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

(g) writing down liabilities (paragraphs 34 and 35), and

(h) taking control of the CCP (paragraph 38).

(4) The stabilisation options are achieved through the exercise of one or more of the “stabilisation powers” which are—

(a) the share transfer powers (paragraphs 41 and 49 to 53),

(b) the property transfer powers (paragraphs 54 and 67 to 74), and

(5) Each of the following has a role in the operation of the special resolution regime—

(a) the Bank,

(b) the Treasury,

(d) the FCA.

(6) Other Parts of this Schedule deal with the following matters—

(a) powers and requirements in relation to CCPs which are exercisable by the Bank in advance of reliance on the special resolution regime (see Parts 2 to 4);

(b) powers relating to information, investigation and enforcement in relation to requirements under this Schedule (see Part 6);

(d) other general provision, financial provision and consequential amendments (see Parts 8 to 10).

PART 2 — Pre-resolution powers of the Bank of England

Removal of impediments to the exercise of stabilisation powers etc

2

(1) The Bank may give directions to a CCP to take measures which the Bank considers are required to address impediments to the effective exercise of the stabilisation powers.

(2) The power conferred by sub-paragraph (1) includes (but is not limited to) a power to direct the CCP—

(a) to enter into or revise an agreement for the provision of services relating to the provision of critical clearing services;

(b) to limit its maximum individual and aggregate exposures to loss;

(c) to produce information which is relevant to the exercise of the stabilisation powers, and to provide that information to the Bank;

(d) to dispose of specified assets;

(e) to cease carrying out specified activities, or observe restrictions in relation to the carrying out of specified activities;

(f) to cease the development of new or existing business operations, or observe restrictions in relation to the development of such operations;

(g) to make specified changes to its recovery plan, rules or contractual arrangements;

(h) in order to ensure that it is possible for the performance of critical clearing services to be legally or operationally separated from the performance of other functions—

(i) to change its legal or operational structure, or

(ii) so far as it is able to do so, to change the legal or operational structure of a subsidiary;

(i) to change its operational and financial arrangements so as to separate specified classes of assets from other specified classes of assets;

(j) to restrict netting sets in relation to specified classes of assets;

(k) to establish a parent company in the United Kingdom.

(3) Where a CCP is a subsidiary of a company incorporated in the United Kingdom, the Bank may give directions to its parent company requiring the parent company to establish a separate holding company as a parent of the subsidiary for the purpose of—

(a) facilitating the exercise of the stabilisation powers, or

(b) ensuring that the exercise of a stabilisation power does not have an adverse effect on any other entities in the group.

(4) Before giving directions under this paragraph the Bank must have regard to the potential impact of the direction on—

(a) the CCP or entity in question,

(b) the market for financial services within the United Kingdom, and

(5) Where the CCP in question is a PRA-authorised person, the Bank must consult the PRA before giving directions under this paragraph.

(6) Directions under this paragraph—

(a) must be in writing,

(b) may be given with general effect or with respect to a particular CCP or class of CCPs, and

(7) Nothing in this paragraph limits the powers of the Bank under section 296 or 296A of, or paragraph 9B of Schedule 17A to, FSMA 2000.

(8) In this paragraph, “recovery plan” in relation to a CCP, means a plan required under paragraph 29B of the Schedule to the Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges, Clearing Houses and Central Securities Depositories) Regulations 2001 (S.I. 2001/995).

Safeguards relating to directions under paragraph 2

3

(1) A direction given to a relevant person under paragraph 2 must be accompanied by a notice which—

(a) states when the direction takes effect (see sub-paragraphs (2) and (3)),

(b) gives the Bank’s reasons for giving the direction, and

(2) The direction may, if the Bank considers it necessary, take effect—

(a) immediately it is given to the relevant person, or

(b) on a later date specified in the direction.

(3) In any other case the direction takes effect when—

(a) it has been confirmed by a notice under sub-paragraph (5), and

(b) the period during which the direction may be referred to the Upper Tribunal (under sub-paragraph (6)) has expired and, if the matter was so referred, the reference and any appeal against the Tribunal’s determination, has been finally disposed of.

(4) Where representations are made by the relevant person within the period specified under sub-paragraph (1)(c), the Bank must, within a reasonable period, consider those representations and decide—

(a) whether to confirm or revoke the direction, and

(b) if the direction is revoked, whether to give a different direction.

(5) The Bank must—

(a) if no representations are made within that specified period, give the relevant person written notice that the direction is confirmed, and

(b) if representations are made, give the relevant person written notice of its decision under sub-paragraph (4).

(6) If the relevant person is aggrieved by the confirmation of the direction, the person may refer the matter to the Upper Tribunal.

(7) A notice under sub-paragraph (5)(a) or (b) confirming the direction must—

(a) inform the relevant person of the right to refer the matter to the Upper Tribunal, and

(b) indicate the procedure on such a reference.

(8) A notice given under sub-paragraph (5)(b) of a decision by the Bank to give a different direction must comply with sub-paragraph (1).

(9) The Bank must prepare and publish a statement of its policy with respect to the giving of directions under paragraph 2.

(10) The Bank may alter or replace a statement of policy published under this paragraph.

(11) The Bank must publish a statement as altered or replaced under sub-paragraph (10).

(12) No directions may be given under paragraph 2 before the statement of policy under sub-paragraph (9) has been published.

(13) In this paragraph “relevant person” means—

(a) a CCP, or

(b) a parent of a CCP.

