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Clause 77
Amendment made: No. 409, in page 35, line 42, after "in" insert "listing".--[Miss Melanie Johnson.]
Clause 80
Amendments made: No. 410, in page 37, line 7, leave out subsection (2).
No. 411, in page 37, line 9, leave out "Any other" and insert "A".--[Miss Melanie Johnson.]
Clause 83
Amendments made: No. 412, in page 38, line 18, leave out
"But this section is subject to the"
and insert--
"Subsection (1) is subject to".
No. 413, in page 38, line 26, at end insert--
"( ) Subsection (4) is subject to exemptions provided by Schedule 9".
No. 414, in page 38, line 41, after "particulars'" insert--
", in subsection (1) and Schedule 9,".--[Miss Melanie Johnson.]
Clause 86
Amendments made: No. 280, in page 39, line 38, leave out "publish" and insert "issue".
No. 281, in page 39, line 41, leave out from "to" to end of line 42 and insert--
"any policy statement published under this section and in force at the time when the contravention in question occurred.".
No. 282, in page 40, line 1, leave out from "publish" to end of line 3 and insert--
"a statement issued under this section in the way appearing to the competent authority to be best calculated to bring it to the attention of the public.".
No. 283, in page 40, line 3, at end insert--
"( ) The Authority may charge a reasonable fee for providing a person with a copy of the statement.".
No. 284, in page 40, line 4, leave out subsection (6).--[Miss Melanie Johnson.]
Clause 89
Amendment made: No. 415, in page 40, line 35, leave out "securities were listed" and insert--
"listed securities were admitted to the official list".--[Miss Melanie Johnson.]
Clause 90
Amendments made: No. 416, in page 41, line 3, leave out subsection (2).
No. 417, in page 41, line 5, leave out "Any other" and insert "A".--[Miss Melanie Johnson.]
Clause 95
Mr. Flight: I beg to move amendment No. 457, in page 43, line 20, leave out
"in relation to the market".
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 458, in page 43, line 23, leave out "based on" and insert "significantly influenced by".
No. 459, in page 43, line 26, leave out "relevant" and insert "material".
No. 460, in page 43, line 26, leave out
and insert--
No. 461, in page 43, line 27, after first "in", insert "qualifying".
No. 462, in page 43, line 29, leave out
and insert "market in".
No. 463, in page 43, line 30, after first "of", insert "qualifying".
No. 464, in page 43, line 33, after first "in", insert "qualifying".
No. 465, in page 43, line 34, leave out from beginning to "that" in line 36 and insert--
No. 466, in page 44, line 16, after "analysis", insert
No. 467, in page 44, line 17, after first "of", insert--
No. 468, in page 44, line 17, after "market", insert--
No. 469, in page 44, line 19, after "conforms", insert--
No. 470, in page 44, line 19, after "rules", insert--
No. 471, in clause 97, page 45, line 18, leave out subsection (2).
No. 474, in clause 99, page 45, line 30, after "98", insert--
No. 475, in page 45, line 31, after "section", insert--
No. 473, in page 45, line 33, after "must", insert--
No. 472, in page 45, line 37, leave out "or reckless".
Government amendments Nos. 118 to 120.
No. 476, in clause 104, page 47, line 30, at end insert--
No. 9, in clause 344, page 177, line 19, after "effect", insert--
No. 10, in clause 345, page 178, line 27, at end insert--
Mr. Flight:
As the House will be aware, provisions on market abuse are one of the most important technical parts of the measure. It is crucial for Britain's international competitiveness as well as for human justice that this aspect be correct, and that there should be clarity and fairness.
The Minister may be aware that almost all our amendments arise from discussions with the Law Society; I shall address the more important of them. I was pleased that the Minister welcomed the Law Society's proposals on another aspect of the measure, so I trust that the Government will also welcome them in this difficult part of the Bill.
The Government may be aware that there is considerable controversy over the recent Bertrand Fleurose case, which came before the Securities and Futures Authority. The legal position appeared to be that the tribunal needed to judge the matter according to the rules rather than according to concepts of fairness or human rights; nor could it proceed as though the Human Rights Act 1998 were already in force.
Although, in some ways, market abuse cases have been protected against claims that they might infringe the concept of human rights, it is still important that any market abuse proceedings are not technically problematic and that they are seen to be absolutely fair.
Amendment No. 460 would change the words
Amendment No. 462 would amend the wording in relation to creating a false market so that it reflects the criminal offence of market manipulation. It is appropriate that the FSA and the criminal codes should reflect each other.
Amendment No. 465 is particularly important. It is designed to provide a clear safe harbour when an individual believes that he did not commit an offence and had taken care to avoid committing an offence. The current drafting of clause 95 will leave the FSA the discretion to take such matters into account, but it does not make it clear whether it will provide fair safe harbour.
Amendment No. 469 would add the concept of a firm being deemed to conform to FSA rules. In certain circumstances, the FSA would be empowered to treat a firm as conforming when it has conformed to certain other relevant rules.
Amendments Nos. 473 and 475 are about penalties. Amendment No. 473 would require the FSA's policy on penalties to adhere to the principle of proportionality; and amendment No 475 would prescribe that, if a penalty had already been imposed by a court, that should be taken into account in any subsequent FSA penalty for market abuse.
"when deciding the terms on which"
"in deciding whether or not to enter into".
"supply of, or demand for"
"The behaviour of a particular person or persons is not to be taken to amount to market abuse where".
"(whether or not requiring the exercise of any expertise)".
"or for the benefit of".
"or can be obtained by them on payment of a fee".
", or which is deemed to conform,".
", or would so conform (or would be deemed to so conform) if the person whose behaviour is in question were an authorised person,".
"and the exercise of its powers under section 104".
"and the extent to which any penalties already imposed by the court under section 104 will be taken into account in determining any subsequent penalty imposed by the Authority in relation to the same market abuse".
"adhere to the principle of proportionality and must".
"(2A) In exercising its power under subsection (2) the court must have regard to any statement of policy issued under section 99.
(2B) In imposing any penalty under this section the court must have regard to any penalty already imposed by the Authority, in relation to the same market abuse.".
"and the extent to which the market abuse was deliberate or reckless".
"(d) in a case within paragraph (b) of subsection (2), to the extent to which the market abuse was deliberate or reckless.".
"when deciding on the terms on which"
to the phrase
"in deciding whether or not to enter into".
That would revive the wording that was in the Bill before its Committee stage. The relevant information needs to be causative, as it was in the Bill's original drafting. If the Government's intention was to narrow the offence by changing the wording, they have not achieved their aim.
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