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Lord McIntosh of Haringey moved Amendment No. 135:


On Question, amendment agreed to.

Clause 123 [Decision notices and right to refer to Tribunal]:

[Amendment No. 135A not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 136 and 137:


    Page 60, line 30, leave out subsection (2) and insert--


("(2) A decision notice about the imposition of a penalty must state the amount of the penalty.
(2A) A decision notice about the publication of a statement must set out the terms of the statement.").


    Page 60, line 31, leave out subsection (3).

On Question, amendments agreed to.

Clause 124 [Notice for payment]:

Lord McIntosh of Haringey moved Amendment No. 138:


    Leave out Clause 124.

On Question, amendment agreed to.

Clause 129 [The Financial Services and Markets Tribunal]:

Lord McIntosh of Haringey moved Amendment No. 139:


    Page 62, line 16, after ("by") insert ("or under").

The noble Lord said: My Lords, Clause 129 establishes the financial services and markets tribunal. Subsection (2) specifies that the tribunal should have the functions which are conferred on it by the Bill; that is to say, those which are set out on the face of the Bill. In a number of specific instances, such as in Clause 258, which deals with open-ended investment companies, the Bill does not directly confer jurisdiction on the tribunal, but contains a power to make secondary legislation conferring jurisdiction on the tribunal. Amendment No. 139 is a technical amendment intended to take account of that fact. I beg to move.

On Question, amendment agreed to.

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[Amendment No. 140 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 140ZA:


    Page 62, line 17, after ("may") insert ("after consulting the Lord President of the Court of Session").

The noble and learned Lord said: My Lords, I believe that I can move the amendment very shortly. If I get a bloody nose over it, I shall be more than content. My interest is not in any sense to restrict the writ of the Lord Chancellor. For reasons I have previously indicated, I should like to see the powers of the financial services and markets tribunal operate on a UK basis. That is what I understand is proposed. However, I want to ensure that the Lord Chancellor, when making rules for the tribunal, should consult the Lord President of the Court of Session as the senior judge in Scotland as well as the Council on Tribunals. I have a lurking suspicion that if there is not an expressed statutory obligation to do that, it is always implicit in the arrangements. If I am reassured on that matter, I shall readily withdraw the amendment. I beg to move.

10.45 p.m.

Lord Kingsland: My Lords, I wish to speak to Amendments Nos. 140A to 140E, which are grouped with Amendment No. 140ZA. These amendments relate to the composition of the financial services and markets tribunal. It is possible that when the Government first considered the qualifications for membership of the tribunal they concluded that it did not require to be made up of persons of very high standing in so far as their legal qualifications are concerned. Schedule 13 requires the members of the panel of chairmen to have at least seven years' standing as a qualified lawyer.

Today these qualifications seem inadequate given the importance now attached to the role of the tribunal. We believe that the tribunal justifies the presence of a High Court judge or a judge of the Court of Session to be its president and deputy president. We also believe that the seven-year qualification requirement for other members of the panel of chairmen should be increased to 10 years.

Lord McIntosh of Haringey: My Lords, the answer to the noble and learned Lord, Lord Fraser of Carmyllie, takes a page, but I do not need to say it. Yes, it is implicit. The reason why we have not included it is because there are other people to consult, such as the Lord Advocate, representing the Scottish Executive, the Law Societies of England and Wales, Northern Ireland and Scotland, the Bar Council and many others.

As regards the main opposition amendments, Amendment No. 140A required the Lord Chancellor to appoint judges of the High Court or Court of Session as the president and deputy president. The Bill provides that he must appoint the president and deputy president of the tribunal from the members of the panel of chairmen which he also appoints.

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The current legal qualifications for these appointments under paragraphs 2(5) and 3(2) are sufficient for the proposed new tribunal and are fully in line with appointments for other tribunals. The president of the tribunal must have a 10-year legal qualification.

