(1) The power of the FCA to make general rules includes power to make rules requiring authorised persons to take specified steps in connection with the setting by a specified person of a specified benchmark.
(2) The rules may in particular—
(a) require authorised persons to whom the rules apply to provide information of a specified kind, or expressions of opinion as to specified matters, to persons determined in accordance with the rules;
(b) make provision about the form in which and the time by which any information or expression of opinion is to be provided;
(c) make provision by reference to any code or other document published by the person responsible for the setting of the benchmark or by any other person determined in accordance with the rules, as the code or other document has effect from time to time.
(3) Rules making provision of the kind mentioned in subsection (2)(c) may provide that the code or other document is to be capable of affecting obligations imposed by the rules only if specified requirements are met in relation to it.
(4) In this section—
“benchmark” means a benchmark within the meaning of section 22... (6A);
“specified” means specified in or determined in accordance with the rules.
137FA FCA general rules: disclosure of information about pension scheme transaction costs etc
(1) The FCA must make general rules requiring information about some or all of the transaction costs of a relevant scheme to be given to some or all of the persons mentioned in subsection (2).
(2) Those persons are—
(a) members of the scheme,
(b) spouses or civil partners of members, and
(c) persons within the application of the scheme and qualifying or prospectively qualifying for its benefits.
(3) The FCA must make general rules requiring the publication of information about—
(a) some or all of the transaction costs of a relevant scheme, and
(b) some or all of the other administration charges imposed on members of a relevant scheme.
(4) Rules made by virtue of subsection (3) may require other relevant information to be published along with information about transaction costs or other administration charges in relation to a scheme.
(5) “Other relevant information” means other information which would or may assist in making comparisons between those costs or charges and costs or charges in relation to other schemes.
(6) Before the FCA publishes a draft of any rules to be made by virtue of this section, it must consult—
(a) the Secretary of State, and
(b) the Treasury.
(7) In determining what provision to include in the rules, the FCA must have regard to any regulations about the disclosure or publication of transaction costs or other administration charges that are for the time being in force under section 113 of the Pension Schemes Act 1993.
(8) In this section—
“administration charge” has the meaning given by paragraph 1(5) of Schedule 18 to the Pensions Act 2014;
“money purchase scheme” has the meaning given by section 181(1) of the Pension Schemes Act 1993;
“personal pension scheme” has the meaning given by section 1 of the Pension Schemes Act 1993;
“relevant scheme” means a money purchase scheme that is—
a personal pension scheme where direct payment arrangements (within the meaning of section 111A of the Pension Schemes Act 1993) exist in respect of one or more members of the scheme who are workers, or
a personal pension scheme which is or has been registered under section 2 of the Welfare Reform and Pensions Act 1999 (stakeholder pension schemes);
“worker” means a person—
who is a worker for the purposes of Part 1 of the Pensions Act 2008, or
to whom a provision of Part 1 of that Act applies as if the person were a worker because of a provision of Chapter 8 of that Part;
but for the purposes of paragraph (b), ignore section 92 of that Act.
(1) The FCA must make general rules imposing requirements on specified authorised persons with respect to—
(a) providing pensions information by means of—
(i) a qualifying pensions dashboard service;
(ii) the pensions dashboard service provided by the Money and Pensions Service;
(b) facilitating the provision of pensions information by means of—
(i) a qualifying pensions dashboard service;
(ii) the pensions dashboard service provided by the Money and Pensions Service.
(2) In this section “pensions information” means, in relation to a personal or stakeholder pension scheme, information of a description specified in rules made by virtue of subsection (1), which may include in particular—
(a) information relating to—
(i) the constitution of the scheme,
(ii) the administration and finances of the scheme,
(iii) the rights and obligations that arise or may arise under the scheme,
(iv) the pensions and other benefits an entitlement to which would be likely to accrue to a member, or be capable of being secured by a member, in respect of the rights that may arise under the scheme, and
(v) other matters relevant to personal or stakeholder pension schemes in general or to personal or stakeholder pension schemes of a description to which the scheme belongs;
(b) information as regards the position of an individual in relation to the scheme.
(3) Rules made by virtue of subsection (1) may, in particular, impose requirements about—
(a) the persons to whom pensions information must be provided;
(b) the circumstances in which pensions information must be provided;
(c) the steps to be taken before pensions information may be provided;
(d) the manner and form in which pensions information must be provided;
(e) the time within which pensions information must be provided;
(f) the way in which pensions information must be held.
(4) Rules made by virtue of subsection (1) may require specified authorised persons to comply with standards, specifications or technical requirements published from time to time by—
(a) the Secretary of State,
(b) the Money and Pensions Service, or
(c) a person specified or of a description specified in the rules.
(5) Rules made by virtue of subsection (1) may include provision under which a determination may fall to be made by—
(a) the Secretary of State,
(b) the Money and Pensions Service, or
(c) a person specified or of a description specified in the rules.
(6) Rules made by virtue of subsection (1) may require specified authorised persons to provide information specified in the rules about their carrying out of requirements specified in the rules to—
(a) the FCA,
(b) the Money and Pensions Service, or
(c) a person specified or of a description specified in the rules.
(7) Rules made by virtue of subsection (1) may require specified authorised persons to have regard, in complying with requirements specified in the rules, to guidance issued from time to time by a person specified or of a description specified in the rules.
