15.—(1) Paragraph (2) applies if, before the commencement date—
(a)(i)the Authority—
(aa)gave notice to an authorised person or person connected with an authorised person (a “connected person”) under section 165(1) (Authority’s power to require information: authorised persons etc) requiring the provision of information or the production of documents, or
(bb)required a third person to produce a document under section 175(2) (information and documents: supplemental provisions); or
(ii)an officer of the Authority required an authorised person under section 165(3) to provide information or documents; and
(b)the information was not provided or the documents were not produced.
(2) The FCA may, with the consent of the PRA, make an election in relation to the notice or requirement.
(3) If the FCA makes an election in relation to the notice or the requirement—
(a)where the requirement was imposed under section 165(3), the requirement is to be treated as if it had been imposed—
(i)by an officer of the PRA who has written authorisation from the PRA; and
(ii)also by an officer of the FCA who has written authorisation from the FCA if, in the election, the FCA makes a statement to that effect; and
(b)in any other case, the notice or the requirement is to be treated as if it had been given or imposed—
(i)by the PRA, requiring the person to whom the notice was given to provide the information or to produce the documents to the PRA; and
(ii)by the FCA, requiring the person to whom the notice was given to provide the information or to produce the documents also to the FCA if, in the election, the FCA makes a statement to that effect.
(4) An election under paragraph (2) must—
(a)be in writing;
(b)specify the notice or requirement to which it relates;
(c)include a statement as to whether the requirement or notice is to be treated as if it had been given by—
(i)the PRA alone;
(ii)an officer of the PRA alone;
(iii)both the FCA and the PRA; or
(iv)both an officer of the FCA and an officer of the PRA; and
(d)be made within the period of 45 days which begins on the commencement date.
(5) If the requirement was imposed under the section 165(3), the election must also specify an officer of the PRA and, where a statement is made in compliance with paragraph (4)(c)(iv), an officer of the FCA to whom the information or documents are to be provided.
(6) The FCA must send a copy of the election to—
(a)the authorised person, the connected person or the third person (as the case may be); and
(b)the PRA.
16.—(1) Paragraph (2) applies if, before the commencement date—
(a)the Authority gave notice to a person under section 165A(3) (power to require information: financial stability) requiring the provision of information or the production of documents; and
(b)the information was not provided or the documents were not produced to the Authority.
(2) The notice is to be treated as if had been given by the PRA, requiring the person to whom the notice was given to provide the information or to produce the documents to the PRA.
17.—(1) Paragraphs (2) to (4) apply if, before the commencement date, the Authority—
(a)gave a notice under section 165B(1)(4) (safeguards etc in relation to exercise of power under section 165A); and
(b)had not decided whether to impose the requirement.
(2) The notice is to be treated as having been given by the PRA.
(3) Any representations made before the commencement date are to be treated as if they had been made to the PRA.
(4) Representations may be made to the PRA within the period specified in the notice.
18.—(1) Paragraphs (2) and (3) apply if, before the commencement date, the Authority—
(a)gave notice to a person under section 166(5) (reports by skilled persons); and
(b)did not receive the required report.
(2) The FCA may, with the consent of the PRA, make an election in relation to the notice.
(3) If the FCA makes an election in relation to the notice, the PRA and the notice are to be treated as if the PRA had given the notice.
(4) The FCA and the notice are also to be treated as if the FCA had given the notice if, in the election, the FCA makes a statement to that effect.
(5) The FCA may not make an election unless the person referred to as A in subsection (2) of section 166—
(a)is, on the commencement date, a PRA-authorised person; or
(b)would have been a PRA-authorised person if the relevant time (within the meaning of that subsection) had occurred on the commencement date.
(6) An election under paragraph (2) must—
(a)be in writing;
(b)specify the notice to which it relates;
(c)include a statement as to whether—
(i)the notice and the PRA are to be treated as if the PRA had given the notice; or
(ii)the notice, the FCA and the PRA are to be treated as if the FCA and the PRA had both given the notice; and
(d)be made within the period of 45 days which begins on the commencement date.
(7) The FCA must send a copy of the election to—
(a)the person to whom the notice was given; and
(b)the PRA.
19.—(1) Paragraphs (2) and (3) apply if, before the commencement date, the Authority—
(a)appointed a person under section 167(1)(6) (appointment of persons to carry out general investigations) or 168(3) or (5)(7) (appointment of persons to carry out investigations in particular cases); and
(b)had not issued a decision notice in relation to the matter which is the subject of the investigation.
(2) The FCA may, with the consent of the PRA, make an election in relation to the investigation.
