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United Kingdom Statutory Instruments |
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You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Financial Services and Markets Act 2000 (Transitional Provisions and Savings) (Rules) Order 2001 URL: http://www.bailii.org/uk/legis/num_reg/2001/20011534.html |
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| Made | 23rd April 2001 | ||
| Laid before Parliament | 24th April 2001 | ||
| Coming into force in accordance with article 1 |
| 1. | Citation and commencement |
| 2. | Definitions |
| 3. | Designated pre-commencement provisions to take effect as rules |
| 4. | Designation of pre-commencement provisions |
| 5. | Modification of pre-commencement provisions |
| 6. | Consequences of contravention of continued rules |
| 7. | Verification of continued rules |
| 8. | Waiver or modification as respects particular persons |
| 9. | Statements of principle requiring compliance with code etc. |
| 10. | Revocation and alteration |
| 11. | Guidance |
| 12. | Interpretation |
| 13. | Consultation on new rules etc. before Royal Assent |
| 14. | Anticipatory consultation |
| 15. | Appropriate comparison for cost benefit analyses |
(2) Any reference in this Order to a section or Schedule is, unless the context otherwise requires, a reference to that section of or Schedule to the Act.
(2) Where a pre-commencement provision -
this article applies to the original provision, subject to that amendment.
(3) A pre-commencement provision to which this article applies has effect after commencement -
as if it were a rule made under that provision.
(4) Paragraph (3) applies in spite of any repeal, revocation or other lapsing of the pre-commencement provision which occurs on commencement.
Designation of pre-commencement provisions
4.
- (1) The Authority may, before commencement, designate such pre-commencement provisions as appear to it to be necessary or expedient.
(2) To designate a pre-commencement provision, the Authority must -
(3) In order to identify the pre-commencement provision for the purposes of paragraph (2) the Authority must give sufficient information about -
to ensure that a person can ascertain with certainty the content of the provision being designated.
(4) To the extent that the instrument does not comply with paragraph 2(b), it is void.
(5) The Authority may charge a reasonable fee for providing a person with a copy of an instrument made under this article or of the continued rule made available under paragraph (2)(h).
(6) The Authority must give a copy of any designation instrument to the Treasury without delay.
(7) The making of an instrument under this article is a legislative function for the purposes of Schedule 1.
(8) A person is not to be taken to have contravened any continued rule if he shows that at the time of the alleged contravention the designation instrument concerned had not been published in accordance with paragraph (2)(g).
Modification of pre-commencment provisions
5.
- (1) When designating a pre-commencement provision, the Authority must make such modifications to it (if any) as appear to the Authority necessary to ensure -
(2) When designating a pre-commencement provision, the Authority may make such modifications to it as have the effect of limiting its application to a class of persons narrower than the class to which it applied immediately before commencement; and paragraph (1) is not to be taken -
(3) The modifications authorised by paragraph (1)(a) include the addition of such transitional provisions as are necessary to ensure the result there mentioned.
(4) If a pre-commencement provision designated under this Part purports to include a modification which is not authorised by this Order and would alter the effect or application of the provision, to the extent that it is not so authorised, the modification is void.
Consequences of contravention of continued rules
6.
- (1) If a designation instrument provides, in relation to any of the continued rules identified in it, as mentioned in subsection (1) of section 149 (evidential provisions), then that subsection applies as it applies where a particular rule so provides.
(2) Subsections (2) and (3) of section 149 apply for the purposes of this article as if the references to a rule (other than the references in paragraphs (a) and (b) of subsection (2)) were references to a designation instrument.
(3) Unless a designation instrument provides, in relation to a specified provision of any of the pre-commencement provisions designated in it, as mentioned in subsection (2) of section 150 (actions for damages), then that section applies as it applies to a rule not falling within subsection (4) of that section.
Verification of continued rules
7.
- (1) This article applies to continued rules instead of section 154 (verification of rules).
(2) The production of a printed copy of a designation instrument or a continued rule purporting to be made by the Authority on which is endorsed a certificate which -
is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.
(3) The required statements in relation to a copy of a designation instrument are -
(4) The required statement in relation to a copy of a continued rule is that the text set out in the document is a continued rule within the meaning of article 2.
