Financial Services and Markets Act 2000, section 388

Decision notices

Part XXVI Notices

(1)A decision notice must—

(a)be in writing;

(b) give [F2913 the reasons of the regulator giving the notice (“the regulator concerned”) F2913] for the decision to take the action to which the notice relates;

(c)state whether section 394 applies;

(d)if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and

(e)give an indication of—

(i)any right to have the matter referred to the Tribunal which is given by this Act; and

(ii)the procedure on such a reference.

[F2914 (1A)Where the PRA is the regulator concerned and the FCA has decided to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) [F2915 , 55I(8) or 61(2D)F2915] , the decision notice given by the PRA must—

(a)state that fact, and

(b)give the reasons for the FCA's decision.F2914]

(2)If the decision notice was preceded by a warning notice, the action to which the decision notice relates must be action under the same Part as the action proposed in the warning notice.

(3) [F2916 The regulator concerned F2916] may, before it takes the action to which a decision notice (“the original notice”) relates, give the person concerned a further decision notice which relates to different action in respect of the same matter.

(4)[F2917 The regulator concernedF2917] may give a further decision notice as a result of subsection (3) only if the person to whom the original notice was given consents.

(5)If the person to whom a decision notice is given under subsection (3) had the right to refer the matter to which the original decision notice related to the Tribunal, he has that right as respects the decision notice under subsection (3).

Read section 388 in the full Act → Definitions (4) Cases (8)

Definitions used in section 388

regulator

“regulator” has the meaning given in section 3A(2);

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

“the Tribunal” means the Upper Tribunal;

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
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

Cases considering section 388 (8)

The Financial Conduct Authority v BlueCrest Capital Management

[2024] EWCA Civ 1125 · 2 October 2024Interprets

Permits a decision notice to specify different action from the warning notice, provided it remains under the same Part of the Act. This confirms that the regulatory process may evolve between stages (see paras [189]-[191]).

Willford, R (On the Application Of) v Financial Services Authority

[2013] EWCA Civ 677 · 13 June 2013Interprets

The court interpreted the duty to give reasons contextually. A Decision Notice must leave its recipient in no real doubt why it was issued, but the committee need not answer every submission or give reasons for its reasons where it adequately addresses the main issues (see paras [43]–[44]; [48]–[51]). The subsection required a written Decision Notice containing the Authority’s reasons. The notice as a whole contained sufficient reasons to satisfy that requirement (see paras [60]; [63]; [73]–[74]). The statutory duty to give reasons remained important despite the availability of a reference to the Upper Tribunal. In context, the Decision Notice complied with that duty (see paras [63]–[69]; [73]–[74]).

Bluecrest Capital Management (UK) LLP v The Financial Conduct Authority

[2023] UKUT 140 (TCC) · 21 June 2023

Applies the requirement that a decision notice state the reasons for the Authority’s decision, supporting the conclusion that new Principle 7 and COBS allegations were outside the reference. (see paras [44]; [149]; [184]-[197])

What each judgment says about section 388 is in the case-law panel in the full Act.

Explanatory note

680.A decision notice must be in writing and must set out the reasons for the course of action.  It also requires the Authority to explain a right of access to Authority material under section 394 and rights to refer the case to the Tribunal (including the procedure for doing so).

681.If a decision notice follows a warning notice, the action proposed in it must be action the Authority has powers to take under the same Part of the Act.  The Authority can issue a further decision notice altering the action proposed in an earlier notice, but only with the consent of the person concerned.

All the explanatory notes for the Act

Amendments and notes

20 notes from legislation.gov.uk

Amendments

  1. F2913Words in s. 388(1)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  2. F2914S. 388(1A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  3. F2915Words in s. 388(1A) substituted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 13; S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660)) this amendment is subject to savings and/or transitional provisions, see the commentary.
  4. F2916Words in s. 388(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  5. F2917Words in s. 388(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications

  1. C1302Ss. 385-391 applied (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. 1(r) (with art. 11)
  2. C1357S. 388 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(b) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
  3. C1358S. 388 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(b) (with reg. 1(2))
  4. C1359S. 388 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
  5. C1360S. 388 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
  6. C1361S. 388 applied (with modifications) by 2009 c. 1, s. 83ZU(6)(7) (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
  7. C1362S. 388 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 81(12)(13) (with regs. 8, 15)
  8. C1363S. 388 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
  9. C1364S. 388 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), 62
  10. C1365S. 388 applied (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(8)(b)
  11. C1366S. 388 applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49B(6) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
  12. C1367S. 388 applied (with modifications) (31.12.2023) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 139(6)(7); S.I. 2023/1382, reg. 8(b)
  13. C1368S. 388 applied (with modifications) (1.1.2026) by The Financial Services and Markets Act 2023 (Mutual Recognition Agreement) (Switzerland) Regulations 2025 (S.I. 2025/1145), regs. 1(2), 32(4)
  14. C1369S. 388 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, 25, 26, Sch. 1 Pts. 1, 2, 3; S.I. 2026/587, reg. 2(b)
  15. C1370S. 388(1)(b)-(e) 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), 52