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| Companies Act 1989 |
| 1989 c. 40 - continued
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| Companies Act Index |
Amendments of the Financial Services Act 1986
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Investigations
into collective investment schemes.
|
72.(1) Section
94 of the [1986 c. 60.] Financial Services Act 1986 (investigations
into collective investment schemes) is amended as follows.
(2) For subsection (7) (privilege
on grounds of banker's duty of confidentiality) substitute
| |
"(7) Nothing in this section requires a person
(except as mentioned in subsection (7A) below) to disclose
any information or produce any document in respect of which
he owes an obligation of confidence by virtue of carrying
on the business of banking unless
(a) the person to whom the obligation of confidence
is owed consents to the disclosure or production, or
(b) the making of the requirement was authorised
by the Secretary of State. |
| |
(7A) Subsection (7) does not apply where the person
owing the obligation of confidence or the person to whom it
is owed is
(a) the manager, operator or trustee of the scheme
under investigation, or
(b) a manager, operator or trustee whose own
affairs are under investigation.
" |
.
(3) After subsection (8) (duty of
inspectors to report) insert
| |
"(8A) If it appears to the Secretary of State
that matters have come to light in the course of the inspectors'
investigation which suggest that a criminal offence has been
committed, and those matters have been referred to the appropriate
prosecuting authority, he may direct the inspectors to take
no further steps in the investigation or to take only such
further steps as are specified in the direction. |
| |
(8B) Where an investigation is the subject of a direction
under subsection (8A), the inspectors shall make a final report
to the Secretary of State only where the Secretary of State
directs them to do so." |
.
(4) After subsection (9) add
| |
"(10) A person who is convicted on a prosecution
instituted as a result of an investigation under this section
may in the same proceedings be ordered to pay the expenses
of the investigation to such extent as may be specified in
the order.
There shall be treated as expenses of the investigation,
in particular, such reasonable sums as the Secretary of
State may determine in respect of general staff costs and
overheads.
" |
. |
Investigations
into affairs of persons carrying on investment business.
|
73.(1) Section
105 of the Financial Services Act 1986 (investigation into affairs
of person carrying on investment business) is amended as follows.
(2) Omit subsection (7) (privilege
on grounds of banker's duty of confidentiality).
(3) In subsection (9) (interpretation),
in the definition of "documents", for "references
to its production include references to producing" substitute
"the power to require its production includes power to require
the production of ".
(4) After subsection (10) add
| |
"(11) A person who is convicted on a prosecution
instituted as a result of an investigation under this section
may in the same proceedings be ordered to pay the expenses
of the investigation to such extent as may be specified in
the order.
There shall be treated as expenses of the investigation,
in particular, such reasonable sums as the Secretary of
State may determine in respect of general staff costs and
overheads.
" |
.
(5) In section 106 of the [1986
c. 60.] Financial Services Act 1986 (exercise of investigation
powers by officer, &c.), after subsection (2) insert
| |
"(2A) A person shall not by virtue of an authority
under this section be required to disclose any information
or produce any documents in respect of which he owes an obligation
of confidence by virtue of carrying on the business of banking
unless
(a) he is the person under investigation or a
related company,
(b) the person to whom the obligation of confidence
is owed is the person under investigation or a related company,
(c) the person to whom the obligation of confidence
is owed consents to the disclosure or production, or
(d) the imposing on him of a requirement with
respect to such information or documents has been specifically
authorised by the Secretary of State.
In this subsection "documents" , "person
under investigation" and "related company"
have the same meaning as in section 105.
" |
. |
Investigations
into insider dealing.
|
74.(1) Section
177 of the Financial Services Act 1986 (investigations into insider
dealing) is amended as follows.
(2) After subsection (2) (power to
limit period or scope of investigation) insert
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"(2A) At any time during the investigation the
Secretary of State may vary the appointment by limiting or
extending the period during which the inspector is to continue
his investigation or by confining the investigation to particular
matters." |
.
(3) After subsection (5) (duty of
inspectors to report) insert
| |
"(5A) If the Secretary of State thinks fit, he
may direct the inspector to take no further steps in the investigation
or to take only such further steps as are specified in the
direction; and where an investigation is the subject of such
a direction, the inspectors shall make a final report to the
Secretary of State only where the Secretary of State directs
them to do so." |
.
