|
| |
|
(b) | “reporting date” means the last day of the reporting period.” |
| |
| |
After section 145 of the Banking Act 2009 insert— |
| |
“145A | Power to direct bank administrator |
| |
(1) | This section applies where— |
| 5 |
(a) | a bank administration order has been made, and |
| |
(b) | the Treasury are of the opinion that anything done, or proposed |
| |
to be done, in connection with the exercise of one or more of the |
| |
stabilisation powers may constitute the granting of aid to which |
| |
any of the provisions of Article 107 or 108 of TFEU applies |
| 10 |
| |
(2) | The Treasury may, in writing, direct the bank administrator to take |
| |
specified action to enable the United Kingdom to fulfil any of the |
| |
purposes specified in subsection (3). |
| |
| 15 |
(a) | to inform the European Commission that State aid has been, |
| |
may have been, or may be, given; |
| |
(b) | to obtain a decision from the Commission whether State aid— |
| |
| |
(ii) | would be given, if the action proposed was taken; |
| 20 |
(c) | to apply for approval that such aid is, or would be, compatible |
| |
with the internal market, within the meaning of Article 107 of |
| |
| |
(d) | to comply with any requirements to enable an investigation |
| |
under Article 108 of TFEU to be carried out; |
| 25 |
(e) | to comply with any undertaking given to the European |
| |
Commission in connection with the application for approval |
| |
referred to in paragraph (c); |
| |
(f) | to comply with any requests from the Commission relating to |
| |
the application for approval, including the provision of |
| 30 |
| |
(g) | to comply with any undertakings given to the Commission, or |
| |
conditions imposed by the Commission, where approval has |
| |
| |
(4) | Before giving a direction under this section the Treasury must consult |
| 35 |
| |
(5) | The bank administrator must comply with the direction within the |
| |
period of time specified in the direction, or if no period of time is |
| |
specified, as soon as reasonably practicable. |
| |
(6) | A direction under this section is enforceable on an application made by |
| 40 |
the Treasury, by injunction or, in Scotland, by an order for specific |
| |
performance under section 45 of the Court of Session Act 1988. |
| |
(7) | A direction may specify circumstances in which the bank administrator |
| |
is immune from liability in damages. |
| |
(8) | Immunity by virtue of subsection (7) does not extend to action— |
| 45 |
|
| |
|
| |
|
| |
(b) | in contravention of section 6(1) of the Human Rights Act 1998. |
| |
(9) | If the United Kingdom has made, or proposes to make, an application |
| |
to the Council of the European Union under Article 108 of the TFEU, |
| |
references in subsection (3) to the Commission are to be read as |
| 5 |
including references to the Council. |
| |
(10) | In this section “TFEU” means the Treaty on the Functioning of the |
| |
| |
Inter-bank payment systems |
| |
88 | Inter-bank payment systems |
| 10 |
(1) | Part 5 of the Banking Act 2009 (inter-bank payment systems) is amended as |
| |
| |
(2) | After section 186 insert— |
| |
“186A | Amendment of recognition order |
| |
(1) | The Treasury may amend a recognition order. |
| 15 |
(2) | Before amending a recognition order the Treasury must— |
| |
(a) | consult the Bank of England, |
| |
(b) | notify the operator of the recognised inter-bank payment |
| |
| |
(c) | consider any representations made. |
| 20 |
(3) | In addition, the Treasury— |
| |
(a) | must consult the FCA before amending a recognition order in |
| |
respect of a payment system the operator of which— |
| |
(i) | is, or has applied to become, a recognised investment |
| |
| 25 |
(ii) | has, or has applied for, a Part 4A permission, and |
| |
(b) | if the operator has, or has applied for, a Part 4A permission for |
| |
the carrying on of a PRA-regulated activity, must also consult |
| |
| |
