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Mr. Deputy Speaker : With this it will be convenient to take Government new clause 18-- Power to make provision in consequence of changes affecting accountancy bodies-- and Government amendments Nos. 74 to 77.
Mr. Forth : This group of amendments concerns the consequential amendments which will have to be made to other enactments when section 389 of the Companies Act has been repealed and replaced by the provisions in part II of the Bill. Some of the amendments which need to be made are presently set down in schedule 15 to the Bill, but there is a considerable number of others. The amendments replace that schedule with a power to make all the necessary consequential amendments by regulations.
There are a number of reasons for this change in approach. As hon. Members will know, part II of the Bill will for the first time permit bodies corporate or partnerships which do not have separate legal personality to be appointed as company auditors. However, a number of the other enactments which make provision for the appointment of auditors proceed on the assumption that only individuals or partnerships with separate legal personality will be appointed. This reflects the present position under the Companies Act. In some cases, catering for the possibility that the auditors may be a body corporate or a partnership of this type will involve lengthy, if wholly technical, adjustment to the present provisions. We think this task will be better done at more leisure in the form of regulations which we will lay before the House in due course.
Another reason is that we are not in a position to say definitively which other enactments need amendment. References in public Acts to section 389 and to the accountancy bodies specified in that section may of course be picked up by a computer search. But we know that there are some references in local and private Acts. Since these Acts have not been placed on a database, we cannot be sure of picking all of them up at this stage. The ability to make regulations will enable us to make the necessary provision for any references which only later come to light.
The third reason I would commend this approach to consequential amendments is that it will allow for some flexibility in later years in specifying which accountants are to be eligible to carry out the auditing functions in other enactments. The effect of part II will be that the number of persons eligible in law to audit companies will fall. It may well also be that company auditing will become an even more specialised branch of the accountancy tree than it is at present. If that happens, one might wish not to follow the standard provision and restrict some of the functions to company auditors alone. One might wish to add certain other qualified accountants. This amendment will allow for that possibility.
I ought to mention one other amendment in this group, new clause 18. If a recognised supervisory body or one of the bodies presently recognised under section 389 were to change its name or merge with another body or otherwise be affected by a transfer of engagements, the Secretary of State would have discretion to recognise the new body. But he would not always be able to use the regulation-making power in new clause 17 to deal with the position under
Column 1143other enactments since that may only be used where a consequential amendment is necessary or the provision is concerned with auditing, and not with some of the other functions with which other enactments are concerned. New clause 18 therefore enables the Secretary of State to make by regulations such amendments of enactments as appear to him to be necessary or expedient in consequence of a change of name, merger or transfer of engagement affecting accountancy bodies recognised under enactments. I should mention that this new clause is supported by the Institute of Chartered Accountants, which had expressed concern about the legal position should one of them merge with another body.
Mr. John Garrett : Will the Minister confirm that new clauses 17 and 18 are items of secondary legislation which can be enacted by negative resolution? Is that not yet another example of a number of cases of secondary legislation in the Bill which is subject to the negative rather than to the positive form of resolution? Will he tell us why?
Mr. Forth : The hon. Gentleman may well be teasing me and the House slightly. I suggest that he knows the answer to the question, but I shall give it to him again. The ground was covered in Committee, but there is no reason why it should not be covered again on Report. In this area we are dealing with complex matters which are not yet fully resolved and may not even be fully seen yet. Therefore, the only practical way forward is to give the Secretary of State the sort of delegated powers in the new clauses and amendments and they would be dealt with by negative resolution.
That is a familiar way to deal with such matters. It would be impractical for the House to attempt to deal with such a measure by positive resolution in the kind of detail and complexity which may well arise. Business managers and Opposition Members are familiar with the negative resolution procedure, which is a satisfactory, effective and practical way of dealing with matters of such complexity. I hope that the hon. Gentleman will accept and understand that explanation. I think that he well understands the complexity of these matters and the importance of dealing with them in a practical and realistic way. It is for those reasons that the new clauses have been drafted in the way that they have.
