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Lord Mcintosh of Haringey: My Lords, I said no such thing. I did not refer to the speech by my noble friend Lord Bach, which will be dealt with by my noble friend Lady Scotland when she winds up. I do not accept the noble Lord's observation. I simply wanted to establish that the letter had been written and included the details that I mentioned.

Lord Fraser of Carmyllie: My Lords, I may have misunderstood the Minister. I will read carefully what he said, but it seems clear from four interventions that the noble Lord attached a great deal of significance to the letter. It seemed as though he wanted to set aside the noble Lord's unequivocal statement.

Your Lordships spent hours examining the Bill, not only in this House but in Joint Committee, to ascertain which aspects of it might not be compliant with the European Convention on Human Rights. Not only did Ministers appear before the Joint Committee to say that the Bill was compliant but, as is now the custom, attached to the Bill was a statement by a Minister that the legislation was compliant. It would be interesting, in circumstances in which we are told that the Bill does not comply, to know who was that Minister.

Lord McIntosh of Haringey: My Lords, I am being referred to again. I signed the certificate under Section 19 of the Human Rights Act, in the belief that the Bill was compliant. It is compliant. There has been no suggestion that the Bill is not compliant. It has emerged from the Liberal Democrat Benches that the Motion in the name of the noble Lord, Lord Kingsland, would not be compliant.

Lord Fraser of Carmyllie: My Lords, the noble Lord might consider his position because if this is to be the

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outcome months after the Bill has passed through your Lordships' House, such statements are rendered utterly worthless. If we are to understand what is required of us by the convention when passing legislation, Ministers should not lightly give such undertakings. I regret that seems exactly what has been going on in the present circumstances. It is more than a matter of giving the Government a bloody nose and raising the noble Lord's blood pressure. We should establish the important principle that where Ministers make a statement that proposed legislation complies with the human rights convention and it subsequently emerges that that is not correct, we should at least receive the most profuse apology from the Government for their failing.

4 p.m.

Viscount Bledisloe: My Lords, I was not involved in the Financial Services and Markets Bill when it passed through this House. My intervention is prompted by the suggestion that the rules relating to appeals to which the noble Lord, Lord Kingsland, referred do not accord with statements in this House and in another place during the Bill's passage. Having approached the matter with no preconceptions, it is absolutely clear to me that the rules fundamentally depart from what was said to both Houses.

As there has been some discussion about the modes of correspondence, I shall refer to the amazingly unsatisfactory way in which my inquiries have been dealt with. I tabled a Question for Written Answer and the reply from the noble and learned Lord the Lord Chancellor was--if one was being kind--somewhat disingenuous. I wrote to the noble and learned Lord and about one month later, I received what appeared to be his reply--although it was somewhat deficient, as it lacked a date, a superscription and a signature. As that reply referred to the letter from the noble Lord, Lord McIntosh, of 14th March, I wrote a preliminary letter back to the Lord Chancellor asking him if his department could let me see the mysterious list of people to whom the letter was notionally despatched.

Three weeks later the Lord Chancellor's Department rang my secretary to query my second letter because according to them the Lord Chancellor had never replied to me at all. When, at their request, she faxed them a copy of the unsigned letter, they told her that it had been sent out in error, that it had not been seen either by the Lord Chancellor or by his staff and that he would send a proper reply--a promise which has not been fulfilled. Quite how that letter came into being as it had not even been seen by his staff, I am not entirely clear. But this matter appears to be bedevilled with actual pieces of paper which are not letters and real letters which do not appear to have reached those for whom they were intended. But the content of that "non-letter" was, again, entirely unsatisfactory and failed to remove my concerns.

I indicate to your Lordships two ways in which it seems to me that the matter is not acceptable. In his letter the noble and learned Lord the Lord Chancellor denies that this House was led to believe that tribunal hearings would be in private on the basis that on

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4th November 1999 the other place was told that the rules would comply with best practice laid down by the Council on Tribunals. That statement to the other place could have referred only to the rules as they existed at that date. So far as I am aware, those rules did not at that date have the presumption of publicity which the Government now contend. But the noble and learned Lord, in answer to my question as to the statements made by the Government on this issue, referred only to the statement of the Financial Secretary and did not in any way mention the statement made in this House by the noble Lord, Lord Bach, to which the noble Lord, Lord Kingsland, has referred.

Perhaps I may be forgiven for repeating the essence of what the noble Lord, Lord Bach, said. I entirely endorse what the noble Lord, Lord Kingsland, said; namely, that no one is accusing the noble Lord, Lord Bach, of having got it wrong. He just appears to have been caught up in something which has now become somewhat messy. He said,

    "The Government believe, however, that it is necessary to avoid any risk that a person might be unfairly tainted, by giving publicity to the fact that some contravention had been alleged by the FSA, before the person concerned had had an opportunity to refer the matter to the tribunal, or before a matter referred to the tribunal had been finally determined by the tribunal or the appeal courts. Under the new clause on publication, the authority is, therefore, prevented from publishing details".--[Official Report, 30/3/00; col. 916.]

