some default text...

Financial Services Bill (HL Bill 48)

Financial Services BillPage 170

(7) Before making an onward share transfer instrument the Bank of
England must consult—

(a) if the UK clearing house is a PRA-authorised person, the
PRA, and

(b) 5the FCA.

(8) Section 26 applies where the Bank of England has made an
onward share transfer instrument.

29 Reverse share transfer

(1) This section applies where the Bank of England has made a
10share transfer instrument in accordance with section 13(2) (“the
original instrument”) providing for the transfer of securities
issued by a UK clearing house to a person (“the original
transferee”).

(2) The Bank of England may make one or more reverse share
15transfer instruments in respect of securities issued by the UK
clearing house and held by the original transferee (whether or
not they were transferred by the original instrument).

(3) If the Bank of England makes an onward share transfer
instrument in respect of securities transferred by the original
20instrument, the Bank may make one or more reverse share
transfer instruments in respect of securities issued by the UK
clearing house and held by a transferee under the onward share
transfer instrument (“the onward transferee”).

(4) A reverse share transfer instrument is a share transfer
25instrument which—

(a) provides for transfer to the transferor under the original
instrument (where subsection (2) applies);

(b) provides for transfer to the original transferee (where
subsection (3) applies);

(c) 30makes other provision for the purposes of, or in
connection with, the transfer of securities which are,
could be or could have been transferred under
paragraph (a) or (b).

(5) The Bank of England may not make a reverse share transfer
35instrument under subsection (2) unless—

(a) the original transferee is—

(i) the Bank of England,

(ii) a company wholly owned by the Bank of
England or the Treasury, or

(iii) 40a nominee of the Treasury, or

(b) the reverse share transfer instrument is made with the
written consent of the original transferee.

(6) The Bank of England may not make a reverse share transfer
instrument under subsection (3) unless—

(a) 45the onward transferee is—

(i) the Bank of England,

(ii) a company wholly owned by the Bank of
England or the Treasury, or

Financial Services BillPage 171

(iii) a nominee of the Treasury, or

(b) the reverse share transfer instrument is made with the
written consent of the onward transferee.

(7) Sections 7 and 8 do not apply to a reverse share transfer
5instrument (but it is to be treated in the same way as any other
share transfer instrument for all other purposes including for
the purposes of the application of a power under this Part).

(8) Before making a reverse share transfer instrument the Bank of
England must consult—

(a) 10if the UK clearing house is a PRA-authorised person, the
PRA, and

(b) the FCA.

(9) Section 26 applies where the Bank of England has made a
reverse share transfer instrument.

(4) 15For sections 45 and 46 substitute—

45 Transfer of ownership: property transfer

(1) This section applies where the Bank of England has made a
share transfer instrument, in respect of securities issued by a UK
clearing house, in accordance with section 13(2) (“the original
20instrument”).

(2) The Bank of England may make one or more property transfer
instruments.

(3) A property transfer instrument is an instrument which—

(a) provides for property, rights or liabilities of the UK
25clearing house to be transferred (whether accruing or
arising before or after the original instrument);

(b) makes other provision for the purposes of, or in
connection with, the transfer of property, rights or
liabilities of the UK clearing house (whether the transfer
30has been or is to be effected by the instrument or
otherwise).

(4) The Bank of England may not make a property transfer
instrument in accordance with this section unless the original
instrument transferred securities to—

(a) 35the Bank of England,

(b) a company wholly owned by the Bank of England or the
Treasury, or

(c) a nominee of the Treasury.

(5) Sections 7 and 8 do not apply to a property transfer instrument
40made in accordance with this section.

(6) Section 42 applies where the Bank of England has made a
property transfer instrument in accordance with this section.

(7) Before making a property transfer instrument in accordance
with this section, the Bank of England must consult—

(a) 45if the UK clearing house is a PRA-authorised person, the
PRA, and

Financial Services BillPage 172

(b) the FCA.

46 Transfer of ownership: reverse property transfer

(1) This section applies where the Bank of England has made a
property transfer instrument in accordance with section 45(2)
5(“the original instrument”).

(2) The Bank of England may make one or more reverse property
transfer instruments in respect of property, rights or liabilities
of the transferee under the original instrument.

(3) A reverse property transfer instrument is a property transfer
10instrument which—

(a) provides for transfer to the transferor under the original
instrument;

(b) makes other provision for the purposes of, or in
connection with, the transfer of property, rights or
15liabilities which are, could be or could have been
transferred.

