Legalize / United Kingdom / Public General Act

Financial Services and Markets Act 2023

Type Public General Act

Publication 2023-06-29

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) must be a person appearing to the Bank to have the skills necessary to make a report on the matter concerned, and

(b) where the appointment is to be made by the person concerned, must be a person nominated or approved by the Bank.

(7) It is the duty of—

(a) the person concerned, and

(b) any person who is providing (or who has at any time provided) services to the person concerned in relation to the matter concerned,

to give the person appointed to prepare a report all such assistance as the appointed person may reasonably require.

(8) The obligation imposed by sub-paragraph (7) is enforceable, on the application of the Bank, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988.

(9) The Bank may, in relation to an appointment under sub-paragraph (3)(b), require a CCP to pay to the Bank a fee to cover the expenses incurred by the Bank in relation to the appointment.

Appointment of persons to carry out general investigations

121

(1) This paragraph applies only for the purposes of the functions of the Bank conferred by or under this Schedule.

(2) If it appears to the Bank that there is a good reason for doing so, the Bank may appoint one or more competent persons to conduct an investigation on its behalf into—

(a) the nature, conduct or state of the business of a CCP,

(b) a particular aspect of that business, or

(3) If a person appointed under sub-paragraph (2) thinks it necessary for the purposes of the investigation, that person may also investigate the business of a person who is or has at any relevant time been a member of a group of which the CCP under investigation is part.

(4) A person appointed under sub-paragraph (2) who decides to investigate the business of any person under sub-paragraph (3) must give that person written notice of that decision.

(5) In this paragraph, “business” includes any part of a business.

Appointment of person to carry out investigations in particular cases

122

(1) This paragraph applies if it appears to the Bank that there are circumstances suggesting that a person may have failed to comply with any relevant requirement.

(2) The Bank may appoint one or more competent persons to conduct an investigation on its behalf.

(3) In this paragraph “relevant requirement” means a requirement imposed by or under this Schedule.

Investigations etc in support of foreign resolution authorities

123

(1) On receiving a request to which sub-paragraph (3) applies from a foreign resolution authority, the Bank may—

(a) exercise the power conferred by paragraph 119, or

(b) appoint one or more competent persons to investigate any matter.

(2) Accordingly, for the purposes of sub-paragraph (1)(a), paragraph 119 has effect as if it also referred to information and documents reasonably required by the Bank to meet such a request.

(3) This sub-paragraph applies to a request if the request is made by a foreign resolution authority in connection with the exercise by that authority of functions in relation to third-country resolution action (within the meaning of paragraph 145) corresponding to the stabilisation powers of the Bank under this Schedule.

(4) An investigator appointed under sub-paragraph (1)(b) has the same powers as an investigator appointed under paragraph 122.

(5) In deciding whether or not to exercise its investigative power, the Bank may take into account in particular—

(a) whether, in the territory of the foreign resolution authority concerned, corresponding assistance would be given to the Bank,

(b) whether the case concerns the breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom,

(d) whether it is otherwise appropriate in the public interest to give the assistance sought.

(6) The Bank may decide that it will not exercise its investigative power unless the foreign resolution authority undertakes to make such contribution towards the cost of its exercise as the Bank considers appropriate.

(7) “Foreign resolution authority” means an authority, in a country or territory outside the United Kingdom, which exercises functions referred to in sub-paragraph (3).

(8) “Investigative power” means one of the powers mentioned in sub-paragraph (1).

Investigations: general

124

(1) This paragraph applies if the Bank appoints one or more competent persons (“investigators”) under paragraph 121 or 122 to conduct an investigation on its behalf.

(2) The Bank must give written notice of the appointment of an investigator to the person who is the subject of the investigation (“the person under investigation”).

(3) A notice under sub-paragraph (2) must—

(a) specify the provisions under which, and as a result of which, the investigator was appointed, and

(b) state the reason for the investigator’s appointment.

(4) Nothing prevents the Bank from appointing a person who is a member of its staff as an investigator.

(5) An investigator must make a report of the investigation to the Bank.

(6) The Bank may, by a direction to an investigator, control—

(a) the scope of the investigation,

(b) the period during which the investigation is to be conducted,

(d) the reporting of the investigation.

(7) A direction may, in particular—

(a) confine the investigation to particular matters;

(b) extend the investigation to additional matters;

(c) require the investigator to discontinue the investigation or to take only such steps as are specified in the direction;

(d) require the investigator to make such interim reports as are so specified.

(8) If there is a change in the scope or conduct of the investigation and, in the opinion of the Bank, the person under investigation is likely to be significantly prejudiced by not being made aware of it, that person must be given written notice of the change.

(9) If the appointment is under paragraph 122, sub-paragraphs (2) and (8) do not apply if the Bank believes that the notice required by the sub-paragraph in question would be likely to result in the investigation being frustrated.

Powers of persons appointed under paragraph 121

125

(1) This paragraph applies to an investigator appointed under paragraph 121 to conduct an investigation on behalf of the Bank.

