Banking Act 2009 (c. 1)

Part 1U.K.Special Resolution Regime

Modifications etc. (not altering text)

C1Pt. 1 restricted (7.1.2010) by Banking Act 2009 (Exclusion of Insurers) Order 2010 (S.I. 2010/35), arts. 1, 2

C2Pt. 1: power to amend conferred (1.3.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 17(3)(f), 148(5); S.I. 2014/377, art. 2(1)(b), Sch. Pt. 2

[F1Chapter 1U.K. Introduction]

Textual Amendments

F1Pt. 1 Ch. 1 formed from ss. 1-3 (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 3

1OverviewU.K.

(1)The purpose of the special resolution regime for banks is to address the situation where all or part of the business of a bank has encountered, or is likely to encounter, financial difficulties.

(2)The special resolution regime consists of—

(a)the [F2five] stabilisation options,

(b)the bank insolvency procedure (provided by Part 2), and

(c)the bank administration procedure (provided by Part 3).

[F3(3)The [F4five] “stabilisation options” are—

(a)transfer to a private sector purchaser (section 11),

(b)transfer to a bridge bank (section 12),

[F5(ba)transfer to an asset management vehicle (section 12ZA),]

(c)the bail-in option (section 12A), and

(d)transfer to temporary public ownership (section 13).]

(4)Each of the [F6five] stabilisation options is achieved through the exercise of one or more of the “stabilisation powers”, which are—

[F7(za)the resolution instrument powers (sections 12A(2) and 48U to 48W),]

(a)the share transfer powers (sections 15, 16, 26 to 31 and 85), and

(b)the property transfer powers (sections 33[F8, 41A] and 42 to 46).

[F9(c)the third country instrument powers (sections 89H to 89J).]

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

(a)the Bank of England,

(b)the Treasury,

[F10(c)the Prudential Regulation Authority, and

(d)the Financial Conduct Authority.]

(6)The Table describes the provisions of this Part.

Sections	Topic
Sections 1 to 3	Introduction
[F11Sections 3A and 3B]	[F11Pre-resolution powers]
Sections 4 to 6	Objectives and code
[F11Sections 6A to 6D]	[F11Mandatory write-down, conversion etc of capital instruments]
[F11Section 6E]	[F11Valuation before mandatory write-down or stabilisation action]
Sections 7 to 10	Exercise of powers: general
Sections 11 to 13	The stabilisation options
Sections 14 to 32	Transfer of securities
Sections 33 to [F1248A]	Transfer of property
[F11Sections 48B to [F1348WA]]	[F11Bail-in option]
[F11Sections 48X and 48Y]	[F11Replacement of provisional valuation]
[F11Section 48Z]	[F11Termination rights etc]
Sections 49 to 62	Compensation
[F11Section 62A]	[F11Independent valuer]
[F11Sections 62B to 62E]	[F11Resolution administrator]
Sections 63 to 75	Incidental functions
Sections 76 to [F1481A]	Treasury
[F15Sections 81B to 83]	[F15Groups]
[F11Sections 83ZA to 83Z2]	[F11Information and enforcement]
[F16Section 83A]	[F16Banks not regulated by the PRA]
Sections 84 to 89	Building societies, &c.
[F17Section 89A]	[F17Investment firms]
F18. . .	F18. . .
[F11Sections 89H to 89J]	[F11Third-country resolution actions]
[F19Section 89JA	Resolution of UK branches of third-country institutions]

Textual Amendments

F2Word in s. 1(2)(a) substituted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 4(2)

F3S. 1(3) substituted (31.12.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 2 para. 12(3); S.I. 2014/3160, art. 2(1)(b)

F4Word in s. 1(3) substituted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 4(3)(a)

F5S. 1(3)(ba) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 4(3)(b)

F6Word in s. 1(4) substituted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 4(4)(a)

F7S. 1(4)(za) inserted (31.12.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 2 para. 12(4)(b); S.I. 2014/3160, art. 2(1)(b)

