| |
A
B I L L
To provide for the reorganisation of the undertakings of Barclays Bank PLC and certain of its subsidiaries; and for related purposes.
WHEREAS—
(1)
Barclays Bank PLC (hereinafter called “Barclays”) is a public limited company registered in England and Wales under the Companies Acts 1948 to 1967 which carries on in the United Kingdom and elsewhere the businesses of banking and financial services and other related activities:
(2)
Barclays has subsidiaries which carry on in the United Kingdom and elsewhere the businesses of banking and financial services and other related activities:
(3)
For the better conduct of the businesses of Barclays and its subsidiaries it is expedient that provision be made for the transfer to and vesting in Barclays of the undertakings or part of the undertakings of certain of its subsidiaries, and the transfer to and vesting in certain of Barclays' subsidiaries of the undertakings or part of the undertakings of Barclays or of certain other Barclays' subsidiaries and that the transfers should be effected economically and without interference with the conduct and continuity of those businesses carried on by Barclays or its subsidiaries:
May it therefore please Your Majesty that it may be enacted, and be it enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Citation
2 Interpretation
(1)
In this Act, unless the subject or context otherwise requires—
“account” includes any contract or facility between a person and a transferor by virtue of which money or any unit of account is, or may be, deposited or borrowed by any person;
“appointed day” means a day appointed under subsection (1)(d) of section 3 (Appointments) of this Act as an appointed day for the purposes of this Act (and different days may be appointed for the purposes of different undertakings);
“appointed undertaking” means an undertaking appointed under subsection (1)(a) of section 3 (Appointments) of this Act;
“contract” includes any agreement, transaction, arrangement or understanding, whether or not conditional or in writing and whether or not governed by English law;
“customer” includes any person having an account or any other relationship or dealing with Barclays or with any subsidiary;
“enactment” means any enactment in this Act or in any general or local Act or in any order, rule or regulation made under any Act;
“existing” means existing, outstanding or in force immediately before the relevant appointed day;
“liability” includes a duty and an obligation of any description, whether present or future, actual, contingent or prospective;
“property” means property and assets of every description (whether present or future, actual, contingent or prospective), and includes property and assets held on trust or in a fiduciary capacity and security, rights, benefits, interests and powers of every description;
“seal” includes a common seal and also any official seal which may be kept pursuant to section 39 or 40 of the Companies Act 1985 (c. 6);
“security” includes a mortgage or charge (in each case whether legal or equitable), debenture, bill of exchange, promissory note, guarantee, lien, pledge (whether actual or constructive), hypothecation, assignment by way of security, indemnity, right of set-off, undertaking or other means of securing the payment or discharge of a debt or liability or any interest therein (in each case whether present or future, actual, contingent or prospective);
“subsidiary” means any of those companies whose name, at the date on which the Bill for this Act was deposited, is listed in the first column of the Schedule to this Act, and whose corresponding registered number in the list of companies held at Companies House is listed in the second column of the said Schedule;
“transferee” in respect of an appointed undertaking means the transferee of that undertaking appointed under subsection (1)(c) of section 3 (Appointments) of this Act;
“transferor” in respect of an appointed undertaking means the transferor of that undertaking appointed under subsection (1)(b) of section 3 (Appointments) of this Act;
“trustee” includes a trustee or custodian trustee of any trust, settlement, covenant, contract or will (whether originally so appointed or not; and whether appointed under hand or by deed or by order of any court); an executor of the will, or administrator of the estate, of a deceased person; a judicial trustee appointed by order of any court; an attorney for another person; and any person acting in a fiduciary capacity;
“undertaking” means the whole of the business, property and liabilities of whatever nature of Barclays or of a subsidiary or any part of such business, property and liabilities (whether or not capable of being operated or identified as a discrete business), but does not include—
(b)
those documents comprising registers, indices or minute books usually required to be kept by Barclays or a subsidiary at its registered office pursuant to the provisions of the Companies Act 1985 (c. 6), or
“wholly-owned subsidiary” means a subsidiary which is wholly owned (whether legally or beneficially and whether directly or indirectly) by Barclays; and
(2)
Any reference in this Act to property or liabilities of a transferor is a reference to property or liabilities to which the transferor is entitled or subject (whether beneficially or in any fiduciary capacity), wherever they are situated or arise and whether or not they are capable of being transferred or assigned by the transferor and whether the transferor is entitled or subject to them under the law of any part of the United Kingdom or under the law of any country or territory outside the United Kingdom.