(8) In determining what provision to include in the rules, the FCA must have regard to any regulations that are for the time being in force under—
(a) section 238D of the Pensions Act 2004, or
(b) Article 215D of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)).
(1) General rules made by virtue of section 137FAA(1) may make provision about—
(a) how pensions information is to be provided, including provision about the use of intermediaries;
(b) the involvement of specified authorised persons in the arrangements for dealing with requests for information about pensions.
(2) The provision made by virtue of subsection (1) may, in particular, require—
(a) the use of electronic communications;
(b) the use of facilities or services specified or of a description specified in the rules;
(c) the provision of assistance in connection with the establishment, maintenance or management of such facilities or services;
(d) participation in, or compliance with, arrangements for establishing, maintaining or managing such facilities or services.
(3) The facilities and services for which provision may be made by virtue of subsection (2)(b) may include facilities or services with functions relating to—
(a) the transmission of information,
(b) verifying the identity of a person,
(c) identifying the occupational or personal pension scheme or schemes (as defined in section 1 of the Pension Schemes Act 1993 or the Pension Schemes (Northern Ireland) Act 1993) under which pensions are payable to or in respect of a particular individual,
(d) authenticating information transmitted by means of electronic communications, or
(e) ensuring the security of information transmitted by means of electronic communications.
(4) Rules made by virtue of subsection (2)(b) may impose requirements as regards a facility or service, including requirements about—
(a) compliance with standards, specifications or technical requirements published from time to time by—
(i) the Secretary of State,
(ii) the Money and Pensions Service, or
(iii) a person specified or of a description specified in the rules;
(b) the provider of the facility or service being a person approved from time to time by—
(i) the Secretary of State,
(ii) the Money and Pensions Service, or
(iii) a person specified or of a description specified in the rules.
(5) Rules made by virtue of subsection (2)(d) may, in particular, require specified authorised persons—
(a) to cooperate with the Money and Pensions Service or a person specified or of a description specified in the rules;
(b) to coordinate activities with the Money and Pensions Service or a person specified or of a description specified in the rules.
(6) Except as provided by subsection (7), general rules made by virtue of section 137FAA(1) may provide for the processing of personal data in accordance with the rules not to be in breach of—
(a) any obligation of confidence owed by the person processing the personal data, or
(b) any other restriction on the processing of personal data (however imposed).
(7) General rules made by virtue of section 137FAA(1) are not to be read as authorising or requiring such processing of personal data as would contravene the data protection legislation (but in determining whether particular processing of data would do so, take into account the power conferred or duty imposed by the provision of the rules in question).
(1) Before the FCA publishes a draft of any general rules to be made by virtue of section 137FAA, it must consult—
(a) the Secretary of State, and
(b) the Treasury.
(2) Section 137FAA is not to be treated as requiring the FCA to make general rules by virtue of section 137FAA that come into force before regulations made under section 238D of the Pensions Act 2004 come into force.
(3) Section 137FAA is not to be treated as requiring the FCA to exercise the power to make general rules by virtue of section 137FAA in relation to every case to which the power extends.
(4) A reference in sections 137FAA and 137FAB to the Money and Pensions Service includes a reference to a person with whom arrangements are made under section 5(1), (2) or (3) of the Financial Guidance and Claims Act 2018.
(5) In sections 137FAA and 137FAB—
“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);
“pensions dashboard service” means—
a pensions dashboard service within the meaning of section 238A of the Pensions Act 2004, or
a pensions dashboard service within the meaning of Article 215A of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1));
“personal data” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);
“personal pension scheme” means a personal pension scheme within the meaning of an order under section 22 (except in section 137FAB(3)(c));
“qualifying pensions dashboard service” means a pensions dashboard service that satisfies—
such requirements as may be prescribed by regulations under section 238A of the Pensions Act 2004, or
such requirements as may be prescribed by regulations under Article 215A of the ;
“specified authorised person” means an authorised person of a description specified in general rules made by virtue of section 137FAA;
“stakeholder pension scheme” has the meaning given by—
section 1 of the Welfare Reform and Pensions Act 1999, in relation to England and Wales and Scotland;
Article 3 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11)), in relation to Northern Ireland.
137FB FCA general rules: disclosure of information about the availability of pensions guidance
(1) The FCA must make general rules requiring information about the availability of pensions guidance to be given by the trustees or managers of a relevant pension scheme to members of the scheme, and survivors of members of the scheme, with subsisting rights in respect of any flexible benefits.
(1A) The FCA must also make general rules requiring the trustees or managers of a relevant pension scheme to take the steps mentioned in subsections (1B) and (1C) in relation to an application from a member or survivor—
(a) to transfer any rights accrued under the scheme, or
(b) to start receiving benefits provided by the scheme.
(1B) As part of the application process, the trustees or managers must ensure that—
(a) the member or survivor is referred to appropriate pensions guidance, and
(b) the member or survivor is provided with an explanation of the nature and purpose of such guidance.
(1C) Before proceeding with the application, the trustees or managers must ensure that the member or survivor has either received appropriate pensions guidance or has opted out of receiving such guidance.
(1D) The rules may—
(a) specify what constitutes appropriate pensions guidance;
(b) make further provision about how the trustees or managers must comply with the duties in subsections (1B) and (1C) (such as provision about methods of communication and time limits);
(c) make further provision about how, and to whom, a member or survivor may indicate that they have received or opted out of receiving appropriate pensions guidance for the purposes of subsection (1C);
(d) specify what the duties of the trustees or managers are in the situation where a member or survivor does not respond to a communication that is made for the purposes of complying with the duty in subsection (1C);
(e) provide for exceptions to the duties in subsections (1B) and (1C) in specified cases.
