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PART I
GENERAL
Citation, commencement and extent
1
1
These Rules may be cited as the Family Health Services Appeal Authority (Procedure) Rules 2001 and shall come into force on 14th December 2001.
2
These Rules extend to England only.
Interpretation
2
1
In these Rules, unless the context otherwise requires —
“the 1977 Act ” means the National Health Service Act 1977 ;
“allocation to a panel” shall be construed in accordance with rule 31;
“applicant” and “application” shall be construed in accordance with paragraph (2);
“appellant” means a person who makes an appeal to the FHSAA against a disputed decision;
“appropriate professional registration body” means the General Medical Council, the General Dental Council, the General Optical Council or the Royal Pharmaceutical Society of Great Britain, as the case may be;
“ Chairman ” means the chairman of a panel to which a case has, or to which particular proceedings in a case have, been allocated;
“contingent removal decision” means a decision by the FHSAA under section 49M(4) of the 1977 Act that a practitioner be removed contingently from a Health Authority list;
“decision” (except in the expression “disputed decision”) means any decision of a panel except where the context otherwise provides;
“directions” shall be construed in accordance with rules 31 to 33;
“disputed decision” means the decision of a Health Authority which is the subject of an appeal under section 49M of the 1977 Act or under the relevant FHS regulations;
“the FHSAA” means the Family Health Services Appeal Authority established under section 49S of the 1977 Act ;
“ FHS Regulations ” means any regulations conferring a right of appeal to the FHSAA under —
section 29B of the 1977 Act (vacancies for medical practitioners),
section 36 of the 1977 Act (regulations about general dental services),
section 39 of the 1977 Act (regulations about general ophthalmic services),
section 42 of the 1977 Act (regulations about pharmaceutical services),
section 43 of the 1977 Act (persons authorised to provide pharmaceutical services),
section 43ZA of the 1977 Act (conditional inclusion in medical, dental, ophthalmic and pharmaceutical lists),
section 43D of the 1977 Act (supplementary lists relating to the provision of general medical services, general dental services, general ophthalmic services and pharmaceutical services),
section 28DA of the 1977 Act (lists of persons who may perform personal medical services or personal dental services), or
section 8ZA of the National Health Service (Primary Care) Act 1997 (services lists: lists of persons who may perform personal medical services or personal dental services);
“an FHS regulations appeal” means an appeal made under FHS regulations against a disputed decision;
“hearing” means a sitting of a panel for the purpose of enabling the panel in question to reach or announce a decision;
“member” means a member of the FHSAA other than the President or any Deputy President;
“notice of appeal” shall be construed in accordance with rule 6;
“notice of application” shall be construed in accordance with rule 16;
“party” means an appellant, or a respondent Health Authority under Part II or, an applicant or a respondent under Part III, as the case may be, and “parties” shall be construed accordingly;
“the President” means the President of the FHSAA and includes any Deputy President;
“professional registration number” means the number against a person’s name in the register of the appropriate professional registration body;
“the register” means any register kept by the FHSAA in which details concerning appeals, applications, replies and decisions are kept;
“reply” shall be construed in accordance with rule 12 or rule 23, as the case may be;
“representative” means a person, other than Counsel, whom a party instructs to assist him in relation to an appeal or an application (as the case may be), whether or not that person is legally qualified;
“respondent” (except in the expression “respondent Health Authority”) means the respondent to an application;
“respondent Health Authority” means the Health Authority which made a disputed decision.
2
In these Rules, except where the context otherwise requires —
a
“applicant” means —
i
a Health Authority which makes an application to the FHSAA for an order that a suspension be extended in accordance with section 49I(6)(b) of the 1977 Act,
ii
a Health Authority which makes an application to the FHSAA under section 49N(4) of the 1977 Act for a national disqualification to be imposed on a practitioner, or
iii
a Health Authority which makes, or a practitioner who makes an application under section 49M(5)(a) of the 1977 Act following a decision of the FHSAA that the practitioner be removed contingently,
as the case may be;
b
“application”, except in the expression “application for directions” shall be construed accordingly; and
c
in Part III to Part V in relation to a Health Authority, the words “he”, “his” or “himself” shall, where relevant be construed as applying to that Authority.
3
In these Rules, unless the context otherwise requires, a reference —
a
to a numbered Part is to the Part bearing that number;
b
to a numbered rule is to the rule bearing that number; and
c
to a numbered paragraph in a rule is to the paragraph bearing that number in that rule.
Carrying out of President’s functions by Deputy President
3
Any functions of the President under these Rules may be carried out by any Deputy President.
Appeals and applications
4
In these Rules, Part II applies only to appeals and Part III applies only to applications.
PART II
APPEALS TO THE FHSAA
(A)
MAKING AN APPEAL TO THE FHSAA
Time period in which an FHS regulations appeal must be made
5
An appellant who makes an FHS regulations appeal must do so within the period of 28 days beginning with the date on which the Health Authority gave him notice of the disputed decision.
Notice of appeal
6
1
An appellant shall make his appeal to the FHSAA by giving notice of appeal in writing in accordance with the following paragraphs.
2
The notice of appeal shall state —
a
the name and address of the appellant,
b
his professional registration number where applicable,
c
that the notice is a notice of appeal,
d
the date of the disputed decision against which the appeal is brought,
e
the full name and address of the Health Authority which gave the disputed decision,
f
a concise statement of the grounds of the appeal,
g
the name and address of his representative (if any) and whether the FHSAA should correspond with that representative concerning the appeal instead of with the appellant.
3
The appellant shall attach to his notice of appeal a copy of the disputed decision together with two copies of any documents on which he proposes to rely for the purposes of his appeal.
4
The appellant or his representative shall sign the notice of appeal.
5
The appellant must send or deliver his notice of appeal to the FHSAA.
Amendment of appeal and delivery of supplementary grounds of appeal
7
1
The appellant may, at any time before he is notified of the date of the hearing of his appeal, amend his notice of appeal, deliver a supplementary statement of grounds of appeal or send to the FHSAA any other documents on which he proposes to rely.
2
The appellant may amend any notice of appeal or supplementary statement, with the leave of the panel to which the case has been allocated, at any time after he has been notified of the date of the hearing of the appeal, or at the hearing itself and the panel may grant such leave on such terms as it thinks fit.
3
The appellant shall send a copy of every amendment and supplementary statement to the FHSAA.
Application by appellant for directions
8
The appellant may apply in writing to the FHSAA for directions to be given as to any matter relating to the hearing of his appeal.
Withdrawal of appeal
9
The appellant may —
a
at any time before the hearing of the appeal withdraw his appeal by sending to the FHSAA a notice stating he withdraws his appeal, signed by him or by his representative;
b
at the hearing of the appeal, with the leave of the panel, withdraw his appeal.
Notice of hearing to appellant
10
1
The FHSAA shall serve on the appellant a notice informing him of the time and place of any oral hearing which is to be held.
2
Such notice shall include guidance regarding the rules of evidence and procedure which apply to the hearing.
3
When the appellant receives the notice of the time and place of hearing, he shall inform the FHSAA whether or not he intends to attend or be represented at the hearing and whether or not he intends to call any witnesses and where he does intend to call witnesses he shall provide their names and addresses to the FHSAA.
4
If the appellant does not intend to attend or be represented at the hearing, he may send to the FHSAA additional written representations in support of his appeal.
Representation at hearing
11
At the hearing of an appeal or any other hearing in connection with an appeal including a hearing for directions, the appellant may conduct his case himself (with assistance from his representative if he wishes) or may appear and be represented by his representative or by Counsel.
(B)
REPLYING TO AN APPEAL
Action by a respondent Health Authority on receipt of a notice of appeal
12
1
Where a respondent Health Authority receive a copy of a notice of appeal from the FHSAA in accordance with rule 29(3) they shall reply in accordance with the following paragraphs.
2
The respondent Health Authority shall send or deliver to the FHSAA a written reply acknowledging service upon them of the notice of appeal and stating —
a
the appellant’s professional registration number where applicable;
b
whether or not they intend to oppose the appeal and if so, enclosing a brief statement of the grounds on which they rely in opposing the appeal; and
c
where they intend to instruct a representative in relation to the appeal, the name and address of their representative and whether such address is their address for service for the purposes of the appeal.
3
The respondent Health Authority shall include with their reply a statement summarising the facts relating to the disputed decision, and shall send or deliver their reply to the FHSAA together with a copy of any document on which they propose to rely.
4
Every such reply shall be signed by an officer of the respondent Health Authority who is authorised to sign such documents or by their solicitor and shall be delivered to the FHSAA not later than 21 days after the date on which the copy of the notice of appeal was received by the Health Authority from the FHSAA.
5
The respondent Health Authority may include in their reply, or by way of a separate notice to the FHSAA, a request for further particulars of the appeal.
