Legalize / United Kingdom / Public General Act

Banking Act 1987 (repealed)

Type Public General Act

Publication 1987-05-15

Last updated 2013-04-01

State In force

Department Statute Law Database

Source legislation.gov.uk

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Reform history JSON API

(b) that that prohibition shall apply to a person mentioned in any of paragraphs (c) to (h) of subsection (6) above or a person previously exempted from it by virtue of an order under paragraph (a) above.

(8) An order under paragraph (a) of subsection (7) above shall be subject to annulment in pursuance of a resolution of either House of Parliament; and no order shall be made under paragraph (b) of that subsection unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(9) Nothing in section 67 above shall prevent an institution which ceases to be an authorised institution to which that section or subsection (4) above applies or ceases to be exempted from the prohibition in that section by virtue of subsection (1) above from continuing to use any name it was previously permitted to use by virtue of that provision during the period of six months beginning with the day when it ceases to be such an institution.

Restriction on use of banking descriptions

69

(1) No person carrying on any business in the United Kingdom shall so describe himself or hold himself out as to indicate or reasonably be understood to indicate (whether in English or in any other language) that he is a bank or banker or is carrying on a banking business unless he is an authorised institution or is exempted from the requirements of this subsection under the following provisions of this section.

(2) Subsection (1) above shall not be taken to authorise the use by an authorised institution to which the prohibition in section 67 above applies of any description of itself as a bank or banker or as carrying on a banking business which is in such immediate conjunction with the name of the institution that the description might reasonably be thought to be part of it.

(3) Subsection (1) above does not prohibit the use by a building society authorised under the Building Societies Act 1986 of any description of itself as providing banking services unless the description is in such immediate conjunction with its name that it might reasonably be thought to be part of it.

(4) Subsection (1) above does not prohibit a person from using the expression “bank” or “banker” (or a similar expression) where it is necessary for him to do so in order to be able to assert that he is complying with, or entitled to take advantage of, any enactment, any instrument made under an enactment, any international agreement, any rule of law or any commercial usage or practice which applies to a person by virtue of his being a bank or banker.

(5) Subsection (1) above does not prohibit the use of a description by a relevant savings bank, a municipal bank or a school bank if the description is accompanied by a statement that the bank or body is a savings bank, a municipal bank or, as the case may be, a school bank; and for the purposes of this subsection “relevant savings bank” and “school bank” have the same meanings as in section 68 above.

(6) Subsection (1) above does not apply to—

(a) the Bank;

(b) the central bank of a member State other than the United Kingdom;

(d) the International Bank for Reconstruction and Development;

(e) the International Finance Corporation;

(f) the African Development Bank;

(g) the Asian Development Bank;

(h) the Caribbean Development Bank;

(i) the Inter-American Development Bank.

(7) The Treasury may, after consultation with the Authority, by order provide—

(a) that the prohibition in subsection (1) above shall not apply to any person or class of persons; or

(b) that that prohibition shall apply to a person mentioned in any of paragraphs (c) to (i) of subsection (6) above or a person previously exempted from it by an order under paragraph (a) above.

(8) An order under paragraph (a) of subsection (7) above shall be subject to annulment in pursuance of a resolution of either House of Parliament; and no order shall be made under paragraph (b) of that subsection unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

Power to object to institution's names

70

(1) Where an institution applies for authorisation under this Act it shall give notice to the Authority of any name it is using or proposes to use for the purposes of or in connection with any business carried on by it and the Authority may give the institution notice in writing—

(a) that it objects to the notified name; or

(b) in the case of an institution which is or will be obliged to disclose any name in connection with any business carried on by it by virtue of section 4 of the Business Names Act 1985 or Article 6 of the Business Names (Northern Ireland) Order 1986, that it objects to that name.

(2) Where an authorised institution proposes to change any name it uses for the purposes of or in connection with any business carried on by it or, in the case of such an institution as is mentioned in subsection (1)(b) above, any such name as is there mentioned, it shall give notice to the Authority of the proposed name and the Authority may within the period of two months beginning with the day on which it receives the notification give notice to the institution in writing that it objects to the proposed name.

(3) The Authority shall not give notice objecting to a name under subsection (1) or (2) above unless it considers that the name is misleading to the public or otherwise undesirable and, in the case of the use of a name by an authorised institution to which section 67 above applies—

(a) the whole of the name shall be taken into account in considering whether it is misleading or undesirable; but

(b) no objection may be made to so much of the name as it is entitled to use by virtue of that section.

(4) Where as a result of a material change in circumstances since the time when notice was given to the Authority under subsection (1) or (2) above or as a result of further information becoming available to the Authority since that time, it appears to the Authority that a name to which it might have objected under that subsection gives so misleading an indication of the nature of the institution’s activities as to be likely to cause harm to the public, the Authority may give notice in writing to the institution objecting to the name.

(5) Any notice to be given by an institution under this section shall be given in such manner and form as the Authority may specify and shall be accompanied by such information or documents as the Authority may reasonably require.

Effect of notices under s.70 and appeals

71

(1) Where the Authority has given notice to an authorised institution under section 70 above the institution shall not use the name to which the Authority has objected for the purposes of or in connection with any business carried on in the United Kingdom after the objection has taken effect; and for the purposes of this subsection the disclosure of a name in connection with such a business by virtue of section 4 of the Business Names Act 1985 or Article 6 of the Business Names (Northern Ireland) Order 1986 shall be treated (if it would not otherwise be) as use for the purposes of that business.

(2) For the purposes of this section an objection under section 70(1) or (2) above takes effect when the institution receives the notice of objection.

(3) An institution to which a notice of objection is given under section 70(1) or (2) above may within the period of three weeks beginning with the day on which it receives the notice apply to the court to set aside the objection and on such an application the court may set it aside or confirm it (but without prejudice to its operation before that time).

(4) For the purposes of this section an objection under section 70(4) above takes effect—

(a) in a case where no application is made under subsection (5) below, at the expiry of the period of two months beginning with the day on which the institution receives the notice of objection or such longer period as the notice may specify; or

(b) where an application is made under subsection (5) below and the court confirms the objection, after such period as the court may specify.

(5) An institution to which a notice of objection is given under section 70(4) above may within the period of three weeks beginning with the day on which it receives the notice apply to the court to set aside the objection.

(6) In this section “the court” means the High Court, the Court of Session or the High Court in Northern Ireland according to whether—

(a) if the institution concerned is a company registered in the United Kingdom, it is registered in England and Wales, Scotland or Northern Ireland; and

(b) in the case of any other institution, its principal or prospective principal place of business in the United Kingdom is situated in England and Wales, Scotland or Northern Ireland.

Registration of substitute corporate name by oversea company

72

(1) Where the Authority gives notice under section 70 above objecting to the corporate name of a company incorporated outside the United Kingdom, subsection (4) of section 694 of the Companies Act 1985 or, in Northern Ireland, paragraph (4) of Article 644 of the Companies (Northern Ireland) Order 1986 shall apply, subject to subsection (2) below, as it applies where a notice is served on a company under subsection (1) or (2) of that section or, as the case may be, paragraph (1) or (2) of that Article.

(2) No statement or further statement may be delivered under subsection (4) of section 694 or paragraph (4) of Article 644 by virtue of subsection (1) above unless the Authority has signified that it does not object to the name specified in the statement.

(3) Section 70(2) above shall not apply to a proposed change of a name which has been registered under section 694(4) of the Companies Act 1985 or Article 644(4) of the Companies (Northern Ireland) Order 1986 by virtue of subsection (1) above.

Offences under Part III

73

A person who contravenes any provision in this Part of this Act shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the fifth level on the standard scale or to both and, where the contravention involves a public display or exhibition of any name or description, there shall be a fresh contravention on each day on which the person causes or permits the display or exhibition to continue.