(2) The investigator may require the person who is the subject of the investigation (“the person under investigation”) or any person connected with the person under investigation—

(a) to attend before the investigator at a specified time and place and answer questions, or

(b) otherwise to provide such information as the investigator may require for the purposes of the investigation.

(3) The investigator may also require any person to produce at a specified time and place any specified documents or documents of a specified description.

(4) A requirement under sub-paragraph (2) or (3) may be imposed only so far as the investigator reasonably considers the question, provision of information or production of the document to be relevant to the purposes of the investigation.

(5) For the purposes of this paragraph, a person (“B”) is connected with the person under investigation (“A”) if B is or has at any relevant time been—

(a) a member of A’s group;

(b) a controller of A;

(c) in relation to A, a person mentioned in Part 1 or 2 of Schedule 15 to FSMA 2000 (reading references in those Parts to the authorised person or the person under investigation as references to A).

(6) In this paragraph—

“controller” has the meaning given in section 422 of FSMA 2000;

“specified” means specified in a notice in writing.

Powers of persons appointed as a result of paragraph 122

126

(1) This paragraph applies to an investigator appointed under paragraph 122 to conduct an investigation on behalf of the Bank.

(2) The investigator has—

(a) the powers conferred by paragraph 125 on an investigator appointed under paragraph 121, and

(b) the powers conferred by sub-paragraphs (3) and (4).

(3) The investigator may require the person who is the subject of the investigation (“the person under investigation”) to give the investigator all assistance in connection with the investigation which that person is reasonably able to give.

(4) The investigator may require a person who is neither the person under investigation nor a person connected with the person under investigation—

(a) to attend before the investigator at a specified time and place and answer questions, or

(b) otherwise to provide such information as the investigator may require for the purposes of the investigation.

(5) A requirement may only be imposed under sub-paragraph (4) if the investigator is satisfied that the requirement is necessary or expedient for the purposes of the investigation.

(6) Paragraph 125 (5) and (6) applies for the purposes of this paragraph.

Admissibility of statements made to investigators

127

(1) A statement made to an investigator appointed under paragraph 121 or 122 by a person in compliance with an information requirement is admissible in evidence in any proceedings, so long as it also complies with any requirement governing the admissibility of evidence in the circumstances in question.

(2) But in criminal proceedings in which that person is charged with an offence to which this sub-paragraph applies—

(a) no evidence relating to the statement may be adduced, and

(b) no question relating to it may be asked—

by or on behalf of the prosecution, or the Bank (as the case may be), unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

(3) Sub-paragraph (2) applies to any offence other than one under—

(a) paragraph 132,

(b) section 398 of FSMA 2000 (misleading FCA or PRA: residual cases),

(d) section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath), or

(e) Article 10 of the Perjury (Northern Ireland) Order 1979 (false declarations etc).

(4) “Information requirement” means a requirement imposed by an investigator under paragraph 125, 126 or 128.

Information and documents: supplemental provision

128

(1) If the Bank has power under this Schedule to require a person to produce a document but if it appears that the document is in the possession of a third person, that power may be exercised in relation to the third person.

(2) If a document is produced in response to a requirement imposed under this Schedule, the person to whom it is produced may—

(a) take copies or extracts from the document, or

(b) require the person producing the document, or any relevant person to provide an explanation of the document.

(3) A document so produced may be retained for so long as the person to whom it is produced considers that it is necessary to retain it (rather than copies of it) for the purposes for which the document was requested.

(4) If the person to whom a document is so produced has reasonable grounds for believing—

(a) that the document may have to be produced for the purposes of any legal proceedings, and

(b) that it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

(5) If a person who is required under this Schedule to produce a document fails to do so, the Bank or an investigator may require that person to state, to the best of that person’s knowledge and belief, where the document is.

(6) A lawyer may be required under this Schedule to furnish the name and address of the lawyer’s client.

(7) No person may be required under this Schedule to disclose information or produce a document in respect of which the person (“A”) owes an obligation of confidence unless—

(a) A is the person under investigation or a member of that person’s group,

(b) the person to whom the obligation of confidence is owed is the person under investigation or a member of that person’s group,

(d) the imposing on A of a requirement with respect to such information or document has been specifically authorised by the Bank.

(8) If a person claims a lien on a document, its production under this Schedule does not affect the lien.

(9) In this paragraph—

“controller” has the meaning given by section 422 of FSMA 2000;

“investigator” means a person appointed under paragraph 121 or 122;

“relevant person”, in relation to a person who is required to produce a document, means a person who— has been or is or is proposed to be a director or controller of that person, has been or is an auditor of that person, has been or is an actuary, accountant or lawyer appointed or instructed by that person, or has been or is an employee of that person.

Protected items

129

(1) A person may not be required under this Schedule to produce, disclose or permit the inspection of protected items.

(2) “Protected items” means—

(a) communications between a professional legal adviser and that adviser’s client or any person representing such a client which fall within sub-paragraph (3),

(b) communications between a professional legal adviser, that adviser’s client or any person representing such a client and any other person which fall within sub-paragraph (3) (as a result of paragraph (b) of that sub-paragraph), and

(i) are enclosed with, or referred to in, such communications,

(ii) fall within sub-paragraph (3), and

(iii) are in the possession of a person entitled to be in possession of them.

