Executive Committee Business – in the Northern Ireland Assembly at 3:30 pm on 1 February 2016.
I beg to move
That this Assembly endorses the principle of the extension to Northern Ireland of the provisions in the Housing and Planning Bill dealing with enforcement of the estate agents legislation.
The Housing and Planning Bill was introduced in Parliament on 13 October 2015 by the Department for Communities and Local Government. The overall purpose of the Bill is to make changes to the law in England and Wales concerning housing, rent charges, planning and compulsory purchase. In addition, the Bill was considered to be a suitable legislative vehicle to introduce changes that the Department for Business, Innovation and Skills considered necessary to make to the UK-wide Estate Agents Act 1979, which I will refer to as the 1979 Act. These changes relate only to the 1979 Act’s enforcement responsibilities.
Before outlining these changes, I will give a brief history of these enforcement responsibilities and provide some information on the scope of the 1979 Act’s provisions. The 1979 Act is largely limited to regulating the activities of estate agents in selling property on behalf of their clients. When it was enacted, the then Office of Fair Trading — the OFT, as it was commonly known — had certain responsibilities under the 1979 Act, most notably the power to ban unfit persons from carrying out estate agency work.
The 1979 Act also contained other enforcement responsibilities that were carried out by local authority trading standards departments within their respective areas in Great Britain and by my Department in Northern Ireland. The responsibilities falling to trading standards departments include requirements relating to the handling of clients’ moneys, and ensuring that requirements to provide vendors with certain information are complied with. Essentially, all complaints about estate agents under the 1979 Act were investigated and assessed by trading standards departments, who referred the most serious complaints to the OFT to consider, with a view to warning or banning an estate agent. In 2007 the OFT was given additional responsibilities following the amendment of the 1979 Act by the passing of the Consumer, Estate Agents and Redress Act 2007. These amendments gave the OFT powers to approve consumer redress schemes for complaints concerning estate agents, and the power to require estate agents to join such a redress scheme.
In 2011 the UK Government consulted on proposals to reform the consumer protection landscape in Great Britain. These proposals included a review of the OFT’s functions under the 1979 Act and, in particular, whether these functions could be more effectively carried out by a trading standards department. The responses to this consultation supported the proposal to transfer the OFT responsibilities under the 1979 Act to a trading standards department. Consequently, in 2014, the UK government decided to appoint Powys County Council as the lead enforcement authority for the 1979 Act. This transfer of functions involved both an order made under the Public Bodies Act and a tender process involving a contract for a three-year term.
In September 2015, the Secretary of State for the Department for Business, Innovation and Skills (BIS), the Rt Hon Sajid Javid MP, wrote to me concerning the proposed amendment of the 1979 Act’s enforcement arrangements. The Secretary of State asked for my agreement, in principle, to seek the consent of the Assembly for those amendments to extend to Northern Ireland. The UK Minister was seeking to amend the 1979 Act because the contract awarded to Powys County Council to carry out the role of lead enforcement authority will expire in 2017. Furthermore, there is no scope in the Public Bodies Act to carry out a further transfer of the responsibilities of the lead enforcement authority under the 1979 Act.
Without the proposed amendment of the 1979 Act, Powys County Council would continue to be named as the lead enforcement authority after its contract to provide the role expires in April 2017. Therefore, an amendment to the provisions dealing with the 1979 Act’s enforcement arrangements is necessary so that a new lead enforcement authority could be appointed in the event that Powys County Council should no longer be considered best placed to provide the role, and to ensure the continued effective enforcement of the Act’s provisions. A failure to amend the 1979 Act could result in unfit and fraudulent estate agents being allowed to continue to operate. That would cause increased harm to consumers and prevent compliant estate agents operating on a level playing field.
The proposed amendment of the 1979 Act would allow the Secretary of State for the Department for Business, Innovation and Skills, or a person whom they have appointed, to take over the role of lead enforcement authority for the UK. The person chosen by the Secretary of State could be any local authority trading standards department in GB or the Department of Enterprise, Trade and Investment in Northern Ireland. In effect, the provision will allow the Secretary of State to appoint a new lead enforcement authority for the 1979 Act from time to time as necessary.
