Mr Nigel Waterson (Eastbourne, Conservative)

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

Mr Roger Gale (North Thanet, Conservative)

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 Nigel Waterson (Eastbourne, Conservative)

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.

Mr David Curry (Skipton & Ripon, Conservative)

I support my hon. Friend. I shall begin by telling an absolutely true story, which relates to my cottage in a village called Fearby, near Masham, near Ripon, in North Yorkshire. My next-door neighbour is a charming lady who keeps rather a lot of cats. My daughter and her boyfriend stayed in my cottage over Christmas and the new year. My next-door neighbour said that she had heard a rumour that I was not going to stand again for Parliament. My daughter immediately refuted that and, being very loyal, said to the neighbour that she surely would not want to lose such an outstandingly good constituency Member of Parliament. My neighbour replied to my daughter that that was not what was on her mind: she simply did not think that anyone else who moved in would take such a tolerant view of her cats.

I tell that story to ask whether that would it would be a defence to say that I was not prepared to sell my property because I did not think that the purchaser would be sufficiently tolerant of the cats in the neighbourhood. Curiously, as I went home last night, just a mile from the House, in Kennington, a large dog fox was raiding the dustbins, supremely indifferent to the vote that had just taken place here. Could one say that any purchaser would have to be an animal lover? These are the Del Boy clauses—the ``any excuse'' clauses. Would one want to sell one's house to a Member of Parliament? The neighbours might be very upset at the prospect of the neighbourhood being brought down quite so low.

My hon. Friend the Member for Eastbourne made a serious point about a person being black. Related legislation exists, but how can one demonstrate that the person being black was the reason for reluctance to sell? Could one not think that the purchaser had insufficient means, or was not genuinely interested in buying a property of a general description? Such a defence is easy to advance, but difficult to unravel or, indeed, to sustain under interrogation. I do not understand how the defences are going to stand up in practice.

May one take exception to people's accents or to their clothes? I do not mean to insult Members of Parliament and I am sorry to use them again as an example, but some of them do not look as though they have just stepped out of a bandbox—I except, of course, members of the Committee, who are sartorial models, but have in mind some old Labour Members, and perhaps even one or two Conservatives. If they turned up to view a property, one might suspect that they did not have the means to purchase it. Will the Minister tell us, not the intention behind the proposal, but how he thinks that the defence, whether justifiable or not, can sensibly be analysed in practice?

Mr Geoffrey Clifton-Brown (Cotswold, Conservative)

I want to ask the Minister just one question. Has he considered whether any form of letter or certificate from a financial lending institution could be supplied or whether, in its absence, it would be a defence to argue that someone did not have the wherewithal to purchase a property? I ask because—

Mr Roger Gale (North Thanet, Conservative)

Order. The sitting will be suspended for a Division in the House. When we return, Mr. Stevenson will be in Chair so I wish all members of the Committee a productive weekend. I hope that when we return on Tuesday the brakes will be back on.

Sitting suspended for a Division in the House.

On resuming—

[Mr. George Stevenson in the Chair]

Mr Geoffrey Clifton-Brown (Cotswold, Conservative)

It is very nice to see you in the Chair, Mr Stevenson. The record will show that the last word that I uttered before the bell tolled for me and we suspended was ``because''. The suspension has given me some time to think about the matters that I had begun to elucidate.

Clause 6 is a bit of a dog's breakfast, as it can provide an excuse for all sorts of people to be denied a seller's pack on all sorts of spurious grounds. It would be much better to produce legislation in which there was more certainty. One way to provide that certainty would be for the seller to be reasonably reassured that the buyer has the financial wherewithal to complete the purchase of the property—at the asking price, or the agreed price. Has the Minister considered requiring some form of financial evidence to be supplied by a prospective purchaser asking for a seller's pack? That could come from an accountant to say that the interested party had the means already to complete the purchase or from a financial lending institution that would, subject perhaps to quite severe conditions, was in a position to be able to complete the purchase. That a reasonable and sensible point, to which I hope that the Minister will be able to respond.

