Statutory Instruments

2009 No. 317

Banks And Banking

The Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009 _cross-notes

Approved by both Houses of Parliament

Made

19th February 2009

Laid before Parliament

20th February 2009

Coming into force

21st February 2009

^M1 The Treasury, in exercise of the powers conferred by sections 135 and 168 of the Banking Act 2009 , make the following Order.

The powers in sections 135 and 168 of the Banking Act 2009 are being exercised for the first time and the Treasury is satisfied, in accordance with section 259(4) of that Act, that it is necessary to exercise it without laying a draft for approval.

PART 1 Introduction

Citation and commencement

1. This Order may be cited as the Banking Act 2009 (Parts 2 and 3 Consequential Amendments) Order 2009 and comes into force on 21st February 2009.

Interpretation

2. In this Order—

“ the 2009 Act ” means the Banking Act 2009 .

PART 2 General Modifications to Legislation

3. —(1) So far as the enactments set out in the Schedule (“the listed enactments”) apply in relation to liquidation and administration, they apply with the modifications set out in paragraphs (2) to (4).

(2) The modifications relating to bank insolvency under Part 2 of the 2009 Act are that references to—

(a) “liquidator” include a reference to a bank liquidator under Part 2 of the 2009 Act;

(b) “provisional liquidator” include a reference to a provisional bank liquidator under Part 2 of the 2009 Act;

(d) “winding up” or “winding up by the court” include a reference to bank insolvency under Part 2 of the 2009 Act (and a reference to the “ commencement of winding up ” in this context is to the commencement of bank insolvency);

(e) “winding up order” include a reference to a bank insolvency order under Part 2 of the 2009 Act;

(f) “wound up” include a reference to a bank having been put into bank insolvency under Part 2 of the 2009 Act; and

(g) “winding up petition” or “petition to wind up” include an application for bank insolvency under Part 2 of the 2009 Act.

(3) The modifications relating to bank administration under Part 3 of the 2009 Act are that references to—

(a) “administrator” include a reference to a bank administrator under Part 3 of the 2009 Act;

(b) “administration” or “insolvent administration” include a reference to a bank administration under Part 3 of the 2009 Act;

(d) “provisional liquidator” include a reference to a provisional bank administrator under Part 3 of the 2009 Act.

(4) The modifications relating to bank insolvency or bank administration under Parts 2 and 3 of the 2009 Act are that references to—

(a) ^M2^,^M3 “insolvency legislation” or “the law of insolvency” include Parts 2 and 3 of the 2009 Act and the provisions of the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989 as applied by those Parts;

(b) a person acting as an “insolvency practitioner” (as defined in section 388 of the Insolvency Act 1986 ) include a person acting as a bank liquidator or bank administrator under Parts 2 and 3 of the 2009 Act;

(c) the provisions of the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989, in the context of bank insolvency or bank administration, shall be read to include those provisions as applied and modified by sections 103 and 145 of the 2009 Act; and

(d) ^M4^,^M5^,^M6^,^M7^,^M8 the provisions of the Insolvency Rules 1986 , the Insolvency Rules (Northern Ireland) 1991 and the Insolvency (Scotland) Rules 1986 , in the context of bank insolvency or bank administration, shall be read to include those provisions as applied and modified by rules made under section 411(1A) of the Insolvency Act 1986 in relation to bank insolvency, and under section 411(1B) of the Insolvency Act 1986 in relation to bank administration.

PART 3 Specific Modifications and Amendments to Legislation

Finance (No 2) Act 1992

^M9 4. —(1) The following provision of the Finance (No 2) Act 1992 applies with the modification set out in this article.

(2) Paragraph 2 of Schedule 12 (Banks etc. in Compulsory Liquidation) is to be read as if it included the following—

“ (3A) Where the company is a bank (as defined in section 91 of the Banking Act 2009), bank insolvency proceedings shall be taken to have commenced against the bank when the application for a bank insolvency order is made to the court under section 95 of the Banking Act 2009. ” .