(4) | The Treasury must consider any request by the operator of a recognised |
| 30 |
inter-bank payment system for the amendment of its recognition |
| |
| |
(3) | For section 191 substitute— |
| |
| |
(1) | The Bank of England may give directions in writing to the operator of |
| 35 |
a recognised inter-bank system. |
| |
| |
(a) | require or prohibit the taking of specified action in the operation |
| |
| |
(b) | set standards to be met in the operation of the system. |
| 40 |
|
| |
|
| |
|
(3) | If a direction is given for the purpose of resolving or reducing a threat |
| |
to the stability of the UK financial system, the operator (including its |
| |
officers and staff) has immunity from liability in damages in respect of |
| |
action or inaction in accordance with the direction. |
| |
(4) | A direction given for the purpose mentioned in subsection (3) must— |
| 5 |
(a) | include a statement that it is given for that purpose, and |
| |
(b) | inform the operator of the effect of that subsection. |
| |
(5) | The Treasury may by order confer immunity on any person from |
| |
liability in damages in respect of action or inaction in accordance with |
| |
a direction (including a direction given for the purpose mentioned in |
| 10 |
| |
| |
(a) | is to be made by statutory instrument, and |
| |
(b) | is subject to annulment in pursuance of a resolution of either |
| |
| 15 |
(7) | An immunity conferred by or under this section does not extend to |
| |
| |
| |
(b) | in contravention of section 6(1) of the Human Rights Act 1998.” |
| |
(4) | In section 186 (procedure)— |
| 20 |
(a) | for subsection (2) substitute— |
| |
“(2) | In addition, the Treasury— |
| |
(a) | must consult the FCA before making a recognition order |
| |
in respect of a payment system the operator of which— |
| |
(i) | is, or has applied to become, a recognised |
| 25 |
| |
(ii) | has, or has applied for, a Part 4A permission, and |
| |
(b) | if the operator has, or has applied for, a Part 4A |
| |
permission for the carrying on of a PRA-regulated |
| |
activity, must also consult the PRA.”, and |
| 30 |
(b) | in subsection (3), for “or the FSA” substitute “, the FCA or the PRA”. |
| |
(5) | In section 187 (de-recognition), for subsection (4) substitute— |
| |
“(4) | In addition, the Treasury— |
| |
(a) | must consult the FCA before revoking a recognition order in |
| |
respect of a payment system the operator of which— |
| 35 |
(i) | is, or has applied to become, a recognised investment |
| |
| |
(ii) | has, or has applied for, a Part 4A permission, and |
| |
(b) | if the operator has, or has applied for, a Part 4A permission for |
| |
the carrying on of a PRA-regulated activity, must also consult |
| 40 |
| |
(6) | In section 192 (role of FSA)— |
| |
(a) | in subsection (1), for “the FSA” substitute “the FCA or the PRA”, |
| |
(b) | for subsection (2) substitute— |
| |
“(2) | The Bank of England— |
| 45 |
|
| |
|
| |
|
(a) | must consult the FCA before taking action under this |
| |
Part in respect of a recognised inter-bank payment |
| |
system the operator of which satisfies section 186(2)(a), |
| |
| |
(b) | must consult the PRA before taking action under this |
| 5 |
Part in respect of a recognised inter-bank payment |
| |
system the operator of which satisfies section |
| |
| |
| |
(i) | for “the FSA”, in the first place, substitute “the FCA or the PRA”, |
| 10 |
(ii) | for “the FSA”, in the second place, substitute “it”, |
| |
(iii) | for “section 186(2)” substitute “section 186(2)(a) or (b)”, and |
| |
(iv) | in paragraph (a), for “the FSA” substitute “the FCA or (as the |
| |
case may be) the PRA”, and |
| |
(d) | in the heading, for “FSA” substitute “FCA and PRA”. |
| 15 |
(7) | After section 202 insert— |
| |
| |
(1) | If, on the application of the Bank of England, the court is satisfied— |
| |
(a) | that there is a reasonable likelihood that there will be a |
| |
| 20 |
(b) | that there has been a compliance failure and there is a |
| |
