The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2021
| Year | 2021 |
2021 No. 90
Financial Services And Markets
The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2021
Made 27th January 2021
Coming into force in accordance with article 1
The Treasury make the following Order in exercise of the powers conferred by sections 21(9), (10) and (15), 22(1) and (5), 39(1), 235(5), 417(1)1, 426, 427 and 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 20002.
In the opinion of the Treasury, one of the effects of the following Order is that an activity which is not a regulated activity (within the meaning given in section 22 of that Act) will become a regulated activity.
Accordingly, a draft of this Order was laid before Parliament and approved by a resolution of each House of Parliament pursuant to paragraph 26(1) and (2)3of Schedule 2 to that Act.
PART 1
Introductory provisions
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2021.
(2) This Order comes into force on the day (“the initial commencement day”) after the day on which it is made, for the following purposes only—
(a)
(a) enabling the FCA—
(i) to make or approve rules;
(ii) to give guidance; and
(iii) to give directions.
(b)
(b) enabling applications for—
(i) a Part 4A4permission under section 55A5of the Act;
(ii) a variation of a Part 4A permission under section 55H6of the Act; and
(iii) approval under Part 5 of the Act;
to be made and determined in relation to any activity which becomes a regulated activity by virtue of this Order;
(c)
(c) enabling the FCA to exercise any of its powers under Part 4A or Part 5 of the Act in relation to any activity which becomes a regulated activity by virtue of this Order; and
(d)
(d) enabling the scheme operator—
(i) to make rules; and
(ii) to give guidance.
(3) This Order comes into force for all other purposes on the first day following the expiry of a period of eighteen calendar months beginning on the day after the initial commencement day.
(4) In this Order—
“the Act” means the Financial Services and Markets Act 2000;
“the Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 20017; and
“scheme operator” has the meaning given in section 225(2) of the Act.
PART 2
Amendments to secondary legislation made under the Act
The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001
2.—(1) The Regulated Activities Order is amended as follows.
(2) In article 3 (interpretation)8, in the definition of “contract of insurance”, omit “(or a contract which would be a funeral plan contract but for the exclusion in article 60)”.
(3) In article 21(1) (dealing in investments as agent)9, omit “(other than investments of the kind specified by article 87, or article 89 so far as relevant to that article)”.
(4) In article 59 (funeral plan contracts)—
(a)
(a) after paragraph (1), insert—
“1A Carrying out a funeral plan contract as provider is a specified kind of activity.”;
(b)
(b) in paragraph (2), omit “(other than one excluded by article 60)”; and
(c)
(c) after paragraph (2), insert—
“2A For the purposes of paragraph (1A), “provider” includes a person who has assumed the undertaking referred to in paragraph (2)(b) as a result of the novation, assignment or transfer by operation of law of an existing funeral plan contract.”.
(5) Omit article 60 (plans covered by insurance or trust arrangements).
(6) Before paragraph 60A10, insert—
“Local authorities
60ZA. Article 59 is subject to the exclusion in article 72G (local authorities).”.
(7) In article 72G (local authorities)11, after paragraph (3B)12, insert—
“3C There is excluded from article 59(1) and (1A) any activity which is carried on by a local authority.”.
(8) For article 89(3) (rights to or interests in investments)13, substitute—
“Paragraph (1) does not include any right or interest acquired as a result of entering into a funeral plan contract.”
The Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001
3. For paragraph 1814of the Schedule to the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 200115, substitute—
“Funeral plan contracts
18. Arrangements do not amount to a collective investment scheme if they consist of, or are made pursuant to, a funeral plan contract.”.
The Financial Services and Markets Act 2000 (Appointed Representatives) Regulations 2001
4.—(1) The Financial Services and Markets Act 2000 (Appointed Representatives) Regulations 200116are amended as follows.
(2) In regulation 1(2)17, at the appropriate place, insert—
““funeral plan contract” has the same meaning as in article 59 of the Regulated Activities Order;”.
