Motion made, and Question proposed,
That the Financial Services and Markets Bill, as amended, be considered in the following order, namely, Amendments to Schedule 1 relating to the separation of the roles of chairman and chief executive of the Financial Services Authority; Amendments to paragraph 7 of that Schedule requiring the complaints scheme to make provision for complaints to be investigated quickly; Amendments to paragraph 8 of that Schedule; Amendments to paragraph 19 of that Schedule; New Clauses relating to the legal assistance scheme; New Clauses relating to reports by the Director General of Fair Trading; New Clauses relating to restrictions on powers of Treasury; New Clauses relating to conduct by the Authority of reviews of rules made under Part IX; New Clauses relating to judicial review; Amendments to Clause 52; Amendments to Clause 10; remaining New Clauses; remaining amendments to Clauses; New Schedules; remaining amendments to Schedules.—[Miss Melanie Johnson.]
§ Mr. David Heathcoat-Amory (Wells)
I want to make a few remarks about the motion, which seeks to order the Report stage debate that we are about to have into a form that is more manageable for the House. I always approve of motions aimed at facilitating debate.
However, this motion does not rectify the basic problem, which is that we are about to embark on discussion of what can only be described as a new Bill. There are about 500 amendments and new clauses, covering about 100 pages. I do not know whether that is unprecedented, but this Bill has been a long time in preparation. The problem is that the importance of the Bill lies in its detail. In our proceedings on the Bill so far, we have discovered that Government assurances are not always reflected in the wording that follows, so we shall want to look carefully at the amendments and new clauses.
The Bill has had a very long gestation period. Its subject was announced for legislation soon after the general election, and the Government introduced a draft Bill for consultation in July 1998. That was considered by a Joint Committee of both Houses under the chairmanship of Lord Burns, which produced reports in April and May last year. After that, the Bill was modified extensively in a number of important respects. For example, as originally drafted, it was incompatible with the European convention on human rights. We believe that it is still vulnerable to challenge, but that is a matter for later debate.
After those reports, the Bill was given a Second Reading, and it went into Standing Committee last July. We sat pretty well continuously, when the House was sitting, until December. There was a carry-over provision so that the Bill did not have to start all over again when the House reconvened after the summer recess. Despite that long process, however, which has enabled draftsmen and the Treasury to examine and re-examine the Bill, we are now faced with some 500 new clauses and amendments.
We do not believe that that is a good way to legislate, nor that it is really the purpose of a Report stage—certainly as I have always understood that term. To give just one example, we shall shortly consider an entire new competition regime, which will affect the relationship between the Financial Services Authority, the Director-General of Fair Trading and the Treasury. This was announced as a subject for legislation when we were in 595 Standing Committee, but the details were not given, and the details are very important. The clauses giving effect to the new competition regime were only recently drafted. Therefore, we have a problem, with which we shall seek to deal.
Another feature of the Bill is that it relies heavily on secondary legislation, again perhaps to an unprecedented extent. In many respects, it is still only a framework Bill, large areas of which will be enacted subsequently by regulations issued by the Treasury. Even now, those are largely unseen. The consultation documents—over 30 of them—have all gone out, but we have not had reports back on more than a few.
I remind the House that regulations, particularly those dealt with under negative resolution procedure, will be almost entirely unscrutinised by the House. The great majority of statutory instruments introduced to give effect to this secondary legislation will be dealt with under the negative resolution procedure, whereby the matters are almost certainly not debated at all, and whether they are debated is solely at the Government's discretion. Even if the statutory instrument or order is objected to by the Opposition, or by an interested hon. Member, the Government can refuse a debate of any sort.
Although statutory instruments that have to be introduced by affirmative resolution are debated in Committee, that debate is only on a formal and unamendable motion, which is then simply reported to the House and put forthwith. The Bill is therefore the last chance that the House has to build in the necessary checks and balances and to ensure that the powers are properly circumscribed and the details are right. It is therefore difficult that so many amendments have been produced at short notice on Report.
The order of consideration before us tries to make sense of that large volume of amendments. It brings to the front for debate today many of the issues of principle. We will certainly not oppose it, but I thought that I should explain our misgivings, not about the motion but about how the Report stage is being conducted—a lot of material has been brought forward late, despite the fact that the Government announced their intention to legislate more than two years ago.
