Market Abuse.

Orders of the Day — Financial Services and Markets Bill – in the House of Commons at 5:45 pm on 9th February 2000.

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Photo of Mr Howard Flight Mr Howard Flight Conservative, Arundel and South Downs 5:45 pm, 9th February 2000

I beg to move amendment No. 457, in page 43, line 20, leave out in relation to the market".

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 458, in page 43, line 23, leave out "based on" and insert "significantly influenced by".

No. 459, in page 43, line 26, leave out "relevant" and insert "material".

No. 460, in page 43, line 26, leave out

when deciding the terms on which and insert—

in deciding whether or not to enter into". No. 461, in page 43, line 27, after first "in", insert "qualifying".

No. 462, in page 43, line 29, leave out

supply of, or demand for and insert "market in".

No. 463, in page 43, line 30, after first "of', insert "qualifying".

No. 464, in page 43, line 33, after first "in", insert "qualifying".

No. 465, in page 43, line 34, leave out from beginning to "that" in line 36 and insert—

The behaviour of a particular person or persons is not to be taken to amount to market abuse where". No. 466, in page 44, line 16, after "analysis", insert

(whether or not requiring the exercise of any expertise)". No. 467, in page 44, line 17, after first "of', insert—

or for the benefit of'. No. 468, in page 44, line 17, after "market", insert—

or can be obtained by them on payment of a fee". No. 469, in page 44, line 19, after "conforms", insert—

, or which is deemed to conform,". No. 470, in page 44, line 19, after "rules", insert—

, or would so conform (or would be deemed to so conform) if the person whose behaviour is in question were an authorised person,". No. 471, in clause 97, page 45, line 18, leave out subsection (2).

No. 474, in clause 99, page 45, line 30, after "98", insert—

and the exercise of its powers under section 104". No. 475, in page 45, line 31, after "section", insert—

and the extent to which any penalties already imposed by the court under section 104 will be taken into account in determining any subsequent penalty imposed by the Authority in relation to the same market abuse". No. 473, in page 45, line 33, after "must", insert—

adhere to the principle of proportionality and must". No. 472, in page 45, line 37, leave out "or reckless".

Government amendments Nos. 118 to 120.

No. 476, in clause 104, page 47, line 30, at end insert—

(2A) In exercising its power under subsection (2) the court must have regard to any statement of policy issued under section 99.(2B) In imposing any penalty under this section the court must have regard to any penalty already imposed by the Authority, in relation to the same market abuse.". No. 9, in clause 344, page 177, line 19, after "effect", insert—

and the extent to which the market abuse was deliberate or reckless". No. 10, in clause 345, page 178, line 27, at end insert— (d) in a case within paragraph (b) of subsection (2), to the extent to which the market abuse was deliberate or reckless.".

Photo of Mr Howard Flight Mr Howard Flight Conservative, Arundel and South Downs

As the House will be aware, provisions on market abuse are one of the most important technical parts of the measure. It is crucial for Britain's international competitiveness as well as for human justice that this aspect be correct, and that there should be clarity and fairness.

The Minister may be aware that almost all our amendments arise from discussions with the Law Society; I shall address the more important of them. I was pleased that the Minister welcomed the Law Society's proposals on another aspect of the measure, so I trust that the Government will also welcome them in this difficult part of the Bill.

The Government may be aware that there is considerable controversy over the recent Bertrand Fleurose case, which came before the Securities and Futures Authority. The legal position appeared to be that the tribunal needed to judge the matter according to the rules rather than according to concepts of fairness or human rights; nor could it proceed as though the Human Rights Act 1998 were already in force.

Although, in some ways, market abuse cases have been protected against claims that they might infringe the concept of human rights, it is still important that any market abuse proceedings are not technically problematic and that they are seen to be absolutely fair.

I wish to discuss the key amendments in this rather large group. Amendment No. 459 would change the word "relevant" to "material" in relation to the information on market abuse. "Relevant" seems to us and to the Law Society a considerably vague and wide term. "Material" is a more precise concept.