Part IV — Overseas Institutions with Representative Offices

Meaning of "overseas institution" and "representative office"

74

(1) In this Part of this Act “overseas institution” means a person (other than an authorised institution or any person for the time being specified in Schedule 2 to this Act) who—

(a) is a body corporate incorporated in a country or territory outside the United Kingdom or a partnership or other unincorporated association formed under the law of such a country or territory; or

(b) has his principal place of business in such a country or territory,

being, in either case, a person who satisfies one of the conditions mentioned in subsection (2) below.

(2) The conditions referred to in subsection (1) above are—

(a) that the person’s principal place of business is outside the United Kingdom and the person is authorised by the relevant supervisory authority in a country or territory outside the United Kingdom;

(b) that the person describes himself or holds himself out as being authorised by such an authority in a country or territory outside the United Kingdom;

(c) that the person uses any name or in any other way so describes himself or holds himself out as to indicate or reasonably be understood to indicate (whether in English or any other language), that he is a bank or banker or is carrying on a banking business (whether in the United Kingdom or elsewhere).

(3) In this Part of this Act “representative office”, in relation to any overseas institution, means premises from which the deposit-taking, lending or other financial or banking activities of the overseas institution are promoted or assisted in any way; and “establishment”, in relation to such an office, includes the making of any arrangements by virtue of which such activities are promoted or assisted from it.

Notice of establishment of representative office

75

(1) An overseas institution shall not establish a representative office in the United Kingdom unless it has given not less than two months’ notice to the Authority that it proposes to establish such an office and a notice under this subsection shall specify—

(a) any name the institution proposes to use in relation to activities conducted by it in the United Kingdom after the establishment of that office; and

(b) in the case of an institution which will be obliged to disclose any name in connection with those activities by virtue of section 4 of the Business Names Act 1985 or Article 6 of the Business Names (Northern Ireland) Order 1986, that name.

(2) Where an overseas institution has established a representative office in the United Kingdom before the date on which this Part of this Act comes into force and has not given notice of that fact to the Authority under section 40 of the Banking Act 1979 it shall give notice in writing to the Authority of the continued existence of that office within the period of two months beginning with that date; and the obligation of an overseas institution to give notice under this subsection in respect of the establishment of an office established within the period of one month ending with that date shall supersede any obligation to give notice in respect of that matter under that section.

(3) A notice under this section shall be given in such manner and form as the Authority may specify.

Power to object to names of overseas institutions

76

(1) An overseas institution which has established a representative office in the United Kingdom shall not change any name used by it in relation to activities conducted by it in the United Kingdom or, in the case of an institution which is obliged to disclose any name in connection with those activities as mentioned in section 75(1) above, that name unless it has given not less than two months’ notice to the Authority of the proposed name.

(2) Where notice of a name is given to the Authority by an overseas institution under section 75(1) or subsection (1) above and it appears to the Authority that the name is misleading to the public or otherwise undesirable it may, within the period of two months beginning with the day on which that notice was given, give notice in writing to the institution that it objects to that name.

(3) Where it appears to the Authority that an overseas institution which has established a representative office in the United Kingdom before the date on which this Part of this Act comes into force is using a name in relation to activities conducted by it in the United Kingdom which is misleading to the public or otherwise undesirable, the Authority may give notice in writing to the institution that it objects to the name—

(a) in a case where the Authority was notified of the establishment of the representative office before that date, within the period of six months beginning with that date; and

(b) otherwise, within the period of six months beginning with the date on which the establishment of the representative office comes to the Authority’s knowledge.

(4) Where, as a result of a material change in circumstances since the time when notice of a name was given to the Authority under section 75(1) or subsection (1) above or as a result of further information becoming available to the Authority since that time, it appears to the Authority that the name is so misleading as to be likely to cause harm to the public, the Authority may give notice in writing to the overseas institution in question that it objects to the name.

Effect of notices under s.76 and appeals

77

(1) Where the Authority has given notice under section 76 above to an overseas institution the institution shall not use the name to which the Authority has objected in relation to activities conducted by it in the United Kingdom after the objection has taken effect; and for the purposes of this subsection the disclosure of a name in connection with those activities as mentioned in section 75(1)(b) above shall be treated (if it would not otherwise be) as use of that name in relation to those activities.

(2) For the purposes of this section an objection under section 76(2) above takes effect when the institution receives the notice of objection.

(3) An institution to which a notice of objection is given under section 76(2) above may within the period of three weeks beginning with the day on which it receives the notice apply to the court to set aside the objection and on such an application the court may set it aside or confirm it (but without prejudice to its operation before that time).

(4) For the purposes of this section an objection under section 76(3) or (4) above takes effect—

(a) in a case where no application is made under subsection (5) below, at the expiry of the period of two months beginning with the day on which the institution receives the notice of objection or such longer period as the notice may specify; or

(b) where an application is made under subsection (5) below and the court confirms the objection, after such period as the court may specify.

(5) An institution to which a notice of objection is given under section 76(3) or (4) above may within the period of three weeks beginning with the day on which it receives the notice apply to the court to set aside the objection.

(6) In this section “the court” means the High Court, the Court of Session or the High Court in Northern Ireland according to whether the representative office of the institution in question is situated in England and Wales, Scotland or Northern Ireland.

Registration of substitute corporate name by overseas institution

78

(1) Where the Authority gives notice under section 76 above objecting to the corporate name of an overseas institution, subsection (4) of section 694 of the Companies Act 1985 or, in Northern Ireland, paragraph (4) of Article 644 of the Companies (Northern Ireland) Order 1986 shall apply, subject to subsection (2) below, as it applies where a notice is served on a company under subsection (1) or (2) of that section or, as the case may be, paragraph (1) or (2) of that Article.

(2) No statement or further statement may be delivered under subsection (4) of section 694 or paragraph (4) of Article 644 by virtue of subsection (1) above unless the Authority has signified that it does not object to the name specified in the statement.

(3) Section 76(1) above shall not apply to a change of a name which has been registered under section 694(4) of the Companies Act 1985 or Article 644(4) of the Companies (Northern Ireland) Order 1986 by virtue of subsection (1) above.

Duty to provide information and documents

79

(1) The Authority may by notice in writing require any overseas institution which has established a representative office in the United Kingdom or has given notice to the Authority under section 75(1) above of its intention to establish such an office to provide the Authority with such information or documents as the Authority may reasonably require.

(2) Without prejudice to the generality of subsection (1) above, the Authority may by notice in writing require such an overseas institution to deliver to the Authority—

(a) in the case of an overseas institution which is a company incorporated in the United Kingdom, copies of the documents which the company is required to send to the registrar of companies under section 10 of the Companies Act 1985 or Article 21 of the Companies (Northern Ireland) Order 1986;

(aa) in the case of an overseas institution to which section 690A of that Act applies, copies of the documents which it is required to deliver for registration in accordance with paragraph 1(1) or (2) of Schedule 21A of that Act;

(b) in the case of an overseas institution to which section 691(1) of that Act or Article 641(1) of that Order applies, copies of the document which it is required to deliver for registration in accordance with that section or Article;

(c) in the case of any other overseas institution (other than an individual), information corresponding to that which would be contained in the documents which it would be required to deliver as mentioned in paragraph (b) above if it were a company to which section 691(1) applied;

(d) in the case of an overseas institution which is authorised to take deposits or conduct banking business in a country or territory outside the United Kingdom by the relevant supervisory authority in that country or territory, a certified copy of any certificate from that authority conferring such authorisationon it.

(3) An overseas institution to which a notice is given under subsection (1) or (2) above shall comply with the notice—

(a) in the case of an institution which has established a representative office in the United Kingdom, before the end of such period as is specified in the notice; and

(b) in the case of an institution which has given notice under section 75(1) above of its intention to establish such an office, before it establishes the office.

(4) If at any time an overseas institution which has been required to deliver information or documents to the Authority under subsection (2) above is required to deliver any document or give notice to the registrar of companies under section 18 or 288(2) of the said Act of 1985 or Article 29 or 296(2) of the said Order of 1986, it shall no later than the time by which it must have complied with that requirement deliver a copy of that document or give notice to the Authority.