3 Appointments
(1)
Subject to subsection (2) below, the directors of Barclays may, as respects an undertaking, appoint—
(d)
a day, being a day not later than the expiry of the period of five years beginning with the date this Act is passed, to be the appointed day for the transfer of the appointed undertaking from the transferor to the transferee.
(2)
No appointment shall be made under subsection (1)(b) or (c) above in respect of a subsidiary if the subsidiary is not a wholly-owned subsidiary unless—
4 Notice of appointments
(1)
The transferor and transferee shall, not less than thirty days before a proposed appointed day, display at every one of their branches (if any) open to the public in the United Kingdom and at their registered offices a notice naming that day, stating that it is proposed to be an appointed day for the purposes of this Act, describing concisely the undertaking in respect of which it is proposed to be the appointed day and naming the proposed appointed transferor and transferee.
(2)
Barclays may publicise the effect of the appointment of the appointed day in any other manner as Barclays in its discretion sees fit.
(3)
On or before the appointed day, Barclays shall publish in the London Gazette, the Edinburgh Gazette, the Belfast Gazette and a national newspaper a notice naming that day, stating that it is an appointed day for the purposes of this Act, describing concisely the appointed undertaking in respect of which it is to be the appointed day and naming the appointed transferor and transferee.
(4)
The publication of a notice in the London Gazette, the Edinburgh Gazette or the Belfast Gazette under subsection (3) above shall be conclusive evidence of a day being an appointed day for the purposes of this Act; and a photocopy or other reproduction, certified by an authorised officer of Barclays, of a page or part of a page of the London Gazette, the Edinburgh Gazette or the Belfast Gazette containing the notice shall be conclusive evidence of publication of the notice.
(5)
A notice displayed under subsection (1) above or any publicity under subsection (2) above shall not bind the directors of Barclays to make the appointment described in the notice and any appointment made under subsection (1) of section 3 (Appointments) of this Act, notice of which has been published under subsection (3) above, will not be invalidated by any accidental omission to display a notice under subsection (1) above.
5 Transfer of appointed undertakings
(1)
Subject as provided in sections 8 (Saving for contracts of employment) and 9 (Retirement benefits schemes) of this Act, on the appointed day the appointed undertaking in respect of which that day is so appointed shall, by virtue of this Act and without further assurance, be transferred from the transferor of the appointed undertaking to, and vest in, the transferee of that appointed undertaking to the intent that the transferee shall succeed to that appointed undertaking as if in all respects the transferee were the same person in law as the transferor of that appointed undertaking.
(2)
Where the transfer of any property or liability forming part of the appointed undertaking referred to in subsection (1) above is governed by the law of any country or territory outside the United Kingdom, the transferor or the transferee of the appointed undertaking or both shall, if Barclays so requires, take all necessary steps for securing the effective transfer thereof to the transferee and, pending such transfer, the transferor shall hold any such property in trust for that transferee.
6 Trust property and wills
(1)
Any property transferred to, and vested in, a transferee by virtue of this Act which immediately before the relevant appointed day was held by a transferor, whether alone or jointly with any other person, as trustee shall, on and from that appointed day, be held by the transferee alone or, as the case may be, jointly with such other person in the same capacity upon the trusts, and with and subject to the powers, provisions and liabilities, applicable thereto.
(2)
Any existing instrument or order of any court under or by virtue of which any property became or may become vested in a transferor of an appointed undertaking as trustee, and any provision therein, or any existing contract for the payment to, or retention by, the transferor of remuneration for its services in any such capacity, shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to the transferor, other than a reference (however worded and whether express or implied) to terms and conditions of, or to a rate, charge, tariff or scale of fees of, the transferor, there were substituted a reference to the transferee of the appointed undertaking:
Provided that any right which was exercisable by the transferor to alter the terms and conditions or the rate, charge, tariff or scale of fees of that transferor shall on and after the appointed day be exercisable by the transferee.
