Made | 15th June 2001 | ||
Laid before Parliament | 15th June 2001 | ||
Coming into force | 18th June 2001 |
(2) A disclosure of confidential information is permitted when it is made by any primary recipient, or person obtaining the information directly or indirectly from a primary recipient, to the Authority, the Secretary of State or the Treasury for the purpose of enabling or assisting the Authority, the Secretary of State or the Treasury (as the case may be) to discharge any of its, his or their public functions.
(3) Paragraphs (1) and (2) do not permit disclosure in contravention of any of the directive restrictions.
Disclosure for the purposes of criminal proceedings and investigations
4.
A primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to any person -
Disclosure for the purposes of certain other proceedings
5.
- (1) Subject to paragraphs (4) and (5), a primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to -
(2) A person mentioned in paragraph (3) (or a person who is employed by the Authority or the Secretary of State) is permitted to disclose confidential information to any person for a purpose mentioned in paragraph (1)(a).
(3) The persons referred to in paragraphs (1)(a) and (2) are -
(4) This regulation does not permit the disclosure of information with a view to the institution of, or in connection with, proceedings of the kind referred to in paragraph (6)(e) to the extent that -
(5) This regulation does not permit disclosure in contravention of any of the directive restrictions.
(6) The proceedings to which this regulation applies are -
Disclosure in pursuance of a Community obligation
6.
A primary recipient of confidential information, or a person receiving such information directly or indirectly from a primary recipient, is permitted to disclose such information in pursuance of a Community obligation.
Restrictions on use of confidential information
7.
Where confidential information is disclosed under these Regulations to a person other than the Authority, the Secretary of State, the Treasury or the Bank of England, and the disclosure is made subject to any conditions as to the use to which the information may be put, the person to whom the information has been disclosed may not use the information in breach of any such condition, without the consent of the person who disclosed it to him.
(3) Paragraph (1) does not permit disclosure to a person specified in the first column in Part 4 of Schedule 1 -
unless the EEA competent authority of the state in which the on-the-spot verification was carried out has given its express consent to the disclosure.
Disclosure by Schedule 1 person
10.
A person specified in the first column in Schedule 1 is permitted to disclose information to which this Part applies for the purpose of enabling or assisting him to discharge any of the functions listed beside him in that Schedule.
Disclosure by and to a Schedule 1 or 2 person or disciplinary proceedings authority
12.
- (1) A primary recipient of information to which this Part applies, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to -
(2) A person specified in the first column in Schedule 1 or 2 is permitted to disclose information to which this Part applies to any person for the purpose of enabling or assisting the person making the disclosure to discharge any function listed beside him in the second column in Schedule 1 or 2.
(3) A disciplinary proceedings authority is permitted to disclose information to which this Part applies to any person for any of the purposes mentioned in paragraph (1)(b).
which imposes restrictions on the disclosure of information, or creates exceptions or qualifications to such restrictions; or
(b) regulation 48 of the Investment Services Regulations 1995[30];
Disclosure of pre-commencement information
14.
- (1) Before the coming into force of section 19 of the Act, each pre-commencement provision is to be treated as permitting the disclosure of pre-commencement information -
but only if the proceedings in question are of the kind referred to in regulation 5(6)(a), (b) or (c).
(2) Paragraph (1) is not to be taken as -
Disclosure of transitional information
15.
- (1) After the coming into force of section 19 of the Act, sections 348, 349 and 352 of the Act apply in relation to transitional information in the same way as they apply in relation to confidential information within the meaning of section 348(2) of the Act.
(2) Paragraph (1) does not apply to transitional information which -
(3) For the purposes of sections 348 and 349 of the Act as they apply by virtue of paragraph (1) -
(b) any other person who holds transitional information is to be treated as having obtained the information directly or indirectly from a primary recipient.
(4) Transitional information which is subject to directive restrictions imposed by the single market directives or the UCITS directive is to be treated for the purposes of these Regulations as single market directive information or UCITS directive information respectively.
(5) Part IV of these Regulations does not apply to transitional information which is subject to directive restrictions imposed by article 25.3 of the listing particulars directive.
Disclosure by recognised self-regulating organisations
16.
If a recognised self-regulating organisation discloses any information to the Authority for the purpose of enabling or assisting the Authority to discharge functions corresponding to functions of the organisation, the disclosure is not to be taken as a contravention of any duty to which the organisation is subject.