Amendment of reply and application for directions by respondent Health Authority
13
1
The respondent Health Authority may at any time before they are notified of the date of the hearing of the appeal amend their reply or deliver a supplementary statement by way of reply.
2
The respondent Health Authority may amend any reply or supplementary statement with the leave of the panel to which the case has been allocated at any time after they have been notified of the date of the hearing of the appeal or at the hearing itself and the panel may grant such leave on such terms as it thinks fit.
3
The Health Authority may apply in writing to the FHSAA for directions to be given as to any matter relating to the hearing of the appeal.
4
The Health Authority shall send a copy of every amendment and supplementary statement to the FHSAA.
Representation at, and action of the respondent Health Authority on notification of, hearing
14
1
At the hearing of an appeal or any other hearing in connection with that appeal including a hearing for directions, the respondent Health Authority may conduct their case themselves (with assistance from their representative if they wish) or may appear and be represented by their representative or by Counsel.
2
When they receive a notice of the time and place of the hearing of the appeal, the respondent Health Authority shall inform the FHSAA whether or not they intend to attend or be represented at the hearing, and whether or not they intend to call witnesses and where they do intend to call witnesses, they shall supply their names and addresses to the FHSAA.
3
If the Health Authority do not intend to attend or be represented at the hearing, they may send to the FHSAA additional written representations in support of their reply.
PART III
APPLICATIONS TO THE FHSAA
(A)
MAKING AN APPLICATION
Applications in respect of contingent removal decisions
15
1
The following paragraphs apply to any application under section 49M(5)(a) of the 1977 Act in respect of a contingent removal decision.
2
Subject to paragraph (4), the first application in respect of such a decision shall not be made until three months have elapsed since the contingent removal decision was made.
3
Subject to paragraph (4), any further application in respect of the same contingent removal decision shall not be made until six months have elapsed since the FHSAA gave its last decision in respect of such application or further application.
4
Where the parties wish to apply jointly to the FHSAA with a view to seeking —
a
the same variation of conditions,
b
the same imposition of different conditions, or
c
for the contingent removal to be revoked,
the application shall be treated as being made by the Health Authority and may be made after a period of one month has elapsed since the FHSAA gave its decision in respect of an application to which either paragraph (2) or (3) applied.
Applications to the FHSAA
16
1
An applicant shall make an application in accordance with the following paragraphs.
2
The application shall be in writing and shall state —
a
the name and address of the applicant and, where relevant, his professional registration number,
b
the name and address or addresses of the respondent and, where relevant, his professional registration number,
c
a concise statement of the grounds on which the application is made, and
d
the name and address of the representative of the applicant, if any, and whether the FHSAA should correspond with the representative concerning the application instead of with the applicant.
3
The applicant or his representative shall sign the notice of application and shall send or deliver the application to the FHSAA within any time limit specified by or under the 1977 Act.
4
The FHSAA shall acknowledge receipt of the application and shall inform the applicant or the applicant’s representative of any further steps which must be taken to enable the FHSAA to decide the application and the time and place of any hearing in respect of the application.
Documents and other material to accompany application
17
1
The applicant shall send or deliver to the FHSAA with the application a copy of every document on which he intends to rely for the purposes of the application.
2
The FHSAA may, on such terms as it thinks fit, excuse the applicant from providing any document required to be furnished under paragraph (1) where that document or a copy is already held by the FHSAA.
Amendment of application and delivery of supplementary statement
18
1
The applicant may, at any time before being notified of the date of the hearing of the application, amend the application or deliver a supplementary statement in relation to that application.
2
The applicant may amend the application or supplementary statement with the leave of the panel at any time after being notified of the date of the hearing of the application, or at the hearing itself, and the panel may grant such leave on such terms as it thinks fit.
3
The applicant shall send a copy of every amendment and supplementary statement to the FHSAA.
Application for directions
19
1
The applicant may apply to the FHSAA for directions to be given by a panel in respect of any matter relating to the hearing of the application.
2
An application for directions shall be made in writing to the FHSAA.
Withdrawal of application
20
The applicant may —
a
at any time before the hearing of the application withdraw his application by sending to the FHSAA a notice stating that he withdraws it, signed by him or by his representative,
b
at the hearing of the application, with the leave of the panel, withdraw the application.
Action of applicant on receipt of notice of hearing
21
1
The FHSAA shall serve on the applicant a notice giving the time and place of any oral hearing which is to be held.
2
When the applicant receives the notice of the time and place of hearing, he shall inform the FHSAA whether or not he intends to be represented at the hearing and whether or not he intends to call witnesses, and where he does intend to call witnesses, he shall supply their names and addresses to the FHSAA.
3
If the applicant does not intend to attend or be represented at the hearing, he may send to the FHSAA additional written representations in support of his application.
Representation at hearing
22
At the hearing of an application or any other hearing in connection with that application, including a hearing for directions, the applicant may conduct his case himself (with assistance from his representative if he wishes) or may appear and be represented by his representative or by Counsel.
(B)
REPLYING TO AN APPLICATION
Action by respondent on receipt of notice of application
23
1
A person who receives from the FHSAA a copy of an application against him in accordance with rule 29(3) (“the respondent”) shall send or deliver to the FHSAA a written reply acknowledging receipt of that application and setting out —
a
his full name and address and, where applicable, his professional registration number;
b
the professional registration number of the applicant, where applicable;
c
whether or not he intends to resist the application and if so, a concise statement of the grounds on which he relies in resisting it;
d
the name and address and the profession of his representative, if any, and whether the FHSAA should send notices concerning the application to the representative instead of to the respondent.
2
The respondent may include in his reply a request for further particulars of the application.
3
Every such reply shall be signed by the respondent or his representative and shall be delivered to the FHSAA not later than 21 days after the date on which the notification of the application was sent to him by the FHSAA.
4
A reply which is received by the FHSAA after the time appointed by this rule which contains reasons on which the respondent relies for justifying the delay shall be deemed to include an application for an extension of the time so appointed.
5
A respondent who has not delivered a written reply shall not be entitled to take any part in the proceedings before the panel on the application except —
a
to apply for an extension of time for presenting a reply;
b
to apply for a direction that the applicant provide further particulars relevant to the application;
c
to be called as a witness by another party; and
d
to be sent a copy of a decision or corrected decision.
Documents and other material to accompany reply
24
1
The respondent shall send or deliver to the FHSAA with his reply a copy of every document on which he intends to rely at the hearing of the application.
2
The FHSAA may, on such terms as it thinks fit, excuse the respondent from providing any document required to be furnished under paragraph (1) where that document, or a copy of it, is already held by the FHSAA.
Amendment of reply and delivery of supplementary statement
25
1
The respondent may, at any time before he is notified of the date of the hearing of the application, amend his reply or deliver a supplementary statement by way of reply.
2
The respondent may amend any reply or supplementary statement with the leave of a panel at any time after he has been notified of the hearing of the application or at the hearing itself.
3
The respondent shall send a copy of every amendment and supplementary statement to the FHSAA.
Application for directions
26
1
The respondent may apply to the FHSAA for directions to be given by a panel as to any matter relating to the hearing of the application for disqualification.
2
An application for directions shall be made in writing to the FHSAA.
Action of respondent on receipt of notice of hearing
27
1
The FHSAA shall serve on a respondent who opposes the application a notice informing him of the time and place of any oral hearing which is to be held and such notice will include guidance regarding the rules of evidence and procedure which apply to the hearing.
2
When the respondent receives the notice of the time and place of hearing, he shall inform the FHSAA whether or not he intends to attend or be represented at the hearing, and whether he intends to call witnesses, and where he does intend to call witnesses he shall supply their names and addresses to the FHSAA.
3
If the respondent does not intend to attend or be represented at the hearing, he may send to the FHSAA additional written representations in support of his reply.
Representation at hearing
28
At the hearing of an application or any other hearing in connection with that application, including a hearing for directions, the respondent may conduct his case himself (with assistance from his representative if he wishes) or may appear and be represented by his representative or by Counsel.
PART IV
GENERAL MATTERS RELATING TO CASES
(A)
ACKNOWLEDGEMENT AND REGISTRATION ETC.
Acknowledgement and registration of appeal or application and service of documents by FHSAA
29
1
Upon receiving a notice of appeal or notice of application, as the case may be, the FHSAA shall provided that the notice of appeal was given or the notice of application was made within the time described in rule 5 or 15 or in the 1977 Act as appropriate —
a
send to the appellant or the applicant an acknowledgement of its receipt which shall include a notice that advice in relation to the proceedings may be obtained from the FHSAA,
b
enter particulars of it in the register, and
c
inform the appellant or the applicant in writing of the case number of the appeal or application entered in the register (which shall thereafter constitute the title of the proceedings).
2
Upon receiving a reply from a respondent the FHSAA shall —
a
send the respondent an acknowledgement of its receipt;
b
enter particulars of the reply in the register; and
c
inform the respondent of the case number of the appeal or application, as the case may be.
