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Public Trustee (Liability and Fees) Bill [HL]

3.7 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, on behalf of my noble and learned friend the Lord Chancellor, I beg to move that this Bill be now read a second time.

Following past criticisms of the Public Trust Office by the Public Accounts Committee and recommendations made in a quinquennial review, a refocused role for public trustee work was agreed. This involved removing trust work from the Public Trust Office and relaunching that office as the Public Guardianship Office with effect from 1st April 2001. The trust work was transferred to the office of the Official Solicitor, to be handled with his existing estates work. The policy for both that office's existing estates' work and the public trustee's trusts work is to accept new cases only as a public sector trustee of last resort; that is, to be available to act to protect the vulnerable, or persons under legal disability, or where there is a social need to do so when there is no one else suitable or able to do so and an injustice would otherwise result.

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This has led to a diminishing trusts caseload. Furthermore, trusts which are commercially viable and which do not involve the need for special protection for people under incapacity, or otherwise disadvantaged, have been encouraged to transfer to the private sector. We are convinced that this was the correct course of action for the management of the work and services provided by both offices. However, as a consequence of the changes, the accommodation and other overhead costs attributed to trust work increased significantly from 1st April 2001, while the income from trusts work has reduced, and is projected to continue to reduce.

There is a statutory requirement for full cost recovery for trust work contained in Section 9(4) of the Public Trustee Act 1906. The only way to meet this requirement is to increase the level of fees. The level of fee increases required to achieve full cost recovery would be very high—an in-year increase for this financial year would be in the region of 100 per cent.

Some of the clients affected by these fees include the very vulnerable in society. A large number of the clients are elderly. Additionally, there are 50 cases where the Public Trustee looks after the interests of beneficiaries of vaccine damage or other compensation settlements. Another 100 cases involve mentally or physically disabled beneficiaries and a further eight benefit under charitable provisions.

Some clients, particularly the elderly, are reliant on the income they receive from their trust funds and others are reliant on the expectation of inheriting trust capital. Significant increases in administration fees would reduce both the amount of capital-generating income and that ultimately available for distribution.

As an alternative to large fee increases, this short Bill removes the requirement for full cost recovery for trust work. It seems sensible to use this opportunity to regularise the position in relation to trust fees now to bring fee setting for trust work in line with fee setting provisions for other work. At the moment, the majority of fee setting powers are held by the Minister with responsibility for the policy—for example, in the case of civil court fees the Lord Chancellor prescribes the fees with the concurrence of the Treasury. However, the power to set fees for trust work is set out in Section 9(1) of the Public Trustee Act. This provides for the Treasury to set fees with the sanction of the Lord Chancellor. It would seem sensible for the position to be regularised now.

As a modernising measure, the Bill also repeals Section 7 of the Public Trustee Act. In accordance with modern financial practice, it removes the Consolidated Fund's liability to make good any sums required to discharge the Public Trustee's liability and places the liability with the Lord Chancellor. In reality, any sums would come from within the Lord Chancellor's Vote. It also tidies up the position on the Public Trustee's liability to beneficiaries by removing a purported limitation on such liability that in law has no effect. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Baroness Scotland of Asthal.)

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Lord Thomas of Gresford: My Lords, we on these Benches have examined these provisions with some care, as the House would expect, as it is the amendment of the Liberal government Bill of 1906 with which we are concerned. That Bill did much to regulate the pre-existing position. Clearly in the period of time that has elapsed anomalies have arisen.

I am glad that the Government are taking the interests of the vulnerable, the elderly and the injured into account in bringing forward these measures, which will undoubtedly reduce the level of fees that will have to be paid. It would be quite wrong that fees should eat into the capital or the income of those in the vulnerable positions to which the Minister referred. Accordingly, the Bill will have the full support of these Benches. We wish it a hasty passage into law.

Lord Kingsland: My Lords, the Opposition share entirely the sentiments expressed by the noble Lord. The Bill is most welcome. In particular, it provides that the Lord Chancellor rather than the Treasury should set the fees in future. Anything that reduces the power of the Treasury must be in the public interest.

Moreover, the change that permits the application of the charging regime to be sensitive to those who are financially less fortunate must be a good initiative. For both of those reasons, we commend the Bill.