(5) If at any time an overseas institution is required to furnish any document or give notice to the registrar of companies under section 692, 695A(3) or 696 of, or paragraph 7 or 8 of Schedule 21A to, the said Act of 1985 or Article 642 or 646 of the said Order of 1986 (or would be so required if it were a company to which that section, paragraph or Article applied), it shall no later than the time by which it must have complied with that requirement deliver a copy of that document to the Authority.

(6) If at any time a certificate of authorisation of which a copy was required to be delivered to the Authority under subsection (2)(d) above is amended or the authorisation is withdrawn, the overseas institution shall no later than one month after the amendment or withdrawal deliver a copy of the amended certificate or, as the case may be, a notice stating that the authorisation has been withdrawn to the Authority.

(7) The Treasury may after consultation with the Authority by order provide that sections 39 and 40 above shall apply in relation to overseas institutions as they apply in relation to authorised institutions; but no order shall be made under this section unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

Regulations imposing requirements on overseas-based banks

80

(1) The Treasury may, after consultation with the Authority, by regulations impose on overseas institutions which have established or propose to establish representative offices in the United Kingdom such requirements as the Treasury consider appropriate in connection with those offices and the activities conducted from them.

(2) Regulations under this section may in particular require the establishment or continued existence of a representative office to be authorised by the Authority and such regulations may make provision for—

(a) the granting and revocation of such authorisations;

(b) the imposition of conditions in connection with the grant or retention of such authorisations; and

(3) No regulations shall be made under this section unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.

Offences under Part IV

81

A person who contravenes any provision in this Part of this Act or any requirement imposed under it shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the fifth level on the standard scale or to both and, where the contravention involves a public display or exhibition of any name or description, there shall be a fresh contravention on each day on which the person causes or permits the display or exhibition to continue.

Part V — Restriction on Disclosure of Information

Restricted information

82

(1) Except as provided by the subsequent provisions of this Part of this Act—

(a) no person who under or for the purposes of this Act receives information relating to the business or other affairs of any person; and

(b) no person who obtains any such information directly or indirectly from a person who has received it as aforesaid,

shall disclose the information without the consent of the person to whom it relates and (if different) the person from whom it was received as aforesaid.

(2) This section does not apply to information which at the time of the disclosure is or has already been made available to the public from other sources or to information in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it.

(3) Any person who discloses information in contravention of this section shall be guilty of an offence and liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both.

Disclosure for facilitating discharge of functions by the Bank

83

(1) Section 82 above does not preclude the disclosure of information in any case in which disclosure is for the purpose of enabling or assisting the Authority to discharge.

(a) its function as a monetary authority; or

(aa) its functions in its capacity as a designated agency within the meaning of the Financial Services Act 1986; or

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

(2) Without prejudice to the generality of subsection (1) above, that section does not preclude the disclosure of information by the Authority to the auditor of an authorised institution or former authorised institution if it appears to the Authority that disclosing the information would enable or assist the Authority to discharge the functions mentioned in that subsection or would otherwise be in the interests of depositors.

(3) If, in order to enable or assist the Authority properly to discharge any of its functions under this Act, the Authority considers it necessary to seek advice from any qualified person on any matter of law, accountancy, valuation or other matter requiring the exercise of professional skill, section 82 above does not preclude the disclosure by the Authority to that person of such information as appears to the Authority to be necessary to ensure that he isproperly informed with respect to the matters on which his advice is sought.

Disclosure for facilitating discharge of functions by other supervisory authorities

84

(1) Section 82 above does not preclude the disclosure by the Authority of information to any person specified in the first column of the following Table if the Authority considers that the disclosure would enable or assist that person to discharge the functions specified in relation to him in the second column of that Table.

Person	Functions
1.The Secretary of State.	Functions under the Insurance Companies Act 1982, Part XIV of the Companies Act 1985, Part XIII of the Insolvency Act 1986 , the Financial Services Act 1986 or Part II, III or VII of the Companies Act 1989.
2.The Treasury	Functions under the Insurance Companies Act 1982, under the Financial Services Act 1986 or under Part III or Part VII of the Companies Act 1989 .
3.An inspector appointed under Part XIV of the Companies Act 1985 or section 94 or 177 of the Financial Services Act 1986.	Functions under that Part or that section.
4.A person authorised to exercise powers under section 43A or 44 of the Insurance Companies Act 1982, section 447 of the Companies Act 1985, section 106 of the Financial Services Act 1986 or section 84 of the Companies Act 1989.	Functions under that section.
4A The Bank of England.	Functions in its capacity as a monetary authority or supervisor of systems for the transfer of funds between credit institutions and their customers.
5.The Chief Registrar of friendly societies, . . . and the Assistant Registrar of Friendly Societies for Scotland.	Functions under the enactments relating to friendly societies . . ..
5AThe Friendly Societies Commission.	Functions under the enactments relating to friendly societies or under the Financial Services Act 1986.
6.The Industrial Assurance Commissioner and the Industrial Assurance Commissioner for Northern Ireland.	Functions under the enactments relating to industrial assurance.
7.The Building Societies Commission.	Functions under the Building Societies Act 1986 and protecting the interests of the shareholders and depositors of building societies.
8.The Director General of Fair Trading.	Functions under the Consumer Credit Act 1974.
9.A designated agency (within the meaning of the Financial Services Act 1986.	Functions under the Financial Services Act 1986 or Part VII of the Companies Act 1989.
10.A transferee body or the competent authority (within the meaning of the Financial Services Act 1986).	Functions under the Financial Services Act 1986.
11.A recognised self-regulating organisation, recognised professional body, recognised investment exchange, . . . or recognised self-regulating organisation for friendly societies (within the meaning of the Financial Services Act 1986).	Functions in its capacity as an organisation, body, or exchange recognised under the Financial Services Act 1986.
11AA recognised clearing house (within the meaning of the Financial Services Act 1986).	Functions in its capacity as a clearing house under the Financial Services Act 1986 so far as they are exercisable in relation to defaults or potential defaults by market participants.
11BA person approved under the Uncertificated Securities Regulations 2001 as an operator of a relevant system (within the meaning of those Regulations).	Functions as a person so approved so far as they are exercisable in relation to defaults or potential defaults by market participants.
11CA recognised supervisory body (within the meaning of Part II of the Companies Act 1989).	Functions in its capacity as such a body under that Part or functions in relation to disciplinary proceedings against auditors.
. . .	. . .
12.A recognised professional body (within the meaning of section 391 of the Insolvency Act 1986).	Functions in its capacity as such a body under the Insolvency Act 1986 or functions in relation to disciplinary proceedings against insolvency practitioners (within the meaning of that Act).
13.The Department of Economic Development in Northern Ireland.	Functions under Part XV of the Companies (Northern Ireland) Order 1986 or Part XII of the Insolvency (Northern Ireland) Order 1989or Part III of the Companies (Northern Ireland) Order 1990 or Part II or V of the Companies (No. 2) (Northern Ireland) Order 1990.
14.An inspector appointed under Part XV of the Companies (Northern Ireland) Order 1986 . . .	Functions under that Part . . ..
15.A person authorised to exercise powers under Article 440 of the Companies (Northern Ireland) Order 1986 . . ..	Functions under that Article . . ..
16.The Official Receiver or, in Northern Ireland, the Official Receiver for Northern Ireland	Investigating the cause of the failure of an authorised institution or former authorised institution in respect of which a winding-up order, or bankruptcy orderhas been made.
17.Panel on Take-overs and Mergers	All its functions
18.A person included in the list maintained by the Authority for the purposes of section 171 of the Companies Act 1989.	Functions under settlement arrangements to which regulations under that section relate.
19.A recognised professional body (within the meaning of Article 350 of the Insolvency (Northern Ireland) Order 1989).	Functions in its capacity as such a body under the Insolvency (Northern Ireland) Order 1989 or functions in relation to disciplinary proceedings against insolvency practitioners (within the meaning of that Order).
20A recognised supervisory body (within the meaning of Part III of the Companies (Northern Ireland) Order 1990).	Functions in its capacity as such a body under that Part, or functions in relation to disciplinary proceedings against auditors.
20. The Occupational Pensions Regulatory Authority.	Functions under the Pension Schemes Act 1993 or the Pensions Act 1995 or any enactment in force in Northern Ireland corresponding to either of them.
[21. The Operator within the meaning of the Uncertificated Securities Regulations 1992.]	[Functions of the Treasury under Parts IX, X, XII and XIV of the Uncertificated Securities Regulations 1992 which are for the time being delegated to the Operator. ]

(2) The Treasury may after consultation with the Authority by order amend the Table in subsection (1) above by—

(a) adding any person exercising regulatory functions and specifying functions in relation to that person;

(b) moving any person for the time being specified in the Table; or

and the Treasury may also after consultation with the Authority by order restrict the circumstances in which, or impose conditions subject to which, disclosure is permitted in the case of any person for the time being specified in the Table.

