text:
PART 1 GENERAL
Citation, commencement and interpretation
1
1
This Order may be cited as the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006.
2
This Order comes into force —
a
on 1st April 2007 for the purposes of enabling applications to be made for —
i
a Part IV permission,
ii
a variation of a Part IV permission,
iii
the Authority’s approval under section 59 of the Act ,
in relation to an activity of the kind specified by article 25D of the principal Order (inserted by this Order) or in relation to an investment of the kind specified by article 83, 84 or 85 of the principal Order (as amended by this Order);
b
for all other purposes, on 1st November 2007.
3
In this Order, “the Act” means the Financial Services and Markets Act 2000, and “the principal Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 .
PART 2 AMENDMENTS OF THE PRINCIPAL ORDER
Amendments of the principal Order
2
The principal Order is amended as follows.
3
In article 3(1) (interpretation) —
a
in paragraph (a) of the definition of “overseas person” after “25C,” insert “25D,”;
b
at the appropriate place, insert —
“the Commission Regulation” means Commission Regulation 1287/2006 of 10 August 2006 ;
“credit institution” means —
a credit institution authorised under the banking consolidation directive other than an institution to which Article 2.1 of the markets in financial instruments directive (the text of which is set out in Schedule 3) applies, or
an institution which would satisfy the requirements for authorisation as a credit institution under that directive (other than an institution to which Article 2.1 of the markets in financial instruments directive would apply) if it had its registered office (or if it does not have a registered office, its head office) in an EEA State;
“financial instrument” means any instrument listed in Section C of Annex I to the markets in financial instruments directive (the text of which is set out in Part 1 of Schedule 2) read with Chapter VI of the Commission Regulation (the text of which is set out in Part 2 of Schedule 2);
“home Member State”, in relation to an investment firm, has the meaning given by Article 4.1.20 of the markets in financial instruments directive, and in relation to a credit institution, has the meaning given by Article 4.7 of the banking consolidation directive;
“investment firm” means a person whose regular occupation or business is the provision or performance of investment services and activities on a professional basis but does not include —
a person to whom the markets in financial instruments directive does not apply by virtue of Article 2 of that directive (the text of which is set out in Schedule 3);
a person whose home Member State is an EEA State other than the United Kingdom and to whom, by reason of the fact that the State has given effect to Article 3 of that directive, that directive does not apply by virtue of that Article;
a person who does not have a home Member State and to whom (if he had his registered office in an EEA State, or, being a person other than a body corporate or a body corporate not having a registered office, if he had his head office in an EEA State) the markets in financial instruments directive would not apply by virtue of Article 2 of that directive;
“investment services and activities” means —
any service provided to third parties listed in Section A of Annex I to the markets in financial instruments directive (the text of which is set out in Part 3 of Schedule 2) read with Article 52 of Commission Directive 2006/73/ EC of 10 August 2006 (the text of which is set out in Part 4 of Schedule 2), or
any activity listed in Section A of Annex I to that directive,
relating to any financial instrument;
“management company” has the meaning given by Article 1a.2 of the UCITS directive as amended by Directive 2001/107/EC ;
“market operator” means a market operator within the meaning of Article 4.1.13 of the markets in financial instruments directive, or a person who would be a market operator if he had his registered office, or if he does not have a registered office his head office, in an EEA State, but does not include —
a person to whom the markets in financial instruments directive does not apply by virtue of Article 2 of that directive (the text of which is set out in Schedule 3);
a person who does not have a home Member State to whom (if he had his registered office, or if he does not have a registered office his head office, in an EEA State) the markets in financial instruments directive would not apply by virtue of Article 2 of that directive;
“multilateral trading facility” means —
a multilateral trading facility (within the meaning of Article 4.1.15 of the markets in financial instruments directive) operated by an investment firm, a credit institution or a market operator, or
a facility which —
is operated by an investment firm, a credit institution or market operator which does not have a home Member State, and
if its operator had a home Member State, would be a multilateral trading facility within the meaning of Article 4.1.15 of the markets in financial instruments directive;
.
4
In article 4 (specified activities: general) —
a
for paragraph (4) substitute —
4
Where an investment firm or credit institution —
a
provides or performs investment services and activities on a professional basis, and
b
in doing so would be treated as carrying on an activity of a kind specified by a provision of this Part but for an exclusion in any of articles 15, 16, 19, 22, 23, 29, 38, 67, 68, 69, 70 and 72E,
that exclusion is to be disregarded and, accordingly, the investment firm or credit institution is to be treated as carrying on an activity of the kind specified by the provision in question.
;
b
in paragraph (5) omit the definitions of “core investment service” and “investment firm”.
5
In article 14 (dealing in investments as principal) —
a
the existing text becomes paragraph (1);
b
after paragraph (1) insert —
2
Paragraph (1) does not apply to a kind of activity to which article 25D applies.
.
6
In article 15 (absence of holding out etc. ) after paragraph (3) insert —
4
This article is subject to article 4(4).
.
7
In article 16 (dealing in contractually based investments) —
a
the existing text becomes paragraph (1);
b
after paragraph (1) insert —
2
This article is subject to article 4(4).
.
8
In article 19 (risk management) after paragraph (2) insert —
3
This article is subject to article 4(4).
.
9
In article 21 (dealing in investments as agent) —
a
the existing text becomes paragraph (1);
b
after paragraph (1) insert —
2
Paragraph (1) does not apply to a kind of activity to which article 25D applies.
.
10
In article 22 (deals with or through authorised persons) after paragraph (2) insert —
3
This article is subject to article 4(4).
.
11
In article 23 (risk management) after paragraph (2) insert —
3
This article is subject to article 4(4).
.
12
In article 25 (arranging deals in investments) after paragraph (2) insert —
3
Paragraphs (1) and (2) do not apply to a kind of activity to which article 25D applies.
.
13
After article 25C (arranging regulated home purchase plans) insert —
Operating a multilateral trading facility
25D
1
The operation of a multilateral trading facility on which MiFID instruments are traded is a specified kind of activity.
2
In paragraph (1), “MiFID instrument” means any investment —
a
of the kind specified by article 76, 77, 78, 79, 80, 81, 83, 84 or 85; or
b
of the kind specified by article 89 so far as relevant to an investment falling within sub-paragraph (a),
that is a financial instrument.
.
14
In article 29 (arranging deals with or through authorised persons) after paragraph (2) insert —
3
This article is subject to article 4(4).
.
15
In article 30 (arranging transactions in connection with lending on the security of insurance policies) after paragraph (2) insert —
3
This article is subject to article 4(4A) .
.
16
In article 36 (other exclusions) after paragraph (2) insert —
3
Article 25D is also subject to the exclusion in article 72 (overseas persons).
.
17
In article 38 (attorneys) —
a
the existing text becomes paragraph (1);
b
after paragraph (1) insert —
This article is subject to article 4(4).
.
18
In article 64 (agreeing to carry on specified kinds of activity) after “10,” insert “25D,”.
19
In article 66 (trustees, nominees and personal representatives) after paragraph (7) insert —
8
This article is subject to article 4(4A).
.
20
In article 67 (activities carried on in the course of a profession or non-investment business) after paragraph (2) insert —
3
This article is subject to article 4(4) and (4A).
.
21
In article 68 (activities carried on in connection with the sale of goods or supply of services) after paragraph (11) insert —
12
This article is subject to article 4(4).
.
22
In article 69 (groups and joint enterprises) after paragraph (12) insert —
13
This article is subject to article 4(4).
.
23
In article 70 (activities carried on in connection with the sale of a body corporate) after paragraph (7) insert —
8
This article is subject to article 4(4).
.
24
In article 72 (overseas persons) —
a
in paragraph (1) after “article 14” insert “or 25D”;
b
in paragraph (2) after “article 21” insert “or 25D”;
c
in paragraph (3) after “article 25(1)” insert “or 25D”;
d
in paragraph (4) after “article 25(2)” insert “or 25D”;
e
after paragraph (7) insert —
8
Paragraphs (1) to (5) do not apply where the overseas person is an investment firm or credit institution —
a
who is providing or performing investment services and activities on a professional basis; and
b
whose home Member State is the United Kingdom.
.
25
In article 72E (Business Angel-led Enterprise Capital Funds) after paragraph (10) insert —
11
This article is subject to article 4(4).
.