As the Minister has said, we are faced with considerable and rapid changes in the structure of the accountancy world. As the hon. Gentleman admitted in his short elucidatory statement, those changes make some difficulties for us, raising substantially new and different issues. He has not enlightened us about how he proposes to deal with the matters of substance contained in the new clause. We are faced with the possibility of the issuing of regulations at a later date to deal with significant matters : the eligibility for appointment as auditors, the effect of appointing partnerships that are not legal persons and, in particular, ineligibility because of a lack of independence. I need not detain the House unduly by referring to recent events which give those matters considerable moment and significance. The Minister, however, has moved the new clause very late in the proceedings, when we are all at a disadvantage--and he will recognise that we are at an additional disadvantage owing to the timetable motion.
Column 1144I apologise to the House for raising the matter, but it has to be raised. I feel that the Minister owes it to the House to give some indication of the substantive nature of the regulations that he proposes with regard to the three issues that I have raised, particularly that of ineligibility on the ground of lack of independence.
The matter is of considerable public interest, at a time when we are seeing the accountancy world shrink into a small number of large partnerships-- which, moreover, may change their status. It is important to the markets and to everyone concerned with such issues, and the Minister should elucidate a little more.
Mr. Hanley : I welcome the new clause. Throughout the summer--and, indeed, in Committee--the Government have been talking to the requisite authorities, including the Institute of Chartered Accountants in England and Wales. The new clause is the result. I assure the hon. Member for Newcastle upon Tyne, Central (Mr. Cousins) that there is nothing sinister about it or its fellows ; if anything, they enable the Government to deal with problems that might arise in the accountancy world very much more quickly and effectively. They would, in fact, deal better than any existing legislation with exactly the matters that the hon. Gentleman has raised.
The initial reason for discussion was the proposed merger between the Institute of Chartered Accountants in England and Wales and the ICA in Scotland. In the end that merger did not occur, regrettably in my view. Rationalisations will, however, take place in the accountancy world. These proposals will enable the law and the requisite protection of the consumer to continue without the need for any legislation. They will enable the existing protections of the Department of Trade and Industry to move quickly from one body to another, new body, and I believe that accountancy welcomes them. Certainly they are not easier than the regulations that have obtained in the past, but they will speed up, as well as tighten, the process of consumer protection.
Mr. Forth : I understand why the hon. Member for Newcastle upon Tyne, Central (Mr. Cousins) wanted to pursue this point ; however, I think that he provided the explanation in the terms in which he put his question. He conceded what we all know, and then gave examples. As he said, considerable changes are taking place in the accountancy world, and that is precisely why we have cast the new clauses and amendments as we have.
Surely the hon. Gentleman must also concede that, given that background of change and development, to attempt to set any of our proposals in concrete would be counter-productive, and might even go against the objectives that he himself has set out. I suggest that the new clause is the best way to deal effectively with the profession in the face of such a rate of change.
I am grateful to my hon. Friend the Member for Richmond and Barnes (Mr. Hanley) for adding his expert and knowledgeable comments. Following our dealings in Committee, I think we all agree that few know as much as he does about the profession, and his words of support are very welcome.
My hon. Friend mentioned that we had been careful to consult the profession. We have tried, I think successfully, to bring to the House a form of words that will provide the right framework for a modern and effective profession.
Mr. Cousins rose--
Question put and agreed to.
Clause read a Second time, and added to the Bill.
.--(1) The Secretary of State may by regulations make such amendments of enactments as appear to him to be necessary or expedient in consequence of any change of name, merger or transfer of engagements affecting--
(a) a recognised supervisory or qualifying body under Part II of this Act, or
(b) a body of accountants referred to in, or approved, authorised or otherwise recognised for the purposes of, any other enactment. (2) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.-- [Mr. Forth.]
Brought up, read the First and Second time, and added to the Bill.
Amendment made : No. 68, in page 46, line 29, leave out from beginning to first and' in line 30 and insert
Chapter V of Part XI of the Companies Act 1985 ;'.-- [Mr. Forth.]
qualified persons or, if the body consists of two persons only, that at least one of them is a qualified person'.
