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Bank of England and Financial Services Act 2016

Contents

Legal background

  1. The existing governance arrangements for the Bank of England are primarily set out in the 1998 Act. Part 1 of that Act makes provision about the constitution, regulation and financial arrangements for the Bank, with Schedule 1 to the 1998 Act making additional provision in relation to the court of directors. Part 1A of and Schedule 2A to the 1998 Act make provision for the FPC, as a sub-committee of the court with responsibility for the Bank's financial stability objective, and set out the FPC's powers. Part 2 of and Schedule 3 to the 1998 Act make provision in relation to the MPC.
  2. The legislative framework for financial regulation is set out in FSMA. Part 1A of that Act establishes the FCA and the PRA (which is the financial regulator responsible for prudential regulation), and sets out their functions and objectives. Section 3B sets out the regulatory principles which must be applied by both regulators. Schedule 1ZB to FSMA provides for the constitution of the PRA. Part 2 of FSMA sets out the general prohibition on carrying on a regulated activity in the UK without being an authorised person or an exempt person, and makes provision (in sections 26 to 30 of FSMA) on the enforceability of agreements made in breach of the prohibition, or otherwise in breach of requirements under FSMA. Section 39 of FSMA provides for an exemption for "appointed representatives": a class of persons who are not directly regulated by the FCA or PRA as they act on behalf of a "principal" who is responsible for their conduct and is itself regulated for the activities the appointed representative carries on. The Financial Services and Markets Act 2000 (Appointed Representatives) Regulations 2001 (S.I. 2001/1217) prescribes the types of business that an appointed representative can carry on and provides for conditions that must be present in the contract between the principal and its appointed representative.
  3. Part 5 of FSMA makes provision for regulation of the conduct of people working in the financial services industry. It was amended by the 2013 Act, which introduced a special regime for people working in banks, building societies, credit unions and PRA-regulated investment firms. Part 9A of FSMA sets out the rule-making powers of the FCA and the PRA. Part 20A of FSMA makes provision for the giving of pensions guidance.
  4. Chapter 2 of Part 4 of the Pension Schemes Act 2015 imposes a requirement on the trustees or managers of a pension scheme to ensure members of the scheme have taken appropriate independent advice before converting or transferring safeguarded benefits to flexible benefits.
  5. Parts 1 to 3 of the 2009 Act give the Bank various powers to take action when a bank or another financial institution is failing to "resolve" that institution by, for example, transferring the business or part of the business of the institution to another entity. The consent of the Treasury is required by section 78 of the 2009 Act in relation to the exercise of any power in Part 1 of the Act which has implications for public funds. The Bank is required by the Bank Recovery and Resolution (No 2) Order 2014 (S.I. 2014/3348) to prepare resolution plans setting out what action the Bank will take to resolve a bank or other financial institution if that institution fails. Part 4 of the 2012 Act imposes a duty on the Bank to notify the Treasury whenever it considers that there is a material risk that public funds might be required in connection with the exercise by the Bank of its powers under Parts 1 to 3 of the 2009 Act.
  6. Part 6 of the 2009 Act authorises commercial banks to continue to issue Scottish or Northern Ireland banknotes if they had permission to do so before Part 6 came into force, but prohibits all other banks (apart from the Bank) from issuing banknotes, provides for the circumstances in which a bank's permission to issue these banknotes will terminate, and gives the Treasury power to make regulations about the issue of banknotes. If a bank ceases to issue banknotes its permission to do so will terminate, and Part 6 of the 2009 Act makes no provision for the permission to be transferred to another entity.

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