2009 No. 317
The Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009
Approved by both Houses of Parliament
Made
Laid before Parliament
Coming into force
The Treasury, in exercise of the powers conferred by sections 135 and 168 of the Banking Act 2009 M1, make the following Order.
The powers in sections 135 and 168 of the Banking Act 2009 are being exercised for the first time and the Treasury is satisfied, in accordance with section 259(4) of that Act, that it is necessary to exercise it without laying a draft for approval.
PART 1Introduction
Citation and commencement1
This Order may be cited as the Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009 and comes into force on 21st February 2009.
Interpretation2
In this Order—
“the 2009 Act” means the Banking Act 2009.
PART 2General Modifications to Legislation
3
1
So far as the enactments set out in the Schedule (“the listed enactments”) apply in relation to liquidation and administration, they apply with the modifications set out in paragraphs (2) to (4).
2
The modifications relating to bank insolvency under Part 2 of the 2009 Act are that references to—
a
“liquidator” include a reference to a bank liquidator under Part 2 of the 2009 Act;
b
“provisional liquidator” include a reference to a provisional bank liquidator under Part 2 of the 2009 Act;
c
“liquidation” or “insolvent liquidation” include a reference to bank insolvency under Part 2 of the 2009 Act;
d
“winding up” or “winding up by the court” include a reference to bank insolvency under Part 2 of the 2009 Act (and a reference to the “commencement of winding up” in this context is to the commencement of bank insolvency);
e
“winding up order” include a reference to a bank insolvency order under Part 2 of the 2009 Act;
f
“wound up” include a reference to a bank having been put into bank insolvency under Part 2 of the 2009 Act; and
g
“winding up petition” or “petition to wind up” include an application for bank insolvency under Part 2 of the 2009 Act.
3
The modifications relating to bank administration under Part 3 of the 2009 Act are that references to—
a
“administrator” include a reference to a bank administrator under Part 3 of the 2009 Act;
b
“administration” or “insolvent administration” include a reference to a bank administration under Part 3 of the 2009 Act;
c
“administration order” include a reference to a bank administration order under Part 3 of the 2009 Act; and
d
“provisional liquidator” include a reference to a provisional bank administrator under Part 3 of the 2009 Act.
4
The modifications relating to bank insolvency or bank administration under Parts 2 and 3 of the 2009 Act are that references to—
a
b
a person acting as an “insolvency practitioner” (as defined in section 388 of the Insolvency Act 1986) include a person acting as a bank liquidator or bank administrator under Parts 2 and 3 of the 2009 Act;
c
the provisions of the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989, in the context of bank insolvency or bank administration, shall be read to include those provisions as applied and modified by sections 103 and 145 of the 2009 Act; and
d
the provisions of the Insolvency Rules 1986 M4, the Insolvency Rules (Northern Ireland) 1991 M5 and the Insolvency (Scotland) Rules 1986 M6, in the context of bank insolvency or bank administration, shall be read to include those provisions as applied and modified by rules made under section 411(1A) M7 of the Insolvency Act 1986 in relation to bank insolvency, and under section 411(1B) M8 of the Insolvency Act 1986 in relation to bank administration.
PART 3Specific Modifications and Amendments to Legislation
Finance (No 2) Act 19924
1
The following provision of the Finance (No 2) Act 1992 M9 applies with the modification set out in this article.
2
Paragraph 2 of Schedule 12 (Banks etc. in Compulsory Liquidation) is to be read as if it included the following—
3A
Where the company is a bank (as defined in section 91 of the Banking Act 2009), bank insolvency proceedings shall be taken to have commenced against the bank when the application for a bank insolvency order is made to the court under section 95 of the Banking Act 2009.
Financial Services and Markets Act 20005
1
The following provisions of the Financial Services and Markets Act 2000 M10 apply with the modifications set out in this article.
2
In section 215 (Rights of the scheme in relevant person's insolvency)—
a
in subsection (3) M11, the reference to making an administration application is to be read as including making an application for a bank administration order under section 142 of the 2009 Act, and
b
subsection (4) is to be read as if it read the following—
4
In the case of a bank insolvency (as defined in Part 2 of the Banking Act 2009), if the scheme manager decides, pursuant to section 100(6)(d) of that Act, not to remain on the liquidation committee, the scheme manager shall retain the rights it usually enjoys in respect of the winding up of a relevant person under section 371(3) and (4).
