2013 No. 161
The Financial Services Act 2012 (Transitional Provisions) (Rules and Miscellaneous Provisions) Order 2013
Made
Laid before Parliament
Coming into force
The Treasury make the following Order in exercise of the powers conferred by section 115(2) and section 119(3), (4) and (5) of the Financial Services Act 20121:
PART 1Introductory
Citation, commencement and interpretation1
1
This Order may be cited as the Financial Services Act 2012 (Transitional Provisions) (Rules and Miscellaneous Provisions) Order 2013 and comes into force on 20th February 2013.
2
In this Order—
“the 2012 Act” means the Financial Services Act 2012;
“the Authority” means the Financial Services Authority;
“the commencement date” means 1st April 2013;
“a designating body” means—
- i
the FCA2;
- ii
the PRA;
- iii
the Bank of England;
- i
“an FCA-authorised person” means an authorised person who is not a PRA-authorised person;
“relevant instrument” has the meaning given in section 119(6) of the 2012 Act3.
3
Terms defined in FSMA 20004 have the same meaning in this Order.
4
Paragraph 2 of Schedule 205 to the 2012 Act does not apply for the purposes of Parts 1, 2 and 3 of this Order.
PART 2Designation of rules etc
Designation of rules etc2
1
A designating body may designate a relevant instrument, or part of a relevant instrument, which was made, issued, given or imposed by the Authority if the designating body considers it necessary or expedient to do so in consequence of any provision made by or under the 2012 Act.
2
If a designating body designates a relevant instrument or part, in accordance with this Part, the instrument or part is to be treated—
a
as having been made, issued, given or imposed by the designating body;
b
as having been made, issued, given or imposed (or also made, issued, given or imposed) under a corresponding provision of—
i
the 2012 Act;
ii
an enactment as amended by or under the 2012 Act.
3
A designating body may make such modifications to a relevant instrument or part designated, or being designated, by that body as the body considers necessary or expedient in consequence of any provision made by or under the 2012 Act.
Designating instruments3
1
To designate or modify a relevant instrument or part of a relevant instrument, the designating body must make an instrument in writing which specifies, or more than one instrument in writing which between them specify—
a
the relevant instrument or part;
b
any modifications being made to the relevant instrument or part;
c
the provision under which the relevant instrument or part was made;
d
where article 2(2)(b) applies, the corresponding provision; and
e
the date on which the designation is to come into effect.
2
In this Part, an instrument which, by itself or taken together with one or more other instruments, satisfies the requirements of paragraph (1) is a “designating instrument”.
3
Where a designating instrument specifies more than one relevant instrument or part, the requirements of paragraphs (1)(c) and (d) may be met by specifying the provisions and corresponding provisions relating to those relevant instruments or parts collectively.
4
The designating body must publish each designating instrument in the way appearing to the designating body to be best calculated to bring it to the attention of the public.
5
A person is not to be taken to have contravened a relevant instrument designated by a designating body if the person shows that, at the time of the alleged contravention, the designating instrument concerned had not been published.
6
A designating instrument is to be treated as a rule-making instrument for the purposes of section 138H (verification of rules) of FSMA 20006.
7
A designating instrument may contain provision other than that required by paragraph (1).
8
The making of a designating instrument is a legislative function for the purposes of—
a
paragraph 8(2) of Schedule 1ZA to FSMA 20007 (arrangements for discharging functions);
b
paragraph 16(2) of Schedule 1ZB to FSMA 20008 (arrangements for discharging functions);
c
section 85 of the 2012 Act (relevant functions in relation to complaints scheme).
9
Paragraph 8(2) of Schedule 1ZA to FSMA 2000, to the extent that it is not already in force, is to be treated for the purposes of this order as if it were in force.
Relevant instruments not designated before 1st April 20134
1
Paragraph (2) applies to any relevant instrument, or any part of a relevant instrument, which—
a
was made, issued, given or imposed by the Authority before the commencement date; and
b
is not designated before the commencement date in accordance with this Part.
2
The relevant instrument or part ceases to have effect on the commencement date.
3
Nothing in this article prevents a designating body from designating, on or after the commencement date, a relevant instrument or part to which paragraph (2) applies.
PART 3Exercise of functions by the FCA before the commencement date
Appointment of persons to discharge certain functions before the commencement date5
1
The Authority may appoint one or more persons to discharge a function to which this article applies.
2
An appointment must be made—
a
in writing; and
b
with the prior written approval of the Treasury.
3
The persons appointed may—
a
discharge functions to which this article applies as if they were the governing body of the FCA;
b
determine their own procedure, subject to the terms and conditions of their appointment.
4
The function of the Authority under paragraph (1) is to be treated as a function conferred on the Authority by or under FSMA 2000.
5
An appointment under this article terminates on the earlier of—
a
the commencement date; and
b
the date specified in the appointment (if any).
Functions which may be discharged by appointed persons6
1
Article 5 applies to—
a
the function of the FCA of designating a relevant instrument under article 2;
b
any other function of the FCA which is exercisable before the commencement date (“a pre-commencement function”);
c
the functions of the Authority of making rules under, or by virtue of—
i
the Regulated Covered Bond Regulations 20089;
ii
the Payment Services Regulations 200910;
iii
the Electronic Money Regulations 201111;
d
the functions of the Authority of giving guidance in relation to rules made, or in relation to functions of the Authority, under or by virtue of an enactment listed in sub-paragraph (c).
2
But article 5 only applies to the functions of making of rules, and of giving guidance, under or by virtue of an enactment listed in paragraph (1)(c) if the rules or guidance come into effect on or after the commencement date.