26
In article 83 (options) —
a
the existing text becomes paragraph (1);
b
in paragraph (1) —
i
at the end of sub-paragraph (c) omit “or”; and
ii
at the end of sub-paragraph (d) insert —
;
e
subject to paragraph (4), an option to acquire or dispose of an option to which paragraph 5, 6, 7 or 10 of Section C of Annex I to the markets in financial instruments directive (the text of which is set out in Part I of Schedule 2) applies
;
c
after paragraph (1) insert —
2
Subject to paragraph (4), options —
a
to which paragraph (1) does not apply;
b
which relate to commodities;
c
which may be settled physically; and
d
either —
i
to which paragraph 5 or 6 of Section C of Annex I to the markets in financial instruments directive, the text of which is set out in Part 1 of Schedule 2, applies, or
ii
which in accordance with Article 38 of the Commission Regulation (the text of which is set out in Part 2 of Schedule 2) are to be considered as having the characteristics of other derivative financial instruments and not being for commercial purposes, and to which paragraph 7 of Section C of Annex I to the markets in financial instruments directive applies.
3
Subject to paragraph (4), options —
a
to which paragraph (1) does not apply;
b
which may be settled physically; and
c
to which paragraph 10 of Section C of Annex I to the markets in financial instruments directive (read with the Commission Regulation) applies.
4
Paragraphs (1)(e), (2) and (3) only apply to options in relation to which —
a
an investment firm or credit institution is providing or performing investment services and activities on a professional basis,
b
a management company is providing, in accordance with Article 5(3) of the UCITS directive, the investment service specified in paragraph 4 or 5 of Section A, or the ancillary service specified in paragraph 1 of Section B, of Annex I to the markets in financial instruments directive, or
c
a market operator is providing the investment service specified in paragraph 8 of Section A of Annex I to the markets in financial instruments directive.
5
Expressions used in paragraphs (1)(e), (2) and (3) and in the markets in financial instruments directive have the same meaning as in that directive.
.
27
In article 84 (futures) after paragraph (1) insert —
1A
Subject to paragraph (1D), futures —
a
to which paragraph (1) does not apply;
b
which relate to commodities;
c
which may be settled physically; and
d
to which paragraph 5 or 6 of Section C of Annex I to the markets in financial instruments directive applies.
1B
Subject to paragraph (1D), futures and forwards —
a
to which paragraph (1) does not apply;
b
which relate to commodities;
c
which may be settled physically;
d
which in accordance with Article 38 of the Commission Regulation (the text of which is set out in Part 2 of Schedule 2) are to be considered as having the characteristics of other derivative financial instruments and not being for commercial purposes; and
e
to which paragraph 7 of Section C of Annex I to the markets in financial instruments directive applies.
1C
Subject to paragraph (1D), futures —
a
to which paragraph (1) does not apply;
b
which may be settled physically; and
c
to which paragraph 10 of Section C of Annex I to the markets in financial instruments directive (read with the Commission Regulation) applies.
1D
Paragraph (1A), (1B) and (1C) only apply to futures or forwards in relation to which —
a
an investment firm or credit institution is providing or performing investment services and activities on a professional basis,
b
a management company is providing, in accordance with Article 5(3) of the UCITS directive, the investment service specified in paragraph 4 or 5 of Section A, or the ancillary service specified in paragraph 1 of Section B, of Annex I to the markets in financial instruments directive, or
c
a market operator is providing the investment service specified in paragraph 8 of Section A of Annex I to the markets in financial instruments directive.
1E
Expressions used in paragraphs (1A) to (1C) and in the markets in financial instruments directive have the same meaning as in that directive.
.
28
In article 85 (contracts for differences etc.) after paragraph (2) insert —
3
Subject to paragraph (4), derivative instruments for the transfer of credit risk —
a
to which neither article 83 nor paragraph (1) applies; and
b
to which paragraph 8 of Section C of Annex I to the markets in financial instruments directive applies.
4
Paragraph (3) only applies to derivatives in relation to which —
a
an investment firm or credit institution is providing or performing investment services and activities on a professional basis,
b
a management company is providing, in accordance with Article 5(3) of the UCITS directive, the investment service specified in paragraph 4 or 5 of Section A, or the ancillary service specified in paragraph 1 of Section B, of Annex I to the markets in financial instruments directive, or
c
a market operator is providing the investment service specified in paragraph 8 of Section A of Annex I to the markets in financial instruments directive.
5
”Derivative instruments for the transfer of credit risk” has the same meaning as in the markets in financial instruments directive.
.
29
For Schedule 2 (Annex to the investment services directive) substitute —
SCHEDULE 2
SECTIONS A AND C OF ANNEX I TO THE MARKETS IN FINANCIAL INSTRUMENTS DIRECTIVE AND RELATED COMMUNITY SUBORDINATE LEGISLATION
Article 3(1)
PART 1 SECTION C OF ANNEX I TO THE MARKETS IN FINANCIAL INSTRUMENTS DIRECTIVE
“Financial instruments
1
Transferable securities;
2
Money-market instruments;
3
Units in collective investment undertakings;
4
Options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates or yields, or other derivatives instruments, financial indices or financial measures which may be settled physically or in cash;
5
Options, futures, swaps, forward rate agreements and any other derivative contracts relating to commodities that must be settled in cash or may be settled in cash at the option of one of the parties (otherwise than by reason of a default or other termination event);
6
Options, futures, swaps, and any other derivative contracts relating to commodities that can be physically settled provided that they are traded on a regulated market and/or an MTF;
7
Options, futures, swaps, forwards and any other derivative contracts relating to commodities, that can be physically settled not otherwise mentioned in C.6 and not being for commercial purposes, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are cleared and settled through recognised clearing houses or are subject to regular margin calls;
8
Derivative instruments for the transfer of credit risk;
9
Financial contracts for differences;
10
Options, futures, swaps, forward rate agreements and any other derivative contracts relating to climatic variables, freight rates, emission allowances or inflation rates or other official economic statistics that must be settled in cash or may be settled in cash at the option of one of the parties (otherwise than by reason of a default or other termination event), as well as any other derivative contracts relating to assets, rights, obligations, indices and measures not otherwise mentioned in this Section, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are traded on a regulated market or an MTF, are cleared and settled through recognised clearing houses or are subject to regular margin calls.”
PART 2 CHAPTER VI OF THE COMMISSION REGULATION
Derivative financial instruments
Article 38
Characteristics of other derivative financial instruments
1
For the purposes of Section C(7) of Annex I to Directive 2004/39/EC , a contract which is not a spot contract within the meaning of paragraph 2 of this Article and which is not covered by paragraph 4 shall be considered as having the characteristics of other derivative financial instruments and not being for commercial purposes if it satisfies the following conditions:
a
it meets one of the following sets of criteria:
i
it is traded on a third country trading facility that performs a similar function to a regulated market or an MTF;
ii
it is expressly stated to be traded on, or is subject to the rules of, a regulated market, an MTF or such a third country trading facility;
iii
it is expressly stated to be equivalent to a contract traded on a regulated market, MTF or such a third country trading facility;
b
it is cleared by a clearing house or other entity carrying out the same functions as a central counterparty, or there are arrangements for the payment or provision of margin in relation to the contract;
c
it is standardised so that, in particular, the price, the lot, the delivery date or other terms are determined principally by reference to regularly published prices, standard lots or standard delivery dates.
2
A spot contract for the purposes of paragraph 1 means a contract for the sale of a commodity, asset or right, under the terms of which delivery is scheduled to be made within the longer of the following periods:
a
two trading days;
b
the period generally accepted in the market for that commodity, asset or right as the standard delivery period.
However, a contract is not a spot contract if, irrespective of its explicit terms, there is an understanding between the parties to the contract that delivery of the underlying is to be postponed and not to be performed within the period mentioned in the first subparagraph.
3
For the purposes of Section C(10) of Annex I to Directive 2004/39/EC , a derivative contract relating to an underlying referred to in that Section or in Article 39 shall be considered to have the characteristics of other derivative financial instruments if one of the following conditions is satisfied:
a
that contract is settled in cash or may be settled in cash at the option of one or more of the parties, otherwise than by reason of a default or other termination event;
b
that contract is traded on a regulated market or an MTF;
c
the conditions laid down in paragraph 1 are satisfied in relation to that contract.
4
A contract shall be considered to be for commercial purposes for the purposes of Section C(7) of Annex I to Directive 2004/39/EC , and as not having the characteristics of other derivative financial instruments for the purposes of Sections C(7) and (10) of that Annex, if it is entered into with or by an operator or administrator of an energy transmission grid, energy balancing mechanism or pipeline network, and it is necessary to keep in balance the supplies and uses of energy at a given time.
