Section 204(1) of the Banking Act 2009 (the Act) confers a power on the Bank of England (BoE) to obtain information for specified purposes in connection with its functions under Part 5 of the Act (this includes assisting the Treasury in determining whether to specify a system as a recognised system under section 184 of the Act).
However, under Part 5 of the Act the BoE is unable to share information it has obtained under section 204(1) for other purposes such as criminal and civil investigations and proceedings initiated by UK public authorities other than those specified in section 204(4).
On 4 February 2010, the Treasury began a consultation on draft Regulations which extend the BoE’s power of disclosure of information obtained under section 204(1). The draft Regulations are entitled The Banking Act 2009 (Inter-Bank Payment Systems) (Disclosure and Publication of Specified Information) Regulations 2010.
The draft Regulations provide that the BoE may disclose information:
To public authorities for the purposes of, or in connection with, criminal investigations and proceedings which can be brought in the UK.
- To public authorities for the purposes of, or in connection with, investigations and proceedings that could result in the imposition of civil penalties which can be brought in the UK (such as regulatory investigations).
- To specified public authorities for the purposes of enabling or assisting them to discharge specified functions (including the Takeover Panel, the Office of Fair Trading and the European Commission).
- To any person where the information has already entered the public domain.
- To any person where:
- the person from whom the BoE has obtained the information and, if different, the person to whom the information relates has consented; or
- the information is in the form of a summary or collection of information such that information relating to a particular person cannot be identified.
The draft Regulations also make provision in respect of the manner and extent of publication under section 204(7). It also provides that where information relates to persons regulated or overseen by the FSA the BoE must first consult with the FSA before publishing that information.
The consultation period on the draft Regulations was very short and ended on 19 February 2010.