Financial Services and Markets Act 2000

Status:

Point in time view as at 30/01/2024.

Changes to legislation:

Financial Services and Markets Act 2000, Section 138I is up to date with all changes known to be in force on or before 04 June 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

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[F1138IConsultation by the FCAU.K.

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(1)Before making any rules, the FCA must—

(a)consult the PRA, and

(b)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—

(a)a cost benefit analysis,

(b)an explanation of the purpose of the proposed rules,

[F2(ba)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 FCA's reasons for believing that making the proposed rules is compatible with its duties under section 1B(1) [F3, (4A)] and (5)(a), and

(e)notice that representations about the proposals may be made to the FCA within a specified time.

(3)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.

[F4(4A)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);

[F5(aa)section 137FB;]

[F6(ab)section 137FBA;]

[F7(ac)section 137FC;]

[F8(ad)section 137SA;]

[F9(ae)section 137SB;]

(b)subsection (1) of section 213 as a result of subsection (4) of that section;

(c)section 234;

F10(ca). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(cb). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F12(cc)section 333T;]

(d)paragraph 23 of Schedule 1ZA;

F13(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

[F14(8A)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).

[F15(9A)This section does not apply to rules made by the FCA under section 271E.]

(10)Subsection (1)(a) does not apply to [F16—

(a)rules made by the FCA under section 137FB, [F17137FBA,] [F18, 137FC] [F19, 137SA] [F20, 137SB] F21... [F22or 333T], or