Mr. Waterson: I am grateful to the Minister, who has obviously done his homework since our previous sitting. We think that this involves the fundamental principle of whether the criminal law should be drawn into this. It is interesting to hear what punishments are available in New South Wales and to hear about other statutes in this country, but we hold the unshakeable viewand we are not alonethat these are matters of private contractual relations between three individuals where the nanny state should not intervene. With all due respect to the Minister, we are minded to press this to a Division.
Question put, That the amendment be made:
The Committee divided: Ayes 4, Noes 7.
Division No. 3]
Lord Commissioner to the Treasury (Mr. Robert Ainsworth): On a point of order, Mr. Gale. May I ask you to check that vote again?
The Chairman: In fact, the Ayes were 4 and the Noes were 7.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Waterson: I indicated earlier that, with your agreement, Mr. Gale, I wanted to initiate a short debate on clause 3. I want to make four points as expeditiously as I can.
We have already debated the issue of the responsible person having to have the pack
We think that that is an incredibly difficult piece of draftsmanship. I have reiterated the reasons for that more than once. The Minister has said that he will look at it again, and it would be helpful if he could give us the occasional bulletin on his progress.
Clause 3 (3) deals with the changes in the seller's pack. It is now common ground between the two sides of the Committee that the seller's pack could change with the passage of time. It is now conceded that, in the real world, seller's packs will not always be completely ready at the beginning of the marketing of a property. We think that that underlines the artificiality of these proposals in terms of the effect they will have on the market. People will produce seller's packs of their own with some basic documents, regardless of whether there is legislation. We think that there are real concerns about seller's packs not being ready. As my hon. Friend for East Worthing and Shoreham (Mr. Loughton) pointed out this morning, some pieces of paper remain elusive throughout any transaction.
We have just covered the issue of criminal sanctions and enforcement. I urge the Minister to have another meeting with his hon. Friend and Member for Upminster (Mr. Darvill). The hon. Member for Upminster, the phantom at the feast, is not a member of the Committee, but he made some detailed, constructive and critical comments on Second Reading. Having been a Whip myself, I can understand that that would not immediately suggest that he should be a member of the standing committee. There is a story of a former Tory Whip who, many years ago, decided not to put one of his colleagues on a Committee because he saw him leaving the Library, and, worse than that, he was clutching a hardback book. That was said to be his offence.
Mr. Love: It was only for show.
Mr. Waterson: I think it was ``Black Beauty'' or something like that. That was the reason he was given for not being on the Committee. I see that struck a chord with the Government Whip.
On a serious note, it is excellent that, in parallel with this Committee, the Minister is having meetings with the hon. Member for Upminster. It would have been interesting for us all to benefit from his detailed views.
Mr. Don Foster: Perhaps I can save time by asking whether the hon. Gentleman agrees that it might be helpful if the Minister were to prepare a briefing note on the arguments that have been made for the various alternatives by his hon. Friend the Member for Upminster and others, and the Government's reasons for rejecting them. That would aid the continuing debate and put some of these issues on the record. I hope that he might agree that it would be worth seeking the Minister's support for that proposal.
Mr. Waterson: That is an excellent suggestion from the hon. Member for BathI suppose, on the law of averages, it had to happen sooner or later.
This is a serious point. It is clear that the hon. Member for Upminster has a wealth of experience and knowledge on these matters. We know of at least one specific proposal, to which I referred earlier, which involves a system of registration instead of having the great mass of criminal sanctions and enforcement and having to rely on the hard-pressed trading standards officers. We could use the same mechanism as that used to ensure that stamp duty is paid. I do not believe that there is any evasion of stamp duty for that very reason. The hon. Member for Upminster and others, who did not make it onto the Committee, may have proposed other mechanisms and had other excellent ideas. Apparently, many hon. Members are keen to get on to part II; the hon. Member for Upminster would have been keen to debate part I properly. That is a shame, but it is not a matter for me. Even if we cannot have note of the meeting with the hon. Member for Upminster, it would be helpful for the Minister to give us some outline of what was discussed. The practical difficulties of that proposal are being floated not just by me or the hon. Member for Upminster but, by one of the relevant organisations in one of the briefings we have received. There may be good practical reasons why the proposal would not work, but if the shadow of the hon. Member for Upminster is hovering over our deliberations in that regard, it might be helpful to lay the ghost to rest.