Gordon Brown
David Jamieson
Two of the Lords Commissioners of Her Majesty's Treasury
15th June 2001
Person | Functions |
The Bank of England, the European Central Bank or the central bank of any country or territory outside the United Kingdom |
(a) Its functions as a monetary authority (b) Its functions in relation to overseeing payment systems |
A body (other than a central bank) in a country or territory outside the United Kingdom having (a) functions as a monetary authority or (b) responsibility for overseeing payments systems | Its functions as such |
A recognised investment exchange (other than an overseas investment exchange) | Its functions as such |
The body known as the Panel on Takeovers and Mergers | All of its functions |
The Society of Lloyd's | Its regulatory functions |
The Director General of Fair Trading |
(a) His functions under the Act (b) His functions under any other enactment in so far as they relate to the supervision of:
(ii) persons carrying on, or who have carried on, regulated activities |
The Competition Commission |
(a) Its functions under the Act (b) Its functions under any other enactment in so far as they relate to the supervision of:
(ii) persons carrying on, or who have carried on, regulated activities |
An official receiver appointed under section 399 of the Insolvency Act 1986[35], or an official receiver for Northern Ireland appointed under article 355 of the Insolvency (Northern Ireland) Order 1989[36] |
His functions under enactments relating to insolvency, in so far as they relate to:
(ii) persons carrying on, or who have carried on, regulated activities |
The scheme manager | Its functions under Part XV of the Act |
A body responsible, in an EEA State other than the United Kingdom, for administering a deposit-guarantee scheme recognised in accordance with directive 94/19/EC[37], or an investor-compensation scheme recognised in accordance with Directive 97/9/EC[38] | Its functions as such |
A designated professional body within the meaning of Part XX of the Act | Its functions as such |
A body which was, immediately before the coming into force of section 19 of the Act, a recognised professional body within the meaning of the Financial Services Act 1986[39] | Its functions as such under that Act or under the Act |
A person appointed to make a report under section 166 of the Act | His functions as such |
A person appointed to conduct an investigation under section 167 or section 168(3) or (5) of the Act | His functions as such |
An auditor exercising functions conferred by or under the Act | Those functions |
An auditor of an authorised person appointed under or as a result of an enactment (other than the Act) | His functions as such |
An actuary exercising functions conferred by or under the Act | Those functions |
A person appointed as an inspector under section 49 of the Industrial and Provident Societies Act 1965[40] | His functions as such |
A person appointed as an inspector under section 18 of the Credit Unions Act 1979[41] | His functions as such |
A person appointed to make a report under section 52(5)(d) of the Building Societies Act 1986[42] | His functions as such |
A person appointed as an investigator under section 55 of the Building Societies Act 1986 or as an inspector under section 56 of that Act[43] | His functions as such |
A person appointed to make a report under section 62(3)(d) of the Friendly Societies Act 1992[44] | His functions as such |
A person appointed as an investigator under section 65 of the Friendly Societies Act 1992[45] or as an inspector under 66 of that Act | His functions as such |
A recognised supervisory body within the meaning of Part II of the Companies Act 1989[46] or Part III of the Companies (Northern Ireland) Order 1990[47] |
(a) Its functions as such a body under that Part (b) Its functions in relation to disciplinary proceedings against auditors |
A qualifying body as defined by section 32 of the Companies Act 1989[48] | Its functions as such |
The Institute of Actuaries or the Faculty of Actuaries | Supervisory functions in relation to actuaries exercising functions conferred by or under the Act |
A recognised professional body within the meaning of section 391 of the Insolvency Act 1986 or article 350 of the Insolvency (Northern Ireland) Order 1989 |
(a) Its functions as such a body under that Act or that Order (b) Its functions in relation to disciplinary proceedings against insolvency practitioners |
The Department of Enterprise, Trade and Investment in Northern Ireland |
(a) Its functions under Part V of the Companies (No. 2) (Northern Ireland) Order 1990 (financial markets and insolvency)[49] (b) Its functions under Part XII of the Insolvency (Northern Ireland) Order 1989 (c) Its functions under any other enactment in so far as they relate to the supervison of:
(ii) persons carrying on, or who have carried on, regulated activities |
The Occupational Pensions Regulatory Authority |
Its functions under:
(b) the Pensions Act 1995[51]; or (c) any enactment in force in Northern Ireland corresponding to an enactment referred to in (a) or (b), in so far as they relate to the supervision of:
(ii) persons carrying on, or who have carried on, regulated activities |
The Charity Commissioners for England and Wales |
Their functions under any enactment in so far as they relate to the supervision of:
(ii) persons carrying on, or who have carried on, regulated activities |
The investigator appointed by the Authority in accordance with paragraph 7 of Schedule 1 to the Act | His functions as such |
Person | Functions |
An EEA regulatory authority |
(a) Its functions as an EEA competent authority (b) Its functions corresponding to any of the functions specified in the second column of Part 1 of this Schedule |
Person | Functions |
A dependent territory regulatory authority | Its functions as such |
A non-EEA regulatory authority | Its functions as such |