The amendment takes advantage of an option in the eighth directive to the effect that, in the case of a firm that has a management body of two, member states need not require that a majority of that body be qualified. Obviously, in the case of a two-member body, a majority would mean both members, and it seems right to allow in the primary legislation for the possibility of one of them being unqualified. Hon. Members who sat on the Committee may recall that an amendment with that intention was made to the Bill then. On consideration, however, we decided that it did not accurately reflect the requirements of the directive. We believe that this amendment will give proper effect to the relevant part of the directive.
Amendment agreed to.
Taking account of costs of compliance 14A. The body must have satisfactory arrangements for taking account, in framing its rules, of the cost to those to whom the rules would apply of complying with those rules and any other controls to which they are subject.'. The amendment fulfils a commitment that I gave in Committee to my hon. Friend the Member for Richmond and Barnes (Mr. Hanley). It requires a recognised supervisory body to have satisfactory arrangements for taking account of costs of compliance with its rules, and
Column 1146any other controls to which its members are subject. An analogous requirement is placed on recognised bodies under the Financial Services Act by clause 189 of the Bill.
Ms. Joyce Quin (Gateshead, East) : The Opposition are not happy with the amendment, which requires the recognised supervisory bodies to be set up to take costs into account in the training of their rules. It seems to imply that if it is considered too expensive to comply with the rules a less good and less effective system will be introduced.
We expressed our worries in Committee, not in relation to this amendment-- which had not yet appeared--but in relation to a Government new clause relating to the amendments to the Financial Services Act in which the principle of cost compliance was again introduced. At that time we expressed our concern that that might mean that cost-cutting would take precedence over investor protection. The concerns that we expressed were shared by other organisations, in particular the Consumers Association, which felt that that might lead to a second-rate regulatory service for consumers and investors. We had an interesting discussion on the matter in Committee. My hon. Friend the Member for Newcastle upon Tyne, Central (Mr. Cousins) talked about how those costs would be defined. He wanted to know whether they would be the direct costs of complying or the indirect costs. The former Parliamentary Under-Secretary of State for Corporate Affairs seemed to imply in his reply that it would be both direct and indirect costs. My hon. Friend referred also to something about which I am concerned which is the possible dangers of talking-up the costs of compliance and thereby introducing the danger of giving a convenient financial excuse for not having adequate regulation.
The hon. Member for Beaconsfield (Mr. Smith) seemed to share some of the concerns that were expressed by the Opposition. He said that writing cost compliance into the Bill was unnecessary since those responsible would presumably seek to implement the provisions in the most cost-effective way. However, writing cost compliance into the Bill makes it seem as if costs are more important than implementing the necessary measures of regulation.
In Committee the Minister said that he would look carefully at the reservations expressed by the Opposition and such bodies as the Consumers Association. He said that he would see whether he could respond to them positively on Report. Unfortunately, the reverse seems to have happened and cost compliance has also been put forward for inclusion in this part of the Bill. Instead of removing the principle, we now see it reinforced in this amendment. I do not know whether the Minister felt strongly enough to introduce that extra reference to the principle of cost compliance or whether it was his ex-colleague, the former Under-Secretary of State, who decided that he did not agree with the reservations expressed in Committee and wanted to reinforce the principle. Perhaps the Minister can explain exactly how that was arrived at.
