Financial Services and Markets Act 2000, section 167

Appointment of persons to carry out general investigations

Part XI Information Gathering and Investigations

(1)If it appears to [F1281an investigating authorityF1281] that there is good reason for doing so, the investigating authority may appoint one or more competent persons to conduct an investigation on its behalf into—

(a)the nature, conduct or state of the business of [F1282a person to whom subsection (1A) applies orF1282] an appointed representative;

(b)a particular aspect of that business; or

(c)the ownership or control of [F1283a person to whom subsection (1A) appliesF1283] .

[F1284 (1A)This subsection applies to the following persons—

(a)a recognised investment exchange;

(b)an authorised person;

(c)a relevant parent undertaking of an FCA investment firm;

(d)a person who provides a service to an FCA investment firm or to a relevant parent undertaking of such a firm.

[F1285 (e)a person on whom a relevant Part 5A requirement is imposed.F1285,F1284]]

(2)If a person appointed under subsection (1) thinks it necessary for the purposes of his investigation, he may also investigate the business of a person who is or has at any relevant time been—

(a) F1286 a member of the group of which the person under investigation (“A”) is part; ...

(b)a partnership of which A is a member [F1287; orF1287]

[F1288 (c)where A is an insurance undertaking [F1289 or reinsurance undertakingF1289] , a person who provides services to A.F1288]

(3)If a person appointed under subsection (1) decides to investigate the business of any person under subsection (2) he must give that person written notice of his decision.

F1290 (3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1291 (4A)The power conferred by this section may be exercised in relation to a person who has at any time been an authorised person or a person described in subsection (1A)(c) [F1292 , (d) or (e)F1292] but only in relation to—

(a)business carried on at any time when the person was an authorised person or a person described in subsection (1A)(c) [F1292 , (d) or (e)F1292] , or

(b)the ownership or control of the person at such a time.

(4B)The power conferred by this section may be exercised in relation to a person who has at any time been an appointed representative but only in relation to business carried on at any time when the person was an appointed representative.F1291]

(5) “Business” includes any part of a business even if it does not consist of carrying on regulated activities.

[F1293 (5A) “Investigating authority” means—

(a)in relation to a recognised investment exchange, the Secretary of State or the FCA;

(b)in relation to an authorised person or former authorised person, the FCA or the PRA;

(c)in relation to an appointed representative or former appointed representative, the FCA or the PRA.

[F1294 (d)in relation to a person who is, or has at any time been, a person described in subsection (1A)(c) [F1295 , (d) or (e)F1295] who is not an authorised person, the FCA.F1294,F1293]]

[F1296 (6)References in subsection (1) to a recognised investment exchange do not include references to an overseas investment exchange (as defined by section 313(1)).F1296]

Read section 167 in the full Act → Definitions (14) Cases (5)

Definitions used in section 167

appointed representative

“appointed representative” has the meaning given in section 39(2 );

Defined in s.417(1) · see it in the full Act

(2) In this Act “appointed representative” means—

(a)a person who is exempt as a result of subsection (1), or

(b)a person carrying on a regulated activity in circumstances where, as a result of subsection (1D), sections 20(1) and (1A) and 23(1A) do not apply.

Defined in s.39(2) · see it in the full Act
recognised investment exchange

“recognised CSD”, “recognised clearing house” and “recognised investment exchange” have the meaning given in section 285;

Defined in s.417(1) · see it in the full Act

(a) “recognised investment exchange” means an investment exchange in relation to which a recognition order is in force;

Defined in s.285(1) · see it in the full Act
authorised person

“authorised person” has the meaning given in section 31(2);

Defined in s.417(1) · see it in the full Act

(2) In this Act “authorised person” means a person who is authorised for the purposes of this Act.

Defined in s.31(2) · see it in the full Act
relevant parent undertaking

“relevant parent undertaking”, in relation to an FCA investment firm, means an authorised parent undertaking or a non-authorised parent undertaking (as defined in section 143B).

Defined in s.177A · see it in the full Act
FCA investment firm

“FCA investment firm” has the meaning given in section 143A;

Defined in s.177A · see it in the full Act
relevant Part 5A requirement

“relevant Part 5A requirement” is to be read in accordance with section 71T(2);

Defined in s.417(1) · see it in the full Act

(2) In this Act “relevant Part 5A requirement” means, in relation to a provision of this Act listed in the first column of the Table in Part 2 of Schedule 6C, a requirement that—

(a)is imposed by virtue of any of the designated activity regulations specified in the corresponding entry in the second column, and

(b)is of any of the descriptions specified in the corresponding entry in the third column.