(2) Before the FCA publishes a draft of any rules to be made by virtue of subsection (1), it must consult—
(a) the Secretary of State, and
(b) the Treasury.
(2A) Before the FCA publishes a draft of any rules to be made by virtue of subsection (1A), it must consult—
(a) the Secretary of State, and
(b) the Money and Pensions Service.
(3) In determining what provision to include in rules to be made by virtue of subsection (1), the FCA must have regard to any regulations that are for the time being in force under section 113 of the Pension Schemes Act 1993 concerning the giving of information about the availability of pensions guidance to members of pension schemes, and survivors of members of pension schemes, with subsisting rights in respect of any flexible benefits.
(3A) In determining what provision to include in rules to be made by virtue of subsection (1A), the FCA must have regard to any regulations that are for the time being in force under section 113B of the Pension Schemes Act 1993 (occupational pension schemes: requirements to refer members to guidance etc).
(4) In this section—
“flexible benefit” has the meaning given by section 74 of the Pension Schemes Act 2015;
“pensions guidance” means information or guidance provided by any person in pursuance of the requirements mentioned in section 4 of the Financial Guidance and Claims Act 2018 (information etc about flexible benefits under pension schemes);
“relevant pension scheme” means a pension scheme set up by a person with permission under this Act to establish—
a personal pension scheme within the meaning of an order under section 22, or
a stakeholder pension scheme within the meaning of such an order;
“subsisting right” has the meaning given by section 76 of the Pension Schemes Act 2015;
“survivor” has the meaning given by section 76 of the Pension Schemes Act 2015.
137FBA FCA general rules: advice about transferring or otherwise dealing with annuity payments
(1) The FCA must make general rules requiring specified authorised persons to check that an individual—
(a) who has a right to payments under a relevant annuity, and
(b) if the Treasury make regulations under subsection (3), who is not an exempt person by virtue of those regulations,
has received appropriate advice before transferring or otherwise dealing with the right to those payments.
(2) The reference in subsection (1) to a right to payments under a relevant annuity does not include a contingent right to such payments.
(3) The Treasury may by regulations provide that an individual whose financial circumstances meet criteria specified in the regulations is an exempt person for the purposes of subsection (1)(b).
(4) Regulations made under subsection (3) may (amongst other things) specify criteria based on the proportion of the individual's financial resources that is represented by the payments under the relevant annuity or the value of that annuity.
(5) The rules made by virtue of subsection (1) may include provision—
(a) about what specified authorised persons must do to check that an individual has received appropriate advice for the purposes of those rules;
(b) about when the check must be carried out.
(6) For the purposes of this section—
(a) “relevant annuity” means an annuity specified (by type, value or otherwise) as a relevant annuity in regulations made by the Treasury;
(b) “appropriate advice” means advice specified (by reference to the person giving the advice or otherwise) as appropriate advice in regulations made by the Treasury;
(c) “specified authorised person” means an authorised person of a description specified in rules made by virtue of subsection (1).
(7) If regulations under subsection (3) or (6)(a) make provision about the value of an annuity, the regulations may also make provision about the basis on which the value of an annuity is to be calculated.
137FBB FCA general rules: early exit pension charges
(1) The FCA must make general rules prohibiting authorised persons from—
(a) imposing specified early exit charges on members of relevant pension schemes, and
(b) including in relevant pension schemes provision for the imposition of specified early exit charges on members of such schemes.
(2) The rules must be made with a view to securing, so far as is reasonably possible, an appropriate degree of protection for members of relevant pension schemes against early exit charges being a deterrent on taking, converting or transferring benefits under the schemes.
(3) The rules may specify early exit charges by reference to charges of a specified class or description, or by reference to charges which exceed a specified amount.
(4) The rules made by virtue of subsection (1)(a) must prohibit the imposition of the charges after those rules come into force, whether the relevant pension scheme was established before or after those rules (or this section) came into force.
(5) In relation to a charge which is imposed, or provision for the imposition of a charge which is included in a pension scheme, in contravention of the rules, the rules may (amongst other things)—
(a) provide for the obligation to pay the charge to be unenforceable or unenforceable to a specified extent;
(b) provide for the recovery of amounts paid in respect of the charge;
(c) provide for the payment of compensation for any losses incurred as a result of paying amounts in respect of the charge.
(6) Subject to subsection (8) an early exit charge, in relation to a member of a pension scheme, is a charge which—
(a) is imposed under the scheme when a member who has reached normal minimum pension age takes the action mentioned in subsection (7), but
(b) is only imposed, or only imposed to that extent, if the member takes that action before the member's expected retirement date.
(7) The action is the member taking benefits under the scheme, converting benefits under the scheme into different benefits or transferring benefits under the scheme to another pension scheme.
(8) The Treasury may by regulations specify matters that are not to be treated as early exit charges for the purposes of this section.
(9) For the purposes of this section—
“charge”, in relation to a member of a pension scheme, includes a reduction in the value of the member's benefits under the scheme;
“expected retirement date”, in relation to a member of a pension scheme, means the date determined by, or in accordance with, the scheme as the date on which the member's benefits under the scheme are expected to be taken;
“normal minimum pension age” has the same meaning as in section 279(1) of the Finance Act 2004;
“relevant pension scheme” has the same meaning as in section 137FB;
and a reference to benefits includes all or any part of those benefits.