6.30 pm

Amendment No. 460 would change the words when deciding on the terms on which to the phrase in deciding whether or not to enter into". That would revive the wording that was in the Bill before its Committee stage. The relevant information needs to be causative, as it was in the Bill's original drafting. If the Government's intention was to narrow the offence by changing the wording, they have not achieved their aim.

Amendment No. 462 would amend the wording in relation to creating a false market so that it reflects the criminal offence of market manipulation. It is appropriate that the FSA and the criminal codes should reflect each other.

Amendment No. 465 is particularly important. It is designed to provide a clear safe harbour when an individual believes that he did not commit an offence and had taken care to avoid committing an offence. The current drafting of clause 95 will leave the FSA the discretion to take such matters into account, but it does not make it clear whether it will provide fair safe harbour.

Amendment No. 469 would add the concept of a firm being deemed to conform to FSA rules. In certain circumstances, the FSA would be empowered to treat a firm as conforming when it has conformed to certain other relevant rules.

Amendments Nos. 473 and 475 are about penalties. Amendment No. 473 would require the FSA's policy on penalties to adhere to the principle of proportionality; and amendment No 475 would prescribe that, if a penalty had already been imposed by a court, that should be taken into account in any subsequent FSA penalty for market abuse.

Amendments Nos. 9 and 10 relate to restitution orders by both the court and the FSA. They would prescribe that the court and the FSA should take account of whether the market abuse committed was deliberate or reckless.

Finally, have the Government completed their amendment of the clauses on market abuse? Given that the Law Society's comments appeared late, do they intend to reflect on them before the Bill goes into Committee in the other place?

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

I support the amendments because I have spoken to a few people in the City of London with whom I worked in a previous career. They are solicitors and have some concern. I acknowledge, however, the sensible changes that Ministers made in Committee. Anyone who has read those debates in the Official Report cannot fail to have anything but a great deal of affection for them—they did their very best to listen when they tried to recast clause 95 and the related clauses on market abuse.

As my hon. Friend the Member for Arundel and South Downs (Mr. Flight) made clear, they are exceedingly important clauses. They are important because they send a strong message to those who wish to trade in this country, to operate in the City of London or to consume financial services provided by the square mile. Those who engage in the market want to see fairness and transparency. If the clauses cannot provide that, our international competitiveness will suffer and business will move elsewhere.

The amendments and the clauses show the clear importance for professional bodies of the definition of "intent" and whether the provisions on the intent to commit abusive behaviour are sufficiently tightly drawn. These powerful amendments would entrench more clearly in the Bill the requirement that intent must be shown before an offence of abusive behaviour is committed. They do not relate just to the intent of market participants but deal also with the question of whether the clauses protect non-market participants. The power of the FSA to impose market abuse penalties other than on participants in the market should be limited to cases in which abusive behaviour was not reckless but intended.

I wish to refer to a powerful comment that was made by Lord Hobhouse who, in an evidence-giving session, expressed concern about these clauses and the provisions on market abuse. He said: All those things when one adds them together add up to a scheme for punishing people who may be abroad, who may not be taking any active part in any market in this country, who have not done anything illegal, whose conduct is innocent, who are under no duty to act where they are accused of failing to act, and nevertheless punishing them for such conduct. The amendments seek, in a modest way, to address some of those fears.

With amendment No. 457, we need to flush out how precisely the Economic Secretary believes that clause 95(1)(c) will catch off-market transactions. For example, will she tell us whether a commodity producer who trades not on the UK markets but on his home market could be caught by a provision for a worldwide squeeze on abuse? Could he be caught by the clause? If he could, what legal advice have Ministers received about the enforcement of the clause under private international law and on the conflict of laws?

The second example of a UK-based person is someone who has never traded on any of the markets specified in the Treasury order, but who indulges in one or more off-exchange transactions. Will he be caught by the clause? I understand from the Minister's remarks in Committee, as recorded in Hansard, that there is an intention that such off-market participants should be caught. I have cited two examples, but there are many others. Will the Minister give an undertaking that the code of market conduct will set out in detail categories of off-market participants who will or will not be caught by clause 95(1)(c)?

