Banking Act 2009

[F1 Enforcement of relevant requirements U.K.

Textual Amendments

F1 Pt. 1 Ch. 4 inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97

83ZQ. Injunctions: prevent failure to comply with relevant requirement U.K.

(1) If, on the application of the Bank of England, 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 section 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 section “relevant requirement” has the meaning given in section 83ZD.

83ZR. Regulatory sanctions U.K.

(1) If the Bank of England 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 bank,

(ii) a bank of a specified description, or

(iii) any bank.

(2) A prohibition under subsection (1)(d) may apply—

(a) for a specified period,

(b) until further notice, or

(c) permanently.

(3) If the Bank of England 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 order.

(4) A penalty under this section—

(a) must be paid to the Bank of England, and

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

(5) In this section “relevant requirement” has the meaning given in section 83ZD.

83ZS. Determination of sanctions U.K.

When determining the type of sanction, and level of any penalty, to be imposed on a person under section 83ZR, the Bank of England 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,

(c) the financial strength 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.

83ZT. Procedure: warning notice U.K.

(1) If the Bank of England proposes to impose a sanction on a person under section 83ZR(1) or (3) it must give that person a warning notice.

(2) Section 387 of the Financial Services and Markets Act 2000 applies in relation to a warning notice given under subsection (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 subsections (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,

(c) if it is about a proposal to direct a person to refrain from certain conduct, specify the conduct, and

(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 subsection (2), section 387 of that Act has effect as if subsections (1A) and (3A) were omitted.

83ZU. Procedure: decision notice U.K.

(1) If the Bank of England decides to impose a sanction on a person under section 83ZR(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 the Financial Services and Markets Act 2000 applies in relation to a decision notice given under subsection (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 subsection (7).

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

(a) in subsection (1)(e)(i) for “this Act” there were substituted “section 83ZW of the Banking Act 2009”, and

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

83ZV. Procedure: general U.K.

(1) Sections 389, 390 and 392 to 394 of the Financial Services and Markets Act 2000 apply in relation to a warning notice given under section 83ZT, a decision notice given under section 83ZU 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 subsections (2) to (4).

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

(3) Section 390 of that Act 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)”,

(c) for subsection (4) there were substituted—

“(4) A final notice about a direction under section 83ZR(1)(c) or (3)(c) of the Banking Act 2009 or a prohibition under section 83ZR(1)(d) of that Act 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) warning notice given under section 83ZT(1) of the Banking Act 2009;

(b) a decision notice given under section 83ZU(1) of the Banking Act 2009.”.

83ZW. Appeal U.K.

(1) If the Bank of England decides to impose a sanction on a person under section 83ZR, the person may appeal to the Upper Tribunal.

[F2 (2)] The Bank of England may not impose a sanction while an appeal under this section could be brought or is pending.

Textual Amendments

F2 S. 83ZW(2): s. 83Z(3) renumbered as s. 83ZW(2) (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 19

83ZX. Injunctions: failure to comply with certain section 83ZR sanctions U.K.

(1) If, on the application of the Bank of England, 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 of England, 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 section 83ZR(1)(c) or (3)(c), or

(b) a breach of a prohibition imposed under section 83ZR(1)(d).

(5) The jurisdiction conferred by this section 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 section—

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

(b) references to remedying a failure include mitigating its effect, and

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

83ZY. Publication U.K.

(1) In the case of a warning notice under section 83ZT(1)—

(a) neither the Bank of England 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 section 83ZU(1) 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 subsection (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 subsection (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 official website information about the status of the appeal and its outcome.

(7) Subject to subsection (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 internet 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, insofar as it can be determined, disproportionate damage to the persons involved.

(9) Where subsection (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 subsections (6) to (9), it must—

(a) ensure the information remains on its official website for at least five years, unless the information is personal data and [F3 the data protection legislation] requires the information to be retained for a different period, F4 ...

F4 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) In this section—

• [F5 “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 the Financial Services and Markets Act 2000 (which are applied (with modifications) by section 83ZV).

Textual Amendments

F3 Words in s. 83ZY(10) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 156(2) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

F4 S. 83ZY(10)(b) and word omitted (31.12.2020) by virtue of The Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1394), reg. 1(2), Sch. 1 para. 37; 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in s. 83ZY(11) inserted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 156(3) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

83ZZ. Co-operation U.K.

In connection with the exercise of its powers to impose sanctions under section 83ZR, the Bank of England must take such steps as it considers appropriate to co-operate with—

(a) the FCA [F6 , and]

F7 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) any person who exercises functions outside the United Kingdom equivalent to those exercisable by the Bank under this Part or any other enactment [F8 which, immediately before IP completion day, gave] effect to the recovery and resolution directive.

Textual Amendments

F6 Word in s. 83ZZ(a) inserted (1.3.2017) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 53(a) (with Sch. 3); S.I. 2017/43, reg. 2(g)

F7 S. 83ZZ(b) omitted (1.3.2017) by virtue of Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 53(b) (with Sch. 3); S.I. 2017/43, reg. 2(g)

F8 Words in s. 83ZZ(c) substituted (31.12.2020) by The Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1394), reg. 1(2), Sch. 1 para. 38 (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 10(b)(iii)); 2020 c. 1, Sch. 5 para. 1(1)

83Z1. Delegation of enforcement functions U.K.

(1) The Bank of England may, by agreement made with the [F9 FCA], delegate to [F10 the FCA] its enforcement functions, subject to such restrictions and conditions, and for such period, as may be specified in the agreement.

(2) For the purposes of this section—

(a) “enforcement functions” of the Bank of England are its functions under, or by virtue of—

(i) section 83ZD;

(ii) section 83ZF;

(iii) section 83ZJ;

(iv) section 83ZL;

(v) section 83ZO;

(vi) sections 83ZQ to 83ZZ;

F11 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The Bank of England must make provision for the reimbursement of any expenses incurred by the [F12 FCA] in the performance, in accordance with the terms of any agreement, of any functions delegated under this section.]

Textual Amendments

F9 Word in s. 83Z1(1) substituted (1.3.2017) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 54(2)(a) (with Sch. 3); S.I. 2017/43, reg. 2(g)

F10 Words in s. 83Z1(1) substituted (1.3.2017) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 54(2)(b) (with Sch. 3); S.I. 2017/43, reg. 2(g)

F11 S. 83Z1(2)(b) omitted (1.3.2017) by virtue of Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 54(3) (with Sch. 3); S.I. 2017/43, reg. 2(g)

F12 Word in s. 83Z1(3) substituted (1.3.2017) by Bank of England and Financial Services Act 2016 (c. 14), s. 41(3), Sch. 2 para. 54(4) (with Sch. 3); S.I. 2017/43, reg. 2(g)