Baroness Scotland of Asthal: My Lords, I am delighted to find that we are in total agreement. I thank the noble Lords, Lord Thomas of Gresford and Lord Kingsland, for their support for the Bill.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Proceeds of Crime Bill

3.14 p.m.

The Minister of State, Home Office (Lord Rooker): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 327 [Concealing etc]:

Lord Rooker moved Amendment No. 255D:

    Page 191, line 22, at end insert "and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent"

The noble Lord said: In moving Amendment No. 255D, perhaps I may explain the situation in relation to the letter dated 23rd May, which I sent to Members of the Committee last week, in regard to a

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group of amendments that the Government had tabled but which I indicated that I did not intend to move today because the Delegated Powers and Regulatory Reform Committee had not had an opportunity to look at them. I was wrong. The Delegated Powers and Regulatory Reform Committee has looked at key Amendment No. 265F. I discovered only this morning that the Delegated Powers and Regulatory Reform Committee had produced its 20th report giving its agreement to the proposal in respect of the procedure we intend to apply. That being the case, I intend to move Amendment No. 265F.

The group of amendments in which Amendment No. 265F is included, the seventh group on the list of amendments, is in that position on the list only because I had given notice that I did not intend to move those amendments on behalf of the Government. As I do now intend to move them, they should be grouped with the first group of amendments, which is where they were originally. My speaking note covers both groups of amendments and is fairly lengthy.

Another reason for seeking the approval of the Committee to proceed in this way is that we shall not come to Report stage for some weeks. It is very important that financial institutions outside the House are fully on board in regard to the procedure that the Government wish to use. There are some major changes.

As I said, we had already published the amendments but the Delegated Powers and Regulatory Reform Committee did not receive a memorandum from the Home Office, which is one of the reasons why we were not alerted to the fact that it had considered our amendments. The Home Office was not aware that the 20th report was available until someone checked the website of the Delegated Powers and Regulatory Reform Committee earlier today. That being the case, I hope that my lengthy exposition will be sufficient to satisfy the Committee. I shall go through each amendment in turn and underline the policy changes behind them.

The government amendments in this group—by which I mean the two groups joined together—deal with the giving of consent where a person reports a suspicion about a financial transaction either directly to a constable or a Customs officer, or, alternatively, to an officer nominated within his firm to receive such suspicious transaction reports. They also clarify more generally the role of the nominated officer in receiving all reports.

Taken together the amendments do three things. First, they deal with the precise role and functions of a nominated officer under Part 7 of the Bill. I may usefully explain here that businesses which fall within the regulated sector are required under the Money Laundering Regulations 1993, as amended, to identify or designate a person to whom employees may report any suspicion of money laundering. In practice, although there is no obligation on them to do so, several major companies and organisations outside the formal regulated sector also appoint "money laundering reporting officers", to whom employees

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can turn for assistance. This enables employees outside the regulated sector to avoid criminal liability under the existing principal money laundering offences by reporting to their nominated officer, rather than going directly to the law enforcement authorities.

We do not, however, consider that the Bill as presently drafted—which is based broadly on existing legislation—sufficiently clarifies the precise role and responsibilities of the nominated officer, both inside and outside the regulated sector. We consider that we should take the opportunity presented in the Bill to state explicitly what the role and responsibilities are in Part 7.

Secondly, in looking at the suspicious transaction regime, we have also decided to try to make reporting more efficient. In order to do this, we are seeking an order-making power which can be used to prescribe the form and manner in which reports must be made in some circumstances, and providing that certain reports must always be made to the National Criminal Intelligence Service. I shall refer to that point later in my remarks.

Thirdly, the group of amendments introduces time limits within which consent decisions must be made by law enforcement for the purpose of the authorised disclosure provisions in circumstances where an employee makes a suspicious transaction report before the transaction takes place. I should add that we have decided to revisit the issue of time limits, largely as a result of further consideration of the debates in Standing Committee in the other place. In particular, I draw the Committee's attention to cols. 1071 and 1072 of Hansard for 22nd January, when the issue of the time that it takes the National Criminal Intelligence Service to respond to reports it receives was raised for the first time.