Article 39
Derivatives within Section C(10) of Annex I to Directive 2004/39/EC
In addition to derivative contracts of a kind referred to in Section C(10) of Annex I to Directive 2004/39/EC , a derivative contract relating to any of the following shall fall within that Section if it meets the criteria set out in that Section and in Article 38(3):
a
telecommunications bandwidth;
b
commodity storage capacity;
c
transmission or transportation capacity relating to commodities, whether cable, pipeline or other means;
d
an allowance, credit, permit, right or similar asset which is directly linked to the supply, distribution or consumption of energy derived from renewable resources;
e
a geological, environmental or other physical variable;
f
any other asset or right of a fungible nature, other than a right to receive a service, that is capable of being transferred;
g
an index or measure related to the price or value of, or volume of transactions in any asset, right, service or obligation.
PART 3 SECTION A OF ANNEX I TO THE MARKETS IN FINANCIAL INSTRUMENTS DIRECTIVE
“Investment services and activities
1
Reception and transmission of orders in relation to one or more financial instruments.
2
Execution of orders on behalf of clients.
3
Dealing on own account.
4
Portfolio management.
5
Investment advice.
6
Underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis.
7
Placing of financial instruments without a firm commitment basis.
8
Operation of Multilateral Trading Facilities.”
PART 4 ARTICLE 52 OF COMMISSION DIRECTIVE 2006/73/EC
Article 52
Investment advice
For the purposes of the definition of “investment advice” in Article 4(1)(4) of Directive 2004/39/EC , a personal recommendation is a recommendation that is made to a person in his capacity as an investor or potential investor, or in his capacity as an agent for an investor or potential investor.
That recommendation must be presented as suitable for that person, or must be based on a consideration of the circumstances of that person, and must constitute a recommendation to take one of the following sets of steps:
a
to buy, sell, subscribe for, exchange, redeem, hold or underwrite a particular financial instrument;
b
to exercise or not to exercise any right conferred by a particular financial instrument to buy, sell, subscribe for, exchange, or redeem a financial instrument.
A recommendation is not a personal recommendation if it is issued exclusively through distribution channels or to the public.
.
30
For Schedule 3 (Article 2.2 of the investment services directive) substitute —
SCHEDULE 3
ARTICLE 2 OF THE MARKETS IN FINANCIAL INSTRUMENTS DIRECTIVE
Article 3(1)
“Article 2
Exemptions
1
This Directive shall not apply to:
a
insurance undertakings as defined in Article 1 of Directive 73/239/ EEC or assurance undertakings as defined in Article 1 of Directive 2002/83/EC or undertakings carrying on the reinsurance and retrocession activities referred to in Directive 64/225/EEC ;
b
persons which provide investment services exclusively for their parent undertakings, for their subsidiaries or for other subsidiaries of their parent undertakings;
c
persons providing an investment service where that service is provided in an incidental manner in the course of a professional activity and that activity is regulated by legal or regulatory provisions or a code of ethics governing the profession which do not exclude the provision of that service;
d
persons who do not provide any investment services or activities other than dealing on own account unless they are market makers or deal on own account outside a regulated market or an MTF on an organised, frequent and systematic basis by providing a system accessible to third parties in order to engage in dealings with them;
e
persons which provide investment services consisting exclusively in the administration of employee-participation schemes;
f
persons which provide investment services which only involve both administration of employee-participation schemes and the provision of investment services exclusively for their parent undertakings, for their subsidiaries or for other subsidiaries of their parent undertakings;
g
the members of the European System of Central Banks and other national bodies performing similar functions and other public bodies charged with or intervening in the management of the public debt;
h
collective investment undertakings and pension funds whether coordinated at Community level or not and the depositaries and managers of such undertakings;
i
persons dealing on own account in financial instruments, or providing investment services in commodity derivatives or derivative contracts included in Annex I, Section C10 to the clients of their main business, provided this is an ancillary activity to their main business, when considered on a group basis, and that main business is not the provision of investment services within the meaning of this Directive or banking services under Directive 2000/12/EC ;
j
persons providing investment advice in the course of providing another professional activity not covered by this Directive provided that the provision of such advice is not specifically remunerated;
k
persons whose main business consists of dealing on own account in commodities and/or commodity derivatives. This exception shall not apply where the persons that deal on own account in commodities and/or commodity derivatives are part of a group the main business of which is the provision of other investment services within the meaning of this Directive or banking services under Directive 2000/12/EC ;
l
firms which provide investment services and/or perform investment activities consisting exclusively in dealing on own account on markets in financial futures or options or other derivatives and on cash markets for the sole purpose of hedging positions on derivatives markets or which deal for the accounts of other members of those markets or make prices for them and which are guaranteed by clearing members of the same markets, where responsibility for ensuring the performance of contracts entered into by such firms is assumed by clearing members of the same markets;
m
associations set up by Danish and Finnish pensions funds with the sole aim of managing the assets of pension funds that are members of those associations;
n
‘agenti di cambio’ whose activities and functions are governed by Article 201 of Italian Legislative Decree No 58 of 24 February 1998.
2
The rights conferred by this Directive shall not extend to the provision of services as counterparty in transactions carried out by public bodies dealing with public debt or by members of the European System of Central Banks performing their tasks as provided for by the Treaty and the Statute of the European System of Central Banks and of the European Central Bank or performing equivalent functions under national provisions.
3
In order to take account of developments on financial markets, and to ensure the uniform application of this Directive, the Commission, acting in accordance with the procedure referred to in Article 64(2), may, in respect of exemptions (c), (i) and (k) define the criteria for determining when an activity is to be considered as ancillary to the main business on a group level as well as for determining when an activity is provided in an incidental manner.”
.
PART 3 CONSEQUENTIAL AMENDMENTS OF PRIMARY LEGISLATION
Amendment of the Fair Trading Act 1973
31
In the Fair Trading Act 1973 , in section 118(6A) (trading schemes to which Part XI applies), after paragraph (b), insert —
ba
operating a multilateral trading facility;
.
Amendment of the Companies Act 1989
32
In the Companies Act 1989 , in section 176(8) (power to make provision about certain other charges), after paragraph (b), insert —
ba
operating a multilateral trading facility;
.
Amendment of the Terrorism Act 2000
33
In the Terrorism Act 2000 , in paragraph 6(1A) of Schedule 6 (financial information), after paragraph (b), insert —
ba
operating a multilateral trading facility,
.
PART 4 CONSEQUENTIAL AMENDMENTS OF SECONDARY LEGISLATION
Amendment of the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987
34
In the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987 , in regulation 3(4)(a), after paragraph (ii), insert —
iia
operating a multilateral trading facility,
.
Amendment of the Companies (No. 2) (Northern Ireland) Order 1990
35
In the Companies (No.2) (Northern Ireland) Order 1990 , in Article 98(8), after sub-paragraph (b), insert —
ba
operating a multilateral trading facility;
.
Amendment of the Collective Investment Schemes Order
36
1
The Schedule to the Financial Services and Markets Act 2000 (Collective Investment Schemes Order) 2001 is amended as follows.
2
In paragraph 5(2)(a), after “25 (arranging deals in investments),” insert “25D (operating a multilateral trading facility),”.
3
In paragraph 9(1)(a) , after “25”, insert “, 25D,”.
Amendment of the Carrying on Regulated Activities by Way of Business Order
37
In the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001 , in article 3(2) (investment business), after sub-paragraph (c), insert —
ca
article 25D (operating a multilateral trading facility);
.
Amendment of the Consultation with Competent Authorities Regulations
38
In the Financial Services and Markets Act 2000 (Consultation with Competent Authorities) Regulations 2001 , in regulation 2, omit the definition of “investment firm” .
Amendment of the Money Laundering Regulations
39
In the Money Laundering Regulations 2003 , in regulation 2(2)(a), after paragraph (iv), insert —
iva
operating a multilateral trading facility;
.
Amendment of the Financial Promotion Order
40
1
The Schedule to the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 is amended as follows.
2
In Part I (controlled activities) —
a
after paragraph 4 insert —
Operating a multilateral trading facility
4A
Operating a multilateral trading facility on which MiFID instruments are traded is a controlled activity.
;
b
in paragraph 11 after “10B above” insert “(other than paragraph 4A)”.