3
Subject to paragraph (4) the FHSAA shall serve forthwith a copy of any document submitted by a party in connection with an appeal or an application on the other party in the case, provided that if any document is sent or delivered to the FHSAA after a time prescribed in these Rules other than in rule 5 or 15, the FHSAA may defer service pending a decision by a panel for the extension of the time limit in question.
4
If any document supplied to the FHSAA by a party in an appeal or an application contains any matter that relates to —
a
a person’s intimate personal or financial circumstances,
b
is commercially sensitive,
c
consists of information communicated or obtained in confidence, or
d
considerations of national security are involved,
and for that reason the party seeks to restrict its disclosure, that party shall inform the FHSAA of that fact and of the reasons for seeking such a restriction.
5
In any case falling within paragraph (4) the FHSAA shall serve the copies as provided in this rule only in accordance with directions given by the panel to which the case is allocated.
6
In this rule, “respondent” includes a respondent Health Authority.
(B)
PREPARATION FOR HEARING BY A PANEL
Composition of panels in certain cases
30
The President shall ensure that in the case of —
a
an FHS regulations appeal, or
b
an application for an order under section 49I(6)(b) of the 1977 Act,
the composition of any panel to which the case or any proceedings in such a case is allocated under rule 31 is in accordance with paragraph 10(a) and (b) of Schedule 9A to that Act as if the panel were one constituted for the purposes of section 49M or 49N of the 1977 Act.
Allocation to a panel and directions
31
1
Subject to the following paragraphs, the President shall allocate a case to a panel after the FHSAA has received a reply to an appeal under Part II or to an application under Part III, as the case may be.
2
Where a party to an appeal or an application makes an application for directions before the case has been allocated to a panel, the President may allocate such an application to any panel.
3
Where a case has been allocated to a panel in accordance with paragraph (1), any proceedings in that case, including any application for directions by a party shall be dealt with by that panel, except where in the President’s opinion, including for reasons of urgency, the matter should be dealt with by another panel and the President shall allocate that matter to another panel accordingly.
Directions in respect of hearings
32
1
Subject to rule 31(3) and paragraph (2) below the panel to which a case has been allocated may at any time, on the application for directions of a party or of its own motion, give such directions as are necessary to enable the parties to prepare for the hearing or to assist the panel to which the case is allocated to determine the issues.
2
In exercising the powers conferred by this rule the panel shall take into account the need to protect any matter referred to in rule 29(4).
3
An application by a party for directions shall be made in writing to the FHSAA and, unless it is accompanied by the written consent of the other party, shall be served by the FHSAA on the other party.
4
If the other party objects to the directions sought, the panel shall, if it considers it necessary for the determination of the application, give the parties an opportunity of appearing before it.
5
Directions shall, where appropriate, include a statement of the possible consequences for the appeal or application, as provided by rule 36, of a party’s failure to comply with any requirement within the time allowed by the panel.
Further directions
33
The panel may give directions requiring any party to provide such particulars or supplementary statements as may be reasonably required for the determination of the appeal or application.
Disclosure of documents and other material
34
1
Subject to paragraph 18 of Schedule 9A to the 1977 Act the panel may require a person to deliver to the FHSAA any document or class of documents which it is in the power of that person to deliver.
2
The FHSAA shall, subject to rule 29(4), make such provision as it thinks necessary to supply copies of any document obtained under this rule to the other party to the proceedings, and it shall be a condition of such supply that a party shall use such a document only for the purposes of the appeal or application.
Summoning of witnesses
35
1
The panel may by summons require any person in England to attend as a witness at a hearing of an appeal or application at such time and place as may be specified in the summons and, at the hearing to answer any questions or produce any documents in his custody or under his control which relate to any matter in question in the appeal or application, subject to paragraph 18 of Schedule 9A to the 1977 Act.
2
No person shall be required to attend in obedience to such a summons unless —
a
he has been given at least seven days' notice of the hearing or, if less than seven days, he has informed the FHSAA that he accepts such notice as he has been given; and
b
his reasonable expenses have been tendered by the FHSAA.
Failure to comply with certain directions
36
1
Subject to paragraph (2), if any directions given to a party under this Part are not complied with by such a party without reasonable excuse, the panel may, before or at the hearing —
a
dismiss the whole or any part of the appeal or application,
b
strike out the whole or part of a respondent Health Authority's, or respondent’s reply and
c
where appropriate, direct that a respondent Health Authority shall be debarred from contesting an appeal altogether or, as the case may be, that a respondent shall be debarred from contesting an application altogether.
2
A panel shall not so dismiss or strike out or give such a direction unless it has sent notice to the party who has not complied with that direction giving an opportunity to show cause why it should not do so.
Varying or setting aside directions
37
1
Where a person to whom a direction is given under this Part had no opportunity to object to the making of such direction, he may apply to have it varied or set aside.
2
Where such an application is made it shall be considered by the panel which gave the direction and it shall not be varied or set aside without notifying the party which applied for the direction and considering any representations made by that party.
(C)
DETERMINATION OF APPEALS OR APPLICATIONS BY PANELS
Powers to determine an appeal or application without a hearing
38
1
The panel may, if the parties so agree in writing, determine an appeal or application, or any particular issue, without an oral hearing.
2
The panel may determine an appeal or application on the basis of the documents provided by the appellant under rules 6 and 7 or by the applicant under rules 16 to 18, as the case may be, without an oral hearing where —
a
no reply is received by the FHSAA within the time appointed under rule 12 or rule 23, or
b
the respondent Health Authority or the respondent states in writing that he does not resist, or withdraws his reply, to the appeal or application.
3
The provisions of paragraph (2) of rule 40 and of paragraph (6) of rule 41 shall apply in respect of the determination of an appeal or application, or any particular issue, under this rule.
Hearings to be in public and exceptions
39
1
All hearings by a panel shall be in public except where a practitioner (as defined in paragraph 21 of Schedule 9A to the 1977 Act) has asked for the hearing be in private and the panel considers that it is reasonable in all the circumstances for that hearing to be held in private.
2
The following persons shall be entitled to attend the hearing of an appeal or an application, whether or not it is in private —
a
the President or any member of the FHSAA, notwithstanding that he is not a member of the panel for the purpose of the hearing,
b
a member of the Council on Tribunals,
but such persons may not take part in the proceedings or in the making of any decision by a panel.
3
A panel, with the consent of the parties, may permit any other person to attend the hearing of an appeal or application which is held in private.
Failure of parties to attend hearing
40
1
If a party fails to attend or be represented at a hearing of which he has been duly notified, the panel may —
a
unless it is satisfied that there is reasonable excuse for such absence, hear and determine the appeal or application, as the case may be in the party’s absence; or
b
adjourn the hearing.
2
Before determining any appeal or application in the absence of a party, the panel shall consider any representations in writing submitted by that party in response to the notice of hearing and, for the purpose of this rule, the appeal or application and any reply shall be treated as representations in writing.
Procedure at hearing
41
1
At the beginning of the hearing the Chairman shall explain to the parties the order of proceedings which the panel proposes to adopt.
2
Subject to this rule, the panel shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings.
3
The parties shall be heard in such order as the panel shall determine and they shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the panel both on the evidence and generally on the subject matter of the appeal or the application, as the case may be.
4
Where the hearing is in public the panel may direct —
a
that the identity of a witness (other than a party) may, if the interests of justice require it, not be disclosed to the public; or
b
where in the panel’s opinion it is strictly necessary, that some part of the hearing be held in private.
5
Evidence before the panel may be given orally or, if the panel so directs, by written statement, but the panel may at any stage of the proceedings require the personal attendance of any maker of a written statement.
6
The panel may receive evidence of any fact which appears to it to be relevant, notwithstanding that such evidence would be inadmissible in proceedings before a court of law, but shall not refuse to admit any evidence which is admissible at law and is relevant.
7
At any hearing the panel may, if it is satisfied that it is just and reasonable to do so, permit a party to rely on grounds not stated in his notice of appeal or, as the case may be, notice of application, or his reply in either case and, in respect of an appellant, to adduce any evidence not presented to the respondent Health Authority before or at the time it took the disputed decision.
8
The panel may require any witness to give evidence on oath or affirmation and for that purpose there may be administered an oath or affirmation in due form.
Decision of panel
42
1
The decision of the panel may be given orally at the end of the hearing or reserved.
2
All decisions of a panel shall be recorded forthwith in a document which records the relevant party’s professional registration number, where applicable, and save in the case of a decision by consent, shall also contain a statement of the reasons (in summary form) for its decision, and that document shall be signed and dated by the Chairman.
3
Subject to paragraph (4), every document referred to in this rule shall be entered in the register and the FHSAA shall send a copy of the entry to each party.