Defined in s.71T(2) · see it in the full Act
group

(1) In this Act “group”, in relation to a person (“A”), means A and any person who is—

(a)a parent undertaking of A;

(b)a subsidiary undertaking of A;

(c)a subsidiary undertaking of a parent undertaking of A;

(d)a parent undertaking of a subsidiary undertaking of A;

(e)an undertaking in which A or an undertaking mentioned in paragraph (a), (b), (c) or (d) has a participating interest;

(f)if A or an undertaking mentioned in paragraph (a) or (d) is a building society, an associated undertaking of the society; or

(g)if A or an undertaking mentioned in paragraph (a) or (d) is an incorporated friendly society, a body corporate of which the society has joint control (within the meaning of section 13(9)(c) or (cc) of the Friendly Societies Act 1992).

Defined in s.421(1) · see it in the full Act
partnership

“partnership” includes a partnership constituted under the law of a country or territory outside the United Kingdom;

Defined in s.417(1) · see it in the full Act
insurance undertaking

“insurance undertaking” means—

(a)

an undertaking which is authorised by or under this Act to carry on the regulated activity of effecting or carrying out contracts of insurance as principal, or

(b)

the association of underwriters known as Lloyd’s;

Defined in s.417(1) · see it in the full Act
reinsurance undertaking

“reinsurance undertaking” means—

(a)

an undertaking which is authorised by or under this Act to carry on the regulated activity of effecting or carrying out contracts of insurance that are limited to reinsurance contracts as principal, or

(b)

the association of underwriters known as Lloyd’s;

Defined in s.417(1) · see it in the full Act
regulated activity

“regulated activity” has the meaning given in section 22;

Defined in s.417(1) · see it in the full Act
the FCA

(2) The Financial Conduct Authority is in this Act referred to as “the FCA”.

Defined in s.1A(2) · see it in the full Act

“the FCA” means the Financial Conduct Authority;

Defined in s.417(1) · see it in the full Act
the PRA

“the PRA” means the Prudential Regulation Authority;

Defined in s.417(1) · see it in the full Act
Investment

(4) “Investment” includes any asset, right or interest (including where an asset, right or interest is, or comprises or represents, a cryptoasset) .

Defined in s.22(4) · see it in the full Act

Cases considering section 167 (5)

Secretary of State for Business Enterprise & Regulatory Reform v Aaron & Ors

[2008] EWCA Civ 1146 · 16 October 2008

The Financial Services Authority investigators were appointed under this provision. Their resulting statutory investigative material fell within the implied evidential exception (see paras [1]-[2]; [6]; [29]-[31]).

R v Rollins

[2010] UKSC 39 · 28 July 2010Limits

The power to require information from authorised persons was considered as part of the alleged symmetry between investigation and prosecution. That alleged symmetry did not restrict the general right to prosecute. (see para [30])

Integrity Commission v Kikivarakis (as official liquidator TCI Bank Ltd (in liquidation)) (Turks and Caicos Islands)

[2021] UKPC 33 · 20 December 2021

Cited by analogy to confirm that an investigation requires good reason, expressed as an objective evidential basis before coercive investigative powers are used. (see paras [24]-[25])

What each judgment says about section 167 is in the case-law panel in the full Act.

Explanatory note

321.Under this section, either the Authority or the Secretary of State (the “investigating authority”) may, where it appears that there are good reasons for doing so, appoint competent persons to conduct an investigation on their behalf into the business of an authorised person or appointed representative, or into the ownership or control of an authorised person.  An “appointed representative” is a person who is exempt from the general prohibition in relation to particular regulated activities by virtue of a contract with an authorised person as described under section 39.  An appointed representative and the authorised person who is the principal of that representative as a result of the contract may be investigated at the same time.  An investigation may also be made into a formerly authorised person or a former appointed representative, although the scope of such investigations is limited by subsection (4) to the business they conducted while they were authorised or appointed or under the control or ownership of the former authorised person at that time.  Written notice must be given to the person under investigation under section 170(2).

322.The people appointed to conduct the investigation may be employees of the investigating authority (under section 170(5)), or other people engaged specifically for the purpose.  If they judge it necessary for the purposes of the investigation, they may also inquire into the business of other connected companies or partnerships, including those which were connected at some relevant time in the past (this extends to the same classes of connected company or partnership as section 166).  The investigator(s) must give written notice to any other company or partnership whose business they intend to inquire into in this way.

