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Miss Johnson: I do not want to give too much complicated legal advice from the Dispatch Box for fear of coming up against the lawyers when I leave the Chamber. Obviously issues arise if someone buys something that they have not requested or set out to buy in the first place. That was cited in a number of examples. If people request a home visit for one product but are sold something else, they are also covered by the doorstep selling regulations.
Mr. Carmichael: I am listening to the Minister and wondering how anyone could possibly think that there is a problem, but we all know from our constituency experience and the experience of bodies such as the NCC that there is. I suggest that, rather than dealing with it through subordinate legislation such as that described by the Minister, it would be infinitely preferable to establish general broad principles capable of definition and enforcement by the courts, and that is what the Conservative amendments would do.
Miss Johnson: I am not trying to suggest that there are no problems, and I shall go on to make points which will, hopefully, help the hon. Gentleman. I was illustrating the fact there are practical difficulties in some of these cases. Many of the problems faced by consumers are already covered in consumer protection legislation, and the difficulties arise in awareness of the law, in enforcement and in the empowerment of the consumer to secure enforcement through the appropriate route.
I shall not take up the time of the House by going through all the examples given by the hon. Member for Eastbourne, but he mentioned the time-share directive, and asked whether time spent on a canal houseboat is covered. There are provisions covering such arrangements, and in further discussions with the European Commission we shall seek to extend the directive to time-shares of less than three years' duration and time on canal houseboats. Because many people spend their holidays abroad rather than in the UKmany in other EU member states or areas covered by EU legislationit is important that we look to the European dimension of all these matters.
Having said all that, it is important that we look again at the question of what we should do next. Policies for any new laws should be founded in fact and on a robust evidence base to ensure that they address issues of significant consumer detriment in a way that existing legislation does not.
It is important that new legislation should not create undue or unnecessary burdens on business, and I know that some hon. Members are concerned about that. For that reason, I have decided that the next step should be to invite key stakeholders from consumer groups, enforcers and business to a seminar with me in the summer. I want to use that occasion to look in more detail at the cases cited by consumer organisations in support of a general duty to trade fairly or not to trade unfairlythe very cases that hon. Members have raised in the House. Once I have a clearer picture of the problems, I shall consider what further action would be appropriate. At the moment, however, because many of the problems concern infringement and enforcement, we are in danger of simply legislating without giving consumers more effective recourse to the law.
I agree with hon. Members on both sides of the House that there are issues that need to be addressed. We agree that the consumer needs to be protected, and we share the same ends. However, I also agree with the hon. Members for Cities of London and Westminster and for Orkney and Shetland that the law will never catch up with the fraudster. That, I am afraid, is almost bound to be the case, but it is incumbent on the Government to do our very best to make sure that the law works as effectively as possible for consumers. There is already a great deal of consumer protection legislation, and if we can identify genuine loopholes, where problems exist that do not arise from enforcement, and tackle them separately, I will be happy to have further meetings with all the interested parties to see what steps would be most appropriate.
Mr. Deputy Speaker: If the hon. Gentleman wants to indicate whether he will press amendment No. 196 to a vote, he may do so, but a speech would not conform to the convention of the House. I ask him to understand that if one Member who has tabled an amendment seeks the leave of the House to speak, other Members may feel that they have the same entitlement.
Mr. Waterson: I am grateful to you, Mr. Deputy Speaker. I shall speak strictly on the basis you set out, but I thought it might be worth outlining my approach to the amendments, especially amendment No. 196, on which I said that I might seek to divide the House.
Our amendment is not a wrecking amendment, as the hon. Member for Hemel Hempstead (Mr. McWalter) claimed it was. It is a genuine attemptour secondto deal with a practical problem. Our aim is not to ban
The Minister was rather fatalistic. Rather like Stanley Baldwin, who said in the 1930s that the bomber would always get through, in her final remarks she seemed to suggest that the fraudster would always get away with it, no matter how much we tried.
Miss Melanie Johnson: The hon. Gentleman has gained a mistaken impression. As I think the hon. Members for Cities of London and Westminster (Mr. Field) and for Orkney and Shetland (Mr. Carmichael) would agree, although it is impossible to close for ever every possible avenue that fraudsters might find or invent for themselves, it is incumbent on the Government to give the consumer as much ready protection as possible. It is our intention to do that, and I believe that the hon. Member for Eastbourne (Mr. Waterson) shares that intention.
Mr. Waterson: Let me put it another way. This is not a situation in which the best should be the enemy of the good. If there are things the Minister can do that would cause an immediate improvement in the position of consumers, albeit without closing every conceivable loophole, those things should be welcomed and pressed forward with.
Mr. Carmichael: Does the hon. Gentleman agree with me that the best way to deal with future loopholesif I can put it like thatis to construct a framework that is based on principle? That principle can be applied to future cases, and the effect is simply to extend the principle. The alternative is a narrow, legalistic approach wherein the remedy precedes the right.
The Minister touched on the difficulties of defining fair and unfair, but I thought that I had explained where the concept of fairness had already appeared in legislation and had not caused any great difficulties. She talked about difficulties of definition and of practicality and enforcement, although she agreed that something should be done.
The Minister appears to think that the matter is more one of improving enforcement of existing legislationno one could disagree with her on the need for thatbut the key point is that many of the scams are simply outside the scope of existing legislation. It does not matter how much effort is put into enforcing existing legislation if the scams are outside it. I commend to her the report by Age Concern on the sale of assistive products, which documents a great many casesalmost invariably involving elderly ladieswhich arise almost daily.
Finally, the hon. Lady said that she sought to extend the time share directive. My point is that by the time that directive has been extended, the tricksters and fraudsters will be doing something else just as damaging to consumers under a different label.
Amendment proposed: No. 196, in page 147, line 26, at end add
'(2A) An act or omission or course of conduct falls within this subsection if it amounts to the abuse by the person in question ("the supplier") of his superior knowledge or bargaining strength so that he:
(a) unfairly induces consumers to enter into transactions which are not the result of free and informed decisions; or
(b) unfairly hinders consumers from enforcing rights under any consumer transaction.
(2B) In considering whether an act, omission or course of conduct amounts to an abuse under subsection 2A, the court shall take into account all the circumstances, including the nature of the goods or services in question, the nature and extent of any commitments undertaken by the consumers in question and any lack of good faith on the part of the supplier, and the court may have regard to:
(a) any representation made by the supplier, or failure to disclose information, which unreasonably prevents consumers from making adequate price or value comparisons between competing suppliers;
(b) any exploitation by the supplier of consumers' inability to make free and informed decisions, or to enforce rights under contracts, because of physical or mental infirmity, inability to understand the language of the transaction or other vulnerability;
(c) any failure by the supplier to comply with a consumer code of practice (as defined in section 8(4) of this Act) which he claims to follow;
(d) any act or omission by the supplier which causes any unreasonable expense of time or money by consumers pursuing legitimate complaints or rights under contracts entered into with the supplier; and
(e) any failure to keep consumers reasonably informed about matters relating to a contract for supply of services, or which might affect a decision whether or not to change suppliers.'.[Mr. Waterson.]