4
Where any such document refers to any evidence that has been heard in private or when a witness has given evidence in circumstances of anonymity as provided for under rule 41(4), it shall be entered in the register as the panel may direct, but copies of the complete document shall be sent to the parties together with a copy of the entry.
5
Every copy of an entry sent to the parties under this rule shall be accompanied by a notification of their rights under section 11 of the Tribunals and Inquiries Act 1992 relating to appeals from decisions of the FHSAA and of the time within which and place at which such appeal shall be made.
6
Except where a decision is announced at the end of the hearing, it shall be treated as having been made on the date on which a copy of the document recording it is sent to the appellant, or the applicant Health Authority, as the case may be.
Review of a panel’s decision
43
1
Subject to the following paragraphs, if, on the application of a party or of its own motion, a panel is satisfied that —
a
its decision was wrongly made as a result of an error made by the panel;
b
a party, who was entitled to be heard at a hearing but failed to appear or be represented, had good and sufficient reason for failing to appear;
c
new evidence has become available since the conclusion of the hearing to which the decision relates the existence of which could not have been reasonably known of or foreseen; or
d
the interests of justice require,
the panel may review and, by certificate under the Chairman’s hand, set aside or vary the decision of the panel in question.
2
An application by a party for the purposes of paragraph (1) shall be made to the FHSAA not later than fourteen days after the date on which the decision was sent to the parties in accordance with rule 42 and shall be in writing, stating the grounds in full.
3
The parties shall have an opportunity to be heard on any application for review under this rule and the review shall, subject to rule 45, be determined by the panel which decided the case.
4
Where for any reason it is not practicable for the review to be carried out by the same panel, the President shall allocate the matter to another panel.
5
If, having reviewed the decision, the decision is set aside, the panel shall substitute such decision as it thinks fit or order a rehearing before it.
6
The certificate of the Chairman as to the setting aside or variation of a panel’s decision under this rule shall be sent to the President who shall ensure that such correction as may be necessary is made in the register and that a copy of the entry so corrected is sent to each of the parties.
7
Where a decision is reviewed the FHSAA shall serve a copy of that revised decision on the parties as soon as practicable thereafter.
8
Where a copy of the original decision has already been sent to any person or body referred to in rule 47, the President shall ensure that the person or body in question is notified immediately of the revised decision.
Miscellaneous powers of panel
44
1
A panel may, if it thinks fit —
a
dismiss the proceedings if the appellant or the applicant, as the case may be, shall at any time give notice of the withdrawal of the appeal or the application;
b
if both the parties agree in writing upon the terms of a decision to be made by the panel, decide accordingly (and in making any such decision, it shall not be necessary for the panel to give reasons).
2
Subject to paragraph (3), at any stage of the proceedings a panel may direct that —
a
there be struck out or amended any notice, reply, supplementary statement or written representation on the grounds that it is scandalous, frivolous or vexatious; or
b
there be struck out any appeal or any application for want of prosecution.
3
Before making any direction under paragraph (2) the panel shall give notice to the party against whom it is proposed that any such direction should be made giving him an opportunity to show cause why it should not be made.
Irregularities
45
1
Any irregularity resulting from failure to comply with any provisions of these Rules or of any directions before the panel has reached its decision shall not of itself render the proceedings void.
2
Where any such irregularity comes to the attention of the panel, the panel may, and shall if it considers that any person may have been prejudiced by the irregularity, give such directions as it thinks fit to cure or waive the irregularity before reaching its decision.
PART V
MISCELLANEOUS
Publication of certain decisions by FHSAA
46
For the purposes of paragraph 13(c) of Schedule 9A to the 1977 Act the FHSAA shall publish any decision by a panel —
a
which upholds on appeal a Health Authority’s decision under an FHS regulation not to include a person in a list, or to include that person subject to conditions, or
b
not to allow an appeal brought by virtue of section 49M(2)(a), (b) or (c) of the 1977 Act.
Copies of decisions sent to certain persons or bodies
47
1
The FHSAA may send a copy of any decision within either paragraph 13(a) or (b) of Schedule 9A to the 1977 Act, or rule 46, to any of the following persons or bodies —
a
the Secretary of State,
b
the National Assembly for Wales,
c
the Scottish Executive,
d
the Northern Ireland Executive Committee,
e
the Registrar of the appropriate professional registration body.
2
The FHSAA may send a copy of such a decision to any other person or body which, in its opinion, should be made aware of that decision.
Irvine of Lairg, C
22nd November 2001


type: legislation

jurisdiction: UK

text:
PART I
General
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001, and come into force on the day on which section 19 of the Act comes into force.
2
In these Regulations —
“the 2BCD Regulations ” means the Banking Coordination (Second Council Directive) Regulations 1992 ;
“the Act” means the Financial Services and Markets Act 2000;
“authorised agent” means, in relation to an EEA firm or UK firm, an agent or employee of the firm who has authority to bind the firm in its relations with third parties, and to represent the firm in its relations with the Authority or the host state regulator (as the case may be) and with the courts in the United Kingdom or the EEA State concerned (as the case may be);
“claims representative”, in relation to a UK firm and an EEA State, means a person who has been designated as the firm’s representative in that EEA State, and has authority —
to act on behalf of the firm and to represent, or to instruct others to represent, the firm in relation to any matters giving rise to claims made against policies issued by the firm, to the extent that they cover motor vehicles risks situated in the EEA State;
to pay sums in settlement of such claims (but not to settle such claims); and
to accept service on behalf of the firm of proceedings in respect of such claims;
“commencement” means the beginning of the day on which section 19 of the Act comes into force;
“contract of insurance”, “contract of general insurance” and “contract of long-term insurance” have the same meaning as in the Regulated Activities Order ;
“credit institution” means an EEA firm falling within paragraph 5(b) of Schedule 3;
“EEA activities” means —
in relation to an EEA firm, activities which the firm is seeking to carry on in the United Kingdom in exercise of an EEA right;
in relation to a UK firm, activities which the firm is seeking to carry on in another EEA State in exercise of an EEA right;
“financial institution” means an EEA firm falling within paragraph 5(c) of Schedule 3;
“the Friendly Societies Act ” means the Friendly Societies Act 1992 ;
“health insurance risks”, in relation to an EEA State, means risks of a kind mentioned in paragraph 2 of Schedule 1 to the Regulated Activities Order (sickness), where —
contracts of insurance covering those risks serve as a partial or complete alternative to the health cover provided by the statutory social security system in that EEA State; and
the law of that EEA State requires such contracts to be operated on a technical basis similar to life assurance in accordance with all the conditions listed in the first sub-paragraph of Article 54(2) of the third non-life insurance directive;
“the Insurance Companies Act ” means the Insurance Companies Act 1982 ;
“insurance firm” means an EEA firm falling within paragraph 5(d) of Schedule 3;
“investment firm” means an EEA firm falling within paragraph 5(a) of Schedule 3;
“the ISD Regulations ” means the Investment Services Regulations 1995 ;
“national bureau”, in relation to an EEA State, means a professional organisation —
which has been constituted in that EEA State in accordance with Recommendation No. 5 adopted on 25th January 1949 by the Road Transport Sub-committee of the Inland Transport Committee of the United Nations Economic Commission for Europe; and
which groups together undertakings which in that EEA State are authorised to conduct the business of motor vehicle liability insurance;
“national guarantee fund”, in relation to an EEA State, means a body —
which has been set up or authorised in that EEA State in accordance with Article 1(4) of Council Directive 84/5/ EEC on the approximation of laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles ; and
which provides compensation for damage to property or personal injuries caused by unidentified vehicles or vehicles for which the insurance obligation provided for in Article 1(1) of that Directive has not been satisfied;
“the Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ;
“relevant motor vehicle risks” means risks of damage arising out of or in connection with the use of motor vehicles on land, including third party risks (but excluding carrier’s liability);
“requisite details”, in relation to a branch, means —
particulars of the programme of operations carried on, or to be carried on, from the branch, including a description of the particular EEA activities to be carried on, and of the structural organisation of the branch;
the address in the EEA State in which the branch is, or is to be, established from which information about the business may be obtained; and
the names of the managers of the business;
“Schedule 3” means Schedule 3 to the Act.
PART II
Exercise of Passport Rights by EEA Firms
Contents of consent notice and regulator’s notice
Establishment of a branch: contents of consent notice
2
1
The following information is prescribed for the purposes of paragraph 13(1)(b)(iii) of Schedule 3 (and is therefore to be included in a consent notice given to the Authority by a firm’s home state regulator pursuant to paragraph 13(1)(a) of Schedule 3).
2
In the case of an investment firm, the prescribed information is —
a
a statement that the firm is an investment firm;
b
the requisite details of the branch; and
c
details of any compensation scheme which is intended to protect the branch’s investors.
3
In the case of a credit institution, the prescribed information is —
a
a statement that the firm is a credit institution;
b
the requisite details of the branch;
c
the amount of the firm’s own funds (as defined in Section 1 of Chapter 2 of Title V to the banking consolidation directive); and
d
the solvency ratio of the firm (calculated in accordance with the banking consolidation directive).
