Lord Grabiner: My Lords, for good reason, a very large amount of parliamentary time has been devoted to this Bill, as the noble Lord, Lord Newby, mentioned. The Bill is designed to ensure that the financial services industry in this country is properly regulated by the FSA. The FSA is to be the central building block of the new regime, and there is agreement on all sides that that is the right approach. The...
Lord Grabiner: My Lords, the resolution which is proposed by the noble Lord, Lord Rees-Mogg, reflects the piece that he wrote in The Times on 10th April. I want to refer to that article in the course of my remarks. There are two limbs to the resolution. The primary limb is to the effect that the House asserts its responsibility for the conduct of its own affairs. This is an uncontroversial proposition....
Lord Grabiner: My Lords, I certainly gained the impression from the noble Lord's closing remarks that he took the view that the matter should be left entirely between his conscience and the views of other Members of the House.
Lord Grabiner: My Lords, I shall read the observations with care tomorrow. I was commenting upon the closing remarks just before the noble Lord sat down. I believe that there is no point in irritation in these matters. In his piece in The Times, the noble Lord, Lord Rees-Mogg, went on to say: "The question to be decided now is a simple one: should the House of Lords refer the future of its discipline to an...
Lord Grabiner: My Lords, I suspect that, for example, one is not entitled to vote in a matter which affects one's own interest.
Lord Grabiner: I entirely agree with what the noble Lord says. The point is that the amendment would make the position too easy; and one would simply invite litigation as an entirely unnecessary exercise.
Lord Grabiner: Before the noble Lord sits down, I am delighted that those words struck home!
Lord Grabiner: Perhaps I may comment on the fasciculus of amendments tabled by the noble Lord, Lord Kingsland, which are conveniently gathered together under Clause 159, Amendments Nos. 234YD to 234YF, and under Clause 161, Amendment No. 234YG. The import of the proposed amendments is essentially to delete the expression, "circumstances suggesting", and substitute, "reasonable grounds for suspecting". The...
Lord Grabiner: There will be no charge!
Lord Grabiner: I should disclose a professional interest in some of the questions that have been raised by this proposed amendment. Having said that, I wish to comment on the drafting of the amendment rather than on its underlying merit. Perhaps I may say only that I certainly agree that the noble Lord, Lord Joffe, has identified an area of real concern here. So far as subsection (a) is concerned, on the...
Lord Grabiner: I am grateful to the noble Lord for giving way. I suggest that in the case, for example, of baby syndicates, had the facts had been known at the time, everyone would have appreciated that they represented a grossly improper piece of activity.
Lord Grabiner: Perhaps I may put forward a suggestion which is not consistent with a point made by a number of noble Lords. Clause 109(1)(c) is drafted in entirely objective terms; it is not subjective at all. I emphasise the words in the first line of page 51, which states: "which is likely to be regarded by a regular user". That does not mean the person who is, so to speak, being charged with market abuse...
Lord Grabiner: Perhaps I may say that my noble friend Lord Lipsey is to be complimented on his persistence in this matter. This amendment identifies a very vulnerable group in society. To omit regulation in relation to this group would send out all the wrong signals. I do not believe that it is an exaggeration to say that these are potentially shark-infested waters, but with regulation it is probable that...
Lord Grabiner: The thrust of the proposed amendments is that although the claimant can sue for damages if he is the victim of bad faith behaviour and infringements of the Human Rights Act, and although in addition he is free to sue for judicial review, those remedies are insufficient. It is said that claimants should, in addition, be allowed to sue variously for negligence and recklessness, and that on that...
Lord Grabiner: That would depend on who was the editor of the particular volume, so I should like to reserve my position. "Recklessness" is a very elusive word. Without wearying noble Lords with the detail, it has, first, given rise to enormous difficulty in the criminal law. Secondly, in the context of the civil law, it is usually found in discussion about what is meant by fraudulent, reckless or deceitful...
Lord Grabiner: I do not know whether all noble Lords have had access to a paper dated 2nd March issued by the FSA. I am entitled to assume that it was not sent only to me because it states that copies have been distributed to all noble Lords who spoke in the debate on Second Reading. What the document says in terms on the point before us is that, if the FSA decides in any particular case to decline to meet...
Lord Grabiner: Perhaps I may add, first, in response to the question of the noble Lord, Lord Elton, that the opening paragraph of the document states that, "This paper summarises the arrangements which the FSA envisages maintaining for the investigation of complaints against itself". Secondly, it also deals with the point raised by the noble Lord, Lord Kingsland, on the question of ex gratia payments and...
Lord Grabiner: There are those who subscribe to the view that there is no such thing as a free lunch. I should, perhaps, disclose the fact that I was entertained to lunch by the FSA in February. As far as I was concerned, it was a free lunch. This is a classic debate about form versus substance. I believe that substance is invariably the more important of the two. In relation to the question of form, I make...
Lord Grabiner: I entirely agree, although why I should be picked on as the target for that point I do not know. I agree with the noble Lord and I shall refrain from mentioning the gentleman's name again. The non-executive committee will have wide ranging statutory functions and duties which are also provided for in the first schedule. These arrangements are novel and substantial. As I said, they render the...
Lord Grabiner: One thing I have learnt over many years as a lawyer is never to speculate over what was in the mind of the draftsman of a document. He probably would not know the answer himself. However, I suggest that the language of the schedule is sufficiently flexible to permit the structure which, in effect, these amendments are seeking. Nothing in the schedule would inhibit or prevent that structure...
