I beg to move amendment No. 253, in
clause 73, page 47, line 27, leave out
'as soon as reasonably practicable'
and insert 'within seven days'.
In useful exchanges on previous clauses, we established that the special procedure will be used sparingly—30 cases a year was cited by OPRA. In any event, I think that we can agree that it will not happen often; but when it does, it will have significant consequences. The Minister graphically described the obvious example—one that is not unfamiliar—of large sums of money being transferred out of a pension fund and the need for rapid action. In any event, the special procedure will be applied only in serious situations. It is therefore even more important that the compulsory review set out in clause 73 should happen quickly, as events may move fast.
We are talking about the special procedure, but the use of words like ''immediate'' and phrases such as ''immediate risk'' and ''warning notice'' may warn the villains that the regulator is on to them. Subsection (2) uses the phrase
''as soon as reasonably practical''.
That seems a bit feeble, which is why I propose instead the phrase ''within seven days''. Given the seriousness and urgency inherent in such situations, it is only right that all other issues be put to one side while they are dealt with urgently. Seven days seems appropriate in the circumstances.
We have already discussed the standard and special procedures. One of the vital safeguards for those directly affected by a function exercised under the special procedure is the compulsory review, and it is the review to which amendment No. 253 relates. As the hon. Gentleman explained, a compulsory review must be held
''as soon as reasonably practicable''.
The amendment seeks to change that to ''within seven days''.
We have already discussed the meaning of the phrase that the amendment seeks to omit; I have explained that it means exactly what it says. The purpose of the compulsory review is to allow those directly affected to make representations. If there is insufficient time for them to do so, the review will have little purpose. Allowing the review to take place as soon as reasonably practicable will ensure that a
balance can be struck between reviewing the decision as soon as possible and allowing directly affected parties sufficient time to make representations.
If the amendment were to be accepted, it would mean that those who wanted to take legal advice, or who wanted to obtain evidence to present to the compulsory review, would have less than seven days to so. In practice, they would be prevented from making full representations to the review.
I hope that the hon. Gentleman recognises that we share his objective—that the procedure should be brought into effect as speedily as possible—but that we need flexibility in order to ensure that all parties have an opportunity to use the protection built into the provision. I therefore ask him to withdraw the amendment.
The amendments would remove similar wording from clauses 73 and 77. It is a short and important point, but I hope that it is obvious. I can see the point of confirming, varying or revoking a determination. However, clause 73(3)(c) and clause 77(6)(c) would allow the substitution of a different determination or order. The cleanest and most appropriate thing to do would be to go back to the start and, ab initio, have a new application and reference and start from scratch, rather than substituting. To substitute a different determination would be a wide-ranging power. It is not appropriate to do that in what amounts to a review or appeal procedure.
As we are now clear, the determinations panel has a number of powers available to it at compulsory review stage. It may confirm, vary or revoke any decision, substitute a different decision, or deal with matters arising from the review as if those had arisen on the original determination.
Amendment No. 237 would remove the provision that on a review the determinations panel may substitute a different determination order, notice or direction. Amendment No. 242 would remove the provision that the tribunal can direct the regulator to substitute a different determination order, notice or direction. This provision will allow a different decision to be substituted when representations have been received, such as when a trustee is to be appointed, rather than a freezing order being imposed. However, safeguards are provided. Subsection (5) provides that should the decision of the review be to exercise a different regulatory function, that function cannot have immediate effect unless notice has been given to
directly affected parties and representations have been considered, or, under subsection (6), it is a function that can be exercised by special procedure and is necessary because there is an immediate risk to scheme members' benefits or assets. Previous Government amendments have added to these safeguards.
I hope that with that reassurance the hon. Gentleman feels able to withdraw his amendment.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 203, in
clause 73, page 48, line 14, at end insert—
'(7A) Where that determination is a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, the Regulator must not exercise the regulatory function—
(a) during the period within which the determination may be referred to the Tribunal (see section 77(1)), and
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of.
(7B) Subsection (7A) does not apply where—
(a) the regulatory function in question is a function listed in section 70(5) (functions which may be exercised immediately under the standard procedure), or
(b) the regulatory function in question is a function listed in section 71(4) (functions which may be exercised immediately under the special procedure) and the Regulator determines to exercise it immediately on the basis described in subsection (6).'.—[Mr. Pond.]
Clause 73, as amended, ordered to stand part of the Bill.