(3) If the FCA makes an election in relation to the investigation, the PRA is to be treated as the investigating authority for the purposes of Part 11 (information gathering and investigations).
(4) The FCA is to be treated also as the investigating authority for the purposes of Part 11 if, in the election, the FCA makes a statement to that effect.
(5) An election under paragraph (2) must—
(a)be in writing;
(b)specify the investigation to which it relates;
(c)include a statement as to whether—
(i)the PRA alone is, or
(ii)the FCA and the PRA are both,
to be treated as the investigating authority for the purposes of Part 11; and
(d)be made within the period of 45 days which begins on the commencement date.
(6) The FCA must send a copy of the election to—
(a)the person appointed to carry out the investigation; and
(b)the PRA.
(7) Paragraph (8) applies if—
(a)before the commencement date, the Authority appointed a person under section 167(1), 168(3) or 168(5)(8); and
(b)an election is made under paragraph (2).
(8) Any written notice given by the Authority before the commencement date—
(a)of the appointment of the investigator for the purposes of section 170(2)(9) (investigations: general); or
(b)of a change in the scope or conduct of the investigation,
is to be treated as if it had been given by the PRA or, if the election includes a statement in compliance with paragraph (5)(c)(ii), by the FCA and the PRA.
(9) Paragraph (10) applies in respect of a contravention of a rule which occurred, and ceased to occur, before the commencement date.
(10) Section 168(4)(c) applies as if for “investigating authority” there were substituted “Financial Services Authority”.
20.—(1) Paragraph (2) applies if, before the commencement date, the Authority—
(a)received a request from an overseas regulator; and
(b)did not take action as mentioned in section 169(1)(10) (investigations etc in support of overseas regulator) or 169A(1)(11) (support of overseas regulator with respect to financial stability).
(2) The request is to be treated as if it had been received by the PRA and, for the purposes section 169, the FCA.
21. Section 176(12) (entry of premises under warrant) applies as if—
(a)information given on oath by the Authority before the commencement date had been given by a regulator;
(b)an information requirement imposed by the Authority before the commencement date had been imposed by a regulator;
(c)an investigator appointed by the Authority before the commencement date had been appointed by a regulator.
22.—(1) Paragraphs (2) and (3) apply in respect of legally privileged information disclosed by the FCA to—
(a)the PRA, for the purposes of the PRA’s functions; or
(b)to the Bank of England for the Bank of England’s functions conferred by or under FSMA 2000.
(2) In respect of any legally privileged information disclosed by the FCA to the PRA—
(a)the disclosure is to be ignored for the purposes of any claim to legal professional privilege or, in Scotland, confidentiality of communications which the FCA is entitled to make; and
(b)the PRA is to be entitled to claim legal professional privilege or, in Scotland, confidentiality of communications in respect of the information.
(3) In respect of any legally privileged information disclosed by the FCA to the Bank of England—
(a)the disclosure is to be ignored for the purposes of any claim to legal professional privilege or, in Scotland, confidentiality of communications which the FCA is entitled to make; and
(b)the Bank is to be entitled to claim legal professional privilege or, in Scotland, confidentiality of communications in respect of the information.
(4) In this article, “legally privileged information” means information received or generated by the Authority, before the commencement date, in respect of which the FCA could maintain a claim to legal professional privilege or, in Scotland, to confidentiality of communications in legal proceedings.
Section 165 is amended by the 2012 Act, Schedule 12, paragraph 1.
Section 175 is amended by the 2012 Act, Schedule 12, paragraph 13.
Section 165A was inserted by the Financial Services Act 2010, section 18 and is amended by the 2012 Act, Schedule 12, paragraph 2.
Section 165B was inserted by the Financial Services Act 2010, section 18 and is amended by the 2012 Act, Schedule 12, paragraph 3.
Section 166 is substituted by the 2012 Act, Schedule 12, paragraph 5.
Section 167(1) was amended by S.I. 2007/126 and is further amended by the 2012 Act, Schedule 12, Part 1, paragraph 7.
Section 168(3) and (5) is amended by the 2012 Act, Schedule 12, Part 1, paragraph 8.
Section 168 is amended by the 2012 Act, Schedule 12, paragraph 8. There are other amending instruments but none is relevant.
Section 170 is amended by the 2012 Act, Schedule 12, paragraph 11
Section 169 is amended by the 2012 Act, Schedule 12, paragraph 9. There are other amending instruments but none is relevant.
Section 169A was inserted by the Financial Services Act 2010, section 18 and is further amended by the 2012 Act, Schedule 12, paragraph 10.
Section 176 is amended by the 2012 Act, Schedule 12, paragraph 14. There are other amending instruments but none is relevant.