(3) A communication or item falls within this sub-paragraph if it is made—

(a) in connection with the giving of legal advice to the client, or

(b) in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings.

(4) A communication or item is not a protected item if it is held with the intention of furthering a criminal purpose.

Entry of premises under warrant

130

(1) A justice of the peace may issue a warrant under this paragraph if satisfied on information on oath given by or on behalf of the Secretary of State, the Bank or an investigator that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.

(2) The first set of conditions is—

(a) that a person on whom an information requirement has been imposed has failed (wholly or in part) to comply with it, and

(b) that on the premises specified in the warrant—

(i) there are documents which have been required, or

(ii) there is information which has been required.

(3) The second set of conditions is—

(a) that the premises specified in the warrant are premises of a CCP or a member of the same group as a CCP,

(b) that there are on the premises documents or information in relation to which an information requirement could be imposed, and

(i) it would not be complied with, or

(ii) the documents or information to which it related would be removed, tampered with or destroyed.

(4) The third set of conditions is—

(a) that an offence mentioned in paragraph 132 has been (or is being) committed by any person,

(b) that there are on the premises specified in the warrant documents or information relevant to whether that offence has been (or is being) committed,

(d) that if such a requirement were to be imposed—

(i) it would not be complied with, or

(ii) the documents or information to which it related would be removed, tampered with or destroyed.

(5) A warrant under this paragraph authorises a constable—

(a) to enter the premises specified in the warrant,

(b) to search the premises and take possession of any documents or information appearing to be documents or information of a kind in respect of which a warrant under this paragraph was issued (“the relevant kind”) or to take, in relation to any such documents or information, any such steps which may appear to be necessary for preserving them or preventing interference with them,

(d) to require any person on the premises to provide an explanation of any document or information appearing to be of the relevant kind or to state where it may be found, and

(e) to use such force as may be reasonably necessary.

(6) A warrant under this paragraph may be executed by any constable.

(7) The warrant may authorise persons to accompany any constable who is executing it.

(8) The powers in sub-paragraph (5) may be exercised by a person authorised by the warrant to accompany a constable; but that person may exercise those powers only in the company of, and under the supervision of, a constable.

(9) In England and Wales, sections 15(5) to (8) and 16(3) to (12) of the Police and Criminal Evidence Act 1984 (execution of search warrants and safeguards) apply to warrants issued under this paragraph.

(10) In Northern Ireland, Articles 17(5) to (8) and 18(3) to (12) of the Police and Criminal Evidence (Northern Ireland) Order 1989 apply to warrants issued under this paragraph.

(11) In the application of this paragraph to Northern Ireland the reference to a justice of the peace is a reference to a lay magistrate.

(12) In the application of this paragraph to Scotland—

(a) for the reference to a justice of the peace substitute references to a justice of the peace or a sheriff, and

(b) for the references to information on oath substitute references to evidence on oath.

(13) “Investigator” means an investigator appointed under paragraph 121 or 122.

(14) “Information requirement” means a requirement imposed—

(a) by the Bank under paragraph 119 or 128, or

(b) by an investigator under paragraph 125, 126 or 128.

Retention of documents obtained under paragraph 130

131

(1) Any document of which possession is taken under paragraph 130 (“a seized document”) may be retained for so long as it is necessary to retain it (rather than copies of it) in the circumstances.

(2) A person claiming to be the owner of a seized document may apply to a magistrates’ court, or in Scotland the sheriff, for an order for the delivery of the document to the person appearing to the court or sheriff to be the owner.

(3) If on an application under sub-paragraph (2) the court, or in Scotland the sheriff, cannot ascertain who is the owner of the seized document the court or sheriff (as the case may be) may make such order as the court or sheriff thinks fit.

(4) An order under sub-paragraph (2) or (3) does not affect the right of any person to take legal proceedings against any person in possession of a seized document for the recovery of the document.

(5) Any right to bring proceedings (as described in sub-paragraph (4)) may only be exercised within 6 months of the date of the order made under sub-paragraph (2) or (3).

Offences etc

132

(1) If a person other than the investigator (“the defaulter”) fails to comply with a requirement imposed on the defaulter under paragraph 125, 126 or 128, the person imposing the requirement may certify that fact in writing to the court.

(2) If the court is satisfied that the defaulter has failed without reasonable excuse to comply with the requirement, it may deal with the defaulter (and, in the case of a body corporate, any director or other officer) as if that person were in contempt.

(3) “Officer”, in relation to a limited liability partnership, means a member of the limited liability partnership.

(4) A person who knows or suspects that an investigation is being or is likely to be conducted under paragraph 121, 122 or 123 is guilty of an offence if—

(a) that person falsifies, conceals, destroys or otherwise disposes of a document which that person knows or suspects is or would be relevant to such an investigation, or

(b) that person causes or permits the falsification, concealment, destruction or disposal of such a document,

unless that person shows that that person had no intention of concealing facts disclosed by the document from the investigator.