(4) The Bank of England must not make a reverse property transfer
instrument unless—

(a) the transferee under the original instrument is—

(i) 20the Bank of England,

(ii) a company wholly owned by the Bank of
England or the Treasury, or

(iii) a nominee of the Treasury, or

(b) the reverse property transfer instrument is made with
25the written consent of the transferee under the original
instrument.

(5) Sections 7 and 8 do not apply to a reverse property transfer
instrument made in accordance with this section.

(6) Before making a reverse property transfer instrument in
30accordance with this section, the Bank of England must
consult—

(a) if the UK clearing house is a PRA-authorised person, the
PRA, and

(b) the FCA.

(7) 35Section 42 applies where the Bank of England has made a
reverse property transfer instrument in accordance with this
section.

(5) For section 81 substitute—

81 Transfer of ownership: report

(1) 40This section applies where the Bank of England makes one or
more share transfer instruments in respect of a UK clearing
house under section 13(2).

(2) The Bank must report to the Chancellor of the Exchequer about
the exercise of the power to make share transfer instruments
45under that section.

Financial Services BillPage 173

(3) The report must comply with any requirements as to content
specified by the Treasury.

(4) The report must be made as soon as is reasonably practicable
after the end of one year beginning with the date of the first
5transfer instrument made under section 13(2).

(6) The table mentioned in subsection (1)(a) is as follows—

Provision Modification
Section 1 Ignore subsection (2)(b) and (c).
In subsection (3)(c), for “to temporary public ownership”
10substitute “of ownership”.
In subsection (4)(a), for “15, 16, 26 to 31 and 85”
substitute “15, 26 and 28 to 31”.
Section 4 Ignore subsection (2)(b) and (c).
Ignore subsection (3)(a), (b) and (ba).
15In subsection (5), for “banking” substitute “financial”.
In subsection (6), for “protect depositors” substitute
“maintain the continuity of central counterparty clearing
services”.
Ignore subsections (8A), (8B) and (9).
Section 5 20Ignore subsection (1)(b) and (c).

In subsection (3)—

(a)

for “Sections 12 and 13 require” substitute
“Section 12 requires”, and

(b)

25ignore the words “and temporary public
ownership”.


Section 6

In subsection (4)—

(a)

30after “Before” insert “issuing or”, and

(b)

ignore paragraph (d).


In subsection (5) after “after” insert “issuing or”.
Section 7 In subsection (1), for “PRA” substitute “Bank of
35England”.
In subsection (2), for the words following “satisfy the”
substitute “recognition requirements”.
The Bank of England may treat Condition 1 as met if
satisfied that it would be met but for the withdrawal or
40possible withdrawal of critical clearing services by the
UK clearing house.

Financial Services BillPage 174

Provision Modification
In subsection (3), for “satisfy the threshold conditions”
substitute “maintain the continuity of any critical
clearing services it provides while also satisfying the
5recognition requirements”.
In subsection (4), for “PRA” substitute “Bank of
England”.
Ignore subsection (4A).

10In subsection (5)—

(a)

for “PRA” substitute “Bank of England”, and

(b)

ignore paragraph (a) unless the UK clearing
house is a PRA-authorised person, in which case
for “Bank of England” substitute “PRA”.


15
Ignore subsections (7) and (8).

For the purposes of section 7—

(a)

“critical clearing services” means central
20counterparty clearing services the withdrawal of
which may, in the Bank of England’s opinion,
threaten the stability of the financial systems of
the United Kingdom, and

(b)

“recognition requirements” means the
25requirements resulting from section 286 of the
Financial Services and Markets Act 2000.


Section 8 In subsection (1), omit “in accordance with section 11(2)
or 12(2)”.
30Ignore subsection (2)(c) and (d).
In subsection (3), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
In subsection (4), ignore the words “in accordance with
section 11(2) or 12(2)”.
Section 9 35Ignore section 9.
Section 11 Ignore subsection (2)(a).
Section 13 See above.
Section 14 Ignore subsection (5).
Section 16 Ignore section 16.
Section 20 40Ignore subsections (2) and (4).
Section 24 In subsection (1), ignore paragraph (c) unless the UK
clearing house is a PRA-authorised person.

