text:
PART 1 INTRODUCTORY
Citation and commencement
1
These Regulations may be cited as the Community Emissions Trading Scheme (Allocation of Allowances for Payment) Regulations 2008 and come into force on the day after the date on which they are made.
Interpretation
2
In these Regulations —
“account holder” means an account holder, as defined in Article 2 of the Registries Regulation;
“allowance” means a Community tradeable emissions allowance;
“auction” means the process of allocation of allowances for payment by means of submission of bids as provided for by these Regulations and the Scheme;
“auction clearing price” is the price required to be paid by an account holder for an allowance at an auction and is determined in accordance with the Scheme;
“bid” means an offer to acquire allowances in such form as is required by the Scheme;
“the Directive” means Directive 2003/87/ EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC ;
“Environment Agency” means the agency established under Chapter I of the Environment Act 1995 , designated under Article 8 of the Registries Regulation and acting as the United Kingdom’s registry administrator;
“holding account” means an operator holding account created under Article 15 of the Registries Regulation, or a person holding account created under Article 19 of the Registries Regulation;
“nominated bank account” means such bank account as is nominated by the person conducting an auction, or by the person conducting an allocation for payment otherwise than by auction, for the receipt of a payment from an account holder;
“nominated holding account” means the holding account nominated by an account holder for the receipt of allowances;
“Party holding account” means the United Kingdom’s Party holding account created in accordance with Article 12 of the Registries Regulation;
“the person conducting an allocation for payment otherwise than by auction” means the Treasury, or, where the Treasury has made an appointment under regulation 10(b), the person so appointed;
“the person conducting an auction” means the Treasury, or, where the Treasury has made an appointment under regulation 3(b), the person so appointed;
“the Registries Regulation” means Commission Regulation 2216/2004/EC for a standardised and secured system of registries pursuant to the Directive and Decision 280/2004/EC of the European Parliament and the Council ;
“relevant interest rate” means —
where payment is made in sterling, one per cent above the rate announced from time to time by the Monetary Policy Committee of the Bank of England (the “Bank”) as the official dealing rate, being the rate at which the Bank is willing to enter into transactions for providing short term liquidity in the money markets;
where payment is made in euros, one per cent above the rate announced from time to time by the Governing Council of the European Central Bank as the main refinancing operations rate, being the minimum rate at which the European Central Bank is willing to enter into transactions for providing short-term liquidity in the money markets.
“Scheme” means a scheme made by the Treasury under section 16(5) of the Finance Act 2007;
“settlement date” means the date, determined in accordance with the Scheme, by which payment in full for allowances is required to be made by an account holder.
PART 2 AUCTIONS
Persons who may conduct auctions
3
The Treasury may —
a
conduct auctions to allocate allowances, or
b
appoint the Secretary of State, the Scottish Ministers, the Welsh Ministers or the Department of the Environment in Northern Ireland, or any other person, or any of them acting jointly, to conduct auctions to allocate allowances, subject to conditions (including as to fees charged) and limitations as the Treasury see fit.
Deposits
4
1
The person conducting an auction —
a
may require an account holder to pay a deposit into a nominated bank account on account of payment for allowances,
b
may retain a deposit as payment for allowances allocated, and
c
must repay to an account holder any part of a deposit not used to satisfy payment for allowances as soon as reasonably practicable after the close of the bidding window.
2
In paragraph (1) “bidding window” means such period as is specified in the Scheme during which an account holder may submit a bid in an auction for the allocation of an allowance.
Payment
5
1
An account holder to whom allowances are allocated at an auction must pay, by the settlement date, the total amount due for payment for the allowances allocated.
2
Payment must be made —
a
into a nominated bank account,
b
in sterling or euros, as determined in accordance with the Scheme.
3
In paragraph (1) “total amount due” means the amount notified to the account holder by the person conducting the auction.
Transfer of allowances
6
1
On receipt of payment in full from an account holder for the allocation of allowances, the person conducting an auction must provide to the Environment Agency such information as is necessary to effect the transfer referred to in paragraph (2).
2
As soon as reasonably practicable following receipt of the information referred to in paragraph (1), the Environment Agency must transfer from the Party holding account to the nominated holding account of each account holder the number of allowances which are allocated to that account holder at auction.
Allocation following review
7
1
If, following an auction, an account holder requests a review under regulation 13 and the decision of the Treasury in respect of that review is to allocate allowances to an account holder, the account holder must pay the auction clearing price for those allowances.
2
Payment must be made into a nominated bank account by the date specified by the Treasury.
3
On receipt of payment in full from that account holder the person conducting the auction must provide to the Environment Agency such information as is necessary to effect the transfer referred to in paragraph (4).
4
As soon as reasonably practicable on receipt of the information referred to in paragraph (3), the Environment Agency must transfer the number of allowances from the Party holding account to the account holder’s nominated holding account as is specified by the Treasury in their decision under regulation 13.
5
Where payment for allowances is not received into the nominated bank account from an account holder by the date specified under paragraph (2), any outstanding amount is payable by the account holder on demand, and the Treasury may —
a
require that account holder to pay interest for each day beginning with the settlement date and ending on the date on which payment is made, at the relevant interest rate, calculated on a daily basis, or
b
decide not to provide to the Environment Agency such information as is necessary to effect the transfer under paragraph (4).
6
The Treasury must give an account holder notice of a decision under sub-paragraph (5)(b) as soon as reasonably practicable after making that decision.
Consequences of late or non-payment
8
1
Where payment for allowances is not received from an account holder by the settlement date, any outstanding amount is payable by the account holder on demand, and the person conducting an auction may —
a
require that account holder to pay interest for each day beginning with the settlement date and ending on the date on which payment is made at the relevant interest rate, calculated on a daily basis, or
b
decide not to provide to the Environment Agency such information as is necessary to effect the transfer under regulation 6(2).
2
The person conducting an auction must give an account holder notice of a decision under sub-paragraph (1)(b) as soon as reasonably practicable after making that decision.
Transfer of excess allowances
9
1
If, following an auction, the Environment Agency transfers a number of allowances to a nominated holding account in excess of the number of allowances which should have been transferred to that account (“excess allowances”), when the transfer of excess allowances comes to the account holder’s notice, that account holder must, as soon as reasonably practicable —
a
give notice to the Environment Agency and to the person conducting the auction;
b
where the nominated holding account is administered by the Environment Agency, request that the Environment Agency transfers the excess allowances from that account to the Party holding account.
2
When an excess transfer comes to the notice of the Environment Agency, whether by notification from an account holder under sub-paragraph (1)(a) or otherwise, and if —
a
the Environment Agency is not in receipt of a request under sub-paragraph (1)(b); and
b
the nominated holding account is administered by the Environment Agency,
then the Environment Agency must transfer the excess allowances from that account to the Party holding account as soon as reasonably practicable.
3
In the event that an account holder sells or otherwise deals in the excess allowances or any interest in the excess allowances the person conducting the auction may require the account holder to pay —
a
the auction clearing price, or
b
if the auction clearing price is, in accordance with the Scheme, replaced by the reserve price, the reserve price,
in each case multiplied by the number of excess allowances transferred to the account holder.
4
Payment required to be made under paragraph (3) must be made into the nominated bank account by the date specified by the person conducting the auction.
5
If payment required under paragraph (3) is not received in full by the date specified by the person conducting the auction, any outstanding amount is payable by the account holder on demand.
6
In paragraph (3), “reserve price” has the meaning given to it by the Scheme.
PART 3 OTHER ALLOCATIONS FOR PAYMENT
Persons who may conduct other allocations for payment
10
The Treasury may —
a
conduct allocations of allowances for payment otherwise than by auction, or
b
appoint the Secretary of State, the Scottish Ministers, Welsh Ministers or the Department of the Environment in Northern Ireland, or any other person, or any of them acting jointly, to conduct allocations of allowances for payment otherwise than by auction, subject to such conditions (including as to fees charged) and limitations as the Treasury see fit.
PART 4 GENERAL PROVISIONS
Public censure
11
1
If the Treasury consider that an account holder has breached these Regulations or the Scheme, the Treasury may publish a statement containing such information as they see fit regarding the breach, including the name of the account holder and the nature of the breach.
2
If the Treasury propose to publish such a statement, they must give the account holder a notice setting out the terms of the statement and must specify a period of no less than 28 days within which the account holder may make written representations by notice to the Treasury.
3
The Treasury must then decide, within a reasonable time, whether or not to publish a statement (whether or not in the terms proposed) and must give the account holder, without delay, a notice setting out the terms of the statement.
4
After a statement under paragraph (1) has been published, the Treasury must send a copy of it to the account holder.
Appointment of an independent observer
12
1
The Treasury must appoint an independent observer to oversee any allocation or allocations under these Regulations.
2
The terms of appointment and remuneration (if any) of the independent observer shall be determined by the Treasury.
3
The independent observer must provide a report to the Treasury on the conduct of an allocation.
4
The report must be provided to the Treasury as soon as reasonably practicable after an allocation has taken place.
5
The person conducting an auction or the person conducting an allocation for payment otherwise than by auction must provide access to any information relating to the allocation that is reasonably required by the independent observer for the purpose of carrying out his functions under this regulation.
Review of decisions
13
1
A person in receipt of any decision of the Treasury or of a person conducting an auction or of a person conducting an allocation for payment otherwise than by auction under these Regulations may request a review of the decision.
2
Such request for a review must be sent by notice to the Treasury within 28 days of notification of the decision.
3
On receipt of such request the Treasury must carry out a review.
4
When carrying out a review the Treasury must ensure that the individual responsible for the original decision is not responsible for carrying out the review.
5
Before determining the outcome of any review under this regulation, the Treasury may appoint an independent person to make a report in writing to them.
6
If a report is made by the independent person, it must include the independent person’s conclusions and recommendations, if any, or the independent person’s reasons for not making any recommendations.
7
The terms of appointment and remuneration (if any) of the independent person shall be determined by the Treasury.
8
On receipt of a report from an independent person, or following its own review of the matter, the Treasury must notify the person requesting the review of their decision in respect of the review.
Notices
14
1
Any notice to be given under these Regulations to the Treasury, to a person conducting an auction or to a person conducting an allocation for payment otherwise than by auction —
a
must be given in writing,
b
where the Scheme specifies the person to whom the notice is to be addressed, must be marked for the attention of that person,
c
must be delivered —
i
by electronic mail to an electronic mail address specified in the Scheme,
ii
by personal delivery to such address as is specified in the Scheme, or
iii
by fax to a number specified in the Scheme.
2
Any notice to be given to the Environment Agency under regulation 9(1)(a) must be given in writing, marked for the attention of the person specified in the Scheme and delivered by electronic mail to an electronic mail address specified in the Scheme.
3
Any request to be given to the Environment Agency under regulation 9(1)(b) must be given by electronic communication using the automated processes established in accordance with Article 3 of the Registries Regulation.
4
Any notice to be given under these Regulations by the Treasury or by the person conducting an auction or by the person conducting an allocation for payment otherwise than by auction must be given in writing and may be given to a person —
a
by leaving it at that person’s address;
b
by sending it by post to that person at that address; or
c
where an address for service using electronic mail has been given by that person, by sending it using electronic mail to that person at that address.
5
Any notice referred to in paragraph (4) may —
a
in the case of a body corporate (other than a limited liability partnership) be served on the secretary or clerk of that body;
b
in the case of a limited liability partnership, be served on a member; or
c
in the case of a partnership (other than a limited liability partnership), be served on or given to a partner or person having the control or management of the partnership business.
Financial provisions
15
1
Any sums received by the Treasury or the Secretary of State under or by virtue of these Regulations shall be paid into the Consolidated Fund.
2
Any sums received by an appointee under or by virtue of these Regulations shall be paid to the Secretary of State who shall pay them into the Consolidated Fund.
3
In this regulation “appointee” means a person, other than the Secretary of State, appointed by the Treasury under regulation 3(b) or 10(b).
Claire Ward
Alan Campbell
Two of the Lords Commissioners of Her Majesty’s Treasury
10th July 2008