(3) An order under subsection (2) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Section 82 above does not preclude the disclosure by any person specified in the first column of the Table in subsection (1) above of information obtained by him by virtue of that subsection if he makes the disclosure with the consent of the Authority and for the purpose of enabling or assisting him to discharge any functions specified in relation to him in the second column of that Table; and before deciding whether to give its consent to such a disclosure by any person the Authority shall take account of such representations made by him as to the desirability of or the necessity for the disclosure.

(5) Section 82 above does not preclude the disclosure by the Authority of information to the Treasury if disclosure appears to the Authority to be—

(a) desirable or expedient in the interests of depositors; or

(b) in the public interest,

and (in either case) in accordance with article 30(9) of the Banking Consolidation Directive.

(5A) Section 82 above does not preclude the disclosure by the Authority of information to the Secretary of State for purposes other than those specified in relation to him in subsection (1) above if the disclosure is made with the consent of the Treasury and—

(a) the information relates to an authorised institution or former authorised institution and does not enable the financial affairs of any other identifiable person to be ascertained and disclosure appears to the Authority to be necessary in the interests of depositors or in the public interest; or

(b) in any other case, disclosure appears to the Authority to be necessary in the interests of depositors;

and (in either case) disclosure appears to the Authority to be in accordance with article 30(9) of the Banking Consolidation Directive.

(6) Section 82 above does not preclude the disclosure of information for the purpose of enabling or assisting an authority in a country or territory outside the United Kingdom to exercise—

(a) functions corresponding to those of—

(i) the Authority under this Act or the Banking Coordination (Second Council Directive) Regulations 1992;

(ii) the Secretary of State or the Treasuryunder the Insurance Companies Act 1982, Part XIII of the Insolvency Act 1986 or the Financial Services Act 1986; or

(iii) the competent authority under Part IV of the Financial Services Act 1986;

(b) functions in connection with rules of law corresponding to any of the provisions of Part V of the Criminal Justice Act 1993 (insider dealing) or Part VII of the Financial Services Act 1986; . . .

(7) Subsection (6) above does not apply in relation to disclosures to an authority which is not a supervisory authority in another member State unless the Authority is satisfied that the authority is subject to restrictions on further disclosures at least equivalent to those imposed by this Part of this Act.

(8) Information which is disclosed to a person in pursuance of subsection (1), (4) or (6) above shall not be used otherwise than for the purpose mentioned in that subsection.

(9) Any person who uses information in contravention of subsection (8) above shall be liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding the fifth level on the standard scale or to both.

(10) Subject to subsection (11) below,Any reference in this section to enabling or assisting any person to discharge or exercise any functions is a reference to enabling or assisting that person to discharge or exercise those functions in relation to—

(a) a financial market; . . .

(b) persons carrying on the business of banking or insurance, Consumer Credit Act businesses or the business of providing other financial services; or

(c) persons involved in the operation of occupational pension schemes (within the meaning of the Pension Schemes Act 1993 or, in Northern Ireland, the Pension Schemes (Northern Ireland) Act 1993)

and in this subsection ’Consumer Credit Act business’ has the same meaning as in the Banking Coordination (Second Council Directive) Regulations 1992.

(11) Subsection (10) above shall not apply in relation to references to enabling or assisting the discharge or exercise of the following functions, namely—

(a) functions of the Secretary of State under Part XIV of the Companies Act 1985, Part XIII of the Insolvency Act 1986 or Part II of the Companies Act 1989 or, so far as relating to the breach of any law relating to companies, under section 83 of the Companies Act 1989;

(b) functions of an inspector under Part XIV of the Companies Act 1985 or, so far as relating to offences involving securities of a company, under section 177 of the Financial Services Act 1986;

(b) functions of a person authorised to exercise powers under section 84 of the Companies Act 1989, so far as relating to the breach of any law relating to companies;

(d) functions of a recognised clearing house (within the meaning of the Financial Services Act 1986);

(e) functions of a person approved under the Uncertificated Securities Regulations 2001 as an operator of a relevant system (within the meaning of those Regulations);

(f) functions of a recognised supervisory body (within the meaning of Part II of the Companies Act 1989);

(g) functions of a recognised professional body (within the meaning of section 391 of the Insolvency Act 1986);

(h) functions of the Department of Economic Development in Northern Ireland under Part XV of the Companies (Northern Ireland) Order 1986, Part XII of the Insolvency (Northern Ireland) Order 1989 or Part III of the Companies (Northern Ireland) Order 1990;

(i) functions of an inspector under Part XV of the Companies (Northern Ireland) Order 1986;

(j) functions of a recognised professional body (within the meaning of Article 350 of the Insolvency (Northern Ireland) Order 1989);

(k) functions of a recognised supervisory body (within the meaning of Part III of the Companies (Northern Ireland) Order 1990);

(l) functions of a supervisory authority in another EEA State in its capacity as a supervisor of systems for the transfer of funds between credit institutions and their customers.

(12) In this section ’another EEA State’ means a State other than the United Kingdom which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993.

Other permitted disclosures

85

(1) Section 82 above does not preclude the disclosure of information—

(a) for the purpose of enabling or assisting the Board of Banking Supervision or the Deposit Protection Board or any other person to discharge its or his functions under this Act;

(b) for the purpose of enabling or assisting a person to do anything which he is required to do in pursuance of a requirement imposed under section 39(1)(b) above;

(c) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, whether under this Act or otherwise;

(d) in connection with any other proceedings arising out of this Act;

(e) with a view to the institution of, or otherwise for the purposes of, proceedings under section 7 or 8 of the Company Directors Disqualification Act 1986 or Article 10 or 11 of the Companies (Northern Ireland) Order 1989 in respect of a director or former director of an authorised institution or former authorised institution;

(f) in connection with any proceedings in respect of an authorised institution or former authorised institution under the Bankruptcy (Scotland) Act 1985 or Parts I to VII or IX to XI of the Insolvency Act 1986 or Parts II to VII or IX and X of the Insolvency (Northern Ireland) Order 1989 which the Authority has instituted or in which it has a right to be heard;

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h) in pursuance of a Community obligation.

(1A) The disclosures permitted by subsection (1)(f) above do not include the disclosure of information relating to a person who (not being a director, controller or manager of the institution) is or has been, to the knowledge of the person making the disclosure, involved in an attempt to secure the survival of the institution as a going concern.

(2) Section 82 above does not preclude the disclosure by the Authority to the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland, the Lord Advocate, a procurator fiscal or a constable of information obtained by virtue of section 41, 42 or 43 above or of information in the possession of the Authority as to any suspected contravention in relation to which the powers conferred by those sections are exercisable.

(3) Section 82 above does not preclude the disclosure of information by the Deposit Protection Board to any person or body responsible for a scheme for protecting depositors or investors (whether in the United Kingdom or elsewhere) similar to that for which provision is made by Part II of this Act if it appears to the Board that disclosing the information would enable or assist the recipient of the information or the Board to discharge his or its functions.