Financial Services BillPage 175

Provision Modification
Section 25 Ignore section 25.
Section 26 In subsection (1), for “11(2)” substitute “13(2)”.
In subsection (5), ignore paragraph (a) unless the UK
5clearing house is a PRA-authorised person.
In subsection (6), for “11(2)” substitute “13(2)”.
Sections 26A
and 27
Ignore sections 26A and 27.
Sections 28
and 29
See above.
10
Section 30 In subsection (5), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
Section 31 In subsection (4), for “7, 8 and 51” substitute “7 and 8”.
In subsection (5), ignore paragraph (a) unless the UK
15clearing house is a PRA-authorised person.
Section 41 In subsection (1), ignore paragraph (c) unless the UK
clearing house is a PRA-authorised person.
Section 42 In subsection (5), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
Section 42A 20In subsection (5), for “7, 8 and 50” substitute “7 and 8”.
In subsection (6), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
Section 43 In subsection (6), for “7, 8 and 52” substitute “7 and 8”.
In subsection (7), ignore paragraph (a) unless the UK
25clearing house is a PRA-authorised person.
Section 44 In subsection (5), for “7, 8 and 52” substitute “7 and 8”.
In subsection (6), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
Sections 45
and 46
See above.
30
Sections 49 to
53
Ignore sections 49 to 53.
Section 54 In subsection (1), for “A compensation scheme order”
substitute “An order under section 89F”.
35In subsection (4)(b), for “compensation scheme order”
substitute “the order under section 89F”.

Financial Services BillPage 176

Provision Modification
Section 55 In subsection (10), for “to which section 62 applies”
substitute “under section 89F”.
Section 56 In subsection (6), for “to which section 62 applies”
5substitute “under section 89F”.
Section 57 In subsection (1), for “A compensation scheme order”
substitute “An order under section 89F”.
In subsection (4)(a), for “has had a permission under
Part 4A of the Financial Services and Markets Act 2000
10(regulated activities) varied or cancelled” substitute “no
longer qualifies as a recognised body under Part 18 of
the Financial Services and Markets Act 2000 (recognised
investment exchanges and clearing houses) or is subject
to a requirement imposed under that Part”.
Section 58 15In subsection (1), for “A resolution fund order”
substitute “An order under section 89F that provides for
transferors to become entitled to the proceeds of the
disposal of things transferred”.
Ignore subsection (3).
20In subsection (4), for “A resolution fund order”
substitute “An order under section 89F that provides for
transferors to become entitled to the proceeds of the
disposal of things transferred”.
In subsection (5), for “A resolution fund order”
25substitute “An order under section 89F that provides for
transferors to become entitled to the proceeds of the
disposal of things transferred”.
Ignore subsections (6) to (8).
Section 59 Ignore section 59.
Section 60 30In subsection (3)(c), ignore the references to bank
insolvency and bank administration.

In subsection (4)—

(a)

ignore paragraphs (a) and (b), and

(b)

35in paragraph (c), for “a third party compensation
order” substitute “an order under section 89F”.


In subsection (5)—

(a)

40ignore paragraph (a), and

(b)

in paragraph (c), for “a compensation scheme
order or resolution fund order” substitute “an
order under section 89F”.


Financial Services BillPage 177

Provision Modification
Section 61

In subsection (1)—

(a)

ignore paragraphs (a) to (c), and

(b)

5treat the subsection as including a reference to
orders under section 89F.


Ignore subsection (2)(b).
Section 62 Ignore section 62.
Section 65 10In subsection (1)(a)(ii), for “order” substitute
“instrument”.

In subsection (3)—

(a)

in paragraph (a), ignore the words “where
15subsection (1)(a)(i) applies”, and

(b)

ignore paragraph (b).


Section 66

In subsection (1)—

(a)

20in paragraph (a), ignore the reference to section
11(2)(a),

(b)

in paragraph (d)(i), ignore the words following
“England”, and

(c)

ignore paragraph (d)(ii).


25
Section 68 In subsection (1)(a), for “order” substitute “instrument”.
Section 69

In subsection (4)—

(a)

in paragraph (a), ignore the words “in relation to
30sections 63 and 64”, and

(b)

ignore paragraph (b).


Section 70

In subsection (3)—

(a)

35in paragraph (a), ignore the words “in relation to
section 63”, and

(b)

ignore paragraph (b).