I shall now refer to the amendments in some detail. As the groupings now stand—the first and second groups are now one—they contain amendments which are not government amendments, although the group contains predominantly government amendments.

Amendments Nos. 265B and 265D tabled by the noble Lords, Lord Goodhart and Lord Thomas of Gresford, are relevant to the government amendments as part of the package. They, too, seek to amend the authorised disclosure provisions by introducing a time limit after which an employee can safely proceed with a suspicious transaction if that person has sought consent but has not been notified of the decision. Amendment No. 265CA tabled by the noble Baroness, Lady Buscombe, the noble Lord, Lord Kingsland, and the noble Baroness, Lady Hanham, although drafted differently, appears to seek to achieve the same effect.

I should like to make it clear from the outset that, although I find the intentions behind the amendments commendable, I shall not be able to accept them, because the issue is dealt with more comprehensively in the government amendments in the group. Obviously, they have arisen from similar debates in another place; therefore, it is right that the Opposition and other parties flag up the position in this revising Chamber.

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The group of amendments is lengthy, detailed and at times fairly complex. Therefore, perhaps I may take a little time to set out the Government's position. I shall outline the basic policy and the background to the amendments. I shall then take each amendment in turn and explain the purpose and significance of each. I hope that Members of the Committee will bear with me; it is important to place this on the record for those who are affected by our procedures and decisions here.

I shall, in due course, invite noble Lords who have tabled amendments to speak to them—indeed, it is for them to choose whether or not to do so. I am not precluding any speeches that they want to make by commenting on their amendments before they have had the chance to speak to them.

In respect of the policy outline and background, continued consideration of the practical workings of the Part 7 provisions has led us to conclude that a general tightening up of the nominated officer provisions would be very beneficial in ensuring that those concerned are clear about their obligations in this area, and in ensuring that it is clear where the responsibility for certain functions and offences actually lies.

The intended effect of the government amendments is to make sure that nominated officers pass on suspicious transaction reports to the law enforcement authorities. The intention is that nominated officers will act as a filter and will not pass on reports that genuinely cause no concern. However, we do not want nominated officers to be lazy or corrupt. A lazy or corrupt nominated officer may well commit some of the existing money laundering offences, but we thought it best to make specific provision for this situation in the Bill. Therefore, the amendments introduce three new clauses creating obligations on nominated officers.

The first new clause makes it an offence for a nominated officer in the regulated sector not to pass on to the National Criminal Intelligence Service information received by means of reports made under Clause 330, headed,

    "Failure to disclose: regulated sector",

which give them knowledge or suspicion, or reasonable grounds for knowledge or suspicion, that money laundering may be taking place. We think it right to include the objective mental element of reasonable grounds for suspicion in this offence. The employees passing the reports to the nominated officer under Clause 330 will be subject to the objective test. The nominated officer is supposed to be a highly trained person in a position of some responsibility, so it would not be right to subject that person to a lower test than the employees.

The second new clause makes it an offence for a nominated officer, regardless of whether or not he is in the regulated sector, to fail to pass on reports received under Clauses 333, dealing with protected disclosures, or Clause 334, dealing with authorised disclosures, which cause him to know or suspect that money laundering is taking place. This includes disclosures made in order to avoid committing a principal money

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laundering offence under Clauses 327 to 329 and voluntary disclosures. The mental element of this offence is knowledge or suspicion, in line with the mental element required to commit a principal money laundering offence.

We believe that it is right to make it an offence for a nominated officer not to pass on voluntary disclosures. Often, it will not be clear at the outset whether a disclosure is voluntary or mandatory. That is because a person commits a principal money laundering offence only if the property in question actually does constitute the benefit from crime. A person does not commit a principal offence when he suspects that property is criminal but it turns out to be legitimate. Also, where a firm has set up a nominated officer, it is right that the nominated officer should be required to act responsibly in relation to all disclosures made to him.

The third new clause relates to reports made to the nominated officer either inside or outside the regulated sector, before a suspicious transaction has taken place, in order to avoid committing a principal money laundering offence. The new clause prohibits the nominated officer from consenting to a transaction going ahead without the authorisation of the National Criminal Intelligence Service. This prohibition does not apply where the nominated officer is sure that the transaction is not suspicious. This is because the new clause refers to a "prohibited act": that means one of the principal money laundering offences—and, as I have stated, it is not possible to commit a principal money laundering offence if the property in question is legitimate. The new clause gives the prohibition teeth by creating a new criminal offence. This offence would be committed if a nominated officer, inside or outside the regulated sector, consented to a transaction taking place which he knew or suspected to be a money laundering transaction without first having sought authorisation from the National Criminal Intelligence Service.