type: legislation

jurisdiction: UK

text:
Citation and commencement
1
These Regulations may be cited as the Community Investment Tax Relief (Accreditation of Community Development Finance Institutions) (Amendment) Regulations 2008 and shall come into force on 11th March 2008.
Amendments to the Community Investment Tax Relief (Accreditation of Community Development Finance Institutions) Regulations 2003
2
The Community Investment Tax Relief (Accreditation of Community Development Finance Institutions) Regulations 2003 are amended as follows.
Amendment of regulation 2
3
1
Regulation 2 (interpretation) is amended as follows.
2
In the definition of “ CDFI ”, for “Schedule 16 to the Finance Act 2002” substitute “Chapter 2 of Part 7 of the Income Tax Act 2007”.
3
Omit the definition of “the Board”.
4
Insert at the appropriate place —
“the Director of Enterprise Environment” means the Director of Enterprise Environment of the Department for Business, Enterprise and Regulatory Reform;
.
5
For the definition of “the five year period” substitute —
“the five year period” means the period of five years beginning with the day the investment is made;
.
6
Omit the definition of “the Investment Director”.
7
For the definition of “investment” substitute —
“investment” —
in relation to an individual, shall be construed in accordance with section 336 of the Income Tax Act 2007; and
in relation to a company, has the meaning given in paragraph 2 of Schedule 16 to the Finance Act 2002;
.
8
For the definition of “qualifying investment” substitute —
“qualifying investment” —
in relation to an investment made by an individual, means an investment in respect of which the individual is eligible under section 334 of the Income Tax Act 2007 for community investment tax relief; and
in relation to an investment made by a company, has the meaning given in paragraph 8 of Schedule 16 to the Finance Act 2002;
.
9
In the definition of “retail community development finance institution”, for “paragraph 4(6) and (7) of Schedule 16 to the Finance Act 2002” substitute “section 340(6)(b), (7) and (8) of the Income Tax Act 2007”.
10
Omit the definition of “the Small Business Service”.
11
For the definition of “tax relief certificate” substitute —
“tax relief certificate” means a certificate issued by the CDFI in respect of the investment which is in the form specified by the Commissioners for Her Majesty’s Revenue and Customs;
.
Amendment of regulation 3
4
In regulation 3 (criteria for accreditation), for “paragraph 4(2)(b) of Part 2 of Schedule 16 to the Finance Act 2002” substitute “section 340(2)(b) of the Income Tax Act 2007”.
Amendment of regulations 7, 12, 13, 15 and 16 and Schedule 1
5
1
In the following places, for “Small Business Service” substitute “Department for Business, Enterprise and Regulatory Reform” —
a
regulation 7(4) (publication of details, penalty);
b
regulation 13(1) (twice) and (4) (reporting requirements);
c
regulation 15(2)(b)(ii) (withdrawal of accreditation); and
d
regulation 16(3)(b) (appeals against refusal to grant accreditation or withdrawal of accreditation).
2
In the following places, for “Investment Director” substitute “Director of Enterprise Environment” —
a
regulation 7(4);
b
regulation 12(1), (2) and (3) (twice) (limits on qualifying investments);
c
regulation 13(5);
d
regulation 15(3);
e
regulation 16(2) (c) and (3); and
f
paragraphs 2(2) and 4(3) of Schedule 1 (investments which are not relevant investments).
Amendment of regulation 8
6
1
For regulation 8 (general CDFI investment terms) substitute —
General CDFI investment terms
8
1
It is a term of accreditation that —
a
on or before the first anniversary of the date the CDFI was first granted accreditation (“the accreditation date”), at least 25% of the amount of the investment fund is invested in relevant investments in qualifying enterprises;
b
on or before the second anniversary of the accreditation date, at least 50% of the amount of the investment fund is invested in relevant investments in qualifying enterprises;
c
on or before the third anniversary of the accreditation date at least 75% of the amount of the investment fund is invested in relevant investments in qualifying enterprises; and
d
at the end of each year ending on a subsequent anniversary of the accreditation date, an average of at least 75% of the amount of the investment fund has been invested in relevant investments in qualifying enterprises.
2
For the purpose of paragraph (1)(d), the average percentage of the investment fund invested in relevant investments in qualifying enterprises is to be found on the last day of the year in question by calculating —
a
the average of the percentages so invested as at close of business on each day of that year, or
b
the average of the percentages so invested as at close of business on the relevant dates.
3
“The relevant dates”, in relation to a year, means —
a
a date falling within the first three months of the year,
b
a date falling within the second three months of the year,
c
a date falling within the third three months of the year, and
d
a date falling within the final three months of the year,
4
A date falling within any of the time periods specified in paragraph (3)(b), (c) and (d) must be at least 87 days but not more than 95 days after the preceding date.
5
If the percentage of the investment fund invested in relevant investments in qualifying enterprises at close of business on any day exceeds 100% of the investment fund, the excess shall be disregarded.
Amendment of regulation 15
7
In regulation 15 (withdrawal of accreditation), at the beginning of paragraph (1)(a), insert “subject to regulations 15A to 15E,”.
Insertion of regulations 15A to 15E
8
After regulation 15 insert —
Applications relating to failures to satisfy the conditions of regulation 8
15A
1
This regulation applies where after the end of a year ending upon the anniversary of the date that the CDFI was first granted accreditation a CDFI becomes aware of a failure to satisfy the conditions of regulation 8 in respect of that year.
2
Where this regulation applies, the CDFI may apply in writing to the Secretary of State within 3 months after the end of that year for a determination that the accreditation shall not be withdrawn notwithstanding the failure to satisfy the conditions of regulation 8.
3
An application under this regulation must specify —
a
the circumstances that have led to the failure to satisfy the conditions of regulation 8, and
b
the measures taken by the CDFI to avoid the failure.
4
Where the failure relates to a condition specified in regulation 8(1)(a), (b) or (c), the application must state —
a
the maximum percentage of the investment fund that was suitably invested during that year, and
b
the maximum percentage that would have been so invested had it not been for the circumstances that led to the failure.
5
Where the failure relates to the condition specified in regulation 8(1)(d), the application must state —
a
the average percentage of the investment fund suitably invested as calculated in accordance with regulation 8(2), and
b
the average percentage of the investment fund that would have been suitably invested as calculated in accordance with regulation 8(2) had it not been for the circumstances that led to the failure.
Applications relating to anticipated failures to satisfy conditions of regulation 8
15B
1
This regulation applies where during a year ending upon the anniversary of the date a CDFI was first granted accreditation the CDFI anticipates likely failure to satisfy the conditions of regulation 8 in respect of that year.
2
Where this regulation applies the CDFI may apply in writing to the Secretary of State for a decision that, should the anticipated likely failure occur at the end of the year as a result of the circumstances specified in the application, the Secretary of State will determine after the end of the year in respect of which the application relates, that accreditation will not be withdrawn.
3
An application under this regulation must specify —
a
the circumstances that are anticipated will lead to the failure to satisfy the conditions of regulation 8, and
b
any measures that have been taken or that will be taken by the CDFI in that year —
i
to avoid that failure, and
ii
to ensure that the maximum amount of the investment fund that is possible in all the circumstances will be suitably invested.
4
Where the failure relates to a condition specified in regulation 8(1)(a), (b), or (c) the application must state —
a
the maximum percentage of the investment fund suitably invested at the time the application under this regulation is submitted to the Secretary of State,
b
the maximum percentage of the investment fund that would have been so invested had it not been for the circumstances that are anticipated to lead to the failure, and
c
as far as possible, the maximum possible percentage of the investment fund that the CDFI anticipates will be so invested as a result of the measures taken under paragraph (3)(b).
5
Where the anticipated failure relates to a condition specified in regulation 8(1)(d), the application must state —
a
the average percentage of the investment fund suitably invested as calculated in accordance with regulation 8(2)(a) for each day of that year before the day on which the application is submitted to the Secretary of State, and
b
as far as possible the average percentage of the investment fund that will be suitably invested on the final day of that year as calculated in accordance with regulation 8(2) (a) or (b) further to the measures taken under paragraph (3)(b).
6
Where a CDFI submits an application under this regulation further to which the Secretary of State decides under regulation 15D that after the end of the year to which the application relates accreditation will not be withdrawn and the CDFI thereafter anticipates that it will fail —
a
to take the measures as specified in the application, or
b
to ensure that the maximum or average amount of the investment fund as specified in the application will be suitably invested,
it may make a further application under this paragraph (2) in respect of that anticipated failure and this regulation will apply to that failure as it would apply to an application in respect of an anticipated failure to satisfy the conditions of regulation 8.
Applications under regulation 15A: failures that have occurred
15C
1
This regulation applies where an application under regulation 15A has been made in respect of a failure to meet the conditions of regulation 8.
2
Where the Secretary of State is satisfied that —
a
the failure to satisfy the conditions of regulation 8 was as a result of the circumstances specified in the application,
b
those circumstances were outside the control of the CDFI and, where applicable, any person connected with it, and
c
the CDFI acted reasonably in its attempts to avoid failing to satisfy the conditions of regulation 8 and to minimise the extent of failure,
the Secretary of State must determine that accreditation shall not be withdrawn and shall notify the CDFI of the determination.
3
Where the Secretary of State does not have sufficient information to make a determination under this regulation he may ask the CDFI to supply further information prior to making a determination.
Applications under regulation 15B: anticipated failures
15D
1
This regulation applies where an application under regulation 15B has been made in respect of an anticipated failure to meet the conditions of regulation 8.
2
Where the Secretary of State is satisfied that —
a
the anticipated failure to satisfy the conditions of regulation 8 arises from the circumstances specified in the application,
b
those circumstances are outside the control of the CDFI and, where applicable, any person connected with it, and
c
the measures specified in the application that have been taken or that will be taken to prevent failure or to minimise the extent of failure are reasonable in all the circumstances,
he must, subject to paragraphs (4) and (5), decide that where such measures as are specified in the application are taken by the CDFI but the CDFI thereafter fails to meet the conditions of regulation 8 as a result of the circumstances specified in the application the accreditation shall not be withdrawn after the end of that year if failure occurs as a result of those circumstances.
3
The Secretary of State must notify the CDFI of his decision made under paragraph (2).
4
Where the Secretary of State does not have sufficient information to make a decision under this regulation he may request the CDFI to provide more information prior to making a decision.
5
Where the Secretary of State decides under paragraph (2) that accreditation will not be withdrawn after the end of the year to which the application relates and the CDFI —
a
becomes aware that the measures specified in the application will not prevent the failure or minimise the extent of failure, or
b
becomes unable to implement such measures,
the CDFI may submit a further application under regulation 15B in respect of the same circumstances specifying further measures that will be taken to avoid or minimise the extent of failure.
6
Where the Secretary of State notifies the CDFI under paragraph (3) that accreditation may be withdrawn the CDFI may submit a further application under regulation 15B.
Regulations 15A to 15D: supplementary
15E
1
Where a CDFI has submitted an application under regulation 15B but the Secretary of State does not make a decision under regulation 15D before the end of the year in question and the CDFI thereafter fails to satisfy the conditions of regulation 8 for that year it must submit an application under regulation 15A.
2
Where the Secretary of State has received one or more applications under regulation 15B upon which no decision has yet been made, the Secretary of State must not make a decision that accreditation will not be withdrawn until he is satisfied that it should not be withdrawn in respect of each and every application.
3
A determination under regulation 15C not to withdraw accreditation and a decision under regulation 15D that accreditation may not be withdrawn shall not prevent the Secretary of State from withdrawing accreditation where he has grounds for doing so as a result of other circumstances which are not the subject of an application under regulation 15A or 15B.
4
For the purposes of regulations 15A and 15B “suitably invested” means invested in relevant investments in qualifying enterprises.
5
For the purposes of regulations 15C and 15D —
a
a person who acts on behalf of a CDFI to manage its investment is treated as a CDFI, and
b
section 993 of the Income Tax Act 2007 shall apply for determining whether a person is connected with a CDFI.
Amendment of regulation 10
9
In regulation 10 (meaning of “qualifying enterprise”), for paragraph (2) substitute —
2
For the purpose of paragraph (1)(a), a “small or medium-sized enterprise” means a micro, small or medium-sized enterprise as defined in Commission Recommendation 2003/361/ EC of 6th May 2003 (“the Recommendation”, references to the Annex being references to the Annex to the Recommendation), subject to the qualification set out in paragraph (3).
3
If a company (“C”) is a micro, small or medium-sized enterprise, disregarding any partner enterprise or linked enterprise, and, taken alone, it would satisfy the employee limit and a least one of the financial limits, but —
a
the number of employees, annual turnover or annual balance sheet total (as the case may be) of a partner enterprise or linked enterprise to which it is related has been taken into account in determining whether the employee limit or the financial limits have been exceeded, and
b
a partner enterprise or linked enterprise to which C is related would, disregarding the number of employees, and the annual turnover and balance sheet totals of C, exceed the employee limit or both of the financial limits,
Article 4(2) of the Annex shall be disregarded in determining whether C is a small or medium-sized enterprise for an accounting period in which it exceeds the employee or financial limits.
4
For the purpose of paragraph (3), references to the employee limit and the financial limits are to the limits respectively on the number of employees, and the annual turnover and balance sheet totals, contained in Article 2(1) of the Annex.
Amendment of Schedule 1
10
In Schedule 1 (investments which are not relevant investments), after paragraph 3 insert —
3A
Any equity investment in a profit-distributing enterprise.
Frank Roy
Dave Watts
Two of the Lords Commissioners of Her Majesty’s Treasury
18th February 2008