Section 71 Ignore subsection (1)(a).
Section 72 40Ignore subsection (1)(a).
Section 73 Ignore subsection (1)(a).
Section 79A In subsection (2), ignore the words “share transfer
instruments and”.
Section 81 See above.
Section 81B 45In subsection (1), for “or 12(2)” substitute “, 12(2) or
13(2)”.
Ignore subsection (3)(c) and (d).

Financial Services BillPage 178

Provision Modification
In subsection (6), ignore paragraph (b) unless the
clearing house is a PRA-authorised person.
Section 81C In subsection (2), ignore the words “and the bank
5administration procedure”.
Ignore subsection (3).
Sections 82
and 83
Ignore sections 82 and 83.
89C Clearing house rules

(1) 10A property transfer instrument made in respect of a UK clearing house
may make provision about the consequences of a transfer for the rules
of the clearing house.

(2) In particular, an instrument may—

(a) modify or amend the rules of a UK clearing house;

(b) 15in a case where some, but not all, of the business of a UK
clearing house is transferred, make provision as to the
application of the rules in relation to the parts of the business
that are, and are not, transferred.

(3) Provision by virtue of this section may (but need not) be limited so as
20to have effect—

(a) for a specified period, or

(b) until a specified event occurs or does not occur.

89D Clearing house membership

(1) A property transfer instrument made in respect of a UK clearing house
25may make provision about the consequences of a transfer for
membership of the clearing house.

(2) In particular, an instrument may—

(a) make provision modifying the terms on which a person is a
member of a UK clearing house;

(b) 30in a case where some, but not all, of the business of a UK
clearing house is transferred, provide for a person who was a
member of the transferor to remain a member of the transferor
while also becoming a member of the transferee.

89E Recognition of transferee company

(1) 35The Bank of England may provide for a company to which the business
of a UK clearing house is transferred in accordance with section 12(2) to
be treated as a recognised clearing house for the purposes of the
Financial Services and Markets Act 2000—

(a) for a specified period, or

(b) 40until a specified event occurs.

(2) The provision may have effect—

Financial Services BillPage 179

(a) for a period specified in the instrument, or

(b) until the occurrence of an event specified or described in the
instrument.

(3) The power under this section—

(a) 5may be exercised only with the consent of the Treasury, and

(b) must be exercised by way of provision in a property transfer
instrument (or supplemental instrument).

89F Clearing house compensation orders

(1) The Treasury may by order make provision for protecting the financial
10interests of transferors and others in connection with any transfer
under this Part as it applies by virtue of section 89B.

(2) The order may make provision establishing a scheme—

(a) for determining whether transferors should be paid
compensation, or providing for transferors to be paid
15compensation, and establishing a scheme for paying any
compensation,

(b) under which transferors become entitled to the proceeds of the
disposal of things transferred in specified circumstances, and to
a specified extent, and

(c) 20for compensation to be paid to persons other than transferors.

(3) An order—

(a) is to be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and
approved by resolution of each House of Parliament.

89G 25Interpretation: “UK clearing house” &c.

(1) In this Part “UK clearing house” means a clearing house—

(a) which is incorporated in, or formed under the law of any part
of, the United Kingdom,

(b) which provides central counterparty clearing services, and

(c) 30in relation to which a recognition order is in force under Part 18
of the Financial Services and Markets Act 2000.

(2) But “UK clearing house” does not include a clearing house which is
also—

(a) a bank,

(b) 35a building society (within the meaning of section 119 of the
Building Societies Act 1986),

(c) a credit union (within the meaning of section 31 of the Credit
Unions Act 1979 or Article 2(2) of the Credit Unions (Northern
Ireland) Order 1985), or

(d) 40an investment firm.

(3) Where a stabilisation power is exercised in respect of a UK clearing
house, it does not cease to be a UK clearing house for the purposes of
this Part if the recognition order referred to in subsection (1)(c) is later
revoked.

(4) 45In this Part—

    Financial Services BillPage 180

  • “central counterparty clearing services” has the same meaning as
    in section 155 of the Companies Act 1989 (see subsection (3A) of
    that section), and

  • “PRA-authorised person” has the meaning given by section 2B(5)
    5of the Financial Services and Markets Act 2000.

(7) In the Table in section 259 (statutory instruments), in Part 1 after the entry
relating to section 89 insert—

89F Clearing house compensation
orders
Draft affirmative resolution

(8) 10In the Table in section 261 (index of defined terms)—

(a) after the entry relating to “bridge bank share transfer instrument”
insert—

central counterparty clearing services 89G,

(b) after the entry relating to “partial property transfer” insert—

PRA-authorised person 1589G

(c) at the end insert—

UK clearing house 89G.

