§ Mr. FlightI beg to move amendment No. 206, in page 17, line 27, after "it", insert "after receiving representations".
§ Mr. Deputy SpeakerWith this it will be convenient to discuss Government amendments Nos. 91, 94, 95, 97 and 99 to 103.
§ Mr. FlightAs the Government will be aware, one of the problematic areas with regulation to date has been the 293 approval or turning down of applications to become authorised, and any dispute arising from that. Amendment No. 206 would simply require that the FSA should first receive representations from the relevant applicant before refusing an application. It is designed, in part, to save time and hassle with the complaints investigator which, I repeat, is one of the main areas in which complaints of FSA conduct has arisen.
The other amendments in the group are Government amendments. They seem to redraft clause 40, focusing the FSA's powers regarding cancelling permissions on protective as opposed to punitive measures, specifically on failing
to satisfy the threshold conditions",and failing to have carried on a registered activity for 12 months. However, we are not comfortable with those provisions described as generally protecting the interests of consumers or potential consumers in relation to a regulated activity. As we see it, that should be, and is, part of the threshold conditions, and would be better incorporated in the first ground just described. The provisions give the FSA carte blanche to invent a new ground to vary or cancel permission, using its powers under clause 40 in whatever way it sees fit. I cannot think that that is really the Government's intention.
§ Mr. TimmsThe Government's amendments in this group deal with the FSA's own-initiative power to vary or cancel an authorised person's permission under clause 40. Amendments Nos. 91, 94 and 95 redraft clause 40(1), focusing that power on protective measures, as opposed to the punitive measures provided for under part XIII. I think that that move would be generally welcomed.
The grounds for the FSA to take action under the clause to vary or cancel a part IV permission are to be limited to failing, or being likely to fail, to satisfy the threshold conditions, as case A in the text provides; failing to carry on a regulated activity during a period of 12 months, as case B provides; and protecting the interests of consumers or potential consumers in relation to regulated activity, as described in case C. The former grounds of contravening or being likely to contravene a requirement and recklessly or knowingly misleading the FSA, which both came under case B, are now omitted.
Clearly, these matters may inform the FSA's assessment of the extent to which the authorised person meets the threshold conditions or may give grounds for considering that the interest of consumers may be under threat. However, they will not be grounds in their own right for action under this clause. The purpose is to establish a clearer line between the grounds for varying permission and the grounds for taking disciplinary action under part XIII of the Bill. The remaining amendments are consequential or minor drafting amendments.
I listened to the explanation of amendment No. 206. I did not understand immediately whether the amendment's reference to "representations" meant representations from consumers or the applicant, but the hon. Member for Arundel and South Downs (Mr. Flight) made it clear that it refers to the applicant.
The Bill already provides for representations from the applicant—first, when he makes his application; secondly, if the authority proposes to refuse an application, clause 49 294 ensures that he will have an opportunity to make representations through the warning notice, decision notice mechanism in the usual way. I think that it would be quite a serious constraint if the FSA were not allowed to refuse an application simply because no representations had been forthcoming. I think that we would all agree that that is not right, but it could be implied by the amendment. There is a mechanism through the arrangements under clause 49, and I hope that the hon. Gentleman accepts that that is adequate and feels able, on that basis, to withdraw amendment No. 206.
§ Mr. FlightThere is a slight issue as to whether clause 49 needs the amendment to tie the two things together. I think that there is a debate as to whether it would be better if the FSA needed to have received representations before declining an applicant—it could save time and hassle. However, on the grounds that the main part of our intent is covered elsewhere, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 89, in page 17, line 31, at end insert—
( ) If, as a result of a variation of a Part IV permission under this section, there are no longer any regulated activities for which the authorised person concerned has permission, the Authority must, once it is satisfied that it is no longer necessary to keep the permission in force, cancel it.".No. 90, in page 17, line 32, after "permission" insert "under this section".—[Miss Melanie Johnson.]