OpenLegislation

The Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009

S.I. 2009/317 · Made 19 February 2009 · Extends to United Kingdom

Up to date with all changes known to legislation.gov.uk, revised to 6 June 2022.

Banks And Banking

Approved by both Houses of Parliament

Made 19th February 2009

Laid before Parliament 20th February 2009

Coming into force 21st February 2009

M1The Treasury, in exercise of the powers conferred by sections 135 and 168 of the Banking Act 2009 , 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.C1

Annotations to the whole text

Marginal citations

M1

2009 c.1.

Modifications

C1

Order applied (with modifications) (29.3.2009) by The Building Societies (Insolvency and Special Administration) Order 2009 (S.I. 2009/805), art. 18, Sch. 2 paras. 1(a), 2, 3

Contents

  1. Part 1: Introduction
  2. 1Citation and commencement
  3. 2Interpretation
  4. Part 2: General Modifications to Legislation
  5. 3Article 3
  6. Part 3: Specific Modifications and Amendments to Legislation
  7. 4Finance (No 2) Act 1992
  8. 5Financial Services and Markets Act 2000
  9. 6Companies Act 2006
  10. 7Dormant Bank and Building Society Accounts Act 2008 Repealed
  11. 8Pension Protection Fund (Entry Rules) Regulations 2005
  12. 9Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005
  13. Signature
  14. Schedule: Legislation subject to the general modifications in Part 2
  15. Primary Legislation
  16. Paragraph
  17. Paragraph
  18. Paragraph
  19. Paragraph
  20. Paragraph
  21. Paragraph
  22. Paragraph
  23. Paragraph
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  25. Paragraph
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  39. Paragraph
  40. Paragraph
  41. Paragraph
  42. Paragraph
  43. Paragraph
  44. Paragraph
  45. Paragraph
  46. Paragraph
  47. Secondary Legislation
  48. Paragraph
  49. Paragraph
  50. Paragraph
  51. Paragraph
  52. Paragraph
  53. Paragraph
  54. Paragraph
  55. Paragraph
  56. Paragraph
  57. Paragraph
  58. Paragraph
  59. Paragraph
  60. Paragraph
  61. Paragraph
  62. Paragraph
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  64. Paragraph
  65. Paragraph
  66. Paragraph
  67. Paragraph
  68. Paragraph
  69. Paragraph
  70. Paragraph
  71. Paragraph
  72. Paragraph
  73. Paragraph Repealed
  74. Paragraph
  75. Explanatory note

1Citation and commencement

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.

2Interpretation

In this Order—

“the 2009 Act” means the Banking Act 2009.

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)

“insolvency legislation” or “the law of insolvency” include Parts 2 and 3 of the 2009 Act and the provisions of the Insolvency Act 1986 M1 and the Insolvency (Northern Ireland) Order 1989 M2 as applied by those Parts;

(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 M3, the Insolvency Rules (Northern Ireland) 1991 M4 and the Insolvency (Scotland) Rules 1986 M5, 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) M6 of the Insolvency Act 1986 in relation to bank insolvency, and under section 411(1B) M7 of the Insolvency Act 1986 in relation to bank administration.

4Finance (No 2) Act 1992

(1)

The following provision of the Finance (No 2) Act 1992 M1 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.”.

5Financial Services and Markets Act 2000

(1)

The following provisions of the Financial Services and Markets Act 2000 M1 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) M2, 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 361M3 (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) M4 and (4A) M5, 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.

6Companies Act 2006

(1)

The following provisions of the Companies Act 2006 M1 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 M2 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.

7Dormant Bank and Building Society Accounts Act 2008F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8Pension Protection Fund (Entry Rules) Regulations 2005

(1)

The Pension Protection Fund (Entry Rules) Regulations 2005 M1 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.”.

9Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005

(1)

The Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 M1 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.”.