(5) A certificate purporting to be signed as mentioned in paragraph (2) is to be taken to have been properly signed unless the contrary is shown.
(6) A person who wishes in any legal proceedings to rely on a designation instrument or on a continued rule may require the Authority to endorse a copy of that instrument or rule with a certificate of the kind mentioned in paragraph (2).
Waiver or modification as respects particular persons
8.
- (1) This article applies where -
(2) In a case where this article applies, the waiver or modification has effect after commencement as if it were a direction under subsection (2) of section 148 -
(3) Any condition subject to which the waiver or modification was granted has effect after commencement as if imposed under section 148(5).
(4) Section 148(6) does not apply to a direction having effect by virtue of this article.
(5) Section 148(9) applies to a direction having effect by virtue of this article as it applies to a direction given after commencement.
(6) In this article references to a waiver or modification -
Statements of principle requiring compliance with code etc.
9.
- (1) This article applies where the Authority designates under article 4 a statement of principle made under the Financial Services Act 1986[2] which requires compliance with a code or rules mentioned in section 143(1) (endorsement of codes etc. issued by other bodies) or with any provision of such a code or rules.
(2) Article 5(1)(a) is to be read as authorising the Authority to make such modification of the statement as is necessary to ensure that, on and after commencement, the effect of the statement is to endorse the code, rules or provision concerned as mentioned in that section.
Revocation and alteration
10.
Nothing in this Order is to be taken as implying a contrary intention for the purposes of section 14 of the Interpretation Act 1978[3] in relation to continued rules and, accordingly, such rules may, after commencement, be revoked or altered in accordance with the provision of the Act under which the continued rules have effect as made.
Guidance
11.
- (1) This article applies where the Authority proposes to give any guidance under section 157 in relation to any continued rules and, apart from this paragraph, subsection (3) of that section would apply.
(2) "Guidance" includes any such recommendation as is mentioned in section 157(5).
(3) To the extent that the guidance -
any procedure which by reason of section 157(3) must be complied with in relation to the guidance is to be treated as having been so complied with.
(4) In paragraph (3) -
(2) In this Part, the "relevant consultation requirements" in relation to an instrument are the procedural requirements set out in the Act with regard to -
which the Authority must satisfy if it proposes to make the instrument in question.
(3) A "necessary item" is one or more of the following, if required to be published by the relevant consultation requirements -
Consultation on new rules etc. before Royal Assent
13.
- (1) This article applies to a consultation which -
(2) Where the Authority makes, issues or gives an instrument containing provisions which have been the subject of consultation to which this article applies then, provided the requirements of paragraph (3) are met, the Authority is to be treated as having satisfied the relevant consultation requirements in respect of that instrument in so far as it contains those provisions.
(3) The requirements of this paragraph are that -
(4) If the Authority makes an instrument containing the provisions which have been the subject of consultation to which this article applies then -
Anticipatory consultation
14.
- (1) If, before this Order comes into force, the Authority takes steps in relation to an instrument to which this Part applies and those steps would, if they had been taken after that date, satisfy the requirements of paragraph (3) or (4) of article 13, then article 13 applies to that instrument as if those steps had been taken after this Order comes into force.
(2) If, before the relevant consultation requirements in relation to an instrument come into force, any steps were undertaken in relation to provisions contained in a draft instrument to which this Part applies, then, if those steps, had they been undertaken after commencement, would to any extent have satisfied any requirements laid down in or under the Act for the making of that instrument, those requirements are to that extent to be treated as having been satisfied on the date when the last such requirement was satisfied.
Appropriate comparison for cost benefit analysis
15.
Where, pursuant to this Order or to a relevant consultation requirement, the Authority publishes a cost benefit analysis which involves comparison with the overall position if the instrument in question was not made, the Authority may disregard, in making that comparison, the repeal, revocation or lapsing at commencement of any enactment, subordinate legislation or other instrument or provision (including guidance in writing or other legible form).
Jim Dowd
Clive Betts,
Two of the Lords Commissioners of Her Majesty's Treasury
23rd April 2001
