Clause 16 - Injunctions and interdicts
Pensions Bill
4:45 pm
Mr Nigel Waterson (Eastbourne, Conservative)
We are now moving almost imperceptibly towards the more serious regulatory weapons that the regulator can deploy. This clause addresses injunctions and interdicts. I assume that an interdict is a creature of Scottish law. It sounds pretty horrendous, although I am unsure whether it involves torture or has any other physical manifestations; I
think that it is the equivalent in Scottish law of an injunction.
As we proceed through this part of the Bill, the official Opposition need to start getting more serious about the safeguards that we want to build into the legislation. Amendment No. 134, which is echoed by amendment No. 135, seeks to remove the phrase ''a reasonable likelihood''. I have not yet had the opportunity, probably because I was too busy printing the regulatory impact assessment, to go to the law section of the Library to check the legal definition of ''reasonable likelihood'', but I am sure that the Minister has it at his fingertips and will be able to give us some precedents and to explain what it means. What is the level and burden of proof that is needed for a person to be brought within what is quite a serious provision?
To be on the safe side, our amendments propose to remove those words and to replace them with ''strong prima facie evidence''. It seems to me that, on any view, that test must be higher than ''reasonable likelihood''—a phrase that I have not come across much in my legal career. [Interruption.] I am sure that it will turn out to be some ghastly Tory wording from the Pensions Act 1995, but that does not make it right. If there is a risk of an injunction, or an interdict north of the border, a fairly high standard of proof is needed. Lawyers are comfortable with the formula ''strong prima facie evidence''. I am sure that there are other ways of setting out the burden of proof that is required, but this is a serious issue, and there should be a defensible and significant threshold that the prosecution, whether north or south of the border, has to reach in terms of evidence.
Despite the possible origins of the phrase ''reasonable likelihood'', it does not strike me as enough. There are gradations of regulatory tools in the Bill, and this is quite a serious one. If people can be dragged into court on the basis of such an application, there should be a pretty stiff test not only in terms of the case itself but in order to make it clear to the regulator, as much as to anyone else, that he will rarely be expected to reach for this weapon in his armoury.