reasonable likelihood that it will continue or be repeated, |
| |
| the court may make an order restraining the conduct constituting the |
| |
| |
(2) | If, on the application of the Bank of England, the court is satisfied— |
| 25 |
(a) | that there has been a compliance failure by the operator of a |
| |
recognised inter-bank payment system, and |
| |
(b) | that there are steps which could be taken for remedying the |
| |
| |
| the court may make an order requiring the operator, and anyone else |
| 30 |
who appears to have been knowingly concerned in the failure, to take |
| |
such steps as the court may direct to remedy it. |
| |
(3) | If, on the application of the Bank of England, the court is satisfied— |
| |
(a) | that there may have been a compliance failure by the operator |
| |
of a recognised inter-bank payment system, or |
| 35 |
(b) | that a person may have been knowingly concerned in a |
| |
| |
| the court may make an order restraining the operator or person from |
| |
dealing with any assets which it is satisfied the operator or person is |
| |
reasonably likely to deal with. |
| 40 |
(4) | The jurisdiction conferred by this section is exercisable— |
| |
(a) | in England and Wales and Northern Ireland, by the High Court, |
| |
| |
(b) | in Scotland, by the Court of Session. |
| |
| 45 |
(a) | references to an order restraining anything are, in Scotland, to |
| |
be read as references to an interdict prohibiting that thing, |
| |
|
| |
|
| |
|
(b) | references to remedying a failure include mitigating its effect, |
| |
| |
(c) | references to dealing with assets include disposing of them.” |
| |
(8) | After section 203 insert— |
| |
| 5 |
(1) | The Bank of England must maintain satisfactory arrangements for— |
| |
(a) | recording decisions made in the exercise of its functions under |
| |
| |
(b) | the safe-keeping of those records which it considers ought to be |
| |
| 10 |
(2) | The duty in subsection (1) does not apply to a decision to issue a notice |
| |
| |
| |
(1) | At least once a year the Bank of England must make a report to the |
| |
| 15 |
(a) | the discharge of its functions under this Part, |
| |
(b) | the extent to which, in its opinion, in discharging those |
| |
functions its financial stability objective has been met, and |
| |
(c) | such other matters as the Treasury may from time to time direct. |
| |
(2) | Subsection (1) does not require the inclusion in the report of any |
| 20 |
information whose publication would in the opinion of the Bank of |
| |
England be against the public interest. |
| |
(3) | The Treasury must lay before Parliament a copy of each report received |
| |
by them under this section.” |
| |
(9) | In section 204 (information)— |
| 25 |
(a) | after subsection (1), insert— |
| |
“(1A) | The Bank of England may by notice in writing require the |
| |
operator of a recognised inter-bank payment system to provide |
| |
information which the Bank requires in connection with the |
| |
exercise of its functions (whether under this Part or otherwise) |
| 30 |
in pursuance of its financial stability objective.”, |
| |
(b) | in subsections (2) and (3), after “notice” insert “under subsection (1) or |
| |
| |
(c) | in subsection (4), for paragraph (b) substitute— |
| |
| 35 |
| |
(d) | in paragraph (c) of that subsection, for “or the FSA” substitute “, the |
| |
| |
(10) | In section 206A (services forming part of recognised inter-bank payment |
| |
| 40 |
(a) | in subsection (4)(a), for “and the FSA” substitute “, the FCA and the |
| |
| |
(b) | in subsection (6), for paragraph (b) (and the “and” at the end of it) |
| |
| |
| 45 |
|
| |
|
| |
|
| |
89 | International obligations |
| |
In Part 5 of the Banking Act 2009, after section 206A insert— |
| |
“206B | International obligations |
| |
(1) | If it appears to the Treasury that any action proposed to be taken by the |
| 5 |
Bank of England in exercising its powers under this Part would be |
| |
