SCHEDULES
F1SCHEDULE 17A Further provision in relation to exercise of Part 18 functions by Bank of England
Part 2Application of provisions of this Act in relation to Bank of England
Introduction
9
1
The provisions of this Act mentioned in this Part of this Schedule are to apply in relation to the Bank of England in accordance with the provision made by this Part of this Schedule.
2
In any case where sub-paragraph (1) applies—
a
any reference in this Act to the FCA or the PRA which is contained in, or relates to, any of those provisions (however expressed) is to be read as a reference to the Bank; and
b
this Act has effect with any other necessary modifications.
Rules
10
1
The following provisions of Part 9A of this Act are to apply in relation to rules made by the Bank under any provision made by or under this Act—
a
section 137T (general supplementary powers);
b
sections 138A and 138B (modification or waiver of rules), but with the omission of subsection (4)(b) of section 138A and subsection (4) of section 138B;
c
section 138C (evidential provisions);
d
section 138D (actions for damages), but with the omission of subsection (2);
e
section 138E (limits on effect of contravening rules);
f
section 138F (notification of rules);
g
section 138G (rule-making instruments);
h
section 138H (verification of rules);
i
section 138J (consultation), but with the omission of subsections (1)(a), (2)(c) and (5)(b); and
j
section 138L (consultation: general exemptions), but with the omission of F5subsection (1).
2
3
Section 138J(2)(d) has effect in relation to rules proposed to be made by the Bank as if the reference to the compatibility of the proposed rules with the provisions mentioned in section 138J(2)(d) were a reference to their compatibility with the Bank's financial stability objective.
4
Section 138L(2) has effect as if for paragraphs (a) and (b) there were substituted “be prejudicial to financial stability”.
F395
Rules made by the Bank under any provision made by or under this Act may not modify, amend or revoke any retained direct EU legislation (except retained direct EU legislation which takes the form of rules made by the Bank).
Information gathering and investigations
11
1
The powers conferred by section 165(1) and (3) (power to require information) are exercisable by the Bank or (as the case may be) its officers to impose requirements on—
a
a recognised clearing house;
F16aa
a recognised CSD;
F44ab
a third country CSD, in relation to any services referred to in the Annex to the CSD regulation which the third country CSD provides in the United Kingdom;
F47ac
a third country central counterparty and any person to whom that central counterparty has outsourced operational functions, services or activities.
2
The information or documents that the Bank may require to be provided or produced are limited to—
a
information or documents reasonably required in connection with the exercise by the Bank of functions conferred on it by or under this Part of this Act;
b
information or documents reasonably required in connection with the exercise by the Bank of any of its other functions in pursuance of its financial stability objective; F2...
c
information or documents which the Bank reasonably considers may enable or assist the FCA in discharging functions conferred on the FCA by or under this Act F3; and
F46d
information or documents reasonably required in connection with the exercise by the Bank of its functions—
i
under—
aa
the EMIR regulation,
bb
the CSD regulation,
cc
any EU regulation originally made under the CSD Regulation which is retained direct EU legislation, or
dd
any subordinate legislation made under the CSD Regulation on or after IP completion day;
ii
in connection with Article 4 or 15 of the SFT regulation; or
iii
under any subordinate legislation made under the SFT regulation on or after IP completion day.
3
In consequence of the provision made by sub-paragraph (2), section 165(4) is not to apply in relation to section 165(1) and (3) as applied by this paragraph.
12
The power conferred by section 166 (reports by skilled person) is exercisable by the Bank as if references in that section to an authorised person were to a F49recognised clearing house, third country central counterparty or a recognised CSD.
13
1
The powers conferred by section 167 (appointment of persons to carry out general investigations) are exercisable by the Bank as if references in that section to an authorised person were to any recognised clearing house other than an overseas clearing house F51or to any Tier 2 third country central counterpartyF18or to any recognised CSD.
F501A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
In addition to the powers conferred by section 171, a person conducting an investigation under section 167 as a result of this paragraph is to have the powers conferred by sections 172 and 173 (and for this purpose the references in those sections to an investigator are to be read accordingly).