PART 3 — Resolution plans

Resolution plans

4

(1) The Treasury may by regulations make provision requiring the Bank to create and maintain a resolution plan for each CCP.

(2) The following are examples of provision that regulations under sub-paragraph (1) may make—

(a) provision specifying the information that must be contained in a resolution plan (including provision enabling the Bank to specify such information);

(b) provision requiring CCPs to give specified information to the Bank for the purpose of the Bank creating and maintaining a resolution plan (including provision enabling the Bank to specify the way in which such information is to be given);

(d) provision requiring the Bank to review resolution plans at specified intervals;

(e) provision requiring the Bank to provide specified information relating to a review to specified persons;

(f) provision requiring the Bank to give specified persons a copy of the resolution plan and any revised plans (including provision about the way in which a copy of a plan is to be given).

(3) Regulations under this paragraph may provide for exemptions.

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

(5) In this paragraph “resolution plan”, in relation to a CCP, means a document setting out the actions that the Bank proposes to take in the event that the CCP meets the conditions under paragraph 17 for the exercise of the stabilisation powers.

PART 4 — Removal of directors and senior managers

Removal of directors and senior managers

5

(1) If the Bank is satisfied that the conditions in paragraph 7(1) and (2) are met in relation to a CCP, the Bank may require the CCP to remove—

(a) any person who is a director of the CCP;

(b) any person who is a senior manager of the CCP.

(2) If the Bank imposes a requirement under sub-paragraph (1), the Bank may also require the CCP—

(a) to replace a director or senior manager who has been removed, and

(b) to take any step needed to give effect to the replacement, including, where necessary, calling a general meeting of the CCP’s shareholders or, if the CCP is an unincorporated association, its members.

(3) If the Bank is satisfied that the condition in paragraph 7(5) is met in relation to a person who is a director of a CCP, the Bank may require that CCP to remove that person from the board of directors.

(4) Nothing in this Schedule affects the powers under Article 31 of EMIR or paragraphs 45 and 58.

Procedure: warning notice

6

(1) If the Bank is satisfied that the conditions in paragraph 7(1), (2) and (4) are met in relation to a CCP, the Bank may appoint a person to act (or more than one persons to act jointly) as a temporary manager of that CCP.

(2) A temporary manager may be appointed under sub-paragraph (1)—

(a) to replace the directors of a CCP where they have been removed in compliance with a requirement imposed under paragraph 5, or

(b) to work with the directors of a CCP.

(3) A temporary manager has the functions specified in the instrument of appointment (see paragraph 9).

(4) The functions which may be specified include (amongst other things)—

(a) ascertaining the financial position of the CCP;

(b) managing the business or part of the business of the CCP in order to preserve or restore the financial position of the CCP;

(d) any functions of the directors.

(5) The temporary manager may, with the consent of the Bank—

(a) require the directors to call a general meeting of the shareholders, or in the case of an unincorporated association, the members of the CCP, or

(b) in the case where all of the directors have been removed in compliance with a requirement imposed under paragraph 5, call a general meeting of the shareholders of the CCP or, if the CCP is an unincorporated association, the members of the CCP.

(6) The temporary manager may propose business for consideration at the general meeting.

(7) If the temporary manager is being appointed to work with the directors, the Bank—

(a) may require the directors not to exercise specified functions during the period of appointment;

(b) may require the directors to consult the temporary manager, or obtain the consent of the temporary manager, before taking such decisions or actions as may be specified in the requirement.

Paragraphs 5 and 6: conditions

7

(1) The condition in this sub-paragraph is met if—

(a) there is a significant deterioration in the financial situation of the CCP, or

(b) there is a serious infringement by the CCP of—

(i) a relevant requirement, or

(ii) its rules.

(2) The condition in this sub-paragraph is met if it is not reasonably likely that the deterioration would be reversed or the infringement would be brought to an end by any measure which could be taken by the Bank under the provisions listed in sub-paragraph (3).

(3) The provisions mentioned in sub-paragraph (2) are—

(a) section 296 or 296A of FSMA 2000 (power to direct CCPs);

(b) paragraph 13 (power to impose stay on distributions).

(4) The condition in this sub-paragraph is met if the imposition of one or more requirements under paragraph 5 (removal and replacement of directors and senior managers) would not be sufficient to reverse the deterioration or bring the infringement to an end.

(5) The condition in this sub-paragraph is met in relation to a director of a CCP, if the director—

(a) is no longer of sufficiently good repute to perform their duties,

(b) no longer possesses sufficient knowledge, skills, experience, honesty, integrity or independence of mind to perform their duties, or

(6) For the purposes of this paragraph—

(a) “relevant requirement” means a requirement imposed by or under—

(i) FSMA 2000;

(ii) EMIR;

(iii) another enactment (or provision of an enactment) specified in regulations made by the Treasury;

(b) a deterioration in the financial situation of a CCP is significant if the deterioration places the CCP at risk of meeting condition 1 under paragraph 17.

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

Temporary manager: further provisions in relation to the appointment

8

(1) Before appointing a person to act as a temporary manager, the Bank must be satisfied that the person—

(a) has the qualifications, ability and knowledge to carry out the functions to be given to the temporary manager, and

(b) would not be subject to a conflict of interest as a result of the appointment.

(2) A person may not be appointed to act as a temporary manager for a period longer than one year, but is eligible for re-appointment (or further re-appointment) if paragraph 6(1) continues to apply in relation to the CCP.