text:
PART 1
GENERAL Citation and commencement 1 1 This Order may be cited as the Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008. 2 This Order comes into force at 9.30 a.m. on 7 October 2008. Interpretation 2 In this Order — “ the Act ” means the Banking (Special Provisions) Act 2008; “ the 1986 Act ” means the Insolvency Act 1986 ; “ the 2000 Act ” means the Financial Services and Markets Act 2000 ; “ administrator ” means — an administrator appointed under paragraph 14 or 22 of Schedule B1 (Administration) to the 1986 Act or on an administration application made to the court (and if more than one administrator is appointed, the reference to “the administrator” is to any administrator so appointed); or any person on whom a discretion is conferred under an interim order made under paragraph 13(1)(d) of Schedule B1 to the 1986 Act; “ the Authority ” means the Financial Services Authority; “ the Bank ” means the Bank of England; “ Community law ” means — all the rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties; and all the remedies and procedures from time to time provided for by or under the Community Treaties; “ the COMP Sourcebook ” means the Compensation Sourcebook made by the Authority under the 2000 Act; “ Deposits Management (Heritable) ” means Deposits Management (Heritable) Limited, company registered number 6690442, a company which is for the purposes of the Act wholly owned by the Treasury; “ the effective time ” means the time this Order comes into force; “ eligible claimant ” has the meaning given in rule 4.2.1 of the COMP Sourcebook; “ the FEES 6 Chapter ” means Chapter 6 (Financial Services Compensation Scheme Funding) of the Fees Manual made by the Authority under the 2000 Act; “ the Financial Services Compensation Scheme ” means the scheme established by the Authority under Part 15 of the 2000 Act (The Financial Services Compensation Scheme); “ FSCS ” means the body corporate established by the Authority under section 212 of the 2000 Act (the Scheme Manager); “ Heritable ” means Heritable Bank plc, company registered in Scotland number SC000717; “ protected deposit ” has the meaning given in rule 5.3.1 of the COMP Sourcebook; “ relevant protected deposit ” means a protected deposit which relates to a transferred account; “ the transfer ” means the transfer effected by article 3; “ transferred accounts ” means the accounts to which the transferred rights and liabilities relate; “ transferred liabilities ” means the liabilities transferred by article 3(1); “ transferred rights ” means the rights transferred by article 3(2); “ the transitional period ” means the period of 6 months following the effective time.
PART 2
THE TRANSFER Transfer 3 1 Subject to paragraph (3), by virtue of this Order the liabilities of Heritable to depositors in respect of the principal of, and accrued interest on, relevant deposit accounts are transferred to Deposits Management (Heritable). 2 From the effective time, Deposits Management (Heritable) shall have the same rights in relation to depositors in relation to the transferred accounts as it would have if Heritable's relevant terms of business applied. 3 Paragraph (1) does not apply to any liability in respect of any breach of contract or other duty which arose before the effective time. 4 In paragraph (1), “ relevant deposit accounts ” means any of the following accounts operated by Heritable — a 1 Year Fixed Rate Bond; b 2 Year Fixed Rate Bond; c 3 Year Fixed Rate Bond; d 4 Year Fixed Rate Bond; e 5 Year Fixed Rate Bond; f 50 Plus Saver; g 60 Day Notice; h 90 Day Notice; i 120 Day Notice; j Easy Access; k Online Saver; l Direct Saver. 5 The transfer under paragraph (1) takes place at the time this Order comes into force. No consent or concurrence required 4 The transfer is effective despite the absence of any required consent or concurrence to, or in connection with, the transfer. Associated liability and interference 5 1 The transfer takes effect as if — a no associated liability existed in respect of any failure to comply with any requirement in respect of the transfer; and b there were no associated interference with the transferred rights and liabilities. 2 In this article “associated liability” and “associated interference” have the meanings given in paragraph 2(2) of Schedule 2 to the Act. Interests, rights and liabilities of third parties relating to transferred rights and liabilities 6 1 No interest or right of any third party relating to any of the transferred rights and liabilities shall arise or become exercisable by virtue of or in connection with this Order. 2 Save as otherwise provided in this Order, no third party shall incur any liability, or be subject to any obligation, relating to any of the transferred rights and liabilities, by virtue of or in connection with this Order. 3 Without prejudice to the generality of paragraphs (1) and (2) — a the consequences specified in paragraph (4) shall not arise in respect of any relevant instrument as a result of the transfer or any other thing done, or matter arising, by virtue of or in connection with article 3 of this Order; b any circumstances which, but for sub-paragraph (a), would give rise to the consequences specified in paragraph (4) shall not be taken to have arisen for the purposes of any relevant instrument. 4 The consequences are — a the termination of a relevant instrument or any rights or obligations under it; b any right to terminate a relevant instrument or any right or obligation under it becoming exercisable; c any amount becoming due and payable or capable of being declared due and payable; d any other change in the amount or timing of any payment falling to be made or due to be received by any person; e any right to withhold, net or set off any payment becoming exercisable; f any event of default or breach of any right arising; g any right not to advance any amount becoming exercisable; h any obligation to provide or transfer any deposit or collateral; i any right to give or withhold any consent or approval; or j any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (i)) arising or becoming exercisable. 5 Without prejudice to paragraph (4), any provision in a relevant instrument that, as a result of the transfer or any other thing done, or matter arising, by virtue of or in connection with article 3 of this Order, provides for an obligation not to be created, suspends or extinguishes (in whole or in part) such an obligation or renders such an obligation subject to conditions, shall be of no effect. 6 In this article — “relevant instrument” has same meaning as in paragraph 4(3) of Schedule 1 to the Act and the specified connection referred to in paragraph 4(3)(c) of that Schedule is between Heritable and those undertakings whose assets and liabilities, profits and losses are consolidated in the consolidated accounts of Heritable; “ third party ” shall be construed in accordance with paragraph 2(3) of Schedule 2 to the Act. Payment of transferred liabilities 7 1 Deposits Management (Heritable) may without penalty or other charge pay any transferred liability prior to the due date for payment. 2 Where Deposits Management (Heritable), in pursuance of paragraph (1), pays a transferred liability prior to the due date for payment, Deposits Management (Heritable) may not rely on any transferred right or any other term of business of Heritable to reduce or modify the transferred liability by reason of the fact that payment is being made prior to the due date for payment. 3 Deposits Management (Heritable) shall not be obliged to pay any transferred liability sooner than is reasonably practicable. Construction of documents etc. 8 As from the effective time and save as otherwise provided in this Order — a agreements made or other things done by or in relation to Heritable shall be treated, so far as may be necessary for the purposes of or in connection with the transfer (but not otherwise) as made or done by or in relation to Deposits Management (Heritable), as the case may be; b references to Heritable or to any officer or employee of Heritable in instruments or documents relating to the transferred rights and liabilities, shall have effect as if they were references to Deposits Management (Heritable), or to any officer or employee of Deposits Management (Heritable), as the case may be. Validity of acts done by Deposits Management (Heritable) 9 Anything done by or in relation to Deposits Management (Heritable) after the effective time for the purposes of or in connection with this Order which would have been effective had it been done by or in relation to Heritable prior to the effective time shall be effective. Exemption of Deposits Management (Heritable) Limited 10 Deposits Management (Heritable) is an exempt person for the purposes of the 2000 Act in respect of any regulated activity of the kind specified by article 5 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (accepting deposits). Provision of information and assistance 11 1 Heritable shall provide Deposits Management (Heritable) with such information and assistance as is reasonably requested by Deposits Management (Heritable) — a in relation to the transferred rights and liabilities; b for any purpose relating to this Order; or c for any purpose relating to any other function of Deposits Management (Heritable) which relate to its functions under this Order. 2 Heritable shall provide the Treasury with such information and assistance as is requested by the Treasury for any purposes relating to this Order.
PART 3