During the lengthy and helpful debates on Part 7 in another place, there was a good deal of criticism of the National Criminal Intelligence Service and the time that it takes law enforcement to respond to suspicious transaction reports in cases where consent decisions are required. Arguments were put to us that practitioners are sometimes left in a difficult position. On the one hand, they are not able to proceed with the transaction for fear of committing a principal money laundering offence. On the other hand, they are not able to inform their customer why they cannot proceed with the transaction. That is a fundamental problem and a difficult situation that we must not place people in. Of course, they cannot tell the customer, because to do so would make them potentially liable to committing the tipping-off offence in Clause 331.

I emphasise, as was said in the other place, that this situation occurs in a relatively low number of cases—approximately 5 per cent—when a report is made in advance of the transaction taking place. In the other 95 per cent of cases, reports are made

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retrospectively—a transaction is proceeded with and a report is made as soon as practicable afterwards—so the consent issue does not arise.

Despite the lowish number of cases involved, we have concluded that it would be beneficial to those affected by Part 7 if we introduced time limits within which law enforcement must respond. That would provide them with greater certainty on how to handle various transactions.

In broad terms, we propose that if a suspicious transaction report is made before the transaction goes ahead, law enforcement will have seven working days from the day after the report is made in which to issue or withhold consent to proceed with the transaction. If the person who makes the report has not received a consent decision within the timescale, which would be described as the notice period, he or she can safely proceed with the transaction. If consent is withheld within the notice period, the law enforcement authorities will then have a further 31 calendar days from the day on which the consent is withheld in which to undertake further investigations with a view to obtaining a restraint order. This is referred to as the moratorium period. At the end of the moratorium period, the person who made the initial disclosure can safely proceed with the transaction. Of course, if the law enforcement authorities have obtained a restraint order during the moratorium period, the transaction will not be able to go ahead.

Where reports are made to the nominated officer, it is the nominated officer's responsibility to keep track of the time constraints and notify the employee when it is safe to proceed with the transaction. Noble Lords will see that the new clause on consent of nominated officers takes the time limits into account. A nominated officer will not commit an offence by consenting to a transaction going ahead if the relevant time limits have passed.

Some noble Lords may want to draw my attention to the fact that there is nothing to prevent the National Criminal Intelligence Service from consistently or automatically withholding consent on the final day of the notice period as a matter of course, whether or not it thought that it would be able to obtain a restraint order before the end of the moratorium period. Our answer is that, like any other public body, the National Criminal Intelligence Service must act reasonably and must comply with the European Convention on Human Rights. It would be acting unlawfully if it withheld consent without good reason. The idea of an unspoken policy within the agency of waiting until the last day before taking action to stop it would not be held as reasonable. It would not be reasonable behaviour for any public body, let alone in these circumstances. I do not say that we expect that to happen, but in any event consent could not be withheld for more than 37 days without a restraint order being obtained. This will be a major improvement on the present provision, in which no such time limit applies.

For the system to work well, we also need to ensure that suspicious transaction reports are made in a way that makes it easy to deal with them. We have dealt

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with that in two ways. First, we have tabled amendments that would ensure that all reports from the regulated sector or from nominated officers must be made directly to the National Criminal Intelligence Service rather than to any constable or customs officer. A lot of time is currently taken up with reports being passed from one law enforcement body to another in order to reach the right person. It is reasonable to expect those in the regulated sector and nominated officers to know about the National Criminal Intelligence Service and report directly to it.

We have also tabled an amendment introducing a power to prescribe the form and manner in which the reports must be made. We think that the prescribed forms would help to streamline the system. They would be beneficial for those making the reports and for those receiving them. Those making the reports would be clear as to what information it would be necessary to provide. That would assist law enforcement to process the reports more quickly in order to meet the proposed time limits. I had not appreciated that the Delegated Powers and Regulatory Reform Committee commented on that in its 20th report.

