Financial Services Bill (HL Bill 60)

Financial Services BillPage 180

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

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

(b) 5makes 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
has been or is to be effected by the instrument or
otherwise).

(4) 10The Bank of England may not make a property transfer
instrument in accordance with this section unless the original
instrument transferred securities to—

(a) the Bank of England,

(b) a company wholly owned by the Bank of England or the
15Treasury, or

(c) a nominee of the Treasury.

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

(6) Section 42 applies where the Bank of England has made a
20property 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) if the UK clearing house is a PRA-authorised person, the
PRA, and

(b) 25the 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)
(“the original instrument”).

(2) 30The 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
instrument which—

(a) 35provides 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
liabilities which are, could be or could have been
40transferred.

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

(a) the transferee under the original instrument is—

(i) the Bank of England,

(ii) 45a company wholly owned by the Bank of
England or the Treasury, or

(iii) a nominee of the Treasury, or

Financial Services BillPage 181

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

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

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

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

(b) the FCA.

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

(5) 15For section 81 substitute—

81 Transfer of ownership: report

(1) This 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) 20The Bank must report to the Chancellor of the Exchequer about
the exercise of the power to make share transfer instruments
under that section.

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

(4) 25The report must be made as soon as is reasonably practicable
after the end of one year beginning with the date of the first
transfer instrument made under section 13(2).

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

Provision Modification
Section 1 30Ignore subsection (2)(b) and (c).
In subsection (3)(c), for “to temporary public ownership”
substitute “of ownership”.
In subsection (4)(a), for “15, 16, 26 to 31 and 85”
substitute “15, 26 and 28 to 31”.
Section 4 35Ignore subsection (2)(b) and (c).
Ignore subsection (3)(a), (b) and (ba).
In subsection (5), for “banking” substitute “financial”.

Financial Services BillPage 182

Provision Modification
In subsection (6), for “protect depositors” substitute
“maintain the continuity of central counterparty clearing
services”.
5Ignore subsections (8A), (8B) and (9).
Section 5 Ignore subsection (1)(b) and (c).

In subsection (3)—

(a)

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

(b)

ignore the words “and temporary public
ownership”.


Section 6

15In subsection (4)—

(a)

after “Before” insert “issuing or”, and

(b)

ignore paragraph (d).


In subsection (5) after “after” insert “issuing or”.
Section 7 20In subsection (1), for “PRA” substitute “Bank of
England”.
In subsection (2), for the words following “satisfy the”
substitute “recognition requirements”.
The Bank of England may treat Condition 1 as met if
25satisfied that it would be met but for the withdrawal or
possible withdrawal of critical clearing services by the
UK clearing house.
In subsection (3), for “satisfy the threshold conditions”
substitute “maintain the continuity of any critical
30clearing services it provides while also satisfying the
recognition requirements”.
In subsection (4), for “PRA” substitute “Bank of
England”.
Ignore subsection (4A).
35

In 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
40for “Bank of England” substitute “PRA”.


Ignore subsections (7) and (8).

Financial Services BillPage 183

Provision Modification

For the purposes of section 7—

(a)

“critical clearing services” means central
5counterparty 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
10requirements 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)”.
15Ignore 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 20Ignore section 9.
Section 11 Ignore subsection (2)(a).
Section 13 See above.
Section 14 Ignore subsection (5).
Section 16 Ignore section 16.
Section 20 25Ignore subsections (2) and (4).
Section 24 In subsection (1), ignore paragraph (c) unless the UK
clearing house is a PRA-authorised person.
Section 25 Ignore section 25.
Section 26 In subsection (1), for “11(2)” substitute “13(2)”.
30In subsection (5), ignore paragraph (a) unless the UK
clearing 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
35See above.
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”.

Financial Services BillPage 184

Provision Modification
In subsection (5), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
Section 41 In subsection (1), ignore paragraph (c) unless the UK
5clearing 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 In subsection (5), for “7, 8 and 50” substitute “7 and 8”.
In subsection (6), ignore paragraph (a) unless the UK
10clearing 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
clearing house is a PRA-authorised person.
Section 44 In subsection (5), for “7, 8 and 52” substitute “7 and 8”.
15In subsection (6), ignore paragraph (a) unless the UK
clearing house is a PRA-authorised person.
Sections 45
and 46
See above.
Sections 49 to
53
Ignore sections 49 to 53.
20
Section 54 In subsection (1), for “A compensation scheme order”
substitute “An order under section 89F”.
In subsection (4)(b), for “compensation scheme order”
substitute “the order under section 89F”.
Section 55 25In subsection (10), for “to which section 62 applies”
substitute “under section 89F”.
Section 56 In subsection (6), for “to which section 62 applies”
substitute “under section 89F”.
Section 57 In subsection (1), for “A compensation scheme order”
30substitute “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
(regulated activities) varied or cancelled” substitute “no
longer qualifies as a recognised body under Part 18 of
35the Financial Services and Markets Act 2000 (recognised
investment exchanges and clearing houses) or is subject
to a requirement imposed under that Part”.