The Government seek to say--or the "non-letter" sought to say--that that statement related only to the publication by the authority of its decision and not to the conduct of the tribunal proceedings. However, that is not what the noble Lord, Lord Bach, said. Anyhow, even the Government's version makes total nonsense of those words. The aim of not publishing the decision plainly has to be to allow someone to appeal without being tainted if, in fact, it turns out that his appeal succeeds. That is the plain and, indeed, the only point of preventing publication of a decision pending the appeal.

But what is the point of preventing publication of a decision pending appeal if, the moment the appeal starts, that whole decision is announced? One cannot conduct an appeal against conviction without making, at least fleetingly, some slight reference to the fact that one has been convicted. It would be a somewhat odd procedure if the Court of Criminal Appeal heard an appeal against conviction without any mention of the nature of the conviction. Therefore, if it is really being said that the point of not publishing the decision is to prevent tainting, plainly that is totally nugatory if the moment the appeal is opened the decision is published.

In a court, if a party obtains an order without being fully frank to the tribunal from which he obtains his order, the normal course is to set the order aside and allow him to start again on a proper basis. If that is good enough law to be administered by the judges

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appointed by the noble and learned Lord the Lord Chancellor, surely it should apply to the Lord Chancellor himself.

I entirely support the Motion of the noble Lord, Lord Kingsland. The right thing to do is to set these rules aside, let the matter be retabled and debated and, if the matter has changed and people now have different views about the effect of the Human Rights Act, that can be fully investigated instead of being slipped through as an afterthought reason for what appears to have happened.

The Earl of Erroll: My Lords, I may be able to assist your Lordships on the matter of the missing mail. There was a point some months ago at which I used to receive batches of letters from the noble Lord, Lord Steve Bassam, addressed to senior Members of the House on both sides. However, the sticker on the envelope was addressed to me. Someone in the Home Office was clearly putting the letters in the wrong envelopes. As I received no mail from the Home Office at that point, nor did I expect any, I was even more surprised. I used to slit them open and hand them to the attendants. However, others may have received those letters and not slit them open or handed them to the attendants but put them in the bin. That may explain the missing letters.

Lord Phillips of Sudbury: My Lords, there are three issues here. The first is whether or not Ministers in the House of Commons and in this place inadvertently misled the House with the result that the rules before us today are inconsistent with assurances given. The second issue is whether or not the advice on which Ministers spoke in the debate was correct; namely, in terms of the effect of Article 6 of the European Convention on Human Rights. The third issue is whether or not, quite apart from all that, the merits support the proposal in the rules that tribunal hearings should be held in public subject to a caveat, or whether they should follow the assurances given in debates here and in the other place.

I entirely support the Prayer put forward by the noble Lord, Lord Kingsland, at least as to the importance of the issues concerned and the lesson they may have for this place. Like other noble Lords, I would not be at all content if the point made by my noble friend Lord Newby concerning the many billets-doux which shower upon us during the course of these Bills, quite apart from the mass of amendments that come up night after night, was ignored. It would be not merely futile but counter-productive were those communications in any sense to have priority over what is said on the Floor of this House in debate. I hope that the Minister in responding to the debate will agree with that proposition.

I say a few quick words about the advice which I assume Ministers were given before they spoke as they did in the debates. In particular I refer to the words spoken by Miss Melanie Johnson, who was then

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Economic Secretary to the Treasury, on 4th November 1999. I am sure that some noble Lords may not have picked this up. Miss Johnson said:

    "As long as that [namely a tribunal hearing in private] is consistent with the interests of justice and everyone's right to a public hearing under ECHR, it is intended that that [the private hearing] will generally be at the request of the person referring the case",

namely, the appellant to the tribunal.

That is absolutely clear. It is quite clear too that she had had advice on the meaning and intent of Article 6. I note that Halsbury makes the point--as is clear from Article 6, which is primarily a protection for individuals caught up in civil or criminal process--that,

    "The convention does not require a public hearing if an accused or a party has waived the right to such a hearing, provided that the waiver is unequivocal and there is no important public interest consideration that calls for the public to be present".

I am sure we await to hear with great interest what the Minister will say about the Government's present view of Article 6. However, if the prayer of the noble Lord, Lord Kingsland, is no longer consistent with their interpretation of Article 6, we deserve an explanation as to why different advice was apparently given in November 1999 and when the noble Lord, Lord Bach, spoke to the same intent in March 2000.

Finally, France has private hearings before the Conseil d'Etat which are subject to the same European convention. On the other hand, New York is not subject to the convention and has public hearings. I have earned my living in a law firm in the City over the past 35 years. I am not convinced by those in the City who argue that a private hearing is in the best interests of the City. In an obvious and superficial way that case can be and is made; but it is in the greater public interest that the tribunals should be heard in public.

There is a mystique around the City. Many people believe that it is a law unto itself. There is a degree of unhappiness about the small number of disciplinary proceedings which are brought with regard, for example, to insider trading and the even smaller number of proceedings which are successful. I take issue with my friends in the City who believe that privacy is the best way to effective policing.

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