14
1
The power conferred by section 168(5) (appointment of persons to carry out investigations in particular cases) is exercisable by the Bank.
2
That power is exercisable if it appears to the Bank that there are circumstances suggesting that—
a
a clearing house F19or a central securities depository may be guilty of an offence under section 398(1) or an offence under prescribed regulations relating to money laundering;
b
a clearing house F19or a central securities depository may have contravened a rule made by the Bank under this Part of this Act;
c
a clearing house F19or a central securities depository may have contravened the recognition requirements;
d
e
a clearing house F19or a central securities depository may have breached the general prohibition.
F53f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F54g
a third country central counterparty may be guilty of an offence under section 398(1);
h
a Tier 2 third country central counterparty may have contravened the requirements of the EMIR regulation.
3
In addition to the powers conferred by section 171, a person conducting an investigation under section 168(5) as a result of this paragraph is to have the powers conferred by sections 172 and 173 (and for this purpose the references in those sections to an investigator are to be read accordingly).
15
An overseas regulator may, in accordance with section 169, request the Bank to exercise the power conferred by section 165 (as applied by paragraph 11 of this Schedule).
16
The power to give information under section 176(1) (entry of premises under warrant) is exercisable by the Bank, or an investigator appointed by the Bank, as if the reference to the second set of conditions were omitted.
Powers in relation to parent undertakings
17
1
The following provisions of Part 12A of this Act are to apply in relation to the Bank—
a
section 192C (power to direct qualifying parent undertaking);
b
section 192D (requirements that may be imposed);
c
section 192E (direction: procedure);
d
section 192G (references to Tribunal);
e
section 192H (statement of policy);
f
section 192I (statement of policy: procedure);
g
section 192J (rules requiring provision of information);
h
sections 192K to 192N (enforcement).
2
For the purposes of those provisions section 192B (meaning of “qualifying parent undertaking”) is to apply as if the reference in subsection (1) to a qualifying authorised person or recognised UK investment exchange were a reference to a recognised clearing house other than an overseas clearing house F20or to a recognised CSD.
3
Section 192C has effect as if—
a
the general condition in subsection (2) were that the Bank considers that it is desirable to give the direction for the purpose of the effective regulation of one or more recognised clearing houses F21or recognised CSDs in the group of the qualifying parent undertaking,
b
subsections (3) and (4) were omitted, and
c
the reference in subsection (5)(a) to authorised persons or recognised investment exchanges were a reference to recognised clearing houses F22or recognised CSDs.
4
Section 192E has effect as if the reference in subsection (1) to an authorised person or recognised investment exchange were a reference to a recognised clearing house F23or a recognised CSD.
5
Section 192I has effect as if F11subsection (1)(a) required consultation with the FCA.
6
Before the Bank gives a notice under section 192E(1) or (8)(b)—
a
if the notice relates to the parent undertaking of an authorised person or recognised investment exchange, the Bank must consult the FCA, and
F12b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Auditors
18
1
Section 342 (information given by auditor to a regulator) applies in relation to a relevant auditor as if—
a
the references in that section to a recognised investment exchange were to a recognised clearing house F24or a recognised CSD,
b
in the case of an auditor of a recognised clearing house F24or a recognised CSD which is also an authorised person or recognised investment exchange, the references to a regulator included the Bank, and
c
in the case of an auditor of a recognised clearing house F24or a recognised CSD not falling within paragraph (b), the references to a regulator were to the Bank.
2
19
1
Section 343 (information given by auditor: person with close links) applies in relation to a relevant auditor as if—
a
the references in that section to a recognised investment exchange were to a recognised clearing house F26or a recognised CSD,
b
in the case of an auditor of a recognised clearing house F26or a recognised CSD which is an authorised person or which is a recognised investment exchange, the references to a regulator included the Bank, and
c
in the case of an auditor of a recognised clearing house F26or a recognised CSD not falling within paragraph (b), the references to a regulator were to the Bank.
2
A “relevant auditor” is a person who—
a
b
is, or has been, an auditor of a person who has close links with the recognised clearing house F28or the recognised CSD.