(3)
Any will made before the appointed day which has not been proved in, or confirmed to in, any part of the United Kingdom before the appointed day, and any will made on or after the appointed day, being a will which appoints a transferor of an appointed undertaking to be a trustee or recipient of any property as trustee, shall be construed and have effect as if for any reference therein to the transferor as such trustee or recipient or otherwise in connection with such appointment, other than a reference (however worded and whether express or implied) to terms and conditions of, or to a rate, charge, tariff or scale of fees of, the transferor, there were substituted a reference to the transferee of the appointed undertaking:
Provided that any right which was exercisable by the transferor to alter the terms and conditions or the rate, charge, tariff or scale of fees of the transferor shall on and after the appointed day be exercisable by the transferee.
(4) No testamentary gift shall be adeemed by reason only of the operation of any provision of this Act.
7 Supplementary provisions
(1)
Without prejudice to the generality of the foregoing provisions of this Act but subject to any provision of this Act to the contrary, the following provisions of this section shall have effect in relation to an appointed undertaking transferred to a transferee under this Act.
(2)
Every existing contract relating to the appointed undertaking to which a transferor of the appointed undertaking is a party shall be construed and have effect on and from the appointed day as if—
(c)
any reference (however worded and whether express or implied) to the directors, officers, representatives or employees or to any director, officer, representative or employee of the transferor were a reference (as the case may require)—
(iii) in default of nomination, to the director, officer, representative or employee of the transferee who corresponds as nearly as may be to the first mentioned director, officer, representative or employee; and
(d)
where the contract relates to property or liabilities which are for the time being only partly transferred to, and vested in, the transferee of the appointed undertaking by virtue of this Act, as if the contract, to the extent to which it is enforceable by and against the transferor, constituted two separate contracts—
(i)
one of which is enforceable by and against the transferee as regards the part of the property or, as the case may be, liabilities so transferred to, and vested in, it and not as regards the other part; and
(ii)
the other of which is enforceable by and against the transferor as regards the part of the property or, as the case may be, liabilities not so transferred to, and vested in, the transferee and not as regards the other part.
(3)
Paragraphs (b) and (c) of subsection (2) above shall, on and from the relevant appointed day, apply to any enactment other than the provisions of this Act and to any provision of any existing contract to which the transferor was not a party as they apply to a contract to which subsection (2) above applies.
(4)
Paragraphs (a), (b) and (c) of subsection (2) above shall, on and from the relevant appointed day, apply to any provision of any other existing document (not being a contract or a will) as they apply to a contract to which subsection (2) above applies.
(5)
Paragraph (b) of subsection (2) above shall not apply to the name or title of any rate, charge, tariff, scale of fees, terms or conditions of the transferor of an appointed undertaking which includes the initials, the name or part of the name of that transferor but, on or after the appointed day, the transferee of the appointed undertaking may change the name or title.
(6)
An offer or invitation to treat made to or by the transferor of the appointed undertaking before the appointed day shall be construed and have effect on and after the appointed day in relation to the appointed undertaking as an offer or invitation to treat, as the case may be, made to or by the transferee of the appointed undertaking.
(7)
Any account between the transferor and a customer in relation to the appointed undertaking shall, on the appointed day, become an account between the transferee of the appointed undertaking and the customer subject to the same conditions and incidents as theretofore; and such account shall be deemed for all purposes to be a single continuing account:
Provided that nothing herein shall affect any right of the transferor or transferee of the appointed undertaking or of the customer to vary the conditions or incidents subject to which any account is kept.
(b)
makes reference to a rate, charge, tariff or scale of fees or to terms or conditions published, determined or ascertained from time to time by a transferor,
the transferee of the appointed undertaking shall have the same rights under that contract as the transferor had to publish, determine, ascertain, vary or amend rates, charges, tariffs, scales of fees, terms or conditions, and any such rates, charges, tariffs, scales of fees, terms or conditions published, determined, ascertained, varied or amended by the transferee shall apply in place of those which could have been published, determined, ascertained, varied or amended by the transferor.
(9)
Any existing instruction, order, direction, mandate, power of attorney, authority, undertaking or consent given to or by a transferor of an appointed undertaking in relation to such undertaking (whether in writing or not and whether or not in relation to an account) shall have effect on and from the appointed day as if given to or, as the case may be, by the transferee of the appointed undertaking.