F8Word in s. 1(4)(b) inserted (31.12.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 2 para. 12(4)(c); S.I. 2014/3160, art. 2(1)(b)

F9S. 1(4)(c) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 4(4)(b)

F10S. 1(5)(c)(d) substituted for s. 1(5)(c) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 17 para. 2(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F11Words in s. 1(6) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 4(5)

F12Word in s. 1(6) substituted (8.4.2010) by Financial Services Act 2010 (c. 28), s. 26(1)(l), Sch. 2 para. 40

F13Word in s. 1(6) substituted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 3

F14Word in s. 1(6) substituted (1.1.2015) by Financial Services Act 2012 (c. 21), ss. 99(3), 122(3) (with Sch. 20); S.I. 2014/3323, art. 2

F15Words in s 1(6) substituted (1.8.2014) by Financial Services Act 2012 (c. 21), ss. 100(2), 122(3) (with Sch. 20); S.I. 2014/1847, art. 2

F16Words in s. 1(6) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 17 para. 2(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F17Words in s 1(6) inserted (1.8.2014) by Financial Services Act 2012 (c. 21), ss. 101(2), 122(3) (with Sch. 20); S.I. 2014/1847, art. 2

F18Words in s. 1(6) omitted (31.12.2023) by virtue of Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 162(2); S.I. 2023/1382, reg. 8(b) (with reg. 14)

F19Words in s. 1(6) inserted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 29(2)

Commencement Information

I1S. 1 in force at 21.2.2009 by S.I. 2009/296, art. 3, Sch. para. 1

2Interpretation: “bank”U.K.

(1)In this Part “bank” means a UK institution which has permission under [F20Part 4A] of the Financial Services and Markets Act 2000 to carry on the regulated activity of accepting deposits (within the meaning of section 22 of that Act, taken with Schedule 2 and any order under section 22).

(2)But “bank” does not include—

(a)a building society (within the meaning of section 119 of the Building Societies Act 1986),

(b)a credit union within the meaning of section 31 of the Credit Unions Act 1979 [F21or a credit union within the meaning of Article 2(2) of the Credit Unions (Northern Ireland) Order 1985], or

(c)any other class of institution excluded by an order made by the Treasury.

(3)In subsection (1) “UK institution” means an institution which is incorporated in, or formed under the law of any part of, the United Kingdom.

(4)Where a stabilisation power is exercised in respect of a bank, it does not cease to be a bank for the purposes of this Part if it later loses the permission referred to in subsection (1).

(5)An order under subsection (2)(c)—

(a)shall be made by statutory instrument, and

(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(6)Section 84 applies this Part to building societies with modifications.

(7)Section 89 allows the application of this Part to credit unions.

[F22(8)Section 89A applies this Part to investment firms with modifications.]

F23(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F24(10)Section 89JA applies this Part to UK branches of third-country institutions with modifications.]

Textual Amendments

F20Words in s. 2 substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 17 para. 3 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F21Words in s. 2(2)(b) inserted (31.3.2012) by The Financial Services and Markets Act 2000 (Permissions, Transitional Provisions and Consequential Amendments) (Northern Ireland Credit Unions) Order 2011 (S.I. 2011/2832), arts. 2(c), 12(2)

F22S. 2(8) inserted (1.8.2014) by Financial Services Act 2012 (c. 21), ss. 101(3), 122(3) (with Sch. 20); S.I. 2014/1847, art. 2

F23S. 2(9) omitted (31.12.2023) by virtue of Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 162(3); S.I. 2023/1382, reg. 8(b) (with reg. 14)

F24S. 2(10) inserted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 29(3)

Commencement Information

I2S. 2 in force at 17.2.2009 for specified purposes by S.I. 2009/296, arts. 2, 3, Sch. para. 1

I3S. 2 in force at 21.2.2009 in so far as not already in force by S.I. 2009/296, arts. 2, 3, Sch. para. 1

3Interpretation: other expressionsU.K.