§ The Economic Secretary to the Treasury (Miss Melanie Johnson)
This is probably one of the most technically complex Bills with which the House has dealt. Certainly, it concerns an enormously technical subject, which has been considered at length not only in Committee but by many outside organisations, not least the Burns committee.
Naturally, we tabled amendments after noting the views of the Burns committee and the interim report produced by Don Cruickshank in July—too late for the tabling of amendments at the Committee stage—and, not least, in response to what Opposition Members said in Committee. Opposition Members cannot have their cake and eat it. If they raise legitimate concerns, the Government will listen, as they always do, and try to respond positively; but when we respond positively, they complain about the number of amendments that have been tabled.
The Opposition tabled some 500 amendments for the Committee stage, and I believe that the Government have tabled 288 for the Report stage. The Financial Services 596 Act 1986, although less complex, covered some of the same territory. The then Conservative Government tabled 250 amendments and 14 new clauses for the Report stage of that Bill, which was rather shorter than this one. It is as well to put one's own house in order before criticising others.
§ Miss Johnson
No, because I do not want to speak for long.
The Bill contains many matters of substance, all of which were considered in Committee, at least in outline. I hope that we shall spend our time today discussing not how we should consider matters, but the matters themselves—matters that Opposition Members would claim to want to discuss. I shall enjoy that debate on the substance of the issues.
§ Mr. Howard Flight (Arundel and South Downs)
I thank the Minister for acknowledging the substantial contribution made in Committee by the Opposition, who wanted to get the Bill right, especially in practical and operational terms. It is clearly not the stuff of red-hot party politics. The objective of all of us is to achieve good law for our largest industry, employer and exporter.
The motion divides the territory between issues of principle, and practical and technical issues. As I trust the debate on the technical issues will show, the Government have addressed many of the matters that we have raised; but I must point out, as we embark on the 10 crucial areas of principle, that not only the industry but the regulators support much of what we have said. We look to the Government to accept our key points, at least in principle. Co-operating to produce good law for the country does not mean that we are willing to agree to arrangements that we and many others feel are not yet right.
§ Mr. Tim Loughton (East Worthing and Shoreham)
I had not intended to prolong proceedings, but the Minister refused to let me intervene earlier. The hon. Lady referred to the Financial Services Act 1986. In 1986, of course, financial services regulation was an entirely new subject, so it is not surprising that an awful lot of corrections needed making on Report. I am prepared to admit, however, that the Government have outdone themselves by tabling 288 amendments for the Report stage of this Bill. Furthermore, the 1986 Act did not have the benefit of a long scrutiny procedure under Lord Burns, whose committee took many professional witnesses and made many detailed recommendations, giving the Government a long period of notice in which to act.
My complaint is that we are faced today with just two days to consider what my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) referred to as effectively a whole new Bill. The Government have tabled 36 new clauses, two new schedules and 288 amendments, most of 597 which we have had less than 72 hours to consider. We did not have the time to discuss many of these matters in Committee.
§ Mr. Loughton
I will in a minute. If the hon. Lady had been more generous in allowing me to intervene earlier, I would not have had to speak now.
We have had less than 72 hours in which to examine details that were not available to us in Committee. For example, I asked a series of detailed questions in Committee about the legal aid scheme, and was simply told that the Government were considering it. Detailed new clauses and amendments have now been tabled, and as we did not have the benefit of examining them in Committee, we are coming to this technical subject pretty fresh.
Yesterday was another good example. One criticism of the Bill is that it does not limit the Government's powers in deciding what and who should be regulated. That is the sort of definition and capping detail that we spent many months in Committee trying to tease out from the Government. Only yesterday, the Minister announced that mortgages would now be regulated under the aegis of the Financial Services Authority. As my right hon. Friend pointed out, no extra legislation will be required to bring an enormous new raft of the financial services industry into the remit of the FSA, with all the technicalities about charges access terms standards and so on.
Throughout the entire Committee proceedings, we were given very little notice for scrutiny. There was so little meat to get to grips with. We have not seen the results of consultation exercises, which is the source of our complaint today. I hope that the Government will pay some attention to the fact that we have had very little notice of much new legislation that is being shoved into this already enormous Bill. If we need more time to debate this than the two days allocated, I hope that they will be sympathetic and not simply steamroller the Financial Services and Markets Bill mark II through its remaining stages at this late stage.