3
In Part II (controlled investments), in paragraph 21 (options) —
a
the existing text becomes sub-paragraph (1);
b
in sub-paragraph (1) —
i
at the end of paragraph (c) omit “or”;
ii
at the end of paragraph (d) insert —
;
e
subject to sub-paragraph (4), an option to acquire or dispose of an option to which paragraph 5, 6, 7 or 10 of Section C of Annex I to the markets in financial instruments directive applies
;
c
after sub-paragraph (1) insert —
2
Subject to sub-paragraph (4), options —
a
to which sub-paragraph (1) does not apply;
b
which relate to commodities;
c
which may be settled physically; and
d
either —
i
to which paragraph 5 or 6 of Section C of Annex I to the markets in financial instruments directive applies, or
ii
which in accordance with Article 38 of the Commission Regulation are to be considered as having the characteristics of other derivative financial instruments and not being for commercial purposes, and to which paragraph 7 of Section C of Annex I to the markets in financial instruments directive applies.
3
Subject to sub-paragraph (4), options —
a
to which sub-paragraph (1) does not apply;
b
which may be settled physically; and
c
to which paragraph 10 of Section C of Annex I to the markets in financial instruments directive (read with the Commission Regulation) applies.
4
Sub-paragraphs (1)(e), (2) and (3) only apply to options in relation to which —
a
an investment firm or credit institution is providing or performing investment services and activities on a professional basis,
b
a management company is providing, in accordance with Article 5(3) of the UCITS directive, the investment service specified in paragraph 4 or 5 of Section A, or the ancillary service specified in paragraph 1 of Section B, of Annex I to the markets in financial instruments directive, or
c
a market operator is providing the investment service specified in paragraph 8 of Section A of Annex I to the markets in financial instruments directive.
5
Expressions used in sub-paragraphs (1)(e), (2) and (3) and in the markets in financial instruments directive have the same meaning as in that directive.
.
4
In Part II, in paragraph 22 (futures), after sub-paragraph (1) insert —
1A
Subject to sub-paragraph (1D), futures —
a
to which sub-paragraph (1) does not apply;
b
which relate to commodities;
c
which may be settled physically; and
d
to which paragraph 5 or 6 of Section C of Annex I to the markets in financial instruments directive applies.
1B
Subject to sub-paragraph (1D), futures and forwards —
a
to which sub-paragraph (1) does not apply;
b
which relate to commodities;
c
which may be settled physically;
d
which in accordance with Article 38 of the Commission Regulation are to be considered as having the characteristics of other derivative financial instruments and not being for commercial purposes; and
e
to which paragraph 7 of Section C of Annex I to the markets in financial instruments directive applies.
1C
Subject to sub-paragraph (1D), futures —
a
to which sub-paragraph (1) does not apply;
b
which may be settled physically; and
c
to which paragraph 10 of Section C of Annex I to the markets in financial instruments directive (read with the Commission Regulation) applies.
1D
Sub-paragraphs (1A), (1B) and (1C) only apply to futures or forwards in relation to which —
a
an investment firm or credit institution is providing or performing investment services and activities on a professional basis,
b
a management company is providing, in accordance with Article 5(3) of the UCITS directive, the investment service specified in paragraph 4 or 5 of Section A, or the ancillary service specified in paragraph 1 of Section B, of Annex I to the markets in financial instruments directive, or
c
a market operator is providing the investment service specified in paragraph 8 of Section A of Annex I to the markets in financial instruments directive.
1E
Expressions used in sub-paragraphs (1A) to (1C) and in the markets in financial instruments directive have the same meaning as in that directive.
.
5
In Part II, in paragraph 23 (contracts for differences etc.) after sub-paragraph (2) insert —
3
Subject to sub-paragraph (4), derivative instruments for the transfer of credit risk —
a
to which neither paragraph 21 nor sub-paragraph (1) applies; and
b
to which paragraph 8 of Section C of Annex I to the markets in financial instruments directive applies.
4
Sub-paragraph (3) only applies to derivatives in relation to which —
a
an investment firm or credit institution is providing or performing investment services and activities on a professional basis,
b
a management company is providing, in accordance with Article 5(3) of the UCITS directive, the investment service specified in paragraph 4 or 5 of Section A, or the ancillary service specified in paragraph 1 of Section B, of Annex I to the markets in financial instruments directive, or
c
a market operator is providing the investment service specified in paragraph 8 of Section A of Annex I to the markets in financial instruments directive.
5
”Derivative instruments for the transfer of credit risk” has the same meaning as in the markets in financial instruments directive.
.
6
In Part II, in paragraph 28, in the appropriate places, insert —
“Commission Regulation” means Commission Regulation 1287/2006 of 10 August 2006;
“credit institution” has the meaning given in the Regulated Activities Order;
“investment firm” has the meaning given in the Regulated Activities Order;
“investment services and activities” has the meaning given in the Regulated Activities Order;
“management company” has the meaning given in the Regulated Activities Order;
“market operator” has the meaning given in the Regulated Activities Order;
“MiFID instrument” has the meaning given in article 25D(2) of the Regulated Activities Order;
“multilateral trading facility” has the meaning given in the Regulated Activities Order;
.
Kevin Brennan
Dave Watts
Two of the Lords Commissioners of Her Majesty’s Treasury
18th December 2006


type: legislation

jurisdiction: UK

text:
Citation and commencement
1
These Regulations may be cited as the Social Security (Contributions) (Amendment No. 5) Regulations 2006 and shall come into force on 16th November 2006.
Amendment of Part 6 of Schedule 3 to the Social Security (Contributions) Regulations 2001
2
Amend Part 6 of Schedule 3 to the Social Security (Contributions) Regulations 2001 (payments disregarded for the purposes of earnings-related contributions) as follows.
3
1
Amend paragraph 3 (pensions and pension contributions: migrant member relief and corresponding relief) as follows.
2
At the end of the heading to the paragraph add “ etc. ”.
3
Renumber the existing paragraph as sub-paragraph (1) of that paragraph.
4
Amend sub-paragraph (1) as follows —
a
at the end of paragraph (a) add “and any benefit referable to that contribution”
b
at the end of paragraph (b) add “and any benefit referable to that contribution”,
c
after paragraph (b) omit “or” and insert —
ba
an employer’s contribution to a pension scheme established by a government outside the United Kingdom for the benefit of its employees or primarily for their benefit, and any benefit referable to such a contribution (whenever made);
;
d
omit paragraph (c);
e
after paragraph (c) add —
d
benefits from a pension scheme which are referable to contributions made before 6 th April 2006, provided that section 386 of ITEPA 2003 did not apply to those contributions by virtue of section 390 of that Act; or
e
benefits subject to the unauthorised payment charge imposed by section 208 of the Finance Act 2004 as applied to a relevant non-UK scheme by virtue of paragraph 1 of Schedule 34 to that Act.
.
5
At the end of the paragraph add —
2
Expressions defined in Schedule 34 to the Finance Act 2004 have the same meaning in this paragraph as they have there.
.
4
1
Amend paragraph 11 (superannuation funds to which section 615(3) of the Taxes Act applies) as follows.
2
After “and a payment by way of” insert “a pension or”.
3
Omit “from which” to the end.
Alan Campbell
Frank Roy
Two of the Lords Commissioners for Her Majesty’s Treasury
25th October 2006
The Secretary of State concurs.
James Purnell
Minister of State,
Department for Work and Pensions
21st October 2006
The Department for Social Development concurs.
Sealed with the Official Seal of the Department for Social Development on 20th October 2006.
John O’Neill
Senior Officer of the Department for Social Development


text:
Title, commencement and application
1
1
This Order may be cited as the Tuberculosis (England) Order 2006 and comes into force —
a
for the purposes of article 2(1) on 18th February 2006;
b
for all other purposes on 27th March 2006.
2
This Order applies in England only.
Revocations
2
1
The Tuberculosis (England) Order 2005 and the Tuberculosis (England) (Amendment) Order 2006 are revoked.
2
The Tuberculosis (England and Wales) Order 1984 and the Tuberculosis (England and Wales) (Amendment) Order 1990 are revoked in so far as they apply in England.