(3) The Bank may vary the terms of the appointment of a temporary manager, or remove the temporary manager, at any time.

(4) A temporary manager is not liable for damages in respect of anything done in good faith for the purposes of or in connection with the functions of the appointment (subject to section 8 of the Human Rights Act 1998).

Temporary manager: instrument of appointment

9

(1) The power in paragraph 6(1) is to be exercised by an instrument of appointment.

(2) The instrument of appointment must—

(a) specify the functions of the temporary manager,

(b) specify the date on which the appointment of the temporary manager has effect,

(d) make provision for the resignation and replacement of the person who is appointed as the temporary manager.

(3) The instrument of appointment may—

(a) require the temporary manager to consult the Bank or other specified person before exercising specified functions,

(b) specify particular matters on which the Bank or other specified person must be consulted, and

(c) provide that the temporary manager is not to exercise specified functions without the consent of the Bank or other specified person.

(4) The instrument of appointment may require the temporary manager to make reports to the Bank, at specified times or intervals, on—

(a) the financial position of the CCP,

(b) the actions taken by the temporary manager during the course of the temporary manager‘s appointment, and

(5) The instrument of appointment may provide for the payment of remuneration and allowances to a temporary manager.

(6) Provision under sub-paragraph (5) may provide that the amounts are—

(a) to be paid by the Bank, or

(b) to be determined by the Bank and paid by the CCP.

(7) If a temporary manager—

(a) is appointed to replace the directors of the CCP, or

(b) is appointed to work with the directors of the CCP and has the power to represent the CCP,

the Bank must publish the instrument of appointment on its website.

Right to refer matters to the Tribunal

10

(1) A CCP which is aggrieved by one of the following may refer the matter to the Tribunal—

(a) the imposition of a requirement on that CCP under paragraph 5, or

(b) the appointment, or the terms of the appointment, of a person to act as a temporary manager of that CCP under paragraph 6.

(2) A director or senior manager (or a former director or senior manager) of a CCP who is aggrieved by the imposition of a requirement on that CCP under paragraph 5 may refer the matter to the Tribunal.

(3) A director (or a former director) of a CCP who is aggrieved by the imposition of a requirement on that director under paragraph 6(7) may refer the matter to the Tribunal.

Removal of directors and senior managers and appointment of temporary manager: procedure

11

(1) A requirement under paragraph 5 or 6(7) or the appointment of a temporary manager under paragraph 6(1) may be expressed to take effect immediately or on a specified date only if the Bank, having regard to the grounds for imposing the requirement or making the appointment, reasonably considers that it is necessary for the requirement or the appointment to take effect immediately or on that date.

(2) If the Bank proposes to impose a requirement on a CCP under paragraph 5 or imposes such a requirement with immediate effect, it must give written notice—

(a) to that CCP, and

(b) to each of the directors or senior managers to whom the requirement relates.

(3) If the Bank—

(a) proposes to appoint a person to act as a temporary manager under paragraph 6 or to vary the terms on which such a person is appointed, or

(b) makes such an appointment or variation with immediate effect,

the Bank must give written notice to the CCP.

(4) If the Bank proposes to impose a requirement on the directors under paragraph 6(7), or imposes such a requirement with immediate effect, the Bank must give written notice to each director.

(5) If, having considered any representations made by a person to whom notice (the “original notice”) has been given (see paragraph 12), the Bank decides—

(a) to impose the requirement, make the appointment or vary the terms of an appointment in accordance with the original notice, or

(b) not to rescind the imposition of any such requirement or the making of any such appointment or variation which has already taken effect,

the Bank must give written notice to each person to whom the original notice was given.

(6) A written notice under sub-paragraph (5) must inform the person to whom it is given of the right of that person to refer the matter to the Tribunal and give an indication of the procedure on such a reference.

(7) If, having considered any representations made by a person to whom the original notice has been given (see paragraph 12), the Bank decides—

(a) to impose a requirement, make an appointment or vary the terms of an appointment in a way that is different from the requirement, appointment or variation described in the original notice,

(b) not to impose the requirement, make the appointment or vary the terms of an appointment in accordance with the original notice, or

(c) to rescind the imposition of any such requirement, or the making of any such appointment or variation that has already taken effect,

the Bank must give written notice to each person to whom the original notice was given.

Removal of directors and senior managers and appointment of temporary manager: notice requirements

12

(1) A notice under paragraph 11(2) must—

(a) give details of the requirement,

(b) identify each of the directors or senior managers to whom the requirement relates (“the interested parties”),

(i) in the case of a notice given to the CCP, in relation to each interested party;

(ii) in the case of a notice given to an interested party, in relation to that interested party,

(d) inform the CCP and the interested parties that each of them may make representations to the Bank within such period as may be specified in the notice (whether or not the matter has been referred to the Tribunal),

(e) state when the requirement takes effect, and

(f) inform the CCP and each of the interested parties of their right to refer the matter to the Tribunal.

(2) A notice given under paragraph 11(3) must—

(a) state when the appointment or variation takes effect, and be accompanied by the instrument, or revised instrument, of appointment,

(b) give the Bank’s reasons for making the appointment or variation,

(c) inform the CCP that it may make representations to the Bank within such period as may be specified in the notice (whether or not the matter has been referred to the Tribunal), and

(d) inform the CCP of its right to refer the matter to the Tribunal.