[F25(1)] In this Part—

[F26“Additional Tier 1 instruments” means capital instruments that meet the conditions laid down in Article 52(1) of the capital requirements regulation (or which qualify as Additional Tier 1 instruments by virtue of Chapter 2 [F27or 4] of Title I of Part Ten of that regulation),]
[F28“bail-in liabilities”, of an undertaking, means liabilities and capital instruments that—
(a)
do not qualify as Common Equity Tier 1 instruments, Additional Tier 1 instruments or Tier 2 instruments, of the undertaking, and
(b)
are not excluded liabilities listed in section 48B(8),]
[F26“the capital requirements regulation” means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26th June 2013 on prudential requirements for credit institutions and investment firms, [F29as it [F30forms part of [F31assimilated] law],]]
[F32“CRR rules” has the meaning given in section 144A of the Financial Services and Markets Act 2000,]
[F33“client assets” means assets which an institution has undertaken to hold for a client (whether or not on trust, and whether or not the undertaking has been complied with),]
[F26“Common Equity Tier 1 instruments” means capital instruments that meet the conditions laid down in Article 28(1) to (4), 29(1) to (5) or 31(1) of the capital requirements regulation (or which qualify as Common Equity Tier 1 instruments by virtue of Chapter 2 of Title I of Part Ten of that regulation),]
[F26“critical functions”, subject to [F34subsections (2) and (2A)], means activities, services or operations [F35(wherever carried out)] the discontinuance of which is likely F36...—
(a)
to lead to the disruption of services that are essential to the economy [F37of the United Kingdom], or
(b)
to disrupt financial stability [F38in the United Kingdom],
due to the size, market share, external and internal connectedness, complexity or cross-border activities of a bank or a group which includes a bank (with particular regard to the substitutability of those activities, services or operations),;]
[F39“FSCS” means the Financial Services Compensation Scheme (established under Part 15 of the Financial Services and Markets Act 2000);]
[F40“normal insolvency proceedings” means the collective insolvency proceedings which—
(a)
entail the partial or total divestment of a debtor and the appointment of a liquidator or administrator (or a similar officeholder),
(b)
are normally applicable to institutions under the law of any part of the United Kingdom, and
(c)
are either specific to those institutions or generally applicable to any natural or legal person;
and, in particular, includes the bank insolvency procedure and the bank administration procedure;]
[F41“eligible liabilities” has the meaning given by section 3A(4A),]
[F42“extraordinary public financial support” means financial assistance that is provided by the Treasury or the Bank of England in order to preserve or restore the viability, liquidity or solvency of a bank, a banking group company or a group which includes a bank, other than—
(a)
ordinary market assistance offered by the Bank of England on its usual terms, or
(b)
a liquidity facility which is provided—
(i)
to a bank that is facing temporary liquidity problems but is solvent, and
(ii)
by the Bank of England on its own initiative and on its own terms,
and for the purposes of this definition “group” (other than in “banking group company”) has the meaning given in subsection (2)(b);]
[F43“the PRA” means the Prudential Regulation Authority,
“the FCA” means the Financial Conduct Authority, and]
“financial assistance” has the meaning given by section 257.
[F26“own funds” means own funds as defined in Article 4.1(118) of the capital requirements regulation (read with Title I of Part Ten of that regulation),]
[F26“own funds requirements” means the requirements laid down in [F44Articles 92 to 93 of the capital requirements regulation and Article 94 of Chapter 3 of the Trading Book (CRR) Part of the PRA Rulebook] (read with Title I of Part Ten of that regulation),]
[F26“the recovery and resolution directive” means Directive 2014/59/EU of the European Parliament and of the Council of 15th May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms [F45as last amended by Directive (EU) 2019/879 of the European Parliament and of the Council of 20th May 2019],]
[F26“relevant capital instruments” means Additional Tier 1 instruments and Tier 2 instruments,]
[F46“relevant internal liabilities” of a bank or banking group company means eligible liabilities held by a resolution entity in the same resolution group as the bank or banking group company, either directly or indirectly (through other entities in the same resolution group that bought the liabilities from the bank or banking group company),]
“resolution entity” means an entity which is identified by the Bank of England in a resolution plan or a group resolution plan under Part 5 of the Bank Recovery and Resolution (No.2) Order 2014 as an entity in respect of which—
(a)
the Bank of England might exercise a stabilisation power, [F47or]
(b)
F48...
(c)
a relevant third-country authority might take third-country resolution action,
and for the purposes of this definition, F49... “relevant third-country authority” has the meaning given by section 81AA(14) F49... and “third-country resolution action” has the meaning given by section 89H(7),
“resolution group” means a resolution entity together with any subsidiary that—
(a)
is not a resolution entity itself,
(b)
is not a subsidiary of another resolution entity, and
(c)
where the subsidiary is established in a [F50country or territory other than the United Kingdom], is stated by the group resolution plan under Part 5 of the Bank Recovery and Resolution (No.2) Order 2014 to be included in the resolution group,
and for the purpose of this definition “subsidiary” has the meaning given by Article 4.1(16) of the capital requirements regulation,
[F26“Tier 2 instruments” means capital instruments or subordinated loans that meet the conditions laid down in Article 63 of the capital requirements regulation (or which qualify as Tier 2 instruments by virtue of Chapter 2 [F51or 4] of Title I of Part Ten of that regulation),]