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

I offer the apologies of my hon. Friend the Under-Secretary, who cannot be with us for the rest of this afternoon's sitting because of a longstanding commitment to enlighten the boys of Harrow school. There is no limit to New Labour's ambition and I wish him every success.

Mr Geoffrey Clifton-Brown (Cotswold, Conservative)

As my son is one of those boys being enlightened, I wonder whether I will be able truly to testify whether he has been.

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

I will not be tempted to down that route because I fear it might be ruled out of order. I look forward to hearing privately the judgment of the hon. Gentleman's son on my hon. Friend.

Clause 2 sets out who will be responsible for marketing and property, and who is therefore responsible for the seller's pack obligations. It establishes that the seller is not responsible for providing a copy of the seller's pack where an agent is marketing on his behalf. We want potential buyers to be able to have a copy or part of the pack if they want it and are prepared to pay a reasonable fee for copying costs. Potential buyers will often want to show a copy to their legal representatives for example, or to look at the contents at leisure in the privacy of their own homes. That is fair enough, but we can foresee circumstances in which the seller or his agent should be able to turn down such requests without incurring a penalty.

Clause 3(3) sets out three possible reasons for so doing. The first defence allows the seller, or the seller's agent, to refuse to provide copies if there are reasonable grounds to believe the person could not afford the property in question. That relates to the issue raised by the hon. Member for Cotswold. The agent might know, for example, the financial circumstances of the person in question as a result of a previous failed transaction, and would therefore be quite clear that there was no possibility of this person being able to proceed.

Mr Roger Gale (North Thanet, Conservative)

Order. I thought I heard the Minister refer to clauses 2 and 3. If that is the case, can he confirm it?

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

We are, of course, on clause 6, but in my introduction I referred to the cross reference between the clauses. Clause 6 provides defences against potential sanctions where someone who has a responsibility under earlier clauses, might be considered to have committed an offence. I am sorry if I confused the Committee with that cross reference.

I was describing a situation where the agent might know, from personal experience, that the financial circumstances of the potential buyer were such that there was no practical possibility of the purchase taking place. Equally, the seller might want to clinch a quick deal, and so would specify that only those who could demonstrate their ability to proceed quickly should be considered.

In such cases, the agent might exclude people who could not demonstrate that they had an in-principle mortgage offer or the wherewithal to proceed to a quick purchase. Those are the kind of circumstances that we envisage under the first of these three grounds.

Mr Geoffrey Clifton-Brown (Cotswold, Conservative)

The estate agent might know that a prospective purchaser is part of a chain and cannot possibly have the financial means to proceed quickly until they have sold their house—and there may be other people further up the chain. Would that be a ground on which to refuse to supply a seller's pack?

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

I am always a bit cautious in these circumstances because there is an interface between this and other legislation, which might involve a discriminatory practice. I will come to that later. There could be grounds for challenge in certain cases if the fact that someone was engaged in a chain was used as the pretext for denying them any opportunity to even see the property. The whole purpose of the reform is designed to speed up chains. Therefore, that circumstance is less likely to be a ground for refusal. In certain circumstances, an inability to proceed quickly, where a quick sale is the seller's instruction, could be a ground for refusal.

The second defence applies if it is believed that the person making the request is not really interested in buying the property, or one like it. For example, it could be a journalist posing as a buyer in order to gain access to the seller's pack relating to a celebrity's home or it could be an individual who has a curious fixation with visiting a celebrity's home but who has no interested in buying it and has no means to do so— the Madonna example that the hon. Member for Eastbourne raised earlier. Another example would be the serial time-waster who is known to the estate agent. Those are all circumstances where the seller might reasonably have grounds for suggesting that such a person should not be given a seller's pack.