Financial Services and Markets Act 2000

^M10 5. —(1) The following provisions of the Financial Services and Markets Act 2000 apply with the modifications set out in this article.

(2) In section 215 (Rights of the scheme in relevant person's insolvency)—

(a) ^M11 in subsection (3) , the reference to making an administration application is to be read as including making an application for a bank administration order under section 142 of the 2009 Act, and

(b) subsection (4) is to be read as if it read the following—

“ (4) In the case of a bank insolvency (as defined in Part 2 of the Banking Act 2009), if the scheme manager decides, pursuant to section 100(6)(d) of that Act, not to remain on the liquidation committee, the scheme manager shall retain the rights it usually enjoys in respect of the winding up of a relevant person under section 371(3) and (4). ” .

(3) In section 355 (Interpretation of Part 24), the definition of “court” is to be read as if “, unless otherwise provided,” were inserted after the word “means”.

^M12 (4) In section 361 (Administrator's duty to report to Authority), references to—

(a) “administration” are to be read as including a reference to bank administration under Part 3 of the 2009 Act; and

(b) “the administrator” are to be read as including the bank administrator under Part 3 of the 2009 Act.

(5) In section 362 (Authority's powers to participate in proceedings)—

(a) references to “court”—

(i) in the context of a bank administration under Part 3 of the 2009 Act in England, Wales or Northern Ireland, are to be read as meaning the High Court, and

(ii) in the context of a bank administration under Part 3 of the 2009 Act in Scotland, are to be read as meaning the Court of Session,

(b) in subsection (1), the reference to making an administration application is to be read as including making an application for a bank administration order under section 142 of the 2009 Act, and

(c) ^M13^,^M14 in subsections (4) and (4A) , references to paragraph 74 of Schedule B1 to the Insolvency Act 1986 and paragraph 75 of Schedule B1 to the Insolvency (Northern Ireland) Order 1989 are to be read as including references to those provisions as applied and modified by section 145 of the 2009 Act.

(6) In section 370 (Liquidator's duty to report to Authority), references to “liquidator” are to be read as including a reference to a bank liquidator under Part 2 of the 2009 Act.

(7) In section 375 (Authority's right to apply for an order), references to the provisions of the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989 are to be read as including references to those provisions as applied and modified by section 103 and section 134 of the 2009 Act.

Companies Act 2006

^M15 6. —(1) The following provisions of the Companies Act 2006 apply with the modifications set out in this article.

(2) In section 461 (permitted disclosure of information obtained under compulsory powers)—

(a) subsection (4)(c) is to be read so as to include the 2009 Act in the list of enactments in that subsection;

(b) in subsection (4)(g) is to be read so as to include the 2009 Act in the list of enactments in that subsection.

(3) Any references in Part 35 (the registrar of companies) to the Insolvency Act 1986 and the Insolvency (Northern Ireland) Order 1989 are to be read as including a reference to Parts 2 and 3 of the 2009 Act.

(4) Where an application is made to the court for—

(a) a bank insolvency order under Part 2 of the 2009 Act,

(b) the appointment of a provisional bank liquidator under section 135 of the Insolvency Act 1986 or article 115 of the Insolvency (Northern Ireland) Order 1989, as applied by section 103 of the 2009 Act,

(d) the appointment of a provisional bank administrator under section 135 of the Insolvency Act 1986 or article 115 of the Insolvency (Northern Ireland) Order 1989, as applied by section 145 of the 2009 Act,

sections 1139 and 1140 (service of documents on company, directors, secretaries and others) have effect subject to the provisions for service set out in Parts 2 or 3 of the 2009 Act and in rules made under section 411 of the Insolvency Act 1986 in respect of those Parts.

(5) In Part 2 of Schedule 2 (Specified Descriptions of Disclosures)—

(a) paragraph 25 is to be read so as to include the 2009 Act in the list of enactments in that paragraph, and

(b) paragraph 46 is to be read so as to include the 2009 Act in the list of enactments in that paragraph.

