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Amendment of section 43 of Act of 2010
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27. Section 43 of the Act of 2010 is amended—
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(a) by the substitution of the following subsection for subsection (1):
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“(1) If the Bank or the Governor has reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function, or any controlled function, the Bank or the Governor, as the case may be, may, subject to subsections (3) and (4), impose on the person a prohibition that, as respects the controlled function, the specified part of a controlled function, or any controlled function—
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(a) forbids the person—
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(i) to carry out the function or part at all, or
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(ii) to carry it out otherwise than in accordance with a specified condition or conditions,
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(b) forbids the person—
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(i) to carry out the function or part in relation to a specified regulated financial service provider or holding company or specified regulated financial service providers or holding companies,
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(ii) to carry it out in relation to a specified class or specified classes of regulated financial service providers or holding companies, or
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(iii) to carry it out in relation to any regulated financial service provider or holding company,
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and
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(c) is imposed indefinitely or for a specified period.”,
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(b) in subsection (2)—
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(i) by the substitution of the following paragraph for paragraph (c):
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“(c) the person has committed or participated in serious misconduct in relation to the affairs of a regulated financial service provider or holding company,”,
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and
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(ii) in paragraph (f), by the insertion of “or holding company” after “provider”,
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(c) by the insertion of the following subsection after subsection (2):
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“(2A) Any finding of fact made by the Bank or the Governor for the purpose of forming the opinion referred to in subsection (1) shall be made on the balance of probabilities.”,
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(d) in subsection (3)—
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(i) by the substitution of “impose a prohibition on a person under subsection (1)” for “issue a prohibition notice in relation to a person”,
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(ii) in paragraph (a)(i)(I), by the substitution of “Chapter 3” for “this Chapter”,
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(iii) in paragraph (a)(i)(III), by the substitution of “in accordance with paragraph (c) of section 41(2)” for “(within the period specified pursuant to section 41(4)) to the Head of Financial Regulation in relation to any matter in the report”,
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(iv) in paragraph (a)(ii), by the substitution of “, and any person to whom subsection (3A) applies,” for “and any regulated financial service provider concerned”, and
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(v) by the substitution of the following paragraphs for paragraphs (b) and (c):
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“(b) the person and any person to whom subsection (3A) applies—
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(i) have access to any material taken into account by the Bank or the Governor for the purpose of ensuring that the proposed decision is consistent and proportionate, having regard to other decisions under subsection (1), and
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(ii) have been afforded such a hearing in relation to the proposed decision as is necessary to do justice in the circumstances,
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and
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(c) the Bank or the Governor, as the case may be, is satisfied that the imposition of the prohibition is necessary in the circumstances.”,
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(e) by the insertion of the following subsection after subsection (3):
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“(3A) In relation to the imposition of a prohibition on any person, this subsection applies—
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(a) where the person is subject to a suspension notice, to any regulated financial service provider or holding company on which the Head of Financial Regulation is required by section 26(5) to serve a copy of the notice,
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(b) to any regulated financial service provider or holding company in relation to which, to the knowledge of the Bank or the Governor, as the case may be, the person performs a controlled function to which the prohibition would apply,
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(c) to any regulated financial service provider or holding company which, to the knowledge of the Bank or the Governor, as the case may be, proposes to appoint the person to perform in relation to it a controlled function to which the prohibition would apply, and
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(d) to any regulated financial service provider or holding company which the Bank or the Governor, as the case may be, has reason to believe is considering the appointment of the person to perform in relation to it a controlled function to which the prohibition would apply.”,
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(f) in subsection (4), by the substitution of “impose a prohibition under subsection (1)” for “issue a prohibition notice”,
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(g) by the insertion of the following subsections after subsection (4):
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“(4A) A prohibition under subsection (1) shall be imposed by a notice in writing (in this Part referred to as a ‘prohibition notice’).
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(4B) Where more than one prohibition is imposed under subsection (1) on the same person, they may be imposed by the same prohibition notice.
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(4C) A prohibition notice—
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(a) shall be served on the prohibited person, and
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(b) may be served on a regulated financial service provider or holding company.
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(4D) Subject to section 46, a prohibition notice does not take effect unless confirmed on an application under section 45.”,
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(h) by the deletion of subsections (5) to (7),
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(i) by the substitution of the following subsection for subsection (9):
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“(9) A regulated financial service provider or holding company shall not permit a prohibited person to perform a controlled function in relation to it if doing so would require the person to contravene a prohibition notice served on it.”,
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and
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(j) by the deletion of subsection (12).
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