Clause 11 - Offences by bodies corporate etc.
Homes Bill
6:45 pm
Mr Chris Mullin (Parliamentary Under-Secretary, Department of the Environment, Transport and the Regions; Sunderland South, Labour)
Clause 11 deals with offences by corporate bodies. Subsections (1) and (2) provide that when an offence is committed due to the act or default of an employee of a business, or of an officer of the business, it will be possible to take out proceedings against the employee, the officer, the employer or indeed all of them depending on the circumstances of the case. For the purposes of the Bill, ``officer'' includes a director, manager, company secretary or similar. Subsections (4) and (5) set out similar provisions with regard to co-operatives and partnerships.
Amendment No. 46 is in two parts. The first would provide that, when an employee of a company was responsible for committing an offence, it should be presumed that both the employee and the company were guilty, unless the company could demonstrate that safeguards designed to prevent such offences from occurring were in place.
That limb of the amendment is unnecessary, because the employer will already be the responsible person as a consequence of clause 15(2). In effect, that means that the employer is responsible for actions taken by an employee. However, the defence in clause 6(1) would apply if the employer could show that the precautionary steps described in the amendment had been taken. The provisions of the Bill are modelled on similar provisions in the Estate Agents Act 1979, the Property Misdescriptions Act 1991 and most consumer protection legislation. That means that estate agents, trading standards officers and the courts are already familiar with the relevant concepts.
The second branch of the amendment would provide that when the offence was committed by someone acting as an agent for a person—but with that person's authority—the person would also be liable to be proceeded against. The Bill provides that the penalties for breaching those duties apply only to the person responsible for marketing the property in question. That may be the seller, someone acting as the seller's agent or both of them if, for example, the seller is engaged in marketing his or her own home as well as using the services of an estate agent.
Individuals who market their own homes without the services of an estate agent will be responsible for their own actions. In cases when a person acting as an estate agent is responsible for marketing, it will be up to the agent to ensure that the seller's pack obligations are complied with, as he will bear the consequences if they are not. If, therefore, an estate agent were deliberately to market a property with a defective pack because, say, the seller asked him to do so, the agent would be liable to any resultant proceedings under the enforcement provisions of the Bill. Those proceedings would not involve the seller who had put him up to committing the offence. To seek to do so would cut right across the concept of responsibility set out in clause 2. However, an individual might be guilty of an offence under other legislation, if it could be proved that he or she aided, abetted, counselled or procured a breach of the law.
Under our proposals, the duty on estate agents is clear. They are for the most part responsible professionals who will abide by the law and not risk losing their livelihood by colluding in breaches of it. I hope that my explanation has been helpful.
Government amendments Nos. 57, 58, 59 and 60 all make drafting changes intended to make the clause easier to understand. I therefore ask the hon. Gentleman to withdraw amendment No. 46 and to accept the Government amendments.