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4.15 pm
People who are quite sophisticated, at least in terms of having no fixed abode and having other mechanisms for evasion, end up not being brought to book even though there are laws which should bring them to book and which if implemented would result in their no longer being in business. We must therefore try to ensure that the framework of law outside this Bill—which, after all, is important in promoting and setting a framework for fair enterprise—also delivers an appropriate range of laws to combat various kinds of malpractice.
Having spoken so far in favour of the Government's line, I want to conclude my remarks—this may not surprise those few Members who are present—by saying that I am reluctant to support Government amendment No. 380 as I understand it. I am worried about it on two grounds. First, it refers to directive 2000/31/EC. I have not been able to get hold of that document. It is not in the Vote Office, and I feel reluctant to nod such matters through. I should also be grateful if the Minister confirmed whether the directive—which I have not read, but which I have read about—says, for instance, that there is potential for considerable interference with what one might call domestic communications of an electronic character. Will the Minister reassure me that that is not involved in directive 2000/31/EC?
Miss Melanie Johnson: If I may, I shall start in roughly reverse order, and deal with the two other amendments outside the issue of the general duty to trade fairly or not to trade unfairly, and the issues raised in the substantive part of the debate this afternoon.
Amendment No. 373—as the hon. Member for Orkney and Shetland (Mr. Carmichael) raised the question—would enable an enforcer to make an application for an enforcement order against a person who it believed was likely to engage in conduct that would constitute a domestic infringement. That is already the case in respect of community infringements, as we believe that that is a requirement of the injunctions directive. Officials have discussed this matter with the Office of Fair Trading and the Local Authorities Co-ordinating Body on Regulatory Services—formerly the Local Authorities Co-ordinating
Body on Trading Standards. Although I fully understand the argument in favour, we have not yet been provided with sufficient convincing cases in which it might be used to merit extending the scope of domestic infringements in this way. A power to prevent infringements before they occur is likely to be the most useful in advertising, where a single misleading advertisement has the potential to harm a large number of consumers. That would be a community infringement. As I mentioned, the Bill gives enforcers the powers to take action to stop likely community infringements—if necessary, by applying for an interim enforcement order. I hope that that addresses the hon. Gentleman's point.Before I deal with the wider issues, I shall deal with the anxieties of my hon. Friend the Member for Hemel Hempstead (Mr. McWalter) about amendment No. 380. The amendment seeks to add the e-commerce directive to schedule 13, which lists the individual EC directives to which the definition of a community infringement in clause 205 applies. This is required by the EC injunctions directive. My Department's consultation on the extension of the stop now regulations to cover the e-commerce directive ends on 5 July. Regulations implementing the other provisions of the directive will be made shortly. I am not sure what my hon. Friend's anxiety is, but I hope that my explanation will have allayed it.
I now come to the substantive debate and to amendments Nos. 195 and 196. They would enable enforcement action to be taken against some conduct that may be unfair but that is not currently unlawful. We debated the issue at length in Committee, and the amendments that we debated then were modelled on the approach taken in the Unfair Terms in Consumer Contracts Regulations, and contained an indicative list of conduct that may be but is not necessarily held to be unfair.
The amendments seek to achieve a similar result by preventing suppliers from unfairly taking advantage of their superior knowledge and bargaining strength vis-à-vis the consumer. We all recognise the imbalance in the relationship and several Members have referred to it. The nature of the conduct that would be covered by this wording would be fairly limited, but I appreciate that, as some Members have acknowledged, it is the principle of the general duty that they wish to debate. I shall therefore consider that point.
I certainly agree that businesses should not abuse their superior bargaining position to take unfair advantage of consumers. Indeed, businesses that treat their customers honestly and fairly are much more likely to prosper by building up a loyal customer base. The hon. Member for Cities of London and Westminster (Mr. Field) made the point that he thought that there was not much between us on this issue, and he is entirely right. The question is how to achieve the goal that many of us share. Like the hon. Gentleman, I recognise that business has some concerns.
I also accept that a small number of unscrupulous traders take a much more short-sighted view of their customers than do decent businesses. However, as I have told hon. Members before, I am not convinced that enshrining in the Bill a general duty not to trade unfairly is the best way of ensuring that consumers receive a fair deal. I shall explain why that is so and what I propose to do next.
We already have a well-established and comprehensive framework of consumer protection legislation which on the face of it would appear to cover many of the cases that hon. Members have mentioned. I cannot go through all of them because, although the Whip to whom I spoke was happy for me to speak for a few minutes, he was unhappy at the prospect of my going on for three hours. I have therefore eschewed that course of action.
Mr. Waterson: I can assist the Under-Secretary. Presumably she wants to avoid spending a quarter of an hour or more having one or more Divisions. That consideration might weigh in her discussions with the Whip.
Miss Johnson: I appreciate what the hon. Gentleman said earlier.
Several big issues are involved, one of which is how we define fair or unfair. There is much work to be done on that and it is by no means obvious that enshrining such terms in the Bill is a straightforward process that would make the provision and the definitions of fair and unfair clear to all and sundry.
We also face substantial considerations involving practicality. I shall touch on a few of the examples cited in which it is obvious that recourse is currently available, because that directly touches on the issue of practicality. Practicality involves enforcement, and many pieces of legislation impact on the cases about which Members have rightly said something should be done; I agree with them entirely on that. However, it can in practice be difficult to prove that pressured selling has taken place, for example, and in many cases it might be more sensible to improve the enforcement of existing legislation. We need to consider the evidence and the extent of the problems before we rush into legislating.
The hon. Member for Eastbourne (Mr. Waterson) referred to the Kent county council itinerant tarmackers who have passed through everyone's constituency. Indeed, like my hon. Friend the Member for Hemel Hempstead (Mr. McWalter), my constituency in Hertfordshire is also plagued by such people.
Mr. Mark Field: Perhaps I should point out that the streets of my constituency are paved with gold. There is no risk of tarmackers coming to Cities of London and Westminster.
Miss Melanie Johnson: There are many opportunities for a riposte to that, but in the spirit of a more consensual debate, I will not take them.
The doorstep selling regulations provide a seven-day cooling-off period if a visit is unsolicited. Builders are required to carry out work with reasonable care and skill under section 13 of the Supply of Goods and Services Act 1982. Taking money for little or no work is covered by obtaining property by deception under the Theft Acts. We are also building up a quality mark scheme for reputable builders and tradesmen. There are a number of recourses. It is therefore a matter of what the consumer does to enforce legislation, and that would be the case were we to broaden the measure or not.
On the Trade Commission case and the hiring out of unsafe cars, in the UK that would be a breach of a term of contract, implied by statute, that a car should be of a satisfactory quality and fit for its purpose. That problem would be covered by part 8.
I am trying to illustrate the difficulties with some cases before setting out our approach. In relation to the elderly lady cited by the hon. Member for Eastbourne—it could, of course, have been an elderly gentleman, but for some reason it never is, although I am sure they are just as frail—because the visit was unsolicited it would be covered by the doorstep selling regulations, with the statutory cooling-off period and cancellation rights. The same cooling-off period would apply if the consumer had agreed to a visit from a salesperson as a result of an unsolicited visit or call.
Mr. Waterson: To save the Minister time, the point is that what typically happens is that the elderly lady—as she said, elderly gentlemen do not seem to feature in such stories—fills out and sends in a coupon in, say, Saga Magazine, a perfectly reputable publication, and that is construed as an invitation to the salesman to visit her. As the visit is not unsolicited, it is outside the protection to which the Minister referred.
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