4
In the case of a financial institution, the prescribed information is —
a
a statement that —
i
the firm is a financial institution;
ii
the firm is a subsidiary undertaking of a credit institution which is authorised in the EEA State in question and which holds at least 90 per cent of the voting rights in the firm (and for the purpose of this paragraph any two or more credit institutions which are authorised in that EEA State and hold voting rights in the firm are to be treated as a single credit institution, and as being “parent undertakings” of the firm);
iii
the firm carries on in that EEA State the EEA activities in question;
iv
the memorandum and articles of association, or other constituent instrument, of the firm permit it to carry on those activities;
v
the consolidated supervision of the firm’s parent undertaking or, if more than one, any one of them effectively includes supervision of the firm;
vi
the firm’s parent undertaking has guaranteed or, if more than one, they have jointly and severally guaranteed, the firm’s obligations, with the consent of the home state regulator;
vii
the firm’s business is being conducted in a prudent manner;
b
the requisite details of the branch;
c
the amount of the firm’s own funds (as defined in Section 1 of Chapter 2 of Title V to the banking consolidation directive); and
d
the solvency ratio of the firm’s parent undertaking (calculated in accordance with the banking consolidation directive).
5
In the case of an insurance firm, the prescribed information is —
a
a scheme of operations prepared in accordance with such requirements as may be imposed by the firm’s home state regulator, setting out (amongst other things) the types of business to be carried on and the structural organisation of the branch;
b
the name of the firm’s authorised agent;
c
the address in the United Kingdom from which information about the business may be obtained, and a statement that this is the address for service on the firm’s authorised agent;
d
in the case of a firm which intends to cover relevant motor vehicle risks, a declaration by the firm that it has become a member of the Motor Insurers' Bureau (being a company limited by guarantee and incorporated under the Companies Act 1929 on the 14th June 1946); and
e
a statement by the firm’s home state regulator attesting that the firm has the minimum margin of solvency calculated in accordance with such of the following as are appropriate —
i
Articles 16 and 17 of the first non-life insurance directive, and
ii
Articles 18, 19 and 20 of the first life insurance directive.
Provision of services: contents of regulator’s notice
3
1
The following information is prescribed for the purposes of paragraph 14(1)(b) of Schedule 3 (and is therefore to be included in a regulator’s notice given to the Authority by a firm’s home state regulator pursuant to that paragraph).
2
In the case of an investment firm, the prescribed information is —
a
a statement that the firm is an investment firm; and
b
particulars of the programme of operations to be carried on in the United Kingdom, including a description of the particular EEA activities to be carried on.
3
In the case of an insurance firm, the prescribed information is —
a
a statement of the classes of business which the firm is authorised to carry on in accordance with Article 6 of the first non-life insurance directive or Article 6 of the first life insurance directive;
b
the name and address of the firm;
c
the nature of the risks or commitments which the firm proposes to cover in the United Kingdom;
d
in the case of a firm which intends to cover relevant motor vehicle risks —
i
the name and address of the claims representative; and
ii
a declaration by the firm that it has become a member of the Motor Insurers' Bureau; and
e
a statement by the firm’s home state regulator attesting that the firm has the minimum margin of solvency calculated in accordance with such of the following as are appropriate —
i
Articles 16 and 17 of the first non-life insurance directive, and
ii
Articles 18, 19 and 20 of the first life insurance directive.
Changes relating to EEA firms
Investment firms, credit institutions and financial institutions: changes to branch details
4
1
An investment firm, credit institution or financial institution which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in the requisite details of the branch, unless the relevant requirements have been complied with.
2
Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.
3
For the purposes of this regulation, the “relevant requirements” are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).
4
The requirements of this paragraph are that —
a
the firm has given a notice to the Authority and to its home state regulator stating the details of the proposed change;
b
the Authority has received from the home state regulator a notice stating those details; and
c
either the Authority has informed the firm that it may make the change, or the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed.
5
The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to its home state regulator, stating the details of the change.
6
The Authority must, as soon as practicable after receiving a notice from an investment firm, credit institution or financial institution under this regulation, inform the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).
Investment firms: changes to services
5
1
An investment firm which is providing services in the United Kingdom in exercise of an EEA right must not make a change in any of the matters referred to in regulation 3(2)(b), unless the relevant requirements have been complied with.
2
Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.
3
For the purposes of this regulation, the “relevant requirements” are that —
a
the firm has given a notice to the Authority and to its home state regulator stating the details of the proposed change; or
b
if the change is occasioned by circumstances beyond the firm’s control, it has as soon as practicable (whether before or after the change) given to the Authority and to its home state regulator a notice stating the details of the change.
4
The Authority must, as soon as practicable after receiving a notice from an investment firm under this regulation, inform the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 14 of Schedule 3).
Insurance firms: changes to branch details
6
1
An insurance firm which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in any of the details referred to in regulation 2(5)(a) to (c) with respect to the branch, unless the relevant requirements have been complied with.
2
Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.
3
For the purposes of this regulation, the relevant requirements are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).
4
The requirements of this paragraph are that —
a
the firm has given a notice to the Authority and to its home state regulator stating the details of the proposed change;
b
the Authority has received from the home state regulator a notice stating that it has approved the proposed change;
c
the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed; and
d
either —
i
a further period of one month has elapsed; or
ii
the Authority has informed the home state regulator of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).
5
The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to its home state regulator, stating the details of the change.
6
The Authority must, as soon as practicable —
a
acknowledge receipt of the documents sent under paragraph (4) or (5); and
b
in the case of a notice under paragraph (5), inform the firm’s home state regulator of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).
Insurance firms: changes to services
7
1
An insurance firm which is providing services in the United Kingdom in exercise of an EEA right must not make a change in any of the matters referred to in regulation 3(3)(b), (c) or (d), unless the relevant requirements have been complied with.
2
Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.
3
For the purposes of this regulation, the “relevant requirements” are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).
4
The requirements of this paragraph are that —
a
the firm has given a notice to its home state regulator stating the details of the proposed change; and
b
the home state regulator has passed to the Authority the information contained in that notice.
5
The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given to its home state regulator a notice stating the details of the change.
Cancellation of qualification for authorisation
EEA firms ceasing to carry on regulated activities in the United Kingdom
8
Where an EEA firm which is qualified for authorisation under Schedule 3 —
a
has ceased, or is to cease to carry on regulated activities in the United Kingdom, and
b
gives notice of that fact to the Authority,
the notice is to be treated as a request for cancellation of the firm’s qualification for authorisation under Schedule 3 (and hence as a request under section 34(2) of the Act).
Financial institutions giving up right to authorisation
9
1
The Authority may, on an application by a financial institution which is qualified for authorisation under Schedule 3, direct that the firm’s qualification for authorisation under Schedule 3 is cancelled from such date as may be specified in the direction.
2
The Authority must not give such a direction unless —
a
the firm has given notice to its home state regulator; and
b
the Authority has agreed with the home state regulator that the direction should be given.
3
The date specified in such a direction —
a
must not be earlier than the date requested in the application; but
b
subject to that, is to be such date as may be agreed between the Authority and the firm’s home state regulator.
4
The Authority must, as soon as practicable, send a copy of the direction to the firm and to the firm’s home state regulator.
5
A firm in respect of which such a direction has been given may (notwithstanding subsection (3) of section 40 of the Act) apply for permission under that section, to take effect not earlier than the date referred to in paragraph (1).
Applications for approval under section 60 by EEA firms
Applications for approval under section 60 by EEA firms
10
In section 60 of the Act (applications for approval for persons to perform controlled functions), “the authorised person concerned” includes an EEA firm with respect to which the Authority has received a consent notice under paragraph 13 of Schedule 3 or a regulator’s notice under paragraph 14 of that Schedule, and which will be the authorised person concerned if it qualifies for authorisation under that Schedule.
PART III
Exercise of Passport Rights by UK Firms
Changes relating to UK firms
UK investment firms, credit institutions and financial institutions: changes to branch details
11
1
A UK firm which has exercised an EEA right, deriving from the investment services directive or the banking consolidation directive, to establish a branch must not make a change in the requisite details of the branch unless the requirements of paragraph (2) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (3) have been complied with.
2
The requirements of this paragraph are that —
a
the firm has given a notice to the Authority and to the host state regulator stating the details of the proposed change;
b
the Authority has given the host state regulator a notice under paragraph (5)(a); and
c
either the host state regulator has informed the firm that it may make the change, or the period of one month beginning with the day on which the firm gave the host state regulator the notice mentioned in sub-paragraph (a) has elapsed.
3
The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.
4
the Authority must, within the period of one month beginning with the day on which it received the notice referred to in paragraph (2)(a), either consent to the change or refuse to consent to the change.