Amendment No. 458 is important because it concerns the definition of abusive behaviour and the link between actions that would constitute abusive behaviour, which seem remarkably weak and woolly. The words "based on" are too wide and introduce too much uncertainty; we therefore suggest replacing them with "significantly influenced by". The chain of causation would then be better defined and the ambit of the clause would not be too wide.

On amendment No. 460, I can only endorse the remarks of my Front-Bench colleague, my hon. Friend the Member for Arundel and South Downs. The provisions dealing with safe harbours are very important. Ministers think that clause 95(3) provides a safe harbour, and they are apprised of the need for a clear safe harbour defence. Failure to include that defence will, for the reasons that I gave earlier, greatly damage the City and market participants.

The difficulty in defining abusive behaviour arises with the phrase "regard must be had" because it gives the FSA wide discretion subjectively to decide what constitutes abusive behaviour. The language should be tightened, and amendment No. 465 would make the clause read: The behaviour by a particular person or persons is not to be taken to amount to market abuse where that person or those persons—the clause gives examples— took care to avoid engaging in market abuse; or … believed that the behaviour in question would not amount to market abuse. That would clearly give comfort to innocent market participants. My hon. Friend gave the example of a vicar's wife in Somerset.

The amendment is important because it would require the FSA to consider the conditions in subsection 3(a) and (b); only those conditions should be considered in defining abusive behaviour. The amendment should not be objectionable to Ministers, because it pins down a precise definition.

The remaining amendments in the group would tighten the Bill, provide more certainty and ensure that innocent participants were not inadvertently caught. Amendment No. 467 would make the clause refer to information provided "for the benefit of" users of a market. Equally, the reference to payment of a fee in amendment No. 468 would make it clear to whom the clause refers. That is helpful and should not be objectionable to Ministers. If they seek to oppose those amendments, particularly amendment No. 468, I will want to know why, as will players in the City, in a spirit of honest inquiry.

6.45 pm

I turn now to amendments No. 472 and 473. Why have Ministers included a reference to "reckless" behaviour in clause 99? Amendment No. 472 seeks to address that point, but I am not entirely clear why the term "reckless" has been introduced in that clause. It jars, and amendment No. 473, which would introduce the idea of proportionality, is particularly important.

My hon. Friend drew attention to the importance of amendment No. 475, which would ensure that if fines were imposed by a court, they would not be disregarded by the FSA when it was calculating levels of damages in exercising its jurisdiction.

For those reasons, I wholeheartedly support all the amendments in the names of my colleagues. I do so for only one reason: to ensure more certainty for market participants and the professionals in the City who do so much to make the square mile the top international financial services centre in the world.

Photo of Miss Melanie Johnson Miss Melanie Johnson Economic Secretary, HM Treasury

I shall try to run through the amendments in a sensible order and at appropriate points deal with the remarks that hon. Members have made. However, they have jumped around the order of the amendments slightly, so my comments may not exactly reflect the pattern of their speeches.

I shall deal first with amendment No. 474. Clause 99 requires the FSA to prepare a policy statement with respect to the penalties that it may impose for market abuse. The amendment would require the statement also to cover circumstances in which the FSA might ask the court, under the provisions of clause 104, to impose a penalty for market abuse on a particular individual. The amendment is unnecessary. We expect the FSA to be transparent about its policies and to consult. Indeed, clause 7 requires it to maintain effective arrangements for consulting on the extent to which its general policies and practices are consistent with its general duties.

There are some areas where, in addition, the Bill expressly requires the FSA to produce a policy statement. One of those areas is the FSA's own powers to impose penalties for market abuse. Legitimate concerns have been expressed about how the FSA will exercise its powers to impose the penalties, and the consultation draft of the Bill required the publication of a policy statement. The clause has subsequently been improved in line with the suggestions of the Burns committee to specify key factors to which the FSA should have regard.

Such concerns do not arise on the FSA's policy on what to bring before the courts. Although that will, of course, be informed by its policy on the imposition of penalties under its own powers, clearly we must draw the line on policy statements somewhere. More important will be the court's determination of the penalties imposed which, by definition, will not be a matter of FSA policy.