Information supplied to Bank by relevant overseas authority

86

(1) Section 82 above applies also to information which—

(a) has been supplied to the Authority for the purposes of any relevant functions by the relevant supervisory authority in a country or territory outside the United Kingdom; or

(b) has been obtained for those purposes by the Authority, or by a person acting on its behalf, in another member State.

(2) Subject to subsections (3) and (4) below, information supplied or obtained as mentioned in subsection (1)(a) or (b) above shall not be disclosed except as provided by section 82 above or—

(a) for the purpose of enabling or assisting the Authority to discharge any relevant functions or any functions in its capacity as a designated agency within the meaning of the Financial Services Act 1986; or

(b) with a view to the institution of, or otherwise for the purposes of, criminal proceedings, whether under this Act or otherwise.

(3) Information supplied to the Authority for the purposes of any relevant functions by the relevant supervisory authority in another member State may be disclosed—

(a) to a relevant recipient, if the authority consents to its disclosure and the case is one in which information to which section 82 above applies could be so disclosed by virtue of section 84(1) or (2) above; or

(b) to the Treasury or the Secretary of State, if the authority consents to its disclosure and the case is one in which information to which section 82 above applies could be so disclosed by virtue of section 84(5) or (5A) above.

(4) Information obtained as mentioned in subsection (1)(b) above may be disclosed—

(a) to a relevant recipient, if the relevant supervisory authority in the member State concerned consents to its disclosure and the case is one in which information to which section 82 above applies could be so disclosed by virtue of section 84(1) or (2) above; or

(b) to the Treasury or the Secretary of State, if that authority consents to its disclosure and the case is one in which information to which section 82 above applies could be so disclosed by virtue of section 84(5) or (5A) above.

(4A) Before the Authority discloses information to any person under subsection (3) above, it shall notify the relevant supervisory authority which supplied the information of the name and responsibilities of that person.

(5) In this section— “relevant functions”, in relation to the Authority, means its functions under this Act and its functions as a supervisor of money market institutions;

’relevant recipient’ means a person specified in any of entries 1 to 8, 13 to 15 and 17 in the Table in section 84(1) above.

Disclosure of information obtained under other Acts

87

(1) After section 174(3) of the Consumer Credit Act 1974 there shall be inserted—

(3A) Subsections (1) and (2) do not apply to any disclosure of information by the Director to the Bank of England for the purpose of enabling or assisting the Bank to discharge its functions under the Banking Act 1987 or the Director to discharge his functions under this Act.

(2) Information disclosed to the Authority under subsection (1) of section 449 of the Companies Act 1985 for the purpose of enabling or assisting it to discharge its functions under this Act or in its capacity as a competent authority under subsection (3)(ha) of that section may be disclosed—

(a) with the consent of the Secretary of State, in any case in which information to which section 82 applies could be disclosed by virtue of section 84(1) or (2) above; and

(b) in any case in which information to which section 82 above applies could be disclosed by virtue of any of the other provisions of this Part of this Act.

(3) Information disclosed to the Authority under paragraph (1) of Article 442 of the Companies (Northern Ireland) Order 1986 for the purpose of enabling or assisting it to discharge its functions under this Act or in its capacity as a competent authority under paragraph (3)(ha) of that Article may be disclosed—

(a) with the consent of the Department of Economic Development in Northern Ireland, in any case in which information to which section 82 above applies could be disclosed by virtue of section 84(1) or (2) above; and

(b) in any case in which information to which section 82 above applies could be disclosed by virtue of any of the other provisions of this Part of this Act.

(3A) Information disclosed by the Building Societies Commission to the Authority for the purpose of enabling or assisting it to discharge any relevant functions may be disclosed—

(a) to a relevant recipient, if the Commission consents to its disclosure and the case is one in which information to which section 82 above applies could be so disclosed by virtue of section 84(1) or (2) above; or

(b) to the Treasury or the Secretary of State, if the Commission consents to its disclosure and the case is one in which information to which section 82 above applies could be so disclosed by virtue of section 84(5)(a) or (5A) above;

and in this subsection “relevant functions” has the same meaning as in section 86 above and “relevant recipient” means a person specified in any of entries 1 to 8, 13 to 15 and 17 in the Table in section 84(1) above.

(4) Any information which has been lawfully disclosed to the Authority may be disclosed by it to the Board of Banking Supervision so far as necessary for enabling or assisting the Board to discharge its functions under this Act.

Part VI — Miscellaneous and Supplementary

Exclusion of authorised institution's agreements from Consumer Credit Act 1974

88

(1) The Consumer Credit Act 1974 shall be amended as follows.

(2) In section 16(1) (consumer credit agreements with certain bodies exempt from regulation) after paragraph (g) there shall be inserted

, or (h) an authorised institution or wholly-owned subsidiary (within the meaning of the Companies Act 1985) of such an institution.

(3) In section 16(3) (Secretary of State’s duty to consult before making orders) after paragraph (e) there shall be inserted

or (f) under subsection (1)(h) without consulting the Treasury and the Bank of England.

(4) In section 189(1) (definitions) after the definition of “association” there shall be inserted—

“authorised institution” means an institution authorised under the Banking Act 1987;

Electronic transfer of funds

89

After section 187(3) of the Consumer Credit Act 1974 (arrangements to be disregarded in determining whether a consumer credit agreement is to be treated as entered into in accordance with prior or in contemplation of future arrangements between creditor and supplier) there shall be inserted—

(3A) Arrangements shall also be disregarded for the purposes of subsections (1) and (2) if they are arrangements for the electronic transfer of funds from a current account at a bank within the meaning of the Bankers’ Books Evidence Act 1879.

Disclosure of transactions by authorised institutions with chief executives and managers

90

(1) For section 233(3) of the Companies Act 1985 there shall be substituted—

(3) Subsections (1) and (2) do not apply in relation to any transaction, arrangement or agreement made by an authorised institution for any officer of the institution or for any officer of its holding company unless the officer is a chief executive or manager within the meaning of the Banking Act 1987; and references to officers in Part II of Schedule 6 shall be construed accordingly.

(2) For Article 241(3) of the Companies (Northern Ireland) Order 1986 there shall be substituted—

(3) Paragraphs (1) and (2) do not apply in relation to any transaction, arrangement or agreement made by an authorised institution for any officer of the institution or for any officer of its holding company unless that officer is a chief executive or manager within the meaning of the Banking Act 1987; and references to officers in Part II of Schedule 6 shall be construed accordingly.

Powers for securing reciprocal facilities for banking and other financial business

91

For the avoidance of doubt it is hereby declared that a notice under section 183 of the Financial Services Act 1986 (disqualification or restriction of persons connected with overseas countries which do not afford reciprocal facilities for financial business) may be served on any person connected with the country in question who is carrying on or appears to the Secretary of State or the Treasury to intend to carry on in, or in relation to, the United Kingdom business of any of the descriptions specified in subsection (1) of that section whether or not it is of the same description as that affected by the less favourable terms which are the occasion for the service of the notice.

Winding up on petition from the Bank

92

(1) On a petition presented by the Authority by virtue of this section the court having jurisdiction under the Insolvency Act 1986 may wind up an authorised institution or former authorised institution if—

(a) the institution is unable to pay its debts within the meaning of section 123 or, as the case may be, section 221 of that Act; or

(b) the court is of the opinion that it is just and equitable that the institution should be wound up;

and for the purposes of such a petition an institution which defaults in an obligation to pay any sum due and payable in respect of a deposit shall be deemed to be unable to pay its debts as mentioned in paragraph (a) above.

(2) Where a petition is presented under subsection (1) above for the winding up of a partnership on the ground mentioned in paragraph (b) of that subsection or, in Scotland, on the ground mentioned in paragraph (a) or (b) of that subsection, the court shall have jurisdiction and the Insolvency Act 1986 shall have effect as if the partnership were an unregistered company within the meaning of section 220 of that Act.