3
Paragraph (1)(c) and (d) and the enactments listed in paragraph (1)(c) apply as if references to the Authority were references to the FCA.
4
For the purposes of paragraph (3) and the exercise of functions listed in paragraph (1)(c) and (d)—
a
references to provisions of FSMA 2000 in the enactments listed in paragraph (1)(c) are to be read as references to those provisions as amended by the 2012 Act or (as the case may be) as repealed and re-enacted by the 2012 Act;
b
the 2012 Act is to be treated as if it were fully in force for that purpose; and
c
modifications of those provisions by those enactments are to be construed accordingly.
Discharge of functions by appointed persons7
1
Anything done before the commencement date—
a
in discharge of a function to which article 5 applies, and
b
by persons appointed in accordance with that article,
is to be treated as if it had been done by the FCA acting through its governing body.
2
Paragraph 7 of Schedule 20 to the 2012 Act (consultation) applies to the discharge of a function listed in article 6(1)(c) or (d) as it applies to the making of rules and the issuing of guidance under a provision of Part 5 or 6 of the 2012 Act or an amendment of FSMA 2000 made by any provision of the 2012 Act.
3
The following provisions of Schedule 1ZA to FSMA 2000 apply to persons appointed in accordance with article 5, or meetings of such persons, as if the persons were members of the governing body of the FCA—
a
paragraph 10 (publication of records of meetings of the governing body);
b
paragraph 16 (status); and
c
paragraph 25 (exemption from liability in damages).
4
For the purpose of paragraph (3), Schedule 3 to the 2012 Act is to be treated as if it were in force, but only to the extent that it—
a
substitutes the provisions listed in paragraph (3); and
b
is not already in force in respect of those provisions.
Rules replicating a pre-commencement threshold condition8
1
This article applies to rules made by the FCA—
a
before the commencement date;
b
which come into force on the commencement date; and
c
which make provision similar to any provision made in Schedule 6 to FSMA 2000 as it applied immediately before the commencement date.
2
Sections 138I (consultation by the FCA) and 138K (consultation: mutual societies) of FSMA 200012 do not apply to the making of the rules.
PART 4Transitional provisions: FSMA 2000
Modification or waiver of rules9
1
Paragraphs (2) to (4) apply where—
a
immediately before the commencement date, a direction has effect for the purpose of section 14813 of FSMA 2000 (modification or waiver of rules), and
b
the instrument by which the pre-commencement rules were made is designated in accordance with this Order.
2
The direction is to be treated as if it had been given under section 138A(1) of FSMA 200014 (modification or waiver of rules) by the relevant regulator in respect of the post-commencement rules.
3
Any direction published by the Authority before the commencement date for the purposes of section 148(6) of FSMA 2000 is to be treated as if it had been published by the relevant regulator for the purposes of section 138B of that Act15(publication of directions under section 138A).
4
But section 138B of FSMA 2000 does not apply to the direction if the Authority was satisfied, before the commencement date, that it was inappropriate or unnecessary to publish the direction.
5
Paragraph (6) applies where—
a
immediately before the commencement date, a direction has effect for the purpose of section 294 of FSMA 2000 (modification or waiver of rules) in relation to a recognised clearing house; and
b
the instrument by which the pre-commencement rules were made is designated in accordance with this Order by the Bank of England.
6
The direction is to be treated as if it had been given by the Bank of England in relation to the recognised clearing house in respect of the post-commencement rules.
Applications for a modification or waiver of rules10
1
Paragraph (2) applies if, before the commencement date, the Authority—
a
received an application under section 148(2) of FSMA 2000; and
b
had not determined the application.
2
The application is to be treated as if it had been made under section 138A(1) of FSMA 2000 to the relevant regulator in respect of the post-commencement rules.
3
Paragraph (4) applies if—
a
before the commencement date, the Authority received an application under section 294(1) of FSMA 2000 in respect of a recognised clearing house; and
b
had not determined the application.
4
The application is to be treated as if it had been made to the Bank of England in relation to the recognised clearing house in respect of the post-commencement rules.
Interpretation11
In this Part—
“the post-commencement rules” means the rules which—
- a
make provision similar or identical to that made by the pre-commencement rules; and
- b
are treated as made by the relevant regulator by virtue of that regulator designating, in accordance with this Order, the instrument or the part of an instrument by which the pre-commencement rules were made;
- a
“the pre-commencement rules” means the rules—
- a
made by the Authority;
- b
in force immediately before the commencement date; and
- c
to which the direction or the application relates;
- a
“the relevant regulator” means the designating body which designates, or (as the case may be) the designating bodies which designate, in accordance with this Order the instrument or the part of an instrument by which the pre-commencement rules were made.
PART 5The Bank of England Act 1998
Functions of the Oversight Committee12
1
Paragraphs (2) and (3) have effect until the commencement date.
2
Paragraphs 5 and 9 of Schedule 2A to the Bank of England Act 199816 (the Financial Policy Committee) have effect as if for “the Oversight Committee”, in each place, there were substituted “the sub-committee constituted under section 3 of that Act”.
3
Paragraph 15 of Schedule 1ZB to FSMA 200017 has effect as if—
a
in sub-paragraph (1) of that paragraph, for “the Oversight Committee” there were substituted “the sub-committee of the court of directors of the Bank constituted under section 3 of the Bank of England Act 1998”; and
b
in sub-paragraph (2) of that paragraph, for “that Committee” there were substituted “that sub-committee”.
(This note is not part of the Order)