(4) For subsection (8) (privilege
on grounds of banker's duty of confidentiality) substitute
| |
"(8) A person shall not under this section be
required to disclose any information or produce any document
in respect of which he owes an obligation of confidence by
virtue of carrying on the business of banking unless
(a) the person to whom the obligation of confidence
is owed consents to the disclosure or production, or
(b) the making of the requirement was authorised
by the Secretary of State.
" |
.
(5) In subsection (10) (definition
of "documents") for "references to its production
include references to producing" substitute "the power
to require its production includes power to require the production
of ".
(6) After subsection (10) add
| |
"(11) A person who is convicted on a prosecution
instituted as a result of an investigation under this section
may in the same proceedings be ordered to pay the expenses
of the investigation to such extent as may be specified in
the order.
There shall be treated as expenses of the investigation,
in particular, such reasonable sums as the Secretary of
State may determine in respect of general staff costs and
overheads.
" |
. |
Restrictions on
disclosure of information.
|
75.(1) In
section 179(3) of the [1986 c. 60.] Financial Services
Act 1986 (persons who are "primary recipients" for purposes
of provisions restricting disclosure of information)
(a) omit the word "and" preceding paragraph
(i);
(b) in that paragraph, after "any such person"
insert "as is mentioned in paragraphs (a) to (h) above"
(c) after that paragraph insert
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" (j) any constable or other person named
in a warrant issued under this Act." |
.
(2) Section 180 of the Financial Services
Act 1986 (exceptions from restrictions on disclosure) is amended as
follows.
(3) In subsection (1) (purposes for
which disclosure permitted)
(a) in paragraph (c), after "insolvency" insert
"or by Part II, III or VII of the Companies Act 1989"
(b) for paragraph (e) substitute
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" (e) for the purpose (i) of
enabling or assisting a designated agency to discharge its
functions under this Act or Part VII of the Companies Act
1989, (ii) of enabling or assisting a transferee
body or the competent authority to discharge its functions
under this Act, or (iii) of enabling or assisting
the body administering a scheme under section 54 above to
discharge its functions under the scheme;" |
;
(c) after paragraph (h) insert
| |
" (hh) for the purpose of enabling or assisting
a body established by order under section 46 of the Companies
Act 1989 to discharge its functions under Part II of that
Act, or of enabling or assisting a recognised supervisory
or qualifying body within the meaning of that Part to discharge
its functions as such;" |
;
(d) after paragraph (o) insert
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" (oo) with a view to the institution of,
or otherwise for the purposes of, any disciplinary proceedings
relating to the discharge by a public servant of his duties;" |
;
(e) in paragraph (p), after "under" insert
"section 44 of the Insurance Companies Act 1982, section 447
of the Companies Act 1985," and after "above" insert
"or section 84 of the Companies Act 1989"
(f) after paragraph (q) insert
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" (qq) for the purpose of enabling or assisting
an overseas regulatory authority to exercise its regulatory
functions;" |
.
(4) After that subsection insert
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"(1A) In subsection (1)
(a) in paragraph (oo) "public servant"
means an officer or servant of the Crown or of any public
or other authority for the time being designated for the
purposes of that paragraph by order of the Secretary of
State; and
(b) in paragraph (qq) "overseas regulatory
authority" and "regulatory functions" have
the same meaning as in section 82 of the Companies Act 1989.
" |
.
(5) In subsection (3) (disclosure
to designated public authorities) for "designated for the purposes
of this section" substitute "designated for the purposes
of this subsection".
(6) Omit subsection (6) (disclosure
to certain overseas authorities).
(7) In subsection (9) (orders) for
"subsection (3) or (8)" substitute "subsection (1A)(a),
(3) or (8)." |
Entry and search
of premises.
|
76.(1) Section
199 of the [1986 c. 60.] Financial Services Act 1986 (powers
of entry) is amended as follows.