The third reason allows someone to refuse to provide copies if they believe that the potential buyer is not a person to whom the seller would wish to sell the property. This is a complex and difficult issue on which I should like to spend a little time. There are human rights implications, and this defence simply reflects the current position where someone can refuse to sell his house to a particular person if he wishes to do so, providing that that is not in breach of other legislation. It does not override race relations legislation or other anti-discriminatory legislation, but it reflects the current position. An individual may, for example, have a long-standing grudge with a neighbour and would not want that person to purchase the property under any circumstances.

A different and more benign example might involve someone acting as executor for his deceased parents, who had been keen gardeners and who, over a lifetime, had created a particularly fine garden. Such a person might not want the property to go to someone who was likely to neglect the garden. It would be an entirely understandable human reaction to want the lifetime work of one's parents to be cherished by a potential buyer.

I think that we can all accept that those grounds would be entirely reasonable. Having said that, the second example is entirely reasonable, but the first one—hatred of a neighbour—may be irrational. That is a situation we can accept. It happens in real life and does not involve a breach of anti-discriminatory legislation.

Mr Nigel Waterson (Eastbourne, Conservative)

I do not know how long the list of odd but true situations will be, but does the Minister see the point, that however reasonable we find those two examples, why should ordinary folk, who are entitled, subject to human rights legislation, to sell their property to whomever they choose, be dragged through the courts to show that they have reasonable grounds for adopting a particular view?

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

The very existence of this defence in the Bill will ensure that they are not dragged through courts. The trading standards officer would see immediately that there was no offence.

Mr David Curry (Skipton & Ripon, Conservative)

Does it have to be demonstrated that the seller's belief was well founded? In other words, in the Minister's illustration about gardening, does the seller have to demonstrate that he was justified in believing that people would not be able to look after the garden, or is it sufficient to state his belief?

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

The right hon. Gentleman is picking up on the difference between legislation as currently drafted, and the amendment tabled by his hon. Friend the Member for Eastbourne, which would substitute the words:

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

I will explain later why we do not accept that that is the right formulation. An estate agent acting on behalf of a seller would have to have some basis for his view that the seller was unlikely to be prepared to sell a property to someone to whom he denied a seller's pack. It is not as rigorous as the requirement in the amendment tabled by the hon. Member for Eastbourne, but the intent is similar. We prefer the current drafting because it gives the agent more discretion by not having to get specific instructions on individual cases. Nevertheless, there would have to be some basis to justify the agent's view that an individual was the sort of person to whom the seller would be unwilling to sell his property.

These provisions are designed to, and I believe achieve, a reasonable balance between the need for genuine buyers to get copies of important documents and the right of sellers or their agents to refuse to supply them where they believe that there are good grounds for doing so. Amendment No. 41 would remove the seller's defence that the agent marketing the property should have had a copy of the seller's pack in his possession, and therefore that he the seller was not the responsible person in accordance with clause 2. That would be unsatisfactory, because it could lead sellers, unintentionally, into a breach of the law. If clause 6(2) were removed, the seller and his agent would be required to have a copy of the seller's pack in their possession at all times during marketing. That would duplicate the requirement to have a seller's pack, and is undesirable for that reason.

I am aware that the amendment may have been inspired by the National Association of Estate Agents. I am delighted that the Opposition have been seeking the counsel of the NAEA, which has given thorough attention to the development of the proposals. I know that it has expressed concerns on the issue, but I do not believe that those concerns are justified. Subsection 6(2)(b) provides that the defence is only open to a seller who believes on reasonable grounds that another responsible person is in possession of a pack. That could only be interpreted as meaning that the seller has taken reasonable steps to inform himself whether the pack has been produced. To infer from silence that the pack had come in to the estate agent's possession could not amount to grounds for a reasonable belief.

The effect of amendment No. 4 would be to remove all defences available under clause 6, so that a copy of the seller's packs would have to be provided to anyone who claimed to be a potential buyer and asked for it. As I have explained, there are cases where refusal can be legitimately justified, and I believe that the Opposition will broadly concur with that.