FINANCIAL SERVICES COMPENSATION SCHEME Application of Part 3 12 This Part applies where, before the effective time, Heritable is in default for the purposes of rule 6.3.1 of the COMP Sourcebook. Sums to be paid to Deposits Management (Heritable) following the transfer 13 1 The following liabilities arise at the effective time — a the FSCS is liable to pay (as soon as practicable) to Deposits Management (Heritable) an amount equal to the amount that eligible claimants would, immediately before the effective time, have been entitled to claim from the FSCS in respect of claims against Heritable in relation to relevant protected deposits; and b the Treasury are liable to pay (as soon as practicable) to Deposits Management (Heritable) an amount equal to the aggregate amount of the liabilities transferred to Deposits Management (Heritable) under article 3 less the amount specified in sub-paragraph (a). 2 For the purposes of paragraph (1)(a), if the quantification date for a claim would have been a date other than the date on which Heritable was determined to be in default for the purposes of section 6.3 of the COMP Sourcebook, the amount that an eligible claimant would have been entitled to claim from the FSCS is the lesser of — a the amount which the FSCS quantifies as being the value of that claim as at immediately before the effective time; and b the amount that would have been payable at the quantification date, if different, for that claim. 3 In paragraph (2), “ quantification date ” has the meaning given in rule 12.3.1 of the COMP Sourcebook. 4 As soon as practicable after the effective time — a Heritable shall estimate the aggregate amount of the transferred liabilities; b the FSCS shall pay to Deposits Management (Heritable) the amount it is liable to pay under paragraph (1)(a) as estimated by the Authority; and c the Treasury shall pay to Deposits Management (Heritable) an amount equal to the amount estimated by Heritable in accordance with sub-paragraph (a) less the amount estimated by the Authority in accordance with sub-paragraph (b). 5 From time to time — a the FSCS may revise the estimate of its liability under paragraph (1)(a); and b Heritable may revise the estimate of the aggregate amount of the transferred liabilities, and the FSCS, the Treasury and Deposits Management (Heritable) shall make such corresponding payments to each other as are necessary to ensure that the FSCS and the Treasury have each paid to Deposits Management (Heritable) the amount required (and no more than the required amount) to meet their liability under paragraph (1). 6 If at any time after the effective time Heritable is placed into administration or an interim order is made in relation to Heritable under paragraph 13(1)(d) of Schedule B1 to the 1986 Act, the references to Heritable in paragraphs (4) and (5) are to be treated as references to the administrator. Payment to Deposits Management (Heritable) to constitute payment of compensation for the purposes of the Financial Services Compensation Scheme 14 For the purposes of Part 15
(the financial services compensation scheme) of the 2000 Act, the COMP Sourcebook and the FEES 6 Chapter (including, without limitation, the power of the FSCS to impose levies) — a all payments by the FSCS to Deposits Management (Heritable) under article 13 shall constitute the payment of compensation to each eligible claimant under the Financial Services Compensation Scheme in accordance with their respective entitlements in respect of claims against Heritable for relevant protected deposits; b each eligible claimant — i is deemed to have made an application for compensation for the purposes of rule 3.2.1(1) of the COMP Sourcebook; and ii is deemed to have accepted an offer of compensation made by the FSCS and to have received payment of such compensation for the purposes of rule 11.2.1 of the COMP Sourcebook, and, accordingly, an eligible claimant has no right to claim, and the FSCS has no obligation to pay, for a relevant protected deposit any further compensation under the Financial Services Compensation Scheme in respect of the default of Heritable determined by the Authority under section 6.3 of the COMP Sourcebook. Liability of Heritable to the FSCS and the Treasury 15 1 Heritable is liable to the FSCS in respect of an amount equal to the amount which would have been provable in the administration of Heritable in respect of the transferred liabilities had this Order not been made and had Heritable been placed in administration immediately before the effective date. 2 The FSCS shall pursue recoveries from Heritable in respect of the liability incurred under paragraph (1) to the extent reasonably practicable. 3 Subject to paragraph (4), if an eligible claimant had, in relation to a relevant protected deposit, a liability to Heritable which would have been capable of being set-off against a liability of Heritable to that claimant in an administration of Heritable (if that liability had not been transferred), the amount which would have been provable in the administration shall for the purposes of paragraph (1) be taken to be the sum of — a the amount of the reduction in the depositor's liability to Heritable as a result of the application of set-off; and b the amount which would have been recovered in respect of the balance of the claim (if any) provable in the administration of Heritable. 4 Paragraph (3) applies only to the extent that its application does not have the effect that the other creditors of Heritable are in a worse position than they would have been had the set-off been applied. 5 The FSCS shall determine the proportion of any amount which it receives or recovers from Heritable which is properly attributable to each type of liability described below and shall promptly on receipt account for that receipt or recovery as follows — a in full to the Treasury, to the extent that — i the receipt is attributable to a transferred liability; and ii the person to whom such transferred liability is owed would not have been entitled to make a claim for compensation from the FSCS immediately before the effective time; b to the Treasury by reference to the relevant proportion, to the extent that — i the receipt is attributable to a transferred liability; ii the person to whom such transferred liability is owed is an eligible claimant; and iii the amount of such liability exceeds the maximum compensation that the eligible claimant would have been entitled to claim from the FSCS immediately before the effective time; c for the account of the FSCS, to the extent that — i the receipt is attributable to a transferred liability owed to an eligible claimant; and ii the amount of such liability is equal to or less than the maximum compensation that the eligible claimant would have been entitled to claim from the FSCS immediately before the effective time. 6 In paragraph (5), the “relevant proportion” is the proportion of the total liabilities which arise under article 13(1) for which the Treasury are liable. 7 If Heritable is in administration or an interim order has been made in relation to Heritable under paragraph 13(1)(d) of Schedule B1 to the 1986 Act, the liability incurred under paragraph (1) shall not be treated as an expense of the administration under paragraph 99(3) of Schedule B1 of the 1986 Act, rule 2.67 of the Insolvency Rules 1986 or any analogous provision of the Insolvency (Scotland) Rules 1986. 8 Nothing in this Part shall have the effect that the FSCS recovers less than it would have recovered if this Order had not been made. FSCS's power to require information 16 1 The FSCS may, by notice in writing given to Deposits Management (Heritable), require it – a to provide specified information or information of a specified description; or b to produce specified documents or documents of a specified description. 2 Paragraph (1) only applies to information and documents the provision or production of which the FSCS considers to be necessary (or likely to be necessary) for the exercise of its functions under or by virtue of this Order. 3 Subsections (2), (4), (5) and (7) of section 219 of the 2000 Act (scheme manager's power to require information) apply to a requirement imposed under paragraph (1) as if it were a requirement imposed under that section. Statutory immunity 17 For the purposes of section 222 (statutory immunity) of the 2000 Act the scheme manager's functions shall include any acts or omissions carried out by the FSCS pursuant to or in connection with this Order.
PART 4
THE ADMINISTRATOR AND TRANSITIONAL PROVISIONS Application of this Part 18 This Part applies if after the effective time — a Heritable is placed into administration; or b an interim order in made in relation to Heritable under paragraph 13(1)(d) of Schedule B1 to the 1986 Act. The administration 19 The relevant provisions of the 1986 Act, the Insolvency Rules 1986 and the Insolvency (Scotland) Rules 1986 shall apply to Heritable subject to the provisions of this Part. Objectives etc. of the administrator 20 1 This article only applies during the transitional period. 2 The administrator must perform his or her functions with the objectives (“the overriding objectives”) of — a ensuring that Heritable provides, and managing the affairs, business and property of Heritable to enable it to provide, the services and facilities reasonably required by Deposits Management (Heritable) to carry on its functions in relation to the transferred rights and liabilities; and b ensuring that Heritable performs the other obligations imposed on it by or under this Order. 3 The administrator shall only perform his or her functions with the objective determined in accordance with paragraph 3 of Schedule B1 to the 1986 Act to the extent that such objective is not inconsistent with and does not interfere with the achievement of the overriding objectives. 4 Paragraph 3(2) of Schedule B1 to the 1986 Act only applies to the performance of the functions of the administrator to the extent that it is not inconsistent with and does not interfere with the achievement of the overriding objectives. 5 The Treasury may, by notice in writing, give a direction to the administrator specifying that an act (or omission) is required for the overriding objectives. 6 The Treasury may also, by notice in writing, give a direction to the administrator requiring him or her to act (or not act) if the Treasury consider that it is necessary to give such a direction for the purposes of – a protecting or enhancing the stability of the financial systems of the United Kingdom; b protecting or enhancing public confidence in the stability of the banking system of the United Kingdom; or c protecting depositors. 7 The administrator must comply with any directions given under paragraph (5) or (6). 8 The services and facilities to which paragraph (2)(a) applies include (but are not limited to) the services and facilities specified in Schedule 1. 