[F52(2)For the purposes of the definition of “critical functions” in subsection (1)—

[F53(a)Article 6 of Commission Delegated Regulation (EU) 2016/778 (criteria relating to the determination of critical functions) applies,] and

(b)“group” means a parent undertaking within the meaning given by Article 4.1(15)(a) of the capital requirements regulation and its subsidiaries within the meaning given by Article 4.1(16) of that regulation.]

[F54(2A)The Treasury may by regulations made by statutory instrument specify criteria for the determination of the activities, services and operations referred to in the definition of “critical functions”.

(2B)The power conferred by subsection (2A) includes—

(a)power to amend or revoke Article 6 of Commission Delegated Regulation (EU) 2016/778; and

(b)power to amend or repeal subsection (2)(a).

(2C)A statutory instrument containing regulations under subsection (2A) is subject to annulment in pursuance of a resolution of either House of Parliament.]

[F55(3)In this Part references to a director include, in relation to an undertaking which has no board of directors, a member of the equivalent management body responsible for the management of the undertaking concerned.]

[F56(4)In this Part a reference to the PRA rulebook is to the rulebook published by the PRA containing rules made by the PRA under the Financial Services and Markets Act 2000 as the rulebook has effect on [F571 January 2022].]

Textual Amendments

F25S. 3(1): s. 3 renumbered as s. 3(1) (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 5(2)

F26Words in s. 3(1) inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 5(2)

F27Words in s. 3(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 4(a)

F28Words in s. 3(1) inserted (28.12.2020) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(2), 4(b)

F29Words in s. 3(1) inserted (21.12.2018) by The Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1394), reg. 1(3), Sch. 1 para. 3(2)

F30Words in s. 3 substituted (31.12.2020 immediately before IP completion day) by The Securities Financing Transactions, Securitisation and Miscellaneous Amendments (EU Exit) Regulations 2020 (S.I. 2020/1385), regs. 1(4), 39(2)

F31Word in s. 3(1) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 68(2)(a)

F32Words in s. 3(1) inserted (1.1.2022) by The Financial Services Act 2021 (Prudential Regulation of Credit Institutions and Investment Firms) (Consequential Amendments and Miscellaneous Provisions) Regulations 2021 (S.I. 2021/1376), regs. 1(3), 9(2)(a)(i)

F33Words in s. 3 inserted (1.1.2015) by Financial Services Act 2012 (c. 21), ss. 96(2), 122(3) (with Sch. 20); S.I. 2014/3323, art. 2

F34Words in s. 3(1) 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. 3(3)(a); 2020 c. 1, Sch. 5 para. 1(1)

F35Words in s. 3(1) inserted (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. 3(3)(b); 2020 c. 1, Sch. 5 para. 1(1)