(2) For subsections (1) and (2) substitute
| |
"(1) A justice of the peace may issue a warrant
under this section if satisfied on information on oath given
by or on behalf of the Secretary of State that there are reasonable
grounds for believing that an offence has been committed
(a) under section 4, 47, 57, 130, 133 or 171(2)
or (3) above, or
(b) section 1, 2, 4 or 5 of the Company Securities
(Insider Dealing) Act 1985,
and that there are on any premises documents relevant to the
question whether that offence has been committed. |
| |
(2) A justice of the peace may also issue a warrant
under this section if satisfied on information on oath given
by or on behalf of the Secretary of State, or by a person
appointed or authorised to exercise powers under section 94,
106 or 177 above, that there are reasonable grounds for believing
that there are on any premises documents whose production
has been required under section 94, 105 or 177 above and which
have not been produced in compliance with the requirement." |
.
(3) In subsection (3)(b) for "subsection
(1)(a) or (b)" substitute "subsection (1)".
(4) In subsection (5) (period for
which documents may be retained), for paragraph (b) substitute
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" (b) if within that period proceedings to
which the documents are relevant are commenced against any
person for any criminal offence, until the conclusion of those
proceedings." |
.
(5) In subsection (6) (offences)
after "Any person who" insert "intentionally".
(6) In subsection (7) for "subsection
(1)(a) above" substitute "subsection (1) above".
(7) For subsection (8) substitute
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"(8) In the application of this section to Scotland
for the references to a justice of the peace substitute references
to a justice of the peace or a sheriff, and for the references
to information on oath substitute references to evidence on
oath." |
.
(8) In subsection (9) (definition
of "documents"), omit the words from "and, in relation"
to the end. |
| |
Amendments of other enactments
|
Amendments of the
Insurance Companies Act 1982.
|
77.(1) Part
II of the [1982 c. 50.] Insurance Companies Act 1982 is
amended as follows.
(2) In section 44 (power to obtain
information and require production of documents), for "books
or papers" (wherever occurring) substitute "documents",
and for subsection (6) substitute
| |
"(6) In this section "document" includes
information recorded in any form; and, in relation to information
recorded otherwise than in legible form, the power to require
its production includes power to require the production of
a copy of the information in legible form." |
.
(3) After that section insert
"Entry and search of
premises.
|
44A. (1) A
justice of the peace may issue a warrant under this section
if satisfied on information on oath given by or on behalf
of the Secretary of State, or by a person authorised to exercise
powers under section 44 above, that there are reasonable grounds
for believing that there are on any premises documents whose
production has been required under section 44(2) to (4) above
and which have not been produced in compliance with the requirement.
(2) A justice of the peace
may also issue a warrant under this section if satisfied
on information on oath given by or on behalf of the Secretary
of State, or by a person authorised to exercise powers under
section 44 above
(a) that there are reasonable grounds for believing
that an offence has been committed for which the penalty
on conviction on indictment is imprisonment for a term of
not less than two years and that there are on any premises
documents relating to whether the offence has been committed,
(b) that the Secretary of State or, as the case
may be, the authorised person has power to require the production
of the documents under section 44(2) to (4) above, and
(c) that there are reasonable grounds for believing
that if production was so required the documents would not
be produced but would be removed from the premises, hidden,
tampered with or destroyed.
(3) A warrant under this
section shall authorise a constable, together with any other
person named in it and any other constables
(a) to enter the premises specified in the information,
using such force as is reasonably necessary for the purpose;
(b) to search the premises and take possession
of any documents appearing to be such documents as are mentioned
in subsection (1) or (2), as the case may be, or to take,
in relation to any such documents, any other steps which
may appear to be necessary for preserving them or preventing
interference with them;
(c) to take copies of any such documents; and
(d) to require any person named in the warrant
to provide an explanation of them or to state where they
may be found.
(4) If in the case of a warrant
under subsection (2) the justice of the peace is satisfied
on information on oath that there are reasonable grounds
for believing that there are also on the premises other
documents relevant to the investigation, the warrant shall
also authorise the actions mentioned in subsection (3) to
be taken in relation to such documents.
(5) A warrant under this
section shall continue in force until the end of the period
of one month beginning with the day on which it is issued.
(6) Any documents of which
possession is taken under this section may be retained
(a) for a period of three months; or
(b) if within that period proceedings to which
the documents are relevant are commenced against any person
for any criminal offence, until the conclusion of those
proceedings.
(7) In the application of
this section to Scotland for the references to a justice
of the peace substitute references to a justice of the peace
or a sheriff, and for the references to information on oath
substitute references to evidence on oath.
(8) In this section "document"
includes information recorded in any form.