(5) A person who, in purported compliance with a requirement imposed on that person by any relevant requirement—

(a) provides information which that person knows to be false or misleading in a material particular, or

(b) recklessly provides information which is false or misleading in a material particular,

is guilty of an offence.

(6) Any person who intentionally obstructs the exercise of any rights conferred by a warrant under paragraph 130 is guilty of an offence.

(7) A person guilty of an offence under sub-paragraph (4), (5) or (6) is liable, on summary conviction—

(a) in England and Wales, to imprisonment for a term not exceeding 3 months or a fine, or both;

(b) In Scotland and Northern Ireland, to imprisonment for a term not exceeding 3 months or a fine not exceeding level 5 on the standard scale, or both.

(8) In this paragraph—

“court” means— the High Court, in Scotland, the Court of Session;

“relevant requirement” has the meaning given in paragraph 122.

Prosecution of offences under paragraph 132

133

(1) Proceedings for an offence under paragraph 132 may be instituted—

(a) in England and Wales, only by the Bank or by or with the consent of the Director of Public Prosecutions, and

(b) in Northern Ireland, only by the Bank or by or with the consent of the Director of Public Prosecutions for Northern Ireland.

(2) In exercising its power to institute proceedings for an offence under paragraph 132, the Bank must comply with any conditions or restrictions imposed in writing by the Treasury.

(3) Conditions or restrictions may be imposed under sub-paragraph (2) in relation to proceedings generally, or such proceedings or categories of proceedings as the Treasury may direct.

Offences under paragraph 132 by bodies corporate etc

134

(1) If an offence under paragraph 132 committed by a body corporate is shown—

(a) to have been committed with the consent or connivance of an officer, or

(b) to be attributable to any neglect on the part of an officer,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, sub-paragraph (1) applies in relation to the acts and defaults of a member in connection with that member’s functions of management as if that member were a director of the body.

(3) If an offence under paragraph 132 committed by a partnership is shown—

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on the part of a partner,

the partner as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(4) In sub-paragraph (3) “partner” includes a person purporting to act as partner.

(5) “Officer” in relation to a body corporate means—

(a) a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, and

(b) an individual who is a controller of the body (and for these purposes, “controller” has the meaning given in section 422 of FSMA 2000).

(6) If an offence under paragraph 132 committed by an unincorporated association (other than a partnership) is shown—

(a) to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or

(b) to be attributable to any neglect on the part of such an officer or member,

the officer or member as well as the association is guilty of the offence and liable to be proceeded against and punished accordingly.

Injunctions to prevent failure to comply with relevant requirement

135

(1) If, on the application of the Bank, the court is satisfied that there is a reasonable likelihood that any person will contravene a relevant requirement, the court may make an order restraining, or in Scotland an interdict prohibiting, the contravention.

(2) The jurisdiction conferred by this paragraph is exercisable—

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

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

(3) In this paragraph “relevant requirement” has the meaning given in paragraph 122.

Regulatory sanctions

136

(1) If the Bank considers that a person has failed to comply with a relevant requirement imposed on the person, it may do one or more of the following—

(a) publish a statement to that effect;

(b) impose on that person a penalty, in respect of the failure, of such amount as it considers appropriate;

(c) with a view to ensuring that the failure ceases or is not repeated or the consequences of the failure are mitigated, direct that person to refrain from any conduct;

(d) prohibit that person from holding an office or position involving responsibility for taking decisions about the management of—

(i) a named CCP,

(ii) a CCP of a specified description, or

(iii) any CCP.

(2) A prohibition under sub-paragraph (1)(d)may apply—

(a) for a specified period,

(b) until further notice, or

(3) If the Bank considers that a failure by a person to comply with a relevant requirement occurred with the consent or connivance of, or was attributable to any neglect on the part of, an officer of that person, it may do one or more of the following—

(a) publish a statement to that effect;

(b) impose on that officer a penalty, in respect of the failure, of such amount as it considers appropriate;

(c) with a view to ensuring that the failure ceases or is not repeated or the consequences of the failure are mitigated, direct that person to refrain from any conduct specified in the direction.

(4) A penalty under this paragraph—

(a) must be paid to the Bank, and

(b) may be enforced by the Bank as a debt.

(5) In this paragraph “relevant requirement” has the meaning given in paragraph 122.

Determination of sanctions

137

When determining the type of sanction, and level of any penalty, to be imposed on a person under paragraph 136, the Bank must take into account all relevant circumstances, including where appropriate—

(a) the gravity and the duration of the failure,

(b) the degree of responsibility of the person,

(d) the amount of profits gained or losses avoided by the person,

(e) the losses for third parties caused by the failure,

(f) the level of co-operation of the person with the Bank,

(g) previous failures by the person, and

(h) any potential systemic consequences of the failure.

Procedure: warning notice

138

(1) If the Bank proposes to impose a sanction on a person under paragraph 136(1) or (3) it must give that person a warning notice.

