In a letter sent to Lord Myners, financial services secretary to the Treasury, barristers Pump Court raise concerns that if the Financial Services Bill is rushed into law through the “wash-up” and fails to receive the full scrutiny of the House of Lords there could be “profound constitutional implications.”
The law firm focuses on clause 16 of the bill, which gives the FSA the power to impose a penalty on a person if that individual has “at any time” performed a controlled function without approval.
Anthony Speight QC points out the plain meaning of the phrase “at any time” is that the performance of the controlled function could have occurred before the bill reached the statute book – so the new rule would have retrospective force.
Mr Speight said: “We assume that is not intended. One of the fundamental aspects of the constitutional principle known as the rule of law is that new law ought to be promulgated prospectively and not retrospectively, so that citizens can know at the time of the relevant act or omission whether what they plan to do or not is lawful.”
Pump Court also raised concerns the power to impose such a penalty with very little support for the accused individual to challenge it.
Mr Speight said: “The FSA would be both the prosecutor and the judge of the question of whether the person has performed a controlled function without approval.
“The burden of proving to the FSA that the person did not known that he was performing a controlled function without approval will fall on the person. In addition, the person would not have access to legal aid.
“The knowing performance of a controlled function without approval should be a criminal offence. The person would then have the full protection of the criminal law and procedure and access to legal aid.”
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