" |
.
(4) In section 47A(1) (restriction
on disclosure of information), after "section 44(2) to (4)"
insert "or 44A".
(5) In section 71 (offences and penalties),
after subsection (2) insert
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"(2A) A person who intentionally obstructs the
exercise of any rights conferred by a warrant issued under
section 44A above or fails without reasonable excuse to comply
with any requirement imposed in accordance with subsection
(3)(d) of that section is guilty of an offence and liable
(a) on conviction on indictment, to a fine, and
(b) on summary conviction, to a fine not exceeding
the statutory maximum.
" |
.
(6) In section 71(6) (defence to
failure to comply with requirement to produce books or papers) for
"books or papers" substitute "documents". |
Amendment of the
Insolvency Act 1986.
|
78. In
section 218(5) of the [1986 c. 45.] Insolvency Act 1986
(investigation by Secretary of State on report by liquidator), for
paragraph (a) substitute
| |
" (a) shall thereupon investigate the matter
reported to him and such other matters relating to the affairs
of the company as appear to him to require investigation,
and" |
. |
Amendment of the
Company Directors Disqualification Act 1986.
|
79. In
section 8 of the [1986 c. 46.] Company Directors Disqualification
Act 1986 (disqualification after investigation of company), after
"section 52 of the Criminal Justice (Scotland) Act 1987"
insert "or section 83 of the Companies Act 1989". |
Amendment of the
Building Societies Act 1986.
|
80. In
section 53 of the [1986 c. 53.] Building Societies Act
1986 (confidentiality of information obtained by the Building Societies
Commission), in subsection (7)(b) (functions of Secretary of State
for purposes of which disclosure may be made) after sub-paragraph
(ii) insert
| |
", or (iii) Part II, III or VII of the Companies
Act 1989;" |
. |
Amendments of the
Banking Act 1987.
|
81.(1) In
section 84(1) of the [1987 c. 22.] Banking Act 1987 (disclosure
of information obtained under that Act), the Table showing the authorities
to which, and functions for the purposes of which, disclosure may
be made is amended as follows.
(2) In the entry relating to the
Secretary of State, in column 2, for "or the Financial Services
Act 1986" substitute ", the Financial Services Act 1986
or Part II, III or VII of the Companies Act 1989".
(3) For the entry relating to inspectors
appointed by the Secretary of State substitute
| |
"
|
|
"An inspector appointed under Part XIV of the Companies
Act 1985 or section 94 or 177 of the Financial Services
Act 1986. |
Functions under that Part or that section. |
" |
.
(4) For the entry beginning "A
person authorised by the Secretary of State" substitute
| |
"
|
|
A person authorised to exercise powers under section
44 of the Insurance Companies Act 1982, section 447
of the Companies Act 1985, section 106 of the Financial
Services Act 1986 or section 84 of the Companies Act
1989. |
Functions under that section. |
" |
.
(5) For the entry relating to a designated
agency or transferee body or the competent authority (within the
meaning of the [1986 c. 60.] Financial Services Act
1986) substitute
| |
"
|
| A designated agency (within the meaning of the Financial
Services Act 1986). |
Functions under the Financial Services Act 1986
or Part VII of the Companies Act 1989. |
| A transferee body or the competent authority (within
the meaning of the Financial Services Act 1986). |
Functions under the Financial Services Act 1986. |
" |
. |
| |
Powers exercisable to assist overseas regulatory authorities
|
Request for assistance
by overseas regulatory authority.
|
82.(1) The
powers conferred by section 83 are exercisable by the Secretary of
State for the purpose of assisting an overseas regulatory authority
which has requested his assistance in connection with inquiries being
carried out by it or on its behalf.
(2) An "overseas regulatory
authority" means an authority which in a country or territory
outside the United Kingdom exercises
(a) any function corresponding to
(i) a function under the Financial Services Act 1986
of a designated agency, transferee body or competent authority
(within the meaning of that Act),
(ii) a function of the Secretary of State under the
[1982 c. 50.] Insurance Companies Act 1982, the [1985
c. 6.] Companies Act 1985 or the Financial Services Act
1986, or
(iii) a function of the Bank of England under the [1987
c. 22.] Banking Act 1987, or
(b) any function in connection with the investigation
of, or the enforcement of rules (whether or not having the force
of law) relating to, conduct of the kind prohibited by the [1985
c. 9.] Company Securities (Insider Dealing) Act 1985, or
(c) any function prescribed for the purposes of this
subsection by order of the Secretary of State, being a function
which in the opinion of the Secretary of State relates to companies
or financial services.
