Mr Tim Loughton (East Worthing & Shoreham, Conservative)

I beg to move amendment No. 46, in page 7, line 41, leave out subsection (1) and insert—

`( ) Any offence under this Part committed by a person in the course of his employment shall be treated as committed by his employer as well as by him, whether or not it was done with the employer's knowledge or approval, unless the employer shows that he took such steps as were reasonably practicable to prevent the employee from committing that act, or from doing in the course of his employment acts of that description.

( ) Any offence under this Part committed by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that person shall be treated as having been committed by that other person as well as by him.'.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to take Government amendments Nos. 57, 58, 59 and 60.

Mr Tim Loughton (East Worthing & Shoreham, Conservative)

Amendment No. 46 refers to clause 11, which is about offences by bodies corporate. The Government have tabled amendments on similar lines. It refers to a point that I made previously about corporate as opposed to employee liability, and it seeks to clarify the position of the relationship between the employee and employer as regards such offences.

We believe that the wording in the Bill, which we want replaced with that in the Government amendments, seems to place too heavy an onus on the employee as the responsible party. Our wording reflects the balance more appropriately. Only if the employee acted outside the course of his duty, as a rogue trader—a rogue estate agent—would he be likely to be first in the line of fire.

I commend the amendments because I believe that the new wording creates a better balance between the employer and employee. Will the Under-Secretary confirm whether the employee would be prosecuted if an offence were committed only if he acted outside his course of duty, as a rogue trader?

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.

Mr Tim Loughton (East Worthing & Shoreham, Conservative)

I know that the Committee is keen to make progress. I am grateful for the Minister's clarification, and note the Government amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Roger Gale (North Thanet, Conservative)

I should point out—I am sure that the Committee is aware of it—that I have agreed with the usual channels that we shall sit today until 7.30 pm. If the adjournment is moved at or before that time, the Committee will rise and sit next on Thursday morning. However, if the adjournment has not been moved by 7.30 pm, I shall adjourn the Committee for an hour and a half.

Amendments made: No. 57, in page 7, leave out lines 43 and 44 and insert

`also guilty of the offence and liable to be proceeded against and punished accordingly.'

No. 58, in page 8, line 3, leave out from `he' to end of line 6 and insert

`is also guilty of the offence and liable to be proceeded against and punished accordingly.'

No. 59, in page 8, line 16, leave out from `he' to `guilty' and insert `is also'.

No. 60, in page 8, line 17, at end insert—

`(6) A person who is guilty of an offence under this Part by virtue of subsection (1), (2) or (5) may be proceeded against and punished whether or not proceedings are also taken against the employer, body corporate or partnership in question.'.

Clause 11, as amended, ordered to stand part of the Bill.

Clauses 12 and 13 ordered to stand part of the Bill.