^M16 (6) In Part 2 of Schedule 11A (Specified Descriptions of Disclosures)—

(a) paragraph 30 is to be read so as to include the 2009 Act in the list of enactments in that paragraph, and

(b) paragraph 52 is to be read so as to include the 2009 Act in the list of enactments in that paragraph.

Dormant Bank and Building Society Accounts Act 2008

^F1 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Pension Protection Fund (Entry Rules) Regulations 2005

^M17 8. —(1) The Pension Protection Fund (Entry Rules) Regulations 2005 are amended as follows.

(2) In regulation 6 (Circumstances in which insolvency proceedings in relation to the employer are stayed or come to an end), after paragraph (1)(a)(v) insert—

“ (vi) where the company is a bank (as defined in section 91 of the Banking Act 2009), the bank insolvency procedure is stayed under section 130 of the Insolvency Act 1986 (as applied by section 103 of the Banking Act 2009), or the bank insolvency order is rescinded or discharged, except in circumstances where the court has made an administration order in accordance with section 114 of the Banking Act 2009. ” .

Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005

^M18 9. —(1) The Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 are amended as follows.

(2) In regulation 6 (Circumstances in which insolvency proceedings in relation to the employer are stayed or come to an end), after paragraph (1)(a)(v) insert—

“ (vi) where the company is a bank (as defined in section 91 of the Banking Act 2009), the bank insolvency procedure is stayed under article 110 of the Insolvency (Northern Ireland) Order 1989 (as applied by section 103 of the Banking Act 2009), or the bank insolvency order is rescinded or discharged, except in circumstances where the court has made an administration order in accordance with section 114 of the Banking Act 2009. ” .

Dave Watts

Steve McCabe

Two of the Lords Commissioners of Her Majesty's Treasury

Article 3(1)