(2) Section 387 of FSMA 2000 applies in relation to a warning notice given under sub-paragraph (1) and to the Bank as it applies in relation to a warning notice given under that Act and to the regulator which gave that notice, subject to sub-paragraphs (3) and (4).

(3) In complying with section 387(1)(a) of that Act, a warning notice must in particular—

(a) if it is about a proposal to publish a statement, set out the terms of the statement,

(b) if it is about a proposal to impose a penalty, specify the amount of the penalty,

(d) if it is about a proposal to impose a prohibition on holding an office or other position, specify the extent of the prohibition.

(4) For the purposes of sub-paragraph (2), section 387 of that Act has effect as if subsections (1A) and (3A) were omitted.

Procedure: decision notice

139

(1) If the Bank decides to impose a sanction on a person under paragraph 136(1) or (3) it must without delay give that person a decision notice.

(2) If the decision is to publish a statement, the decision notice must set out the terms of the statement.

(3) If the decision is to impose a penalty, the decision notice must specify the amount of the penalty.

(4) If the decision is to refrain from certain conduct, the decision notice must specify the conduct.

(5) If the decision is to impose a prohibition on holding an office or other position, the decision notice must specify the extent of the prohibition.

(6) Section 388 of FSMA 2000 applies in relation to a decision notice given under sub-paragraph (1) and the Bank as it applies in relation to a decision notice given under that Act and the regulator which gave that notice, subject to sub-paragraph (7).

(7) Section 388 of that Act has effect for the purposes of sub-paragraph (6) as if—

(a) in subsection (1)(e)(i) for “this Act” there were substituted “paragraph 141 of Schedule 11 to the Financial Services and Markets Act 2023”, and

(b) subsections (1A) and (2) were omitted.

Procedure: general

140

(1) Sections 389, 390 and 392 to 394 of FSMA 2000 apply in relation to a warning notice given under paragraph 138, a decision notice given under paragraph 139 and the Bank as they apply in relation to a warning notice or decision notice given under that Act and the regulator which gave that notice, subject to sub-paragraphs (2) to (4).

(2) Section 389 of that Act has effect as if subsection (2) were omitted.

(3) Section 390 has effect as if—

(a) in subsection (2A), in paragraph (a), for “133(6)(b)” there were substituted “133(5)(b)”,

(b) in that paragraph, for “133(6)” there were substituted “133(5)”,

(4) A final notice about a direction under paragraph 136(1)(c) or (3)(c) of Schedule 11 to the Financial Services and Markets Act 2023 or a prohibition under paragraph 136(1)(d) of that Schedule must— (a) specify the conduct to which the direction relates or the extent of the prohibition, and (b) give details of the date on which the direction or prohibition has effect.

(4) Section 392 has effect as if for paragraphs (a) and (b) there were substituted—

(a) a warning notice given under paragraph 138 of Schedule 11 to the Financial Services and Markets Act 2023; (b) a decision notice given under paragraph 139 of Schedule 11 to the Financial Services and Markets Act 2023.

Appeals

141

(1) If the Bank decides to impose a sanction on a person under paragraph 136, the person may appeal to the Upper Tribunal.

(2) The Bank may not impose a sanction while an appeal under this paragraph could be brought or is pending.

Injunctions: failure to comply with certain paragraph 136 sanctions

142

(1) If, on the application of the Bank, the court is satisfied—

(a) that there is a reasonable likelihood that there will be a compliance failure, or

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

(a) that there has been a compliance failure, and

(b) that there are steps which could be taken for remedying the failure,

the court may make an order requiring anyone 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, the court is satisfied—

(a) that there may have been a compliance failure by any person, or

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

the court may make an order restraining that person from dealing with any assets which it is satisfied the person is reasonably likely to deal with.

(4) “Compliance failure” means—

(a) a failure to comply with a direction under paragraph 136(1)(c) or (3)(c), or

(b) a breach of a prohibition imposed under paragraph 136(1)(d).

(5) The jurisdiction conferred by this paragraph is exercisable—

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

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

(6) In this paragraph—

(a) references to an order restraining anything are, in Scotland, to be read as references to an interdict prohibiting that thing,

(b) references to an order requiring steps to be taken are, in Scotland, to be read as references to an order for specific performance under section 45 of the Court of Session Act 1988,

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

Publication

143

(1) In the case of a warning notice under paragraph 138—

(a) neither the Bank nor a person to whom it is given or copied may publish the notice,

(b) a person to whom the notice is given or copied may not publish any details concerning the notice unless the Bank has published those details, and

(c) after consulting the persons to whom the notice is given or copied, the Bank may publish such information about the matter to which the notice relates as it considers appropriate.

(2) A person to whom a decision notice under paragraph 139 is given or copied may not publish the notice or any details concerning it unless the Bank has published the notice or those details.

(3) A notice of discontinuance must state that, if the person to whom the notice is given consents, the Bank may publish such information as it considers appropriate about the matter to which the discontinued proceedings related.

(4) A copy of a notice of discontinuance must be accompanied by a statement that, if the person to whom the notice is copied consents, the Bank may publish such information as it considers appropriate about the matter to which the discontinued proceedings related, so far as relevant to that person.