(3) On a petition presented by the Authority by virtue of this section the High Court in Northern Ireland may wind up an authorised institution if—

(a) the institution is unable to pay its debts within the meaning of Article 103 or, as the case may be, Article 185 of the Insolvency (Northern Ireland) Order 1989; or

(b) the court is of the opinion that it is just and equitable that the institution should be wound up;

(4) Where a petition is presented under subsection (3) above for the winding up of a partnership on the ground mentioned in paragraph (b) of that subsection, the court shall have jurisdiction and the said Order of 1989 shall have effect as if the partnership were an unregistered company within the meaning of Article184 of that Order.

(5) For the purposes of this section the definition of deposit in section 5 above shall be treated as including any sum that would otherwise be excluded by subsection (3)(a), (b) or (c) of that section.

(6) This section applies to a company or partnership which has contravened section 3 above as it applies to an authorised institution.

Injunctions

93

(1) If on the application of the Authority, the Director of Public Prosecutions, the Lord Advocate or the Director of Public Prosecutions for Northern Ireland the court is satisfied—

(a) that there is a reasonable likelihood that a person will contravene section 3, 18, 35, 67, 69, 71, or 77 above, a direction under section 19 above or regulations under section 32, 34, or 80 above; or

(b) that any person has been guilty of any such contravention and that there is a reasonable likelihood that the contravention will continue or be repeated,

the court may grant an injunction restraining, or in Scotland an interdict prohibiting, the contravention.

(2) If on the application of the Authority, the Director of Public Prosecutions, the Lord Advocate or the Director of Public Prosecutions for Northern Ireland it appears to the court that a person may have been guilty of such a contravention as is mentioned in subsection (1) above the court may grant an injunction restraining, or in Scotland an interdict prohibiting, him from disposing of or otherwise dealing with any of his assets while the suspected contravention is investigated.

(3) The jurisdiction conferred by this section shall be exercisable by the High Court and the Court of Session.

False and misleading information

94

(1) Any person who knowingly or recklessly provides the Authority or any other person with information which is false or misleading in a material particular shall be guilty of an offence if the information is provided—

(a) in purported compliance with a requirement imposed by or under this Act; or

(b) otherwise than as mentioned in paragraph (a) above but in circumstances in which the person providing the information intends, or could reasonably be expected to know, that the information would be used by the Authority for the purpose of exercising its functions under this Act.

(2) Any person who knowingly or recklessly provides the Authority or any other person with information which is false or misleading in a material particular shall be guilty of an offence if the information is provided in connection with an application for authorisation under this Act.

(3) An authorised institution or former authorised institution shall be guilty of an offence if it fails to provide the Authority with any information in its possession knowing or having reasonable cause to believe—

(a) that the information is relevant to the exercise by the Authority of its functions under this Act in relation to the institution; and

(b) that the withholding of the information is likely to result in the Authority being misled as to any matter which is relevant to and of material significance for the exercise of those functions in relation to the institution.

(4) Any person who knowingly or recklessly provides any person appointed under section 41 above with information which is false or misleading in a material particular shall be guilty of an offence.

(5) Any person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

Restriction of Rehabilitation of Offenders Act 1974

95

(1) The Rehabilitation of Offenders Act 1974 shall have effect subject to the provisions of this section in cases where the spent conviction is for—

(a) an offence involving fraud or other dishonesty; or

(b) an offence under legislation (whether or not of the United Kingdom) relating to companies (including insider dealing), building societies, industrial and provident societies, credit unions, friendly societies, insurance, banking or other financial services, insolvency, consumer credit or consumer protection.

(2) Nothing in section 4(1) (restriction on evidence as to spent convictions in proceedings) shall prevent the determination in any proceeding arising out of any such decision of the Authority as is mentioned in section 27(1) or (3) above (including proceedings on appeal to any court) of any issue, or prevent the admission or requirement in any such proceedings of any evidence, relating to a person’s previous convictions for any such offence as is mentioned in subsection (1) above or the circumstances ancillary thereto.

(3) A conviction for such an offence as is mentioned in subsection (1) above shall not be regarded as spent for the purposes of section 4(2) (questions relating to an individual’s previous convictions) if—

(a) the question is put by or on behalf of the Authority and the individual is a person who is or is seeking to become a director, controller or manager of an authorised institution, a former authorised institution or an institution which has made an application for authorisation which has not been disposed of; or

(b) the question is put by or on behalf of any such institution and the individual is or is seeking to become a director, controller or manager of that institution,

and the person questioned is informed that by virtue of this section convictions for any such offence are to be disclosed.

(4) Section 4(3)(b) (spent conviction not to be ground for excluding person from office, occupation etc.) shall not—

(a) prevent the Authority from refusing to grant or revoking an authorisation on the ground that an individual is not a fit and proper person to be a director, controller or manager of the institution in question or from imposing a restriction or giving a direction requiring the removal of an individual as director, controller or manager of an institution; or

(b) prevent an authorised institution, a former authorised institution or an institution which has made an application for authorisation which has not yet been disposed of from dismissing or excluding an individual from being a director, controller or manager of the institution,

by reason, or partly by reason, of a spent conviction of that individual for such an offence as is mentioned in subsection (1) above or any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.

(5) For the purposes of subsections (3) and (4) above an application by an institution is not disposed of until the decision of the Authority on the application is communicated to the institution.

(6) This section shall apply to Northern Ireland with the substitution for the references to the said Act of 1974 and section 4(1), (2) and (3)(b) of that Act of references to the Rehabilitation of Offenders (Northern Ireland) Order 1978 and Article 5(1), (2) and (3)(b) of that Order.

Offences

96

(1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3) In the case of a person who by virtue of subsection (1) or (2) above or section 98(6) or (7) below is guilty of an offence under section 12(6) or 19(6) above the penalty that can be imposed on conviction on indictment shall be imprisonment for a term not exceeding two years or a fine or both.

(4) In any proceedings for an offence under this Act it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.

(5) No proceedings for an offence under this Act shall be instituted—

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions or the Authority; or

(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland or the Authority.

(6) In relation to proceedings against a building society incorporated (or deemed to be incorporated) under the Building Societies Act 1986 subsection (5) above shall have effect with the substitution for references to the Authority of references to the Building Societies Commission.

(7) In relation to proceedings against a friendly society within the meaning of section 7(1)(a) of the Friendly Societies Act 1974 the reference in paragraph (a) of subsection (5) above to the Authority shall include a reference to the Chief Registrar of friendly societies; . . ..

Summary proceedings

97

(1) Summary proceedings for any offence under this Act may, without prejudice to any jurisdiction exercisable apart from this subsection, be taken against an institution, including an unincorporated institution, at any place at which it has a place of business, and against an individual at any place at which he is for the time being.

(2) Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980, any information relating to an offence under this Act which is triable by a magistrates’ court in England and Wales may be so tried if it is laid at any time within three years after the commission of the offence and within six months after the relevant date.

(3) Notwithstanding anything in section 136 of the Criminal Procedure (Scotland) Act 1995, summary proceedings for such an offence may be commenced in Scotland at any time within three years after the commission of the offence and within six months after the relevant date; and subsection (3) of that section shall apply for the purposes of this subsection as it applies for the purposes of that section.

(4) Notwithstanding anything in Article 19(1) of the Magistrates’ Courts (Northern Ireland) Order 1981, a complaint relating to such an offence which is triable by a court of summary jurisdiction in Northern Ireland may be so tried if it is made at any time within three years after the commission of the offence and within six months after the relevant date.

(5) In this section—

“the relevant date” means the date on which evidence sufficient in the opinion of the prosecuting authority to justify proceedings comes to its knowledge; and

“the prosecuting authority” means the authority by or with whose consent the proceedings are instituted in accordance with section 96 above or, in Scotland, the Lord Advocate.