3
In section 355 (Interpretation of Part 24), the definition of “court” is to be read as if “, unless otherwise provided,” were inserted after the word “means”.
4
In section 361M12 (Administrator's duty to report to Authority), references to—
a
“administration” are to be read as including a reference to bank administration under Part 3 of the 2009 Act; and
b
“the administrator” are to be read as including the bank administrator under Part 3 of the 2009 Act.
5
In section 362 (Authority's powers to participate in proceedings)—
a
references to “court”—
i
in the context of a bank administration under Part 3 of the 2009 Act in England, Wales or Northern Ireland, are to be read as meaning the High Court, and
ii
in the context of a bank administration under Part 3 of the 2009 Act in Scotland, are to be read as meaning the Court of Session,
b
in subsection (1), the reference to making an administration application is to be read as including making an application for a bank administration order under section 142 of the 2009 Act, and
c
in subsections (4) M13 and (4A) M14, references to paragraph 74 of Schedule B1 to the Insolvency Act 1986 and paragraph 75 of Schedule B1 to the Insolvency (Northern Ireland) Order 1989 are to be read as including references to those provisions as applied and modified by section 145 of the 2009 Act.
6
In section 370 (Liquidator's duty to report to Authority), references to “liquidator” are to be read as including a reference to a bank liquidator under Part 2 of the 2009 Act.
7
In section 375 (Authority's right to apply for an order), references to the provisions of the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989 are to be read as including references to those provisions as applied and modified by section 103 and section 134 of the 2009 Act.
Companies Act 20066
1
The following provisions of the Companies Act 2006 M15 apply with the modifications set out in this article.
2
In section 461 (permitted disclosure of information obtained under compulsory powers)—
a
subsection (4)(c) is to be read so as to include the 2009 Act in the list of enactments in that subsection;
b
in subsection (4)(g) is to be read so as to include the 2009 Act in the list of enactments in that subsection.
3
Any references in Part 35 (the registrar of companies) to the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989 are to be read as including a reference to Parts 2 and 3 of the 2009 Act.
4
Where an application is made to the court for—
a
a bank insolvency order under Part 2 of the 2009 Act,
b
the appointment of a provisional bank liquidator under section 135 of the Insolvency Act 1986 or article 115 of the Insolvency (Northern Ireland) Order 1989, as applied by section 103 of the 2009 Act,
c
a bank administration order under Part 3 of the 2009 Act, or
d
the appointment of a provisional bank administrator under section 135 of the Insolvency Act 1986 or article 115 of the Insolvency (Northern Ireland) Order 1989, as applied by section 145 of the 2009 Act,
sections 1139 and 1140 (service of documents on company, directors, secretaries and others) have effect subject to the provisions for service set out in Parts 2 or 3 of the 2009 Act and in rules made under section 411 of the Insolvency Act 1986 in respect of those Parts.
5
In Part 2 of Schedule 2 (Specified Descriptions of Disclosures)—
a
paragraph 25 is to be read so as to include the 2009 Act in the list of enactments in that paragraph, and
b
paragraph 46 is to be read so as to include the 2009 Act in the list of enactments in that paragraph.
6
In Part 2 M16 of Schedule 11A (Specified Descriptions of Disclosures)—
a
paragraph 30 is to be read so as to include the 2009 Act in the list of enactments in that paragraph, and
b
paragraph 52 is to be read so as to include the 2009 Act in the list of enactments in that paragraph.
Dormant Bank and Building Society Accounts Act 20087
1
This article applies to a reclaim fund established under the Dormant Bank and Building Society Accounts Act 2008 M17 if, under sections 1 or 2 of that Act, the balance of a customer's dormant account is transferred into that reclaim fund from a bank which is a bank within the meaning of section 91 of the 2009 Act.
2
Where that reclaim fund is unable, or likely to be unable, to satisfy a claim against it, the fact that it ceases to be authorised does not prevent the operation of the Financial Services Compensation Scheme under section 213 of the Financial Services and Markets Act 2000 in respect of it; and for that purpose, the reclaim fund is a relevant person within the meaning of section 213(9), despite the lapse of authorisation.
Pension Protection Fund (Entry Rules) Regulations 20058
1
The Pension Protection Fund (Entry Rules) Regulations 2005 M18 are amended as follows.