(5) Subject to sub-paragraph (8), where the Bank gives a decision notice it may publish such information about the matter to which the notice relates as it considers appropriate.

(6) Where the Bank publishes information under sub-paragraph (5) and the person to whom the decision notice is given refers the matter to the Upper Tribunal, the Bank must, without undue delay, publish on its website information about the status of the appeal and its outcome.

(7) Subject to sub-paragraph (8), where the Bank gives a final notice—

(a) it must, without undue delay, publish details of any sanction to which the notice relates on its website, and

(b) it may publish such other information about the matter to which the notice relates as it considers appropriate.

(8) Information about a matter to which a decision notice or a final notice relates must be published anonymously where—

(a) the sanction is imposed (or proposed to be imposed) on an individual and following an obligatory prior assessment publication of personal data is found to be disproportionate, or

(b) were it not published anonymously, publication would—

(i) jeopardise the stability of financial markets or an ongoing criminal investigation, or

(ii) cause, in so far as it can be determined, disproportionate damage to the persons involved.

(9) Where sub-paragraph (8) applies, the person publishing the information may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction is imposed.

(10) Where the Bank publishes information in accordance with sub-paragraphs (6) to (9), it must ensure the information remains on its website for at least five years, unless the information is personal data and the data protection legislation requires the information to be retained for a different period.

(11) In this paragraph—

“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

“notice of discontinuance” and “final notice” have the same meaning as in sections 389 and 390 of FSMA 2000 (which are applied (with modifications) by paragraph 140).

Co-operation

144

In connection with the exercise of its powers to impose sanctions under paragraph 136, the Bank must take such steps as it considers appropriate to co-operate with—

(a) the FCA, and

(b) any person who exercises functions outside the United Kingdom equivalent to those exercisable by the Bank under this Schedule.

PART 7 — Third-country resolution actions

Third-country resolution actions

145

(1) This paragraph applies where the Bank is notified of third-country resolution action in respect of a third-country central counterparty.

(2) The Bank must make an instrument which—

(a) recognises the action,

(b) refuses to recognise the action, or

An instrument within paragraph (a), (b) or (c) is a “third-country instrument” (as is an instrument under paragraph 146).

(3) The Bank may only make a decision under sub-paragraph (2) with the approval of the Treasury.

(4) Recognition of the action (or a part of it) may be refused only if the Bank and the Treasury are satisfied that one or more of the following conditions are satisfied—

(a) recognition would have an adverse effect on financial stability in the United Kingdom;

(b) under the third-country resolution action creditors (including in particular clearing members) located or payable in the United Kingdom would not, by reason of being located or payable in the United Kingdom, receive the same treatment as creditors who are located or payable in the country concerned and have similar legal rights;

(c) recognition of, and taking action in support of, the third-country resolution action (or the part) would have material fiscal implications for the United Kingdom;

(d) recognition would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(5) The recognition of a third-country resolution action (or any part of it) is without prejudice to any normal insolvency proceedings.

(6) In this paragraph—

“third-country central counterparty” has the meaning given by section 285 of FSMA 2000;

“third-country resolution action” means action under the law of a country or territory outside the United Kingdom to manage the failure or likely failure of a third-country central counterparty— the anticipated results of which are, in relation to a third-country central counterparty, broadly comparable to results which could have been anticipated from the exercise of a stabilisation option in relation to an entity in the United Kingdom corresponding to the third-country central counterparty, and the objectives of which are broadly comparable, in relation to the country or territory concerned, to the special resolution objectives in paragraph 15 as they apply in relation to the United Kingdom.

Effects of recognition on third-country resolution action

146

(1) This paragraph applies where an instrument under paragraph 145 recognises any third-country resolution action (or a part of it).

(2) The third-country resolution action (or part) produces the same legal effects in any part of the United Kingdom as it would have produced had it been made (with due authority) under the law of that part of the United Kingdom.

(3) For the purposes of supporting, or giving full effect to, the third-county resolution action (or the part), the Bank may exercise, in relation to a third-country central counterparty, one or more of the stabilisation options, or one or more of the stabilisation powers, available to the Bank in relation to a similar entity in the United Kingdom.

(4) But, for the purposes of exercising a power by virtue of sub-paragraph (3), provision which could otherwise be made under this Schedule in a share transfer instrument, property transfer instrument or resolution instrument may instead be made in—

(a) the instrument made under paragraph 145 recognising the third-country resolution action (or part), or

(b) a further instrument made by the Bank under this paragraph.

An instrument under paragraph (b) is a “third-country instrument” (as is an instrument under paragraph 145(2)(a), (b) or (c)).

(5) This Schedule (other than this paragraph) applies in relation to the exercise of any power by virtue of sub-paragraph (3), subject to sub-paragraphs (6) and (7) and any other necessary modifications.

(6) Paragraph 15 (special resolution objectives) has effect as if after sub-paragraph (7) there were inserted—

(7A) Objective 6 is to support third-country resolution action with a view to promoting objectives which, in relation to the country or territory concerned, correspond to Objectives 1 to 5 in relation to the United Kingdom.