An order under paragraph (c) shall be made by statutory instrument
which shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
(3) The Secretary of State shall
not exercise the powers conferred by section 83 unless he is satisfied
that the assistance requested by the overseas regulatory authority
is for the purposes of its regulatory functions.
An authority's "regulatory functions" means any functions
falling within subsection (2) and any other functions relating to
companies or financial services.
(4) In deciding whether to exercise
those powers the Secretary of State may take into account, in particular
(a) whether corresponding assistance would be given in
that country or territory to an authority exercising regulatory
functions in the United Kingdom;
(b) whether the inquiries relate to the possible breach
of a law, or other requirement, which has no close parallel in the
United Kingdom or involves the assertion of a jurisdiction not recognised
by the United Kingdom;
(c) the seriousness of the matter to which the inquiries
relate, the importance to the inquiries of the information sought
in the United Kingdom and whether the assistance could be obtained
by other means;
(d) whether it is otherwise appropriate in the public
interest to give the assistance sought.
(5) Before deciding whether to exercise
those powers in a case where the overseas regulatory authority is
a banking supervisor, the Secretary of State shall consult the Bank
of England.
A "banking supervisor" means an overseas regulatory authority
with respect to which the Bank of England has notified the Secretary
of State, for the purposes of this subsection, that it exercises
functions corresponding to those of the Bank under the [1987
c. 22.] Banking Act 1987.
(6) The Secretary of State may decline
to exercise those powers unless the overseas regulatory authority
undertakes to make such contribution towards the costs of their
exercise as the Secretary of State considers appropriate.
(7) References in this section to
financial services include, in particular, investment business,
insurance and banking. |
Power to require
information, documents or other assistance.
|
83.(1) The
following powers may be exercised in accordance with section 82, if
the Secretary of State considers there is good reason for their exercise.
(2) The Secretary of State may require
any person
(a) to attend before him at a specified time and place
and answer questions or otherwise furnish information with respect
to any matter relevant to the inquiries,
(b) to produce at a specified time and place any specified
documents which appear to the Secretary of State to relate to any
matter relevant to the inquiries, and
(c) otherwise to give him such assistance in connection
with the inquiries as he is reasonably able to give.
(3) The Secretary of State may examine
a person on oath and may administer an oath accordingly.
(4) Where documents are produced
the Secretary of State may take copies or extracts from them.
(5) A person shall not under this
section be required to disclose information or produce a document
which he would be entitled to refuse to disclose or produce on grounds
of legal professional privilege in proceedings in the High Court
or on grounds of confidentiality as between client and professional
legal adviser in proceedings in the Court of Session, except that
a lawyer may be required to furnish the name and address of his
client.
(6) A statement by a person in compliance
with a requirement imposed under this section may be used in evidence
against him.
(7) Where a person claims a lien
on a document, its production under this section is without prejudice
to his lien.
(8) In this section "documents"
includes information recorded in any form; and, in relation to information
recorded otherwise than in legible form, the power to require its
production includes power to require the production of a copy of
it in legible form. |
Exercise of powers
by officer, &c.
|
84.(1) The
Secretary of State may authorise an officer of his or any other competent
person to exercise on his behalf all or any of the powers conferred
by section 83.
(2) No such authority shall be granted
except for the purpose of investigating
(a) the affairs, or any aspects of the affairs, of a
person specified in the authority, or
(b) a subject-matter so specified,
being a person who, or subject-matter which, is the subject of the
inquiries being carried out by or on behalf of the overseas regulatory
authority.
(3) No person shall be bound to comply
with a requirement imposed by a person exercising powers by virtue
of an authority granted under this section unless he has, if required,
produced evidence of his authority.
(4) A person shall not by virtue
of an authority under this section be required to disclose any information
or produce any documents in respect of which he owes an obligation
of confidence by virtue of carrying on the business of banking unless
(a) the imposing on him of a requirement with respect
to such information or documents has been specifically authorised
by the Secretary of State, or
(b) the person to whom the obligation of confidence is
owed consents to the disclosure or production.