Amendment No. 475 would amend clause 99 to provide that the FSA's policy statement must take into account the extent to which penalties already imposed by the court should be considered in determining any subsequent penalty that it might impose in relation to the same market abuse. Clearly, the FSA must take that issue into account when it arises, not least because, as the hon. Member for Bury St. Edmunds (Mr. Ruffley) acknowledged, it would be unjust to impose two penalties relating to the same set of circumstances. However, I do not see how the FSA can set out in advance the "extent" to which it would take account of any penalties previously imposed, as that would always depend on the circumstances of individual cases, including the amount of the penalty imposed.

It is important to remember that the tribunal would have something to say if the FSA imposed penalties that were disproportionate in themselves or when considered together with penalties imposed by others. I therefore do not see what the amendment adds to the Bill. Although I understand the intention behind the amendment, I ask that it be withdrawn.

Amendment No. 473 would require the FSA to adhere to the principle of proportionality in its policy on the amount of penalties that it will impose for market abuse. I have no quarrel with the sentiment—indeed, I agree with it—but the amendment is unnecessary.

The FSA is already required to take account of the principle of proportionality. Clause 2 includes such a principle, and makes it clear that that applies to the discharge of the FSA's general functions. It goes on to provide that those functions include determining the policy and principles by reference to which it performs particular functions, which will of course include its policy in relation to penalties for market abuse. I hope that the hon. Gentleman will agree to withdraw the amendment.

Clause 99 provides that the FSA's policy in respect of the amount of any penalty that it may impose for market abuse must take account of the extent to which the behaviour being penalised was deliberate or reckless. Amendment No. 472 would omit the requirement to take account of recklessness.

Hon. Members will recall that clause 95, which defines market abuse, contains no reference to the intention of the person concerned. That was mentioned by the hon. Member for Bury St. Edmunds and others this evening. The reason is straightforward: unintentional abuse can be just as damaging to markets or third parties as abuse that is deliberate or reckless, so the onus is placed on those who choose to participate in markets to make sure that they do not cross the boundary from acceptable behaviour to market abuse.

It is also right that once the fact of abuse has been proven, the state of mind of the person concerned should be taken into account in imposing any penalty. The fact that a person had deliberately engaged in abuse must be relevant in considering the size of any penalty to be imposed, and the same principle applies if the behaviour was reckless. I hope that I have persuaded hon. Members not to press the amendment.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

Is it the hon. Lady's understanding that "reckless" will be defined as it is defined by the criminal courts and criminal case law?

Photo of Miss Melanie Johnson Miss Melanie Johnson Economic Secretary, HM Treasury

Many of the terms in the Bill, as with any law, will be interpreted by the courts.

Amendment No. 476 would require the court, in imposing any penalty for market abuse under clause 104, to take account, first, of any statement of policy that the FSA has issued under section 99, and, secondly, of any penalty that the FSA has already imposed in respect of the same market abuse.

On the first part of the amendment, it would be wrong to impose a legal obligation on the courts to take into account a policy statement prepared by and intended to guide another body—the FSA. However, there may well be occasions when the policy statement is relevant to the issue to be decided by the court, and there is nothing to prevent the person concerned from arguing that before the court. The court will decide the extent to which a policy statement is relevant.

On the second part of the amendment, it should be pointed out that the court can impose a penalty under clause 104 only if the FSA has requested it do so. That is unlikely if the FSA had already imposed a penalty. If that unlikely situation ever materialised, the court could take it into account in deciding whether to impose a penalty, so there is no need for a statutory requirement.

Many of the remarks of the hon. Member for Bury St. Edmunds related to amendment No. 457. Clause 95(1)(c) provides that behaviour can be market abuse only if a person fails to live up to the standards expected by a regular user of the market from someone in his position in relation to the market. The qualification in relation to the market is important. By removing it, amendment No. 457 would reduce the clarity of the provision and the protections available for market users.

The new test, which we introduced in Committee, is aimed at filtering out behaviour that may come within the definitions of behaviour in clause 95(2), but which is not abusive because, in the circumstances, it was not a failure to meet standards that the market would reasonably expect of the person in question.

