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Lord Burns: I am grateful to the Minister for giving way. Does he agree that subsection (5)(b) simply allows the authority to say, "We disagree"? As the Minister says, I have spent a good deal of my life answering some of these questions. The skill, as we know, of some of my former colleagues in giving an answer without giving an answer is one of the things we are brought up to do. That is my worry.

Lord McIntosh of Haringey: We are too close to this. I experience difficulty in getting the Treasury to answer questions which I am asked in parliamentary terms and wish to answer straight. There is reluctance sometimes to do that. But it would be difficult for the authority to do it. It would get itself into public trouble, particularly after this debate, if it ignored the representations made to it, particularly by panels.

Finally, I turn to Amendment No. 279. Clause 404 specifies the procedures applying to powers under the Bill that are exercisable by statutory instrument. The effect of the amendment would be to require the Treasury to consult the panels before making regulations and orders under the Bill. It would impose the same requirements on the Lord Chancellor when making tribunal rules for the purposes of Part IX.

There are two aspects to this. The first is whether the Treasury and other departments should be under an obligation to consult before making secondary legislation. I suppose one could argue that they should. But if we are going to do that, it should apply to all secondary legislation and it might lead to a considerable slowing down in government. The delegated powers to make secondary legislation by statutory instrument and the procedures applying in each case were examined in the Treasury's memorandum to the Delegated Powers and Deregulation Committee. The committee substantially endorsed the approach in the Bill and the Treasury subsequently responded positively to the committee's seventh report of 16th February 2000.

The Treasury does not believe it is appropriate or desirable for there to be a statutory duty to consult. The order and regulating powers are subject to the approval of Parliament and Ministers are answerable to Parliament for their actions. The considerations are quite different as compared with the arrangements for the exercise of delegated legislative powers by the authority. Of course, as a matter of policy and practice the Treasury, like other departments, seeks wherever possible and appropriate to consult those likely to be affected by secondary legislation. It will continue that practice under this Bill and some noble Lords will be

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aware that the Treasury consulted publicly on a number of draft orders that it proposes to make under the powers of this Bill.

The second part concerns the role of panels in consultation. I assure noble Lords that the Treasury, when consulting on draft statutory instruments, would be interested to hear any comments from the panels, just as it would from any other person. The practitioner and consumer panels are to be established and maintained by the authority under arrangements for consulting consumers and practitioners. They are created for a specific purpose, and that purpose does not include becoming a trade association or lobby group; they are there to advise and inform the authority. It would not be appropriate for them to have a special role in scrutinising the exercise by government of its legislative functions.

We have returned to the issue that was raised in relation to the previous group of amendments when we discussed what was prescriptive and what was too prescriptive. The Bill already permits the things that the amendments seek to achieve, but there is no need for them to be set in stone. The more we seek to set out what the panels must or may do, the more we serve to cast doubt on the ability of the panels to set their own agendas. I hope that the noble Lords will not persist with the amendments.

6.30 p.m.

Lord Elton: I hope that the noble Lord will not think me obtuse, but he has frequently illustrated in relation to Clause 146 how the authority is bound to consult and be open, and he has also referred to Clause 63. The requirements contained in Clause 146 are mostly internal to it, but the requirements to consult and to be open in Clause 63 appear to be entirely external to it. I would be most grateful if the Minister could remind me how the behaviour of the authority, about which he has given an assurance, is a requirement in statute under Clause 63.

Lord McIntosh of Haringey: I did not say that they were exactly the same, but the analogy is quite close. Clause 146 is about rules and Clause 63 is about statements and codes of conduct. Although the wording is not identical, the purpose is the same.

Lord Elton: Clause 146 contains many requirements in relation to the authority's behaviour, but they are not contained in Clause 63. I take it, therefore, that the Minister is looking to Clause 7 for the requirement in relation to consultation and openness.

Lord McIntosh of Haringey: The noble Lord will have to read Clauses 63 and 64 together. Clause 63 sets out the details of the code and Clause 64 sets out the procedure, including the draft, the representations and the response, in exactly the same words as Clause 146.

Lord Elton: I am grateful to the noble Lord. I said that I was probably being obtuse, and indeed I was. My only purpose in again rising to my feet, apart from that embarrassing admission, is to say that

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Amendments Nos. 74A and 75A in the name of my noble friend Lord Kingsland have survived the defences of the noble Lord, and I hope that my noble friend will persist in them at some stage.

Lord Saatchi: In trying to sum up this group of amendments, I should like to say that it is always a pleasure to see the Minister both inside the House and outside it but, having sat through nearly a day and three-quarters in Committee, I am beginning to wonder why he feels it necessary to come along. On the basis of his responses so far, he might just as well have popped along to Dixons and got a tape recorder and tape recorded the words "I am sympathetic to the amendments, but no".

This case in point is perhaps the most striking example of that approach. Each noble Lord who has spoken, with the exception of the noble Lord, Lord Faulkner, has supported the principle behind the amendments. In addition, two very powerful voices have spoken for the amendments: the noble Lord, Lord Burns, said that at the very least the FSA should publish its reasons and that there should not be a silence. He pointed out that if the Government do not feel an overwhelming need to give reasons to a joint committee for both Houses of Parliament in rejecting its recommendations, what possible hope does the practitioner panel have?

We do not need to speculate about the meaning of the words in the Bill because we have Mr Challen saying that it would be possible for a future administration to sideline the panel. That is the concern. I am not aware that Mr Challen has withdrawn that view. Therefore, I think that the Minister and the Government could give a more practical demonstration of their sympathy for the amendments rather than just warm words.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 [The Practitioner Panel]:

[Amendments Nos.72-74B not moved.]

Lord Elton moved Amendment No. 74C.

    Page 4, line 21, at end insert--

("( ) The Authority shall provide such resources as it considers necessary for the effective operation of the Practitioner Panel.").

The noble Lord said: I beg to move Amendment No. 74C. I hope that more light will now be thrown on how the panel will operate. I do not put this forward as the proper means of securing proper funding but as the proper means of learning the Government's intentions for the operation of this panel. I presume that what goes for the practitioner panel goes for the consumer panel as well, although I have not linked them together.

The panel, if it is to be effective, will require a secretariat and make its own, perhaps quite wide, inquiries among practitioners, whether by fax, e-mail, post or telephone. These duties will have to be conducted by somebody who will have to be paid,

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unlike the panel members, and the communications bills will have to be paid. Can the Minister state the funds from which those expenses will be met? If they are to be met from the funds of the panel, how will the requirement be met in assessing the total requirement of the panel?

Amendment No. 74D, which is grouped with Amendment No. 74C, has been tabled to try to draw the Minister further. However, I think he will say that all these matters are entirely in the hands of the authority and nothing to do with him. Whether we think that that would be a satisfactory reply is another matter, but I assume that that is the present intention of the Government.

Will the panel act only as a group? Will it be able to form sub-committees to deal with specialist questions, and will it be able to co-opt practitioners with expertise that is not represented on the panel? I understand that the Minister is anxious that the panel should remain fairly small, a situation that will inevitably cause gaps. I should like to know how that difficulty will be met and whether co-option will be permitted.

These are probing amendments and I hope that the Minister will not strain himself to point out their drafting defects but use the opportunity, which I hope is welcome to him, to give us further insight into what he has in mind.

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