(6) For the purposes of subsection (5) above, a certificate of any prosecuting authority as to the date on which such evidence as is there mentioned came to its knowledge shall be conclusive evidence of that fact.

Offences committed by unincorporated associations

98

(1) Proceedings for an offence alleged to have been committed under this Act by an unincorporated association shall be brought in the name of that association (and not in that of any of its members) and, for the purposes of any such proceedings, any rules of court relating to the service of documents shall have effect as if the association were a corporation.

(2) A fine imposed on an unincorporated association on its conviction of an offence under this Act shall be paid out of the funds of the association.

(3) Section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980 (procedure on charge of offence against a corporation) shall have effect in a case in which an unincorporated association is charged in England or Wales with an offence under this Act in like manner as they have effect in the case of a corporation so charged.

(4) In relation to any proceedings on indictment in Scotland for an offence alleged to have been committed under this Act by an unincorporated association, section 70 of the Criminal Procedure (Scotland) Act 1995 (proceedings on indictment against bodies corporate) shall have effect as if the association were a body corporate.

(5) Section 18 of the Criminal Justice Act (Northern Ireland) 1945 and Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981 (procedure on charge of offence against a corporation) shall have effect in a case in which an unincorporated association is charged in Northern Ireland with an offence under this Act in like manner as they have effect in the case of a corporation so charged.

(6) Where a partnership is guilty of an offence under this Act, every partner, other than a partner who is proved to have been ignorant of, or to have attempted to prevent the commission of the offence, shall also be guilty of that offence and be liable to be proceeded against and punished accordingly.

(7) Where any other unincorporated association is guilty of an offence under this Act, every officer of the association who is bound to fulfil any duty whereof the offence is a breach, or if there is no such officer then every member of the committee or other similar governing body, other than a member who is proved to have been ignorant of, or to have attempted to prevent the commission of the offence, shall also be guilty of that offence and be liable to be proceeded against and punished accordingly.

Service of notices on the Bank

99

(1) No notice required by this Act to be given to or served on the Authority shall be regarded as given or served until it is received.

(2) Subject to subsection (1) above, any such notice may be given or served by telex or other similar means which produce a document containing the text of the communication.

Service of other notices

100

(1) This section has effect in relation to any notice, direction or other document required or authorised by or under this Act to be given to or served on any person other than the Authority.

(2) Any such document may be given to or served on the person in question—

(a) by delivering it to him; or

(b) by leaving it at his proper address; or

(d) by sending it to him at that address by telex or other similar means which produce a document containing the text of the communication.

(3) Any such document may—

(a) in the case of a body corporate, be given to or served on the secretary or clerk of that body; and

(b) in the case of any other description of institution, be given to or served on a controller of the institution.

(4) For the purposes of this section and section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person to or on whom a document is to be given or served shall be his last known address, except that—

(a) in the case of a body corporate or its secretary or clerk, it shall be the address of the registered or principal office of that body in the United Kingdom; and

(b) in the case of any other description of institution or a person having control or management of its business, it shall be that of the principal office of the institution in the United Kingdom.

(5) If the person to or on whom any document mentioned in subsection (1) above is to be given or served has notified the Authority of an address within the United Kingdom, other than his proper address within the meaning of subsection (4) above, as the one at which he or someone on his behalf will accept documents of the same description as that document, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address.

Evidence

101

(1) In any proceedings, a certificate purporting to be signed on behalf of the Authority and certifying—

(a) that a particular person is or is not an authorised institution or was or was not such an institution at a particular time;

(b) the date on which a particular institution became or ceased to be authorised;

(d) the date on which a restricted authorisation expires; or

(e) the date on which a particular institution became or ceased to be a recognised bank or licensed institution under the Banking Act 1979,

shall be admissible in evidence and, in Scotland, shall be sufficient evidence of the facts stated in the certificate.

(2) A certificate purporting to be signed as mentioned in subsection (1) above shall be deemed to have been duly signed unless the contrary is shown.

Orders and regulations

102

Any power of the Treasury to make orders or regulations under this Act shall be exercisable by statutory instrument.

Municipal banks

103

(1) References in this Act to a municipal bank are to a company within the meaning of the Companies Act 1985 which—

(a) carries on a deposit-taking business,

(b) is connected with a local authority as mentioned in subsection (2) below, and

(2) The connection referred to in paragraph (b) of subsection (1) above between a company and a local authority is that—

(a) the company’s articles of association provide that the shares in the company are to be held only by members of the local authority; and

(b) substantially all the funds lent by the company are lent to the local authority.

(3) Where on 9th November 1978 a company or its predecessor—

(a) was carrying on a deposit-taking business, and

(b) was connected with a local authority as mentioned in subsection (2) above,

that local authority or its successor may for the purposes of this Act resolve to guarantee deposits with the company.

(4) A resolution passed by a local authority under subsection (3) above may not be rescinded.

(5) Where a local authority has passed a resolution under subsection (3) above or under section 48(3) of the Banking Act 1979, that local authority and any local authority which is its successor shall be liable, if the company concerned defaults in payment, to make good to a depositor the principal and interest owing in respect of any deposit with the company, whether made before or after the passing of the resolution.

(6) For the purposes of this section—

(a) one company is the predecessor of another if that other succeeds to its obligations in respect of its deposit-taking business; and

(b) one local authority is the successor of another if, as a result of, or in connection with, an order under Part IV of the Local Government Act 1972 Part II of the Local Government Act 1992 or Part II of the Local Government and Rating Act 1997 or under Part II of the Local Government (Scotland) Act 1973 (change of local government area), it becomes connected as mentioned in subsection (2) above with a company formerly so connected with that other local authority.

Scottish 1819 savings banks

104

(1) This section applies to any savings bank established before 28th July 1863 under an Act passed in the 59th year of King George III entitled an Act for the Protection of Banks for Savings in Scotland.

(2) For the purposes of Part II of this Act a savings bank to which this section applies becomes insolvent on the making of a winding-up order against it under Part V of the Insolvency Act 1986 or on the making of an award of sequestration on the estate of the bank.

(3) A savings bank to which this section applies shall be regarded as a relevant savings bank for the purposes of sections 68 and 69 above.

Meaning of "director", "controller", "manager" and "associate"

105

(1) In the provisions of this Act other than section 96 “director”, “controller”, “manager” and “associate” shall be construed in accordance with the provisions of this section.

(2) “Director”, in relation to an institution, includes—

(a) any person who occupies the position of a director, by whatever name called; and

(b) in the case of an institution established in a country or territory outside the United Kingdom, any person, including a member of a managing board, who occupies a position appearing to the Authority to be analogous to that of a director of a company registered under the Companies Act 1985;

and in the case of a partnership “director”, where it is used in subsections (6) and (7) below, includes a partner.

(3) “Controller”, in relation to an institution, means—

(a) a managing director of the institution or of another institution of which it is a subsidiary or, in the case of an institution which is a partnership, a partner;

(b) a chief executive of the institution or of another institution of which it is a subsidiary;

(d) a person in accordance with whose directions or instructions the directors of the institution or of another institution of which it is a subsidiary or persons who are controllers of the institution by virtue of paragraph (c) above (or any of them) are accustomed to act.