One of those circumstances is clearly the position of the person in relation to the market—for example, whether he is an experienced investor in that market who can be assumed to know the effect of a particular action, or whether he owes duties to the market, possibly as the director of a listed company. Does he deal regularly on the market and can he be expected to know the market rules in detail? Such considerations will influence the view of the regular user in deciding whether the test is met.

Perhaps an example would help. Suppose a person in an overseas country does something in accordance with rules or customs in that country which, nevertheless, affects the relevant market in the UK—for example, by giving a misleading impression. Has he engaged in market abuse? His position in relation to the market is clearly important in determining whether abuse took place. If he was acting in accordance with customs and rules overseas and had no relationship with the UK market, it seems unlikely that his action would be considered abuse.

A similar case was raised by the hon. Gentleman. It would be difficult to determine whether the commodity trader whom he mentioned had a relationship to the market. I hope that my examples make it clear why I do not consider his arguments in support of the amendment compelling.

Amendment No. 458 would increase the hurdle for proving that misuse of information unavailable to the rest of the market was abusive. That would not be a helpful change. The current test is that the behaviour has to be based on information not generally available, but which a regular market user would consider relevant in deciding the terms on which transactions should be effected.

The phrase "based on" is a high test already. The words "significantly influenced by" would make the test too stringent. If I have privileged information that a company is about to announce far greater than expected profits, is my decision to purchase the shares "significantly influenced" by the privileged information? It would certainly be possible to mount an argument that it was not, and that I thought that the company was a good bet anyway. It would be hard to prove otherwise.

We discussed similar cases in Committee. The amendment could significantly weaken the market abuse regime. That is not to say that "based on" is a low threshold; it is not. It means that the behaviour has to be based on information.

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Let us consider amendment No. 459. It is sometimes difficult to know when to raise some issues. I shall begin by commenting on the remarks of the hon. Member for Bury St. Edmunds about Lord Hobhouse and the code of conduct. The hon. Gentleman quoted a section of Lord Hobhouse's remarks, which were also quoted by the right hon. Member for Wells (Mr. Heathcoat-Amory) in Committee. I shall not quote them again, because they will already be on the record. As my hon. Friend the Member for Bexleyheath and Crayford (Mr. Beard) said in response to the debate in Committee, the Burns committee had two anxieties about the original drafting of clause 95. We are not considering the original clause on Report. The Burns committee believed that the drafting contained a danger. Its first anxiety was about the European convention on human rights. The revised clause tackles that. The hon. Member for Bury St. Edmunds said that we should consider further anxieties about it.

The hon. Gentleman also referred to market participants. We considered whether it was possible to define market participants in clause 95(1)(c). As I said in Committee, we discussed that not only with the FSA but with the practitioner group, and a group of exchange representatives, which was established to review the code. It became clear that such an approach would not be fruitful. We want to deter many types of abusive behaviour, and it would not make sense to try to limit the provision's scope by including definitions in subsection (1)(c). They would not be meaningful or practical.

Amendment No. 460 would reverse a change that we made in Committee. We made the change to focus on the terms of the transaction, not the decision about whether to enter into the transactions. Amendment No. 461 would make consequent drafting changes. I do not want to address them, except in relation to amendment No. 462, which would replace supply of, or demand for with "market in". I am not sure what we would gain from that change. Despite the attempts of the hon. Member for Bury St. Edmunds to explain it, I did not understand how the amendment would help.

I shall comment on the later amendments. If hon. Members want to revert to the earlier amendments, I shall be happy to deal with their points. Several hon. Members spoke to amendment No. 471. Clause 96 requires the FSA to produce a code of market conduct. Clause 97(1) provides that when the code states that behaviour is not market abuse, a person who engages in that behaviour is not engaging in market abuse. The clauses therefore provides a complete defence and the safe harbour that hon. Members seek.

Clause 97(2) provides that, in other circumstances, when people do not comply with the code, or their behaviour is not covered by it, the code may be relied on so far as it indicates whether or not that behaviour is abusive. That applies only when the code is in force. It would be wrong to be able to apply it retrospectively.