SCHEDULE Legislation subject to the general modifications in Part 2

Primary Legislation

Taxes Management Act 1970

^M19 Prescription and Limitation (Scotland) Act 1973

^M20 Companies Act 1985

^M21 Companies (Northern Ireland) Order 1986

^M22 Debtors (Scotland) Act 1987

^M23 Income and Corporation Taxes Act 1988

^M24 Companies Act 1989

^M25 Companies (No. 2) (Northern Ireland) Order 1990

^M26 Taxation of Chargeable Gains Act 1992

^M27 Finance (No 2) Act 1992

^M28 Pension Schemes Act 1993

^M29 Pension Schemes (Northern Ireland) Act 1993

^M30 Pensions Act 1995

^M31 Pensions (Northern Ireland) Order 1995

^M32 Proceeds of Crime (Scotland) Act 1995

^M33 Finance Act 1996

^M34 Employment Rights Act 1996

^M35 Employment Rights (Northern Ireland) Order 1996

^M36 Terrorism Act 2000

^M37 Finance Act 2000

^M38 International Criminal Court Act 2001

^M39 International Criminal Court (Scotland) Act 2001

^M40 Finance Act 2002

^M41 Proceeds of Crime Act 2002

^M42 Debt Arrangement and Attachment (Scotland) Act 2002

^M43 Finance Act 2003

^M44 Pensions Act 2004

^M45 Pensions (Northern Ireland) Order 2005

^M46 Companies Act 2006

^M47 Bankruptcy and Diligence (Scotland) Act 2007

^M48 Finance Act 2008

^M49 Dormant Bank and Building Society Accounts Act 2008

^M50 Secondary Legislation

Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987

^M51 Financial Markets and Insolvency Regulations 1991

^M52 Financial Markets and Insolvency Regulations (Northern Ireland) 1991

^M53 Insolvency Regulations 1994

^M54 Non-Domestic Rating (Unoccupied Property) (Scotland) Regulations 1994

^M55 Insolvent Companies (Reports on Conduct of Directors) Rules 1996

^M56 Financial Markets and Insolvency Regulations 1996

^M57 Financial Markets and Insolvency Regulations (Northern Ireland) 1996

^M58 Individual Savings Account Regulations 1998

^M59 Corporation Tax (Simplified Arrangements for Group Relief) Regulations 1999

^M60 Financial Markets and Insolvency (Settlement Finality) Regulations 1999

^M61 Financial Collateral Arrangements (No 2) Regulations 2003

^M62 Insolvency Practitioners and Insolvency Services Account (Fees) Order 2003

^M63 Insolvent Companies (Reports on Conduct of Directors) Rules (Northern Ireland) 2003

^M64 Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules (Northern Ireland) 2003

^M65 Land Registration Rules 2003

^M66 Credit Institutions (Reorganisation and Winding Up) Regulations 2004

^M67 Insolvency Practitioners Regulations 2005

^M68 Pension Protection Fund (Entry Rules) Regulations 2005

^M69 Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005

^M70 Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005

^M71 Gender Recognition (Disclosure of Information) (Scotland) Order 2005

^M72 Financial Assistance Scheme Regulations 2005

^M73 Insolvency Practitioners Regulations (Northern Ireland) 2006

^M74 Insolvency Practitioners and Insolvency Account (Fees) Order (Northern Ireland) 2006

^M75 Land Registration (Scotland) Rules 2006

^M76^,^F2 ...

^M77 Regulated Covered Bonds Regulations 2008

in force	Provision is in force
in force*	In force only for specified purposes (see footnote)
not in force	Not in force in England (may be in force in other geographies, see footnotes)
defined term	Defined term
_dfn	Defined term (alternative style)