Amendment No. 18 seeks to remove one of the defences I described earlier—that which allows the defence that a person asking for copies was not someone to whom the seller was prepared to sell the property. This raises difficult issues, but, as I have already explained, it is not a charter for discrimination. We could fall foul of human rights legislation if we did not include this clause, or something similar, allowing the seller to withhold a pack from other people to whom they have good reasons to deny access to their home.

Amendment No. 42 seeks to amend clause 6(3)(c). The effect of the amendment would be to put a positive requirement on sellers to decide whether to refuse to provide copies of the pack in each individual case. It could be burdensome and excessive if the estate agent felt that he had to go back to the seller on every occasion that he chose to deny a pack. For example, it would be an excessive requirement to have to get individual instructions for a property if the agent knew that a substantial number of the several hundred who might have expressed an interest would be unable to proceed with the purchase. Although we are sympathetic to the intention behind the amendment, we do not think that it is workable.

There could be many caveats that a seller might want to attach to a sale. I have touched on a number of those, and I will not bore the Committee by giving other examples. We believe that it is right to have this provision in general terms.

Government amendment No. 55 removes one of the conditions that have to be fulfilled before a seller can rely on a person acting as an estate agent to supply copies of the seller's pack to potential buyers.

The defence in clause 6(4) applies where both the seller and the estate agent are responsible for marketing a property. If the seller fulfils the conditions stated, he is not required to supply copies of documents to potential buyers. He can refer them to his estate agent to obtain those copies. The amendment makes it immaterial to the defence whether or not the seller has a copy of the pack in his possession. It is a sensible and practical amendment, and has the other advantage of reducing the length of the Bill by a modest amount. I hope that right hon. and hon. Members accept that the amendments tabled by the hon. Members for Eastbourne and for Bath should be withdrawn and that the Government amendment should be accepted.

Mr Nigel Waterson (Eastbourne, Conservative)

I am grateful for the Minister's explanation of amendment No. 55, which caused us some puzzlement. As he said, if it shortens the Bill, who are we to complain.

I do not intend to invite my hon. Friends to force this to a Division because, unless those Labour Members who are only here to discuss part II have disappeared, the odds are that we would probably lose. Despite the examples quoted by the Minister—and there may be many others—the defences in subsection (3)(a), (b) and (c) are in ascending order of silliness, reaching the pinnacle of:

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

The Minister's first example was about a long-running feud with a neighbour. We might all think that it is perfectly reasonably for the seller to refuse them a pack because he would rather die than sell the property to the neighbour, but that is precisely the sort of person who would be apt to report the matter to the trading standards officers. It is not open to the Minister to say that trading standards officers would make a decision that it came within that defence. It is not their job. They may have a decision about whether to initiate a prosecution, but that is a wholly different matter to making a decision on whether a defence will fly. There are some other strange examples being cast around, but we are simply trying to remove these defences because we are concerned that ordinary folk who are simply doing what they are entitled to do—

Mr Geoffrey Clifton-Brown (Cotswold, Conservative)

The seller's pack contains a lot of private information, particularly at the more expensive end of the market. I wonder whether my hon. Friend has considered the fact that the seller, or indeed the buyer, might not want such information to be generally available to a lot of other people. How will that impinge on these defences? It could be a defence for a seller to say, ``I only want one or two people to have the seller's pack. I don't want it to go to those who I believe are not genuine purchasers''.

