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Baroness Amos: My Lords, I beg to move that the House do now adjourn during pleasure until 8.42 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The sitting was suspended from 8.32 to 8.42 p.m.]

Financial Services and Markets Bill

Further consideration of amendments on Report resumed.

Clause 155 [Interpretation]:

[Amendment No. 157A not moved.]

Lord McIntosh of Haringey moved Amendment No. 158:

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 158A, 158B, 158BA, 158BB, 170CH, 170CJ, 170CK and 217. These amendments make a number of minor improvements to the competition provisions of the Bill in the light of commitments made to noble Lords opposite and are designed to ensure that the Bill works properly.

Amendments Nos. 158A, 158B, 170CH and 170CJ give effect to a commitment that I gave in Committee to noble Lords opposite. They will ensure that the same limitation as applies to the documents that the director can require people to produce--namely, that they relate to a matter relevant to his investigation--also applies in the case of information.

Amendment No. 217 to Clause 407 makes a change to the definition of the word "Commission" as used in various provisions of the Bill. At present, this says that "Commission" means the "European Commission". This is relevant, for example, in Clause 195(7). However, "Commission" is also used as shorthand in Chapter III of Part X to refer to the Competition Commission. This amendment will ensure that the right meaning is attached to the term "Commission" where it occurs in the Bill. I am sure that the House will agree that that is quite an important clarification.

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Finally, Amendments Nos. 158BA, 158BB and 170CK will ensure that the wording in Parts X and XVIII are consistent. I commend the amendments to the House and beg to move.

Lord Saatchi: My Lords, as the Minister quite correctly said, Amendment No. 158 is a drafting amendment relating to competition scrutiny provisions and is absolutely fine with us. Indeed, we are grateful to him for it. Amendments Nos. 158A to 158BB relate to the power of the Director-General of Fair Trading to request information for the purposes of his review of the FSA's regulations and practices, and the sanctions that he can ask the court to impose for failure to comply with the information requirement. These are drafting amendments only and we are most grateful for them.

On Question, amendment agreed to.

Clause 157 [Power of the Director to request information]:

Lord McIntosh of Haringey moved Amendments Nos. 158A to 158BB:

    Page 76, line 42, leave out from ("control") to end of line 43.

    Page 77, line 6, at end insert--

("( ) A requirement may be imposed under subsection (2) or (3)(a) only in respect of documents or information which relate to any matter relevant to the investigation.").

    Page 77, line 13, leave out ("punish") and insert ("deal with").

    Page 77, line 14, leave out ("had been guilty of contempt of court") and insert ("were in contempt").

On Question, amendments agreed to.

8.45 p.m.

Clause 161 [Authority's power to require information]:

Lord Kingsland moved Amendment No. 158BC:

    Page 80, line 14, leave out ("without delay") and insert ("before the end of such reasonable period as may be specified").

The noble Lord said: My Lords, this amendment is a repeat of one put forward in Committee. It has been repeated only to prompt an explanation from the Government. Under Clauses 161(2)(a), the authority can require an authorised person to provide information and documents,

    "before the end of such reasonable period as may be specified".

However, when the authority authorises one of its officers to require an authorised person to provide information or documents under Clause 161(3), the officer can require that such information or documents be provided "without delay". Why is it that the authority must stipulate a "reasonable period" for providing information and documents, while one of its officers can require that they should be provided "without delay"? The amendment would merely align the two provisions so that they would be consistent.

The Government have tabled Amendments Nos. 158BD to 158BK in relation to Clause 164 and they also feature in this grouping. This series of amendments appears to reorganise Clause 164. The reorganisation will leave Clause 164(1) covering only

9 May 2000 : Column 1459

paragraphs (b) and (c). It applies, if the circumstances arise, in the view of not only the authority but also the DTI--referred to collectively as the "investigating authorities".

Subsection (2) will be expanded to apply to both investigating authorities and not just "the Authority". Therefore, subsection (4)--the equivalent, in the case of the DTI, to subsection (2)--will be deleted. Instead, there is a replacement to subsection (4) which picks up for the authority the deleted paragraphs in subsection (1) and adds to them circumstances suggesting that there may be a contravention of other enactments where the FSA can prosecute but which are outside the new subsection (2). The only situation to which I can think that this might apply is money laundering.

Subsection (5) is deleted as part of the reorganisation. It defines "related offence", which was the previous paragraph (d) in subsection (1) but which has now been deleted and replaced by paragraph (b) in the new subsection (4). Despite the scale of this reorganisation, it seems to us to be acceptable.

Amendments Nos. 158BL to 158BM are to Clause 165. These amendments are consequential and perfectly acceptable. However, perhaps the Government could tell your Lordships whether in Clause 165(2) there should also be a reference to an investigator appointed under Clause 164(5). My reason for asking that is that subsection (2) refers to Clause 164(3) only "so far as relating to" subsection (1), now amended to "as a result of" subsection (1), and the new subsection (5) covers most of what was covered by subsection (1).

Amendments Nos. 158BM to 158NS to Clause 166 are consequential and therefore acceptable. Amendment No. 158BT to Clause 168 is consequential, but did the Government mean to delete subsection (5)?--because, if not, the amendment should require the deletion only down to the end of line 19. The other amendments, the Government will be relieved to know, in our interpretation are consequential. I beg to move.

The Deputy Speaker (Baroness Hooper): My Lords, I should draw to your Lordships' attention that Amendment No. 158BT contains a printing error. The amendment should state,

    "to end of line 19",

rather than,

    "to end of line 20".