9 The administrator shall not be required to include any proposals for achieving the overriding objectives in any statement he or she makes under paragraph 49 (administrator's proposals) or paragraph 54 (revision of administrator's proposals) of Schedule B1 to the 1986 Act or to obtain approval of such proposals at any creditors' meeting or from the court. 10 The administrator shall not enter into a transaction or a series of transactions (whether related or not) to sell, lease, transfer or otherwise dispose of any property or right of Heritable having a value of more than £50 million at any time unless — a the court orders otherwise; b the Treasury gives its consent to the transaction; or c the sale, lease, transfer or disposal has been specifically approved at a meeting of creditors summoned under paragraph 51(1), 54(2) or 62 of Schedule B1 to the 1986 Act or by a creditors' committee constituted in accordance with rule 2.50 of the Insolvency Rules 1986 or any analogous provision of the Insolvency (Scotland) Rules 1986. 11 In this article, “ court ” means — a in England and Wales, the High Court; b in Scotland, the Court of Session; c in Northern Ireland, the High Court. Insolvency rules etc. 21 Nothing in the 1986 Act, the Insolvency Rules 1986, the Insolvency (Scotland) Rules 1986 or any other enactment or rule of law shall operate to invalidate or prejudice any act or omission done under or pursuant to this Order or give rise to a claim against or impose any liability on Heritable or the administrator for any act or omission so done. Use of the Heritable brand 22 Heritable shall grant to Deposits Management (Heritable) a licence to use the Heritable brand during the transitional period for the purposes of Deposits Management (Heritable) carrying on its business in relation to the transferred rights and liabilities. Compensation payable to Heritable 23 1 The Treasury shall reimburse Heritable for the costs and expenses (including fees) properly incurred by the administrator during the transitional period in fulfilling his or her obligations under article 20(1). 2 Paragraph (1) does not apply to any cost or expense which would have been incurred even if this Order had not been made. Continuity 24 1 During the transitional period, any person wishing to terminate or modify (or treat as terminated or modified) any contract or agreement with Heritable for services and facilities or any right or obligation under such a contract or agreement must give not less than 14 days prior written notice to the administrator and to Deposits Management (Heritable). 2 Except with the consent of the Treasury or the permission of the court, during the transitional period — a no person is entitled — i to terminate or modify any contract or agreement with Heritable for services and facilities, or any right or obligation under such a contract or agreement, where the contract or agreement or right or obligation relates to services or facilities which are reasonably required by — aa Heritable to perform its duties under or pursuant to this Order; bb the administrator to perform his or her duties under or pursuant to this Order; or cc Deposits Management (Heritable) to carry on its functions in relation to the transferred rights and liabilities, or ii to treat such a contract, agreement, right or obligation as terminated or modified, by virtue of or in connection with the transfer, the commencement of the administration in relation to Heritable or the making of an interim order in relation to Heritable under paragraph 13(1)(d) of Schedule B1 to the 1986 Act; and b any counterparty to such acontract or agreement must perform his or her obligations in accordance with that contract or agreement. 3 The services and facilities to which paragraphs (1) and (2) apply include (but are not limited to) the services and facilities specified in Schedule 1. 4 Any purported termination or modification of any contract, agreement, right or obligation in contravention of paragraph (1) or (2), and any action taken in consequence of any such purported termination or modification, shall have no effect. 5 Paragraph (2) does not apply where — a Heritable, Deposits Management (Heritable) or the administrator, as the case may be, has failed to perform its payment obligations under the relevant contract or agreement and such non-payment is not remedied within 14 days of that person becoming aware of the non-performance; or b Heritable, Deposits Management (Heritable) or the administrator, as the case may be, fails to notify the counterparty to the relevant contract or agreement within 14 days of its becoming aware of the request for consent to such termination, modification or non-performance of an obligation, that such consent has been withheld. 6 Without prejudice to the generality of paragraph (2), the transfer shall not have the effect of terminating or otherwise changing the terms of Heritable's membership (if any) of any payment system, including, in particular, BACS, CHAPS and the LINK payments systems. 7 This article is subject to any requirement of Community law. Financial Ombudsman Scheme 25 For the purposes of section 227(2)
(voluntary jurisdiction) of the 2000 Act, Deposits Management (Heritable) is deemed to be carrying on an activity to which the voluntary jurisdiction rules apply and is deemed to be participating in the ombudsman scheme.
PART 5
MISCELLANEOUS Shadow directorship 26 1 While Deposits Management (Heritable) is wholly owned by the Treasury (or to be regarded as wholly owned by the Treasury for the purposes of the Act), for the purposes of the provisions listed in Schedule 2 to this Order, none of the persons listed in paragraph (3) shall be regarded as a shadow director or (unless otherwise appointed as a director) a person discharging managerial responsibilities of Deposits Management (Heritable). 2 For the purposes of the definition of “director” in section 417 of the 2000 Act (definitions), none of the persons listed in paragraph (3) shall be regarded as a person in accordance with whose directions or instructions (not being advice given in a professional capacity) the directors of a relevant undertaking are accustomed to act while Deposits Management (Heritable) is wholly owned by the Treasury. 3 The persons are — a a Minister of the Crown; b the Treasury; c the Treasury Solicitor; d the Bank; e persons — i employed by or under; or ii acting on behalf of, any of the persons listed in sub-paragraph (a) to (d). Modification to Authority's rule-making power 27 1 Subsections (1) and (1A) of section 138 of the 2000 Act (general rule-making power) have effect as if modified by inserting after “protecting the interests of consumers” — or for the purposes of, to facilitate or in consequence of, a transfer under section 6 of the Banking (Special Provisions) Act 2008 . 2 Section 148(2) of the 2000 Act (modification or waiver of rules) shall also apply in relation to Heritable — a in the absence of an application by a person subject to rules made by the Authority; and b without any requirement for the consent of such a person. 3 Section 148(4) of the 2000 Act shall not prevent the Authority from modifying or waiving rules in relation to Heritable under section 148 of that Act provided that the Authority is satisfied that the modification or waiver is necessary for the purposes of, to facilitate or in consequence of the transfer. Modification to Authority's duty to consult on rule changes 28 1 Section 155(7) of the 2000 Act (consultation) has effect as if modified by adding at the end — or if it is making rules for the purposes of, or to facilitate or in consequence of, a transfer under section 6 of the Banking (Special Provisions) Act 2008. 2 Section 157 of the 2000 Act (guidance) has effect as if modified by adding after subsection (3) — 3A Section 155(7) applies to proposed guidance as it applies to proposed rules with the modification made by article 28 of the Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008. . Freedom of information 29 For the purposes of section 3 of the Freedom of Information Act 2000 (public authorities) , Deposits Management (Heritable) shall be deemed — a not to be a publicly-owned company for the purposes of subsection (1)(b); b not to hold information on behalf of the Treasury or Treasury Solicitor for the purpose of subsection (2)(b). Proceedings against directors 30 1 No director of — a Heritable; or b Deposits Management (Heritable), shall be liable in connection with the transfer or any other provisions of this Order and accordingly no proceedings may be brought (or, in Scotland, raised) against any such director in respect of such matters. 2 The Treasury may in writing — a waive the effect of paragraph (1), and b give consent to bring (or, in Scotland, raise) such proceedings against such directors. 3 Where paragraph (1) applies, section 232 of the Companies Act 2006 (provisions protecting directors from liability) shall not apply to a relevant undertaking. 4 In this article — “ director ” means a person who was a director immediately before the effective time, whether or not he has ceased to be a director at the time when proceedings in respect of that liability commenced; “ proceedings ” includes proceedings under Part 11 of the Companies Act 2006 (derivative claims and proceedings by members). Notification requirement 31 1 The Treasury must notify the Authority of the making of this Order. 2 A notification under paragraph (1) — a may be given by such means as the Treasury consider appropriate; b must be given to the Authority as soon as reasonably practicable after the effective time. 3 On receiving a notification under paragraph (1), the Authority must in turn notify any relevant EEA authority of the making of the Order. 4 A notification under paragraph (3) — a may be given by such means as the Authority considers appropriate; b must be given to the relevant EEA authority as soon as reasonably practicable after the Authority is notified under paragraph (1). 5 “ Relevant EEA authority ” means any regulatory authority in an EEA state that exercises functions in relation to any office or branch of the authorised deposit-taker in question in that state. Transfer of data 32 Any transfer of data under this Order is not to be taken to breach any restriction on disclosure of information, however imposed. Dave Watts Steve McCabe Two of the Lords Commissioners of Her Majesty's Treasury 7th October 2008