(3) For regulation 2(1)(za) (descriptions of business for which appointed representatives are exempt)18, substitute—
“(za)
“(za) an activity of the kind specified by article 21 of the Regulated Activities Order (dealing in investments as agent), where the transaction relates to—
(i) a contract of insurance which is not a qualifying contract of insurance or a contract of long-term care insurance; or
(ii) a funeral plan contract.”.
The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
5.—(1) Schedule 1 to the Financial Services and Markets Act 2000 (Financial Promotion) Order 200519is amended as follows.
(2) In paragraph 3(1)20(dealing in securities and contractually based investments), omit “(other than investments of the kind specified by paragraph 25, or paragraph 27 so far as relevant to that paragraph)”.
(3) In paragraph 9 (providing funeral plan contracts)—
(a)
(a) after sub-paragraph (1), insert—
“1A Carrying out a qualifying funeral plan contract as provider is a controlled activity.”; and
(b)
(b) for sub-paragraph (2)(c), substitute—
“the provider is a person who carries on a regulated activity specified in article 59 of the Regulated Activities Order and includes a person who has assumed the undertaking referred to in article 59(2)(b) of that Order as a result of the novation, assignment or transfer by operation of law of an existing qualifying funeral plan contract.”.
PART 3
Transitional provisions: complaints relating to funeral plans
Interpretation
6. In this Part—
“compulsory jurisdiction” has the meaning given in section 226(8) of the Act;
“compulsory jurisdiction rules” has the meaning given in section 226(3)21of the Act;
“former scheme” means the complaints procedure contained in the former scheme operator’s Code of Practice and Rules in force at the time of the act or omission that is the subject of the relevant complaint;
“former scheme operator” means the Funeral Planning Authority Community Interest Company;
“former scheme rules” means the former scheme operator’s Code of Practice and Rules in force immediately before the initial commencement day;
“new scheme” means the scheme for which provision is made in Part 16 of the Act (the ombudsman scheme);
“relevant complaint” has the meaning given in article 7(1); and
“relevant date” means the date on which this Order comes fully into force in accordance with article 1(3).
Complaints made on or after the relevant date about acts or omissions before that date
7.—(1) A relevant complaint is a complaint—
(a)
(a) about an act or omission which occurred before the relevant date;
(b)
(b) which had not, before that date, been referred under the former scheme; and
(c)
(c) in relation to which the conditions set out in paragraph (2) are met.
(2) The conditions are that—
(a)
(a) the complaint is about an act or omission of a person who, at the time of that act or omission, was subject to the former scheme (regardless of whether they later ceased to be subject to it);
(b)
(b) the act or omission occurred in the carrying on by that person of an activity to which the former scheme applied; and
(c)
(c) in relation to the compulsory jurisdiction, the complainant is eligible within the meaning given in section 226(6) of the Act and wishes to have the complaint dealt with under the new scheme.
(3) For the purposes of paragraph (2)(c), where the complainant is not eligible in accordance with the compulsory jurisdiction rules, an ombudsman may nonetheless, if the ombudsman considers it appropriate, treat the complainant as eligible if the complainant would have been entitled, at any time before the relevant date, to refer to the former scheme operator an equivalent complaint.
(4) A relevant complaint—
(a)
(a) may be referred for determination under the new scheme; and
(b)
(b) upon referral is, subject to article 9, to be dealt with in the same way as any other complaint referred under the new scheme.
(5) For the purposes of paragraph (4), it is immaterial that the conditions set out in section 226(2)(b) and (c) of the Act are not met in relation to the complaint.
Procedure for dealing with relevant complaints
8. In paragraphs 13 and 14 of Schedule 17 to the Act, each reference to a “complaint” is to be taken to include a reference to a relevant complaint.
Determination of relevant complaints
9.—(1) Subject to paragraphs (2) and (3), sections 228 to 230A of the Act apply in relation to the...
To continue reading
Request your trial