20
Section 344 (duty of auditor resigning to give notice) applies to an auditor to whom section 342 applies (whether by virtue of paragraph 18 or otherwise) as if—
a
the references in that section to a recognised investment exchange were to a recognised clearing house F29or a recognised CSD,
b
in the case of an auditor of a recognised clearing house F29or a recognised CSD which is neither an authorised person nor a recognised investment exchange, the reference in the definition of “the appropriate regulator” to the FCA were a reference to the Bank,
c
in the case of an auditor of a recognised clearing house F29or a recognised CSD which is a PRA-authorised person, the reference in the definition of “the appropriate regulator” to the PRA were a reference to the PRA and the Bank, and
d
in the case, not falling within paragraph (c), of an auditor of a recognised clearing house F29or a recognised CSD which is an authorised person or which is a recognised investment exchange, the reference in the definition of “the appropriate regulator” to the FCA were a reference to the FCA and the Bank.
21
Sections 345A to 345E apply to auditors to whom section 342 applies only by virtue of paragraph 18 as if—
a
the references in those sections to an auditor or actuary to whom section 342 applies were to an auditor to whom section 342 applies by virtue of paragraph 18,
b
the references in those sections to a PRA-authorised person were to a recognised clearing house F30or a recognised CSD,
c
in a case where the Bank disqualifies a person from being an auditor of a recognised clearing house F30or a recognised CSD that is also a recognised investment exchange, section 345A(5)(a) required the Bank to notify the FCA, and
d
the references in sections 345D and 345E to a regulator included the Bank.
Public record and disclosure of information
22
Section 347 (record of authorised persons, recognised investment exchanges, etc), so far as it relates to recognised investment exchanges, applies in relation to the Bank as if references in that section to a recognised investment exchange were to a recognised clearing house F55, third country central counterpartyF56, a third country CSDF31or a recognised CSD.
23
F131
Sections 348 to 350 and 353 (disclosure of information) apply in relation to information received by the Bank for the purposes of, or in the discharge of, any of its functions relating to recognised clearing houses F32or recognised CSDsF4or any of its functions under the EMIR regulationF6, the CSD regulation F57, any EU regulation originally made under the CSD regulation which is retained direct EU legislation, or any subordinate legislation made under the CSD regulation on or after IP completion day.
F142
Paragraph 9(2)(a) does not apply to the reference to the PRA in section 348(8).
F42Co-operation
Sch. 17A para. 23A and cross-heading inserted (31.12.2020) by The Investment Exchanges, Clearing Houses and Central Securities Depositories (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/662), regs. 1(3), 14 (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 37(d)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
23A
Section 354B (co-operation) applies in relation to the Bank for the purposes of, or in the discharge of, any of its functions under—
a
the EMIR regulation;
b
the CSD regulation;
c
the SFT regulation;
d
any EU regulation, originally made under the CSD regulation or the SFT regulation, which is retained direct EU legislation; or
e
any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the CSD regulation, or the SFT regulation, on or after IP completion day.
Insolvency
24
1
The following provisions of Part 24 of this Act are to apply in relation to the Bank—
F41za
sections 355A and 355B (powers to participate in proceedings under Part 26A of the Companies Act 2006);
a
section 356 (powers to participate in proceedings: company voluntary arrangements);
b
section 358 (powers to participate in proceedings: trust deeds for creditors in Scotland);
c
section 359 (administration order);
d
section 362 (powers to participate in administration proceedings);
e
section 362A (consent to appointment of administrator);
f
section 363 (powers to participate in proceedings: receivership);
g
section 365 (powers to participate in proceedings: voluntary winding-up);
h
section 367 (winding-up petitions);
i
section 371 (powers to participate in proceedings: winding-up).
2
25
F341
In the case of any regulated activity which is carried on for the purposes of, or in connection with, the provision of clearing services, the reference to the FCA in section 375(1) is to be read as including a reference to the Bank.
F352
In the case of any regulated activity which is carried on for the purposes of, or in connection with, the provision of any service mentioned in section 285(3D), the reference to the FCA in section 375(1) is to be read as including a reference to the Bank.
