The Financial Services and Markets Act 2000 (Transitional Provisions and Savings) (Rules) Order 2001

PART III CONSULTATION UNDERTAKEN BEFORE COMMENCMENT

Interpretation

12.—(1) This Part applies to an instrument which contains—

(a) a statement or code which the Authority proposes to make under section 64 (conduct expected of approved persons);

(b) a statement of policy which the Authority proposes to issue under section 69 (penalties for misconduct of approved persons);

(c) a statement of policy which the Authority (in its capacity as the competent authority) proposes to issue under section 93 (penalties for breach of listing rules);

(d) a code which the Authority proposes to issue under section 119 (guidance on market abuse);

(e) a statement of policy which the Authority proposes to issue under section 124 (penalties for market abuse);

(f) rules or guidance which the Authority proposes to make or issue to which the procedure set out in section 155 would otherwise apply;

(g) a statement of policy which the Authority proposes to issue under section 210 (penalties imposed under Part XIV);

(h) a direction which the Authority proposes to give under section 316 or 318 (Lloyd's);

(i) a direction which the Authority proposes to give under section 328(1) (members of the professions);

(j) a statement of procedure which the Authority proposes to issue under section 395 (giving of notices);

(k) a complaints scheme which the Authority proposes to make under paragraph 7 of Schedule 1.

(2) In this Part, the “relevant consultation requirements” in relation to an instrument are the procedural requirements set out in the Act with regard to—

(a) the publication of the provisions which it is proposed to include in the instrument; and

(b) the necessary items which must accompany any such publication,

which the Authority must satisfy if it proposes to make the instrument in question.

(3) A “necessary item” is one or more of the following, if required to be published by the relevant consultation requirements—

(a) a cost benefit analysis;

(b) an explanation of the purpose of the provisions;

(c) an explanation of the Authority’s reasons for believing that making the instrument is compatible with its general duties under section 2;

(d) details of the expected expenditure by reference to which the proposal is made.

Consultation on new rules etc. before Royal Assent

13.—(1) This article applies to a consultation which—

(a) took place at any time before 14th June 2000 (being the date on which the Act received Royal Assent);

(b) was undertaken in relation to provisions proposed to be included in an instrument to which this Part applies;

(c) included the publication of those provisions in the manner which appeared to the Authority to be best calculated to bring it to the attention of the public; and

(d) invited representations about the provisions to be made to the Authority within a specified time; but

(e) was not accompanied by a necessary item.

(2) Where the Authority makes, issues or gives an instrument containing provisions which have been the subject of consultation to which this article applies then, provided the requirements of paragraph (3) are met, the Authority is to be treated as having satisfied the relevant consultation requirements in respect of that instrument in so far as it contains those provisions.

(3) The requirements of this paragraph are that—

(a) the Authority must, before making, issuing or giving the instrument, publish any necessary item in the form required by the relevant consultation requirements;

(b) the necessary item must be accompanied by a notice that representations about the matters contained in it may be made to the Authority within the period specified in the notice;

(c) before making the instrument to which the necessary item relates, the Authority must have regard to any representations made to it either in response to the invitation referred to in paragraph (1)(d) or in accordance with sub-paragraph (b).

(4) If the Authority makes an instrument containing the provisions which have been the subject of consultation to which this article applies then—

(a) the Authority must publish an account, in general terms, of the representations made to it either in response to the invitation referred to in paragraph (1)(d) or in accordance with paragraph (3)(b) and its response to them;

(b) if the instrument made differs from the provisions published in a way which is, in the opinion of the Authority, significant the Authority must comply with any requirement imposed by the Act in a case when such a difference arises between what is published for consultation and what is contained in an instrument of that kind.

Anticipatory consultation

14.—(1) If, before this Order comes into force, the Authority takes steps in relation to an instrument to which this Part applies and those steps would, if they had been taken after that date, satisfy the requirements of paragraph (3) or (4) of article 13, then article 13 applies to that instrument as if those steps had been taken after this Order comes into force.

(2) If, before the relevant consultation requirements in relation to an instrument come into force, any steps were undertaken in relation to provisions contained in a draft instrument to which this Part applies, then, if those steps, had they been undertaken after commencement, would to any extent have satisfied any requirements laid down in or under the Act for the making of that instrument, those requirements are to that extent to be treated as having been satisfied on the date when the last such requirement was satisfied.

Appropriate comparison for cost benefit analysis

15.  Where, pursuant to this Order or to a relevant consultation requirement, the Authority publishes a cost benefit analysis which involves comparison with the overall position if the instrument in question was not made, the Authority may disregard, in making that comparison, the repeal, revocation or lapsing at commencement of any enactment, subordinate legislation or other instrument or provision (including guidance in writing or other legible form).