94 State aid

After section 145 of the Banking Act 2009 insert—

145A 20  Power to direct bank administrator

(1) This section applies where—

(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
25stabilisation powers may constitute the granting of aid to which
any of the provisions of Article 107 or 108 of TFEU applies
(“State aid”).

(2) The Treasury may, in writing, direct the bank administrator to take
specified action to enable the United Kingdom to fulfil any of the
30purposes specified in subsection (3).

(3) The purposes are—

(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—

(i) 35has been given, or

(ii) would be given, if the action proposed was taken;

Financial Services BillPage 181

(c) to apply for approval that such aid is, or would be, compatible
with the internal market, within the meaning of Article 107 of
TFEU;

(d) to comply with any requirements to enable an investigation
5under Article 108 of TFEU to be carried out;

(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
10the application for approval, including the provision of
information;

(g) to comply with any undertakings given to the Commission, or
conditions imposed by the Commission, where approval has
been given.

(4) 15Before giving a direction under this section the Treasury must consult
the bank administrator.

(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) 20A direction under this section is enforceable on an application made by
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) 25Immunity by virtue of subsection (7) does not extend to action—

(a) in bad faith, or

(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 TFEU,
30references in subsection (3) to the Commission are to be read as
including references to the Council.

(10) In this section “TFEU” means the Treaty on the Functioning of the
European Union.

Inter-bank payment systems

95 35Inter-bank payment systems

(1) Part 5 of the Banking Act 2009 (inter-bank payment systems) is amended as
follows.

(2) After section 186 insert—

186A Amendment of recognition order

(1) 40The Treasury may amend a recognition order.

(2) Before amending a recognition order the Treasury must—

(a) consult the Bank of England,

Financial Services BillPage 182

(b) notify the operator of the recognised inter-bank payment
system, and

(c) consider any representations made.

(3) In addition, the Treasury—

(a) 5must 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
exchange, or

(ii) has, or has applied for, a Part 4A permission, and

(b) 10if 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.

(4) The Treasury must consider any request by the operator of a recognised
inter-bank payment system for the amendment of its recognition
15order.

(3) For section 191 substitute—

191 Directions

(1) The Bank of England may give directions in writing to the operator of
a recognised inter-bank system.

(2) 20A direction may—

(a) require or prohibit the taking of specified action in the operation
of the system;

(b) set standards to be met in the operation of the system.

(3) If a direction is given for the purpose of resolving or reducing a threat
25to 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—

(a) include a statement that it is given for that purpose, and

(b) 30inform 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
subsection (3)).

(6) 35An order—

(a) is to be made by statutory instrument, and

(b) is subject to annulment in pursuance of a resolution of either
House of Parliament.

(7) An immunity conferred by or under this section does not extend to
40action or inaction—

(a) in bad faith, or

(b) in contravention of section 6(1) of the Human Rights Act 1998.

(4) In section 186 (procedure)—

Financial Services BillPage 183

(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) 5is, or has applied to become, a recognised
investment exchange, or

(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
10activity, must also consult the PRA., and

(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
15respect of a payment system the operator of which—

(i) is, or has applied to become, a recognised investment
exchange, or

(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
20the carrying on of a PRA-regulated activity, must also consult
the PRA.

(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) 25The Bank of England—

(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),
and

(b) 30must consult the PRA before taking action under this
Part in respect of a recognised inter-bank payment
system the operator of which satisfies section
186(2)(b).,

(c) in subsection (3)—

(i) 35for “the FSA”, in the first place, substitute “the FCA or the PRA”,

(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) 40in the heading, for “FSA” substitute “FCA and PRA”.

(7) After section 202 insert—

202A Injunctions

(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
45compliance failure, or

Financial Services BillPage 184

(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
failure.

(2) 5If, on the application of the Bank of England, the court is satisfied—

(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
failure,

10the court may make an order requiring the operator, and anyone else
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
15of a recognised inter-bank payment system, or

(b) that a person may have been knowingly concerned in a
compliance failure,

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
20reasonably likely to deal with.

(4) The jurisdiction conferred by this section is exercisable—

(a) in England and Wales and Northern Ireland, by the High Court,
and

(b) in Scotland, by the Court of Session.

