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Banking Bill

My Lords, I do not have the slightest doubt that the noble Lord, Lord Goodlad, was aware of that point. So am I, of course; that is why I am battling as best I can to persuade him to withdraw his amendment. On the points that the noble Lord, Lord Lester, raises about the Strasbourg position, I am hesitant to enter into a debate with him at the Dispatch Box on those issues, for all the reasons we discussed earlier, but the tests laid down by the Strasbourg court are relevant only to the use of powers that interfere with convention rights. The Government cannot make secondary legislation that is incompatible with such rights; such legislation would of course be unlawful. However, my example related to relieving a regulatory penalty triggered by a transfer. The question of ECHR compatibility would not arise in lifting a penalty, but we would need the capacity for a retrospective decision on that in circumstances where, as I indicated earlier, the third party might be subject to a penalty when he could not have anticipated the nature of the offence. Even more important, with regard to the noble Lord, Lord Pannick, we are seeking to envisage that which we cannot predict with great accuracy and give illustrations, and seeking to predict that the deal may hang on the legal certainty of what has been agreed. If there were failures with regard to that legal certainty because of a drafting error, a mistake, we would need to keep that deal in place by correcting the position. That is why the Government are committed to Amendment 22, which is not conjured out of thin air but is a response to the real concerns that were put forward initially by the Constitution Committee, although they were voiced early on with regard to the Bill. They were certainly voiced at Second Reading, we had intensive discussions in Committee and we had even more intensive discussions on Report, when I made a speech that was so lengthy that I was ashamed of it. I am in great danger of being in that position today so I want to encourage noble Lords by saying that I am nearly at the end. However, my noble and learned friend Lord Morris pressed me to give an example so I am going to have a shot at that as well. One example that we have exists in tax law. In particular, a retrospective power can be used when it is expedient to make changes in respect of national insurance contributions under sections of the 2006 Act. I mentioned that on Report. I recognise that this is a very different context. The House must decide whether this use of this power is justified, which is what I am seeking to do in the particular circumstances of the Bill. We all recognise that the Bill is trying to deal with highly particular circumstances in a very important part of our banking and financial system and indeed of the welfare of the nation. We are making it clear with our amendment that we are not establishing a precedent for retrospection—we are setting out that it is in the public interest to avoid it—but that there are clearly limited circumstances where we consider it to be necessary. I emphasise that this formulation has been arrived at after very serious consideration of the concerns of noble Lords. All noble Lords in the Chamber will appreciate that, when we had provided enough chairs for our meeting on Thursday in the room to which the noble Lord, Lord Goodlad, referred, we had the benefit not only of his representation but also with great accuracy, those of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Morris. So it is not as though we were not fully aware of their concerns and anxieties. This is the best that we can do in meeting those anxieties. I have no more to add. I do not know whether it is possible that there could be another formulation. However, I hope that noble Lords will appreciate that the Government have done their very best to meet the carefully articulated and very real concerns of noble Lords. That is why I shall press the noble Lord, Lord Goodlad, to withdraw his amendment and, in due course, I shall move government Amendment 22. The House may rest assured that government Amendments 23 and 24 are technical. In our debates, I have repeatedly referred to using Clause 75 to correct mistakes made in transfer orders. I said that the Government, at times, make errors and when that happens we need to fix them. These technical amendments relate to a drafting error in this clause. As currently drafted, it does not allow provision to be made in relation to transfer orders and that is remedied by new government Amendments 23 and 24. I hope that the House will accept that mistake by the Government and our attempts to remedy it. I genuinely wish to put on record my thanks to the Constitution Committee, to its chair, to the noble Lord, Lord Goodlad, and to the noble Lords who supported that work. The Government have had to think about these issues with the greatest care, which I can assure the House they have done. I hope that the noble Lord, Lord Goodlad, will withdraw his amendments. Amendment 3 agreed.