I realise that it was one of the Government's supporters--the hon. Member for Richmond and Barnes (Mr. Hanley)--who urged the Government to include a provision of this kind. In Committee the hon. Gentleman
Column 1147declared an interest as the parliamentary adviser to the Institute of Chartered Accountants. He said that it was the institute that instigated the idea of cost compliance at this stage of the Bill. Can the Minister tell us that the amendment is not simply being introduced in response to one sectional interest? Opposition Members would like to be assured that the Minister has consulted widely before introducing the new amendment. Perhaps he can give us details of the consultations that he has had with various interests. In Committee the Minister's former colleague tried to assure us that the interpretation of the principle of cost compliance would not be detrimental to consumers, the regulatory system or to investor protection. He said that he felt that it would simply mean that the regulator would seek to achieve compliance with the rules in the least costly and most cost-effective way. That emphasis on cost is still open to the other interpretation, which is simply that certain measures of investor protection or regulation might not be introduced simply because of the cost involved. We are concerned that the Bill might be interpreted in that way. We feel strongly that it should not be able to be interpreted in a way which would undermine the measures to have adequate and proper regulation of auditing. For that reason, we are unhappy about the proposed change and feel inclined to oppose it.
Mr. Hanley : The hon. Lady has rightly pointed out certain fears which may be present in the minds of those who view the clause from outside. I am happy in my conscience to state that in my view the clause is wholly reasonable because, as I said in Standing Committee, it mirrors one that has already been accepted by the House in the Financial Services Act. It merely brought into line the regulatory bodies such as the Institute of Chartered Accountants in England and Wales with the other direct regulatory bodies which exist under the Financial Services Act.
That point was aired in Standing Committee. I can do little better than to quote my hon. Friend the Minister, who said on 13 June 1989 :
"The Government believe that it is vital that regulatory bodies pay proper regard to the direct and indirect costs of complying with the rules. It is all too easy, even for practioner-based bodies, to decide upon an approach to a regulatory problem without having assessed the cost of the various alternatives and, unless costs are properly assessed, the regulatory system risks being more burdensome than necessary."--[ Official Report, Standing Committee D, 13 June 1989 ; c.340.]
I feel strongly that the system must be cost-effective, as the hon. Lady rightly said, but it does not necessarily follow that it has to be the most costly. There has to be a balance or the whole system will collapse. We need a system that is reasonably cost-effective. We need the best system that we can get, without its imploding through too great expense.
Mr. John Garrett : The hon. Gentleman drew a direct analogy between the arrangements for taking into account the cost of compliance proposed here with what happened in the Financial Services Act. We are here discussing a largely self-regulatory profession which might take a different view of the costs and benefits of assiduity in controlling departures from standards from that taken by a body such as the Securities and Investments Board which
Column 1148acts directly on the authority of the Secretary of State under the Financial Services Act, so is the analogy entirely apt?
Mr. Hanley : It is indeed, but the hon. Gentleman is right to raise the subject. The joint monitoring unit that I visited recently is not the poodle, the child or the creature of a regulatory body such as the Institute of Chartered Accountants in England and Wales or the other bodies to which it refers. It is a very separate unit, and therefore analogous to FIMBRA or the other bodies which are made up of individual companies sending in subscriptions, acting not only as a regulatory body but as an advocate of the particular industry. The way in which the self-regulatory organisations have developed shows that they have a dual role. They are not cosy clubs for members of the organisations concerned, but genuine regulatory organisations which are close enough to the bodies that they represent to understand the industry and to know any wrinkles that members of those organisations might try to use to dodge regulations. The self- regulatory system is therefore the most effective that we have. The differences between the recognised professional bodies and the self- regulatory organisations are fewer than the hon. Gentleman might think. In my view, the similarities are greater. Of course, the self-regulatory organisations were set up specifically to take up a task with the recognised professional bodies. With the exception of one, they have existed as self-regulatory bodies for many years. They are based on a system of ethics which I believe has been proven over the years. It is a cost-effective system, but the Government have nevertheless inserted a clause providing that there must be satisfactory arrangements for taking the costs into account. That is acceptable, and shows a trust that the organisations will have to maintain.
If the hon. Gentleman's fears are borne out in future, I shall support him in calling for an end to the system. At the moment, happily, I believe that we have an extremely effective system. I am grateful to the Government for having added to its confidence by the clause, which is no more than reasonable and mirrors the Financial Services Act.
Mr. Cousins : I am grateful for the opportunity to contribute to the debate, and I thank my hon. Friend the Member for Gateshead, East (Ms. Quin) for kindly referring to the remarks that I made in Committee.