5
If the Authority consents to the change, it must —
a
give a notice to the host state regulator informing it of the details of the proposed change; and
b
inform the firm that if has given that notice, stating the date on which it did so.
6
If the Authority refuses to consent to the change —
a
the firm may refer the matter to the Tribunal; and
b
the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm’s right to refer the matter to the Tribunal, and the procedure on such a reference.
7
The Authority may not refuse to consent to the change unless, having regard to the change and to the EEA activities which the firm is seeking to carry on, it doubts the adequacy of the administrative structure or the financial situation of the firm; and in reaching a determination as to the adequacy of the administrative structure, the Authority may have regard to the adequacy of management, systems and controls and the presence of relevant skills needed for the EEA activities to be carried on.
UK investment firms: changes to services
12
1
A UK firm which is providing services in exercise of an EEA right, deriving from the investment services directive, must not make a change in the programme of operations, or the EEA activities, to be carried on in exercise of that right, unless the relevant requirements have been complied with.
2
For the purposes of this regulation, the “relevant requirements” are that —
a
the firm has given a notice to the Authority and to the host state regulator stating the details of the proposed change; or
b
if the change is occasioned by circumstances beyond the firm’s control, it has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.
UK insurance firms: changes to relevant EEA details of branches
13
1
A UK firm which has exercised an EEA right, deriving from any of the insurance directives, to establish a branch must not make a change in the relevant EEA details (as defined in regulation 14), unless the requirements of paragraph (2) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (3) have been complied with.
2
The requirements of this paragraph are that —
a
the firm has given a notice to the Authority and to the host state regulator stating the details of the proposed change;
b
the Authority has given the host state regulator a notice under paragraph (5)(a);
c
the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed; and
d
either —
i
a further period of one month has elapsed; or
ii
the Authority has informed the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 19 of Schedule 3) of which the Authority has been notified by the host state regulator.
3
The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.
4
The Authority must, within one month of receiving the notice referred to in paragraph (2)(a), either consent to the change or refuse to consent to the change.
5
If the Authority consents to the change, it must —
a
give a notice to the host state regulator informing it of the details of the proposed change; and
b
inform the firm that it has given that notice, stating the date on which it did so.
6
If the Authority refuses to consent to the change —
a
the firm may refer the mater to the Tribunal; and
b
the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm’s right to refer the matter to the Tribunal, and the procedure on such a reference.
7
The Authority may not refuse to consent to the change unless, having regard to the change, the Authority has reason —
a
to doubt the adequacy of the firm’s administrative structure or financial situation, or
b
to question the reputation, qualifications or experience of the directors or managers of the firm or the authorised agent,
in relation to the business conducted, or to be conducted, through the branch.
Relevant EEA details for the purposes of regulation 13
14
1
For the purposes of regulation 13, the relevant EEA details, with respect to a branch, are —
a
the address of the branch;
b
the name of the UK firm’s authorised agent and, in the case of a member of Lloyd's, confirmation that the authorised agent has power to accept service of proceedings on behalf of Lloyd's;
c
the classes or parts of classes of business carried on, or to be carried on, and the nature of the risks or commitments covered, or to be covered, in the EEA State concerned;
d
details of the structural organisation of the branch;
e
the guiding principles as to reinsurance of business carried on, or to be carried on, in the EEA State concerned, including the firm’s maximum retention per risk or event after all reinsurance ceded;
f
estimates of —
i
the costs of installing administrative services and the organisation for securing business in the EEA State concerned;
ii
the resources available to cover those costs; and
iii
if contracts of a kind falling within paragraph 18 of Schedule 1 to the Regulated Activities Order (assistance) are, or are to be, effected or carried out, the resources available for providing assistance;
g
for each of the first three years following the establishment of the branch —
i
estimates of the firm’s margin of solvency and the margin of solvency required, and the method of calculation;
ii
if the firm carries on, or intends to carry on, business comprising the effecting or carrying out of contracts of long-term insurance, the details mentioned in paragraph (2) as respects the business carried on, or to be carried on, in the EEA State concerned; and
iii
if the firm carries on, or intends to carry on, business comprising the effecting or carrying out of contracts of general insurance, the details mentioned in paragraph (3) as respects the business carried on, or to be carried on, in the EEA State concerned;
h
if the insurer covers, or intends to cover, relevant motor vehicle risks, details of the firm’s membership of the national bureau and the national guarantee fund in the EEA State concerned; and
i
if the firm covers, or intends to cover, health insurance risks, the technical bases used, or to be used, for calculating premiums in respect of such risks.
2
The details referred to in paragraph (l)(g)(ii) are —
a
the following information, on both optimistic and pessimistic bases, for each type of contract or treaty —
i
the number of contracts or treaties expected to be issued;
ii
the total premium income, both gross and net of reinsurance ceded; and
iii
the total sums assured or the total amounts payable each year by way of annuity;
b
detailed estimates, on both optimistic and pessimistic bases, of income and expenditure in respect of direct business, reinsurance acceptances and reinsurance cessions; and
c
estimates relating to the financial resources intended to cover underwriting liabilities.
3
The details referred to in paragraph (1)(g)(iii) are —
a
estimates relating to expenses of management (other than costs of installation), and in particular those relating to current expenses and commissions;
b
estimates relating to premiums or contributions (both gross and net of all reinsurance ceded) and to claims (after all reinsurance recoveries); and
c
estimates relating to the financial resources to cover underwriting liabilities.
UK insurance firms: changes to relevant UK details of branches
15
1
A UK firm which has exercised an EEA right, deriving from any of the insurance directives, to establish a branch must not make a change falling within paragraph (2) with respect to the branch, unless —
a
the firm has given a notice to the Authority stating the details of the proposed change at least one month before the change is effected; or
b
if the change is occasioned by circumstances beyond the firm’s control, the firm has as soon as practicable (whether before or after the change) given a notice to the Authority stating the details of the change.
2
A change falls within this paragraph if it is a change in any of the information which the UK firm was required to provide to the Authority by or under paragraph 19(2) of Schedule 3, other than a change in the relevant EEA details referred to in regulation 13.
UK insurance firms: changes to services
16
1
A UK firm which is providing services in exercise of an EEA right, deriving from any of the insurance directives, must not make a change in the relevant details (as defined in regulation 17), unless the relevant requirements have been complied with.
2
For the purposes of this regulation, the “relevant requirements” are those of paragraph (3) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (4).
3
The requirements of this paragraph are that —
a
the firm has given a notice to the Authority stating the details of the proposed change; and
b
the Authority has given the host state regulator a notice under paragraph (6)(a).
4
The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority stating the details of the change.
5
The Authority must, within one month of receiving a notice under paragraph (3)(a), either consent to the change or refuse to consent to the change.
6
If the Authority consents to the change, it must —
a
give a notice to the host state regulator informing it of the details of the proposed change; and
b
inform the firm that it has given that notice, stating the date on which it did so.
7
If the Authority refuses to consent to the change —
a
the firm may refer the matter to the Tribunal; and
b
the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm’s right to refer the matter to the Tribunal, and the procedure on such a reference.
Relevant details for the purposes of regulation 16
17
The relevant details for the purposes of regulation 16 are —
a
the EEA State in which the EEA activities are carried on, or are to be carried on;
b
the nature of the risks or commitments covered, or to be covered, in the EEA State concerned;
c
if the firm covers, or intends to cover, relevant motor vehicle risks —
i
the name and address of the claims representative; and
ii
details of the firm’s membership of the national bureau and the national guarantee fund in the EEA State concerned; and
d
if the insurer covers, or intends to cover, health insurance risks, the technical bases used, or to be used, for calculating premiums in respect of such risks.
Offences relating to failure to notify changes
18
1
If a UK firm which is not an authorised person contravenes the prohibition imposed by regulation 11(1), 12(1), 13(1), 15(1), or 16(1) it is guilty of an offence, punishable —
a
on summary conviction, by a fine not exceeding the statutory maximum; or
b
on conviction on indictment, by a fine.
2
In proceedings for an offence under paragraph (1), it is a defence for the firm to show that it took all reasonable precautions and exercised all due diligence to avoid committing the offence.
UK firms: scope of outward passport
UK firms: scope of outward passport
19
Where —
a
the activities identified in a notice of intention under paragraph 19 or 20 of Schedule 3 include (in accordance with paragraph 19(3) or 20(2) of that Schedule) any activity which is not a regulated activity, and
b
that activity is one which the UK firm in question is able to carry on in the EEA State in question without contravening any provision of the law of the United Kingdom (or any part of the United Kingdom),
the UK firm is to be treated, for the purposes of the exercise of its EEA right, as being authorised to carry on that activity.