Financial Services BillPage 185

Provision Modification
Section 58 In 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
5disposal of things transferred”.
Ignore subsection (3).
In 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
10disposal of things transferred”.
In subsection (5), 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”.
15Ignore subsections (6) to (8).
Section 59 Ignore section 59.
Section 60 In subsection (3)(c), ignore the references to bank
insolvency and bank administration.

20In subsection (4)—

(a)

ignore paragraphs (a) and (b), and

(b)

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


25

In subsection (5)—

(a)

ignore paragraph (a), and

(b)

in paragraph (c), for “a compensation scheme
order or resolution fund order” substitute “an
30order under section 89F”.


Section 61

In subsection (1)—

(a)

ignore paragraphs (a) to (c), and

(b)

35treat the subsection as including a reference to
orders under section 89F.


Ignore subsection (2)(b).
Section 62 Ignore section 62.
Section 65 40In subsection (1)(a)(ii), for “order” substitute
“instrument”.

In subsection (3)—

(a)

in paragraph (a), ignore the words “where
45subsection (1)(a)(i) applies”, and

(b)

ignore paragraph (b).


Financial Services BillPage 186

Provision Modification
Section 66

In subsection (1)—

(a)

in paragraph (a), ignore the reference to section
511(2)(a),

(b)

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

(c)

ignore paragraph (d)(ii).


Section 68 10In subsection (1)(a), for “order” substitute “instrument”.
Section 69

In subsection (4)—

(a)

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

(b)

15ignore paragraph (b).


Section 70

In subsection (3)—

(a)

in paragraph (a), ignore the words “in relation to
20section 63”, and

(b)

ignore paragraph (b).


Section 71 Ignore subsection (1)(a).
Section 72 Ignore subsection (1)(a).
Section 73 25Ignore subsection (1)(a).
Section 79A In subsection (2), ignore the words “share transfer
instruments and”.
Section 81 See above.
Section 81B In subsection (1), for “or 12(2)” substitute “, 12(2) or
3013(2)”.
Ignore subsection (3)(c) and (d).
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
35administration procedure”.
Ignore subsection (3).
Sections 82
and 83
Ignore sections 82 and 83.
89C Clearing house rules

(1) 40A 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;

Financial Services BillPage 187

(b) in 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) 5Provision by virtue of this section may (but need not) be limited so as
to have effect—

(a) for a specified period, or

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

89D Clearing house membership

(1) 10A property transfer instrument made in respect of a UK clearing house
may 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
15member of a UK clearing house;

(b) in 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 20Recognition of transferee company

(1) The 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) 25for a specified period, or

(b) until a specified event occurs.

(2) The provision may have effect—

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

(b) until the occurrence of an event specified or described in the
30instrument.

(3) The power under this section—

(a) may 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 35Clearing house compensation orders

(1) The Treasury may by order make provision for protecting the financial
interests 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) 40for determining whether transferors should be paid
compensation, or providing for transferors to be paid
compensation, and establishing a scheme for paying any
compensation,

(b) under which transferors become entitled to the proceeds of the
45disposal of things transferred in specified circumstances, and to
a specified extent, and

Financial Services BillPage 188

(c) for 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
5approved by resolution of each House of Parliament.

89G Interpretation: “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) 10which provides central counterparty clearing services, and

(c) in 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) 15a bank,

(b) a 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
20Ireland) Order 1985), or

(d) an 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
25revoked.

(4) In this Part—

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

  • 30“PRA-authorised person” has the meaning given by section 2B(5)
    of 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
35

(8) In 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) 40after the entry relating to “partial property transfer” insert—

Financial Services BillPage 189

PRA-authorised person 89G

(c) at the end insert—

UK clearing house 89G.

103 State aid

5After section 145 of the Banking Act 2009 insert—

145A   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
10to 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
(“State aid”).

(2) The Treasury may, in writing, direct the bank administrator to take
15specified action to enable the United Kingdom to fulfil any of the
purposes 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) 20to obtain a decision from the Commission whether State aid—

(i) has been given, or

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

(c) to apply for approval that such aid is, or would be, compatible
with the internal market, within the meaning of Article 107 of
25TFEU;

(d) to comply with any requirements to enable an investigation
under 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
30referred to in paragraph (c);

(f) to comply with any requests from the Commission relating to
the application for approval, including the provision of
information;

(g) to comply with any undertakings given to the Commission, or
35conditions imposed by the Commission, where approval has
been given.

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

(5) The bank administrator must comply with the direction within the
40period of time specified in the direction, or if no period of time is
specified, as soon as reasonably practicable.