(3) A notice given under paragraph 11(4) must—

(a) give details of the requirement,

(b) give the Bank’s reasons for imposing the requirement,

(d) inform the director that the director may make representations to the Bank within such period as may be specified in the notice (whether or not the matter has been referred to the Tribunal), and

(e) inform the director of the director’s right to refer the matter to the Tribunal.

(4) The Bank may extend the period allowed by the notice given under paragraph 11(2), (3) or (4) for making representations.

(5) A notice under paragraph 11(7)(a) about the imposition of a requirement under paragraph 5 must comply with sub-paragraph (1).

(6) A notice under paragraph 11(7)(a) about the appointment of a person as a temporary manager or the variation of the terms of the appointment of a person as a temporary manager must comply with sub-paragraph (2).

(7) A notice under paragraph 11(7)(a) about the imposition of a requirement under paragraph 6(7) must comply with sub-paragraph (3).

(8) In this paragraph, any reference to “appointment” includes re-appointment.

Temporary restriction on remuneration

13

(1) The Bank may by direction restrict or prohibit for a specified period discretionary payments to specified employees of a CCP or specified shareholders of a CCP.

(2) The power under sub-paragraph (1) may be exercised only if—

(a) a stabilisation power is not being exercised in relation to the CCP,

(b) at least one of the conditions in sub-paragraph (3) is met, and

(3) The conditions in this sub-paragraph are—

(a) there is or is likely soon to be a significant deterioration in the financial situation of the CCP (within the meaning given by paragraph 7(6));

(b) there is a material risk of a threat to the ability of the CCP to maintain critical clearing services;

(d) the operation of the CCP poses a risk to the financial stability of the United Kingdom.

(4) The condition in this sub-paragraph is that the exercise of the power is necessary or desirable having regard to the public interest in—

(a) the stability of the UK financial system, or

(b) the continuity of critical clearing services.

(5) The Bank must prepare and publish a statement of its policy with respect to the giving of directions under this paragraph.

(6) The Bank may alter or replace a statement of policy published under this paragraph.

(7) The Bank must publish a statement as altered or replaced under sub-paragraph (6).

(8) No directions may be given under this paragraph before the statement of policy under sub-paragraph (5) has been published.

(9) The specified period for the purposes of sub-paragraph (1) must not exceed 5 years.

(10) Directions under this paragraph—

(a) must be given in writing to the employees or shareholders that the directions apply to;

(b) may be varied or revoked.

(11) In this paragraph “discretionary payments” means payments, made otherwise than under a contractual obligation, of any of the following—

(a) equity remuneration;

(b) dividend payments;

(d) variable remuneration including, where an employee is a senior manager, bonuses, discretionary pension benefits and severance payments.

Restriction on remuneration: review and revocation

14

(1) This paragraph applies where a direction has been given under paragraph 13(1) in relation to a CCP.

(2) The Bank must, at least once every 3 months after giving the direction, carry out a review of whether the requirements for the exercise of the power continue to be met.

(3) If at any time the Bank becomes aware that the requirements for the exercise of the power cease to be met, the Bank must revoke the direction with immediate effect.

(4) The direction ceases to have effect if a stabilisation power is exercised in respect of the CCP.

PART 5 — Special resolution action

Special resolution objectives

15

(1) This paragraph sets out the special resolution objectives.

(2) The Bank must have regard to the special resolution objectives in using, or considering the use of, the stabilisation powers.

(3) Objective 1 is to protect and enhance the stability of the UK financial system, including in particular by—

(a) preventing contagion (including contagion to market infrastructures), and

(b) maintaining market discipline.

(4) Objective 2 is to protect and enhance public confidence in the stability of the UK financial system.

(5) Objective 3 is to maintain the continuity of central counterparty clearing services.

(6) Objective 4 is to protect public funds.

(7) Objective 5 is to avoid interfering with property rights in contravention of a Convention right (within the meaning of the Human Rights Act 1998).

(8) The order in which the objectives are listed in this paragraph is not significant; they are to be balanced as appropriate in each case.

(9) In this paragraph, “market infrastructures” include recognised investment exchanges, recognised clearing houses and recognised CSDs, within the meaning of section 285 of FSMA 2000.

Code of Practice

16

(1) The Treasury must issue a code of practice about the use of the stabilisation powers.

(2) The code may, in particular, provide guidance on—

(a) how the special resolution objectives are to be understood and achieved,

(b) the choice between different options,

(d) how to determine whether Condition 2 in paragraph 17 is met,

(e) how to determine whether the test for the use of stabilisation powers under paragraph 19 is satisfied,

(f) paragraphs 89 and 92, and

(g) compensation, including how the Treasury intend to satisfy the requirement under paragraph 87(3).

(3) See also paragraph 29 which requires the inclusion in the code of certain matters about bridge central counterparties.

(4) The Treasury may revise and re-issue the code of practice.

(5) Before issuing or re-issuing the code of practice the Treasury must consult the Bank, the FCA and the PRA.

(6) The Bank must have regard to the code of practice.

(7) As soon as is reasonably practicable after issuing or re-issuing the code of practice the Treasury must lay a copy before Parliament.

General conditions

17

(1) A stabilisation power may be exercised in respect of a CCP only if the Bank is satisfied that each of the following conditions is met.

(2) Condition 1 is that the CCP is failing or likely to fail.

(3) Condition 2 is that—

(a) having regard to timing and other relevant circumstances, it is not reasonably likely that (ignoring the stabilisation powers) action will be taken by or in respect of the CCP that will result in Condition 1 ceasing to be met, or

(b) in the Bank’s assessment, the action that may be taken by or in respect of the CCP for the purpose of ensuring that Condition 1 is no longer met might have an adverse impact on the stability of the UK financial system.

