Homes Bill

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Mr. Waterson: The amendment having been fairly narrow, I wish to debate just two issues in the stand part debate. One is short and technical. The other is longer, and is basically a whinge. The first point, raised by the Law Society, was whether the Bill would apply where a property was bought with vacant possession but with the express purpose of letting to tenants. I assume that I have to qualify that question by saying that we are not talking about a right-to-buy case, for which, as the Minister explained, there is a different set of rules.

The whinge, which is slightly longer, relates to a point that I have made before and I raise it now rather than make a separate point of order. Clause 5 is the first of several—in company with clauses 7, 8 and 31—in which the Minister proposes to take powers to enable his right hon. Friend the Secretary of State to make regulations. On 10 January, I wrote to the Minister asking whether draft regulations would be available for the Committee stage. The Minister courteously responded on 15 January and sent copies, I think, to all members of the Committee. The letter was long and detailed and definitely courteous, but the basic answer was no.

A more outgoing letter followed on 16 January, enclosing a helpful note prepared by the Department about the ambit of the likely regulations. With respect, that note, while helpful, raises more questions than it answers. I will not list them in detail but, since the letter was despatched, we have discovered other bits and pieces that will need to be addressed. I think that the Minister conceded in one of our debates that the question of derelict properties might have to be considered in regulations. There is also the vexed question of friends and family and so on, which I gather is going to be dealt with.

Mr. Clifton-Brown: On a point of order, Mr. Gale. I return to the point of order that I made in a previous sitting. I have just seen the Minister's Parliamentary Private Secretary communicate with the lady in the red sequinned top. Your co-Chairman ruled strictly that that was out of order. I ask you again whether it is in order to communicate with that lady and whether it is in order for that lady to sit on the Press Bench.

The Chairman: My co-Chairman has ruled on that. As I understand it, provided that the Press Bench is not occupied by members of the press, it may be occupied by others. I have since received remonstrations by some members of the press who regard that as a hard-fought-for privilege. While we do not propose to raise the matter, the Press Gallery may wish to raise it with the House authorities.

So far as communication is concerned, the point of order gives me an opportunity to go slightly wider than the hon. Gentleman's question. As you know, I have always deprecated private conversations or communication in Committee Rooms. There is plenty of space on the Green Benches outside. If people on the Front or Back Benches wish to have private conversations, then, out of courtesy to the Committee and the Chair, they should go outside to do so.

Mr. Waterson: Thank you, Mr. Gale. I was in the middle of saying that issues have arisen since the letter I mentioned was written. I dare say that others will arise as debates develop and that those, too, will be encompassed in regulations. I appreciate that it is not always practically possible for Committees to have draft regulations beforehand, but sometimes it is. Clause 5 is a perfect illustration of the type of clause under which, should the Bill become law, substantial regulations will probably be made. We hope and expect that the points we raise will inform the drafting of regulations, but I can only reiterate that the Opposition, the Liberal Democrats and even Government Back Benchers are seriously hampered if the likely contents of regulations remain unseen by us.

All we can do, despite the general indication given to us of some of the matters to be covered in regulations, is hope and expect that the Minister and his officials will take some note of the points that we raise. They are not frivolous and are often practical, and they have been brought to our attention by professional bodies and others. That is my whinge.

Mr. Raynsford: The hon. Member for Eastbourne raised two issues. The first was a technical point about properties bought with vacant possession but with the express purpose of letting. Under the Bill, a property put on the market with vacant possession will be subject to a seller's pack, irrespective of the intended usage.

The hon. Gentleman's second point was about regulations. I repeat that we want to take full account of the views expressed in the House, in Committee and in another place. We want to ensure that any detail that cannot reasonably be put in the Bill now, but that will be necessary to guide the implementation of the scheme, will be embodied in regulations, which should be practical, effective and easy to interpret. We have already debated—on Tuesday and this morning—some of the borderline definitional issues that are difficult to interpret.

3.45 pm

It is important to produce effective guidance on regulations, especially in respect of exemptions. We have not yet committed ourselves to exemptions and we are aware of the disadvantages. The hon. Member for Cotswold rightly pointed to the potential danger of stigmatising low-value properties through low-value exemptions. Equally, however, the absence of an exemption might inhibit the market is some low-value areas. As I said, we intend to pay attention to all the views expressed in Committee, in the House and in another place. We shall also work with professional bodies such as the National Association of Estate Agents and others, so that the regulations will be well informed and produce the requisite effect.

Mr. Clifton-Brown: The Under-Secretary has already explained that an introductory agent will have to produce a seller's pack. If one person is selling the house to another, unconnected person—not a friend or relative—and both parties use agents, would the vendor's agent have to produce a pack?

Mr. Raynsford: We are once again getting into complex and technical territory. It is important to deal with the complexities, which is precisely why we want further opportunity to reflect on them before making binding commitments. My hon. Friend the Under-Secretary has already said that he would reflect further to check that the answer he gave was correct.

Our concern is that anyone marketing a property—which may not be the case in the hon. Gentleman's example—must be subject to the seller's pack procedure. Although parts of the industry may deplore it, under some agreements several agencies are involved in the same sale. In those circumstances, it would be absurd if only one agent had to produce a pack and the others could sell without it. Agents involved in the marketing of properties will therefore be subject to the provisions.