All the explanatory notes for the Act

Amendments and notes

27 notes from legislation.gov.uk

Amendments

  1. F1281Words in s. 167(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 7(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  2. F1282Words in s. 167(1)(a) substituted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 2 para. 7(2)(a) (with Sch. 2 Pt. 3); S.I. 2021/671, reg. 4(b)
  3. F1283Words in s. 167(1)(c) substituted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 2 para. 7(2)(b) (with Sch. 2 Pt. 3); S.I. 2021/671, reg. 4(b)
  4. F1284S. 167(1A) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 2 para. 7(3) (with Sch. 2 Pt. 3); S.I. 2021/671, reg. 4(b)
  5. F1285S. 167(1A)(e) inserted (14.1.2025) by The Financial Services and Markets Act 2000 (Designated Activities) (Supervision and Enforcement) Regulations 2025 (S.I. 2025/22), reg. 1(2), Sch. para. 8(2)
  6. F1286Word in s. 167(2)(a) omitted (1.1.2016) by virtue of The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 8(2)(a)
  7. F1287Word in s. 167(2)(b) inserted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 8(2)(b)
  8. F1288S. 167(2)(c) inserted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 8(2)(c)
  9. F1289Words in s. 167(2)(c) substituted (31.12.2024) by The Insurance and Reinsurance Undertakings (Prudential Requirements) (Amendment and Miscellaneous Provisions) Regulations 2024 (S.I. 2024/1083), regs. 1(2)(b), 6
  10. F1290S. 167(3A) omitted (31.12.2020) by virtue of The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 44; 2020 c. 1, Sch. 5 para. 1(1)
  11. F1291S. 167(4A)(4B) substituted for s. 167(4) (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 2 para. 7(4) (with Sch. 2 Pt. 3); S.I. 2021/671, reg. 4(b)
  12. F1292Words in s. 167(4A) substituted (14.1.2025) by The Financial Services and Markets Act 2000 (Designated Activities) (Supervision and Enforcement) Regulations 2025 (S.I. 2025/22), reg. 1(2), Sch. para. 8(3)
  13. F1293S. 167(5A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 12 para. 7(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  14. F1294S. 167(5A)(d) inserted (1.7.2021) by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 2 para. 7(5) (with Sch. 2 Pt. 3); S.I. 2021/671, reg. 4(b)
  15. F1295Words in s. 167(5A)(d) substituted (14.1.2025) by The Financial Services and Markets Act 2000 (Designated Activities) (Supervision and Enforcement) Regulations 2025 (S.I. 2025/22), reg. 1(2), Sch. para. 8(4)
  16. F1296S. 167(6) inserted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 7(b)

Modifications

  1. C699S. 167 modified (1.12.2001) by S.I. 2001/2657, arts. 1(1), 17 (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)
  2. C700S. 167 amended (18.7.2002 for certain purposes and 21.8.2002 otherwise) by The Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (S.I. 2002/1775), regs. 1, 12(3)
  3. C701S. 167 applied (with modifications) (31.12.2011) by The Financial Services and Markets Act 2000 (Permissions, Transitional Provisions and Consequential Amendments) (Northern Ireland Credit Unions) Order 2011 (S.I. 2011/2832), art. 9
  4. C702S. 167 applied (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), regs. 1, 71(1)(c)
  5. C703S. 167 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 12(9)
  6. C704S. 167 applied (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), arts. 1(5), 23(2)(c) (with Pt. 4)
  7. C705S. 167 modified (E.W.S.) (29.11.2018 for specified purposes, 1.4.2019 in so far as not already in force) by The Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018 (S.I. 2018/1253), arts. 1(2)(3), 55(4)
  8. C706S. 167 applied (with modifications) (8.6.2023 for specified purposes, 7.10.2023 in so far as not already in force) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (S.I. 2023/612), art. 1(2), Sch. para. 16 (with art. 11)
  9. C707S. 167 applied (with modifications) (14.1.2025 for specified purposes, 13.7.2026 in so far as not already in force) by The Short Selling Regulations 2025 (S.I. 2025/29), regs. 2(2)(3), 24, Sch. 1 Pt. 1; S.I. 2026/587, reg. 2(b)
  10. C708S. 167(1) applied (with modifications) (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), regs. 1(2), 14
  11. C709S. 167(1)(4A) applied (3.11.2025) by S.I. 2024/105, reg. 44(1) (as substituted by The Public Offers and Admissions to Trading (Amendment and Consequential and Transitional Provisions) Regulations 2025 (S.I. 2025/1076), regs. 1(2), 2)