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EXERCISE OF OWN-INITIATIVE POWER TO VARY PART IV PERMISSION:PROCEDURE

(" .--(1) This section applies to an exercise of the Authority's own-initiative power to vary an authorised person's Part IV permission.
(2) A variation takes effect--
(a) immediately, if the notice given under subsection (4) states that that is the case;
(b) on such date as may be specified in the notice; or
(c) if no date is specified in the notice, when the matter to which the notice relates is no longer open to review.

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(3) A variation may be expressed to take effect immediately (or on a specified date) only if the Authority, having regard to the ground on which it is exercising its own-initiative power, reasonably considers that it is necessary for the variation to take effect immediately (or on that date).
(4) If the Authority proposes to vary the Part IV permission, or varies it with immediate effect, it must give the authorised person written notice.
(5) The notice must--
(a) give details of the variation;
(b) state the Authority's reasons for the variation and for its determination as to when the variation takes effect;
(c) inform the authorised person that he may make representations to the Authority within such period as may be specified in the notice (whether or not he has referred the matter to the Tribunal);
(d) inform him of when the variation takes effect; and
(e) inform him of his right to refer the matter to the Tribunal.
(6) The Authority may extend the period allowed under the notice for making representations.
(7) If, having considered any representations made by the authorised person, the Authority decides--
(a) to vary the permission in the way proposed, or
(b) if the permission has been varied, not to rescind the variation,
it must give him written notice.
(8) If, having considered any representations made by the authorised person, the Authority decides--
(a) not to vary the permission in the way proposed,
(b) to vary the permission in a different way, or
(c) to rescind a variation which has effect,
it must give him written notice.
(9) A notice given under subsection (7) must inform the authorised person of his right to refer the matter to the Tribunal.
(10) A notice under subsection (8)(b) must comply with subsection (5).
(11) If a notice informs a person of his right to refer a matter to the Tribunal, it must give an indication of the procedure on such a reference.
(12) For the purposes of subsection (2)(c), whether a matter is open to review is to be determined in accordance with section 386(6A).").


    After Clause 51, insert the following new clause--

CANCELLATION OF PART IV PERMISSION: PROCEDURE

(" .--(1) If the Authority proposes to cancel an authorised person's Part IV permission otherwise than at his request, it must give him a warning notice.
(2) If the Authority decides to cancel an authorised person's Part IV permission otherwise than at his request, it must give him a decision notice.").

The noble Lord said: My Lords, I beg to move Amendment No. 108, and Amendments Nos. 109 to 110 en bloc.

Lord Kingsland: My Lords, once again I find myself shut out from responding to a large number of government amendments. I shall not protest, formally, but the House ought to allow the Opposition to respond to a large number of detailed amendments to

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which my noble friend Lord Jenkin has referred. I am obliged to the Minister for indicating that he will allow me to do so. The Minister smirks and sniggers.

Lord McIntosh of Haringey: My Lords, after the noble Lords, Lord Jenkin and Lord Peyton, had spoken, I paused, I looked around, and I waited to see whether anyone else wanted to intervene before I responded to the debate. Fortunately, the noble Lord is entirely within his rights to speak to the Question that is now before the House. I shall endeavour to respond as best I can, both in relation to the amendments that are before the House and to other amendments in the group.

Lord Kingsland: My Lords, I am much obliged. First, I want to deal with the amendments to Clause 50. Amendment No. 107 deletes subsection (4) which relates to the determination of an application for permission, and limits the simple written notice to where the application is granted. In other words, it is a fast-track procedure. However, new subsections (6) to (9) bring in the warning and decision notice procedures in those cases where the authority gives a Part IV permission but imposes limitations or requirements on it.

We asked for this provision in another place and we are extremely pleased to see it on the face of the Bill. There is, however, one small point that we wish to raise with respect to it. The new subsection (6)(a) applies the warning notice procedures to the exercise by the authority of its powers under Clause 40(7)(a) and (b). Clause 40(7)(b) allows the authority to specify either a narrower or a wider description of regulated activity than was asked for. Where it is a narrower description, obviously the application has not been granted in full; therefore, the warning and decision notice procedures should be gone through. However, a wider description means that the applicant will be able to do more regulated activities than he applied for, and this can only be to his benefit.