The debate on the amendment, and similar amendments, in Committee was inhibited by a sense of outrage among certain sections of the financial community about the apparent costs of the regulatory mechanisms set up under the Financial Services Act 1986. There was far too much of a stampede to give in to those pressures. As it has turned out, the chairman of the Securities and Investments Board has conducted himself extremely well in this matter. He has been calm, persistent in putting forward the correct definition, and at the same time has drawn up coherent proposals to deal with the underlying concerns that people have expressed.
The debate in Committee was far too inhibited by what one may regard as the Poujadist section of the financial markets. A number of unfortunate public statements contributed to the attempted undermining of the public standing of the regulatory bodies set up under the Financial Services Act. It has transpired that because of
Column 1149the chairman's integrity and persistence, and because of the way in which he bent to his task and was not distracted from it by all the noises to which he was subjected, that danger has been avoided. So long as that individual holds his current position and continues to work with the people with whom he currently works, we shall have no fears in that respect.
None the less, my hon. Friend the Member for Gateshead, East was right to draw the matter to our attention, because we are dealing not with regulatory bodies but with individual professional standards and performance. The only consideration should be securing the highest possible standards of personal professional repute.
There has been a train of examples of what can go wrong. Serious questions are being asked, not least in reports by inspectors of the Department of Trade and Industry. It is unfortunate that a shadow is being cast over the new bodies that will be set up and the current bodies, if they are to take over the task of regulation. The only consideration for the regulatory bodies, when exercising their regulatory powers over the individuals in their profession and the standards that they attain, must be to ensure that those standards are the highest.
The amendment is unfortunate, and before moving it the Government would have been better advised to have recovered from their temporary panic about the costs of setting up regulatory mechanisms.
Mr. Forth : I have been trying to understand why Labour Members are expressing concern, because I believe that they are missing the blindingly obvious. Perhaps in the wake of this evening's excitement that is understandable.
are trying to achieve a measure of practicality and effectiveness. If we are to make the rules precisely to achieve the high standards that the hon. Member for Newcastle upon Tyne, Central (Mr. Cousins) mentioned, it is only sensible and essential to ensure that regard is paid to their cost. We do not want to end up--I do not think that it is a great danger, but let us ensure that it does not happen--with an over-enthusiastic regulatory body which rushes off and seeks to lay down rules so onerous that they drive these activities out of existence.
That is the answer to the hon. Member for Gateshead, East (Ms. Quin) who asked about the consumer's interest. We have an effective profession operating in the interests of the community as a whole, which includes the business community and consumers. Consumers want a profession which operates effectively, so its rules must not only be effective but must not be so onerous as to drive people out of business. My hon. Friend the Member for Richmond and Barnes (Mr. Hanley) ably illustrated that point.
The hon. Member for Gateshead, East asked what the costs mean. That was a slightly strange question, given the profession that we are discussing. If she does not know what the costs mean, I cannot say with greater confidence what is meant.
Mr. Cousins : The Minister must descend from his talent for occasional Poujadism and return to the subject of the debate. My hon. Friend the Member for Gateshead, East (Ms. Quin) put a clear question to him. Does it mean direct costs, including indirect costs, or does it mean direct costs
Column 1150alone? That can make a considerable difference. The Minister would be better occupied using fewer knockabout tactics and applying his mind to those specific questions.
Mr. Forth : We are talking about professional accountants, not shopkeepers. The hon. Gentleman is in danger of getting the two confused. I shall not attempt to give a detailed answer to that question. It is not my job to set about defining the framework of costs to be taken into account. The bodies concerned will know well the kind of relevant costs involved. It would be inappropriate for me to answer, although it might be appropriate for my hon. Friend the Member for Richmond and Barnes to give us a long dissertation on the relevant costs.