Person | Functions |
An inspector appointed under Part XIV of the Companies Act 1985 | His functions as such |
A person authorised to exercise powers under section 447 of the Companies Act 1985[52] | His functions as such |
A person authorised under section 84 of the Companies Act 1989 to exercise on behalf of the Secretary of State powers conferred by section 83 of that Act[53] | His functions as such |
The Department of Enterprise, Trade and Investment in Northern Ireland |
(a) Its functions under Part XV of the Companies (Northern Ireland) Order 1986[54] (investigation of companies and their affairs; requisition of documents) (b) Its functions under Part III of the Companies (Northern Ireland) Order 1990 (eligibility for appointment as company auditor) (c) Its functions under the Companies (Northern Ireland) Order 1989[55] (disqualification of company directors) |
An inspector appointed under Part XV of the Companies (Northern Ireland) Order 1986 | His functions under that Part |
A person appointed to exercise powers under article 440 of the Companies (Northern Ireland) Order 1986[56] | His functions as such |
A recognised clearing house (other than an overseas clearing house) | Its functions as a clearing house in so far as they are exercisable in relation to defaults or potential defaults by market participants |
A person included on the list maintained by the Authority for the purposes of section 301 of the Act | His functions under settlement arrangements to which regulations made under that section relate |
A person approved under the Uncertificated Securities Regulations 1995[57] as an operator of a relevant system (within the meaning of those Regulations) | His functions as such in so far as they are exercisable in relation to defaults or potential defaults by market participants |
Person | Functions |
The Bank of England | All its public functions (so far as not mentioned in Schedule 1) |
The International Monetary Fund | All its functions |
The Director General of Fair Trading | His functions under any enactment (so far as not mentioned in Schedule 1) |
The Competition Commission | Its functions under any enactment (so far as not mentioned in Schedule 1) |
The Gas and Electricity Markets Authority | Its functions under any enactment |
A local weights and measures authority in Great Britain | Its functions as such under any enactment |
An EEA regulatory authority | Its functions as such (so far as not mentioned in Schedule 1) |
The Department of Enterprise, Trade and Investment in Northern Ireland |
(a) Its functions under Part V of the Companies (No. 2) (Northern Ireland) Order 1990[58] (Financial Markets and Insolvency) (b) It functions under Part XII of the Insolvency (Northern Ireland) Order 1989[59] (c) Its functions under any other enactment (so far as not mentioned in Schedule 1) (d) Its functions as a weights and measures authority for Northern Ireland |
A recognised clearing house (other than an overseas clearing house) | Its functions as such (so far as not mentioned in Schedule 1) |
A person approved under the Uncertificated Securities Regulations 1995 as an operator of a relevant system (within the meaning of those regulations) | His functions as such (so far as not mentioned in Schedule 1) |
The scheme operator | Its functions as such |
The Chief Ombudsman appointed in accordance with paragraph 5 of Schedule 17 to the Act, and any other member of the panel of ombudsmen appointed in accordance with paragraph 4 of that Schedule | Their functions as such |
An inspector appointed under section 284 of the Act | His functions as such |
A person appointed in accordance with regulations made under section 262(1) of the Act to carry out an investigation in relation to an open-ended investment company | His functions as such |
The Occupational Pensions Regulatory Authority | Its functions under the Pension Schemes Act 1993 and the Pensions Act 1995 (so far as not mentioned in Schedule 1 to these Regulations) |
The Charity Commissioners for England and Wales | Their functions under any enactment (so far as not mentioned in Schedule 1) |
The Commissioners of Customs and Excise | Their functions under any enactment |
The Postal Services Commission | Its functions under the Postal Services Act 2000[60] |
The Pensions Ombudsman | His functions under the Pension Schemes Act 1993 and the Pensions Act 1995 |
But information is not "confidential information" if it has previously been lawfully made available to the public, or is in the form of a summary or collection of information which is so framed that it is not possible to ascertain from it information relating to any particular person.
"Primary recipients" of confidential information are the FSA, the Secretary of State; persons employed by them, or auditors or experts instructed by them; or a person appointed to make a report under section 166 of the Act (reports by skilled persons).
Disclosure of confidential information in breach of section 348, or use of such information in breach of the Regulations, is an offence under section 352 of the Act.
Part II of these Regulations sets out the circumstances in which confidential information may be disclosed by or to the FSA, the Secretary of State or the Treasury; for the purposes of criminal proceedings and investigations; for the purposes of certain civil proceedings; or in pursuance of a Community obligation. Regulation 7 provides that where information is disclosed subject to a restriction on use, it may not be used in breach of that condition without the consent of the person who disclosed it.
Part III makes provision for the disclosure of information which is subject to restrictions on disclosure in the EC directives relating to financial services. Such information - subject to the provisions of regulation 9 - may be disclosed to or by the persons listed in Schedule 1, for the purposes of the functions indicated there.