In certain circumstances, marketing of a property may not be relevant—an agent could be putting two people together and acting on behalf of a potential buyer—and the pack provisions might not apply. In common with my hon. Friend the Under-Secretary, I want to reflect further and I undertake to write to the hon. Gentleman about the matter.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6Defences

Mr. Waterson: I beg to move amendment No. 41, in page 4, line 30, leave out subsection (2).

The Chairman: With this we may take the following amendments:

No. 4, in page 4, line 39, leave out subsection (3).

No. 18, in page 5, line 2, leave out from `property;' to end of line 4.

No. 42, in page 5, line 3, leave out paragraph (c) and insert—

`( ) was a person to whom the seller had indicated he was not prepared to sell the property.'.

Government amendment No. 55.

Mr. Waterson: We now move on the curious clause entitled ``Defences'', which opens up a wealth of curious anomalies and contradictions. Amendment No. 41 is designed to eliminate the defence of a seller who believed that the person marketing the property had a seller's pack. This, too, is a probing amendment, but it raises some curious potential problems and anomalies. I am particularly indebted to the National Association of Estate Agents, which has flagged up its concerns.

The association posits a possible case in which the seller instructs an agent who tells him or her that making up the seller's pack will take a few days. Three or four days later, the seller could decide to advertise the property on the internet, or possibly even by going to the pub and standing on a bar stool. He does not bother to make up a seller's pack on the grounds that a few days have passed and it is reasonable to assume that the agent has put together a pack by then.

If the property is then sold privately—either on the internet or to a buddy at the pub—the fact that the agent will have had to take the time and trouble to put together a pack will provide a defence against criminal prosecution for the seller without providing any commensurate benefit for the agent. While making up the pack, the latter could not market the property and therefore, I assume, lost any hope of commission, whereas the vendor's apparently reasonable belief that the pack was then in existence enabled him or her to market the property privately without penalty. I would be interested to hear the Minister's response to that conundrum.

Amendment No. 4 would leave out subsection (3), which allows the defence of not giving the seller's pack to someone who does not appear likely to be a buyer or someone to whom the seller was likely to sell the property. From a legal point of view, it is almost impossible to envisage how anyone could fail to get in under that defence. A short while ago, we discussed the Madonna situation. I think that I am right in saying that the Minister said that subsection (3) would bite in that case, because a seller could take the view that they would not sell to certain types of people. The Minister rather delicately managed to avoid defining those people, but I assume that he meant poor people, who would not be covered by any anti-discrimination legislation.

We need to have a pretty general debate about the Minister's view of the position on anti-discrimination legislation. To take another extreme example, I assume that if someone decided that they would not sell to people of a particular colour, they would clearly be in breach of other legislation. However, the legislation before us would provide a defence. That is a curious situation, and if the Minister does not mind, I should like him to take us carefully through his reasoning. Hon. Members on both sides of the Committee would probably like to know the answer.

Our other objection to the provision is simply that it is very silly. Presumably, almost anyone could say after the event that he or she would not have sold to the jilted buyer, who is likely to be the person who belled the cat and informed on the seller to the trading standards people, thereby causing the prosecution. It would be easy to make a case—particularly if we are taking about criminal, not civil, burdens of proof—and to say as a defence, ``Oh well, I wouldn't have sold to that sort of person anyway.'' I would be interested to hear whether there is any legislation anywhere in this country with a similar provision and, if so, whether it works. I cannot imagine that there is. The thrust of the Liberal Democrat amendment, No. 18, is similar to ours.

Amendment No. 42 would take out paragraph (c) and insert

was a person to whom the seller had indicated he was not prepared to sell the property.

That would have the effect of replacing the present vague formulation—a person to whom the seller was unlikely to sell—with a requirement that the seller must have indicated that he would not sell to a particular person before the pack could be refused. I am trying to help the Government, not to mention trading standards officers across the country. If anyone is ever going to mount a case under those criminal sanctions, our proposal would give them a much less steep mountain to climb than that created by the legislation drafted in the Minister's Department.

The National Association of Estate Agents believes that clause 6(3) is very imprecise, and we agree. It says:

As it stands, it is so wide as apparently to give legislative backing to any sellers or agents prepared to discriminate against prospective purchasers on the grounds of their race, which would then be a defence to their claim. We believe that our drafting in these amendments would significantly tighten this subsection.

We think that we are proposing improvements that the Government ought to adopt. If they are unhappy with the detail, we shall be happy to withdraw the amendment on the basis that the Government will improve on them. As matters stand, the defences in the Bill are almost risible. The Bill refers to someone

not being genuinely interested in buying a property of a general description.

What on earth does that mean? How can anyone prove or disprove such a vague concept? The same applies to the other category—

not the sort of person to whom the seller was likely to be prepared to sell the property.

In our experience, a seller is prepared to sell the property to anyone who will pay the price that the seller thinks appropriate, no matter what else the seller may think about the buyer. That is commercial reality. We think that the Bill's defences are misguided. We are saying, not that we should limit the defences, but that they should be more sensible and less likely to bring the law in general into disrepute.

 

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Prepared 18 January 2001