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Lord Kingsland: My Lords, this is probably the fourth or fifth time this particular amendment has been tabled. We have persisted with it because we think it is important and we have not been satisfied with the assurances given in your Lordships' House concerning the Treasury's policy on consultation.
The assurances have been unsatisfactory because they have been couched in terms that the "Treasury would normally consult", thus giving no comfort that the Treasury will adopt a disciplined approach to consultation. Secondly, and more importantly, what is lacking from the Treasury's consultation is any procedure for providing feedback on the comments and representations made. A common complaint in relation to the Treasury's consultations on the Bill is that the Treasury has not responded to representations. This has resulted in considerable frustration on the part of those who go to a great deal of trouble to make what are usually--dare I say it?--helpful and constructive comments.
If the Treasury regards the consultation exercise as useful to it then I would say, with great respect, that it should encourage it. This amendment does no more than set out what the Treasury should be doing in any event. One change we have made to the drafting of the amendment is to refer in subsection (1) to "persons likely to be affected" rather than, as previously, to "the public". In our view, this is helpful in cutting down the scope of the consultation exercise.
Lord McIntosh of Haringey : My Lords, we have indeed debated this matter on more than one previous occasion and I am sorry that the assurances we gave at the time do not appear to be satisfactory. Cabinet Office guidelines require departments to consult "where appropriate"--I know the noble Lord, Lord Kingsland, does not like that phrase, but I will explain why it is necessary--and to produce regulatory impact assessments before making any new legislation that imposes burdens. The Treasury--and this I can undertake--will always make sure that it complies with Cabinet Office guidelines. However, it does not follow that it would be appropriate for the Bill to impose rigid consultation requirements on the Treasury. The Government are directly accountable to both Houses of Parliament; Parliament scrutinises and questions what the Government do. It is certainly open to Parliament to consider whether there has been appropriate consultation on secondary legislation made under this or any other Bill.
There is nothing unusual in the procedures for making secondary legislation under the Bill. It is necessary for the Treasury to make a number of orders and sets of regulations under the Bill, but that is simply a reflection of the complexity of financial regulation and of the need for such regulation to be able to adapt effectively to developments in financial markets and services. The Delegated Powers and Deregulation Committee has considered the Bill carefully, and we have accepted every one of the recommendations that it has made since the Bill came to this House.
The logic of the amendment seems to be that all departments should be under a duty to consult on all secondary legislation all the time. That is unnecessary; indeed, it would intrude on the right of Parliament to decide for itself about the legislation that it wishes to approve. Government departments should consult where it is appropriate to do so.
The purpose of consultation in this context is to inform and improve the quality of the legislation that Parliament is asked to consider. Where consultation could achieve that aim, we would consult. However, perhaps I may give noble Lords an example of where it would not be appropriate. Clause 423 requires the Treasury to make commencement orders to bring the separate provisions of the Bill, once enacted, into force. These are highly technical orders, which simply give effect to the legislation that Parliament has enacted. The subject matter is so entirely a matter of pure technical detail that they are not even subject to parliamentary procedure. It would be odd if we were
I hope that most noble Lords will be able to acknowledge that, in practice, the Treasury has a good record of consultation. Indeed, I read from a list--which I could not bear to finish because it was so long--setting out the advisory bodies that the FSA has established and the way in which it carries out its consultation. This Bill has been the subject of an unprecedented level of consultation. We are still in the process of consultation on literally dozens of items of secondary legislation arising out of this Bill. Of course, we value the dialogue and the views of people who respond to our consultation. We intend to continue with that approach.
Perhaps I may reassure noble Lords that we shall continue to take a consultative approach. We shall bring draft regulations and orders to the attention of those individuals or bodies with a material interest in them. We shall also fully consider the comments that we receive. Throughout the time that the Bill has been developing, the Treasury has published feedback statements summarising responses to formal consultation exercises and providing feedback on the points raised. We shall certainly continue to do so.
As to publication, we often give feedback either directly to the persons concerned or in subsequent press notices, or other publications; or, indeed, in many cases, on the Treasury's website, which is a very effective form of publication of this kind. The Treasury has issued a progress report in response to consultation on the Bill. I believe our record to be so good on these matters that further assurances beyond those that I have given would really be unnecessary or "otiose", if I may use the word for the last time.
Lord Newby: My Lords, I shall resist talking about the word "otiose" because I am not sure whether we should allow the noble Lord to use it for the last time in these circumstances. Indeed, I do not believe that these requirements would be otiose.
The Treasury is moving into the modern world in a number of respects. First, it uses the web much more successfully and extensively than it ever did; and, secondly, it consults more than it ever did previously. I am disappointed that the Minister has not felt able to accept this amendment because it seems to us to be a sensible one. However, in view of the increased assurances that we have received at each stage of the Bill's proceedings, I must express my thanks to the Minister for having moved as far as he has been able to. I beg leave to withdraw the amendment.
("(2) Except where Her Majesty by Order in Council provides otherwise, the extent of any amendment or repeal made by or under this Act is the same as the extent of the provision amended or repealed.
(3) Her Majesty may by Order in Council provide for any provision of or made under this Act relating to a matter which is the subject of other legislation which extends to any of the Channel Islands or the Isle of Man to extend there with such modifications (if any) as may be specified in the Order").
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Page 253, line 17, leave out from ("must") to end of line 20 and insert (", within one month of receiving a notice of intention, send a copy of it to the host state regulator.
(7A) When the Authority sends the copy under sub-paragraph (7), it must give written notice to the firm concerned.
(7B) If the firm concerned's EEA right derives from the investment services directive, it must not provide the services to which its notice of intention relates until it has received written notice from the Authority under sub-paragraph (7A).").
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