text:
Citation and interpretation
1
1
This Order may be cited as the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2008.
2
In this Order, “the principal Order ” means the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006, and a reference to a numbered article, Part, Table or Schedule is a reference to the article, Part, Table or Schedule in the principal Order which bears that number.
Amendments to the principal Order and commencement
2
1
The amendments to the principal Order contained in Schedule 1 to this Order shall have effect in accordance with this article.
2
Subject to the following provisions of this article the amendments contained in —
a
Part 1 of Schedule 1 shall come into force on 7th April 2008;
b
Part 2 of Schedule 1 shall come into force on the operative day.
3
Paragraphs 1, 3, 4, 5, 6 and 9 of Part 1 of Schedule 1 to this Order (which amend articles 7, 27, 33, 40, 44 and Schedule 3) shall apply for the purposes of decisions made on or after 7th April 2008.
4
Paragraphs 10 and 11 of Part 2 of Schedule 1(which amend article 10) shall apply —
a
for the purposes of decisions made under article 10 of the principal Order; and
b
to any member of the armed forces in receipt of severe disablement occupational allowance;
on or after the operative day.
5
Paragraphs 12 and 13 of Part 2 of Schedule 1(which amend articles 50 and 56) shall apply for the purposes of decisions to adjust or abate a pension or gratuity made on or after the operative day.
6
In this article “operative day” means the day that section 1 of the Welfare Reform Act 2007 comes into force.
Judith Simpson
Clerk of the Privy Council


