Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001
2001 No. 2188
FINANCIAL SERVICES AND MARKETS
The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001
Made 15th June 2001
Laid before Parliament 15th June 2001
Coming into force 18th June 2001
The Treasury, in exercise of the powers conferred on them by sections 349(1)(b), (2) and (3), 417(1)1, 426, 427 and 428(3) of the Financial Services and Markets Act 20002, hereby make the following Regulations—
PART I
PRELIMINARY
Citation and Commencement
1. These Regulations may be cited as the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 and come into force on 18th June 2001.
Interpretation
2. In these Regulations—
“the Act” means the Financial Services and Markets Act 2000;
“Authority worker” means—
(a) a person who is or has been employed by the Authority; or
(b) an auditor or expert instructed by the Authority;
“criminal investigation” means an investigation of any crime, including an investigation of any alleged or suspected crime and an investigation of whether a crime has been committed;
“dependent territory” means the Channel Islands, the Isle of Man and any territory outside the British Islands for whose external relations the United Kingdom is responsible;
“dependent territory regulatory authority” means an overseas regulatory authority which exercises its functions in, and in relation to, a dependent territory;
“directive restrictions” means the restrictions imposed on the disclosure of information by article 25 of the investment services directive, article 30 of the banking consolidation directive, article 15 of the third life insurance directive, article 16 of the third non-life insurance directive, article 50 of the UCITS directive and article 25 of the listing particulars directive;
“disciplinary proceedings authority” means a person responsible for initiating prescribed disciplinary proceedings or determining the outcome of such proceedings;
“EEA competent authority” means a competent authority of an EEA state other than the United Kingdom for the purposes of any of the single market directives, the UCITS directive or the listing particulars directive;
“EEA regulatory authority” means an EEA competent authority or an overseas regulatory authority which exercises its functions in, and in relation to, an EEA State other than the United Kingdom;
“former regulated activities” means activities carried on before the coming into force of section 19 of the Act and which constitute—
(a) investment business within the meaning of the Financial Services Act 19863;
(b) deposit-taking business within the meaning of the Banking Act 19874;
(c) insurance business within the meaning of the Insurance Companies Act 19825; or
(d) insurance business within the meaning of the Friendly Societies Act 19926;
“former regulated person” means a person who, at any time before the coming into force of section 19 of the Act, was—
(a) authorised under section 3 or 4 of the Insurance Companies Act 1982;
(b) an authorised person within the meaning of the Financial Services Act 1986, or an appointed representative within the meaning of section 447(appointed representatives) of that Act;
(c) an authorised institution within the meaning of the Banking Act 1987;
(d) a European institution within the meaning of the Banking Coordination (Second Council Directive) Regulations 19928;
(e) a European investment firm within the meaning of the Investment Services Regulations 19959;
(f) an EC company within the meaning of the Insurance Companies Act 1982 able to carry on direct insurance business through a branch in the United Kingdom, or provide insurance in the United Kingdom by virtue of paragraph 1 or 8 of Schedule 2F to that Act10;
(g) a friendly society authorised or treated as authorised for the purposes of Part IV of the Friendly Societies Act 1992, or permitted by virtue of section 31(2) or (3) of that Act to carry on activities without authorisation under that Part; or
(h) a building society authorised or treated as authorised for the purposes of the Building Societies Act 198611;
“listing particulars directive” means Council Directive 80/390/EEC12;
“non-EEA regulatory authority” means an overseas regulatory authority other than an EEA regulatory authority or a dependent territory regulatory authority;
“overseas regulatory authority” means—
(a) an authority in a country or territory outside the United Kingdom which exercises any function of a kind mentioned in section 195(4) of the Act; or
(b) an overseas investment exchange or overseas clearing house;
“prescribed disciplinary proceedings” means the disciplinary proceedings prescribed in Schedule 3;
“Secretary of State worker” means—
(a) a person who is or has been employed by the Secretary of State; or
(b) an auditor or expert instructed by the Secretary of State;
“single market directive information” means confidential information received by the Authority in the course of discharging its functions as the competent authority under any of the single market directives;
“the UCITS directive” means Council Directive 85/611/EEC13;
“UCITS directive information” means confidential information received by the Authority in the course of discharging its functions as the competent authority under the UCITS directive.
PART II
DISCLOSURE OF CONFIDENTIAL INFORMATION GENERALLY
Disclosure by and to the Authority, the Secretary of State and the Treasury etc.
3.—(1) A disclosure of confidential information is permitted when it is made to any person—
(a)
(a) by the Authority or an Authority worker for the purpose of enabling or assisting the person making the disclosure to discharge any public functions of the Authority or (if different) of the Authority worker;
(b)
(b) by the Secretary of State or a Secretary of State worker for the purpose of enabling or assisting the person making the disclosure to discharge any public functions of the Secretary of State or (if different) of the Secretary of State worker;
(c)
(c) by the Treasury for the purpose of enabling or assisting the Treasury to discharge any of their public functions.
(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—
(a) for the purposes of any criminal investigation whatever which is being or may be carried out, whether in the United Kingdom or elsewhere;
(b) for the purposes of any criminal proceedings whatever which have been or may be initiated, whether in the United Kingdom or elsewhere; or
(c) for the purpose of initiating or bringing to an end any such investigation or proceedings, or of facilitating a determination of whether it or they should be initiated or brought to an end.
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—
(a)
(a) a person mentioned in paragraph (3) for the purpose of initiating proceedings to which this regulation applies, or of facilitating a determination of whether they should be initiated; or
(b)
(b) any person for the purposes of proceedings to which this regulation applies and which have been initiated, or for the purpose of bringing to an end such proceedings, or of facilitating a determination of whether they should be brought to an end.
(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—
(a)
(a) the Authority;
(b)
(b) the Secretary of State; and
(c)
(c) the Department of Enterprise, Trade and Investment in Northern Ireland.
(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—
(a)
(a) the information relates to an authorised person, former authorised person or former regulated person (“A”);
(b)
(b) the information also relates to another person (“B”) who, to the knowledge of the primary recipient (or person obtaining confidential information directly or indirectly from him), is or has been involved in an attempt to rescue A, or A’s business, from insolvency or impending insolvency; and
(c)
(c) B is not a director, controller or manager of A.
(5) This regulation does not permit disclosure in contravention of any of the directive restrictions.
(6) The proceedings to which this regulation applies are—
(a)
(a) civil proceedings arising under or by virtue of the Act, an enactment referred to in section 338 of the Act, the Banking Act 197914, the Friendly Societies Act 197415, the Insurance Companies Act 198216, the Financial Services Act 19861...
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