footnote	commentary	insert/omit
C1	Order applied (with modifications) (29.3.2009) by The Building Societies (Insolvency and Special Administration) Order 2009 (S.I. 2009/805) , art. 18 , Sch. 2 paras. 1(a) , 2 , 3
F1	Art. 7 omitted (6.6.2022) by virtue of Dormant Assets Act 2022 (c. 5) , s. 34(3) , Sch. 1 para. 17 ; S.I. 2022/582 , reg. 2	omitted
F2	Words in Sch. omitted (31.12.2020) by virtue of The Companies, Limited Liability Partnerships and Partnerships (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/348) , reg. 2 , Sch. 3 para. 21 ; 2020 c. 1 , Sch. 5 para. 1(1)	omitted
M1	2009 c.1 .
M2	1986 c.45 .
M3	S.I . 1989 No. 2405 (N.I. 19).
M4	S.I.1986/1925 .
M5	S.R. 1991 No. 364 .
M6	S.I. 1986/1915 .
M7	Section 411(1A) of the Insolvency Act 1986 was inserted by section 125(2) of the 2009 Act.
M8	Section 411(1B) of the Insolvency Act 1986 was inserted by section 160(2) of the 2009 Act.
M9	1992 c.48 .
M10	2000 c.8 .
M11	Subsection (3) was amended by the Enterprise Act 2002 (2002 c.40) , section 248 and Schedule 17, paragraphs 53, 54(1) and (2); and the Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455) , article 3(3) and Schedule 2, paragraphs 56, 57(1) and (2).
M12	Section 361 was amended by the Enterprise Act 2002 (2002 c.40) , section 248(3) and Schedule 17, paragraphs 53 and 56. Section 361(1) was amended by the Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455) , article 3(3) and Schedule 2, paragraphs 56 and 59.
M13	Subsection 4 was amended by the Enterprise Act 2002 (2002 c.40) , section 248(3) and Schedule 17, paragraphs 53 and 57(d); and the Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455) , article 3(3) and Schedule 2, paragraphs 56 and 60(1) and (5).
M14	Subsection 4A was amended by the Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455) , article 3(3) and Schedule 2, paragraphs 56 and 60(1) and (6).
M15	2006 c.46 .
M16	Part 2 of Schedule 11A was inserted by S.I. 2007/3494 , regulation 8(2) and Schedule.
M17	S.I. 2005/590 .
M18	S.R. 2005 No.126 , as amended by S.R. 2008 No. 303 .
M19	1970 c. 9 .
M20	1973 c.52 .
M21	1985 c. 6 .
M22	S.I . 1986 No. 1032 (N.I. 6).
M23	1987 c.18 .
M24	1988 c.1 .
M25	1989 c.40 .
M26	S.I. 1990/1504 (N.I. 10) .
M27	1992 c.12 .
M28	1992 c.48 .
M29	1993 c.48 .
M30	1993 c. 49 .
M31	1995 c.26 .
M32	S.I. 1995/3213 (N.I. 22) .
M33	1995 c.43 .
M34	1996 c.8 .
M35	1996 c.18 .
M36	S.I. 1996/1919 (N.I. 16) .
M37	2000 c.11 .
M38	2000 c.17 .
M39	2001 c.17 .
M40	2001 asp 13 .
M41	2002 c.23 .
M42	2002 c.29 .
M43	2002 asp 17 .
M44	2003 c.14 .
M45	2004 c.35 .
M46	S.I. 2005/255 (N.I. 1)
M47	2006 c.46 .
M48	2007 asp 3 .
M49	2008 c.9 .
M50	2008 c.31 .
M51	S.I. 1987/2023 .
M52	S.I. 1991/880 .
M53	S.R. 1991 No. 443 .
M54	S.I. 1994/2507 .
M55	S.I. 1994/3200 .
M56	S.I. 1996/1909 .
M57	S.I. 1996/1469 .
M58	S.R. 1996 No. 252 .
M59	S.I. 1998/1870 .
M60	S.I. 1999/2975 .
M61	S.I. 1999/2979 (applied in Northern Ireland by SI 2006/50 and SI 2007/832).
M62	S.I. 2003/3226 .
M63	S.I. 2003/3363 .
M64	S.R. 2003 No. 357 .
M65	S.R. 2003 No. 358 .
M66	S.I. 2003/1417 .
M67	S.I. 2004/1045 .
M68	S.I. 2005/524 .
M69	S.I. 2005/590 .
M70	S.R. 2005 No. 126 .
M71	S.I. 2005/916 .
M72	S.S.I. 2005/125
M73	S.I. 2005/1986 .
M74	S.R. 2006 No. 33 .
M75	S.R. 2006 No. 53 .
M76	S.S.I. 2006/485 .
M77	S.I. 2008/346 .

Defined Term	Section/Article	ID
administration	art. 3. of PART 2	def_fd79e11c14
administration order	art. 3. of PART 2	def_e7aa1bafb0
administrator	art. 3. of PART 2	def_cd8defcd83
commencement of winding up	art. 3. of PART 2	def_d6139dc296
insolvency legislation	art. 3. of PART 2	def_cf5178ba14
insolvency practitioner	art. 3. of PART 2	def_397ca39614
insolvent administration	art. 3. of PART 2	def_283125da40
insolvent liquidation	art. 3. of PART 2	def_7e8159452f
liquidation	art. 3. of PART 2	def_32d3618dcd
liquidator	art. 3. of PART 2	def_4e65bee702
petition to wind up	art. 3. of PART 2	def_f5d8be7012
provisional liquidator	art. 3. of PART 2	def_59b06e0410
provisional liquidator	art. 3. of PART 2	def_db75eb41d0
the 2009 Act	art. 2. of PART 1	def_0b99457db2
the law of insolvency	art. 3. of PART 2	def_bccd3f36aa
the listed enactments	art. 3. of PART 2	def_996f5fca66
winding up	art. 3. of PART 2	def_e560a91d71
winding up by the court	art. 3. of PART 2	def_0cfa826987
winding up order	art. 3. of PART 2	def_01395618b0
winding up petition	art. 3. of PART 2	def_fc19d79361
wound up	art. 3. of PART 2	def_dd5a4ac64d