Clause 6Defences
Homes Bill
3:45 pm
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.