The Chairman: Order. I have a vivid imagination, but, try as I might, I cannot link metric bananas with the sale of housing.
Mr. Loughton: The point is not as distant as you might have been led to believe, Mr. Gale. It is essential to the clause that the enforcement procedure is carried out by weights and measures staff. Those same staff are, as we speak, having their resources pressed to the limit by the pursuit of wrongdoers in the shape of purveyors of bananas and assorted loose fruit in imperial, rather than metric, measurements.
The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Chris Mullin): The regulation that the officers are enforcing, on whatever grounds, was introduced by the Government whom he supported.
Mr. Loughton: Yes, indeed. However, by pursuing such people the Government are failing to use common sense.
Mr. Clifton-Brown: Two wrongs do not make a right.
Mr. Loughton: As my hon. Friend says, two wrongs do not make a right.
Mr. Mullin: The hon. Gentleman should not pay any attention to his hon. Friend.
The Chairman: Order.
Mr. Loughton: Let me try another angle. The weights and measures staff who are hiding themselves in piles of bananas in greengrocers up and down the land are also having to deal with the problem of cowboy builders, which the Minister's scheme singularly, and abysmally, fails to address. Despite warnings from Conservative Members, building practitioners and those who look after the victims of cowboy buildersincluding an effective operation in my constituency called First Checkpoint, of which I am a trusteethe Minister went ahead with a scheme for a quality register mark for builders, but in the entire country two firms only have registered. Meanwhile, cowboy builders are let loose to carry out their cowboy activities. Again, they will have to be checked by overworked, under-resourced members of weights and measures departments.
A solicitor in my constituency commented on weights and measures staff enforcing the extra legislation:
There are inadequacies and variations in the weights and measures system, as last year's Audit Commission briefing on the best value agenda for trading standards services pointed out:
As laid out in the legislation, trading standards officers will have the discretion to decide action to be taken when a suspected offence is reported and investigated. They can give advice, issue a warning, offer a formal caution, serve a fixed-penalty notice or, ultimately, commence a prosecution in the magistrates court. Much additional training will be required to help trading standards officers decide which course of action to take, because they will have great discretion in interpreting how the breach of the regulations should be tackled. For example, they will have to work out who constitutes someone acting as an estate agent beyond the conventional estate agent working in an office. That relates to our earlier discussion about the man operating through the man in the pub.
There is also a problem with keeping up with the estate agency business; because estate agents do not have to be licensed, anybody can set up as one. There is a proper trade body called the National Association of Estate Agents which has a code of practice. It has 10,000 members, which is the majority, but not all, of the industry. Of course, they are wholly voluntary members, so adhere to the code on a voluntary basis. Only one third of estate agent firms in this country support the voluntary ombudsman for estate agents scheme, which has been in operation since 1990.
My point is that many estate agents fall outside the trade-body net, and even more fall outside the ombudsman net. The estate agents most likelyit is not inevitableto transgress the terms of the regulations will surely be those who are not members of official trade bodies or who are not prepared to sign up to ombudsman schemes. It will be much more difficult for hard-pressed trading standards officers to keep tabs on such people, particularly if they do not have obvious offices in the high street. Interestingly, the ombudsman for estate agents specifically is not able to deal with disputes over surveys and formal valuation, so that is a weakness in the system as it stands.
Let us take the example of the trading standards office in my constituencyone of three offices covering the county of West Sussex. West Sussex has eight constituencies and a population of just under 750,000. For the entire countyand I am told that we are relatively well provided forthere are 65 staff. Around half of them are involved in enforcement. Seven give advice, and they are the ones who tend to receive complaints at the sharp end and judge whether there is a case to hand over to enforcement officers or the legal department. West Sussex trading standards receive 16,000 complaints and inquiries a year which, as I said, tend to be filtered through the advice team.
The first problem concerns a general awareness that trading standards will have a role in the proposed provisions. Will members of the public automatically ring up trading standards if they are not satisfied with the seller's packs or the way in which a sale has taken place? They are not the obvious first port of call if something has gone wrong with a house sale. As I said earlier, West Sussex has good provision relative to other authorities. Many authorities have no advice department. That is particularly so in London weights and measures offices, and may be in the Minister's constituency in east London. Therefore, any complaints are referred purely on an inspection basis, often with spot checks from enforcement officers. Many of those departments are completely overwhelmed already.
It is interesting to look at the example of the working of the Property Misdescriptions Act 1991, which was mentioned this morning. As we heard earlier, the Act was introduced after lengthy consideration on rectifying glaring gaps in the previous Labour Government's legislation in 1979 and, before that, in 1968. From talking to trading standards officers, it seems that it has proved fiendishly difficult to secure prosecutions under the Act. Up to 1996, when a five-year review was heldand bearing in mind that there are currently 1.5 million property transactions a yearthere had been only 60 convictions. As it is difficult to get convictions under the Act, there is little case law. Typically, cases hinge on disputes over garden size and the nature of leasehold and freehold, for example.
It is almost impossible to secure a conviction for failure to reveal by an estate agent. Failure, either by the seller or the estate agent, to reveal certain defects which then become apparent after the sale has gone through is not unusual, but prosecuting it is highly difficult. Therefore, the experience of trading standards officers in pursuing house sale legislation in the form that has been on the statute book for almost 10 years is not good. Any trading standards officer will say that, despite their current resources, they are not able in practice properly to bring to bear the full requirements of the legislation.
There is a very interesting case from 1997 that went to the Court of Appeal: McCullagh v. Lane Fox and Partners. Lane Fox was instructed to sell a five-bedroom house in 0.48 of an acre of land for £850,000, but owing to a mistake by the agent in reading the measurements, the plot was recorded as 0.92 of an acrealmost double its actual size. The particulars included a standard disclaimer. Will the Minister to take up the point of whether standard disclaimers on estate agents seller's packs will have any bearing in the matter? Although the judge ruled that Lane Fox and Partners owed a duty of care to Mr. or Mrs. McCullagh in respect of the negligent mis-statement, he said that there had been no financial loss and therefore dismissed the action. That is just one example of how difficult it has proved for trading standards officers to bring convictions under the 1991 Act.
Opposition Members do not believe that, despite the exemptions on which the Government have sought to reassure us at various stages, not providing all the necessary component parts of a seller's pack, for whatever reason, should be a criminal offence. Earlier legislation deals with fraud , but the worst cases could be pursued under the Bill. There may be a case for fines, the threat of fines or penalties, but to make the offence criminal is to go over the top.
We believe that the provision is unworkable. The practice of using trading standards officers to enforce previous legislation connected with house sales has clearly proved unworkable. At present, trading standards offices are overworked. They are being asked to take on increasing amounts of work to impose the Government's will and are given precious few additional resources for that increased work. They are also having to undergo a harsh best value audit. Therefore, in the best interests of the Bill, the omission should not be deemed a criminal offence and weights and measures officers should not be required to enforce it. Related legislation has not worked over the past 10 years, so why should the Bill?
|©Parliamentary copyright 2001||Prepared 23 January 2001|