PART IV
Transitional Provisions
Changes relating to EEA firms: procedures partly completed at commencement
20
1
If before commencement —
a
an EEA firm which was a European institution within the meaning of the 2BCD Regulations gave a notice under paragraph 4(1)(a) of Schedule 2 to those Regulations (changes to details of branch), and
b
not all the other requirements set out in paragraph 4(1) of that Schedule were satisfied,
the notice is to be treated as given under regulation 4(4)(a), and the other requirements set out in regulation 4(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 4(1) of that Schedule had been satisfied.
2
If before commencement —
a
an EEA firm which was a European investment firm within the meaning of the ISD Regulations gave a notice under paragraph 5(1)(a) of Schedule 3 to those Regulations (changes to details of branch), and
b
not all the other requirements set out in paragraph 5(1) of that Schedule were satisfied,
the notice is to be treated as given under regulation 4(4)(a), and the other requirements set out in regulation 4(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 5(1) of that Schedule had been satisfied.
3
In a case falling within paragraph (1) or (2), regulation 4(6) applies unless the Authority had, before commencement, complied with the duty in regulation 8(3) of the 2BCD Regulations or regulation 8(4) of the ISD Regulations.
4
If before commencement —
a
an EEA firm which was an EC company within the meaning of the Insurance Companies Act gave a notice under paragraph 2(2)(a) of Schedule 2F to that Act (changes to details of branch), and
b
not all the other requirements set out in paragraph 2(2) of that Schedule were satisfied,
the notice is to be treated as given under regulation 6(4)(a), and the other requirements set out in regulation 6(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 2(2) of that Schedule had been satisfied.
5
In a case falling within paragraph (4), regulation 6(6) applies except to the extent that the duty in paragraph 2(4) of Schedule 2F to the Insurance Companies Act had been complied with before commencement.
6
If before commencement —
a
an EEA firm which was an EC company within the meaning of the Insurance Companies Act gave a notice under paragraph 9(2)(a) of Schedule 2F to that Act (changes relating to the provision of services), and
b
the requirement in paragraph 9(2)(b) of that Schedule was not satisfied,
the notice is to be treated as given under regulation 7(4)(a).
Changes relating to UK firms: procedures partly completed at commencement
21
1
If before commencement a UK firm gave notice under paragraph 5(1)(a) of Schedule 6 to the 2BCD Regulations or paragraph 6(1)(a) of Schedule 6 to the ISD Regulations (changes to details of branch) —
a
the notice is to be treated as given under regulation 11(2)(a), and
b
any notice given under paragraph 5(1)(b) of Schedule 6 to the 2BCD Regulations or paragraph 6(1)(b) of Schedule 6 to the ISD Regulations is to be treated as given under regulation 11(2)(b),
unless paragraph (2) applies.
2
This paragraph applies if, before commencement, either —
a
all the requirements set out in paragraph 5(1) of Schedule 6 to the 2BCD Regulations or paragraph 6(1) of Schedule 6 to the ISD Regulations had been satisfied, or
b
in response to the notice a notice of refusal was given to the firm under paragraph 6(5)(b) of Schedule 6 to the 2BCD Regulations or paragraph 7(5)(b) of Schedule 6 to the ISD Regulations, and the refusal was not at commencement capable of being reversed on an appeal, reference to a tribunal or a review as mentioned in paragraph 7(5) of Schedule 6 to the ISD Regulations.
3
If before commencement a UK firm gave notice under paragraph 2(2)(a) of Schedule 2G to the Insurance Companies Act or Schedule 13B to the Friendly Societies Act (changes to details of branch) —
a
the notice is to be treated as given to the Authority under regulation 13(2)(a), and
b
the other requirements set out in regulation 13(2) are to be treated as satisfied to the extent to which the corresponding requirements in paragraph 2(2) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act had been satisfied,
unless paragraph (4) applies.
4
This paragraph applies if, before commencement, either —
a
all the requirements set out in paragraph 2(2) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act had been satisfied, or
b
in response to the notice a notice of refusal was given to the firm under paragraph 2(5)(b) of that Schedule.
5
If before commencement a UK firm gave notice under paragraph 6(2)(a) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act (changes relating to the provision of services) —
a
the notice is to be treated as given to the Authority under regulation 16(3)(a) and
b
if a notice was sent under paragraph 6(2)(b) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act, that notice is to be treated as given under regulation 16(3)(b),
unless, before commencement, the firm had been notified under paragraph 6(5)(a) or (b) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act of the decision taken in response to the notice.
Nick Ainger
Tony McNulty
Two of the Lords Commissioners of Her Majesty’s Treasury
12th July 2001


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Mendip Primary Care Trust (Establishment) Order 2001 and shall come into force on 26th February 2001.
2
In this Order, unless the context otherwise requires —
“the Act” means the National Health Service Act 1977;
“Executive Committee” has the meaning given in regulation 1(2) of the Membership Regulations ;
“member”, “officer member” and “non-officer member” have the meanings given in regulation 1(2) of the Membership Regulations;
“Membership Regulations” means the Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 ;
“operational date” is to be construed in accordance with paragraph 1(2) of Schedule 5A to the Act;
“preparatory period” is to be construed in accordance with paragraph 2(2) of Schedule 5A to the Act;
“the trust” means the Mendip Primary Care Trust established by article 2 of this Order.
Establishment and name of the Primary Care Trust
2
There is hereby established a Primary Care Trust which is to be called the Mendip Primary Care Trust.
Area of the trust
3
The trust shall be established for the area specified in the Schedule to this Order.
Members of the trust
4
1
The trust shall have, in addition to the chairman, 5 officer members and 5 non-officer members.
2
The non-officer members shall comprise the persons appointed by the Secretary of State under regulation 2(3) of the Membership Regulations.
3
The officer members shall comprise —
a
the persons who for the time being hold the offices of Chief Executive and Director of Finance of the trust;
b
the person who for the time being holds the post of chairman of the Executive Committee of the trust;
c
2 persons appointed by the chairman of the trust following nomination by the Executive Committee of the trust.
Operational date of the trust
5
The trust’s operational date shall be 1st April 2001.
Limitations on the exercise of functions by the trust during the preparatory period
6
During the preparatory period the exercise of functions by the trust shall be limited to the following —
a
entering into NHS contracts;
b
entering into other contracts including contracts of employment; and
c
doing such other things as are reasonably necessary to enable it to begin to operate satisfactorily with effect from the operational date.
Assistance during the preparatory period
7
1
The Somerset Health Authority shall meet the costs of the trust performing its functions during the preparatory period by discharging such of the liabilities of the trust incurred during that period as are of a description specified in paragraph (2) and do not in aggregate exceed such amount as may be notified by the Authority to the trust.
2
The liabilities referred to in the preceding paragraph are —
a
liability for the remuneration and travelling or other allowances of the chairman and members of the trust;
b
liability for the travelling or other allowances of the members of committees and sub-committees of the trust who are not also members of the trust;
c
liability for the remuneration of officers of the trust; and
d
any other liability which may reasonably be incurred by the trust for the purpose of enabling it to begin to operate satisfactorily with effect from its operational date.
3
The Somerset Health Authority shall make available to the trust during the preparatory period —
a
premises and other facilities of the Authority; and
b
officers of the Authority.
4
The Bath and West Community National Health Service Trust, the East Somerset National Health Service Trust, the Royal United Hospital, Bath, National Health Service Trust, the Taunton and Somerset National Health Service Trust and the Wiltshire and Swindon Health Care National Health Service Trust shall make available to the trust during the preparatory period —
a
premises and other facilities of those NHS trusts; and
b
staff of those NHS trusts.
Signed by authority of the Secretary of State
Gisela Stuart
Parliamentary Under Secretary of State,
Department of Health
14th February 2001


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Bracknell Forest Primary Care Trust (Establishment) Order 2001 and shall come into force on 1st October 2001.
2
In this Order, unless the context otherwise requires —
“the Act” means the National Health Service Act 1977;
“Executive Committee” has the meaning given in regulation 1(2) of the Membership Regulations ;
“member”, “officer member” and “non-officer member” have the meanings given in regulation 1(2) of the Membership Regulations;
“Membership Regulations” means the Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 ;
“operational date” is to be construed in accordance with paragraph 1(2) of Schedule 5A to the Act;
“preparatory period” is to be construed in accordance with paragraph 2(2) of Schedule 5A to the Act;
“the trust” means the Bracknell Forest Primary Care Trust established by article 2 of this Order.
Establishment, operational date and name of the Primary Care Trust
2
1
There is hereby established with effect from 1st October 2001 a Primary Care Trust to be called the Bracknell Forest Primary Care Trust.
2
The operational date of the trust shall be 1st April 2002.
Area of the trust
3
The trust shall be established for the area specified in the Schedule to this Order.
Members of the trust
4
1
The trust shall have, in addition to the chairman, 4 officer members and 4 non-officer members.
2
The non-officer members shall comprise the persons appointed by the Secretary of State under regulation 2(3) of the Membership Regulations.
