Mr. Waterson: I do not know how long the list of odd but true situations will be, but does the Minister see the point, that however reasonable we find those two examples, why should ordinary folk, who are entitled, subject to human rights legislation, to sell their property to whomever they choose, be dragged through the courts to show that they have reasonable grounds for adopting a particular view?
Mr. Raynsford: The very existence of this defence in the Bill will ensure that they are not dragged through courts. The trading standards officer would see immediately that there was no offence.
Mr. Curry: Does it have to be demonstrated that the seller's belief was well founded? In other words, in the Minister's illustration about gardening, does the seller have to demonstrate that he was justified in believing that people would not be able to look after the garden, or is it sufficient to state his belief?
Mr. Raynsford: The right hon. Gentleman is picking up on the difference between legislation as currently drafted, and the amendment tabled by his hon. Friend the Member for Eastbourne, which would substitute the words:
I will explain later why we do not accept that that is the right formulation. An estate agent acting on behalf of a seller would have to have some basis for his view that the seller was unlikely to be prepared to sell a property to someone to whom he denied a seller's pack. It is not as rigorous as the requirement in the amendment tabled by the hon. Member for Eastbourne, but the intent is similar. We prefer the current drafting because it gives the agent more discretion by not having to get specific instructions on individual cases. Nevertheless, there would have to be some basis to justify the agent's view that an individual was the sort of person to whom the seller would be unwilling to sell his property.
These provisions are designed to, and I believe achieve, a reasonable balance between the need for genuine buyers to get copies of important documents and the right of sellers or their agents to refuse to supply them where they believe that there are good grounds for doing so. Amendment No. 41 would remove the seller's defence that the agent marketing the property should have had a copy of the seller's pack in his possession, and therefore that he the seller was not the responsible person in accordance with clause 2. That would be unsatisfactory, because it could lead sellers, unintentionally, into a breach of the law. If clause 6(2) were removed, the seller and his agent would be required to have a copy of the seller's pack in their possession at all times during marketing. That would duplicate the requirement to have a seller's pack, and is undesirable for that reason.
I am aware that the amendment may have been inspired by the National Association of Estate Agents. I am delighted that the Opposition have been seeking the counsel of the NAEA, which has given thorough attention to the development of the proposals. I know that it has expressed concerns on the issue, but I do not believe that those concerns are justified. Subsection 6(2)(b) provides that the defence is only open to a seller who believes on reasonable grounds that another responsible person is in possession of a pack. That could only be interpreted as meaning that the seller has taken reasonable steps to inform himself whether the pack has been produced. To infer from silence that the pack had come in to the estate agent's possession could not amount to grounds for a reasonable belief.
The effect of amendment No. 4 would be to remove all defences available under clause 6, so that a copy of the seller's packs would have to be provided to anyone who claimed to be a potential buyer and asked for it. As I have explained, there are cases where refusal can be legitimately justified, and I believe that the Opposition will broadly concur with that.
Amendment No. 18 seeks to remove one of the defences I described earlierthat which allows the defence that a person asking for copies was not someone to whom the seller was prepared to sell the property. This raises difficult issues, but, as I have already explained, it is not a charter for discrimination. We could fall foul of human rights legislation if we did not include this clause, or something similar, allowing the seller to withhold a pack from other people to whom they have good reasons to deny access to their home.
Amendment No. 42 seeks to amend clause 6(3)(c). The effect of the amendment would be to put a positive requirement on sellers to decide whether to refuse to provide copies of the pack in each individual case. It could be burdensome and excessive if the estate agent felt that he had to go back to the seller on every occasion that he chose to deny a pack. For example, it would be an excessive requirement to have to get individual instructions for a property if the agent knew that a substantial number of the several hundred who might have expressed an interest would be unable to proceed with the purchase. Although we are sympathetic to the intention behind the amendment, we do not think that it is workable.
There could be many caveats that a seller might want to attach to a sale. I have touched on a number of those, and I will not bore the Committee by giving other examples. We believe that it is right to have this provision in general terms.
Government amendment No. 55 removes one of the conditions that have to be fulfilled before a seller can rely on a person acting as an estate agent to supply copies of the seller's pack to potential buyers.
The defence in clause 6(4) applies where both the seller and the estate agent are responsible for marketing a property. If the seller fulfils the conditions stated, he is not required to supply copies of documents to potential buyers. He can refer them to his estate agent to obtain those copies. The amendment makes it immaterial to the defence whether or not the seller has a copy of the pack in his possession. It is a sensible and practical amendment, and has the other advantage of reducing the length of the Bill by a modest amount. I hope that right hon. and hon. Members accept that the amendments tabled by the hon. Members for Eastbourne and for Bath should be withdrawn and that the Government amendment should be accepted.
Mr. Waterson: I am grateful for the Minister's explanation of amendment No. 55, which caused us some puzzlement. As he said, if it shortens the Bill, who are we to complain.
I do not intend to invite my hon. Friends to force this to a Division because, unless those Labour Members who are only here to discuss part II have disappeared, the odds are that we would probably lose. Despite the examples quoted by the Ministerand there may be many othersthe defences in subsection (3)(a), (b) and (c) are in ascending order of silliness, reaching the pinnacle of:
The Minister's first example was about a long-running feud with a neighbour. We might all think that it is perfectly reasonably for the seller to refuse them a pack because he would rather die than sell the property to the neighbour, but that is precisely the sort of person who would be apt to report the matter to the trading standards officers. It is not open to the Minister to say that trading standards officers would make a decision that it came within that defence. It is not their job. They may have a decision about whether to initiate a prosecution, but that is a wholly different matter to making a decision on whether a defence will fly. There are some other strange examples being cast around, but we are simply trying to remove these defences because we are concerned that ordinary folk who are simply doing what they are entitled to do
Mr. Clifton-Brown: The seller's pack contains a lot of private information, particularly at the more expensive end of the market. I wonder whether my hon. Friend has considered the fact that the seller, or indeed the buyer, might not want such information to be generally available to a lot of other people. How will that impinge on these defences? It could be a defence for a seller to say, ``I only want one or two people to have the seller's pack. I don't want it to go to those who I believe are not genuine purchasers''.
Mr. Waterson: My hon. Friend makes a very good point, which we will develop in more detail in a subsequent amendment. I believe that I have tabled an amendment dealing with confidentiality. It is a considerable issue. My right hon. Friend the Member for Skipton and Ripon talked about people perhaps not wanting a Member of Parliament living next door to themI suppose it depends on the Member of Parliament. Equally, a Member of Parliament, or any householder selling a property, may not wish people to have access to details about it. For example, I do not know if the home condition report would cover whether a property has a working burglar alarm system. In the age of the photocopier, seller's packs are not necessarily restricted to those to whom they are given. Whether one is a pop star, a Member of Parliament or a celebrity, or if one has many things that people may want to steal, it is likely that there will be a view on who should see the seller's pack. I do not intend to deal with that now, but it needs to be addressed.
We think that it is entirely wrong that ordinary citizens, who can take a decision on any or no grounds not to hand out the seller's pack, should risk being dragged through the courts simply to take advantage of these defences. On human rights, I think that the Minister was hinting at the possibility that it might be infringing the human rights of the seller, but what about a potential buyer? If a buyer is refused a seller's pack, possibly on racial grounds, there is redress under the appropriate legislation. Are there other, wider rights for other people who feel badly done by? I should be grateful if the Minster would develop that, or perhaps he might prefer to write to right hon. and hon. Members.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 55, in page 5, line 8, leave out paragraph (a)[Mr. Raynsford.]
Question proposed, That the clause, as amended, stand part of the Bill.
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