text:
Citation
1
This Order may be cited as the Health and Social Care Act 2008 (Commencement No.1) Order 2008.
Appointed day for provisions relating to the Appointments Commission
2
25th August 2008 is the day appointed for the coming into force of the following provisions of the Health and Social Care Act 2008 —
a
section 127 (which gives effect to Schedule 10) in so far as it gives effect to the provisions referred to in paragraphs (b) and (c);
b
paragraph 20 of Schedule 10 (amendments to the Health Act 2006 relating to directions given by the Secretary of State to the Appointments Commission); and
c
paragraph 21 of Schedule 10 in so far as it relates to section 60(3)(a) of the Health Act 2006 (amendments relating to directions given by the Privy Council to the Appointments Commission).
Signed by authority of the Secretary of State for Health.
Ann Keen
Parliamentary Under-Secretary of State,
Department of Health
15th August 2008


text:
Citation and commencement
1
This Order may be cited as the Armed Forces (Gurkha Pensions) (Amendment) Order 2008 and comes into force on 29th February 2008.
Amendment of the AFPS 2005
2
1
Schedule 1 to the Armed Forces Pension Scheme Order 2005 is amended as follows.
2
In rule L.3 (option for former active members of the Gurkha Pension Scheme to join the Scheme) —
a
after “ill-health pensioner” in paragraph (7)(a)(i) insert “, or a prescribed pensioner”; and
b
after paragraph (7) insert —
7A
In paragraph (7) “prescribed pensioner” means a pensioner member of the Gurkha Pension Scheme who —
a
is eligible to become a member of the Scheme under this Part; and
b
on becoming a member, would become entitled to payments under articles 8 to 10 of the Armed Forces Early Departure Payments Scheme Order 2005 (eligibility, entitlement and amount of early departure payments).
.
Amendment of the EDPS 2005
3
1
The Armed Forces Early Departure Payments Scheme Order 2005 is amended as follows.
2
In article 4(e) (meaning of “relevant service” for Gurkha Pension Scheme transferees) after “rule L.4” insert “or L.5”.
Signed by authority of the Secretary of State for Defence
Derek Twigg
Under Secretary of State
Ministry of Defence
6th February 2008


text:
Citation and commencement
1
These Regulations may be cited as the Occupational Pension Schemes (Employer Debt – Apportionment Arrangements) (Amendment) Regulations 2008 and shall come into force on 15th April 2008.
Amendment of the Occupational Pension Schemes (Employer Debt) Regulations 2005
2
1
The Occupational Pension Schemes (Employer Debt) Regulations 2005 are amended as follows.
2
In regulation 2(1) (interpretation), for paragraph (f) of the definition of “scheme apportionment arrangement” , substitute —
f
each of the following persons consents to —
i
the trustees or managers, and either
ii
(where the circumstances referred to in paragraph (b) apply) any remaining employer to whom all or part of the amount that would have been the employer’s liability share is being apportioned, or
iii
(where the circumstances referred to in paragraph (b) do not apply) the employer; and
.
3
For regulation 7A(1)(b) (regulated apportionment arrangements) , substitute —
b
where an assessment period has not already commenced, each of the following persons agrees to the arrangement —
i
the trustees of the scheme, and either
ii
where the employer’s liability share is increased, the employer, or
iii
where the employer’s liability share is reduced, any remaining employer to whom all or part of the amount that would have been the employer’s liability share is being apportioned;
.
4
In regulation 16(2) (modification of schemes: apportionment of section 75 debt) , for “regulation 6(2)”, substitute “regulation 6(2)(a) or (b)”.
Signed by authority of the Secretary of State for Work and Pensions.
Mike O’Brien
Minister of State,
Department for Work and Pensions
11th April 2008


text:
Citation and interpretation
1
1
This Order may be cited as the Local Government and Public Involvement in Health Act 2007 (Commencement No. 8) Order 2008.
2
In this Order “ the Act ” means the Local Government and Public Involvement in Health Act 2007.
Provisions coming into force on 12th December 2008
2
The following provisions of the Act shall come into force on 12th December 2008 —
a
section 119 (reference of matter by councillor to overview and scrutiny committee), for the purpose only of conferring power on the Secretary of State to make an order specifying what is an excluded matter for the purposes of section 21A of the Local Government Act 2000 ;
b
section 125 (guidance);
c
section 192 (ethical standards officers: reports etc ), in so far as it is not already in force;
d
section 197 (interim case tribunals);
e
section 198 (case tribunals: England), in so far as it is not already in force;
f
section 199 (case tribunals: Wales);
g
section 219 (establishment of the tribunal), in so far as it relates to the provisions specified in paragraph (j) below;
h
section 236 (exercise of functions by local councillors in England), in so far as it confers power for the Secretary of State to make an order under subsection (4);
i
section 237 (exercise of functions under section 236: records); and
j
in Schedule 15 (the Valuation Tribunal for England), so much of paragraphs 1 and 2 as relate to paragraph A3 of Schedule 11 to the Local Government Finance Act 1988 .
Provisions coming into force on 31st December 2008
3
The following provisions of the Act shall come into force on 31st December 2008 —
a
section 77 (extension of power to certain parish councils), in so far as it is not already in force;
b
section 78 (community strategies); and
c
Schedule 5 (parishes: further amendments), in so far as it is not already in force.
Provisions coming into force on 1st April 2009
4
The following provisions of the Act shall come into force on 1st April 2009 —
a
section 119 (reference of matter by councillor to overview and scrutiny committee), in so far as it is not already in force;
b
section 120 (power of overview and scrutiny committee to question members of authority);
c
section 121 (power to require information from partner authorities);
d
section 122 (overview and scrutiny committees: reports and recommendations);
e
section 123 (joint overview and scrutiny committees: local improvement targets);
f
section 124 (overview and scrutiny committees of district councils: local improvement targets);
g
section 127 (overview and scrutiny committees: consequential amendments);
h
section 128 (transitional provision); and
i
section 236 (exercise of functions by local councillors in England), in so far as it is not already in force.
Provisions coming into force on 1st August 2009
5
The following provisions of the Act shall come into force on 1st August 2009 —
a
section 145 (Audit Commission: membership); and
b
section 158 (reports categorising English local authorities).
Provisions coming into force on 1st October 2009
6
The following provisions of the Act shall come into force on 1st October 2009 —
a
section 219 (establishment of the tribunal), in so far as it is not already in force;
b
section 220 (consequential and transitional provision etc), in so far as it is not already in force;
c
in Schedule 15 (the Valuation Tribunal for England) —
i
paragraphs 1 and 2, in so far as they are not already in force; and
ii
paragraphs 3 to 19; and
d
in Schedule 16 (consequential amendments relating to the creation of the Valuation Tribunal for England) —
i
paragraphs 2 to 9;
ii
paragraphs 10 and 11, in so far as they are not already in force;
iii
paragraph 12; and
iv
paragraphs 13 to 16, in so far as they are not already in force.
Signed by authority of the Secretary of State
John Healey
Minister of State
Department for Communities and Local Government
3rd December 2008