137FBC FCA general rules: regulation of consolidator pension schemes
(1) The FCA may make general rules under which the provider of an FCA-regulated pension scheme is required to notify the FCA where it intends that the scheme should be a consolidator scheme, or an arrangement under the scheme should be a consolidator arrangement, for the purposes of Chapter 2 of Part 2 of the Pension Schemes Act 2026.
(2) If the FCA makes rules under subsection (1) it must—
(a) make general rules regulating pension schemes that have given (and not withdrawn) a notice of the kind mentioned in subsection (1), and
(b) publish and maintain a list of FCA-regulated pension schemes, and arrangements under such schemes, in accordance with subsections (3) and (4).
(3) The list must, subject to subsection (4), include each FCA-regulated pension scheme, and each arrangement under an FCA-regulated scheme, in relation to which the FCA has received a notice by virtue of subsection (1).
(4) The list must not include a scheme or arrangement if—
(a) the notice in relation to it has been withdrawn by the provider of the scheme, or
(b) the FCA has determined that it is unlikely that rules made under subsection (1) or (2)(a) will be complied with in relation to the scheme or arrangement within such period as the FCA considers reasonable.
(5) In determining what provision to include in rules under subsection (2)(a), the FCA must have regard to any provision contained in small pots regulations by virtue of section 29 of the Pension Schemes Act 2026 (authorisation of consolidator schemes etc by the Pensions Regulator).
(6) In this section—
“FCA-regulated”, in relation to a pension scheme, has the meaning given by subsection (7);
“pension scheme” has the meaning given by section 1(5) of the Pension Schemes Act 1993;
“provider”, in relation to an FCA-regulated pension scheme, means the person referred to in subsection (7)(b).
(7) A pension scheme is “FCA-regulated” if the operation of the scheme—
(a) is a regulated activity, and
(b) is carried on in the United Kingdom by an authorised person.
137FC FCA rules: disclosure of information about the availability of financial guidance
(1) The FCA must make general rules requiring specified authorised persons to provide information about the availability of financial guidance to the descriptions of persons specified in the rules.
(2) The rules may specify the circumstances in which the duty to provide the information applies.
(3) Before the FCA publishes a draft of any rules to be made by virtue of this section, it must consult—
(a) the Secretary of State,
(b) the Treasury, and
(c) the Money and Pensions Service.
(4) In this section—
“financial guidance” means information, guidance or advice provided in pursuance of the Money and Pensions Service’s pensions guidance, debt advice or money guidance function (see section 3 of the Financial Guidance and Claims Act 2018);
“specified authorised person” means an authorised person of a description specified in rules made by virtue of this section.
137FD FCA general rules: charges for claims management services
(1) The power of the FCA to make general rules includes power to make rules prohibiting authorised persons from—
(a) entering into a specified regulated claims management agreement that provides for the payment by a person of charges which, taken with charges payable under an agreement treated by the rules as being connected with the regulated claims management agreement (if any), are specified charges, and
(b) imposing specified charges on a person in connection with the provision of a service which is, or which is provided in connection with, a specified regulated claims management activity.
(2) The FCA must make rules by virtue of subsection (1) in relation to all regulated claims management agreements, and all regulated claims management activities, which concern claims in relation to financial products or services.
(3) The rules must be made with a view to securing an appropriate degree of protection against excessive charges for the provision of a service which is, or which is provided in connection with, a regulated claims management activity.
(4) The rules may specify charges by reference to charges of a specified class or description, or by reference to charges which exceed, or are capable of exceeding, a specified amount.
(5) In relation to an agreement entered into, or charge imposed, in contravention of the rules, the rules may (amongst other things)—
(a) provide for the agreement, or obligation to pay the charge, to be unenforceable or unenforceable to a specified extent;
(b) provide for the recovery of amounts paid under the agreement or obligation;
(c) provide for the payment of compensation for any losses incurred as a result of paying amounts under the agreement or obligation.
(6) The provision that may be made under subsection (5) includes provision corresponding to that made by section 30 (enforceability of agreements resulting from unlawful communications).
(7) In this section—
(a) “regulated claims management agreement” means an agreement, the entering into or performing of which by either party is a regulated claims management activity, and
(b) “specified” means specified in the rules, but “specified amount” means an amount specified in or determined in accordance with the rules.
(1) The PRA may make such rules applying to PRA-authorised persons—
(a) with respect to the carrying on by them of regulated activities, or
(b) with respect to the carrying on by them of activities which are not regulated activities,
as appear to the PRA to be necessary or expedient for the purpose of advancing any of its objectives.
(2) Rules made under this section are referred to in this Act as the PRA's general rules.
(3) The PRA's general rules may make provision applying to PRA-authorised persons even though there is no relationship between the PRA-authorised persons to whom the rules will apply and the persons whose interests will be protected by the rules.
(4) The PRA's general rules may contain requirements which take into account, in the case of a PRA-authorised person who is a member of a group, any activity of another member of the group.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The PRA's general rules may not make provision prohibiting a Gibraltar-based person from carrying on, or holding itself out as carrying on, an activity which it has a Schedule 2A permission to carry on in the United Kingdom.
(2) The Treasury may by regulations impose other limitations on what provision applying to Gibraltar-based persons with a Schedule 2A permission to carry on a regulated activity may be made in the PRA's general rules.