Interpretation
3
1
In this Order:
“ the Act ” means the Animal Health Act 1981;
“affected animal” means a cow which is affected with tuberculosis of the udder or is giving tuberculous milk, or a bovine animal which is affected with tuberculous emaciation, or is excreting or discharging tuberculous material, or is affected with a chronic cough, or shows any other clinical sign of tuberculosis;
“bovine animal” means domestic cattle of the genus Bos , buffalo and bison;
“the Divisional Veterinary Manager” means the veterinary inspector appointed by the Secretary of State to receive information about animals or carcases affected or suspected of being affected with specified diseases, for the area in which the animal or carcase is;
“finishing unit” means premises where bovine animals are fattened and from where they are sent to slaughter;
“reactor” means a bovine animal which produces a reaction to a relevant test which is consistent with its being affected with tuberculosis;
“relevant test” means a skin test or other diagnostic test for tuberculosis;
“skin test” means a single intradermal comparative cervical tuberculin test for tuberculosis;
“suspected animal” means a bovine animal that is suspected of being affected with tuberculosis, and includes a reactor;
“tuberculosis” means infection with Mycobacterium bovis (M.bovis).
Extension of definition of “disease” and power to slaughter on account of tuberculosis
4
For the purposes of the Act, the definition of “disease” in section 88(1) of the Act is extended so as to include tuberculosis, and section 32 of the Act (power to slaughter animals) shall apply to that disease.
Notification of disease in bovine animals
5
1
Any person who suspects that a bovine animal in his possession or under his charge on any premises is or may be an affected animal, shall forthwith —
a
notify the Divisional Veterinary Manager
b
pending conclusion of the veterinary inquiry under article 7 and the service of any notice under that article —
i
detain that animal on the premises where it then is;
ii
isolate it as far as practicable from other bovine animals; and
iii
adopt precautions with respect to milk produced by that animal as if a notice under article 7 had already been served.
2
A veterinary surgeon who suspects that an animal examined by him in the course of his practice is or may be an affected animal, shall forthwith notify the Divisional Veterinary Manager.
Notification of disease in carcases
6
1
Any person who —
a
has in his possession or under his charge on any premises any carcase which is affected with or suspected of being affected with tuberculosis;
b
in the course of his practice as a veterinary surgeon, examines any such carcase; or
c
in the course of his duties, inspects any such carcase for any purpose;
shall, immediately he suspects the carcase may be affected with tuberculosis, notify the Divisional Veterinary Manager.
2
A person who has in his possession or under his charge a carcase to which paragraph (1) applies shall detain it on the premises where it then is until it has been examined by a veterinary inspector.
3
For the purpose of paragraphs (1) and (2) above, “carcase” means the carcase of any bovine animal or other farmed or pet mammal.
Veterinary enquiry as to the existence of disease
7
1
Where a veterinary inspector has reason to believe an affected animal or a suspected animal (other than a reactor) or a carcase of a bovine animal which is affected with or suspected of being affected with tuberculosis is present on any premises, he shall, with all practicable speed, take such steps as may be necessary to establish whether it is in fact an affected or suspected animal or carcase.
2
For the purpose of carrying out his duties under this article a veterinary inspector may examine any bovine animal or carcase of a bovine animal on the premises and take such samples from any such animal or carcase or carry out such tests as may be required for the purpose of diagnosis.
3
A veterinary inspector shall serve a notice on the keeper of any bovine animal examined by him which in his opinion is an affected or suspected animal, requiring the keeper to —
a
detain that animal in accordance with the requirements of the notice and keep it isolated from other bovine animals;
b
where appropriate take steps to ensure that the milk produced by the animal is not mixed with other milk and is boiled or otherwise sterilized and that any utensil with which such milk has been in contact before it is so treated shall be thoroughly cleansed and scalded with steam or boiling water before the utensil is used again; and
c
ensure that no bovine animal is moved on to or off the premises or such part of the premises as is specified in the notice except under the authority of a licence issued by an inspector.
Tuberculosis testing
8
1
The Secretary of State may by notice served on the keeper of a bovine animal, require any such animal to be tested for tuberculosis by a specified date.
2
Without prejudice to article 13, where there has been a failure to test an animal in accordance with a notice served under paragraph (1) the Secretary of State may, by notice served on the keeper of that animal, prohibit the movement of bovine animals, or of such bovine animals as are specified in the notice, on to or off the premises or any part of them, except under the authority of a licence issued by an inspector.
3
The keeper of any bovine animal shall comply with all reasonable requirements of an inspector with a view to —
a
facilitating the examination of that animal by that inspector;
b
the application to it of any relevant test for tuberculosis; or
c
the valuation of the animal in a case where the Secretary of State intends to cause it to be slaughtered under section 32 of the Act in its application to tuberculosis,
and in particular shall arrange at his own expense for the collection, penning and securing of any such animal if so required.
4
Without prejudice to any proceedings for an offence under this Order, where there has been a failure to test an animal in accordance with a notice issued under paragraph (1), the Secretary of State may take or cause to be taken all the steps that may be necessary to facilitate the examination, testing and, if appropriate, the valuation of that animal, (including the removal of that animal from the premises on which it is kept) and the amount of any expenses reasonably incurred by the Secretary of State for the purpose of making good the default shall be recoverable by her from the person in default.
5
Where a relevant test has been applied to a bovine animal, no person shall move that animal from the premises on which it is kept unless —
a
the movement is under the authority of a licence issued by a veterinary inspector; or
b
the results of the test have been read by an inspector with a negative result.
6
No person shall interfere with the administration or the reading of a relevant test.
Pre-Movement Testing
9
1
Subject to paragraph (2) and to articles 11 and 23, and without prejudice to the requirements of the Artificial Insemination of Cattle (Animal Health) (England and Wales) Regulations 1985 , no person shall move a bovine animal from any premises unless a skin test has been applied to it no more than 60 days before the date of movement.
2
Paragraph (1) shall not apply to the following animals —
a
bovine animals in herds that are subject to routine testing for tuberculosis less frequently than annually or biennially;
b
bovine animals that are under 6 weeks of age at the date of the movement;
c
bovine animals that have been present on the premises for no more than 30 days at the date of the movement;
d
bovine animals that are subject to routine annual testing for the following public health reasons only —
i
they are on a farm considered by the Divisional Veterinary Manager to be an open farm;
ii
they are part of a herd from which the Dairy Hygiene Inspectorate has approved the sale of raw cow’s milk for drinking direct to the end consumer, either by retail sale of bottled milk or as part of an on-farm catering business;
iii
they are part of a herd from which raw cow’s milk is regularly used for the manufacture of unpasteurised cheese or other unpasteurised dairy products;
e
bovine animals at an approved semen collection centre.
3
For the purposes of paragraph (1) the date of a test shall be the date of injection of tuberculin.
4
For the purposes of paragraph (2) (d) (i) of this article, “open farm” means a farm which is open for visits by the public or by sections of the public.
Tuberculosis test records
10
1
Where a skin test has been applied to a bovine animal, the Secretary of State shall, as soon as practicable after the results of the test have been read by an inspector, give the keeper of that animal a record in writing of the results of the test.
2
Paragraph (1) shall not apply to animals in respect of which movement is, or remains prohibited under this Order following the test.
3
The keeper of any animal to which paragraph (1) applies shall —
a
retain the record of the results of the test for a period of 3 years and 60 days following the date of injection of tuberculin; and
b
produce such record when requested to do so by an inspector.
Permitted Movements
11
Notwithstanding article 9, the following movements are permitted —
a
movements specified in the Schedule; and
b
any movement under the authority of a licence issued by a veterinary inspector.
Prohibitions
12
1
No person shall vaccinate a bovine animal against tuberculosis without the consent in writing of the Secretary of State.
2
No person shall treat a bovine animal for tuberculosis without the consent in writing of the Secretary of State.
3
No person shall test a bovine animal for tuberculosis except with the consent in writing of the Secretary of State and a person to whom any such consent is given shall, as soon as he knows the result of the test, report it immediately to the Secretary of State.
Prohibition on movement of animals
13
Without prejudice to articles 7(3)(c) and 8(2), an inspector may, for the purpose of controlling or preventing the spread of tuberculosis, by notice served on the keeper of bovine animals kept on such premises as are specified in the notice, prohibit the movement of bovine animals, or of such bovine animals as are specified in the notice, on to or off such premises, except under the authority of a licence issued by an inspector.
Notification of intended slaughter of animals
14
1
Where the Secretary of State intends to cause a bovine animal to be slaughtered under section 32 of the Act in its application to tuberculosis, an inspector shall serve a notice on the keeper of the animal informing him of the intended slaughter and requiring him to detain the animal pending such slaughter (or pending its surrender and removal for such slaughter) on such part of the premises as is specified in the notice and to isolate it as far as practicable from such other animals as are so specified.
2
Where a notice has been served under paragraph (1), no person shall move the animal, other than to slaughter, except under the authority of a licence issued by an inspector.