In this subsection "documents" has the same meaning as in
section 83.
(5) Where the Secretary of State
authorises a person other than one of his officers to exercise any
powers by virtue of this section, that person shall make a report
to the Secretary of State in such manner as he may require on the
exercise of those powers and the results of exercising them. |
Penalty for failure
to comply with requirement, &c.
|
85.(1) A
person who without reasonable excuse fails to comply with a requirement
imposed on him under section 83 commits an offence and is liable on
summary conviction to imprisonment for a term not exceeding six months
or to a fine not exceeding level 5 on the standard scale, or both.
(2) A person who in purported compliance
with any such requirement furnishes information which he knows to
be false or misleading in a material particular, or recklessly furnishes
information which is false or misleading in a material particular,
commits an offence and is liable
(a) on conviction on indictment, to imprisonment for
a term not exceeding two years or to a fine, or both;
(b) on summary conviction, to imprisonment for a term
not exceeding six months or to a fine not exceeding the statutory
maximum, or both. |
Restrictions on
disclosure of information.
|
86.(1) This
section applies to information relating to the business or other affairs
of a person which
(a) is supplied by an overseas regulatory authority in
connection with a request for assistance, or
(b) is obtained by virtue of the powers conferred by
section 83, whether or not any requirement to supply it is made
under that section.
(2) Except as permitted by section 87
below, such information shall not be disclosed for any purpose
(a) by the primary recipient, or
(b) by any person obtaining the information directly
or indirectly from him,
without the consent of the person from whom the primary recipient
obtained the information and, if different, the person to whom it
relates.
(3) The "primary recipient"
means, as the case may be
(a) the Secretary of State,
(b) any person authorised under section 84 to exercise
powers on his behalf, and
(c) any officer or servant of any such person.
(4) Information shall not be treated
as information to which this section applies if it has been made available
to the public by virtue of being disclosed in any circumstances in
which, or for any purpose for which, disclosure is not precluded by
this section.
(5) A person who contravenes this
section commits an offence and is liable
(a) on conviction on indictment, to imprisonment for
a term not exceeding two years or to a fine, or both;
(b) on summary conviction, to imprisonment for a term
not exceeding three months or to a fine not exceeding the statutory
maximum, or both. |
Exceptions from
restrictions on disclosure.
|
87.(1) Information
to which section 86 applies may be disclosed
(a) to any person with a view to the institution of,
or otherwise for the purposes of, relevant proceedings,
(b) for the purpose of enabling or assisting a relevant
authority to discharge any relevant function (including functions
in relation to proceedings),
(c) to the Treasury, if the disclosure is made in the
interests of investors or in the public interest,
(d) if the information is or has been available to the
public from other sources,
(e) in a summary or collection of information framed
in such a way as not to enable the identity of any person to whom
the information relates to be ascertained, or
(f) in pursuance of any Community obligation.
(2) The relevant proceedings referred
to in subsection (1)(a) are
(a) any criminal proceedings,
(b) civil proceedings arising under or by virtue of the
[1986 c. 60.] Financial Services Act 1986 and proceedings
before the Financial Services Tribunal, and
(c) disciplinary proceedings relating to
(i) the exercise by a solicitor, auditor, accountant,
valuer or actuary of his professional duties, or
(ii) the discharge by a public servant of his duties.
(3) In subsection (2)(c)(ii) "public
servant" means an officer or servant of the Crown or of any public
or other authority for the time being designated for the purposes
of that provision by order of the Secretary of State.
(4) The relevant authorities referred
to in subsection (1)(b), and the relevant functions in relation
to each such authority, are as follows
|
| The Secretary of State. |
Functions under the enactments relating to companies, insurance
companies or insolvency, or under the Financial Services Act
1986 or Part II, this Part or Part VII of this Act. |
| An inspector appointed under Part XIV of the [1985 c. 6.]
Companies Act 1985 or section 94 or 177 of the Financial Services
Act 1986. |
Functions under that Part or that section. |
| A person authorised to exercise powers under section 44
of the [1982 c. 50.] Insurance Companies Act 1982,
section 447 of the Companies Act 1985, section 106 of the
Financial Services Act 1986 or section 84 of this Act. |
Functions under that section. |
| An overseas regulatory authority. |
Its regulatory functions (within the meaning of section
82 of this Act). |
| The Department of Economic Development in Northern Ireland
or a person appointed or authorised by that Department. |
Functions conferred on it or him by the enactments relating
to companies or insolvency. |
| A designated agency within the meaning of the [1986 c. 60.]