(3) Before making regulations under subsection (2), the Treasury must consult the PRA.
(1) This section applies where either regulator exercises its power to make general rules so as to make rules prohibiting persons, or persons of a specified description, from being remunerated in a specified way.
(2) The rules may—
(a) provide that any provision of an agreement that contravenes such a prohibition is void, and
(b) provide for the recovery of any payment made, or other property transferred, in pursuance of a provision that is void by virtue of paragraph (a).
(3) A provision that, at the time the rules are made, is contained in an agreement made before that time may not be rendered void under subsection (2)(a) unless it is subsequently amended so as to contravene a prohibition referred to in that subsection.
137I Remuneration policies: Treasury direction to consider compliance
(1) This section applies where either regulator exercises its power to make general rules so as to make rules requiring authorised persons, or authorised persons of a description specified in the rules, to act in accordance with a remuneration policy.
(2) A “remuneration policy” is a policy about the remuneration by an authorised person of—
(a) officers,
(b) employees, or
(c) other persons,
of a description specified in the rules.
(3) The Treasury may direct the regulator to consider whether the remuneration policies of authorised persons specified in the direction (or of authorised persons of a description so specified) comply with requirements imposed by rules made by that regulator as to the contents of the policies.
(4) Before giving a direction under subsection (3), the Treasury must consult the regulator concerned.
(5) If the regulator considers that a remuneration policy of an authorised person fails to make provision which complies with the requirements mentioned in subsection (3), the regulator must take such steps as it considers appropriate to deal with the failure.
(6) The steps that the regulator may take include requiring the remuneration policy to be revised.
(7) “Authorised person”, in relation to the PRA, means PRA-authorised person.
(1) Before either regulator prepares a draft of any general rules that require a relevant person (or a relevant person of a specified description) to prepare a recovery plan, the regulator must consult the Treasury.
(1A) The FCA must also consult the Bank of England.
(2) “Relevant person” means—
(a) an institution authorised in the UK; or
(b) a qualifying parent undertaking within the meaning given by section 192B.
(3) A “recovery plan” is a document which provides for measures to be taken—
(a) by an institution authorised in the UK which is not part of a group, following a significant deterioration of the financial position of the institution, in order to restore its financial position; or
(b) in relation to a group, to achieve the stabilisation of the group as a whole, or of any institution within the group, where the group or institution is in a situation of financial stress, in order to address or remove the causes of the financial stress and restore the financial position of the group or institution.
(4) For the purposes of subsection (3)(a) the definition of “group” in section 421 applies with the omission of subsection (1)(e) and (f) of that section.
(6) In this section—
“authorised person”, in relation to the PRA, means PRA-authorised person;
“institution” means—
a credit institution, other than an entity mentioned in Article 2.5 of the capital requirements directive; or
a designated investment firm as defined in Article 4(1)(2AA) of the capital requirements regulation;
“institution authorised in the UK” means an authorised person who is—
a bank within the meaning given by section 2 of the Banking Act 2009;
a building society within the meaning given in section 119 of the Building Societies Act 1986; or
an investment firm within the meaning given by section 258A of the Banking Act 2009;
“specified” means specified in the rules.
137K Rules about resolution packs: duty to consult
(1) Before either regulator prepares a draft of any general rules that require a relevant person (or a relevant person of a specified description) to prepare a resolution pack, the regulator must consult the Treasury.
(1A) The FCA must also consult the Bank of England.
(2) “Relevant person” has the same meaning as in section 137J(2).
(3) A “resolution pack” is a document containing information within subsection (4) or (5).
(4) Information is within this subsection if it relates to action to be taken in the event of—
(a) circumstances arising in which it is likely that the business (or any part of the business) of an authorised person will fail, or
(b) the failure of the business (or any part of the business) of an authorised person.
(5) Information is within this subsection if it would facilitate anything falling to be done by any person in consequence of that failure.
(6) An example of information within subsection (5) is information that, in the event of that failure, would facilitate—
(a) planning by the Treasury in relation to the possible exercise of any of its powers under Part 1 of the Banking Act 2009, or
(b) planning by the Bank of England in relation to the possible exercise of any of its powers under Part 1, 2 or 3 of that Act.
(7) In this section “authorised person”, in relation to the PRA, means PRA-authorised person.
(1) This section has effect for the interpretation of sections 137J and 137K.
(2) References to the taking of action include the taking of action by—
(a) the authorised person,
(b) any other person in the same group as the authorised person, or
(c) a partnership of which the authorised person is a member.
(3) In subsection (2)(b) the definition of “group” in section 421 applies with the omission of subsection (1)(e) and (f) of that section.
(4) References to the business of an authorised person include the business of—
(a) any person in the same group as the authorised person, and
(b) a partnership of which the authorised person is a member.
(5) For the purposes of section 137K the cases in which the business (or any part of the business) of the authorised person (“A”) is to be regarded as having failed include those where—
(a) A enters insolvency,
(b) any of the stabilisation options in Part 1 of the Banking Act 2009 is achieved in relation to A, or
(c) A falls to be taken for the purposes of the compensation scheme to be unable, or likely to be unable, to satisfy claims against A.
(6) In subsection (5)(a) “insolvency” includes—
(a) bankruptcy,
(b) liquidation,
(c) bank insolvency,
(d) administration,
(e) bank administration,
(f) receivership,
(g) a composition between A and A's creditors, and
(h) a scheme of arrangement of A's affairs.
