Financial Services and Markets Act 2000, section 419

Carrying on regulated activities by way of business

Part XXIX Interpretation

(1)The Treasury may by order make provision—

(a)as to the circumstances in which a person who would otherwise not be regarded as carrying on a regulated activity by way of business is to be regarded as doing so;

(b)as to the circumstances in which a person who would otherwise be regarded as carrying on a regulated activity by way of business is to be regarded as not doing so.

(2)An order under subsection (1) may be made so as to apply—

(a)generally in relation to all regulated activities;

(b)in relation to a specified category of regulated activity; or

(c)in relation to a particular regulated activity.

(3)An order under subsection (1) may be made so as to apply—

(a)for the purposes of all provisions;

(b)for a specified group of provisions; or

(c)for a specified provision.

(4) “Provision” means a provision of, or made under, this Act.

(5)Nothing in this section is to be read as affecting the provisions of section 428(3).

Read section 419 in the full Act → Definitions (3) Cases (5)

Definitions used in section 419

regulated activity

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

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

(5) “Specified” means specified in an order made by the Treasury.

Defined in s.22(5) · 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

Cases considering section 419 (5)

Napoli v R.

[2012] EWCA Crim 1129 · 25 May 2012Limits

Read with Article 2(1) of the Business Order, section 419 provided the statutory basis for excluding specified deposit-taking from being regarded as carried on by way of business. The court applied the resulting exclusion and its burden of proof. (see paras [8]; [11])

Napoli & Anor v R.

[2011] EWCA Crim 2460 · 20 October 2011

The court used section 419 to identify the delegated order governing when deposit-taking is carried on by way of business. It applied the order’s criteria rather than giving section 419 an independent construction. (see paras [49]-[51])

The Financial Conduct Authority v London Property Investments (UK) Limited (trading as LPI Emergency Property Finance) & Ors

[2022] EWHC 2862 (Ch) · 11 November 2022

Confirms the power to modify the meaning of carrying on a regulated activity by way of business through an order. (see para [27])

What each judgment says about section 419 is in the case-law panel in the full Act.

Explanatory note

740.This section allows the Treasury to make orders to define “carrying on a regulated activity by way of business” for the purposes of section 22. This would, for example, allow special provision to be made in the case of occupational pension schemes, as under the FS Act 1986.  The section would also enable different provision to be made in the case of different activities, if that was thought to be desirable in the light of the slightly different tests which apply under the existing legislation.

All the explanatory notes for the Act