(5) 25In this section—

(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,
and

(c) 30references to dealing with assets include disposing of them.

(8) After section 203 insert—

203A Records

(1) The Bank of England must maintain satisfactory arrangements for—

(a) recording decisions made in the exercise of its functions under
35this Part, and

(b) the safe-keeping of those records which it considers ought to be
preserved.

(2) The duty in subsection (1) does not apply to a decision to issue a notice
under section 204(1).

203B 40Annual report

(1) At least once a year the Bank of England must make a report to the
Treasury on—

(a) the discharge of its functions under this Part,

(b) the extent to which, in its opinion, in discharging those
45functions its financial stability objective has been met, and

(c) such other matters as the Treasury may from time to time direct.

Financial Services BillPage 185

(2) Subsection (1) does not require the inclusion in the report of any
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
5by them under this section.

(9) In section 204 (information)—

(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
10information which the Bank requires in connection with the
exercise of its functions (whether under this Part or otherwise)
in pursuance of its financial stability objective.,

(b) in subsections (2) and (3), after “notice” insert “under subsection (1) or
(1A)”,

(c) 15in subsection (4), for paragraph (b) substitute—

(b) the FCA;

(ba) the PRA;, and

(d) in paragraph (c) of that subsection, for “or the FSA” substitute “, the
FCA or the PRA”.

(10) 20In section 206A (services forming part of recognised inter-bank payment
systems)—

(a) in subsection (4)(a), for “and the FSA” substitute “, the FCA and the
PRA”, and

(b) in subsection (6), for paragraph (b) (and the “and” at the end of it)
25substitute—

(b) the FCA,

(ba) the PRA, and.

96 International obligations

In Part 5 of the Banking Act 2009, after section 206A insert—

206B 30  International obligations

(1) If it appears to the Treasury that any action proposed to be taken by the
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
35that action.

(2) If it appears to the Treasury that any action which the Bank of England
has power under this Part to take is required for the purpose of
implementing any such obligation, the Treasury may direct the Bank to
take that action.

(3) 40A direction under this section—

(a) may include such supplemental or incidental requirements as
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
45section 45 of the Court of Session Act 1988.

Financial Services BillPage 186

Further amendments

97 Amendments relating to new regulators

Schedule 17 contains amendments of the Banking Act 2009 related to the
provisions of Part 2 of this Act.

5Part 8 Miscellaneous

Consumer credit

98 Power to make further provision about regulation of consumer credit

(1) Subsection (2) applies on or at any time after the making after the passing of
10this Act of an order under section 22 of FSMA 2000 which has the effect that an
activity (a “transferred activity”)—

(a) ceases to be an activity in respect of which a licence under section 21 of
CCA 1974 is required or would be required but for the exemption
conferred by subsection (2), (3) or (4) of that section or paragraph 15(3)
15of Schedule 3 to FSMA 2000, and

(b) becomes a regulated activity for the purposes of FSMA 2000.

(2) The Treasury may by order do any one or more of the following—

(a) transfer to the FCA functions of the OFT under any provision of CCA
1974 that remains in force;

(b) 20provide that any specified provision of FSMA 2000 which relates to the
powers or duties of the FCA in connection with the failure of any
person to comply with a requirement imposed by or under FSMA 2000
is to apply, subject to any specified modifications, in connection with
the failure of any person to comply with a requirement imposed by or
25under a specified provision of CCA 1974;

(c) require the FCA to issue a statement of policy in relation to the exercise
of powers conferred on it by virtue of paragraph (b);

(d) in connection with provision made by virtue of paragraph (b), provide
that failure to comply with a specified provision of CCA 1974 no longer
30constitutes an offence or that a person may not be convicted of an
offence under a specified provision of CCA 1974 in respect of an act or
omission in a case where the FCA has exercised specified powers in
relation to that person in respect of that act or omission;

(e) provide for the transfer to the Treasury of any functions under CCA
351974 previously exercisable by the Secretary of State;

(f) provide that functions of the Secretary of State under CCA 1974 are
exercisable concurrently with the Treasury;

(g) enable local weights and measures authorities to institute proceedings
in England and Wales for a relevant offence;

(h) 40enable the Department of Enterprise, Trade and Investment in
Northern Ireland to institute proceedings in Northern Ireland for a
relevant offence;

(i) provide that references in a specified enactment to the FCA’s functions
under FSMA 2000 include references to its functions resulting from any
45order under this section.