137N Recovery plans and resolution packs: restriction on duty of confidence
(1) A contractual or other requirement imposed on a person (“P”) to keep information in confidence does not apply if—
(a) the information is or may be relevant to anything required to be done as a result of a requirement imposed by general rules made by either regulator to prepare a recovery plan or a resolution pack,
(b) an authorised person or a skilled person requests or requires P to provide the information for the purpose of securing that those things are done, and
(c) the regulator in question has approved the making of the request or the imposition of the requirement before it is made or imposed.
(2) An authorised person or a qualifying parent undertaking may provide information (whether received under subsection (1) or otherwise) that would otherwise be subject to a contractual or other requirement to keep it in confidence if it is provided for the purposes of anything required to be done as a result of a requirement imposed by general rules to prepare a recovery plan or a resolution pack.
(3) In this section, references to preparing a recovery plan or a resolution pack include—
(a) keeping that plan or pack up to date, and
(b) collecting specified information for the purposes of that plan or pack.
(4) In this section, references to a skilled person are to a person appointed in accordance with section 166A.
(5) In this section—
“authorised person”, in relation to rules of the PRA, means a PRA-authorised person;
“qualifying parent undertaking” means—
a qualifying parent undertaking within the meaning given by section 192B; ...
...
“specified” means specified in the rules.
(1) Either regulator may make rules supplementing any of the conditions for the time being set out in or specified under Schedule 6 that is expressed to be relevant to the discharge of that regulator's functions.
(2) Rules made under this section by a regulator are referred to as that regulator's “threshold condition code”.
(3) A threshold condition code may in particular—
(a) specify requirements which a person must satisfy in order to be regarded as satisfying a particular condition in relation to any regulated activities;
(b) specify matters which are, or may be, or are not, relevant in determining whether a person satisfies a particular condition in relation to any regulated activities.
(4) Except where a regulator's threshold condition code so provides, it is not to be regarded as limiting the matters that are, or may be, relevant in determining whether a person satisfies a particular condition in relation to any regulated activities.
(5) A threshold condition code cannot impose obligations that are enforceable against authorised persons otherwise than through the threshold conditions.
(1) Either regulator may make rules (“control of information rules”) about the disclosure and use of information held by an authorised person (“A”).
(2) Control of information rules may—
(a) require the withholding of information which A would otherwise be required to disclose to a person (“B”) for or with whom A does business in the course of carrying on any regulated or other activity;
(b) specify circumstances in which A may withhold information which A would otherwise be required to disclose to B;
(c) require A not to use for the benefit of B information—
(i) which is held by A, and
(ii) which A would otherwise be required to use for the benefit of B;
(d) specify circumstances in which A may decide not to use for the benefit of B information within paragraph (c).
(1) The FCA may make rules (“price stabilising rules”) as to—
(a) the circumstances and manner in which,
(b) the conditions subject to which, and
(c) the time when or the period during which,
action may be taken for the purpose of stabilising the price of investments of specified kinds.
(2) Price stabilising rules—
(a) are to be made so as to apply only to authorised persons;
(aa) must not apply to transactions, orders, behaviour, actions or omissions to which the market abuse regulation applies;
(b) may make different provision in relation to different kinds of investment.
(3) The FCA may make rules which, for the purposes of the relevant exemption provisions, treat a person who acts or engages in conduct in conformity with specified provisions as acting, or engaging in that conduct, in conformity with the relevant provisions of Article 5 (exemption for buy-back programmes and stabilisation) of the market abuse regulation.
(3A) “Specified provisions” means such provisions—
(a) corresponding to the relevant provisions of Article 5 of the market abuse regulation, and
(b) made by a body or authority outside the United Kingdom as may be specified in rules made by the FCA,
as may be specified in rules made by the FCA.
(4) “The relevant exemption provisions” are the following provisions of the Financial Services Act 2012—
(a) section 90(9)(d);
(b) section 91(4)(c).
(5) In this section references to Article 5 of the market abuse regulation include—
(a) any technical standards originally adopted or made under that Article which are assimilated direct legislation, and
(b) any technical standards made under that Article by the FCA.
(1) The FCA may make rules applying to authorised persons about the communication by them, or their approval of the communication by others, of invitations or inducements—
(a) to engage in investment activity, or
(aa) to engage in claims management activity, or
(b) to participate in a collective investment scheme.
(2) Rules under this section may, in particular, make provision about the form and content of communications.
(3) Subsection (1) applies only to communications which—
(a) if made by a person other than an authorised person, without the approval of an authorised person, would contravene section 21(1), and
(b) may be made by an authorised person without contravening section 238(1).
(4) But subsection (3) does not prevent the FCA from making rules under subsection (1) in relation to a communication that would not contravene section 21(1) if made by a person other than an authorised person, without the approval of an authorised person, if the conditions set out in subsection (5) are satisfied.
(5) Those conditions are—
(a) that the communication would not contravene subsection (1) of section 21 because it is a communication to which that subsection does not apply as a result of an order under subsection (5) of that section,
(b) that the FCA considers that any of the listed requirements, apply to the communication, and
(c) that the FCA considers that the rules are necessary to secure that the communication satisfies such of the listed requirements as the FCA considers apply to the communication.