Mr Nigel Waterson (Eastbourne, Conservative)

My hon. Friend makes a very good point, which we will develop in more detail in a subsequent amendment. I believe that I have tabled an amendment dealing with confidentiality. It is a considerable issue. My right hon. Friend the Member for Skipton and Ripon talked about people perhaps not wanting a Member of Parliament living next door to them—I suppose it depends on the Member of Parliament. Equally, a Member of Parliament, or any householder selling a property, may not wish people to have access to details about it. For example, I do not know if the home condition report would cover whether a property has a working burglar alarm system. In the age of the photocopier, seller's packs are not necessarily restricted to those to whom they are given. Whether one is a pop star, a Member of Parliament or a celebrity, or if one has many things that people may want to steal, it is likely that there will be a view on who should see the seller's pack. I do not intend to deal with that now, but it needs to be addressed.

We think that it is entirely wrong that ordinary citizens, who can take a decision on any or no grounds not to hand out the seller's pack, should risk being dragged through the courts simply to take advantage of these defences. On human rights, I think that the Minister was hinting at the possibility that it might be infringing the human rights of the seller, but what about a potential buyer? If a buyer is refused a seller's pack, possibly on racial grounds, there is redress under the appropriate legislation. Are there other, wider rights for other people who feel badly done by? I should be grateful if the Minster would develop that, or perhaps he might prefer to write to right hon. and hon. Members.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 55, in page 5, line 8, leave out paragraph (a)—[Mr. Raynsford.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr Nigel Waterson (Eastbourne, Conservative)

I want to raise a separate issue, which did not fit naturally into an amendment. It relates to clause 6(1), which, I understand, is a free-standing and separate defence where a person has

exercised all due diligence to avoid the commission of the offence.

that is, the failure to produce the seller's pack. The Minister will, no doubt, have been told by his advisers that ``due diligence'' is a phrase that appears many times in legislation and court decisions. In layman's terms, I want to tease out of the Minister what a seller would need to have done, short of procuring a seller's pack, to avoid prosecution under subsection (1). There is a little help, but not much, to be gathered from other parts of the law. I am primarily a shipping lawyer and, although there is a great deal about ``due diligence'' in shipping law, it is not of any direct help in this instance. Perhaps the most interesting case is Jervis v. Tomkinson in 1905, in which it was held that

A covenant to do a thing ``with all due and reasonable diligence and despatch'' is not excused from performance if it can be done; even though the jury find that it cannot be done by any reasonable application of labour, diligence, skill, money, or other means.

That decision, couched though it may be in slightly obscure legal language, suggests that a person cannot simply escape on the basis of a defence of due diligence if he or she has taken all reasonable steps to do whatever is required. I do not know what that was in the above case, but it is obviously not related to the situation that we are discussing. If it were still possible to do what was required and the person did not, even by an unreasonable application of labour, diligence, skill, money or other means, he or she could fall foul of the legislation.

There is another definition in, as it happens, a shipping case of 1960: Riverstone Meat Co. Ltd. v. Lancashire Shipping Co. Ltd. Lord Justice Willmer held that

An obligation to exercise due diligence is to my mind indistinguishable from an obligation to exercise reasonable care.

To my lawyer's mind, those two requirements seem rather contradictory. There is certainly enough there to require some dispelling of the potential confusion. Unless the Minister says the opposite, I think that this is meant to be a wholly free-standing defence, quite separate from those that we have been discussing. It would be helpful to know what the Minister's advisers suggest would amount to due diligence, which would get someone off the hook.

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

The hon. Gentleman has asked a perfectly fair and valid question about clause 6(1), which is the defence of due diligence. After responding to that question, I will say a few words on the human rights issue that he raised at the end of his comments on the amendments. As he sought leave to withdraw the amendment, I did not have an opportunity to respond. I hope that it will be in order to do so now.