I hope that I have enunciated those issues as clearly as I can. I have stuck closely to the script, because the issue is crucial for people's well-being and for the financial services industry, which is a huge and complex industry that employs many thousands of people. People outside the House must be able to understand the reasons behind the amendments.

I shall now deal with the amendments in detail, starting with Amendments Nos. 265B and 265D. Amendment No. 265B is consequential on Amendment No. 265D, which would afford the protection of an authorised disclosure to employees in circumstances in which a disclosure requiring a consent decision was made two working days before they proceeded with the transaction. If they had not been notified of a consent decision within those two days, the authorised disclosure protections would apply.

Opposition Amendment No. 265CA, although drafted differently, has the same aim. It would afford protection to employees who carried out a transaction two days after making a disclosure if they were not acting contrary to any guidance received. The amendment implies that if no guidance has been received within two days, the authorised disclosure protections would apply. The amendments would achieve a similar effect to the proposed introduction of a seven working day notice period, which I have just outlined, but they would substantially reduce that period.

The decision to apply a seven working day notice period has been the result of considerable thought and consultation. It has been accepted by various government departments, by the National Criminal Intelligence Service and by other law enforcement authorities as an acceptable and practical time limit within which they could work effectively. While it would be commendable for consent decisions to be made in a shorter timescale, we must take into account

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factors that cannot be foreseen. For example, there may be instances in which inquiries need to be made of foreign jurisdictions before a consent decision can be made. That would almost certainly take longer than the two days proposed in the opposition amendments. However, in most cases—I would like to know why it could not be in all cases—it is more likely to be achieved within seven working days.

The issue is dealt with in greater detail by the government amendments, because we have the backup of parliamentary counsel to do a lot more detailed work on amendments than noble Lords or advisers outside this place can manage. For those reasons, it would not be wise of me to accept the amendments.

I shall run through the detail of the government amendments, because it is important. Amendments Nos. 255D, 256A and 256B are consequential amendments necessitated by the changes to the authorised disclosure provisions. They would make it clear, on the face of the three principal money-laundering offences at Clauses 327, 328 and 329, that an offence is not committed if an authorised disclosure is made before a suspicious transaction takes place and the person has the "appropriate consent". The definition of "appropriate consent" is dealt with in Amendment No. 262A, to which I shall turn shortly.

Amendments Nos. 260A and 260B are amendments to Clause 330 to take account of the refined disclosure provisions and the cases in which there is an order prescribing the form and manner in which a disclosure under Clause 330 is to be made. Accordingly, Amendment No. 260A takes out of Clause 330(4) the references to a constable, customs officer and nominated officer and instead refers to making "the required disclosure".

Amendment No. 260B inserts an additional subsection to Clause 330, which defines a "required disclosure" as being a disclosure to a nominated officer or to a person authorised by the director general of the National Criminal Intelligence Service which has been made in the form and manner (if any) prescribed under the new order-making power. This reflects the policy that disclosures in the regulated sector should be made directly to the National Criminal Intelligence Service rather than through a constable or customs officer. It gives those in the regulated sector the choice of either disclosing directly to the National Criminal Intelligence Service, which might be appropriate for sole practitioners, or disclosing to the nominated officer who will operate as a filter for disclosures to the National Criminal Intelligence Service.

Amendment No. 260K inserts a new clause, headed,

    "Failure to disclose: nominated officers in the regulated sector".

This new clause would make it clear that it is an offence for a nominated officer who receives a report under Clause 330 (the failure to disclose offence) to fail to pass on information about that report which causes him to know or suspect or gives reasonable grounds for knowledge or suspicion that it is related to money laundering, as soon as possible after the information comes to him. Subsection (5) specifies that the "required disclosure" which a nominated officer must

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make has to be made to the National Criminal Intelligence Service in the form and manner prescribed by the new order-making power.

Amendment No. 260L inserts another new clause, headed,

    "Failure to disclose: other nominated officers".

This makes it clear that a nominated officer who receives a report under Clauses 333 or 334—in other words, a disclosure in relation to one of the principal money-laundering offences or a voluntary disclosure—commits an offence if the report makes him know or suspect that money laundering is taking place, and he does not disclose that information as soon as possible. The nominated officer is required to disclose to the National Criminal Intelligence Service. This new clause applies to nominated officers both in the regulated sector and outside the regulated sector.