Lord Bach: My Lords, we are grateful to the noble Lord, Lord Kingsland, for describing the government amendments in the group. I have a little more to say about them, but not much. There is one opposition amendment in the group compared with 20 government amendments.

Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. I had no wish to describe the government amendments but I was compelled to

9 May 2000 : Column 1460

do so by the way the grouping is arranged. We had tabled one amendment which, unfortunately, turned out to be the first in the group. Therefore it fell to me to deal with the rest.

Lord Bach: My Lords, I hope that the noble Lord does not misunderstand me. We are extremely grateful to him for doing that, perhaps more than he realises. As regards his amendment--

Lord Kingsland: My Lords, I am always pleased to throw light on the Government's amendments.

Lord Bach: My Lords, I do not think that I said that.

As I said in Committee in dealing with the opposition amendment, it is clearly important that the authority can get access to information and documents on a timely basis. This is vital for effective regulation. It is for this reason that subsection (3) of Clause 161 provides that the authority can require the information or documents "without delay".

As I attempted to explain when we considered this same amendment before, we do not agree that there should be a requirement for all requests for information to be subject to some specified period for compliance. That would be bureaucratic and quite unnecessary. The authority must, of course, be reasonable in its expectations of when information may be forthcoming. As was explained on the previous occasion, the term "without delay" means without unjustified or unreasonable delay. It does not mean instantly. That would be an absurd interpretation of the phrase.

Therefore it is clear that subsection (3) does not require a person to meet some unreasonable or impractical requirement. Imposing a requirement on the FSA to specify some reasonable period within which the requirement for information must be complied with would simply add an unnecessary bureaucratic burden. It would place a quite unnecessary onus on the FSA to decide in each case what period must reasonably be allowed for producing the information. The current wording enables the provider of the information to take such time as is necessary for providing the information so long as he does not delay in the normal sense of that word.

The noble Lord drew attention to a difference in wording between various parts of the clause. Clause 161(2) deals with the FSA sending out an information request. Subsection (3) deals with the situation where it has been deemed necessary to authorise a specific officer to obtain the documents or information. The term "without delay" reflects the more immediate purpose or nature of such a requirement, but it still means without unreasonable delay. That is why we believe that the wording in subsection (2) is appropriate in the first situation and the wording in subsection (3) is appropriate for a situation where it has been deemed necessary to authorise a specific officer to obtain documents or information.

9 May 2000 : Column 1461

The government amendments all constitute improvements to the drafting. They reflect the continuing commitment of the Government to make this legislation, which is bound to be technical and complicated, as user-friendly as possible. In the course of looking at ways in which we need to align the investigation powers under Part XVII with the comparable provisions under Part XI, we have also dealt with some potential ambiguity in the drafting of Part XI.

These amendments simplify the drafting of Clause 164, which gives the authority the powers it needs to investigate possible offences and other contraventions under the Bill. They deal in a more elegant way with the fact that some types of investigation--for instance, into possible insider dealing--are powers held concurrently by both the authority and the Secretary of State for Trade and Industry.

I hope that noble Lords have seen a version of the clause as it would look if the House amends it tonight, to assist your Lordships with the changes that are made.

Building on the restructured Clause 164, the other government amendments improve the clarity of the cross references in other clauses in Part XI to the different types of investigation that may be mounted under Clause 164, and correct technical defects in the existing wording of Clauses 165(2), 168(4) and 169(5). It was not clear that these references worked correctly in identifying the cases to which those subsections apply.

These are essentially technical drafting amendments and do not represent any change in the effect of the provisions in Part XI, although the restructuring of Clause 164 has led to a relatively large number of purely consequential amendments, including additional amendments to Clause 280.

Amendment No. 158BF is part of the rearrangement of Clause 164, in that it removes subsection (1)(d), which is replaced by subsection (4)(b) in Amendment No. 158BK. But this amendment makes a subtle change to the effect of the clause, in that it deletes subsection (1)(e), which is not replaced by the other amendments. This removes an unnecessary and potentially unhelpful reference to offences that may have been committed by virtue of Clause 395. Clause 395 is concerned with circumstances in which an individual may be deemed guilty of an offence committed by a corporate body or partnership. Where it applies, its effect is that the individual is guilty of the offence under the provision which originally creates the offence. Therefore it is unnecessary to have to refer expressly to Clause 395 in Clause 164. To do so might cast doubt on the way in which Clause 395 was intended to operate. Subsection 1(e) is therefore removed.

Finally, Amendment No. 158BL brings Clause 165 into line with Clauses 163 and 164 by making it clear that one or more persons may be appointed to conduct an investigation, and that they must be competent persons.

9 May 2000 : Column 1462

The noble Lord, Lord Kingsland, asked whether Clause 165(2) should refer to Clause 164(5). That is not necessary, as the powers under Clause 164(3)and (5) will be the same. I hope that that answer satisfies the noble Lord.

9 p.m.

Lord Kingsland: My Lords, that final answer to one of my questions sums up much of the proceedings of this Bill--"it all depends by what you mean by...", and so on.

So far as concerns my Amendment No. 158BC, I am most grateful to the Minister for his explanation. I think he is saying that what I wanted to achieve from my amendment is already on the face of the Bill, and therefore I have nothing to worry about. If that is so, I happily beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 164 [Appointment of persons to carry out investigations in particular cases]:

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