3
The officer members shall comprise —
a
the persons who for the time being hold the offices of the Chief Executive and the Director of Finance of the trust;
b
the person who for the time being holds the post of chairman of the Executive Committee of the trust;
c
1 person appointed by the chairman of the trust following nomination by the Executive Committee of the trust.
Limitations on the exercise of functions by the trust during the preparatory period
5
During the preparatory period the exercise of functions by the trust shall be limited to the following —
a
entering into NHS contracts;
b
entering into other contracts including contracts of employment; and
c
doing such other things as are reasonably necessary to enable it to begin to operate satisfactorily with effect from the operational date.
Assistance during the preparatory period
6
1
The Berkshire Health Authority shall meet the costs of the trust performing its functions during the preparatory period by discharging such of the liabilities of the trust incurred during that period as are of a description specified in paragraph (2) and do not in aggregate exceed such amount as may be notified by the Authority to the trust.
2
The liabilities referred to in the preceding paragraph are —
a
liability for the remuneration and travelling or other allowances of the chairman and members of the trust;
b
liability for the travelling or other allowances of the members of committees and sub-committees of the trust who are not also members of the trust;
c
liability for the remuneration of officers of the trust; and
d
any other liability which may reasonably be incurred by the trust for the purpose of enabling it to begin to operate satisfactorily with effect from its operational date.
3
The Berkshire Health Authority shall make available to the trust during the preparatory period —
a
premises and other facilities of the Authority; and
b
officers of the Authority.
4
The East Berkshire Community Health National Health Service Trust shall make available to the trust during the preparatory period —
a
premises and other facilities of the NHS trust; and
b
staff of the NHS trust.
Signed by authority of the Secretary of State
Hazel Blears
Parliamentary Under Secretary of State,
Department of Health
21st September 2001


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Tonbridge and Malling (Electoral Changes) Order 2001.
2
This Order shall come into force —
a
for the purpose of proceedings preliminary or relating to any election to be held on 1st May 2003, on 15th October 2002;
b
for all other purposes, on 1st May 2003.
3
In this Order —
“borough” means the borough of Tonbridge and Malling;
“existing”, in relation to a ward, means the ward as it exists on the date this Order is made; and
any reference to the map is a reference to the map prepared by the Department for Transport, Local Government and the Regions marked “Map of the Borough of Tonbridge and Malling (Electoral Changes) Order 2001”, and deposited in accordance with regulation 27 of the Local Government Changes for England Regulations 1994 .
Wards of the borough of Tonbridge and Malling
2
1
The existing wards of the borough shall be abolished.
2
The borough shall be divided into twenty-six wards which shall bear the names set out in column (1) of Schedule 1.
3
The wards shall comprise the areas described in column (2) of that Schedule by reference to parishes and parish wards or, where an area is not so described, the area designated on the map by reference to the name of the ward and demarcated by red lines; and the number of councillors to be elected for each ward shall be the number specified in respect of the ward in column (3) of that Schedule.
4
Where a boundary is shown on the map as running along a road, railway line, footway, watercourse or similar geographical feature, it shall be treated as running along the centre line of the feature.
Elections of the council of Tonbridge and Malling
3
1
The ordinary elections of all councillors of the borough of Tonbridge and Malling shall be held simultaneously on the ordinary day of election of non-metropolitan district councillors in 2003 and every fourth year after 2003.
2
The term of office of councillors shall be four years; and all councillors shall retire on the fourth day after the ordinary day of election of councillors in the year of retirement and the newly-elected councillors shall come into office on the day on which their predecessors retire.
Wards of the parish of Hadlow
4
1
The existing wards of the parish of Hadlow shall be abolished.
2
The parish shall be divided into two parish wards which shall bear the names set out in column (1) of Schedule 2; each parish ward shall comprise the area of the borough ward specified in respect of the parish ward in column (2) of that Schedule, and the number of councillors to be elected for each parish ward shall be the number specified in respect of the parish ward in column (3) of that Schedule.
Wards of the parish of Mereworth
5
The parish of Mereworth shall be divided into two parish wards which shall bear the names set out in column (1) of Schedule 3; each parish ward shall comprise the area of the borough ward specified in respect of the parish ward in column (2) of that Schedule, and the number of councillors to be elected for each parish ward shall be the number specified in respect of the parish ward in column (3) of that Schedule.
Wards of the parish of Snodland
6
The parish of Snodland shall be divided into two parish wards which shall bear the names Snodland East and Snodland West; and each parish ward shall comprise the area of the borough ward bearing the same name, and the number of councillors to be elected for Snodland East parish ward shall be seven, and for the Snodland West parish ward shall be eight.
Numbers of parish councillors for Aylesford
7
The number of parish councillors to be elected for the Aylesford South parish ward shall be seven, for the Walderslade parish ward shall be five, for each of the Blue Bell Hill and Eccles parish wards shall be three, and for the Aylesford North parish ward shall be two.
Revocation
8
The Borough of Tonbridge and Malling (Electoral Arrangements) Order 1989 and the District of Tonbridge and Malling (Electoral Arrangements) Order 1976 are hereby revoked.
Signed by authority of the Secretary of Statefor Transport, Local Government and the Regions
Alan Whitehead
Parliamentary Under Secretary of State,
Department for Transport, Local Government and the Regions
1st November 2001


text:
Citation, commencement and extent
1
These Regulations may be cited as the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 and shall come into force on 1st March 2001.
2
Other than regulations 1 and 5 and this regulation, which extend also to Northern Ireland, these Regulations extend to England and Wales only.
Amendments to the Domicile and Matrimonial Proceedings Act 1973
3
1
Section 5 of the Domicile and Matrimonial Proceedings Act 1973 is amended as follows.
2
In subsection (1) omit the words from “; and in this Part” to the words “Family Proceedings Act 1984”.
3
After subsection (1) insert the following subsection —
1A
In this Part of this Act —
“the Council Regulation” means Council Regulation ( EC ) No. 1347/2000 of 29th May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses ;
“Contracting State” means —
one of the original parties to the Council Regulation, that is to say Belgium, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden and the United Kingdom, and
a party which has subsequently adopted the Council Regulation; and
“the court” means the High Court and a divorce county court within the meaning of Part V of the Matrimonial and Family Proceedings Act 1984 .
.
4
For subsection (2) substitute —
2
The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) —
a
the court has jurisdiction under the Council Regulation; or
b
no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.
.
5
For subsection (3) substitute —
3
The court shall have jurisdiction to entertain proceedings for nullity of marriage if (and only if) —
a
the court has jurisdiction under the Council Regulation; or
b
no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage —
i
is domiciled in England and Wales on the date when the proceedings are begun; or
ii
died before that date and either was at death domiciled in England and Wales or had been habitually resident in England and Wales throughout the period of one year ending with the date of death.
.
6
After subsection (3) insert —
3A
Subsections (2) and (3) above do not give the court jurisdiction to entertain proceedings in contravention of Article 7 of the Council Regulation.
.
4
In paragraph 9(1) of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973, after “in any matrimonial proceedings” insert —
“, other than proceedings governed by the Council Regulation,”.
Amendment to the Child Abduction and Custody Act 1985
5
In section 12 of the Child Abduction and Custody Act 1985 , after subsection (2) insert —
3
But those provisions of the Convention are subject to Article 37 of Council Regulation (EC) No. 1347/2000 of 29th May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (under which the Regulation takes precedence over the Convention), and the provisions of this Part of this Act, and any rules of court made pursuant to section 24 of this Act, shall be construed accordingly.
.
Amendments to the Family Law Act 1986
6
In section 2(1) of the Family Law Act 1986 , after the word “unless” insert —
—
a
the child concerned is a child of both parties to the matrimonial proceedings and the court has jurisdiction to entertain those proceedings by virtue of the Council Regulation, or
b
.
7
In section 5(2) of the Family Law Act 1986, after “for the variation of a Part I order,” insert “other than proceedings governed by the Council Regulation,”.
8
At the end of section 42(1) of the Family Law Act 1986, insert —
“the Council Regulation” means Council Regulation (EC) No. 1347/2000 of 29th May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.
.
9
In section 45 of the Family Law Act 1986 —
a
for “Subject”, substitute “(1) Subject to subsection (2) of this section and”; and
b
at the end, insert —
2
Subsection (1) and the following provisions of this Part do not apply to an overseas divorce, annulment or legal separation as regards which provision as to recognition is made by Articles 14 to 20 of the Council Regulation.
.
10
In section 54(1) of the Family Law Act 1986, after the definition of “annulment” insert —
“the Council Regulation” means Council Regulation (EC) No. 1347/2000 of 29th May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses;
.
Application
11
The amendments to the Domicile and Matrimonial Proceedings Act 1973 made by regulations 3 and 4 shall not apply in respect of proceedings commenced before 1st March 2001.
Irvine of Lairg, C.
Dated 2nd February 2001