(4) Condition 3 is that the exercise of the power is necessary having regard to the public interest in the advancement of one or more of the special resolution objectives.

(5) Condition 4 is that one or more of the special resolution objectives would not be met to the same extent by the winding up of the CCP.

(6) For the purposes of Condition 1, a CCP is failing or likely to fail if one or more of the following apply—

(a) the CCP is failing or is likely to fail to meet the recognition requirements (within the meaning of section 286 of FSMA 2000);

(b) the value of the assets of the CCP is less than the amount of its liabilities;

(d) any of paragraphs (a) to (c) will, in the near future, apply to the CCP;

(e) extraordinary public financial support is required in respect of the CCP and sub-paragraph (9) does not apply to that support.

(7) The Bank may treat Condition 1 as met if satisfied that it would be met but for the withdrawal or possible withdrawal of critical clearing services by the CCP.

(8) The Bank must treat Conditions 1 and 2(a) as met if satisfied that those conditions would be met but for financial assistance provided by—

(a) the Treasury, or

(b) the Bank (disregarding ordinary market assistance offered by the Bank on its usual terms).

(9) This sub-paragraph applies where, in order to remedy a serious disturbance in the economy of the United Kingdom and preserve financial stability, the extraordinary public financial support takes either of the following forms—

(a) a State guarantee to back liquidity facilities provided by the Bank, or

(b) a State guarantee of newly issued liabilities.

(10) Before determining that Conditions 2, 3 and 4 are met the Bank must consult—

(a) if the CCP is a PRA-authorised person, the PRA,

(b) the FCA, and

Effect on other group members

18

Where the Bank is considering the exercise of a stabilisation power in respect of a CCP which is a member of a group, the Bank must have regard to—

(a) the need to minimise the effect of the exercise of the power on other undertakings in the same group, and

(b) the potential effect of the exercise of the power on the financial stability of countries other than the United Kingdom (particularly those countries in which any member of that group is operating).

Specific conditions: financial assistance cases

19

(1) In a financial assistance case, the Bank may exercise a stabilisation power in respect of the CCP concerned in accordance with paragraph 27, 29 or 30 only if satisfied that the condition in sub-paragraph (3) is met.

(2) “Financial assistance case” means a case where the Treasury notify the Bank that they have provided financial assistance in respect of a CCP for the purpose of resolving or reducing a serious threat to the stability of the UK financial system.

(3) The condition is that—

(a) the Treasury have given a recommendation to the Bank to exercise the stabilisation power on the grounds that it is necessary in order to protect the public interest, and

(b) the Bank considers that the exercise of the stabilisation power is an appropriate way to provide that protection.

(4) The condition in this paragraph is in addition to the conditions in paragraph 17.

National Loans Fund

20

(1) The Treasury must make arrangements for a panel to advise the Treasury about the effect of the special resolution regime on—

(a) CCPs,

(b) persons with whom CCPs do business, and

(2) In particular, the panel may advise the Treasury about—

(a) the exercise of powers to make statutory instruments under or by virtue of this Schedule, (excluding the stabilisation powers and regulations under paragraphs 87 and 153),

(b) the code of practice under paragraph 16, and

(3) The Treasury must ensure that the panel includes—

(a) a member appointed by the Treasury,

(b) a member appointed by the Bank,

(d) a member appointed by the FCA,

(e) one or more persons who in the Treasury’s opinion represent the interests of CCPs,

(f) one or more persons who in the Treasury’s opinion represent the interests of clearing members of CCPs,

(g) one or more persons who in the Treasury’s opinion have expertise in law relating to the UK financial system, and

(h) one or more persons who in the Treasury’s opinion have expertise in insolvency law and practice.

Restrictions on use of certain resolution powers

21

(1) Where the Bank has exercised the first stabilisation option (private sector purchaser) in respect of a CCP it may only exercise the relevant resolution powers in relation to the residual CCP.

(2) Where the Bank has exercised the third stabilisation option (transfer of ownership) in respect of a CCP it may only exercise the relevant resolution powers in respect of the CCP where the transferee under paragraph 30 is—

(a) the Bank,

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

(3) In this paragraph—

“relevant resolution powers” means any of the resolution powers under paragraphs 27 to 38;

the “residual CCP” means the CCP all or part of whose business has been transferred in accordance with paragraph 27(2).

Pre-resolution valuation

22

(1) Before the Bank exercises a stabilisation power in respect of a CCP, it must ensure that the assets and liabilities of the CCP are valued.

(2) The purpose of a valuation carried out under sub-paragraph (1) is to—

(a) inform the decision as to—

(i) whether the conditions for the exercise of a stabilisation power are satisfied,

(ii) which stabilisation option should be employed,

(iii) the extent to which any liabilities should be cancelled, modified, converted or deferred through the use of a write-down instrument,

(iv) the extent to which any securities should be cancelled, diluted, modified, converted or deferred through the use of a write-down instrument,

(v) what assets, liabilities or securities (if any) are to be transferred by a property transfer instrument, share transfer instrument or write-down instrument, and

(vi) the value of any consideration to be paid to the CCP or the owners of the securities for any assets, liabilities or securities so transferred, and

(b) ensure that the full extent of any losses on the assets of that CCP are appreciated at the time that the Bank exercises a stabilisation power.