(7) Paragraphs 17 to 19 do not apply.

(8) Paragraph 145(6) applies for the purposes of this paragraph.

Third-country instruments: supplementary provision

147

(1) Paragraph 47 (incidental provision) applies to a third-country instrument as it applies to a share transfer instrument.

(2) Paragraph 48 (procedure: instruments) applies to a third-country instrument as it applies to a share transfer instrument, except that references in that paragraph to the CCP are to be read as references to the third-country central counterparty to which the third-country instrument relates.

(3) Paragraph 109 (international obligation notice: general) applies in relation to the making of a third-country instrument under paragraph 145 or 146 as it applies in relation to the exercise of a stabilisation power, except that—

(a) for the purposes of paragraph 109(3), paragraph 15 is to be read subject to the modification in paragraph 146(6), and

(b) in sub-paragraph (4), the reference to a CCP is to be read as a reference to a third-country central counterparty in respect of which a third-country instrument is made.

(4) Paragraph 110 (international obligation notice: bridge central counterparty) applies where the Bank has, by virtue of paragraph 146, transferred all or part of the business of a third-country central counterparty to a bridge central counterparty as it applies where the Bank has transferred all or part of the business of a CCP to a bridge central counterparty.

(5) Paragraph 145(6) applies for the purposes of this paragraph.

PART 8 — General

Information

148

(1) The Bank may disclose information that it thinks relevant to the financial stability of—

(a) individual CCPs, or

(b) one or more aspects of the UK financial system.

(2) Information about the business or other affairs of a specified or identifiable person may be disclosed under sub-paragraph (1) only to—

(a) the Treasury;

(b) the FCA;

(d) the Payment Systems Regulator (established under section 40 of the Financial Services (Banking Reform) Act 2013);

(e) an authority in a country or territory outside the United Kingdom which exercises functions similar to those of the Treasury, the Bank, the PRA or the FCA in relation to financial stability.

(3) Except as provided by sub-paragraph (4), the disclosure of information under this paragraph does not breach—

(a) any obligation of confidence owed by the person making the disclosure, or

(b) any other restriction on the disclosure of information (however imposed).

(4) This paragraph does not authorise a disclosure of information if the disclosure would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account the duties imposed by this paragraph).

(5) In this paragraph “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

Restrictions on disclosure of confidential information

149

(1) Sections 348, 349, 352 and 353 of FSMA 2000 (disclosure of information) apply for the purposes of this Schedule with the following modifications.

(2) Section 348 of that Act has effect as if —

(a) in subsection (2)(b), after “Act” there were inserted “or of the Bank of England under Schedule 11 to the Financial Services and Markets Act 2023”,

(b) in subsection (3)(a), at the end there were inserted “or the Financial Services and Markets Act 2023”,

(i) after paragraph (c) there were inserted—

(ca) a person appointed to make a report under paragraph 120 of Schedule 11 to the Financial Services and Markets Act 2023 (reports by skilled persons); (cb) a person appointed to act as a temporary manager under paragraph 6 of Schedule 11 to the Financial Services and Markets Act 2023,

(ii) in paragraph (e) for “to (c)” there were substituted “to (cb)”, and

(d) after subsection (6)(b) there were inserted—

(c) a competent person appointed by the Bank of England under Part 6 of Schedule 11 to the Financial Services and Markets Act 2023.

(3) Section 349 of that Act has effect as if, in subsection (2)(c), for “or the PRA” there were substituted “the PRA or the Bank of England”.

(4) Section 353 of that Act has effect as if in subsection (1)—

(a) in paragraph (a)—

(i) after “under this Act” there were inserted “or the Financial Services and Markets Act 2023”, and

(ii) for “it” there were substituted “those Acts”;

(b) in paragraph (b) after “to the” there were inserted “Bank of England, the”.

Remedies on judicial review

150

(1) Where an application is made for judicial review of a decision of the Bank to exercise the stabilisation powers in relation to a CCP or CCP group company (“relevant proceedings”)—

(a) a ruling by the court that the decision is unlawful does not affect a relevant transfer or a relevant provision in a stabilisation instrument made by the Bank pursuant to that decision, and

(b) the court may not quash any provision in a stabilisation instrument made by the Bank if that provision makes a relevant transfer or a relevant provision.

(2) For the purposes of sub-paragraph (1)—

(a) “stabilisation instrument” means—

(i) a share transfer instrument,

(ii) a property transfer instrument, or

(iii) a resolution instrument;

(b) a “relevant provision” in a stabilisation instrument means—

(i) in relation to a tear-up instrument, provision under paragraph 31(2),

(ii) in relation to a cash call instrument, provision under paragraph 32(2),

(iii) in relation to a variation instrument, provision under paragraph 33(2),

(iv) in relation to a write-down instrument, provision under paragraph 34(2) or 35, and

(v) in relation to an instrument of control, provision under paragraph 38(2);

(i) property, rights or liabilities of the CCP or CCP group company, or of a bridge central counterparty, or

(ii) securities issued by the CCP, or CCP group company, or of a bridge central counterparty.

