|
FINANCIAL SERVICES
AND MARKETS
ACT 2000
REPEALS,
TRANSITIONAL PROVISIONS AND SAVINGS
DECEMBER 2000
back
to contents
PART IX - TRIBUNALS
New
cases to be referred to the Financial Services and Markets Tribunal
9.1
Where, at any time after commencement, a person is subjected to a
sanction in respect of misconduct occurring before commencement, then,
if he would have a right to appeal against the sanction or to refer
the case to a tribunal, that right will be preserved. However, the
right to make a reference would become a right to refer the matter
to the new Financial Services and Markets Tribunal established under
Part IX of FSMA. In some cases, where the jurisdiction of the old
tribunal which would have reviewed the case was limited in some way,
or it was required to adopt particular procedures, the new Financial
Services and Markets Tribunal, when taking over the case, will be
subject to the same limitation or will be required to adopt the same
procedures. In this way, we will avoid the need to keep a number
of old tribunals running over a long period beyond commencement whilst
at the same time respecting the rights and expectations of the parties
to the proceedings.
9.2
The basis on which the Tribunal reviewing a proposed action under
old law is able to reach a finding will depend on the circumstances
of the case. In broad terms, where there is a disciplinary case,
and the substance of the case is essentially whether a particular
breach happened or whether a proposed sanction was appropriate, the
Tribunal will seek to establish the facts and may either uphold the
regulatory decisions or direct the FSA to take appropriate action
in place of the action it had proposed to take.
9.3
However, where the case before the Tribunal required it to consider
whether a person was fit and proper, for example in relation to a
decision not to grant an authorisation, to impose restrictions on
an authorisation, or to revoke it, we believe that it would be pointless
for the Tribunal to reach a view based on the requirements that applied
under old law. We therefore propose that in such cases, the Tribunal,
in examining the case should seek to use the hearing to establish
whether, in FSMA terms, there is a question over a person's fitness,
and accordingly whether their authorisation should granted, restricted
or revoked, as the case may be.
Continuation
of proceedings started before commencement
9.4
After careful consideration, we have concluded that where a case has
already been referred to an existing tribunal before commencement,
the only sensible approach is to allow the case to run its course
before that tribunal. We reach the same view even in cases where
the hearing has not started, given that extensive preparations will
be made by the parties sometime before the hearing. To change track
at a late stage would be unduly disruptive and impose unnecessary
costs.
9.5
For the statutory tribunals, that is those under the Banking Act and
FS Act, we will make appropriate savings of old law to enable them
to complete the hearing. (Similar provision is made in the Mutuals
Order for the tribunals established by the Building Societies Act
1986 and the Friendly Societies Act 1992.)
9.6
For the SROs, it will be necessary to recreate a transitional jurisdiction
under which the FSA will continue those tribunals until all relevant
cases have been heard. (If the hearing could subsequently give rise
to a right of appeal, the Financial Services and Markets Tribunal
will have a special jurisdiction to hear the appeal.)
9.7
However, in a case where an old tribunal determines a reference or
appeal requested prior to commencement, we need to make sure it has
power to make orders and impose sanctions which make sense in the
new regime - for example, there is no point in the tribunal purporting
to expel a firm from membership of an SRO which has ceased to exist.
Where appropriate, therefore, the tribunal will be empowered to direct
the FSA to take action which is appropriate in FSMA terms, subject
to the caveat that the action cannot be more severe than would have
been possible under the old regime.
|