2
In regulation 6 (Circumstances in which insolvency proceedings in relation to the employer are stayed or come to an end), after paragraph (1)(a)(v) insert—
vi
where the company is a bank (as defined in section 91 of the Banking Act 2009), the bank insolvency procedure is stayed under section 130 of the Insolvency Act 1986 (as applied by section 103 of the Banking Act 2009), or the bank insolvency order is rescinded or discharged, except in circumstances where the court has made an administration order in accordance with section 114 of the Banking Act 2009.
Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 20059
1
The Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 M19 are amended as follows.
2
In regulation 6 (Circumstances in which insolvency proceedings in relation to the employer are stayed or come to an end), after paragraph (1)(a)(v) insert—
vi
where the company is a bank (as defined in section 91 of the Banking Act 2009), the bank insolvency procedure is stayed under article 110 of the Insolvency (Northern Ireland) Order 1989 (as applied by section 103 of the Banking Act 2009), or the bank insolvency order is rescinded or discharged, except in circumstances where the court has made an administration order in accordance with section 114 of the Banking Act 2009.
SCHEDULELegislation subject to the general modifications in Part 2
Primary Legislation
Taxes Management Act 1970 M20
Prescription and Limitation (Scotland) Act 1973 M21
Companies Act 1985M22
Companies (Northern Ireland) Order 1986 M23
Debtors (Scotland) Act 1987 M24
Income and Corporation Taxes Act 1988 M25
Companies Act 1989 M26
Companies (No. 2) (Northern Ireland) Order 1990 M27
Taxation of Chargeable Gains Act 1992 M28
Finance (No 2) Act 1992 M29
Pension Schemes Act 1993 M30
Pension Schemes (Northern Ireland) Act 1993 M31
Pensions Act 1995 M32
Pensions (Northern Ireland) Order 1995 M33
Proceeds of Crime (Scotland) Act 1995M34
Finance Act 1996 M35
Employment Rights Act 1996M36
Employment Rights (Northern Ireland) Order 1996 M37
Terrorism Act 2000 M38
Finance Act 2000 M39
International Criminal Court Act 2001 M40
International Criminal Court (Scotland) Act 2001 M41
Finance Act 2002 M42
Proceeds of Crime Act 2002 M43
Debt Arrangement and Attachment (Scotland) Act 2002 M44
Finance Act 2003 M45
Pensions Act 2004 M46
Pensions (Northern Ireland) Order 2005 M47
Companies Act 2006 M48
Bankruptcy and Diligence (Scotland) Act 2007M49
Finance Act 2008 M50
Dormant Bank and Building Society Accounts Act 2008 M51
Secondary Legislation
Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 M52
Financial Markets and Insolvency Regulations 1991 M53
Financial Markets and Insolvency Regulations (Northern Ireland) 1991 M54
Insolvency Regulations 1994 M55
Non-Domestic Rating (Unoccupied Property) (Scotland) Regulations 1994 M56
Insolvent Companies (Reports on Conduct of Directors) Rules 1996 M57
Financial Markets and Insolvency Regulations 1996 M58
Financial Markets and Insolvency Regulations (Northern Ireland) 1996 M59
Individual Savings Account Regulations 1998 M60
Corporation Tax (Simplified Arrangements for Group Relief) Regulations 1999 M61
Financial Markets and Insolvency (Settlement Finality) Regulations 1999 M62
Financial Collateral Arrangements (No 2) Regulations 2003 M63
Insolvency Practitioners and Insolvency Services Account (Fees) Order 2003 M64
Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 2003 M65
Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules (Northern Ireland) 2003 M66
Land Registration Rules 2003 M67
Credit Institutions (Reorganisation and Winding Up) Regulations 2004 M68
Insolvency Practitioners Regulations 2005 M69
Pension Protection Fund (Entry Rules) Regulations 2005 M70
Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 M71
Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 M72
Gender Recognition (Disclosure of Information) (Scotland) Order 2005 M73
Financial Assistance Scheme Regulations 2005 M74
Insolvency Practitioners Regulations (Northern Ireland) 2006 M75
Insolvency Practitioners and Insolvency Account (Fees) Order (Northern Ireland) 2006 M76
Land Registration (Scotland) Rules 2006 M77
Companies (Cross-Border Mergers) Regulations 2007 M78
Regulated Covered Bonds Regulations 2008 M79
2009 c.1.