Precautions against spread of infection
15
1
Where a veterinary inspector is satisfied that any bovine animal kept on any premises is an affected animal or a reactor, he may, by notice served on the keeper of any such animal, require him —
a
to treat and store manure or slurry from any place which has been used by any such animal in accordance with the requirements of the notice;
b
not to spread any manure or to spray or spread any slurry from any place which has been used by any such animal otherwise than in accordance with the requirements of the notice;
c
not to remove manure, slurry or other animal waste from the premises except under authority of a licence issued by an inspector;
d
to take such steps as may be reasonably practicable to prevent any bovine animal kept on the premises from infecting any bovine animal kept on any adjoining premises;
e
to arrange for the isolation of any bovine animal or animals which may be specified in the notice on any specified part or parts of the premises;
f
to ensure that any part or parts of the premises specified in the notice shall not be used by any bovine animal on the premises, or by such animal or animals as may be specified;
g
at his own expense, and within such time and in such manner as may be specified in the notice, to cleanse and disinfect such part or parts of the premises as may be specified;
h
to cleanse and disinfect all utensils and other articles used for or about an animal to which the notice relates within such time and in such manner as may be specified in the notice.
2
If any person on whom a notice is served under paragraph (1) fails to comply with the requirements of the notice, the Secretary of State may, without prejudice to any proceedings arising out of such default, carry out or cause to be carried out the requirements of the notice, and the amount of any expenses reasonably incurred by the Secretary of State for the purpose of making good the default shall be recoverable by her from the person in default.
Suspected animals in markets, shows and sales
16
Where a veterinary inspector reasonably believes that a bovine animal on any premises at which a show, exhibition, market, sale or fair is being held, is affected or suspected of being affected with, or has been exposed to infection by tuberculosis, he may —
a
by notice served on the keeper of the animal, require that animal to be removed from those premises, and (as the keeper of the animal may elect) taken —
i
to a slaughterhouse for immediate slaughter; or
ii
back to the premises from which the animal was brought to the show, exhibition, market, sale or fair; or
iii
to such other premises as may be approved by the veterinary inspector for the purpose;
b
by notice served on the person in charge of the premises —
i
require him to ensure that any part or parts of the premises specified in the notice shall not be used by any other bovine animal for such period as may be specified in the notice;
ii
require him at his own expense, and within such time and in such manner as may be specified in the notice —
aa
to cleanse and disinfect such part or parts of the premises as may be specified in the notice;
bb
to dispose of any manure, slurry or other animal waste, straw, litter or other matter that has, or might have, come into contact with such animal.
2
Where a bovine animal is moved in accordance with paragraph (1)(a)(ii) or (iii) it shall immediately be put into isolation and shall not be moved again except under the authority of a licence issued by an inspector.
Control of infection from other animals
17
1
Where a veterinary inspector reasonably believes that an animal kept on any premises is or may be affected with tuberculosis, he may by notice served on the occupier of such premises —
a
require him to keep the animal under control in such manner as may be specified in the notice or to confine it to such part of the premises as may be specified; and
b
prohibit the movement of animals on to or off such premises, except under the authority of a licence issued by an inspector.
2
For the purposes of paragraphs (1) above “animal” means any kind of mammal except man, but not a bovine animal.
Marking of bovine animals
18
1
If he is directed to do so by an inspector, the keeper of bovine animals kept on any premises shall mark such animals in the manner required by the inspector.
2
The inspector may mark bovine animals kept on any premises.
3
No person shall change or interfere with any mark which has been applied under this article.
Isolation of M. bovis in a laboratory
19
1
Where the presence of the organism M. bovis is identified by a laboratory examination of a sample taken from any mammal (other than man) or from the carcase, products or surroundings of any such mammal, the person in charge of that laboratory shall immediately notify the Veterinary Laboratories Agency.
2
The duty to notify the Veterinary Laboratories Agency in paragraph (1) above, shall not apply where M. bovis is present in the sample as a result of its deliberate introduction as part of research involving the use of that organism.
General Provisions as to Notices and Licences
20
1
Any licence issued under this Order shall be in writing, may be general or specific, and may be made subject to conditions.
2
A notice served or licence issued under this Order may be amended, suspended or withdrawn at any time by further notice issued by an inspector.
Production of licences
21
Where a bovine animal is moved under the authority of a licence (other than a general licence) issued under this Order —
a
the animal shall be accompanied throughout such movement by the licence; and
b
the person in charge of the animal being moved under the authority of a licence shall, on demand made under this Order by an inspector, furnish his name and address and shall produce the licence and allow a copy of it to be taken.
Enforcement
22
1
This Order shall be enforced by the local authority.
2
The Secretary of State may direct, in relation to cases of a particular description or any particular case, that an enforcement duty imposed on a local authority under this Order shall be discharged by the Secretary of State and not by the local authority.
Transitional Provisions
23
Up to and including 28th February 2007 article 9 shall not apply to animals aged below 15 months on the date of the movement.
Savings
24
Any notice issued, or licence or consent granted under the Tuberculosis (England and Wales) Order 1984 and which has effect at the coming into force of this Order shall remain in force as if it were a notice issued or licence or consent granted under this Order.
Jim Knight
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
17th February 2006


text:
PART 1 General
Citation, commencement and interpretation
1
1
This Order may be cited as the Standing Civilian Courts (Evidence) Rules 2006 and shall come into force on 6th December 2006.
2
In these Rules —
“ the Act ” means the Youth Justice and Criminal Evidence Act 1999;
“an intermediary” has the same meaning as in section 29 of the Act;
“child witness in need of special protection” shall be construed in accordance with section 21(1) of the Act;
“court administration officer” has the same meaning as in paragraph 1 of Schedule 3 to the Armed Forces Act 1976;
“magistrate” means a person appointed under section 6(4) of the Armed Forces Act 1976 to sit as magistrate in trials before a Standing Civilian Court;
“special measures direction” means a direction under section 19 of the Act.
PART 2 Special measures directions
Application for special measures direction
2
1
An application by a party in any proceedings for the magistrate to give a special measures direction under section 19 of the Act must be made in writing in the form set out in Schedule 1 to these Rules or a form to the like effect.
2
If the application is for a special measures direction —
a
enabling a witness to give evidence by means of a live link, the information sought in Part B of that form must be provided;
b
enabling a video recording of an interview of a witness to be admitted as evidence in chief of the witness, the information sought in Part C of that form must be provided; or
c
providing for any examination of a witness to be conducted through an intermediary, the information sought in Part D of that form must be provided.
3
The application under paragraph (1) must be sent to the court administration officer and at the same time a copy thereof must be sent by the applicant to every other party to the proceedings.
4
The application must be received by the court administration officer within 28 days of the date appointed for trial.
5
A party to whom an application is sent in accordance with paragraph (3) may oppose the application for a special measures direction in respect of any, or any particular, measure available in relation to the witness, whether or not the question whether the witness is eligible for assistance by virtue of section 16 or 17 of the Act is in issue.
6
A party who wishes to oppose the application must, within 14 days of the date the application was served on him, notify the applicant and the court administration officer in writing of his opposition and give reasons for it.
7
Paragraphs (5) and (6) do not apply in respect of an application for a special measures direction enabling a child witness in need of special protection to give evidence by means of a live link if the opposition is that the special measures direction is not likely to maximise the quality of the witness’s evidence.
8
In order to comply with paragraph (6) —
a
a party must in the written notification state whether he —
i
disputes that the witness is eligible for assistance by virtue of section 16 or 17 of the Act;
ii
disputes that any of the special measures available would be likely to improve the quality of evidence given by the witness or that such measures (or a combination of them) would be likely to maximise the quality of that evidence; and
iii
opposes the granting of a special measures direction; and
b
where the application relates to the admission of a video recording, a party who receives a recording must provide the information required by rule 8(7) .
9
Except where notice is received in accordance with paragraph (6) , the magistrate may —
a
determine the application in favour of the applicant without a hearing; or
b
direct a hearing.
10
Where a party to the proceedings notifies the court administration officer in accordance with paragraph (6) of his opposition to the application, the magistrate must direct a hearing of the application.
11
Where a hearing of the application is to take place in accordance with paragraph (9) or (10) , the court administration officer shall notify each party to the proceedings of the time and place of the hearing.
12
A party notified in accordance with paragraph (11) may be present at the hearing and be heard.