Injunctions and restitution
26
1
The power to make an application under section 380(1), (2) or (3) (injunctions) is exercisable by the Bank.
2
For the purposes of the application, any reference in that section to a relevant requirement is to—
a
a requirement that is imposed by or under any provision of this Part of this Act that relates to a recognised clearing house F36F58or a recognised CSD (and for this purpose a prohibition imposed under section 312FA(2)(c) (prohibition on person holding office etc. with a central securities depository) is treated as a requirement);
b
a requirement that is imposed under any other provision of this Act by the Bank;
c
a requirement that is imposed by any F59qualifying provision that is specified, or of a description specified, for the purposes of this sub-paragraph by the Treasury by order; or
d
a requirement that is imposed by this Act and whose contravention constitutes an offence that the Bank has power to prosecute under this Act (see section 401, as applied by paragraph 31).
27
1
The power to make an application under section 382(1) (restitution order) is exercisable by the Bank.
2
For the purposes of the application, any reference in that section to a relevant requirement is to be read in accordance with paragraph 26(2) of this Schedule F7(subject to sub-paragraph (3)).
F83
The power to make an application under section 382(1) is not exercisable by the Bank in respect of the contravention of a requirement imposed by or under Article 4 or 15 of the SFT regulation.
28
1
The power conferred by section 384(5) (power of FCA to require restitution order) is exercisable by the Bank.
2
That power is exercisable if the Bank is satisfied that a recognised clearing house F60or a recognised CSD has contravened a relevant requirement, or been knowingly concerned in the contravention of a relevant requirement, and—
a
that profits have accrued to the recognised clearing house F61or the recognised CSD as a result of the contravention; or
b
that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
3
For the purposes of that power, “relevant requirement” is to be read in accordance with paragraph 26(2) of this Schedule F9(subject to sub-paragraph (3A)).
F103A
The power conferred by section 384(5) is not exercisable by the Bank in respect of the contravention of a requirement imposed by or under Article 4 or 15 of the SFT regulation.
4
Where this paragraph applies, section 384(5) and (6) are to have effect as if—
a
any reference to the person concerned were a reference to the recognised clearing house F62or the recognised CSD; and
b
any reference to subsection (1) were a reference to sub-paragraph (2) of this paragraph.
Notices
29
The provisions of Part 26 of this Act (notices) apply in relation to a warning or decision notice given by the Bank under section 192L, 312G or 312H as they apply in relation to such a notice given by the FCA under that section.
Offences
30
Section 398 (misleading the FCA: residual cases) applies to information given to the Bank in purported compliance with—
a
b
a requirement that is imposed under any other provision of this Act by the Bank; or
c
a requirement that is imposed by any F64qualifying provision specified, or of a description specified, for the purposes of this paragraph by the Treasury by order.
31
1
Section 401 (proceedings for an offence) applies to the Bank as if for the purposes of subsections (2)(a) and (3)(a) of that section the Bank were an appropriate regulator in respect of each of the following offences—
a
an offence under section 177(3) where the investigation is being, or is likely to be, conducted on behalf of the Bank;
b
an offence under section 177(4) where the requirement is imposed by the Bank;
c
an offence under section 177(6) where the warrant is issued as a result of information on oath given by the Bank or a person appointed by it to conduct an investigation on its behalf;
d
an offence under section 398(1) where the information was given to the Bank.
2
Section 401(3B) has effect subject to the provision made by this paragraph (so that the FCA is not the appropriate regulator for the purposes of subsections (2)(a) and (3)(a) in respect of the above offences).
Records
32
Annual report
33
Paragraph 19 of Schedule 1ZB (annual report by PRA) applies in relation to the Bank, but—
a
as if for paragraphs (a) to (f) of sub-paragraph (1) there were substituted—
b
as if sub-paragraph (3) were omitted.
Sch. 17A inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 29(2), 122(3), Sch. 7 (with Sch. 20); S.I. 2013/113, art. 2(1)(b)(c), Sch. Pts. 2, 3; S.I. 2013/423, art. 3, Sch.