(3) Unless sub-paragraph (4) applies, the Bank must arrange for the appointment of an independent valuer in accordance with paragraph 24 to carry out a valuation for the purposes of sub-paragraph (1).

(4) Where the Bank considers that the urgency of the case makes it appropriate to exercise the stabilisation power before a valuation can be carried out by a person appointed in accordance with sub-paragraph (3), the Bank may carry out a provisional valuation of the assets and liabilities of the CCP for the purposes of sub-paragraph (1).

(5) In carrying out a valuation required under sub-paragraph (1), the person carrying out the valuation must—

(a) make prudent assumptions as to possible rates of default and the severity of losses suffered by the CCP,

(b) disregard potential financial assistance which may be provided by the Bank or the Treasury after the Bank has exercised the stabilisation power (except for ordinary market assistance offered by the Bank on its usual terms),

(c) take account of the fact that the Bank and the Treasury may charge interest or fees in respect of any loans or guarantees provided to the CCP after the Bank has exercised the stabilisation power,

(d) apply any relevant methodology specified in regulations made under this paragraph.

(6) A provisional valuation carried out under sub-paragraph (4) must in particular make provision in respect of additional losses by the CCP in accordance with any regulations made under this paragraph.

(7) A valuation under sub-paragraph (1) must be accompanied by—

(a) a balance sheet of the CCP as at the date of the valuation,

(b) a report on the financial position of the CCP,

(d) a list of the outstanding liabilities of the CCP (including any off-balance sheet liabilities), with the creditors subdivided into classes according to the priority their claims would receive in insolvency proceedings, and

(e) an estimate of the amount that each class of creditors and shareholders might be expected to receive if the CCP went into insolvent liquidation.

(8) Where appropriate, the information in sub-paragraph (7)(c) may be supplemented by an analysis and estimate of the value of the assets and liabilities of the CCP on a market value basis.

(9) Where a provisional valuation is carried out under sub-paragraph (4), the Bank need only comply with sub-paragraph (7) as far as it is reasonable to do so in the circumstances.

(10) The Treasury may by regulations make provision for the purposes of a valuation under this paragraph specifying—

(a) the methodology for assessing the value of the assets and liabilities of a CCP;

(b) the methodology for calculating and including a buffer for additional losses in the provisional valuation.

(11) Before making regulations under sub-paragraph (10) the Treasury must consult the Bank.

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

Replacement of Bank’s provisional valuation

23

(1) Where the Bank has carried out a provisional valuation under paragraph 22 before exercising a stabilisation power, the Bank must arrange for the appointment of an independent valuer in accordance with paragraph 24 to carry out a full valuation in accordance with this paragraph as soon as reasonably practicable.

(2) The purpose of the valuation carried out under sub-paragraph (1) is to—

(a) ensure the full extent of any losses on the assets of the CCP is recognised in the accounting records of the CCP, and

(b) inform a decision by the Bank as to whether—

(i) additional consideration should be paid by a bridge central counterparty for any property, rights or liabilities transferred by a property transfer instrument, or securities transferred by a share transfer instrument, or

(ii) the Bank should exercise the power under paragraph 26 to increase or reinstate any liability which has been reduced, cancelled or deferred by a write-down instrument.

(3) A valuation carried out under sub-paragraph (1) must comply with sub-paragraph (5) of paragraph 22 and be accompanied by the information required in sub-paragraph (7) of that paragraph.

Independent valuer: valuation under paragraph 22 or 23

24

(1) The Bank must make arrangements for the appointment of a person to act as an independent valuer for the purposes of a valuation to be conducted under paragraph 22 or 23.

(2) The Bank may require the CCP to which the valuation relates to reimburse the Bank for costs it incurs in relation to the independent valuer (including remuneration and allowances paid to the valuer and the valuer’s staff).

(3) A person may not be appointed as an independent valuer under sub-paragraph (1) unless the Bank is satisfied that the person is independent from the Bank and the CCP to which the valuation relates.

(4) An independent valuer is to hold and vacate office in accordance with the terms of the appointment.

(5) An independent valuer may be removed from office only on the grounds of incapacity or serious misconduct.

(6) In the event of the death of an independent valuer, or an independent valuer being removed from office or resigning, a new independent valuer must be appointed by the Bank in accordance with this paragraph.

Independent valuer: supplemental

25

(1) An independent valuer may do anything necessary or desirable for the purposes of or in connection with the performance of the functions of the office.

(2) The Treasury may by regulations confer specific functions on independent valuers; in particular, the regulations may—

(a) enable an independent valuer to apply to a court or tribunal for an order requiring the provision of information or the giving of oral or written evidence;

(b) enable or require independent valuers to publish, disclose or withhold information.

(3) Provision under sub-paragraph (2) may—

(a) confer a discretion on independent valuers;

(b) confer jurisdiction on a court or tribunal;

(c) make provision about oaths, expenses and other procedural matters relating to the giving of evidence or the provision of information;

(d) make provision about enforcement.

(4) An independent valuer may appoint staff.

(5) The Treasury may by regulations make provision about the procedure to be followed by independent valuers.

(6) Independent valuers (and their staff) are neither servants nor agents of the Crown (and, in particular, are not civil servants).

(7) Records of an independent valuer are public records for the purposes of the Public Records Act 1958.