The obvious example of due diligence, which we have already discussed, is the case in which it proves impossible to put together all the documents for the seller's pack, because the warranties—which exercised us earlier—never turn up. Despite the seller repeatedly being asked and reminded to search his or her chest of drawers, cellar or wherever old documents are kept to try to find the warranties, they are never secured. There might be a claim that the seller's pack has been offered with a note in it saying that the warranties or guarantees will follow, but they never arrived, and that is a breach of the law. In such a case, it would be entirely proper for the estate agent to be able to show that he or she had done all that was reasonably possible to obtain that information, but had not been able to do so. He could show that he has systems in place that normally prevent him from falling in breach of the law, for example, to avoid early marketing, before a seller's pack is put together and to ensure that where the information is not obtained by a certain time, a pack may be issued but with procedures for chasing up the information later. In my view, such evidence is an obvious example of the due diligence likely to be covered by these circumstances.

I must tell the hon. Member for Eastbourne that I am not an expert in shipping law and I do not want to begin to address the questions about which even he seemed unsure, which arose from the cases that he quoted. However, I suspect—this is a hesitant comment—that some of those provisions relate to obligations that clearly had a very serious impact on the safety of people travelling on ships. It is probable that higher standards would reasonably be expected where human life was at risk than in simple compliance with the provisions of this legislation. I do not want to pursue that any further, but the defence seems reasonable in the context of what we are discussing, where it is a matter of ensuring compliance with procedures but where human life is not immediately at risk.

Mr Nigel Waterson (Eastbourne, Conservative)

I do not want to pursue the Minister too far down that avenue as the question of human life is neither here nor there in the shipping law analogy. It is probably my fault for not having been sufficiently succinct. I was trying to make the point that I have found from my researches that the test of ``all due diligence'' is quite a high test in law. It is significantly higher than taking ``all reasonable care'', for example. A layman might underestimate its importance. I do not expect the Minister to deal with this on the hoof, as it requires careful thought and careful advice from those who know about these things. I should be happy if he undertook to write to the Committee on that subject.

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

The hon. Gentleman may be reassured to know that the phraseology is not unique to this type of legislation as the Property Misdescriptions Act 1991, which is probably the closest parallel, has exactly the same defence. There is therefore a good precedent in legislation that was introduced by the previous Conservative Government. I hope that he will accept that this is a reasonable basis for proceeding. I shall look into this further and if any concerns arise, I will write to him. I hope that he will accept that this is an appropriate defence that is also commensurate with the level of responsibility defined in the Bill.

On human rights, he asked whether buyers could feel that their human rights were violated by a refusal to let them have a seller's pack in certain cases. That was one of the reasons for including the provisions in subsection (3). Without them, it would be much easier for a malicious, disgruntled or simply obsessive potential buyer to use the Human Rights Act 1998 as a basis for frequent, and in some cases entirely malicious, challenges. Therefore, I hope that he will accept that while Human Rights Act considerations apply—I made it clear that we would be careful to avoid actions that might be seen to restrict the rights of sellers—we do not want the legislation to be abused by buyers pursuing malicious claims for which no defence is prescribed in the Bill.

Mr Don Foster (Bath, Liberal Democrat)

A thought occurred to me as the Minister was speaking. What is the situation with regard to estate agents providing information in the packs that they currently make available? Presumably without legislation of the type the Minister describes, they could find themselves in difficulty under the Human Rights Act.

Mr Nick Raynsford (Minister of State, Department of the Environment, Transport and the Regions; Greenwich & Woolwich, Labour)

Exactly the same considerations that I have been describing apply at present. An estate agent might decline to provide particulars of a property to an individual on the instructions of the seller. It might be a specific instruction such as, ``Under no circumstances are you to ever to entertain a bid from my loathsome neighbour Mr. X''. It might be a more general but entirely legitimate instruction, which would not breach the anti-discrimination legislation, to exclude groups of people such as those who would be unlikely to maintain the garden. Exactly the same considerations would apply because the Human Rights Act is already in force. We are not introducing new concepts. We are trying to ensure that the provisions of the Bill are compatible both with the anti-discrimination legislation and the Human Rights Act. I hope that, on that basis, hon. Members will accept that this is a sensible clause that should stand part of the Bill.

Question put and agreed to.

Clause 6, as amended, ordered to stand part of the Bill.