before the end of the period mentioned there.
5
If the FCA has made temporary product intervention rules (“the initial rules”), it may not make further temporary product intervention rules containing the same, or substantially the same, provision as that contained in the initial rules until the prohibited period has ended.
6
“The prohibited period” means the period of 12 months beginning with the day on which the period mentioned in subsection (2) ends (whether or not the initial rules have been revoked before the end of the period mentioned there).
C75C74C73C89C88C78C87C86C85138NTemporary product intervention rules: statement of policy
1
The FCA must prepare and issue a statement of its policy with respect to the making of temporary product intervention rules.
2
The FCA may at any time alter or replace a statement issued under this section.
3
If a statement issued under this section is altered or replaced, the FCA must issue the altered or replacement statement.
4
The FCA must, without delay, give the Treasury a copy of any statement which it publishes under this section.
5
A statement issued under this section must be published by the FCA in the way appearing to the FCA to be best calculated to bring it to the attention of the public.
6
The FCA may charge a reasonable fee for providing a person with a copy of the statement.
C75C74C73C89C88C78C87C86C85138OStatement of policy under section 138N: procedure
1
Before issuing a statement under section 138N, the FCA must publish a draft of the proposed statement in the way appearing to the FCA 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 FCA within a specified time.
3
Before issuing the proposed statement, the FCA must have regard to any representations made to it in accordance with subsection (2).
4
If the FCA issues the proposed statement 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 differs from the draft published under subsection (1) in a way which is, in the opinion of the FCA, significant, the FCA must (in addition to complying with subsection (4)) publish details of the difference.
6
The FCA 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 alter or replace a statement.
Pt. 9A substituted for ss. 138-164 (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 24(1), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.