13
The court administration officer must, within 3 days of the decision of the magistrate in relation to an application under paragraph (1) being made, notify all the parties of the decision, and if the application was made for a direction enabling a video recording of an interview of a witness to be admitted as evidence in chief of that witness, the notification must state whether the whole or specified parts only of the video recording or recordings disclosed are to be admitted in evidence.
Application for an extension of time
3
1
An application may be made in writing for the period of 28 days specified in rule 2(4) to be extended.
2
The application may be made either before or after that period has expired.
3
The application must be accompanied by a statement setting out the reasons why the applicant is or was unable to make the application within that period and a copy of the application and the statement must be sent to every other party to the proceedings.
4
An application for an extension of time under this rule shall be determined by the magistrate without a hearing unless the magistrate otherwise directs.
5
The court administration officer shall notify all the parties of the magistrate’s decision.
Late applications
4
1
Notwithstanding the requirements of rule 2 —
a
an application may be made for a special measures direction orally at the trial; or
b
the magistrate may of his own motion raise the issue whether a special measures direction should be given.
2
Where an application is made in accordance with paragraph (1)(a) —
a
the applicant must state the reasons for the late application; and
b
the magistrate must be satisfied that the applicant was unable to make the application in accordance with rule 2 .
3
The magistrate shall determine before making a special measures direction —
a
whether to allow other parties to the proceedings to make representations on the question;
b
the time allowed for making such representations (if any); and
c
whether the question should be determined following a hearing at which the parties to the proceedings may be heard.
4
Paragraphs (2) and (3) do not apply in respect of an application made orally at the trial for a special measures direction —
a
enabling a child witness in need of special protection to give evidence by means of a live link; or
b
enabling a video recording of such a child to be admitted as evidence in chief of the witness,
if the opposition is that the special measures direction will not maximise the quality of the witness’s evidence.
Discharge or variation of a special measures direction
5
1
An application to the magistrate to discharge or vary a special measures direction under section 20(2) of the Act must be in writing and each material change of circumstances which the applicant alleges has occurred since the direction was made must be set out.
2
An application under paragraph (1) must be sent to the court administration officer as soon as reasonably practicable after the change of circumstances occurs.
3
The applicant must also send copies of the application to each party to the proceedings at the same time as the application is sent to the court administration officer.
4
A party to whom an application is sent in accordance with paragraph (3) may oppose the application on the ground that it discloses no material change of circumstances.
5
Rule 2(6) to (13) shall apply to an application to discharge or vary a special measures direction as it applies to an application for a direction.
Renewal application following a material change of circumstances
6
1
Where an application for a special measures direction has been refused by the magistrate, the application may only be renewed (“renewal application”) where there has been a material change of circumstances since the magistrate refused the application.
2
The applicant must —
a
identify in the renewal application each material change of circumstances which is alleged to have occurred; and
b
send the renewal application to the court administration officer as soon as reasonably practicable after the change occurs.
3
The applicant must also send copies of the renewal application to each of the parties to the proceedings at the same time as the application is sent to the court administration officer.
4
A party to whom the renewal application is sent in accordance with paragraph (3) may oppose the application on the ground that it discloses no material change of circumstances.
5
Rule 2(6) to (13) and rules 7 and 8 apply to a renewal application as they apply to the application which was refused.
Application for special measures direction for witness to give evidence by means of a live television link
7
1
Where the application for a special measures direction is made, in accordance with rule 2(2)(a) , for a witness to give evidence by means of a live link, the following provisions of this rule shall also apply.
2
A party who seeks to oppose an application for a child witness to give evidence by means of a live link must, in order to comply with rule 2(5) , state why in his view the giving of a special measures direction would not be likely to maximise the quality of the witness’s evidence.
3
However, paragraph (2) does not apply in relation to a child witness in need of special protection.
4
Where a special measures direction is made enabling a witness to give evidence by means of a live link, the witness shall be accompanied at the live link only by persons acceptable to the magistrate.
5
If the special measures directions combine provisions for a witness to give evidence by means of a live link with provision for examination of the witness to be conducted through an intermediary, the witness shall be accompanied at the live link only by —
a
the intermediary; and
b
such other persons as may be acceptable to the magistrate.
Video recording of testimony from witnesses
8
1
Where an application is made for a special measures direction enabling a video recording of an interview of a witness to be admitted as evidence in chief of the witness, the following provisions of this rule shall also apply.
2
The application made in accordance with rule 2(1) must be accompanied by the video recording which it is proposed to tender in evidence and must include —
a
the name of the accused and the offence to be charged;
b
the name and date of birth of the witness in respect of whom the application is made;
c
the date on which the video recording was made;
d
a statement as to whether, and if so at what point in the video recording, an oath was administered to, or a solemn declaration made by, the witness;
e
a statement that, in the opinion of the applicant, either —
i
the witness is available for cross-examination; or
ii
the witness is not available for cross-examination and the parties have agreed that there is no need for the witness to be so available;
f
a statement of the circumstances in which the video recording was made which complies with paragraph (4) of this rule; and
g
the date on which the video recording was disclosed to the other party or parties.
3
Where it is proposed to tender part only of a video recording of an interview with the witness, the application must specify that part and be accompanied by a video recording of the entire interview, including those parts which it is not proposed to tender in evidence, and by a statement of the circumstances in which the video recording of the entire interview was made which complies with paragraph (4) of this rule.
4
The statement of the circumstances in which the video recording was made referred to in paragraphs (2)(f) and (3) of this rule shall include the following information, except in so far as it is contained in the recording itself —
a
the times at which the recording commenced and finished, including details of interruptions;
b
the location at which the recording was made and the usual function of the premises;
c
in relation to each person present at any point during, or immediately before, the recording —
i
their name, age and occupation,
ii
the time for which each person was present, and
iii
the relationship, if any, of each person to the witness and to the accused;
d
in relation to the equipment used for the recording —
i
a description of the equipment,
ii
the number of cameras used,
iii
whether the cameras were fixed or mobile,
iv
the number and location of the microphones,
v
the video format used; and
vi
whether it offered single or multiple recording facilities and, if so, which were used; and
e
the location of the mastertape if the video recording is a copy and details of when and by whom the copy was made.
5
If the special measures direction enables a video recording of an interview of a witness to be admitted as evidence in chief of the witness with provision for the examination of the witness to be conducted through an intermediary, the information to be provided under paragraph (4)(c) shall be the same as that for other persons present at the recording but with the addition of details of the declaration made by the intermediary under rule 10 .
6
If the special measures direction enables a video recording of an interview of a witness to be admitted as evidence in chief of the witness with provision for the witness, in accordance with section 30 of the Act, to be provided with a device as an aid to communication during the video recording of the interview the information to be included under paragraph (4)(d) shall include also details of any such device used for the purposes of the recording.
7
A party who receives a recording under paragraph (2) must within 14 days of its receipt, notify the applicant and the court administration officer, in writing —
a
whether he objects to the admission under section 27 of the Act of any part of the video recording or recordings disclosed, giving his reasons why it would not be in the interests of justice for the recording or any part of it to be admitted;
b
whether he would agree to the admission of part of the video recording or recordings and, if so, which part or parts; and
c
whether he wishes to be represented at any hearing of the application.
8
A party who seeks to oppose an application for a special measures direction enabling a video recording of an interview of a child witness to be admitted as evidence in chief of the witness must, in order to comply with rule 2(6), state why in his view the giving of a special measures direction would not be likely to maximise the quality of the witness’s evidence.
9
However, paragraph (8) does not apply if the witness is a child witness in need of special protection.
10
Notwithstanding the provisions of rule 2 and this rule, any video recording which the accused proposes to tender in evidence need not be sent to the prosecution until the close of the prosecution case at the trial.
11
The magistrate may determine an application by the accused to tender in evidence a video recording even though the recording has not, in accordance with paragraph (10) , been served upon the prosecution.
12
Where a video recording which is the subject of a special measures direction is sent to the prosecution after the direction has been made, the prosecutor may apply to the magistrate for the direction to be varied or discharged.
13
An application under paragraph (12) may be made orally to the magistrate.
14
A prosecutor who makes an application under paragraph (12) must state —
a
why he objects to the admission under section 27 of the Act of any part of the video recording or recordings disclosed, giving his reasons why it would not be in the interests of justice for the recording or any part of it to be admitted; and
b
whether he would agree to the admission of part of the video recording or recordings and if so, which part or parts.
15
The magistrate must, before determining the application —
a
direct a hearing of the application; and
b
allow all the parties to the proceedings to be present and be heard on the application.
