Homes Bill

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Mr. Raynsford: I beg to move amendment No. 61, in page 3, line 27, at end insert—

    `(7A) Subsection (7) does not apply to anything provided at the request of a potential buyer under subsection (3)'.

We come to the first of the Government amendments. As the hon. Member for Eastbourne was somewhat churlish in the opening moments of this sitting by suggesting that it was unreasonable of us to table the amendments, I remind him that, on Tuesday morning, he said:

    Every Bill involves consequential and drafting amendments that are tabled by the Government, and we have no difficulty about that.—[Official Report, Standing Committee D, 16 January 2001; c. 6.]

I assure him that amendment No. 61 is a consequential and technical amendment that removes unnecessary duplication. It is the first of a small number of Government amendments; they are all technical, and they do not reflect any change in policy or substance.

In case the Committee would like further enlightenment about amendment No. 61, I shall explain that clause 3(7) seeks to ensure that if a person supplies something purporting to be a copy of the seller's pack to a potential buyer, the documents supplied are accurate copies. The duty imposed by the subsection also applies regardless as to whether the potential buyer asks for them or not. Clause 3(3) already provides for those duties in cases in which copies of documents are requested by potential buyers. The amendment therefore removes a provision that is an unnecessary duplication. I hope that all hon. Members will recognise that the amendment is helpful and simplifies the Bill.

Mr. Waterson: I have never claimed to be the sharpest tool in the box, but I did have difficulties with the amendment. I am relieved to see that I am not the only one. The note supplied to me by the Law Society begins

    God knows what they are trying to do with this one.

So I am not alone in finding the amendment opaque. However, out of my abiding respect for the Minister, going back many years, I shall accept his assurance—simply because I still do not understand what the amendment is supposed to do. With respect, perhaps if the Minister had spoken more slowly, it would have made a difference. I do not understand his explanation. Let the record show that I am entirely relying on the Minister's seller's pack, as it were. I reserve the right to sue him, or at least return to the issue, if it turns out that my confidence was misplaced.

Mr. Don Foster: I endorse every single word uttered by the hon. Member for Eastbourne with one notable exception, which is founded on the fact that there appears to be a secret deal between the Law Society and the hon. Gentleman, since I have not received a copy of the brief he mentions. Questions will be asked. As for the amendment, despite the Minister's explanation and having looked at the amendment again, I still do not understand it and will therefore have to take it on trust, in the same way as the hon. Member for Eastbourne has.

Amendment agreed to.

Mr. Waterson: I beg to move amendment No. 1, in page 3, line 28, leave out subsection (8).

Mr. Chairman: With this it will be convenient to take amendment No. 2, in clause 4, page 4, line 12, leave out subsection (5)

Mr. Waterson: In stark contrast to the previous amendment, amendments Nos. 1 and 2 are important. Amendment No. 1 seeks to remove clause 3(8). We shall return to the detail of enforcement and penalties later, but the subsection seeks to make it clear that a person to whom the clause applies—someone under an obligation as a responsible person to have a seller's pack in his possession—shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale if he fails to meet that obligation.

Before we go any further, it might be instructive to look at level 5. I have not practised as a criminal lawyer in recent years but, other offences punishable with the same level of fines include those under the Restriction of Offensive Weapons Act 1959 covering the manufacture, sale, lending or giving of a flick knife. It strikes me as bizarre that we are talking about a maximum penalty similar to that which applies to the manufacture or possession of a flick knife. I vaguely recall that that legislation was enacted in response to an epidemic of people carrying and using flick knifes. I do not think that the Minister, even at the height of his hyperbole, would suggest that we might face a similar breakdown in law and order in the conveyancing world, requiring that kind of draconian punishment.

We strongly oppose the imposition of criminal sanctions for breaches of the legislation. I start from my usual position, which is that we do not believe that any of the provisions should have the force of law. Sensible people will use a version of the seller's pack in certain circumstances, and if that is what they want to do, that is fine. We believe in the principle of caveat emptor. We would also strenuously argue that where ordinary people are going about their ordinary business and seeking to enter into free contractual relations, that is really a matter for the law of contract.