Signature

Dave Watts

Steve McCabe

Two of the Lords Commissioners of Her Majesty's Treasury

Primary Legislation

Taxes Management Act 1970 M1

Prescription and Limitation (Scotland) Act 1973 M1

Companies Act 1985M1

Companies (Northern Ireland) Order 1986 M1

Debtors (Scotland) Act 1987 M1

Income and Corporation Taxes Act 1988 M1

Companies Act 1989 M1

Companies (No. 2) (Northern Ireland) Order 1990 M1

Taxation of Chargeable Gains Act 1992 M1

Finance (No 2) Act 1992 M1

Pension Schemes Act 1993 M1

Pension Schemes (Northern Ireland) Act 1993 M1

Pensions Act 1995 M1

Pensions (Northern Ireland) Order 1995 M1

Proceeds of Crime (Scotland) Act 1995M1

Finance Act 1996 M1

Employment Rights Act 1996M1

Employment Rights (Northern Ireland) Order 1996 M1

Terrorism Act 2000 M1

Finance Act 2000 M1

International Criminal Court Act 2001 M1

International Criminal Court (Scotland) Act 2001 M1

Finance Act 2002 M1

Proceeds of Crime Act 2002 M1

Debt Arrangement and Attachment (Scotland) Act 2002 M1

Finance Act 2003 M1

Pensions Act 2004 M1

Pensions (Northern Ireland) Order 2005 M1

Companies Act 2006 M1

Bankruptcy and Diligence (Scotland) Act 2007M1

Finance Act 2008 M1

Dormant Bank and Building Society Accounts Act 2008 M1

Secondary Legislation

Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 M1

Financial Markets and Insolvency Regulations 1991 M1

Financial Markets and Insolvency Regulations (Northern Ireland) 1991 M1

Insolvency Regulations 1994 M1

Non-Domestic Rating (Unoccupied Property) (Scotland) Regulations 1994 M1

Insolvent Companies (Reports on Conduct of Directors) Rules 1996 M1

Financial Markets and Insolvency Regulations 1996 M1

Financial Markets and Insolvency Regulations (Northern Ireland) 1996 M1

Individual Savings Account Regulations 1998 M1

Corporation Tax (Simplified Arrangements for Group Relief) Regulations 1999 M1

Financial Markets and Insolvency (Settlement Finality) Regulations 1999 M1

Financial Collateral Arrangements (No 2) Regulations 2003 M1

Insolvency Practitioners and Insolvency Services Account (Fees) Order 2003 M1

Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 2003 M1

Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules (Northern Ireland) 2003 M1

Land Registration Rules 2003 M1

Credit Institutions (Reorganisation and Winding Up) Regulations 2004 M1

Insolvency Practitioners Regulations 2005 M1

Pension Protection Fund (Entry Rules) Regulations 2005 M1

Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 M1

Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 M1

Gender Recognition (Disclosure of Information) (Scotland) Order 2005 M1

Financial Assistance Scheme Regulations 2005 M1

Insolvency Practitioners Regulations (Northern Ireland) 2006 M1

Insolvency Practitioners and Insolvency Account (Fees) Order (Northern Ireland) 2006 M1

Land Registration (Scotland) Rules 2006 M1

F1...

Regulated Covered Bonds Regulations 2008 M1

Explanatory note

(This note is not part of the Order)

This Order makes modifications and amendments to certain Acts and Statutory Instruments as a consequence of Parts 2 (bank insolvency) and 3 (bank administration) of the Banking Act 2009 (c.1) (“the 2009 Act”).

Part 1 concerns citation, commencement and interpretation.

Part 2 sets out a number of general modifications, which apply to the primary and secondary legislation set out in the Schedule to this Order. It provides that so far as the enactments in the Schedule apply to liquidation or administration, they apply with the modifications in Part 2, in the case of a bank insolvency or administration under Parts 2 or 3 of the 2009 Act.

Part 3 sets out certain primary legislation that, in the context of a bank insolvency or a bank administration, are to be read with modifications. It also sets out a number of specific textual amendments to secondary legislation.

The Schedule lists the Acts and Statutory Instruments that are subject to the general modifications set out in Part 2.

An impact assessment of the effect of the 2009 Act is available on HM Treasury's website (www.hm-treasury.gov.uk).