House of Commons Hansard Debates for 1 Feb 2000 (pt 26)

Miss Melanie Johnson: First, I shall tackle the question from the right hon. Member for Wells (Mr. Heathcoat-Amory) about terminology, which rehearses a debate that we had in Standing Committee. Indeed, I recall that Opposition Members tabled an amendment about the term "counter-party" in Committee.

We have studied the question, which is largely a matter of drafting. There is a risk that the terminology of the "purchaser" is confusing, given that that person could also be selling investments, which is the point just made by the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell).

The word "purchaser" is a drafting device, and needs to be seen in that context. However, we shall continue to examine the problem, with a view to bringing forward another suggestion about the wording in another place.

Mr. Tyrie: I hope that the Minister will be able to dispel some confusion for me. As I understand it, clause 24 deals with agreements made by unauthorised persons, and clause 25 with agreements made through such persons. New clause 12 addresses the problem in clause 24, but it does not extend the same treatment to clause 25, which deals with agreements entered into with an authorised person

"in consequence of something said or done by"

an authorised person

"in contravention of the general prohibition".

Why have the Government excluded clause 25 from the treatment meted out to clause 24?

Miss Johnson: In essence, that was the point raised earlier by the right hon. and learned Member for North-East Bedfordshire. The new clause does not cover third-party deposit taking. There is no intention to make giving advice on deposits a regulated activity.

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In Committee, Opposition Members found it very difficult, in their amendments, to change terminology across the board. An example that we discussed earlier was the difficulty with the definition of the word "consumer". It is not always easy to produce a single term that fits well in all the circumstances in the Bill. We do our best to ensure that all the terminology is consistent and that, wherever possible, the same words are used. As I said, we will continue to consider this and will come back to it in another place if that seems appropriate.

The right hon. and learned Member for North-East Bedfordshire asked why, if it was just and equitable that a deposit should not be returned, it was necessary for the person to prove that he reasonably believed that he was breaching the prohibition. My understanding of the way that this works may be different from that of the right hon. and learned Gentleman. It is important to remember that we are talking about illegal activity. The first question is whether the provider reasonably believed that he was not acting illegally. Only then does the second question kick in--whether the enforcement is just and equitable. It is a staged process. I think that the right hon. and learned Gentleman was suggesting that only the second phase was necessary, but the first stage is supposed to be followed by the just and equitable consideration as the second element.

Sir Nicholas Lyell: Will the Minister clarify this point? She is concentrating on the illegality of the activity. While it is true that the idea of not being able to profit from one's own wrong is deeply embedded in the common law, does the hon. Lady recognise that the illegality in these circumstances is, in a sense, artificially--although rightly--created by statute? Buying and selling shares, for example, is a perfectly legitimate activity. Therefore, there is a high degree of technicality about the illegality. Hence, does the hon. Lady agree that, if it is just and equitable in a commercial situation for money to be returned or not, that should be the end of the question, and that what someone did or did not reasonably believe is a step too far?

Miss Johnson: I do not think that I agree with the right hon. and learned Gentleman. My view is that, if the illegal behaviour resulted from an obscure technicality of the kind that he sketched out, the court may be satisfied that the person reasonably believed that he was not breaking the law. That is a distinct possibility. But, if the belief was not reasonable, why should the courts enforce the illegal contract?

Sir Nicholas Lyell: We are talking about activities that are contrary to the general prohibition. Those are not obscure technicalities, but the circumstances in which a breach of the general prohibition may have arisen but be entirely innocent, albeit the person was slightly negligent. If that was the case, does the Minister recognise that unreasonableness would creep in and injustice could be done because the money could not then be returned by the court even though it had been decided at the first stage that it would be just and equitable to do so?

Miss Johnson: I believe that, if what was done in the first place was straightforward and not a matter of obscure technicality, the issues may not be the same, but the measure must address the point that it may not be clear whether there is an obscure technicality. The right

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hon. and learned Gentleman does not wish to entertain that possibility, but it is an eventuality that must be entertained. I recognise that that will sometimes cause difficulty for those carrying out unlawful activities, but there is a balance to be struck and the Bill strikes it properly. I do not think that I have anything further to add.

Sir Nicholas Lyell: Would the Minister just answer this question? If there is a small mistake--a negligent mistake, as most mistakes are--but, considering the issue as a whole, it would be unjust to the deposit taker to have to return the money, why should the court's hands be tied from doing justice?

Miss Johnson: I do not believe that we are tying the court's hands and preventing justice from being done. It is the business of the courts to do justice and I do not believe that anything that we are doing has or will have that effect.

Question put and agreed to.

Clause read a Second time and added to the Bill. .

New Clause 13

Statements of policy: procedure

".--(1) Before issuing a statement under section 67, the Authority must publish a draft of the proposed statement in the way appearing to the Authority to be best calculated to bring it to the attention of the public.
(2) The draft must be accompanied by notice that representations about the proposal may be made to the Authority within a specified time.
(3) Before issuing the proposed statement, the Authority must have regard to any representations made to it in accordance with subsection (2).
(4) If the Authority issues the proposed statement it must publish an account, in general terms, of--
(a) the representations made to it in accordance with subsection (2); and
(b) its response to them.
(5) If the statement differs from the draft published under subsection (1) in a way which is, in the opinion of the Authority, significant, the Authority must (in addition to complying with subsection (4)) publish details of the difference.
(6) The Authority may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1).
(7) This section also applies to a proposal to alter or replace a statement.".--[Mr. Timms.]

Brought up, and read the First time.

Mr. Timms: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government new clause 14--Statements of policy: procedure.

Government new clause 25--Codes: procedure.

Government new clause 26--Statements of policy: procedure.

Government new clause 30--Statements of policy: procedure.

Government new clause 31--Statements under section 351: consultation.

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Government new clause 40--Consultation.

Government new clause 41--Procedure on making or varying orders under section (Orders in relation to the general prohibition).

Amendment No. 236, in clause 8, page 4, line 15,, at end insert--

"(6) Before appointing any person to the Practitioner Panel the Authority must consult persons representing the interests of practitioners, as it considers appropriate, with a view to identifying candidates for appointment to the Practitioner Panel.".