(5A) In subsection (5) “the listed requirements” means—
(a) requirements under the law of any part of the United Kingdom that appear to the FCA to correspond to requirements of—
(i) Articles 24 (general principles and information to clients) and 25 (assessment of suitability and appropriateness and reporting to clients) of the markets in financial instruments directive,
(ii) Commission Delegated Directive (EU) 2017/593 of 7 April 2016, so far as adopted under those Articles,
(iii) Article 77 of the UCITS directive,
(iv) Articles 10 and 11 of the mortgages directive,
(v) Article 17 of the insurance distribution directive, or
(vi) Article 44a of the recovery and resolution directive (as defined in paragraph (c)), and
(b) requirements of any assimilated direct legislation originally made under Article 24(13) or 25(8) of the markets in financial instruments directive.
(c) In paragraph (a)(vi), “recovery and resolution directive” means Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms, as it had effect immediately before IP completion day.
(6) “Engage in investment activity” has and “engage in claims management activity” have the same meaning as in section 21.
(7) The Treasury may by order impose limitations on the power to make rules under this section.
137S Financial promotion rules: directions given by FCA
(1) The FCA may give a direction under this section if—
(a) an authorised person has made, or proposes to make, a communication or has approved, or proposes to approve, another person's communication, and
(b) the FCA considers that there has been, or is likely to be, a contravention of financial promotion rules in respect of the communication or approval.
(2) A direction under this section may require the authorised person—
(a) to withdraw the communication or approval;
(b) to refrain from making the communication or giving the approval (whether or not it has previously been made or given);
(c) to publish details of the direction;
(d) to do anything else specified in the direction in relation to the communication or approval.
(3) A requirement in a direction under this section to refrain from making or approving a communication includes a requirement to refrain from making or approving another communication where—
(a) the other communication is in all material respects the same as, or substantially the same as, the communication to which the direction relates, and
(b) in all the circumstances a reasonable person would think that another direction would be given under this section in relation to the other communication.
(4) The requirements contained in a direction under this section have effect as follows—
(a) a requirement to publish details of the direction has effect at such time (if any) as the FCA gives a notice under subsection (8)(a);
(b) any other requirement takes effect immediately.
(5) If the FCA gives a direction under this section to an authorised person—
(a) it must give written notice to the authorised person, and
(b) if the direction relates to the approval by the authorised person of another person's communication, it must also give written notice to that other person.
(6) The notice must—
(a) give details of the direction,
(b) inform the person to whom the notice is given that the direction takes effect immediately,
(c) state the FCA's reasons for giving the direction, and
(d) inform the person to whom the notice is given that the person may make representations to the FCA within such period as may be specified in the notice (which may be extended by the FCA).
(7) The FCA may amend the direction if, having considered any representations made by a person to whom notice is given under subsection (5), it considers it appropriate to do so.
(8) If, having considered any such representations, the FCA decides not to revoke the direction—
(a) the FCA must give separate written notice to the persons mentioned in subsection (5)(a) or (b), and
(b) any such person may refer the matter to the Tribunal.
(9) A notice under subsection (8)(a) must—
(a) give details of the direction and of any amendment of it,
(b) state the FCA's reasons for deciding not to revoke the direction and, if relevant, for amending it,
(c) inform the person to whom the notice is given of the person's right to refer the matter to the Tribunal, and
(d) give an indication of the procedure on such a reference.
(10) If, having considered any representations made by a person to whom notice is given under subsection (5), the FCA decides to revoke the direction, it must give separate written notice to those persons.
(11) After the period for making representations in relation to a direction given under this section has ended, the FCA may publish such information about the direction as it considers appropriate (even if the direction is revoked).
(12) Nothing in this section requires a notice to be given to a person mentioned in subsection (5)(b) if the FCA considers it impracticable to do so.
137SA Rules to recover expenses relating to the Money and Pensions Service
(1) The Secretary of State may, from time to time, notify the FCA of the amount of—
(a) the expenses incurred, or expected to be incurred, by the Secretary of State under section 11 of the Financial Guidance and Claims Act 2018 (financial assistance from Secretary of State to Money and Pensions Service), and
(b) any other expenses incurred, or expected to be incurred, by the Secretary of State in connection with the operation of the Money and Pensions Service,
that the Secretary of State considers should be recovered under this section.
(2) Where the Secretary of State has notified the FCA of an amount of expenses under subsection (1), the FCA must make rules for imposing levies with a view to recovering—
(a) the amount notified, and
(b) expenses incurred by the FCA in connection with its functions under this section.
(3) The rules must require the payment to the FCA of specified sums, or sums calculated in a specified way, by—
(a) authorised persons, electronic money issuers or payment service providers, or
(b) any specified class of authorised person, electronic money issuer or payment service provider.
(4) Before the FCA publishes a draft of rules to be made under this section it must consult the Secretary of State.
(5) The rules may be made only with the consent of the Secretary of State.
(6) The Secretary of State may notify the FCA of matters that will be taken into account when deciding whether or not to give consent under subsection (5).
(7) The FCA must have regard to any matters notified under subsection (6) before publishing a draft of rules to be made under this section.
(8) The FCA must pay the Secretary of State the sums it receives under rules made under this section, apart from those paid to recover the expenses mentioned in subsection (2)(b) (which the FCA may keep).
(9) Subsection (10) applies where—
(a) the Secretary of State has notified the FCA under subsection (1) of an amount which included expenses expected to be incurred,
(b) the FCA has made rules to recover the amount, and paid sums received under the rules to the Secretary of State, but
(c) the expenses expected to be incurred were not in fact incurred.