Clause 332, which deals with penalties, would be updated by Amendment No. 261D to make it clear that the penalties for the two new offences which I have just outlined are the same as the penalty for Clause 330 (the failure to disclose offence).

For completeness, I should point out that the penalty for the offence in the new clause headed "Nominated officer: consent", where the nominated officer wrongly gives consent when he knows or suspects that an act is prohibited, is contained within that new clause at subsection (6).

Amendment No. 262A inserts another new clause which would define the parameters of "appropriate consent" for the purposes of the authorised disclosure provisions. This new clause includes the time limits which we consider it necessary to impose to ensure that consent decisions are made within seven working days. As I have said, this period is described as the "notice period". Where consent is withheld, the law enforcement authorities then have 31 calendar days in which to instigate restraint proceedings. This period is, as I said, described as the "moratorium period".

Amendment No. 262B inserts yet another new clause, "Nominated officer: consent". This new clause would make it an offence for a nominated officer to consent to a transaction going ahead if he knows or suspects that a transaction involves the laundering of criminal property and consents without authorisation from the National Criminal Intelligence Service. Subsections (3) and (4) of the new clause enable a nominated officer to give consent without authorisation if the time limit requirements at subsections (7) to (9) have not been fulfilled by law enforcement. A nominated officer does not commit an offence in giving consent to a transaction if he does not know or suspect that money laundering is taking place.

Amendments Nos. 265A, 265C and 265E are consequential on the rest of the proposed provisions relating to consent. Amendment No. 265A inserts a reference into Clause 334 to the new power to prescribe the form and manner in which disclosures must be made. At present, the consent of a nominated officer, a constable or customs officer is part of the general concept of an authorised disclosure. Amendments Nos. 265C and 265E remove those elements from

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Clause 334, as there will now be some instances—by virtue of Amendments Nos. 262A and 262B introducing time constraints on law enforcement—in which a person can do the prohibited act without consent. This also necessitated Amendments Nos. 255D, 256A and 256B, which I have already described.

Amendment No. 265F inserts yet another new clause—I wonder what the record is for the number of new clauses in one group of amendments—which is headed,

    "Form and manner of disclosures".

This provides the order-making power which enables the Secretary of State to prescribe the form and manner in which a disclosure must be made under Clause 330 (failure to disclose), new clause (Failure to disclose: nominated officers in the regulated sector), new clause (Failure to disclose: other nominated officers) or Clause 334 (Authorised disclosures). This will ensure that the time limits are not abused by institutions making reports in a manner that takes a long time to reach the authorities. Additionally, if information is provided in a specified format, this will aid the National Criminal Intelligence Service to process reports as quickly as possible.

I regret the amount of time that I have had to spend setting out these amendments, but each of the groups is rather large. As I said, I did not propose to move the second group, which is why it had been separated from the first group. However, as I am now aware of the report from the Delegated Powers and Regulatory Reform Committee, I believe even more strongly that it is crucial for financial institutions to know what is happening as we consider the Bill. Although I do not have a date, I understand that we shall not reach Report stage for some weeks, which is much longer than I had anticipated. I therefore believe that it would be quite wrong to leave those in the industry uncertain as to the Government's intentions.

In light of those lengthy explanations and my apology for writing in error last week to noble Lords, and having given the background as to why the amendments are necessary, I trust that noble Lords opposite are encouraged to support our amendments. We all seek the same goal. I accept that some people might consider that there is a substantial difference between two and seven days. However, from a practical point of view seven days is an appropriate period as regards the machinery of government and the agencies involved in the matter and we shall get them to stick to that period. Therefore, I trust that once noble Lords have made their points with regard to their amendments—which they are fully entitled to do—they will withdraw them for the reasons I have explained. I beg to move.

3.45 p.m.

Baroness Carnegy of Lour: Before the Committee goes to the substance of the noble Lord's amendments, I understood him to say at the beginning of his speech that he had intended not to move the amendments as

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he had not received until today the 20th report of the Delegated Powers and Regulatory Reform Committee. Am I right?

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