Financial Services Act 1986. |
Functions under that Act or Part VII of this Act. |
| A transferee body or the competent authority within the
meaning of the Financial Services Act 1986. |
Functions under that Act. |
| The body administering a scheme under section 54 of the
Financial Services Act 1986. |
Functions under the scheme. |
| A recognised self-regulating organisation, recognised professional
body, recognised investment exchange, recognised clearing
house or recognised self-regulating organisation for friendly
societies (within the meaning of the Financial Services Act
1986). |
Functions in its capacity as an organisation, body, exchange
or clearing house recognised under that Act. |
| The Chief Registrar of friendly societies, the Registrar
of Friendly Societies for Northern Ireland and the Assistant
Registrar of Friendly Societies for Scotland. |
Functions under the Financial Services Act 1986 or the enactments
relating to friendly societies or building societies. |
| The Bank of England. |
Functions under the [1987 c. 22.] Banking Act
1987 and any other functions. |
| The Deposit Protection Board. |
Functions under the Banking Act 1987. |
| A body established by order under section 46 of this Act. |
Functions under Part II of this Act. |
| A recognised supervisory or qualifying body within the meaning
of Part II of this Act. |
Functions as such a body. |
| The Industrial Assurance Commissioner and the Industrial
Assurance Commissioner for Northern Ireland. |
Functions under the enactments relating to industrial assurance. |
| The Insurance Brokers Registration Council. |
Functions under the [1977 c. 46.] Insurance
Brokers (Registration) Act 1977. |
| The Official Receiver or, in Northern Ireland, the Official
Assignee for company liquidations or for bankruptcy. |
Functions under the enactments relating to insolvency. |
| A recognised professional body (within the meaning of section
391 of the Insolvency Act 1986). |
Functions in its capacity as such a body under the [1986
c. 45.] Insolvency Act 1986. |
| The Building Societies Commission. |
Functions under the [1986 c. 53.] Building Societies
Act 1986. |
| The Director General of Fair Trading. |
Functions under the Financial Services Act 1986. |
(5) The Secretary of State may by
order amend the Table in subsection (4) so as to
(a) add any public or other authority to the Table and
specify the relevant functions of that authority,
(b) remove any authority from the Table, or
(c) add functions to, or remove functions from, those
which are relevant functions in relation to an authority specified
in the Table;
and the order may impose conditions subject to which, or otherwise
restrict the circumstances in which, disclosure is permitted.
(6) An order under this section shall
be made by statutory instrument which shall be subject to annulment
in pursuance of a resolution of either House of Parliament. |
Exercise of powers
in relation to Northern Ireland.
|
88.(1) The
following provisions apply where it appears to the Secretary of State
that a request for assistance by an overseas regulatory authority
may involve the powers conferred by section 83 being exercised in
Northern Ireland in relation to matters which are transferred matters
within the meaning of the [1973 c. 36.] Northern Ireland
Constitution Act 1973.
(2) The Secretary of State shall
before deciding whether to accede to the request consult the Department
of Economic Development in Northern Ireland, and if he decides to
accede to the request and it appears to him
(a) that the powers should be exercised in Northern Ireland,
and
(b) that the purposes for which they should be so exercised
relate wholly or primarily to transferred matters,
he shall by instrument in writing authorise the Department to exercise
in Northern Ireland his powers under section 83.
(3) The following provisions have
effect in relation to the exercise of powers by virtue of such an
authority with the substitution for references to the Secretary
of State of references to the Department of Economic Development
in Northern Ireland
(a) section 84 (exercise of powers by officer, &c.),
(b) section 449 of the [1985 c. 6.] Companies
Act 1985, section 53 or 54 of the [1986 c. 53.] Building
Societies Act 1986, sections 179 and 180 of the [1986 c. 60.]
Financial Services Act 1986, section 84 of the [1987 c. 22.]