incompatible with EU obligations or any other international obligations |
| |
of the United Kingdom, the Treasury may direct the Bank not to take |
| |
| |
(2) | If it appears to the Treasury that any action which the Bank of England |
| 10 |
has power under this Part to take is required for the purpose of |
| |
implementing any such obligation, the Treasury may direct the Bank to |
| |
| |
(3) | A direction under this section— |
| |
(a) | may include such supplemental or incidental requirements as |
| 15 |
the Treasury consider necessary or expedient, and |
| |
(b) | is enforceable on an application by the Treasury, by injunction |
| |
or, in Scotland, by an order for specific performance under |
| |
section 45 of the Court of Session Act 1988.” |
| |
| 20 |
90 | Amendments relating to new regulators |
| |
Schedule 17 contains amendments of the Banking Act 2009 related to the |
| |
provisions of Part 2 of this Act. |
| |
| |
| 25 |
Amendments of Companies Act 1989 |
| |
91 | Amendments of Companies Act 1989 |
| |
(1) | Section 166 of the Companies Act 1989 (power of Secretary of State to give |
| |
directions to recognised investment exchange or recognised clearing house) is |
| |
| 30 |
(2) | In subsection (2)(a)— |
| |
(a) | for “Authority”, in the first place, substitute “appropriate regulator”, |
| |
| |
(b) | for “Authority”, in the second place, substitute “regulator”. |
| |
(3) | In subsection (2)(b)— |
| 35 |
(a) | for “Authority”, in the first place, substitute “appropriate regulator”, |
| |
| |
(b) | for “Authority”, in the second place, substitute “regulator”. |
| |
|
| |
|
| |
|
| |
(a) | for “Authority” substitute “appropriate regulator”, |
| |
(b) | omit the “or” following paragraph (a), and |
| |
| |
“(c) | in either case, that the direction is necessary having |
| 5 |
regard to the public interest in the stability of the |
| |
financial system of the United Kingdom, or |
| |
(d) | in either case, that the direction is necessary— |
| |
(i) | to facilitate a proposed or possible use of a |
| |
power under Part 1 of the Banking Act 2009 |
| 10 |
(special resolution regime), or |
| |
(ii) | in connection with a particular exercise of a |
| |
| |
| |
(a) | for “Authority”, in the first place, substitute “appropriate regulator”, |
| 15 |
| |
(b) | omit the words from “The Authority shall not” to the end. |
| |
(6) | After that subsection insert— |
| |
“(7A) | Where the exchange or clearing house is acting in accordance with a |
| |
direction under subsection (2)(a) that was given only by virtue of |
| 20 |
paragraph (a) of subsection (3), the appropriate regulator shall not give |
| |
a direction under subsection (7) unless it is satisfied that the direction |
| |
under that subsection will not impede or frustrate the proper and |
| |
efficient conduct of the default proceedings. |
| |
(7B) | Where the exchange or clearing house has taken action under its default |
| 25 |
rules without being directed to do so, the appropriate regulator shall |
| |
not give a direction under subsection (7) unless— |
| |
(a) | it is satisfied that the direction under that subsection will not |
| |
impede or frustrate the proper and efficient conduct of the |
| |
| 30 |
(b) | it is satisfied that the direction is necessary— |
| |
(i) | having regard to the public interest in the stability of the |
| |
financial system of the United Kingdom, |
| |
(ii) | to facilitate a proposed or possible use of a power under |
| |
Part 1 of the Banking Act 2009 (special resolution |
| 35 |
| |
(iii) | in connection with a particular exercise of a power |
| |
| |
(7) | In subsection (8), for “Authority” substitute “the regulator which gave the |
| |
| 40 |
| |
“(9) | “The appropriate regulator”— |
| |
(a) | in relation to a recognised UK investment exchange, means the |
| |
| |
(b) | in relation to a recognised UK clearing house, means the Bank |
| 45 |
| |
(9) | In the heading, omit “of Secretary of State”. |
| |
|
| |
|