Part IV makes provision for the disclosure of information which is not subject to directive restrictions. Such information may be disclosed by or to the persons listed in Schedules 1 and 2, for the purposes of the functions indicated there; or for the purposes of certain disciplinary proceedings, as set out in Schedule 3.
Part V makes transitional provision about information obtained under former financial services legislation (to be repealed under the Act). Before the repeal of that legislation, information obtained under it may be disclosed for certain purposes permitted by these Regulations (regulation 14). After the repeal of that legislation, such information is to be treated in the same way as "confidential information" under the Act, and is to be subject to the provisions on disclosure in these Regulations (regulation 15).
[7] Modified by S.I. 1992/3218 and S.I. 1995/3275.back
[8] S.I. 1992/3218; relevant amendments were made by S.I. 1999/2094.back
[9] S.I. 1995/3275; to which there are amendments not relevant to these Regulations.back
[10] Inserted by S.I. 1994/1696 and amended by S.I. 1997/2781.back
[12] OJ No. L100, 17.04.80, p. 1, as last amended by Council Directive 87/345/EEC (OJ No. L185, 04.07.87, p. 81).back
[13] OJ No. L375, 31.12.85, p. 3, as last amended by European Parliament and Council Directive 95/26/EC (OJ No. L168, 18.07.95, p. 7).back
[22] 1986 c. 46. Section 7 was amended by the Insolvency Act 2000 (c. 39), Sch. 4, Part I, and s. 6. Section 8 was amended by the Financial Services Act 1986 (c. 60), s. 198; the Criminal Justice (Scotland) Act 1987 (s. 41), s. 55(b); the Criminal Justice Act 1988 (c. 33), s. 145(b); the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), s. 5, Sch. 4, para 62; the Companies Act 1989 (c. 40), s. 79; and the Insolvency Act 2000, s. 6.back
[23] S.I. 1989/2402 (N.I. 18).back
[26] S.I. 1989/2405 (N.I. 19).back
[30] S.I. 1995/3275. Regulation 48 was amended by Regulation 11 of S.I. 1996/1669.back
[31] Paragraphs 1(2) and 5(1)(a) were modified by S.I. 1997/2781, art. 8, Sch. paras. 53 and 57(a)(i).back
[32] Section 179 was amended by the Companies Act 1989 (c. 40), Sch. 24; the Friendly Societies Act 1992 (c. 40), Sch. 18, para. 4; the Bank of England Act 1998 (c. 11), Sch. 5, para. 65(1) and Sch. 9; and S.I. 1992/1315 art. 10(1), Sch. 4, para. 4; and modified by S.I. 1992/3218, Sch. 9, para. 40; S.I. 1995/3275, reg. 48; and S.I. 1996/1669, reg. 12.back
[33] Section 82 was modified by S.I. 1992/3218, Sch. 8, para 22.back
[34] S.I. 1995/3275. Regulation 48 was amended by Regulation 11 of S.I. 1996/1669.back
[36] S.I. 1989/2405 (N.I. 19).back
[37] OJ No. L135, 31.5.1994, p. 5.back
[38] OJ No. L084, 26.3.1997, p. 22.back
[42] 1986 c. 53. Section 52 was amended by the Building Societies Act 1997 (c. 32), Sch. 7, para. 17.back
[43] Sections 55 and 56 were amended by the Building Societies Act 1997, Sch. 7, paras 21 and 22 (respectively).back
[44] Section 62 was amended by S.I. 1994/1984, reg. 17.back
[45] Section 65 was amended by S.I. 1994/1984, reg. 19.back
[47] S.I. 1990/593 (N.I. 5).back
[49] S.I. 1990/1504 (N.I. 10).back
[52] Section 447 was amended by the Companies Act 1989, s. 63 and Sch. 24, and by the Youth Justice and Criminal Evidence Act 1999 (c. 23), Sch. 3, paras. 4 and 6.back
[53] Section 83 was amended by the Youth Justice and Criminal Evidence Act 1999, Sch. 3, para. 21.back
[54] S.I. 1986/1032 (N.I. 6).back
[55] S.I. 1989/2404 (N.I. 18).back
[56] Article 440 was amended by article 11 of, and Schedule 6 to the Companies (No. 2) (Northern Ireland) Order 1990 (S.I. 1990/1504 (N.I. 10)).back
[57] S.I. 1995/3272, amended by S.I. 1996/2827, 1997/251, 1999/506, 2000/311 and 2000/1682.back
[58] S.I. 1990/1504 (N.I. 10).back
[59] S.I. 1989/2405 (N.I. 19).back
[63] 1986 c. 50; see s. 90(2).back
[65] 34 Vict c. xxi, 1&2 Geo V c. lxii, 14&15 Geo VI c. viii, 1982 c. 14.back