(10)
Any negotiable instrument, cheque, warrant, draft, letter of credit or order for payment of money, in relation to an appointed undertaking, drawn on or by, or given to, or accepted or endorsed by, a transferor of that appointed undertaking, or payable at any place of business of that transferor, whether so drawn, given, accepted, endorsed or payable before, on or after the appointed day, shall have the same effect on and from that day—
(a)
as if it had been drawn on or by, or given to, or accepted or endorsed by, the transferee of the appointed undertaking; and
(11)
Any document, claim or demand addressed on or before or after the appointed day to the transferor of an appointed undertaking pursuant to an existing contract which relates to the appointed undertaking shall be deemed to have been addressed to the transferee of the appointed undertaking.
(12)
The custody of any document or record, goods or other thing held by the transferor of an appointed undertaking and relating to the appointed undertaking, as bailee shall pass to the transferee of the appointed undertaking on the appointed day, and the rights and obligations of that transferor under any contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of that transferee.
(13)
(a) Any security held immediately before the appointed day in relation to an appointed undertaking by the transferor, or by a nominee or agent of or trustee for that transferor, as security for the payment or discharge of any liability shall, on and from that day—
(i)
be held by the transferee of the appointed undertaking or, as the case may require, by that nominee, agent or trustee for that transferee; and
(ii)
be available to the transferee of the appointed undertaking, (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of that liability of the appointed undertaking.
(b)
In relation to any security transferred to, and vested in, the transferee of the appointed undertaking by or under this Act and any liabilities thereby secured, that transferee shall be entitled to the same rights and priorities and be subject to the same obligations and incidents to which the transferor of the appointed undertaking would have been entitled and subject if it had continued to hold the security.
(c)
Without prejudice to the generality of paragraph (b) above, in any case where any existing liability subsists between the transferor of an appointed undertaking and the transferee of that appointed undertaking, in respect of which that transferor or that transferee, or a nominee or agent of or trustee for that transferor or that transferee, holds security, that liability shall, for the purpose of enforcing or realising that security, be deemed to continue in effect notwithstanding the transfer to, and vesting in, that transferee.
(d)
Any security referred to in the foregoing provisions of this subsection which extends to future advances or liabilities shall, on and from the relevant appointed day, be available to the transferee of the appointed undertaking (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of future advances and future liabilities to the same extent and in the same manner in all respects as it extends immediately before that day to future advances or liabilities.
(14)
Where by virtue of this Act any property or liability of the transferor of an appointed undertaking becomes property or a liability of the transferee of that appointed undertaking, that transferee and all other persons shall, on and from the appointed day, have the same rights, powers and remedies (and in particular the same rights and powers as to taking or resisting legal proceedings or making or resisting applications to any authority) for ascertaining, perfecting or enforcing that property or liability as if it had at all times been property or a liability of that transferee.
(ii)
which would, in the absence of a transfer pursuant to this Act and subject to the provisions relating thereto in this Act, accrue, arise or become enforceable or available by or against the transferor of an appointed undertaking, on or after the appointed day and which relates to the appointed undertaking,
may, subject to the provisions relating to the appointed undertaking in this Act, be enforced or availed of by or against the transferee of the appointed undertaking on or after the appointed day; and
(b)
any legal proceedings, applications to any authority or other proceedings for the resolution of a dispute pending or current immediately before the appointed day by or against the transferor of the appointed undertaking and which relate to the appointed undertaking may be continued by or against the transferee of the appointed undertaking.
(16)
Any judgment, order or award obtained by or against the transferor of an appointed undertaking which relates to the appointed undertaking and which is not fully satisfied before the relevant appointed day shall, on that day, to the extent to which it is enforceable by or against that transferor, become enforceable by or against the transferee of the appointed undertaking.
(a)
shall succeed to all the rights, liabilities and obligations of the transferor in respect of data which is comprised in the appointed undertaking and which is subject to the Data Protection Act 1998 (c. 29) and, in any consent given by a data subject in respect of such data, reference to the transferor (or to any subsidiary or holding company of the transferor or any subsidiary of such holding company) shall be deemed to include a reference to the transferee and any subsidiary or holding company of the transferee and any subsidiary of such holding company;
(18)
In subsection (17) above, “subsidiary” and “holding company” shall have the meanings set out in sections 736 and 736A of the Companies Act 1985 (c. 6).
|
