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Lord Kingsland: My Lords, my initial elation at the news that the Government accept Amendment No. 112A has somewhat subsided. However, I shall read carefully in Hansard what the Minister said and reflect on whether it will be appropriate to return to Amendments Nos. 112B, 114A and 115D at Third Reading.
I am particularly sad that the Minister felt unable to move in my direction on Amendment No. 112B which reflects an everyday situation. I believe that the terms of the Bill will impinge harshly on innocent parties. Perhaps some comfort may be gleaned from some of the Minister's remarks. I am grateful for the noble Lord's full response. I commend the amendment.
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendment Nos. 114, 115, 118, 171 and 172. They are all drafting amendments. In each case they replace a reference to the FSA "refusing" with a reference to the FSA "deciding to refuse". It is a matter we discussed earlier today.
The point is to make it clear that the decision to refuse various types of application--an application for variation or revocation of a prohibition order; an application for approval under Part V; or an application for variation or revocation of a requirement imposed under Clause 316--is not the final determination of the matter. That does not occur until the period for referring the matter to the tribunal has expired without a reference, or if a reference is made, until the tribunal (and, where appropriate, the higher courts) have determined the matter. At that point, a final notice under Clause 385 will be issued. I beg to move.
Lord Kingsland: My Lords, as the Government have explained, the three amendments to Clauses 57 and 61 make it clear that the decision notice is only a decision to refuse an application to vary or revoke an order prohibiting someone from working in the financial services industry or to approve an individual to work in it. The actual refusal is dealt with by the final notice.
The noble Lord said: My Lords, under Clause 60(3), the authority is allowed three months to determine applications for individual authorisation. As the Minister will be well aware, the financial services industry believes that that period is unreasonably long; and we share that view. Firms need to fill vacancies much more quickly. They are frequently criticised by the authority for being under-resourced. It is not practicable for a firm to make a job offer, in particular to an overseas applicant, and then to have to wait up
However, even if there had not been such discussion, under Clause 60(4), the clock stops running on the day that the authority asks for more information and starts again only when the information is received by the authority. If one limits to one month the period during which the application shall be determined, if there is any doubt on the part of the authority and it needs more information to check that out, in practice the period can be a good deal longer.
Given the pace at which matters move in these financial markets, and the need for firms to have the right people in place as soon as possible, a period of three months seems very relaxed. I hope that the Minister can look favourably on the amendment.
Lord McIntosh of Haringey: My Lords, the amendment would reduce the amount of time the FSA has to consider applications for approval under Part V. I certainly do not disagree with what the noble Lords, Lord Kingsland and Lord Stewartby, said about the importance of avoiding unnecessary delay. It is important that applications are turned around quickly and this is something that the FSA recognises. It has said that it intends to publish service standards, setting out how long it expects the application process to take, and has undertaken to publish its performance against those standards. It has already indicated that routine cases should be processed well within the one month deadline suggested by these amendments--somewhere between a few days and a couple of weeks. Therefore, in practice, the reduction in the time proposed in the amendments would not make any difference to most candidates.
However, there are bound to be a minority of more difficult cases. We believe that Clause 60 gives the FSA an appropriate amount of time to consider the detail of those difficult or complex applications and to weigh the relevant information, without allowing for unnecessary or damaging delays.
It is worth bearing in mind that the FSA is required to satisfy itself that a candidate is a "fit and proper" person to carry out the functions to which the application relates before it can grant the application. If it is unable to do so, it must reject the application. Against this background, a one-month deadline could
These processes take time. It is unlikely that they could be completed within a month. This would mean that the FSA would be unable to satisfy itself that such candidates were "fit and proper" and would therefore have to reject their applications. That would be in no one's interests, least of all those of the individual or firm in question.
The important point is that at least part of the time period available to the FSA is not within its power. It is only within the power of those of whom it makes inquiries. I do not believe that the amendment would help. The three month period of consideration has to apply to all applications. If it is reduced, that will do nothing for most candidates who can expect a decision within that time. However, it could hamper the delivery of an effective and thorough approvals process, the purpose of which is to ensure that only those people who meet high standards are able to perform these functions.
Lord Kingsland: My Lords, the Minister said that most applications would be processed quickly, in a matter of a couple of weeks. Would he consider a variation on the amendment which in principle stated that one month was the right period, but subject to circumstances in which the authority had reasonable cause to believe that a longer time was required?
If the noble Lord would care to reflect on matters more carefully than he did in the course of his attack, he would realise that this is not a club. This is a Parliament and there is a duty to ensure that whatever legislation comes before this revising Chamber is dealt with as carefully as possible. I make no apology for tabling my amendments yesterday. If the noble Lord were not so London-centric in all his attitudes, he would have appreciated that we last considered the Bill on a Thursday evening. If it has not yet dawned on him, let me indicate to him now that those of us who come from other parts of the United Kingdom tend to regard it as not a bad idea to return to those parts, particularly at the weekend.
Furthermore, if the noble Lord had looked in any way at a number of my amendments, it would have been obvious to him that their intention was to take up problems which seemed to me to emerge from the answers he gave on Thursday. He was all over the place on whether the offence of market abuse was civil, criminal, partly civil, partly criminal, none of those or some new hybrid creature. If he looks at those amendments, he will see that a number of my amendments deal with what might be an appropriate burden of proof.
If the noble Lord wants to indicate that at no time did he ever say to anyone that the first time he considered amendments was when he was reading them at the Dispatch Box, I shall unreservedly withdraw that comment. However, what troubled me was that the noble Lord launched out on an approach which indicated that such was his approach to the Bill that he would have been considering all the amendments over the weekend and would not have been considering them any later.
I hope that the noble Lord understands that what he has said has caused a real sense of outrage on this side of the House. If the noble Lord's Chief Whip has any arrangement through the usual channels, he had better be disabused about that. And, after what the noble Lord said, if he and his luckless officials are under any apprehension that they might be ready for an early bath tonight, they should be disabused of that idea. It seems to me that he has done no one any favours by adopting such an attitude. He has shown so swiftly such an unacceptable display of temper.
The amendment seeks to remove "may" and insert "shall". The provision relates to the clause which imposes or allows for the authority to issue statements of principle with respect to the conduct expected of approved persons. I should have thought that that was a highly desirable activity for the authority to carry out.
The amendment suggests that rather than leaving the matter to the discretion of the authority, it is something that it should do. If the Minister indicates that the authority will issue such a statement of principle, I suppose that in large measure I should be
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