§ Sir Nicholas Lyell (North-East Bedfordshire)
I agree with what my right hon. and hon. Friends have said. I welcome the Economic Secretary's comment that the Government always listen carefully to what is said in debate. It is a great pleasure to see the Chief Secretary to the Treasury in his place.
As we consider the ordering of our debates—it is sensible to put the matters of principle up-front—I draw attention to some of the key points with which we are dealing. As the Minister rightly said, the broad objectives are matters of agreement.
The objective of the Bill is to create an updated framework for the financial services industry. However, our debates need to focus on the checks and balances. I should thought have that the Government would agree that there should be checks and balances. If they agree, they should be aware that there are few of them in the measure.
598 The Bill gives enormous—almost unfettered—power to the FSA and to the Treasury. Many of the provisions are imprecise, because they will have to be dealt with in secondary legislation. A constant criticism has been the lack of accountability to Parliament and to the courts. Under one group of amendments, we shall debate the fact that the new authority will have complete immunity. As hon. Members will be aware, I support a substantial measure of immunity, but there is no compensation for mistakes by the FSA, except on an entirely ex gratia basis.
The Bill has been drafted in such a way that it is plain to lawyers who have looked at it—
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. I am sorry to interrupt the right hon. and learned Gentleman, but, based on his remarks so far, I must point out to him that this is not a Second Reading debate. We are debating a motion that relates only to the order in which items are taken. I cannot permit him to go into matters of substance.
§ Mr. Andrew Tyrie (Chichester)
On a point of order, Mr. Deputy Speaker. I shall be careful in what I say, because I am sure that you carefully considered the Bill overnight and that you will have noticed that we are faced with—in large part—a new Bill. I think that my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) is trying to flag up those matters that he feels should be included higher in the order for consideration of this, in effect, new—
§ Mr. Deputy Speaker
Order. The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) has sufficient experience of the House to know exactly what he wants to say without the help of his hon. Friend the Member for Chichester (Mr. Tyrie). It is not a point of order for the Chair to determine the matters before the House.
§ Sir Nicholas Lyell
I am most grateful to you, Mr. Deputy Speaker, because you enable me to focus on the importance of the order in which we take these matters.
Ministers will recognise the importance of allowing sufficient time to consider carefully the degree to which the Bill is being made judicial review-proof. Obviously, I shall not expatiate on that matter at this stage.
However, it is helpful to flag up that we need time to focus on the fact that it is unnecessary to draft a Bill so that it minimises the courts' ability to see whether the way in which the legislation is created and put into effect is reasonable. The Government would claim reasonableness for their legislation. However, they must examine the measure, in the time that we have available, to see whether it would lead to reasonableness.
I am glad that time has been found for discussion of the important matter of competition. However, before we debate the amendments on that subject, the Government will want to reflect on the fact that they may have entirely missed the point about competition and competitiveness.
If you study the amendments, Mr. Deputy Speaker—as I am sure you have—you will notice that those relating to the Competition Commission, according to list, deal wholly with matters connected to competition within the United Kingdom. I have been unable to find an amendment that provides for the worldwide competitiveness of our 599 financial services industry. That matter causes us much concern. I hope that the order of consideration of the amendments will enable the Government to concentrate on those crucial points, which, about 18 months after the publication of the first draft of the Bill, continue to elude them.
Question put and agreed to.
Resolved,That the Financial Services and Markets Bill, as amended, be considered in the following order, namely, Amendments to Schedule 1 relating to the separation of the roles of chairman and chief executive of the Financial Services Authority; Amendments to paragraph 7 of that Schedule requiring the complaints scheme to make provision for complaints to be investigated quickly; Amendments to paragraph 8 of that Schedule; Amendments to paragraph 19 of that Schedule; New Clauses relating to the legal assistance scheme; New Clauses relating to reports by the Director General of Fair Trading; New Clauses relating to restrictions on powers of Treasury; New Clauses relating to conduct by the Authority of reviews of rules made under Part IX; New Clauses relating to judicial review; Amendments to Clause 52; Amendments to Clause 10; remaining New Clauses; remaining amendments to Clauses; New Schedules; remaining amendments to Schedules.