Schedule 1 - Fixed penalties and enforcement
Homes Bill
6:30 pm
Mr Tim Loughton (East Worthing and Shoreham, Conservative)
We have already discussed part of the schedule, which concerns fixed penalties and enforcements. I do not intend to rake over previously covered ground, but I have about half a dozen points that I would like the Minister to clarify. Paragraph 4(1) states that there is a facility for withdrawal of a fixed penalty notice. In what circumstances does he envisage that withdrawal notices will be used? Under paragraph 6(4), a weights and measures officer who has reason to believe that documents might be required is empowered to
seize and detain them and . . ., if he does so, inform the person from whom they are seized.
If the fault is deemed to lie with the estate agent who has the documents necessary for a seller's pack, and if that agent has jumped the gun and commenced marketing without first assembling the component parts of the seller's pack that the Secretary of State has deemed appropriate, it is the vendor of the house who could be most inconvenienced. If weights and measures officers were to seize documents from the estate agents Bloggins & Co., would the sale of the house be left in limbo? Given that it might take time to establish what action will be taken, and to pursue what might prove a criminal action, the vendor could be left sitting on a house that he is not allowed to sell. Would the vendor be able, for example, to end his contract with the potentially criminalised estate agent and move the sale—lock, stock and barrel—to another agent? If so, how will the seized documents be resecured, so that they may form part of the alternative agent's seller's pack? We must address that practical problem, so that we can protect the vendor.
The word ``reasonable'' appears several times in paragraphs 6 to 8. Weights and measures officers are empowered to make reasonable inquiries and to secure documents that are reasonably relevant. What safeguards exist to ensure that reasonableness will not be stretched to its limits by a trading standards officer who, for example, has a grudge against a firm of estate agents whom he failed to convict for reasons that we have discussed? How will ``reasonableness'' be defined? I can find no definition of it in this context.
Under section 7—and, indeed, under section 6—weights and measures officers who have seized documents are obliged to
inform the person from whom they are seized.
Again, that person is most likely to be an estate agent, but there seems to be no requirement for the weights and measures officer to inform the vendor of the house. Surely the vendor should have an equal right to know that there is a potential problem with the sale of the house. A particularly unscrupulous estate agent—if such a person exists—could choose not to inform the vendor that he was the subject of an investigation by a weights and measures department, and that the documents that formed part of the seller's pack had been seized. The vendor could be under the impression that the estate agent was marketing the house, and wondering why no callers are viewing it, only to discover that marketing had technically been suspended because an investigation was under way. The Bill should surely require that the vendor be notified of any seizure of documents or action against an estate agent. I am surprised that I can find no reference to such a requirement.
Paragraph 7(4) states:
The powers of an officer under this paragraph may be exercised by him only at a reasonable hour and on production (if required) of his credentials.
Again, there is the question of the definition of reasonableness. Reasonable hours as kept by the Under-Secretary might be rather different from those kept by the estate agent Bloggins & Co. Can the Under-Secretary provide more detail on what constitutes reasonable hours?
This is a long schedule with many technical and, if I may say so, vague references. I have asked a mere soupccon of the many questions that practitioners will ask themselves when faced with this terminology. Given the time and effort that the Under-Secretary has spent on fashioning what he sees as foolproof legislation, I trust that he will be able to answer my questions immediately and off the top of his head, without referring to any notes that might be handed to him.