In Committee, we discussed the highway code and the offence of driving without due care and attention. Like the highway code, the FSA code will carry evidential weight. That will provide for greater certainty in the regime, which will help the regulator and market users. I am surprised that Conservative Members want to remove it. If it did not exist, the FSA could give less weight to the code. That is not a desirable consequence.

I come now to the amendments to clauses 344 and 345. Clause 344 grants the court the powers to order, on the FSA' s application, that a person who has engaged in market abuse and made a profit or caused others to make a loss should make a restitution. The amendments would change the clauses so that, in assessing the amount of restitution, the court or the FSA should have regard not only to the level of the profits or losses but the extent to which the market abuse was deliberate or reckless". I cannot accept that. In formulating our policy on market abuse, we made it clear that it should cover not only deliberately or recklessly abusive behaviour, but negligent behaviour. There is a good reason for that. The damaging effects of abuse depend not on the state of the perpetrator's mind, but on the impact on markets and consumers.

As I said earlier, we do not claim that intention or recklessness are irrelevant, but there are degrees of culpability. The fact that someone may have deliberately or recklessly engaged in abuse is relevant. Clause 99 deals with the penalties that can be imposed for abuse, and requires the FSA to take those factors into account in formulating its policy on the amount of the penalty.

Restitution is different. A restitution order is intended to restore any loss that might have been incurred by others as a result of the abuser's action. The position is the same as that for breaches of FSA rules that lead to a loss for consumers. Failure to observe a rule, which results in a loss to consumers, might not be due to the recklessness of an authorised firm. However, it would be wrong if consumers could not get their money back in such circumstances. That is a fundamental principle of restitution.

The hon. Member for Arundel and South Downs (Mr. Flight) asked a general question about whether the Government had completed their amendments on market abuse, or whether more would be tabled in another place. We have no plans to table further amendments, but I cannot put my hand on my heart and swear that no more will be tabled, because we are considering a highly technical subject.

Photo of Jim Cousins Jim Cousins Labour, Newcastle upon Tyne Central

I have followed my hon. Friend's arguments as closely as I can, and I have been impressed not only by her clarity and moderation but by her robustness on behalf of consumer interests. She has taken a reasonably clear position with regard to another place. I want to reinforce her determination to ensure that her stand on behalf of consumers will be defended not only in the Chamber but in another place. I strongly endorse her position.

Photo of Miss Melanie Johnson Miss Melanie Johnson Economic Secretary, HM Treasury

I thank my hon. Friend for his understanding and support for our position and the modifications that we have made. I believe, as does my hon. Friend, that we have moved far enough to ensure that we are proposing a regime that will operate fairly on behalf of those who may fall into a category of committing market abuse. We have defined that properly and rightly. Any further amendments would be made only as a result of technical changes, not changes in the Government's position. We have got the balance right.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

The House will be pleased to know that I shall not grind through the case for our amendments again, as it was ably put by my hon. Friends the Members for Arundel and South Downs (Mr. Flight) and for Bury St. Edmunds (Mr. Ruffley). They set out the arguments for a modest package that is largely in line with the requirements of the Law Society. Those arguments should be taken seriously by the Government as these provisions are most important, if only because they could affect everybody, not only the regulated community. Many of the other disciplinary powers relate to comparatively few professionals who form only a small proportion of the population even though they number many thousands, but market abuse could be committed by anyone who engaged in market activity and these measures could catch unintentionally people who have only an association with a market.

The Government have tried to limit the provisions and I again concede that the proposal before us is much better than the one they started with, but further certainty is required. It is a basic requirement of justice that people should know in advance what behaviour is likely to be caught by a Bill and whether they would be subject to either the criminal law or civil law sanctions. That was at the root of many of the objections made by witnesses to the Burns committee. My hon. Friend the Member for Bury St. Edmunds quoted Lord Hobhouse and, although the Minister came back to describe how the Bill had been altered since, many of the misgivings expressed last year are still valid.

