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Lord Kingsland: My Lords, these amendments are a series of amendments to Clause 130 and there is one to Schedule 13. The first amendment makes it clear that there can be a reference to the tribunal after a supervisory notice as well as after a decision notice, which is welcome. The second makes it clear that the tribunal can consider all evidence, even if it were available to the authority at the time of reaching a decision. The present version suggests that the tribunal can consider only evidence that was not available to the authority at the time. That is also welcome.

Subsection (4) is replaced by a series of provisions that provide for the tribunal to decide the appropriate action for the authority to take and then directs the authority to take it, which is sensible. If the reference relates to a supervisory notice, the tribunal cannot direct the authority to take action which would have required the giving of a decision notice. The two categories of offences, respectively covered by the two notices, are to be kept separate. That also seems appropriate.

Finally, the tribunal can also make recommendations as to the authority's rules or procedures. It cannot actually require changes, but presumably a recommendation would be enough.

The amendment to page 62, line 40 provides that the authority cannot take action pursuant to a decision notice during the period within which the matter to which the decision notice relates may be referred to the tribunal and, if the matter is referred to the tribunal, until the reference and any appeal is disposed of. In another place, during the Committee stage, and at every opportunity thereafter in another place and in your Lordships' House, we had been asking for this. We are very pleased to see it. I hope that the Minister will not mind me reminding him of the number of times that we have had to ask the Government to provide that.

The few final amendments merely tidy up the clause. I do not need to comment on them.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for his support. On the matters on which he has been clearer than I have been in expounding the government amendments--I am sure there are many--I hope that his text can be used in Pepper v. Hart rather than mine.

On Question, amendment agreed to.

Lord Kingsland moved Amendment No. 141A:



("(3) At the commencement of any proceedings a party (other than the Authority) to those proceedings may elect either that the provisions of sub-paragraph (2) must apply, or instead of sub-paragraph (2), that the Tribunal has discretion to order one party to the proceedings to pay the whole or part of the costs or expenses incurred by the other party in connection with the proceedings.").

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The noble Lord said: My Lords, I must say that if the Minister would make that Pepper v. Hart concession to all my speeches in your Lordships' House on this Bill, I would be most content and much obliged.

Under paragraph 13 of Schedule 13, the tribunal may award costs against a party to proceedings only if that party has acted "vexatiously, frivolously or unreasonably" or, in the case of the authority, if the decision of the authority was unreasonable. There will be cases where the authority acted reasonably, but where the tribunal finds in favour of the other party to the proceedings. In those cases, although the authority loses the proceedings, it will not have any responsibility for the costs incurred by the other party, which could be substantial.

We accept that any alternative proposal on costs should not favour one party over another. Amendment No. 141A seeks to achieve that balance by giving the non-authority party to the proceedings the choice, at the commencement of the proceedings, either to accept the present provision in paragraph 13, in which case he will not have to pay the authority's costs if he loses but does not receive from the authority any contribution towards his costs if he wins; or to opt for the proposed alternative, which will allow the tribunal to decide costs. We believe this to be a fairer structure which does not prejudice the position of the authority. I beg to move.

Lord McIntosh of Haringey: My Lords, the aim of Amendment No. 141A is to widen the circumstances under which the tribunal can award costs. The current drafting of the Bill allows the tribunal to award costs against either party if they have acted "vexatiously, frivolously or unreasonably". In addition, sub-paragraph (2) makes explicit the tribunal's power to award costs against the FSA where it considers that the FSA decision giving rise to the reference was unreasonable.

As I understand it, Amendment No. 141A would give the party other than the FSA the option at the start of the proceedings to elect either that the provisions of sub-paragraph (2) "must" apply--I do not understand whether that means any more than that it just applies--or that the tribunal should have the discretion to award costs against either party regardless of whether they have acted "vexatiously, frivolously or unreasonably". That seems to go against the thrust of the Joint Committee's recommendation.

The Joint Committee recommended that we restrict the discretion of the tribunal to award costs to those cases where the tribunal considered that one or other party had acted unreasonably, vexatiously or frivolously. The committee was, I believe, concerned that a broad power to award costs could act as a deterrent to people using the tribunal.

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After considerable reflection and consultation with the Lord Chancellor's Department, we were persuaded that we had provided an unusually broad power for a tribunal of this nature and so it was narrowed in another place. We understand that the Opposition have introduced this new element of an option for the party other than the FSA in order to meet the concerns about the possible deterrent effect. However, we do not think that it is right or proper to apply this sort of provision to tribunal proceedings. We are unaware of any precedent for such a provision, and it seems inherently unfair for one party to any dispute to be able to determine the basis on which costs may--or must--be awarded.

These are fundamental questions. I hope that the noble Lord will not press his amendment

Lord Kingsland: My Lords, the noble Lord will be relieved to hear that I do not intend to press the amendment, but I shall reflect on what he said. However, the proposition that just because something has not been done before, it ought not to be done now is one which I would have thought was alien to the culture of the Government. Perhaps the Minister will surprise me.

Lord McIntosh of Haringey: My Lords, pure conservatism.

Lord Kingsland: My Lords, I leave noble Lords with that observation by the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 130 [Proceedings: general provision]:

Lord McIntosh of Haringey moved Amendments Nos. 142 to 149 en bloc:


    Page 62, line 26, after ("notice") insert ("or supervisory notice").


    Page 62, line 31, leave out from ("evidence") to end of line 32 and insert ("relating to the subject-matter of the reference, whether or not it was available to the Authority at the material time").


    Page 62, line 33, leave out subsection (4) and insert--


("(4) On a reference the Tribunal must determine what (if any) is the appropriate action for the Authority to take in relation to the matter referred to it.
(4A) On determining a reference, the Tribunal must remit the matter to the Authority with such directions (if any) as the Tribunal considers appropriate for giving effect to its determination.
(4B) In determining a reference made as a result of a decision notice, the Tribunal may not direct the Authority to take action which the Authority would not, as a result of section 383(2), have had power to take when giving the decision notice.
(4C) In determining a reference made as a result of a supervisory notice, the Tribunal may not direct the Authority to take action which would have otherwise required the giving of a decision notice.
(4D) The Tribunal may, on determining a reference, make recommendations as to the Authority's regulating provisions or its procedures.").


    Page 62, line 40, leave out from beginning to ("until") and insert ("The Authority must not take the action specified in a decision notice--

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(a) during the period within which the matter to which the decision notice relates may be referred to the Tribunal; and
(b) if the matter is so referred,").


    Page 62, line 41, leave out ("decision,") and insert ("determination,").


    Page 63, line 1, leave out ("If a matter is remitted to the Authority,").


    Page 63, line 2, leave out ("decision of") and insert ("determination of, and any direction given by,").


    Page 63, line 5, at end insert--

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("( ) "Supervisory notice" has the same meaning as in section 390.").

On Question, amendments agreed to.


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