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

Consequences of a replacement valuation

26

(1) Where the independent valuation carried out under paragraph 23(1) produces a higher valuation of the net asset value of the CCP than a provisional valuation carried out under paragraph 22(4), the Bank may—

(a) modify any liability of the CCP which has been reduced, deferred or cancelled by a write-down instrument so as to increase or reinstate that liability, or

(b) instruct a bridge central counterparty to pay additional consideration—

(i) to the CCP for any property, rights or liabilities transferred to the bridge central counterparty by a property transfer instrument, or

(ii) to the previous holders of securities issued by the CCP for any securities transferred to the bridge central counterparty by a share transfer instrument.

(2) The power in sub-paragraph (1)(a)—

(a) may not be exercised so as to increase the value of the liability beyond the value it would have had if the write-down instrument which reduced, cancelled or deferred it had not been made, and

(b) must be exercised by a resolution instrument (whether or not that instrument contains any other provision authorised by this Schedule).

Private sector purchaser

27

(1) The first stabilisation option is to sell all or part of the business of the CCP to a commercial purchaser.

(2) For that purpose the Bank may make—

(a) one or more share transfer instruments;

(b) one or more property transfer instruments.

Private sector purchaser: marketing

28

(1) Subject to sub-paragraph (4) and (5), the Bank must make arrangements for marketing—

(a) any securities issued by the CCP which the Bank intends to transfer by a share transfer instrument under paragraph 27(2)(a), or

(b) any property, rights or liabilities of the CCP which the Bank intends to transfer by a property transfer instrument under paragraph 27(2)(b).

(2) The arrangements under sub-paragraph (1) must—

(a) be as transparent as possible having regard to the circumstances and the need to maintain financial stability;

(b) ensure there is no conflict of interest;

(c) take account of the need for the Bank to act quickly to address the situation where a CCP is failing or likely to fail;

(d) aim at maximising, as far as possible, the sale price for the property, rights or liabilities involved.

(3) The arrangements under sub-paragraph (1) must not—

(a) materially misrepresent the securities, property, rights or liabilities which the Bank intends to transfer;

(b) favour or discriminate between potential purchasers or grant an unfair advantage to a potential purchaser.

(4) Sub-paragraph (1) does not apply if the Bank considers that complying with that sub-paragraph would undermine one or more of the special resolution objectives.

(5) In particular sub-paragraph (1) does not apply if the Bank considers that—

(a) there is a material threat to financial stability in the United Kingdom arising from or aggravated by the failure or likely failure of the CCP, and

(b) complying with sub-paragraph (1) would undermine the effectiveness of the first stabilisation option in addressing that threat or achieving the objective in paragraph 15(4).

Bridge central counterparty

29

(1) The second stabilisation option is to transfer all or part of the business of the CCP to a company which meets the requirements of sub-paragraph (2) (a “bridge central counterparty”).

(2) Those requirements are that the company—

(a) is wholly or partially owned by the Bank,

(b) is controlled by the Bank, and

(c) is created for the purposes of receiving a transfer by virtue of this paragraph with a view to maintaining access to critical clearing services and (in due course) selling the CCP or its business.

(3) For that purpose the Bank may make—

(a) one or more property transfer instruments;

(b) one or more share transfer instruments.

(4) The code of practice under paragraph 16 must include provision about the management and control of bridge central counterparties including, in particular, provision about—

(a) setting objectives,

(b) the content of the articles of association,

(d) different arrangements for management and control at different stages, and

(e) eventual disposal.

(5) The Bank must, without delay, take all necessary steps to wind up the bridge central counterparty if—

(a) all or substantially all of the bridge central counterparty’s assets, rights and liabilities have been transferred to a third party, or

(b) following a transfer to the bridge central counterparty under this paragraph, no further transfer to the bridge central counterparty is made under this paragraph during the relevant post-transfer period.

(6) Sub-paragraph (5) does not apply if the bridge central counterparty—

(a) has merged with another entity,

(b) has ceased to meet the requirements of sub-paragraph (2)(a) or (b), or

(7) “The relevant post-transfer period” means the period of two years beginning with the day of the transfer mentioned in sub-paragraph (5)(a), subject to any extension under sub-paragraph (8).

(8) The Bank may extend (or further extend) the relevant post-transfer period by one year if it is satisfied that the extension—

(a) would support one or more of the outcomes mentioned in sub-paragraph (5)(a) or (6)(a), (b) or (c), or

(b) is necessary to ensure the continuity of critical clearing services.

(9) Where property, rights or liabilities are first transferred by property transfer instrument to a bridge central counterparty and later transferred (whether or not by the exercise of a power under this Schedule) to another company which is wholly owned by the Bank, that other company is an “onward bridge central counterparty”.

(10) An onward bridge central counterparty—

(a) is a bridge central counterparty for the purposes of—

(i) sub-paragraphs (4) to (6),

(ii) paragraph 34(6)(d),

(iii) paragraph 110,

(iv) paragraph 112, and

(v) paragraph 114(5), but

(b) is not a bridge central counterparty for the purposes of—

(i) paragraph 52,

(ii) paragraph 69, and

(iii) paragraph 114(1).

Transfer of ownership

30

(1) The third stabilisation option is to transfer ownership of the CCP to any person other than a bridge central counterparty or a commercial purchaser.

(2) For that purpose the Bank may make one or more share transfer instruments.

Tear-up power

31

(1) The fourth stabilisation option is to make one or more tear-up instruments for the purpose of ensuring that the CCP has a matched book.

(2) A tear-up instrument is an instrument that makes provision terminating one or more contracts held by the CCP with clearing members.