We think that the specifying of a wider description should be treated in the same way as the giving of permission for a regulated activity which was not included among those asked for in the application. Accordingly, we think that in the new subsection (6)(a), after "or (b)" there should be inserted the expression, "in relation to specifying a narrow description". If that is done, the same amendment needs to be made in subsection (9)(a).

Perhaps I may make one small point on the new subsection (4). The noble Lord and his team may have picked it up already. I think it is clear that in the first line the word "the" should be inserted after the expression "or for".

So far as concerns Clause 51 and the two new clauses after it, Clause 51 is deleted, as I understand it, because it is covered by the amended Clause 50. There is then a new clause which sets out the procedures for the exercise by the authority of its own initiative power to vary Part IV permissions.

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That is fine as far as it goes, but I humbly suggest two improvements. First, the authorised person whose Part IV permission is being varied should be allowed to see the evidence causing the authority to vary it. Otherwise, the whole situation is somewhat Kafkaesque in that, although the authorised person will know why the authority wants the variation, he will not know the evidence that has caused the authority to want it--so that he can, if he wishes, rebut it. Given that the authority is trying hard to be transparent, that evidence should be given to him. Therefore, although there is no warning or decision notice, it should be covered by Clause 389 concerning access to authority material. Clause 387, which lists the sections to which Clause 389 applies, should be amended appropriately.

Secondly, the period given to the authorised person to make representation should be reasonable. Therefore, I suggest that in the second line of the new subsection (5)(c), after "within such", the word "reasonable" should be inserted.

The second new clause, inserted after Clause 51, which applies to cancellation of permissions, is welcome, as it brings in all the normal disciplinary-type protections including access to authority evidence. The deletion of Clauses 52 and 53 is welcome. They have been replaced by the two new clauses after Clause 51.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for his observations and, indeed, for his general welcome, which I believe I can infer from his specific objections. If those are the only objections he has, we are doing quite well.

On the issue of giving a Part IV permission to exercise power under Clause 40(7)(a) or (b), the noble Lord, Lord Kingsland, is right. Clause 40(7)(b) does provide for a narrower or wider description of regulated activity. I shall look into the question he raises as to whether "wider" would be inappropriate and I shall write to him on the point. If it seems necessary, I shall make such amendments as may be required.

As to Amendment No. 109, the noble Lord asks that under subsection (5) the notice should give evidence of the reasons for the variation. Subsection (5)(a) already provides that the notice should give details of the variation. Subsection (5)(b) provides that the notice should,


    "state the Authority's reasons for the variation and for its determination as to when the variation takes effect".

"Reasons for the variation" does not apply only to when the variation takes effect but the variation as a whole. I would have thought that it was rather difficult to provide detailed reasons without giving evidence. But if there is anything more in "evidence" than I believe is already provided for I shall look into the matter. My immediate judgment is that there is not.

The noble Lord also referred to subsection (5)(c) in Amendment No. 109. He suggested that the representation should be made to the authority within

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such reasonable period as might be specified. We had a debate in Committee on "reasonable". If anything, there are perhaps far too many "reasonables" in the Bill. I believe that here "reasonable" can be inferred. The noble Lord suggested that the variation of permission should be subject to Clause 389, which is concerned with access to FSA material. We have made generous provision as to access to material which goes beyond anything that exists currently. It would be inappropriate to extend this to supervisory decisions and, therefore, make supervision far too bureaucratic and litigious. With those responses to the specific points, to which I shall add if there is anything further that I can usefully say, I beg to move that Amendments Nos. 108 to 110 be agreed to.

On Question, amendments agreed to.

Clause 52 [Procedure on exercise of the Authority's own-initiative power]:

[Amendment No. 110A not moved.]


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