Mr. Hanley rose--
Mr. Hanley : I am grateful to my hon. Friend for his brief invitation. The best way to regulate the investment business is to have a full-time inspector based permanently on site as an independent advisers business. That would cost so much that the independent adviser would give up doing the job. He would not bother to help the public. For chartered accountants, it would mean that a person who was professionally qualified and whose ethics were such as to lead him to concentrate not only on independence but on truth and fairness would be driven out of giving investment advice. It cannot be in the consumer's interests for all those who currently give independent advice, especially when they are backed by a royal charter and a history of service to the public, to be driven from giving a particular service to the public purely because the costs are so great that it is not worth being in the business. That is why we need a balance between having a regulated trade, such as one advising the public, and having costs that are reasonable in terms of providing regulation over those who practise.
I have tried to answer the Opposition's questions, and I hope that I have succeeded. As I am conscious of the passage of time and wish to ensure that we have every opportunity to consider the Bill in detail, I shall leave it at that and hope that the House will support the amendment.
Ms. Quin : Having listened to the Minister's few words, I am not reassured. He has not responded to some of my questions. I asked him what consultations he had had and whether he had spoken just to the one sectional interest which we knew was keen on getting the amendment introduced. He also did not answer my question about how exactly it was decided to include in the Bill references to cost compliance in addition to the one reference that had been decided in Standing Committee discussions on amendments to the Financial Services Act 1986.
The Minister said that he could not understand why we were raising these matters. Perhaps I should remind him that his former ministerial colleague in the Standing Committee, the hon. Member for Warwickshire, North (Mr. Maude), said that he could well understand the concerns that we were raising about this and also those expressed by the Consumers Association and others, although he felt that they were unfounded. I found that
Column 1151response easier to cope with than the present Minister's complete lack of awareness about why we feel that this issue is so important. We want adequate and proper regulation, not cost- cutting regulation. That is why we are concerned about the amendment and why I urge my hon. Friends to oppose it.
Question put , That the amendment be made :--
The House divided : Ayes 151, Noes 57.
Division No. 355] [9.20 pm
Arnold, Jacques (Gravesham)
Baker, Nicholas (Dorset N)
Bennett, Nicholas (Pembroke)
Blaker, Rt Hon Sir Peter
Boscawen, Hon Robert
Bowden, A (Brighton K'pto'n)
Brown, Michael (Brigg & Cl't's)
Browne, John (Winchester)
Buck, Sir Antony
Carlisle, John, (Luton N)
Carlisle, Kenneth (Lincoln)
Channon, Rt Hon Paul
Clark, Dr Michael (Rochford)
Clark, Sir W. (Croydon S)
Coombs, Anthony (Wyre F'rest)
Davies, Q. (Stamf'd & Spald'g)
Davis, David (Boothferry)
Fenner, Dame Peggy
Fishburn, John Dudley
Fookes, Dame Janet
Forsyth, Michael (Stirling)
Glyn, Dr Alan
Goodson-Wickes, Dr Charles
Gorman, Mrs Teresa
Greenway, John (Ryedale)
Griffiths, Peter (Portsmouth N)
Hamilton, Hon Archie (Epsom)
Hamilton, Neil (Tatton)
Hampson, Dr Keith
Hargreaves, Ken (Hyndburn)
Hayhoe, Rt Hon Sir Barney
Hughes, Robert G. (Harrow W)
Hunt, Sir John (Ravensbourne)
Johnson Smith, Sir Geoffrey
Jones, Gwilym (Cardiff N)
Knight, Greg (Derby North)
Lester, Jim (Broxtowe)
Lyell, Sir Nicholas
McNair-Wilson, Sir Patrick
Martin, David (Portsmouth S)
Meyer, Sir Anthony
Mitchell, Sir David
Morris, M (N'hampton S)
Morrison, Sir Charles
Newton, Rt Hon Tony
Pattie, Rt Hon Sir Geoffrey
Peacock, Mrs Elizabeth
Porter, Barry (Wirral S)
Porter, David (Waveney)
Powell, William (Corby)
Raison, Rt Hon Timothy
Rhodes James, Robert
Ridley, Rt Hon Nicholas
Sackville, Hon Tom