Financial Services BillPage 187

(3) If an order under this section makes provision by virtue of subsection (2)(b)
enabling the FCA to exercise any of its powers under sections 205 to 206A of
FSMA 2000 (disciplinary measures) by reference to an act or omission that
constitutes an offence under CCA 1974, the order must also make provision by
5virtue of subsection (2)(d) ensuring that a person in respect of whom the power
has been exercised cannot subsequently be convicted of the offence by
reference to the same act or omission.

(4) In subsection (2)(g) and (h) “relevant offence” means an offence under FSMA
2000 committed in relation to an activity that is a regulated activity for the
10purposes of that Act by virtue of —

(a) an order made under section 22(1) of that Act in relation to an
investment of a kind falling within paragraph 23 or 23B of Schedule 2
to that Act, or

(b) an order made under section 22(1A) of that Act.

(5) 15The Treasury may make provision by virtue of subsection (2)(h) only with the
consent of the Department of Enterprise, Trade and Investment in Northern
Ireland.

(6) On or at any time after the making of an order under section 22 of FSMA 2000
of the kind mentioned in subsection (1), the Treasury may by order—

(a) 20exclude the application of any provision of CCA 1974 in relation to a
transferred activity, or

(b) repeal any provision of CCA 1974 which relates to a transferred
activity.

(7) In exercising their powers under this section, the Treasury must have regard
25to—

(a) the importance of securing an appropriate degree of protection for
consumers, and

(b) the principle that a burden or restriction which is imposed on a person,
or on the carrying on of an activity, should be proportionate to the
30benefits, considered in general terms, which are expected to result from
the imposition of that burden or restriction.

(8) The additional powers conferred by section 104(2) on a person making an
order under this Act include power for the Treasury, when making an order
under this section—

(a) 35to make such consequential provision as the Treasury consider
appropriate,

(b) to amend any enactment, including any provision of, or made under,
this Act.

(9) The provisions of this section do not limit—

(a) 40the powers conferred by section 107 or by section 22 of FSMA 2000, or

(b) the powers exercisable under Schedule 21 in connection with the
transfer of functions from the OFT.

(10) In this section—

  • “CCA 1974” means the Consumer Credit Act 1974;

  • 45“consumers” has the meaning given in section 1G of FSMA 2000;

  • “the OFT” means the Office of Fair Trading.

Financial Services BillPage 188

99 Suspension of licences under Part 3 of Consumer Credit Act 1974

(1) The Consumer Credit Act 1974 is amended as follows.

(2) In section 32 (suspension or revocation)—

(a) in subsection (1), omit “or suspended”,

(b) 5in subsection (2)—

(i) in paragraph (a), omit “, as the case may be,” and “, or suspend
it until a specified date or indefinitely,”, and

(ii) in paragraph (b), omit “or suspension” and “or suspend”,

(c) in subsection (3)—

(i) 10in paragraph (a), omit “, as the case may be,” and “, or suspend
it until a specified date or indefinitely,”, and

(ii) in paragraph (b), omit “or suspension”,

(d) in subsection (4)—

(i) in paragraph (a), omit “, as the case may be,” and “, or suspend
15it until a specified date or indefinitely,”, and

(ii) in paragraph (b), omit “or suspension”,

(e) in subsections (6) and (7), omit “or suspension”,

(f) omit subsection (8),

(g) in subsection (9), omit “or to suspend”, and

(h) 20for the title, omit “Suspension and”.

(3) After section 32 insert—

32A Power to suspend licence

(1) If during the currency of a licence it appears to the OFT to be urgently
necessary for the protection of consumers that the licence should cease
25to have effect immediately or on a specified date, the OFT is to proceed
as follows.

(2) In the case of a standard licence the OFT must, by notice—

(a) inform the licensee that the OFT is suspending the licence from
the date of the notice or from a later date specified in the notice,

(b) 30state the OFT’s reasons for the suspension,

(c) state either—

(i) that the suspension is to end on a specified date, which
must be no later than the last day of the 12 months
beginning with the day on which the suspension takes
35effect, or

(ii) that the duration of the suspension is to be as provided
by section 32B,

(d) specify any provision to be made under section 34A, and

(e) invite the licensee to submit to the OFT in accordance with
40section 34ZA representations—

(i) as to the suspension, and