Of course we want the tribunal to have a high level of expertise and authority. The Lord Chancellor can make appointments at a higher level of seniority if there is a case for doing so. But we do not believe that the nature and volume of the workload of the tribunal warrants taking the unusual step of making such an appointment. The amendment would impose too much inflexibility on the appointment of the president. It would appear to prevent at a future date the appointment of, say, a retired High Court judge or even a more senior judge, should it be found that the workload justified such an appointment.

Amendments Nos. 140B to 140E require all members of the panel of chairmen to have a 10-year legal qualification as opposed to seven years. The provisions in the Bill for the panel of chairmen ensures that suitable people are appointed to the tribunal with the necessary qualification. We do not believe that it needs to be changed. It is the normal practice for other tribunals to appoint people with a seven-year qualification, such as the VAT and Duties Tribunal, employment tribunals and the transport tribunals.

If there is a case which raises legal issues of a particularly complex or ground-breaking nature, then the tribunal may appoint one or more experts to provide assistance. It can also bring in additional members of the panel of chairmen with the relevant expertise to the case in question. I hope that noble Lords will not press these amendments.

Lord Fraser of Carmyllie: My Lords, I am certainly satisfied. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 140A to 140E not moved.]

Schedule 13 [The Financial Services and Markets Tribunal]:

Lord McIntosh of Haringey moved Amendment No. 141:


    Page 267, line 13, at end insert--


("( ) for the suspension of decisions of the Authority which have taken effect;").

The noble Lord said: My Lords, in moving this amendment I would like to speak also to Amendments Nos. 142 to 149 inclusive. This is a central part of the Government's rationalisation of the procedural provisions to ensure fairness and consistency. The Government's amendments to Part IX, most of which were circulated in draft when we were in Committee, improve the way in which the decisions of the tribunal are given effect and put beyond doubt the tribunal's ability to consider all the relevant evidence.

Amendment No. 141 makes it clear that the tribunal rules made under Clause 129 may include provision for the tribunal to suspend the effect of decisions that

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come into effect before they have considered the matter. That reflects the need to allow for supervisory decisions which need to take effect while the matter is still open to review. It is only right that in these circumstances the tribunal should have discretion to grant relief from whatever requirement or restriction has been imposed.

Amendments Nos. 142 and 149 are drafting amendments, consequential on the drawing of the distinction between supervisory notices, warning and decision notices.

Amendment No. 143 is a drafting improvement. We are anxious to make it as clear as possible that the tribunal can consider any evidence, regardless of whether it was available to the FSA or not. That is the intended effect of the current wording, but we were concerned that it may seem ambiguous so decided to put the point beyond any doubt.

Amendment No. 144 concerns the manner in which the tribunal's decisions are given effect. As the Government explained in another place, the existing drafting left the tribunal with the responsibility for giving effect to its own decisions unless it decided to remit the matter back to the FSA.

The Tribunal should not be responsible for taking the necessary administrative action to give effect to its own decisions. We have been concerned that that may lead the tribunal to be a competent authority for the purposes of the European directives, which could embroil the tribunal in much unnecessary administration. So the responsibility for giving effect to the tribunal's decisions will rest with the FSA, which has all the relevant powers. Naturally the amendments ensure that the FSA will be bound to take whatever action the tribunal determines.

Amendment No. 145 takes us back to the issue of when a decision takes effect. As we made clear in Committee, it is not our intention that the FSA should be able to demand payment of penalties or restitution, or make public statements, during the period when the person concerned has a right to refer the matter to the tribunal.

Amendment No. 145 makes that clear. The FSA cannot give effect to a decision contained in a decision notice pending a reference to the tribunal, or appeal from the tribunal to the higher courts, or while a decision remains open to such a reference being made. Once the review process is complete, action will be given effect to by a final notice under Clause 385. The final notice must then give effect to the determination made by the tribunal or, if its decision is appealed, to the judgement of the higher courts.

Amendments Nos. 146 to 148 are consequential changes. I beg to move.

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