(3) Where the Bank exercises the power under sub-paragraph (1), it must as soon as reasonably practicable determine the value of the terminated contract.

(4) On the basis of the determination under sub-paragraph (3) the Bank must as soon as reasonably practicable either—

(a) require the CCP to make a commercially reasonable payment, representing the value of the terminated contract, to the clearing member who is a party to the contract, or

(b) require the clearing member who is a party to the contract to make a commercially reasonable payment, representing the value of the terminated contract, to the CCP.

(5) The Bank must within 12 months of this paragraph coming into force publish a statement of policy as to how it determines what a commercially reasonable payment is for the purpose of complying with sub-paragraph (4).

(6) The Bank may alter or replace a statement of policy published under this paragraph.

(7) The Bank must publish a statement as altered or replaced under sub-paragraph (6).

(8) For the purposes of this paragraph, a CCP has a matched book when the sum of the financial obligations owed by the CCP to its clearing members is equal to the sum of the financial obligations owed to the CCP by its clearing members.

Cash call power

32

(1) The fifth stabilisation option is to make one or more cash call instruments.

(2) A cash call instrument is an instrument that makes provision requiring one or more clearing members of the CCP to pay an amount in cash specified in the instrument to the CCP.

(3) The Treasury may by regulations—

(a) make provision for calculating the maximum cash amount that may be specified for the purposes of sub-paragraph (2);

(b) specify circumstances in which the Bank may require a CCP to use specified funds of specified clearing members to satisfy all or part of that member’s obligations under sub-paragraph (2).

(4) The power under sub-paragraph (1) does not apply to a clearing member—

(a) which is an interoperable CCP,

(b) which falls within Article 1(4) or (5) of EMIR, or

(c) in relation to which a direction under regulation 3(1)(f) of the Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019 (S.I. 2019/541) is in force.

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

Resolution instruments: report

33

(1) The sixth stabilisation option is to make one or more variation instruments.

(2) A variation instrument is an instrument that makes provision to reduce or cancel a variation margin payment that a CCP would have otherwise paid to a clearing member of the CCP.

(3) The power under this paragraph may be exercised only for the purpose of recovering losses arising as a result of a clearing member defaulting on the member’s obligations to the CCP.

(4) The power under sub-paragraph (1) does not apply to a clearing member—

(a) which falls within Article 1(4) or (5) of EMIR, or

(b) in relation to which a direction under regulation 3(1)(f) of the Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019 (S.I. 2019/541) is in force.

(5) In this paragraph, a “variation margin payment” means a payment reflecting an increase in the market value of a clearing member’s position in the market.

Write-down power

34

(1) The seventh stabilisation option is for the Bank to make one or more write-down instruments.

(2) A write-down instrument is an instrument that makes any of the following provision (or any combination of the following)—

(a) provision cancelling an unsecured liability owed by the CCP;

(b) provision modifying or changing the form of an unsecured liability owed by the CCP;

(c) provision that a contract under which the CCP has an unsecured liability is to have effect as if a specified right had been exercised under it;

(d) provision under paragraph 35(1).

(3) The power under this paragraph may be exercised only for the purpose of recovering losses arising otherwise than as a result of a clearing member defaulting on the member’s obligations to the CCP.

(4) The power under sub-paragraph (2) may not be exercised so as to affect the following liabilities—

(a) liabilities to employees or workers, including liabilities owed to a pension scheme in respect of those persons;

(b) liabilities to commercial or trade creditors arising from the provision to the CCP of goods or services that are critical to the continuity of the CCP’s critical clearing services;

(d) liabilities to designated systems, operators of designated systems, or participants in such systems to the extent that the liabilities arise from their participation in the system;

(e) liabilities to interoperable CCPs;

(f) liabilities to central banks;

(g) liabilities to clearing members so far as these relate to initial margin requirements;

(h) liabilities to small enterprises.

(5) The reference to modifying a liability owed by the CCP includes a reference to modifying the terms (or the effect of the terms) of a contract under which the CCP has a liability.

(6) The reference to changing the form of a liability owed by the CCP includes, for example—

(a) converting an instrument under which a CCP owes a liability from one form or class to another,

(b) replacing such an instrument with another instrument of a different form or class,

(d) converting those liabilities into securities issued by the CCP or a bridge central counterparty or UK parent of the CCP.

(7) The Treasury may by regulations amend sub-paragraph (4) by—

(a) adding to the list of liabilities;

(b) amending or omitting any liability listed.

(8) Regulations under this paragraph are subject to the affirmative procedure.

(9) In this paragraph—

“designated system” has the meaning given by regulation 2 of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (S.I. 1999/2979) as amended from time to time;

“initial margin requirements” means margins provided by clearing members to a CCP to cover the CCP’s potential future exposure in the event of default by those members;

“small enterprise” means an enterprise which employs fewer than 50 people and whose annual turnover or annual balance sheet total does not exceed £10 million.

Powers in relation to securities

35

(1) A write-down instrument may—

(a) cancel, transfer, dilute or modify any securities to which this sub-paragraph applies;

(b) convert any such securities from one form or class into another.

(2) Sub-paragraph (1) applies to securities issued by the CCP that fall within class 1 in paragraph 40.

(3) A write-down instrument may—

(a) make provision with respect to rights attaching to securities issued by the CCP;

(b) provide for the listing of securities issued by the CCP to be discontinued or suspended;

(c) provide for the listing or admission to trading on a regulated market of securities in class 1 (and related class 3 securities) created in accordance with that or any other write-down instrument;

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