Part II

Powers of control of Commission

The criteria of prudent management
21
For section 45 of the 1986 Act there shall be substituted the following section—

The criteria of prudent management
45
1
If it appears to the Commission that there has been or is, on the part of a building society or its directors, a failure to satisfy any one or more of the following criteria of prudent management, it shall be entitled to assume for the purposes of its relevant prudential powers that the failure is such as to prejudice the security of the investments of shareholders or depositors.
2
The prudential powers relevant for the purposes of this section are the Commission’s powers—
a
under section 42, to impose conditions on a society’s authorisation,
b
under section 42B, to direct a society to transfer all its engagements or its business, and
c
under section 43, to revoke a society’s authorisation,
by reference to the expedience of the imposition, direction or revocation for the protection of the investments of shareholders or depositors.
3
For the purposes of this Act, the criteria of prudent management are—
1
Compliance with the requirements imposed by sections 5(1), 6(1) and 7(1), and the restrictions on powers imposed by section 9A(1).
2
Maintenance of—
a
adequate reserves and other capital resources; and
b
own funds which amount to not less than the sum which, for the purposes of section 9, is the prescribed minimum in relation to qualifying capital.
3
Maintenance of adequate assets in liquid form.
4
Maintenance of a system for managing and containing risks to the net worth of the business, and risks to its net income, whether arising from fluctuations in interest or exchange rates or from other factors.
5
Maintenance of the requisite arrangements—
a
for assessing the adequacy of securities for loans which are to be made or acquired by the society or subsidiary undertakings of the society, and are to be substantially secured on land; and
b
for assessing the willingness and ability of borrowers to repay such loans.
6
Maintenance of the requisite accounting records and systems of control of business and of inspection and report.
7
Direction and management—
a
by a sufficient number of persons who are fit and proper to be directors or, as the case may be, officers, in their respective positions,
b
conducted by them with prudence and integrity.
8
Conduct of the business with adequate professional skills.
4
Nothing in this section implies that it is improper for a determination for any purpose of the Commission’s relevant prudential powers to take account of other factors than the criteria in subsection (3) above.
5
A failure to satisfy any of the first six criteria in subsection (3) above shall be treated, for the purposes of this section, as a failure on the part of a society’s directors prudently to conduct the affairs of the society.
6
A failure on the part of the society to comply with the conditions to which its authorisation is subject shall be treated, for the purposes of this section, as a failure on the part of the society’s directors prudently to conduct the affairs of the society.
7
The following provisions apply for the interpretation of the list of criteria in subsection (3) above in their application to a building society, that is to say—
- “adequate”, except with reference to liquidity, means adequate having regard to the range and scale of the society’s business;
- “adequate”, with reference to liquidity, means of such proportion and composition as will at all times enable the society to meet its liabilities as they arise and “liquid form”, in relation to assets, shall be construed accordingly;
- “business” includes business the society proposes to carry on and references to the business of the society include, where it has connected undertakings, references to the business of those undertakings;
- “requisite”, with reference to the arrangements for assessing the adequacy of securities, means such as may reasonably be expected to ensure—
  1. that any person who assesses the adequacy of any security for a loan to be secured on land will have furnished to him a written report on the value of the land; and
  2. that any person who assesses the adequacy of any security, or reports on the value of any land, will be competent to perform that task, and will not be subject to any conflict of interest or potential conflict of interest;
- “requisite”, with reference to the arrangements for assessing the ability of borrowers to repay loans, means such as may reasonably be expected to ensure that any person who assesses the ability of any borrower to repay a loan—
  1. will be competent to perform that task; and
  2. will not be subject to any conflict of interest or potential conflict of interest;
- “requisite”, with reference to accounting records and systems of control, means such as are required by section 71;
- “sufficient”, with reference to the number of directors and officers, means sufficient having regard to the range and scale of the society’s business.
8
In determining for the purposes of the seventh criterion in subsection (3) above whether a person is a fit and proper person to hold any particular position, regard shall be had, in particular—
a
to his probity;
b
to his competence and soundness of judgement for fulfilling the responsibilities of that position;
c
to the diligence with which he is fulfilling or likely to fulfil those responsibilities; and
d
to whether the interests of shareholders or depositors of the society are, or are likely to be, in any way threatened by his holding that position.
9
The Treasury may by order vary subsections (3) to (8) above by adding to or deleting from them any provision or by varying any provision contained in them; and an order under this subsection may make—
a
different provisions for different descriptions of building societies; and
b
such incidental, supplementary and transitional provision as appears to the Treasury to be necessary or expedient.
10
The power to make an order under subsection (9) above is exercisable by statutory instrument; but no order shall be made under that subsection unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
11
Nothing in this section shall give rise to any claim against a building society or its directors, or afford a defence to any claim made by a building society.