text:
Citation and commencement
1
These Regulations may be cited as The Control of Major Accident Hazard (Amendment) Regulations 2008 and shall come into force on 18th April 2008.
Amendment to the Control of Major Accident Hazard Regulations 1999
2
For sub-paragraphs (a) and (b) of paragraph (2A) of regulation 22 of the Control of Major Accident Hazard Regulations 1999 , substitute —
a
that operator or owner in relation to the establishment to which the current safety report relates; or
b
a contractor in relation to any work carried out by him on or in connection with that establishment.
.
Signed by authority of the Secretary of State for Work and Pensions.
Stephen C. Timms,
Minister of State
Department for Work and Pensions
16th April 2008


text:
1
The new highways which the Welsh Ministers propose to construct along the routes described in Schedule 1 to this Order shall become trunk roads as from the date when this Order comes into force.
2
The centre lines of the new trunk roads are indicated by heavy black lines on the deposited plan.
3
The length of trunk road described in Schedule 2 to this Order, and shown by broad striped hatching on the deposited map is to cease to be a trunk road and is to become an unclassified road as from the date on which the Welsh Assembly Government notifies the County Borough Council of Conwy that the new trunk roads are open for through traffic.
4
In this Order:
all measurements of distance are measured along the route of the relevant highway;
“the deposited plan” (“ y plan a adneuwyd ”) means the plan numbered HA 10/2 NAFW 17 marked 'The Cardiff to Glan Conwy Trunk Road (A470) (Penloyn to Tan Lan Improvement) Order 2008' , signed on behalf of the Welsh Ministers and deposited at the Welsh Assembly Government Record Storage and Retrieval Unit ( RSRU ), Neptune Point, Ocean Way, Cardiff;
“the trunk road” (“ y gefnffordd ”) means the Cardiff to Glan Conwy Trunk Road (A470);
“the new trunk roads”' (“ y cefnffyrdd newydd ”) means the highways mentioned in article 1 of this Order and 'a new trunk road' means one of those highways.
5
This Order comes into force on 30 October 2008 and its title is “The Cardiff to Glan Conwy Trunk Road (A470) (Penloyn to Tan Lan Improvement) Order 2008”
Signed under authority of the Minister for the Economy and Transport, one of the Welsh Ministers.
S C Shouler
Director of Transport Planning and Administration Welsh Assembly Government.
10 October 2008


text:
Citation and commencement
1
This Order may be cited as the Proceeds of Crime Act 2002 (Investigations in England, Wales and Northern Ireland: Code of Practice) Order 2008 and shall come into force on 1st April 2008.
Revised code of practice
2
Subject to article 3, the revised code of practice entitled “Code of Practice issued under section 377 of the Proceeds of Crime Act 2002” laid before Parliament on 18th February 2008 shall come into operation on 1st April 2008.
Exercise of functions at time of coming into operation
3
The revised code of practice referred to in article 2 shall apply to the exercise of any function under Chapter 2 of Part 8 of the Proceeds of Crime Act 2002 by a person who must comply with the revised code of practice under section 377(5) of that Act after midnight on 31st March 2008, notwithstanding that the person may have started to exercise the function before that time.
Vernon Coaker
Parliamentary Under Secretary of State
Home Office
31st March 2008


text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Mental Health (Mutual Recognition) Regulations 2008 and shall come into force on 3rd November 2008.
2
In these Regulations, “ the Act ” means the Mental Health Act 1983.
Approval under section 12(2) of the Act
2
1
Any person who is approved in relation to England for the purposes of section 12(2) of the Act, or treated as approved by virtue of section 12(2A) of the Act , shall in all circumstances relevant to the purposes of section 12(2) be treated as approved in relation to Wales.
2
Any person who is approved in relation to Wales for the purposes of section 12(2) of the Act, or treated as approved by virtue of section 12(2A) of the Act, shall in all circumstances relevant to the purposes of section 12(2) be treated as approved in relation to England.
Person approved to act as an approved clinician
3
1
The circumstances in which a person who is approved to act as an approved clinician in relation to England shall be treated, by virtue of his approval, as approved in relation to Wales too are where —
a
the approved clinician is acting in respect of a patient who is liable to be detained in accordance with the provisions of the Act or is subject to a community treatment order,
b
the patient is in Wales, and
c
the patient’s relevant hospital is in England.
2
The circumstances in which a person who is approved to act as an approved clinician in relation to Wales shall be treated, by virtue of his approval, as approved in relation to England too are where —
a
the approved clinician is acting in respect of a patient who is liable to be detained in accordance with the provisions of the Act or is subject to a community treatment order,
b
the patient is in England, and
c
the patient’s relevant hospital is in Wales.
3
In this regulation, “relevant hospital” —
a
in respect of a patient liable to be detained, means the hospital in which the patient is liable to be detained in accordance with the provisions of the Act;
b
in respect of a patient subject to a community treatment order, has the same meaning as “the responsible hospital” .
Guardianship
4
1
In relation to a patient subject to guardianship, the circumstances in which a responsible local social services authority in England may treat a person who is approved to act as an approved clinician in relation to Wales as approved in relation to England in order to authorise that person to be the patient’s responsible clinician are where —
a
the patient is in Wales, or
b
the patient receives medical treatment for mental disorder in Wales.
2
In relation to a patient subject to guardianship, the circumstances in which a responsible local social services authority in Wales may treat a person who is approved to act as an approved clinician in relation to England as approved in relation to Wales in order to authorise that person to be the patient’s responsible clinician are where —
a
the patient is in England, or
b
the patient receives medical treatment for mental disorder in England.
3
In relation to a patient subject to guardianship, the circumstances in which a person approved to act as an approved clinician in England shall be treated as approved to act as an approved clinician in relation to Wales are where —
a
that approved clinician has been authorised to act as the patient’s responsible clinician by the patient’s responsible local social services authority in England, and
b
that approved clinician is acting in respect of a patient who is in Wales.
4
In relation to a patient subject to guardianship, the circumstances in which a person approved to act as an approved clinician in Wales shall be treated as approved to act as an approved clinician in relation to England are where —
a
that approved clinician has been authorised to act as the patient’s responsible clinician by the patient’s responsible local social services authority in Wales, and
b
that approved clinician is acting in respect of a patient who is in England.
5
In this regulation, “responsible local social services authority” has the same meaning as in section 34(3) of the Act .
Signed by authority of the Secretary of State for Health.
Ivan Lewis
Parliamentary Under-Secretary of State,
Department of Health
28th April 2008
Edwina Hart
Minister for Health and Social Services,
one of the Welsh Ministers
28th April 2008


text:
Citation
1
This Order may be cited as the Christ The King Catholic and Church of England (VA) Centre For Learning (Designation as having a Religious Character) Order 2008.
Designation of School
2
1
The Christ The King Catholic and Church of England (VA) Centre For Learning, Lordens Road, Huyton, Liverpool, Merseyside, L14 8UL, a voluntary aided school, is hereby designated as a school having a religious character.
2
The religious denomination in accordance with whose tenets religious education is, or may be, required to be provided at the school in accordance with Schedule 19 to the School Standards and Framework Act 1998 is Church of England/Roman Catholic.
J D Loosley
A Deputy Director in the
Department for Children, Schools and Families
30th July 2008


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Surrey Primary Care Trust (Transfer of Trust Property) Order 2008 and shall come into force on 31 st March 2008.
2
In this Order —
“the old Trust” means the Surrey Primary Care Trust ;
“the new Trust” means the Surrey and Borders Partnership National Health Service Trust;
“the trust property” means the property specified in the schedule of trust property prepared and agreed by the old Trust and the new Trust and signed on behalf of the old Trust on 31 st January 2008 and on behalf of the new Trust on 4 th February 2008.
Transfer of trust property
2
1
On the date that this Order comes into force the trust property, and any rights and liabilities arising from that property, shall be transferred from the old Trust to the new Trust.
2
In any instrument relating to the trust property, any reference in relation to the trust property to the trustees of the trust property or to the old Trust shall be construed as a reference to the new Trust.
Signed by authority of the Secretary of State for Health.
Ben Bradshaw
Minister of Health,
Department of Health
19th February 2008