11 am

One of the proposals that we might discuss later was raised by the hon. Member for Upminster (Mr. Darvill) on Second Reading. He clearly has a great deal of knowledge and experience of the subject, which is no doubt why he is not a member of this Committee. He made the point that another possible enforcement mechanism might be that one cannot register a property one has bought unless one has complied with the provisions of the legislation. That has a neatness about it that might appeal to rational Ministers. It is comparable to the state rather neatly ensuring that people pay their stamp duty by requiring that they cannot register their property unless they have done so.

That is a neat way of dealing with a problem of enforcement, which does not involve the great panoply of criminal sanctions, or the forces of the trading standards officers. It would appear that those officers are not only to be required to bring prosecutions when complaints are made—presumably by disgruntled, would-be buyers—but will have a more proactive role in trawling through public houses and elsewhere to ensure that people are not subverting the provisions of the Bill, as well as making spot checks at the offices of estate agents to ensure that they have the seller's packs.

Mr. Don Foster: In view of the hon. Gentleman's remarks about what will have to happen to the work of the local trading standards officers, has he reflected further on the Minister's statement to the Committee that the average cost of the whole exercise to a given local authority is likely to be £5,000 a year?

Mr. Waterson: I share the hon. Gentleman's scepticism of that figure. It sounds like a suspiciously round figure. The amount will vary enormously. There will be some councils in low-demand, low-value areas—of which we will hear more—where there will be hardly any extra expenditure because hardly any buying and selling will be going on, and not many people will be prepared to invest in a seller's pack just to see if their property has any value. However, there will be other places, such as Westminster, where there will be a tremendous cost because there is a vigorous and active property market at the worst of times—the same would be true of Lambeth, for example. The Minister's figure is not helpful or defensible, and it does not represent the disproportionate costs for different local authorities around the country.

We, and bodies such as the Law Society, consider it abhorrent that ordinary, law-abiding people—particularly people who are not acting through agents, but are trying to sell their own properties—might be made criminals through no fault of their own. We have had endless debates about the fine distinctions that may have to be made in regulations concerning informal discussions, dealings with individuals and so on. It is no good the Ministers airily waving their arms around and saying, ``Nobody would bring a prosecution in such a circumstance, nobody would pursue that, and, if someone nipped out for a cup of coffee that would not amount to not having been in possession of a seller's pack.'' Those are not matters for the Committee, and they are certainly not matters for Ministers. Such matters will be adjudicated on in the first instance by the trading standards officers, who are hard-pressed, in short supply and have many other duties to perform. They will subsequently be adjudicated on by a court of law.

Why should a person be made a criminal for trying to sell his own house? Is there any other country in the developed world where one could be made a criminal for such a reason? We have heard a lot about Denmark and New South Wales, and it would be interesting to hear what sanctions, if any, operate there or in other jurisdictions where there is an equivalent to seller's packs. The creation of criminal offences is disproportionate to the circumstances that need to be dealt with. No Governments, whatever their colour, should create new criminal offences unless there is an overwhelming case for doing so.

I rely also on a point that has been made before—it has almost been mentioned enough for us to give it a letter, so we can refer to it simply as argument Z—that if seller's packs are so much to be commended and will make such a difference, people will adopt them out of enlightened self-interest. Buying and selling property is a private contractual matter between willing buyers and sellers, who reach a price and agree the terms through their lawyers, for the disposal of a piece of property. It has nothing to do with the state—particularly the nanny state.

Amendment No. 2 would delete the criminal offence of not handing a pack to a would-be buyer, subject to certain defences, under clause 4. We consider the criminal sanction an inappropriate reaction to such a breach. How could the seller be sure that a person was a potential buyer? Some strange defences arise, which I shall not deal with now, but judgment and the view that a person takes at the time must come into the matter. Criminal sanctions are disproportionate to the problem that the Bill is intended to tackle. The proposal for such sanctions in the Bill is perhaps the greatest of our concerns.

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