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Banking Bill

Clause 17: Effect Amendment 36 36: Clause 17, page 8, line 29, leave out subsection (3) I shall also speak to Amendment 61. These are probing amendments to Clause 17, which deals with the effect of share transfer orders or instruments, and to Clause 34, which deals with the effect of property transfer instruments. We have no fundamental problem with the clauses but seek clarity on their extent. In each case the amendments would delete subsections (3) of the relevant clauses, which state: "““A transfer takes effect despite any restriction arising by virtue of contract or legislation or in any other way””." The subsections were debated in another place but I am not clear that there was an unambiguous meeting of minds during those exchanges, so I will have another go. The debate in the other place centred on the meaning of ““in any other way”” and the interaction between the subsections and European law and the ECHR. My honourable friend David Gauke argued that ““in any other way”” must mean common law because there was nothing else beyond contract and legislation. The Minister said that the Government did not want to get into any arguments about what subsection (3) might mean but gave no illustration of what ““in any other way”” might mean if it was not common law. Can the Minister today go any further than that, or does the extent of ““in any other way”” relate to common law? Will the Minister say whether the subsections override European law and the ECHR, or will any transfer remain subject to challenge if it is asserted that a transfer is in contravention of EU law or the convention? I think that in Committee in another place the Minister said that the Bill was compliant with both because it was proportionate and so on, but that has no bearing on whether the actions taken under the Bill will be immune from challenge under EU law or the convention. Will the Minister confirm that notwithstanding the wording of the subsections the Bill does not override EU law and convention rights? Some confusion has arisen because the Government have chosen to make an explicit reference to EU law in Clause 35, but have chosen not to do so in Clauses 17 and 34. I hark back to what my noble friend Lord Stewartby, who is no longer in his place, said earlier—that you always look for differences between different parts of a Bill and try to tease out whether the differences are intended to be substantial and convey meaning. It has been put to us by one of the major law firms that the refusal by the Government to universalise Clause 35—by referring to EU law—to the rest of the Bill is a recipe for legal doubt and uncertainty. I hope that the Minister will clarify that. Will the Minister also respond in terms of competition law? Do the Government intend that these subsections could override domestic competition law? We know that they have had to take special powers to allow the takeover of HBOS by Lloyds TSB, notwithstanding the objections of the Competition Commission. Do these subsections allow a sale to a private sector purchaser in defiance of competition law? Do they avoid the need for the Government to do what they had to do in the case of Lloyds TSB, which was effectively to rewrite competition law in those instances? The Minister will appreciate that the full meaning of these clauses may be important if transfers under this Bill are made in due course so it is important to have clarity of meaning. I hope that the Minister can enlighten the Committee. I beg to move.