16
The court administration officer must notify all parties to the proceedings of the decision of the magistrate as soon as may be reasonable after the decision is given.
17
Any decision varying a special measures direction must state whether the whole or specified parts of the video recording or recordings subject to the application are to be admitted in evidence.
Expert evidence in connection with special measures directions
9
Any party to the proceedings who proposes to adduce expert evidence (whether of fact or opinion) in connection with an application or renewal application for, or for varying or discharging, a special measures direction must, not less than 14 days before the date set for the trial to begin —
a
furnish the other party or parties to those proceedings with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence; and
b
where a request is made to him in that behalf by any other party to those proceedings, provide that party also with a copy of (or if it appears to the party proposing to adduce the evidence to be more practicable, a reasonable opportunity to examine) the record of any observation, test, calculation or other procedure on which such finding or opinion is based and any document or other thing or substance in respect of which any such procedure has been carried out.
Intermediaries
10
The declaration required to be made by an intermediary in accordance with section 29(5) of the Act shall be in the following form:
I solemnly, sincerely and truly declare that I will well and faithfully communicate questions and answers and make true explanation of all matters and things as shall be required of me according to the best of my skill and understanding.
PART 3 Restrictions on reporting
Application for a reporting direction under section 46(6) of the Act
11
1
An application for a reporting direction made by a party to any proceedings, in relation to a witness in those proceedings, must be made in writing in Form A of Schedule 2 to these Rules (or a form to the like effect) or orally under rule 13.
2
If an application for a reporting direction is made in writing, the applicant shall send that application to the court administration officer and copies shall be sent at the same time to every other party to those proceedings.
Opposing an application for a reporting direction
12
1
If an application for a reporting direction is made in writing, any party to the proceedings who wishes to oppose that application must notify the applicant and the court administration officer in writing of his opposition and give reasons for it.
2
A person opposing an application must state in the written notification whether he disputes that the —
a
witness is eligible for protection under section 46 of the Act; or
b
granting of protection would be likely to improve the quality of the evidence given by the witness or the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case.
3
The notification under paragraph (1) must be given within 5 working days of the date the application was served on him unless an extension of time is granted under rule 16.
Urgent action on an application under section 46(6) of the Act
13
1
The magistrate may give a reporting direction under section 46 of the Act in relation to a witness in those proceedings, notwithstanding that the 5 working days specified in rule 12(3) have not expired if —
a
an application is made to him for the purposes of this rule; and
b
he is satisfied that, due to exceptional circumstances, it is appropriate to do so.
2
Any party to the proceedings may make the application under paragraph (1) whether or not an application has already been made under rule 11.
3
An application under paragraph (1) may be made orally or in writing.
4
If an application is made orally, the magistrate may hear and take into account representations made to him by any person who in his view has a legitimate interest in the application before it.
5
The application must specify the exceptional circumstances on which the application relies.
Application for an excepting direction under section 46(9) of the Act
14
1
An application for an excepting direction under section 46(9) of the Act (a direction dispensing with restrictions imposed by a reporting direction) may be made by —
a
a party to those proceedings; or
b
any person who, although not a party to the proceedings, is directly affected by a reporting restriction given in relation to a witness in those proceedings.
2
If an application for an excepting direction is made, the applicant must state why —
a
the effect of a reporting direction imposed places a substantial and unreasonable restriction on the reporting of the proceedings; and
b
it is in the public interest to remove or relax those restrictions.
3
An application for an excepting direction may be made in writing, pursuant to paragraph (4), at any time after the commencement of the proceedings in the court or orally at a hearing of an application for a reporting direction.
4
If the application for an excepting direction is made in writing it must be in Form B of Schedule 2 to these Rules (or a form to the like effect) and the applicant shall send that application to the court administration officer and copies shall be sent at the same time to every party to those proceedings.
5
Any person served with a copy of an application for an excepting direction who wishes to oppose it, must notify the applicant and court administration officer in writing of his opposition and give reasons for it.
6
The notification under paragraph (5) must be given within 5 working days of the date the application was served on him unless an extension of time is granted under rule 16.
Variation or revocation of a reporting or excepting direction
15
1
An application to —
a
revoke a reporting direction; or
b
vary or revoke an excepting direction,
may be made at any time after the commencement of the proceedings in the court.
2
An application under paragraph (1) may be made by a party to the proceedings in which the direction was issued, or by a person who, although not a party to those proceedings, is in the opinion of the magistrate directly affected by the direction.
3
An application under paragraph (1) must be made in writing and the applicant shall send that application to the court administration officer, and at the same time copies of the application shall be sent to every party or, as the case may be, every party to the proceedings.
4
The applicant must set out in his application the reasons why he seeks to have the direction varied or, as the case may be, revoked.
5
Any person served with a copy of an application who wishes to oppose it, must notify the applicant and the court administration officer in writing of his opposition and give reasons for it.
6
Any notification under paragraph (5) must be given within 5 working days of the date the application was served on him unless an extension of time is granted under rule 16.
Application for an extension of time
16
1
An application may be made in writing to extend the period of time for notification under rule 12(3), rule 14(6) or rule 15(6) before that period has expired.
2
An application must be accompanied by a statement setting out the reasons why the applicant is unable to give notification within that period.
3
An application must be sent to the court administration officer and a copy of the application must be sent at the same time to the applicant.
Decision of the magistrate
17
1
The magistrate may —
a
determine any application made under rule 11 and rules 13 to 16 without a hearing; or
b
direct a hearing of any application.
2
The court administration officer shall notify all the parties of the magistrate’s decision as soon as reasonably practicable.
3
If a hearing of an application is to take place, the court administration officer shall notify each party to the proceedings of the time and place of the hearing.
4
A magistrate may hear and take into account representations made to him by any person who in the magistrate’s view has a legitimate interest in the application before it.
PART 4 Revocations
Revocations
18
Article 61 of the Standing Civilian Courts Order 1997 is revoked.
Derek Twigg
Parliamentary Under Secretary of State
Ministry of Defence
30th October 2006


text:
Title, commencement and application
1
1
These Regulations may be cited as the Pig Carcase (Grading) (Amendment) (England) Regulations 2006 and come into force on 5th September 2006.
2
These Regulations apply in relation to England only.
Amendments to the Pig Carcase (Grading) Regulations 1994
2
1
The Pig Carcase (Grading) Regulations 1994 are amended as follows.
2
In paragraph (1) of regulation 2 (interpretation) —
a
at the end of the definition of “the Commission Decision”, add “, as last amended by Commission Decision (EC) No. 2006/374 ” ;
b
at the end of the definition of “the Commission Regulation”, add “, as amended by Commission Regulation (EC) No. 3127/94 ” .
3
For paragraph (b) of regulation 6 (weighing, etc. , of carcases of pigs), substitute —
b
except where the MLC is bound by the obligation specified in regulation 7(5)(c) —
i
weigh each such pig carcase in accordance with Article 2(2) of the Council Regulation, and where he cannot generally observe the 45-minute requirement of that Article he may in accordance with Article 2(2) of the Commission Regulation seek the consent of the Secretary of State, who is the competent authority for the purposes of that Article, to exceed that period;
ii
make a record of the weight of each such pig carcase; and
iii
thereafter calculate the weight of the cold carcase in accordance with the provisions of Article 2(1) of the Commission Regulation or, where he has the consent of the Secretary of State under sub-paragraph (i), in accordance with Article 2(2) of the Commission Regulation.
.
4
In regulation 6(d), for “Article 4(1) or (2) of the Commission Regulation” substitute “Article 4 of the Commission Regulation”.
5
In regulation 10, after paragraph (b), insert —
bb
by sending it to him by fax or other means of electronic communication which produces a text in legible form;
.
Revocations
3
The Pig Carcase (Grading) (Amendment) (England) Regulations 2003 and the Pig Carcase (Grading) (Amendment) (England) Regulations 2004 are revoked.
Ben Bradshaw
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
7th August 2006


text:
Title, commencement and application
1
1
This Order may be cited as the Tuberculosis (England) (Amendment) Order 2006 and comes into force on 19th February 2006.
2
This Order applies in England only.
Amendment of the Tuberculosis (England) Order 2005
2
The Tuberculosis (England) Order 2005 is amended as follows —
a
in article 23 (transitional provisions), for “article 8” substitute “article 9”;
b
in paragraph 4 of Schedule 1 (movements to exempt markets), for “exempt finishing unit” substitute “exempt or approved finishing unit”.
Ben Bradshaw
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
24th January 2006