Our amendment would import greater clarity and certainty to the Bill. As the hon. Member for Newcastle upon Tyne, Central (Mr. Cousins) said, the protection of consumers is a perfectly valid objective for the market abuse provisions—indeed, that is one of the Bill's main aims—but the consumer interest will not be well protected if they are unworkable in any respect. If they fall foul of the courts or, worse, are tripped up by an adverse ruling at the European Court of Human Rights, the whole industry will suffer through lack of effective regulation. The consumer interest could also be jeopardised so it is important that the modifications are adequate.

The Government have introduced provision for subsidised legal assistance when people are accused of such crimes and misdemeanours. It is important to recognise that those matters have aspects of the criminal law about them and that the defence that must be available must therefore measure up to criminal standards. That cannot be regarded as simply a matter for the civil law.

I was slightly worried by the Minister's comments on the code of conduct. It is an important indicator of what might or might not be market abusive, but no substitute for clarity and certainty in the primary legislation. As I have said before, people will go to the primary legislation to find out where they stand in relation to the authority and the law and referring them to a voluminous code of conduct as a safe or partially safe harbour—if they have time to read it—will not entirely meet requirements.

7.15 pm

I was also a little worried by the Minister's comments on the fact that unintended abuse would still be caught. I understand what lies behind them, but it is dangerous to propose that we should rely entirely on the effect of an action and disregard the intention. She explained that the degree of intention in the market abuse would have to be taken into account in settling penalties, but I cannot help drawing the House's attention to the contrast between the treatment of people accused of market abuse and the protection given to the FSA when it engages in wrong behaviour unintentionally.

The Government have been careful to ensure that the authority is not liable for unintended wrong behaviour when, for example, it acts negligently or even recklessly. They have erected a series of protections for the authority that are not available to the public or those accused of market abuse and that asymmetry—this is not the only example of it—causes some disquiet.

Photo of Mr Nigel Beard Mr Nigel Beard Labour, Bexleyheath and Crayford

Proof of intent has been debated several times and is being covered again now. Several cases of market abuse were notable because they were difficult to prove and people got away with it. Would not it be extremely difficult to prove market abuse if intent were introduced as the basis of proof and would not an awful lot of people still get away with it? The Bill eases the process of prosecution so that those who should be prosecuted and found guilty will be found guilty.

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

The hon. Gentleman makes the big claim that guilty people have got away with it.

I am not sure that I necessarily agree with that, but I agree that we want the regulations to be effective. The villains, crooks and thieves have to be brought to book and rigging a market is a form of fraud or theft, but my point that the proposal could be counter-productive unless the Government get it right remains valid. People could get away with genuine market rigging and market abuse because the Government have not listened to outside legal interests that are genuinely trying to improve the Bill. The Law Society falls into that category. It is certainly not on the side of the crooks; it is a comparatively disinterested trade body, if I may describe it as such, that is trying to make the Bill more effective.

Photo of Liz Blackman Liz Blackman Labour, Erewash

How else can market abuse be evidenced, other than in its effect?

Photo of David Heathcoat-Amory David Heathcoat-Amory Conservative, Wells

I shall not go through the case for our amendments again, but I refer the hon. Lady to the arguments of my hon. Friend the Member for Arundel and South Downs, who proposed a modest amendment to tighten the provisions and to place greater emphasis on the concept of intent. If we do not do so, we could violate a fundamental principle of justice. Although I recognise the force of the Minister's arguments, I am nevertheless disturbed at the extent to which they are beginning to rely more on the effect of behaviour rather than intent in defining market abuse. Our amendment, which would not have completely removed the concept of unintended abuse, would have achieved an improvement.

The Law Society has advanced those concerns, and suggestions for dealing with them. We do not intend to press any of these amendments to a Division at present. In her response, the Economic Secretary left the door very slightly ajar, so there may be an opportunity to return to these matters in the other place to get a regime to conquer market abuse that is effective without doing too much damage to the traditional principles of British justice.

Photo of Mr Howard Flight Mr Howard Flight Conservative, Arundel and South Downs

In the light of my right hon. Friend's comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.