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Lord Boardman: My Lords, the Minister has not dealt with Amendment No. 115CA.

Lord McIntosh of Haringey: My Lords, the noble Lord must be right. Clause 65 is designed to provide for a proportionate approach towards the exercise of disciplinary powers under the approved persons regime. That approach would be somewhat undermined by Amendment No. 115CA, tabled by the noble and learned Lord, Lord Fraser of Carmyllie.

Where the FSA decides to take action in response to the misconduct of an approved person, it may either impose an appropriate penalty or, alternatively, publish a statement of his misconduct. Those disciplinary powers supplement the power to withdraw an approval.

They allow the FSA to make a measured response to instances where a person's behaviour did not meet expected standards but was not such as to justify withdrawing altogether the person's approval. I think that that is the response which the noble Lord, Lord Boardman, was seeking.

Lord Boardman: My Lords, as I understood the amendment, it was about publication in a national newspaper. It sought to clarify whether the information should be simply stuck up on a notice board or published in a national newspaper.

Lord McIntosh of Haringey: My Lords, the key to that is that the disciplinary powers must be used in an appropriate and measured way. Clearly, it may be right, on occasion, to publish in a national newspaper; but on other occasions, it would be disproportionate. Nothing would be gained by restricting the discretion of the FSA along the lines proposed in Amendment No. 115CA as to the nature of the action that it may take under Clause 65(3)(b). It may be wrong to arm it with a sledgehammer when perhaps a nutcracker would be more appropriate.

Lord Fraser of Carmyllie: My Lords, the noble Lord cited what the Minister said in evidence before the Joint Committee. He accurately recorded what her evidence was. But if he goes through the whole of the evidence, I should be surprised if he can discern from all that evidence one clear, unequivocal line of opinion given to the Joint Committee. Indeed, some were really quite troubled that it should have anything of a civil character and thought that it really was, from the word go, entirely criminal in nature.

However, that is not the point which really concerns me; it is the issue on which I have still not had an answer. I do not really blame the Minister. I am not trying to flatter or to criticise him; I am just making the point that I have not had an answer to that point. If it is a sliding scale--a continuum--at some point it changes from being civil in character to being criminal. No one has been able to identify for me--nor, I

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believe, before the Joint Committee--the point at which that change occurs. Once it occurs, particularly in the context of human rights legislation, one must ensure that, if they are criminal, there are attendant upon the proceedings a number of important safeguards set out in the convention and, more generally, in our criminal law. It seems that the best opinion that can be expressed is simply that after the event, it may be possible to look at the charge within the proceedings and then to say, "As we now look at it, it is clear that it was civil or criminal".

What troubles me about that approach, although I do not disagree with it, is that if we have a case on the borderline, there may be some risk of subsequent challenge to those proceedings. My sole purpose is to do what can be done to avoid the risk of such a challenge. I have no doubt that the harder and more rigorously we consider that matter, the better it will be. I have heard what the Minister has said and I shall certainly not be pressing the amendment at this stage.

In relation to my second amendment, he raised the provision of subsection (3) of Clause 65:


    "If the Authority is entitled to take action ... against a person, it may--


    (a) impose a penalty on him of such amount as it considers appropriate;


    or


    (b) publish a statement of his misconduct".

I can well envisage circumstances where the authority comes to the view that there has been a degree of misconduct and that that misconduct should be brought to wider attention. What is not entirely clear to me is how disjunctive that "or" is in the middle of the subsection. It seems that it is not difficult to envisage circumstances where a person has been reprehensibly guilty of misconduct and the authority, with good cause, might wish to impose a significant penalty on him, in which circumstances it would seem appropriate that that should also be published.

Lord McIntosh of Haringey: My Lords, with the leave of the House, I wonder whether the noble and learned Lord would allow me to intervene. I was not as full as I might have been in response to him. The current practice of the FSA is to make those statements in press notices which are widely reported in the trade press and can feature also in the national press in serious and high profile cases. Of course, we cannot force the national press to support such statements. The protection is that all FSA press notices are posted on its website. They are therefore available to members of the public.

Lord Fraser of Carmyllie: My Lords, I am grateful to the Minister for that intervention. It is not quite the answer to my point. He is absolutely right about that: if anyone has an adverse press notice about him posted or given any degree of publicity, I am aware that such individuals are often far more concerned about that than about any level of penalty that might be imposed upon them because of the reputational damage it might do to them. I am not saying that that is a bad

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thing, but I am indicating that I understand. What I am not clear about is whether those are alternatives or whether one may impose a major penalty and publish.

Lord McIntosh of Haringey: My Lords, the answer to that is "yes". If the FSA imposes a penalty, it may also make a statement of the fact that it has done so.

Lord Fraser of Carmyllie: My Lords, it has taken us a little time to get there, but I am grateful that we have done so. That is what I wanted to ascertain. As I indicated, publication in a national newspaper does not seem to be at the core of matters. As the Minister has indicated, publication on a website, where perhaps the whole world may pick it up, may be far more damaging than anything else. As I indicated, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 115C to 115D not moved.]

7.15 p.m.

Clause 67 [Notice for payment]:

Lord McIntosh of Haringey moved Amendment No. 116:


    Leave out Clause 67.

The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 127, 138, 184, 189, 190 and 191. That group of amendments completes the changes begun in Committee to replace the separate provisions dealing with notices for payment with a single over-arching clause dealing with final notices. Clause 385 deals with final notices, and subsection (5) requires a final notice imposing a financial penalty to state the amount of the penalty and the manner and period in which the penalty is to be paid and to give details of the way in which the penalty will otherwise be recovered.

That removes the need for a number of existing clauses which provide for separate notices for payments setting out those details. Of course, I understand that the Opposition had some worries about that. They felt that there was some ambiguity as to whether payment notices could be issued before the relevant decision was intended to take effect; that is, not until after any relevant tribunal and other judicial procedures, or the period for making references or appeals had passed. To address that concern we introduced Clause 385 in Committee. During discussion, noble Lords opposite sought my assurance that the remaining provisions dealing with notices for payment and, in particular, Clause 124, would be omitted on Report.

We offered that assurance and the amendments fulfil it. Thus the government amendments would omit all the remaining clauses which separately provide for notices for payment--Clauses 67, 93 and 124 under Parts V, VI and VIII and Clause 381, which provides for payment notices for restitution orders under Clause 378. Amendment No. 189 is a consequential amendment resulting from the omission of Clause 381.

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It requires final notices issued in connection with the restitution power to set out the persons to whom, the manner in which and the period within which payments or distributions should be made.

Amendment No. 190 specifies that, as for other final notices requiring payments to be made, that period may not be fewer than 14 days. Amendment No. 191 makes provision for those payments or distributions to be enforceable through the courts. Removing the separate provision for notices for payment and dealing with the issue in Clause 385 makes it clear that payment cannot be required until the decision has come into effect, either because the period for reference to the tribunal has passed without a reference being made, or because a reference has been made and is being determined by the tribunal or by the higher courts. I hope that that meets in full the points made by the Opposition in Committee. I beg to move.

Lord Kingsland: My Lords, Clause 67 relates to notices for payment and is deleted in line with the new procedures, which leave payment notices to the final notice. That seems sensible. Clause 93 deals with notices for payment and therefore, again in accordance with the new procedures, needs to be deleted because payment notices are again now dealt with by the final notice. We are also pleased about that. Am I right in thinking that there is a new clause after Clause 93 relating to competition?


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