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Baroness Turner of Camden: Does not the noble Lord, Lord Higgins, recollect that nearly all governments, of whatever complexion, usually like to retain the flexibility that "may" rather than "must" gives them?
Lord Higgins: I do not want to delay the Committee longer. I do not think that one can read into the clause what the Minister has said. We shall think about the matter and come back to it if necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 and 20 not moved.]
Lord Higgins moved Amendment No. 21:
The noble Lord said: In moving Amendment No. 21, I shall speak also to Amendments Nos. 22, 23 and 24. The amendments seek to determine whether pay and so on should be determined by the regulator or the Secretary of State. It would appear that the Secretary of State will be setting these levels rather than leaving it to the regulator. I beg to move.
Baroness Hollis of Heigham: I am having some difficulty with this. The basic structure—and this applies to a whole range of bodies—is that there is a maxima payment, on a pro rata basis, for certain services. It may be that three days of work a month represents £10,000 a year or £30,000 a year or whatever. Therefore, certain jobs and responsibilities come with those days attached. The maxima for the work is based on Cabinet Office guidelines and is reflected in the determination by the Secretary of State.
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Retired Ministers of the Crown in your Lordships' House, for example, have refused to draw their salary in the past—noble Lords will know several such—and the clause allows for that possibility and for the regulator to react to it. It is no more significant or sinister than that.
Lord Higgins: I understand what the noble Baroness is saying. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 to 24 not moved.]
Lord Higgins moved Amendment No. 25:
The noble Lord said: Paragraph 25(1) states:
"The Secretary of State may make regulations authorising the Regulator to charge fees to meet the costs incurred by the Regulator in connection with applications made for the modification",
and so on. This again raises the question of the relative position of the Secretary of State and the regulator, this time in relation to the fees which are to be charged. This is the first mention of regulations in anything that we have discussed so far. The noble Baroness has always been helpful on previous occasions in providing us with draft regulations all the way through, and no doubt those subject to the Bill will be interested to know what the fees are likely to be and on what basis they are likely to be charged.
Perhaps more generally the Minister could give an indication, because at later stages of the Bill almost entire discretion is given to deal with matters in regulations, particularly in Part 6. Could she give some indication as to what extent she is able to follow the practice she has developed in the past of presenting draft regulations—let us say before Report stage? It has always been very helpful. I beg to move.
Baroness Hollis of Heigham: Dealing with the second point first, I shall do my best to be helpful but I do not think that I shall be able to be so. Many of the regulations will require extensive consultation with industry, and the consultation is an ongoing process. I can assure noble Lords that as soon as I have the regulations I shall bring them to the House.
However, if there are any areas of proposed regulatory powers that the noble Lord would like explained, if we cannot produce the drafting we can provide at least an explanation of how we might propose to use them. I am very happy to offer that facility to him as a substitute at any stage. It will allow him a sense of what the scope might entail.
Amendment No. 25 seeks to remove the provision for fees to be charged in relation to applications under Section 69 of the Pensions Act, which deals with the return of surplus. Applications under the section are made in order to return surplus to the employers—so they are getting, so to speak, a quasi-windfall. In the last case OPRA dealt with under this section, involving the return of £50 million to an employer—I have the details with me but it might not be appropriate to read
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them into Hansard—it had to write to the affected parties three times with details of the case. With 30,000 members that was done at a cost of more than £75,000, which was borne by other employers who were paying a levy to sponsor the return of the £50-million surplus to an individual employer. We think that it is appropriate in such cases for the employer benefiting from the return of surplus to bear the burden of costs rather than all levy payers.
As part of the consultation for the quinquennial review of OPRA, a specific question was asked to test the response to the charging of fees; my understanding is that there was no negative feedback on the proposal. Given those two points I have sought to establish, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Higgins: These have been rather tedious probing amendments but one can never tell what is going to happen next. One suddenly finds that what appears to be a minor amendment turns out to cost £50 million.
Baroness Hollis of Heigham: That was the surplus.
Lord Higgins: I am sorry. A surplus of £50 million. So it shows that it is important sometimes, however tedious it may be, to sort out exactly what some of the meanings of apparently bland and unimportant words in a Bill actually mean.
I should be very grateful if the noble Baroness can help as much as possible with the regulations. She has always been, in my experience, extremely co-operative as far as that is concerned. I merely make the point I made earlier in regard to the compensation. Part 6 is to be introduced almost entirely by regulation and it could do absolutely anything about everything or everything about anything. Before we get to that, we must be a lot clearer than we are about the true situation. I am grateful for the explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Higgins moved Amendment No. 27:
The noble Lord said: I think that this amendment is rather more important, on the exemption from liability to damage. The provision suggests:
"Neither the Regulator nor any person who is a member of the Regulator ... or a member of its staff is to be liable in damages for anything done or omitted",
in the course of its operations. That is a very sweeping statement and gives the regulator very considerable protection indeed. I wonder whether, when we come later to questions of disclosure, unauthorised disclosure and so on, we ought to examine this matter a little more clearly. For example, in the context of the present takeover business at Marks & Spencer and so on, the regulator might suddenly and wrongly disclose information that could have very important consequences.
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No doubt the noble Baroness can tell us to what extent there is precedent for this clause. However, the statement seems extremely wide-ranging. One should perhaps consider whether it needs to be quite as broad as it appears in this clause. I beg to move.
Lord Oakeshott of Seagrove Bay: This provision raises fundamental questions. It states that the regulator, any member of the committee or any member of staff is not to be,
"liable in damages for anything done or omitted in the exercise or purported exercise of the functions",
and so on. It is a very comprehensive whitewash clause, as I think lawyers call it, or a blanket exemption. The effect is obviously, in a certain sense, to put the regulator and his staff above the law. I hope that the Minister will be able to give us the fundamental reasons for that and not just say that there are precedents or that it is standard practice. As we have discovered in other clauses, life moves on. I believe that there are fundamental issues here.
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