(3A) A person satisfies the requirements of subsection (3)(c) above in relation to an institution if, either alone or with any associate or associates—

(a) he holds 10 per cent. or more of the shares in the institution or another institution of which it is a subsidiary undertaking;

(b) he is entitled to exercise, or control the exercise of, 10 per cent. or more of the voting power at any general meeting of the institution or another institution of which it is such an undertaking; or

(c) he is able to exercise a significant influence over the management of the institution or another institution of which it is such an undertaking by virtue of—

(i) a holding of shares in; or

(ii) an entitlement to exercise, or control the exercise of, the voting power at any general meeting of,

the institution or, as the case may be, the other institution concerned;

(4) A person who is a controller of an institution by virtue of subsection (3)(c) above is in this Act referred to as a ’shareholder controller’ of the institution; and in this Act—

(a) a ’minority shareholder controller’ means a shareholder controller not falling within paragraph (a) or (b) of subsection (3A) above;

(b) a ’10 per cent. shareholder controller’ means a shareholder controller in whose case the percentage referred to in the relevant paragraph is 10 or more but less than 20;

(c) a ’20 per cent. shareholder controller’ means a shareholder controller in whose case that percentage is 20 or more but less than 33;

(d) a ’33 per cent. shareholder controller’ means a shareholder controller in whose case that percentage is 33 or more but less than 50;

(e) a ’50 per cent. shareholder controller’ means a shareholder controller in whose case that percentage is 50 or more;

(f) a ’majority shareholder controller’ means a shareholder controller in whose case that percentage is 50 or more but less than 75; and

(g) a ’principal shareholder controller’ means a shareholder in whose case that percentage is 75 or more;

and in this subsection ’the relevant paragraph’, in relation to a shareholder controller, means whichever one of paragraphs (a) and (b) of subsection (3A) above gives the greater percentage in his case.

(5) A person who is a controller of an institution by virtue of subsection (3)(d) above is in this Act referred to as “an indirect controller” of the institution.

(5A) A person who is a controller of an institution by virtue of subsection (3)(e) above is in this Act referred to as a ’parent controller’ of the institution.

(6) “Manager”, in relation to an institution, means a person (other than a chief executive) who, under the immediate authority of a director or chief executive of the institution—

(a) exercises managerial functions; or

(b) is responsible for maintaining accounts or other records of the institution.

(7) In this section “chief executive”, in relation to an institution, means a person who, either alone or jointly with one or more other persons, is responsible under the immediate authority of the directors for the conduct of the business of the institution.

(8) Without prejudice to subsection (7) above, in relation to an institution whose principal place of business is in a country or territory outside the United Kingdom, “chief executive” also includes a person who, either alone or jointly with one or more other persons, is responsible for the conduct of its business in the United Kingdom.

(9) In this Act ’associate’, in relation to a person entitled to exercise or control the exercise of voting power in relation to, or holding shares in, an undertaking, means—

(a) the wife or husband or son or daughter of that person;

(b) the trustees of any settlement under which that person has a life interest in possession or, in Scotland, a life interest;

(d) any person who is an employee or partner of that person;

(e) if that person is a company—

(i) any director of that company;

(ii) any subsidiary undertaking of that company; and

(iii) any director or employee of any such subsidiary undertaking; and

(f) if that person has with any other person an agreement or arrangement with respect to the acquisition, holding or disposal of shares or other interests in that undertaking or body corporate or under which they undertake to act together in exercising their voting power in relation to it, that other person.

(10) For the purposes of subsection (9) above—

’son’ includes stepson and ’daughter’ includes stepdaughter;

’settlement’ includes any disposition or arrangement under which property is held in trust.

Interpretation

106

(1) In this Act—

“associate” has the meaning given in section 105(9) above;

“authorisation” means authorisation granted by the Authority under this Act and “authorised” shall be construed accordingly;

“the Authority” means the Financial Services Authority;

“the Bank” means the Bank of England;

“bare trustee”, in relation to a deposit, means a person holding the deposit on trust for another person who has the exclusive right to direct how it shall be dealt with subject only to satisfying any outstanding charge, lien or other right of the trustee to resort to it for the payment of duty, taxes, costs or other outgoings;

“controller” has the meaning given in section 105(3) above;

“director” has the meaning given in section 105(2) above;

“debenture” has the same meaning as in the Companies Act 1985;

“deposit” and “deposit-taking business” have the meaning given in sections 5 and 6 above but subject to any order under section 7 above;

“documents” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form;

“former authorised institution” means an institution which was formerly an authorised institution or a recognised bank or licensed institution under the Banking Act 1979 and continues to have a liability in respect of any deposit for which it had a liability at a time when it was an authorised institution, recognised bank or licensed institution;

“group”, in relation to a body corporate, means that body corporate, any other body corporate which is its holding company or subsidiary and any other body corporate which is a subsidiary of that holding company;

“indirect controller” has the meaning given in section 105(5) above;

“institution”, except in the expression “overseas institution” means—

(a) a body corporate wherever incorporated;

(b) a partnership formed under the law of any part of the United Kingdom;

(c) a partnership or other unincorporated association of two or more persons formed under the law of a member State other than the United Kingdom; or

(d) a savings bank to which section 104 above applies;

“liquidator”, in relation to a partnership having its principal place of business in Scotland, includes a trustee appointed on the sequestrated estate of the partnership under the Bankruptcy (Scotland) Act 1985;

“local authority” means—

(a) in England and Wales, a local authority within the meaning of the Local Government Act 1972, the Common Council of the City of London or the Council of the Isles of Scilly;

(b) in Scotland, a local authority within the meaning of the Local Government (Scotland) Act 1973; and

“manager” has the meaning given in section 105(6) above;

“municipal bank” has the meaning given in section 103 above;

’parent controller’ has the meaning given in section 105(5A) above;

“penny savings bank” has the same meaning as in the National Savings Bank Act 1971;

“related company” has the meaning given by section 105A above;

’relevant supervisory authority’—in relation to another member State, has the meaning given in regulation 2 of the Banking Coordination (Second Council Directive) Regulations 1992;in relation to any other country or territory outside the United Kingdom, means the authority discharging in that country or territory functions corresponding to those of the Authority under this Act;

’shareholder controller’, ’minority shareholder controller’, ’10 per cent. shareholder controller’, ’20 per cent. shareholder controller’, ’33 per cent. shareholder controller’, ’50 per cent. shareholder controller’, ’majority shareholder controller’ and ’principal shareholder controller’ have the meanings given in section 105(4) above

(2) Section 736 of the Companies Act 1985 (meaning of subsidiary and holding company) shall apply for the purposes of this Act.

(2A) In this Act the following expressions, namely—

another member State;

connected UK authority;

credit institution;

European authorised institution;

. . .

home State;

listed activity;

parent undertaking;

recognised self-regulating organisation;

relevant supervisory authority;

. . .

subsidiary undertaking;

supervisory authority;

undertaking,

have the same meanings as in the Banking Coordination (Second Council Directive) Regulations 1992.

(2B) In this Act “The Banking Consolidation Directive” means Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions.

(2C) Any reference in this Act—

(a) to an undertaking being closely linked with any person, or being closely linked with any person by control; or

(b) to an undertaking’s close links with any person,

shall be construed in accordance with regulation 2 of the Financial Institutions (Prudential Supervision) Regulations 1996.

(3) Any reference in this Act to any provision of Northern Ireland legislation within the meaning of section 24 of the Interpretation Act 1978 includes a reference to any subsequent provision of that legislation which, with or without modification, re-enacts the provision referred to in this Act.

Transitional provisions

107

Schedule 5 to this Act shall have effect with respect to the transitional matters there mentioned.

Minor and consequential amendments, repeals and revocations

108

(1) The enactments mentioned in Schedule 6 to this Act, shall have effect with the amendments there specified, being minor amendments and amendments consequential on the provisions of this Act, but subject to any savings there mentioned.

(2) The enactments mentioned in Part I of Schedule 7 to this Act and the instruments mentioned in Part II of that Schedule are hereby repealed or revoked to the extent specified in the third column of those Parts.

Northern Ireland

109

(1) This Act extends to Northern Ireland.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Short title and commencement

110

(1) This Act may be cited as the Banking Act 1987.

(2) Section 91 above shall come into force on the passing of this Act and the other provisions of this Act shall come into force on such day as the Treasury may by order appoint; and different days may be appointed for different provisions or different purposes.

SCHEDULE 1

Terms of office

1

(1) The independent members of the Board shall hold office for five years except that some of those first appointed may be appointed to hold office for shorter and different periods so as to secure that all the members do not retire simultaneously.

(2) An independent member may resign his office by written notice to the Authority and the Chancellor of the Exchequer.

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