The proposed amendments of the 1979 Act deal with a transferred matter, as they enable the possible appointment of DETI as the lead enforcement authority for that Act. Such a change to departmental functions falls within the definition, in Standing Order 42A, of a devolution matter requiring a legislative consent motion. The inclusion of DETI in this provision will necessitate a minor amendment to the generic set of enforcement powers for consumer legislation in the Consumer Rights Act 2015. That amendment would allow DETI to use the enforcement powers in part 3 of schedule 5 of the Consumer Rights Act for the purposes of the 1979 Act, in the event that DETI might at some time in the future be appointed as the lead enforcement authority for the UK.
Although it is difficult to envisage a scenario in which my Department would seek to be appointed as the lead authority for the 1979 Act, the same assessment could be made of many of the approximately 200 trading standards departments across the UK, which, because of their size, for example, may not wish to put themselves forward for the role. However, it is appropriate that my Department should also be in a position to be considered for the role of lead authority in the same way as any of the existing enforcement authorities in the UK. Therefore, my Department should be included in these proposals.
I commend the motion to the Assembly.
Go raibh maith agat, a Cheann Comhairle. On 9 October 2015, the Minister of Enterprise, Trade and Investment wrote to the Committee to advise that the Secretary of State for Business, Innovation and Skills had informed him that proposed provisions to amend the Estate Agents Act 1979, which are included in the UK Housing and Planning Bill, were required to enable the Secretary of State for BIS to appoint a new lead enforcement authority, as necessary, by means of a tender process. The enforcement authority could be any trading standards department in GB, as the Minister said, or DETI in Northern Ireland, through the Trading Standards Service.
The Committee noted that, although BIS carried out a broad-ranging consultation in 2011, which included Northern Ireland, there were no responses from Northern Ireland to the proposal. It was unclear from the information provided by the Department whether DETI would apply to become the new lead enforcement authority.
The Committee asked the Department if, when the legislation is changed, it is envisaged that the Trading Standards Service would respond to a tender for the appointment of a new lead enforcement authority for the UK. The Department responded that it considers it unlikely that DETI would respond to any tender to become the lead enforcement authority but that, on balance, DETI should be included in the proposed amendment of the Estate Agents Act 1979, so that it is treated on an equal footing with all the other existing enforcement authorities in the UK and Northern Ireland.
Having fully considered the proposals, the Committee supports DETI in seeking the Assembly's endorsement of the legislative consent motion.
I, too, support the legislative consent motion. It is important that we allow the Secretary of State for Business to amend the Estate Agents Act 1979. I believe that the LCM is the most appropriate means of legislating in this area and will ensure that Northern Ireland is brought into line with the rest of the United Kingdom. This is a very important area of work, and it will lead to greater accountability within the estate agent sector, which will ultimately improve the sector for the agents and the public. It will also allow for the possible appointment of DETI as the lead enforcement authority for the Estate Agents Act.
As this is the most effective means of updating the legislation, I am happy to lend my support to it. I welcome this motion, and I am happy to commend it to the House.
I thank both Members for their supportive and helpful contributions. I also thank my colleagues in the Executive and the Enterprise, Trade and Investment Committee for considering the matter in such a timely manner, which has allowed the debate to take place today. The brevity of the Chairman's remarks do not reflect the seriousness and professionalism with which his Committee addressed the matters. By carrying out the role in the way that it has become known for — scrupulously and fairly — it allowed the motion to come to the House today. I personally thank the Committee and the Chair.
I hope that, from both the responses that we have had today, Members know why we should vote for the consent motion. By passing the motion, the Assembly will ensure that consumers and businesses in Northern Ireland continue to benefit from the effective enforcement of the Estate Agents Act 1979. I commend the motion to the Assembly and thank all Members for their support.
Question put and agreed to. Resolved:
That this Assembly endorses the principle of the extension to Northern Ireland of the provisions in the Housing and Planning Bill dealing with enforcement of the estate agents legislation.