FCA Handbook - REC 4.8 The section 298 procedure

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REC 4.8 The section 298 procedure

A decision to:

(1)
revoke a recognition order under section 297 of the Act (Revoking recognition) or (for RAPs) regulation 4 of the RAP regulations; or
(2)
make a direction under section 296 (FCA's powers to give directions) or (for RAPs) regulation 3 of the RAP regulations; or
(3)
refuse to make a recognition order under section 290 (Recognition orders) or 290A (Refusal of recognition on ground of excessive regulatory provision) or (for RAPs) regulation 2 of the RAP regulations;

is a serious one and section 298 of the Act (Directions and revocation: procedure) sets out procedures (see REC 4.8.9 G) which the FCA will follow unless:

in the case of a revocation of a recognition order, the recognised body concerned has given its consent (see section 297(1) or regulation 4(1) of the RAP regulations) or:
1. (a) in the case where the FCA proposes to make a direction under section 296, it considers it is reasonably necessary not to follow, or to cut short, the procedure (see REC 4.8.7G); or
2. (b) (for RAPs) in a case where the FCA proposes to make a direction under regulation 3 of the RAP regulations, it considers it is essential not to follow, or to cut, short, the procedure.

The FCA's internal arrangements provide for any of these decisions to be taken at an appropriately senior level.

In considering whether it would be appropriate to exercise the powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations, the FCA will have regard to all relevant information and factors including:

(1)
its guidance to recognised bodies;
(2)
the results of its routine supervision of the body concerned;
(3)
the extent to which the failure or likely failure to satisfy one or more of the recognised body requirements may affect the statutory objectives.

In considering whether or not to make a recognition order, the FCA will have regard to all relevant information and factors, including its guidance to recognised bodies and applicants and the information provided by applicants. Details of the application processes and other guidance for applicants are set out in REC 5 and (for overseas applications) REC 6.

The procedures laid down in section 298 of the Act and (for RAPs) regulation 5 of the RAP regulations are summarised, with the FCA's guidance about the actions it proposes to take in following these procedures, in the tables at REC 4.8.9 G and REC 4.8.10G.

Before exercising its powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations, the FCA will usually discuss its intention, and the basis for this, with the members of the management body or other appropriate representatives of the recognised body. It will usually discuss its intention not to make a recognition order with appropriate representatives of the applicant.

Key steps in the section 298 procedure

	The FCA will:	Guidance
(1)	give written notice to theRIE (or applicant);	The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the period within which representations should be made (unless subsequently extended by the FCA).


(2)	receive representations from the RIE or applicant concerned;	The FCA will not usually consider oral representations without first receiving written representations from theRIE (or applicant). It will normally only hear oral representations from the RIE on request.
(3)	write promptly to RIE (or applicant) who requests the opportunity to make oral representations if it decides not to hear that person's representations;	The FCA will indicate why it will not hear oral representations and the FCA will allow the RIE (or applicant) further time to respond.
(4)	have regard to representations made;
(5)	(when it has reached its decision) notify the RIE (or applicant) concerned in writing.

For RAPs, key steps in the regulation 5 procedure

	The FCA will:	Guidance
(1)	give written notice to the RAP (or applicant);	The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made.
(2)	take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the RAP or of the applicant, as the case may be;	The FCA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class.
(3)	publish the notice so as to bring it to the attention of other persons likely to be affected;
(4)	receive representations from the RAP or applicant concerned, any member of the RAP or applicant, and any other person who is likely to be affected by the action the FCA proposes to take;	The FCA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the RAP (or applicant) itself or of a person whom it has notified individually, on request.
(5)	write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations;	The FCA will indicate why it will not hear oral representations and the FCA will allow the person concerned further time to respond.
(6)	have regard to representations made;
(7)	(when it has reached its decision) notify the RAP (or applicant) concerned in writing;
(8)	(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the RAP or applicant and to other persons likely to be affected.	The FCA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act.