Banking Act 1987 and sections 86 and 87 above (restrictions on disclosure
of information), and
(c) section 89 (authority for institution of criminal
proceedings);
and references to the Secretary of State in other enactments which
proceed by reference to those provisions shall be construed accordingly
as being or including references to the Department.
(4) The Secretary of State may after
consultation with the Department of Economic Development in Northern
Ireland revoke an authority given to the Department under this section.
(5) In that case nothing in the provisions
referred to in subsection (3)(b) shall apply so as to prevent the
Department from giving the Secretary of State any information obtained
by virtue of the authority; and (without prejudice to their application
in relation to disclosure by the Department) those provisions shall
apply to the disclosure of such information by the Secretary of
State as if it had been obtained by him in the first place.
(6) Nothing in this section affects
the exercise by the Secretary of State of any powers in Northern
Ireland
(a) in a case where at the time of acceding to the request
it did not appear to him that the circumstances were such as to
require him to authorise the Department of Economic Development
in Northern Ireland to exercise those powers, or
(b) after the revocation by him of any such authority;
and no objection shall be taken to anything done by or in relation
to the Secretary of State or the Department on the ground that it
should have been done by or in relation to the other. |
Prosecutions.
|
89. Proceedings
for an offence under section 85 or 86 shall not be instituted
(a) in England and Wales, except by or with the consent
of the Secretary of State or the Director of Public Prosecutions;
(b) in Northern Ireland, except by or with the consent
of the Secretary of State or the Director of Public Prosecutions
for Northern Ireland. |
Offences by bodies
corporate, partnerships and unincorporated associations.
|
90.(1) Where
an offence under section 85 or 86 committed by a body corporate is
proved to have been committed with the consent or connivance of, or
to be attributable to any neglect on the part of, a director, manager,
secretary or other similar officer of the body, or a person purporting
to act in any such capacity, he as well as the body corporate is guilty
of the offence and liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate
are managed by its members, subsection (1) applies in relation to
the acts and defaults of a member in connection with his functions
of management as to a director of a body corporate.
(3) Where an offence under section
85 or 86 committed by a partnership is proved to have been committed
with the consent or connivance of, or to be attributable to any
neglect on the part of, a partner, he as well as the partnership
is guilty of the offence and liable to be proceeded against and
punished accordingly.
(4) Where an offence under section
85 or 86 committed by an unincorporated association (other than
a partnership) is proved to have been committed with the consent
or connivance of, or to be attributable to any neglect on the part
of, any officer of the association or any member of its governing
body, he as well as the association is guilty of the offence and
liable to be proceeded against and punished accordingly. |
Jurisdiction and
procedure in respect of offences.
|
91.(1) Summary
proceedings for an offence under section 85 may, without prejudice
to any jurisdiction exercisable apart from this section, be taken
against a body corporate or unincorporated association at any place
at which it has a place of business and against an individual at any
place where he is for the time being.
(2) Proceedings for an offence alleged
to have been committed under section 85 or 86 by an unincorporated
association shall be brought in the name of the association (and
not in that of any of its members), and for the purposes of any
such proceedings any rules of court relating to the service of documents
apply as in relation to a body corporate.
(3) Section 33 of the [1925 c. 86.]
Criminal Justice Act 1925 and Schedule 3 to the [1980 c. 43.]
Magistrates' Courts Act 1980 (procedure on charge of offence against
a corporation) apply in a case in which an unincorporated association
is charged in England and Wales with an offence under section 85
or 86 as they apply in the case of a corporation.
(4) In relation to proceedings on
indictment in Scotland for an offence alleged to have been committed
under section 85 or 86 by an unincorporated association, section
74 of the [1975 c. 21.] Criminal Procedure (Scotland)
Act 1975 (proceedings on indictment against bodies corporate) applies
as if the association were a body corporate.
(5) Section 18 of the [1945 c. 15
(N.I.) S.I. 1981/1675 (N.I.26).] Criminal Justice Act
(Northern Ireland) 1945 and Schedule 4 to the Magistrates' Courts
(Northern Ireland) Order 1981 (procedure on charge of offence against
a corporation) apply in a case in which an unincorporated association
is charged in Northern Ireland with an offence under section 85
or 86 as they apply in the case of a corporation.
(6) A fine imposed on an unincorporated
association on its conviction of such an offence shall be paid out
of the funds of the association. |
| © Crown copyright 1989 |
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