(10) The Secretary of State need not arrange for the sums received under the rules to be paid back, but must, when next notifying an amount to the FCA under subsection (1), take into account the fact that the sums received included an amount representing expenses that were not in fact incurred.
(11) In this section—
“electronic money issuer” means a person who is an electronic money issuer for the purposes of the Electronic Money Regulations 2011 (S.I. 2011/99) as a result of falling within any of paragraphs (a) to (e) and (h) to (j) of the definition in regulation 2(1);
“payment service provider” means a person who is a payment service provider for the purposes of the Payment Services Regulations 2017 (S.I. 2017/752) as a result of falling within any of paragraphs (a) to (h) of the definition in regulation 2(1).
137SB Rules to recover debt advice expenses incurred by the devolved authorities
(1) The Treasury may, from time to time, notify the FCA of the amount of the expenses incurred, or expected to be incurred, by the devolved authorities in connection with the provision of information and advice on debt to members of the public in Scotland, Wales and Northern Ireland.
(2) Where the Treasury have notified the FCA of an amount of expenses under subsection (1), the FCA must make rules for imposing levies with a view to recovering—
(a) the amount notified, and
(b) expenses incurred by the FCA in connection with its functions under this section.
(3) The rules must require the payment to the FCA of specified sums, or sums calculated in a specified way, by—
(a) authorised persons, electronic money issuers or payment service providers, or
(b) any specified class of authorised person, electronic money issuer or payment service provider.
(4) Before the FCA publishes a draft of rules to be made under this section it must consult the Treasury.
(5) The rules may be made only with the consent of the Treasury.
(6) The Treasury may notify the FCA of matters that will be taken into account when deciding whether or not to give consent under subsection (5).
(7) The FCA must have regard to any matters notified under subsection (6) before publishing a draft of rules to be made under this section.
(8) The FCA must pay the Treasury the sums it receives under rules made under this section, apart from those paid to recover the expenses mentioned in subsection (2)(b) (which the FCA may keep).
(9) Subsection (10) applies where—
(a) the Treasury have notified the FCA under subsection (1) of an amount which included expenses expected to be incurred,
(b) the FCA has made rules to recover the amount, and paid sums received under the rules to the Treasury, but
(c) the expenses expected to be incurred were not in fact incurred.
(10) The Treasury need not arrange for the sums received under the rules to be paid back, but must, when next notifying an amount to the FCA under subsection (1), take into account the fact that the sums received included an amount representing expenses that were not in fact incurred.
(11) In this section—
the “devolved authorities” means—
the Scottish Ministers,
the Welsh Ministers, and
the Department for Communities in Northern Ireland;
“electronic money issuer” and “payment service provider” have the same meanings as in section 137SA.
Rules made by either regulator—
(a) may make different provision for different cases and may, in particular, make different provision in respect of different descriptions of authorised persons, activity or investment,
(aa) may make provision for any reference in the rules to an enactment (including an enactment comprised in subordinate legislation) to be read as a reference to that enactment as it has effect from time to time,
(b) may make provision by reference to rules made by the other regulator, as those rules have effect from time to time, and
(c) may contain such incidental, supplemental, consequential and transitional provision as the regulator making the rule considers appropriate.
(1) 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—
(za) 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) , section 248 (scheme particulars rules), section 261I (contractual scheme rules) or section 261J (contractual scheme particulars rules);
(c) rules made by the FCA under section 309Z1 (rules of conduct).
(3) An application must be made in such manner as the regulator may direct.
(4) 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.
(5) In subsection (4)(b) “objectives”, in relation to the FCA, means operational objectives.
(6) A direction may be given subject to conditions.
(7) 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.
(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.
138BA Disapplication 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.
(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).
(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—
(za) rules under section 64A (rules of conduct);
(zaa) 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.
(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, ...
(b) product intervention rules made by the FCA under section 137D ...
(c) rules made by the FCA under section 137FBB ...
(d) rules made by the FCA under section 137FD ; or
(e) designated activity rules imposing under paragraph (2) of regulation 32 of the Public Offers and Admissions to Trading Regulations 2024 (withdrawal rights in connection with public offers of securities) a duty in relation to which provision made under paragraph (4) of that regulation applies.
(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.
(1) If either regulator makes, alters or revokes any rules, that regulator must without delay give written notice to the Treasury.
(1A) The FCA must also give written notice to the Bank of England.
(2) Subsection (1A) does not apply to rules made under or by virtue of section 137FAA, 137FB, 137FBA, , 137FC , 137SA , 137SB ... or 333T.
(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.
(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).
(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,
(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) , (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.
(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);
(aa) section 137FB;
(ab) section 137FBA;
(ac) section 137FC;
(ad) section 137SA;
(ae) section 137SB;
(b) subsection (1) of section 213 as a result of subsection (4) of that section;
(c) section 234;
(ca) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(cb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(cc) section 333T;
(d) paragraph 23 of Schedule 1ZA;
(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.
(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).
(9A) This section does not apply to rules made by the FCA under section 271E.
(10) Subsection (1)(a) does not apply to —
(a) rules made by the FCA under section 137FB, 137FBA, , 137FC , 137SA , 137SB ... or 333T, or
(b) rules made by the FCA in relation to recognised investment exchanges under Part 18.
(11) This section is subject to section 138L.
(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.