My next point is what I refer to in my notes as the Madonna point. I remember reading some time ago that when the pop star MadonnaI think that it was herwas selling an expensive property in central London, the agent involved was charging people about £2,000 for the particulars of the property and to see around it. That is obviously a rare example, but it is not uncommon for a charge to be imposed for very upmarket properties whose owners, not unreasonably, do not want the world and his wife trooping around just to have a look. That is what happens on the last day of the boat show, which fills up with people who do not have the slightest intention of ever buying a boat.
That leads me to ``reasonable cost''. I could have tabled a probing amendment to remove those words. What is a reasonable cost? Will agents involved in such upmarket transactions be able to charge a high amount for the seller's pack? As I understand the clause, they are allowed to insist on payment in advance, and do not have to produce the packeven if they have to have it about their person 24 hours a dayuntil the money has been paid up front. That is a serious issue. Who is to define ``reasonable''? Many lawyers have waxed wealthy and successfully on defining that word in legislation and I do not want this Bill to be another instance of that.
Mr. Geoffrey Clifton-Brown (Cotswold): I shall be brief because we want to make progress. I would like to put on record my conversation with the Minister after this morning's sitting. Trading standards officers often act in a supporting role in a civil prosecution. For example, if someone goes into a shop and buys faulty goods, contravening the Sales of Goods Act 1979, the purchaser may complain to the trading standards officer that he has in some way been disadvantaged by the transaction. The trading standards officer will then investigate. He will not prosecute, but he will be prepared to produce an expert report to enable civil litigation to take place.
There is no good reason why that should not be the procedure in the Bill. The trading standards officer would investigate whether there had been breaches of the legislation and, if there had, he would report to the Stamp Office or the Land Registry that an offence had been committed, automatically triggering an excess penalty. That would be a civil matter that would be simple to undertake and would not delay the property transaction. The solicitors involved would simply be informed that the legislation had been breached but that it had been remedied and the correct information supplied.
The possibility would remain of a penalty being applied, but the transaction could still go through. The argument could then take place as to whether there had been a breach of the law. The Minister said that that procedure would cause property transactions to be slowed, but I do not believe that. I believe that if criminal sanctions are to be applied, property transactions will be slowed in any case.
I know that the Minister does not agree, but I want to put my view on the record. If criminal sanctions are to be applied in the event of a breach of the terms of this Bill, something serious must have occurredthere must be a serious defect in the seller's pack. If that is the case, I doubt that any solicitor would advise a purchaser to go ahead with the transaction until the litigation had been resolved. A criminal sanction would delay the transaction far more than the simple civil procedure than I propose. I want to get that on the record, Mr. Gale. I know the Minister does not agreehe is shaking his headbut at least others will now be able to see what I have said.
Mr. Raynsford: The debate has seen five main issues raised and one suggestion made by the hon. Member for Bath. I will try and deal with them in turn.
The first point made by the hon. Member for Eastbourne (Mr. Waterson) was an expression of concern about the provision that requires the seller or the seller's agent to have a seller's pack in his possession at all times. During debate on a previous amendment, I gave an undertaking that the Government would think further on the matter, as it was not our intention to create an unworkable requirement that might be interpreted over-zealously. I hope the hon. Gentleman will accept that is a genuine commitment. It is difficult to avoid amending the provision in a way that does not create a huge loophole, but I am hopeful that the great legal minds that advise us on legislation will come up with an appropriate solution that enables us to avoid that loophole while making the changes he wants.
The hon. Gentleman's second concern focused on circumstances in which it might not be possible to get all the documents together. In my view, the Bill represents a sensible and practical response to such circumstances. The normal requirement is that the seller's pack should be assembled in full and marketing can then begin. However, for cases in which, for good reasons, certain documents cannot be secured in a timely fashion and the whole process would be unreasonably delayed thereby, we have provided that seller's pack can be issued with the missing items indicated in the pack and provided as soon as they become available.
We had an interesting and useful debate about the kind of documents that would be involvedthe warranties and guarantees that owners recall having secured some time ago, but are found to have mysteriously disappeared when the time comes to trawl through the chest of drawers. That is a common occurrence and it is reasonable to make provision for such items not to be provided in the initial seller's pack, but to be provided at a later stage. That is entirely pragmatic and I do not accept the suggestion the provision is an indication that the system will not work properly.
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