Part 3: Access to Financial Services Markets Section 23: Power to make provision about Gibraltar
This section delegates to HM Treasury certain powers to deliver the Government’s commitment to preserve the rights of Gibraltar-based persons in UK markets and of UK-based persons in Gibraltar markets in relation to legal regimes falling outside the Gibraltar Order, and which are thus not captured by the regimes set out in Schedules 2A and 2B to FSMA. Subsections (2)-(4) and (13) set out the scope of these powers, defining the meaning of ‘relevant Gibraltar provisions.’
	Subsections (2)-(4) and (13) provide that the scope of the powers delegated to HM Treasury can be exercised:
in relation to a ‘Gibraltar’ provision, i.e. a provision or set of provisions in an enactment relating to (i) the carrying on of activities in the UK by persons based in Gibraltar; (ii) the carrying on of activities in Gibraltar by persons based in the UK, or (iii) interaction of any other kind between the UK and Gibraltar, whether relating to persons, activities, financial instruments, other property or other matters;
when the provision is a ‘relevant’ provision, i.e. (i) it is a provision of, or applied or modified by, regulations listed in the following subsection (3); (ii) it was inserted, amended or otherwise modified by regulations listed in the following subsection (4); (iii) it is, or is the subject of, saving provision included in regulations listed in the following subsection (4); or (iv) in the case of a set of provisions, it includes provision falling within the previous sub-paragraph (ii) or (iii), and was made by regulations under the powers set out in subsection (1)(b), (c) or (d) or, in the case of a set of provisions, it includes provision made under those powers;
the regulations referred to in subsection (2)(b)(i) are the following, as amended from time to time-
the Electronic Money Regulations 2011 (S.I. 2011/99);
the Payment Services Regulations 2017 (S.I. 2017/752);
the Data Reporting Services Regulations 2017 (S.I. 2017/699).
the enactments referred to in subsection (2)(b)(ii) and (iii) are the following, as amended from time to time-
the Gibraltar (Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/680);
regulation 3 of the Building Societies Legislation (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1187);
Parts 2 and 3 of the Credit Transfers and Direct Debits in Euros (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1199);
Part 2 of the Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/107);
Chapters 1 and 2 of Part 2 of the Alternative Investment Fund Managers (Amendment etc) (EU Exit) Regulations 2019 (S.I. 2019/328).
	Subsection (1) confers on HM Treasury the following powers to do the following by regulation:
repeal or revoke relevant Gibraltar provision and make the changes set out in subsection (5) (subsection (1)(a)), i.e. to provide that the same provision is made in connection with Gibraltar as is made in connection with most or all other countries or territories outside the UK;
make provision with the same effect as relevant Gibraltar provision repealed or revoked under the powers described immediately above (subsection (1)(b)). Subsection (9) provides, in case of repeal or revocation of relevant Gibraltar provisions under subsection (1)(a), the power under subsection (1)(b) includes power to make provision with the same effect as the provision that was the subject of the saving or modification, read with the saving or modification;
amend relevant Gibraltar provisions restoring any aspect of the effect the provision had immediately before the end of the Transition Period (subsection (1)(c));
when exercising the power in subsection (1)(d) (replace or supplement relevant Gibraltar provision with provision substantially similar to, or to a provision of, section 32A of, or Schedule 2A or 2B to, the Financial Services and Markets Act 2000 (inserted by section 22 of, and Schedules 6 and 7 to, this Act respectively) the power to make provisions applying the mentioned provisions with or without modifications.. This will ensure a coherent regulation of Gibraltar-related activities in the UK markets. This power is complemented by the further provision that HM Treasury may apply the existing mechanisms and principles of the new section 32A of, or Schedule 2A or 2B to, FSMA to the relevant Gibraltar provisions, with or without modifications (subsection (10));
when exercising the powers under subsections (1)(b) to (d), make such modifications as HM Treasury consider appropriate having regard to changes in the law of any part of the UK since the relevant regulations listed in subsections (3) and (4) were made (subsection (8)(a)). HM Treasury is also delegated the power to restate relevant Gibraltar provision in a clearer or more accessible way (subsection (8)(b)). A power similar to this latter one is found in paragraph 21(b) of Schedule 7 to EUWA;
make different provision in relation to different cases; amend, revoke, repeal or otherwise modify an enactment; make consequential, incidental, supplementary, transitional, transitory, or saving provision; confer functions on a person, including functions involving the exercise of a discretion (subsection (11).
	The power of HM Treasury to make regulations is limited:
in scope, by the definition of ‘relevant Gibraltar provision’ in subsections (2)–(4) and (13) in relation to which HM Treasury may exercise their powers in subsection (1);
by the pre-condition to the making of the regulations in the exercise of these powers that the regulations made in the exercise of this power are compatible with the objectives set out in subsection (6);
procedurally, as the regulations made by HM Treasury in the exercise of the powers in this section will be subject to the affirmative procedure (subsection (12));
also procedurally, in relation to the powers to make regulations applying certain mechanisms of section 32A of, and Schedules 2A and 2B to, FSMA (subsection 1(d)), by the duty of HM Treasury to consult the FCA, the PRA, and the Government of Gibraltar before exercising that power (subsection (7)).