(3) Sub-paragraph (1) does not affect the power of the court, subject to section 244 of the Banking Act 2009 (immunity), to award damages as a remedy in relevant proceedings.

Giving of notices, documents etc under this Schedule

151

Regulations under section 414 of FSMA 2000 (service of notices), and subsection (4) of that section, apply in relation to any notice, direction or document of any kind required to be given under any provision of this Schedule (however that requirement is expressed) as if those provisions were provisions of that Act.

“Financial assistance”

152

(1) In this Schedule “financial assistance” includes giving guarantees or indemnities and any other kind of financial assistance (actual or contingent).

(2) The Treasury may by regulations provide that a specified activity or transaction, or class of activity or transaction, is to be or not to be treated as financial assistance for a specified purpose of this Schedule; and sub-paragraph (1) is subject to this sub-paragraph.

(3) Regulations under this paragraph are subject to the negative procedure.

Modifications to the law

153

(1) The Treasury may by regulations modify the law for the purpose of enabling the powers under this Schedule to be used effectively, having regard to the special resolution objectives.

(2) Regulations may be made—

(a) for the general purpose of the exercise of powers under this Schedule,

(b) to facilitate a particular proposed or possible use of a power, or

(3) Regulations under sub-paragraph (2)(c) may make provision which has retrospective effect in so far as the Treasury consider it necessary or desirable for giving effect to the particular exercise of a power under this Schedule in connection with which the regulations are made (but in relying on this sub-paragraph the Treasury must have regard to the fact that it is in the public interest to avoid retrospective legislation).

(4) In sub-paragraph (1) “modify the law” means—

(a) disapply or modify the effect of a provision of an enactment (other than a provision made by or under this Act),

(b) disapply or modify the effect of a rule of law not set out in legislation, or

(5) Specific powers under this Schedule are without prejudice to the generality of this paragraph.

(6) Regulations under this paragraph are—

(a) subject to the affirmative procedure, or

(b) if the Treasury consider it necessary for the regulations to come into force without delay, subject to the made affirmative procedure.

(7) Where regulations under this paragraph are subject to the made affirmative procedure the statutory instrument containing the regulations must be laid before Parliament after being made.

(8) Regulations contained in a statutory instrument laid before Parliament under sub-paragraph (7) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.

(9) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—

(a) Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than four days.

(10) If regulations cease to have effect as a result of sub-paragraph (8), that does not—

(a) affect the validity of anything previously done under the regulations, or

(b) prevent the making of new regulations.

Interpretation

154

In this Schedule—

“Bank” means the Bank of England;

“bridge central counterparty” has the meaning given by paragraph 29(1);

“cash call instrument” has the meaning given by paragraph 32;

“CCP” means a recognised central counterparty (see paragraph 155);

“CCP group company” has the meaning given by paragraph 156;

“central counterparty” means a body corporate or an unincorporated association which interposes itself between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer;

“clearing member” has the meaning given in Article 2 of EMIR and, unless otherwise provided, includes an interoperable CCP;

“clearing” and “clearing services”, in relation to a CCP, have the meaning given by section 313 of FSMA 2000;

“critical clearing services” means clearing services the withdrawal of which the Bank considers may threaten the stability of the UK financial system;

“director” includes, in relation to a CCP which has no board of directors, a member of the equivalent management body responsible for the management of the CCP concerned;

“EMIR” means Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories;

“employee” includes the holder of an office;

“extraordinary public financial support” means financial assistance that is provided by the Treasury or the Bank in order to preserve or restore the viability, liquidity or solvency of a CCP, a CCP group company or a group which includes a CCP, other than— ordinary market assistance offered by the Bank on its usual terms, or a liquidity facility which is provided— to a CCP that is facing temporary liquidity problems but is solvent, and by the Bank on its own initiative and on its own terms;

“financial assistance” has the meaning given by paragraph 152;

“group” has the meaning given by section 474 of the Companies Act 2006;

“instrument of control” has the meaning given by paragraph 38;

“interoperable CCP” means a CCP with which an interoperability arrangement (within the meaning of Article 2 of EMIR) has been established;

“parent” means a parent undertaking within the meaning given by section 1162 of the Companies Act 2006;

“partial property transfer” has the meaning given by paragraph 75(1);

“PRA-authorised person” has the meaning given by section 2B(5) of FSMA 2000;

“recognition requirements” means the requirements resulting from section 286 of FSMA 2000;

“resolution instrument” has the meaning given by paragraph 79;

“securities” has the meaning given by paragraph 40;

“service contract” has the meaning given by section 227 of the Companies Act 2006;

“senior manager”, in relation to a CCP, means a person who— exercises executive functions within that CCP, and is responsible, and directly accountable to the directors, for the day to day management of that CCP;

“special resolution objectives” means the objectives set out in paragraph 15;

“stabilisation instrument” has the meaning given by paragraph 84;

“stabilisation options” means the options described in paragraph 1(3);

“stabilisation powers” means the powers described in paragraph 1(4);

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.