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Consumers, Estate Agents and Redress Bill [HL]


Consumers, Estate Agents and Redress Bill [HL]
Part 3 — Amendment of the Estate Agents Act 1979

33

 

(8)   

Any power to make regulations under this section shall be exercisable

by statutory instrument which shall be subject to annulment in

pursuance of a resolution of either House of Parliament.”

(2)   

In section 3(1) of that Act (grounds for making prohibition orders), in

paragraph (c), for “21” substitute “21A”.

5

Prohibition and warning orders

55      

 Grounds for prohibition orders

(1)   

Section 3(1) of the Estate Agents Act 1979 (c. 38) (grounds for making

prohibition orders) is amended as follows.

(2)   

In paragraph (a), for “has been convicted of” substitute “has committed”.

10

(3)   

After paragraph (b) insert—

“(ba)   

has failed to comply with an undertaking accepted from him

under section 217, 218 or 219 of the Enterprise Act 2002 and

given in relation to estate agency work; or

(bb)   

has failed to comply with an enforcement order under section

15

217 of the Enterprise Act 2002 which was made against him in

relation to estate agency work; or”.

(4)   

Section 5(4) of that Act (which provides for section 3 orders based on a person’s

conviction to cease to have effect when the conviction is spent) is omitted.

(5)   

For paragraph 1 of Schedule 1 to that Act substitute—

20

“1         

A person is not to be treated for the purposes of section 3(1)(a) of this

Act as having committed an offence if he has been convicted of that

offence and that conviction is to be treated as spent for the purposes

of the Rehabilitation of Offenders Act 1974 or any corresponding

enactment for the time being in force in Northern Ireland.”

25

56      

Grounds for warning orders

(1)   

Section 4 of the Estate Agents Act 1979 (warning orders) is amended as follows.

(2)   

For subsection (1) substitute—

“(1)   

If the OFT is satisfied that any of subsections (1A), (1B) or (1C) apply in

relation to a person it may by order notify that person that it is satisfied

30

of the matters mentioned in that subsection.

(1A)   

This subsection applies in relation to a person if—

(a)   

in the course of estate agency work, he has engaged in conduct

falling within paragraph (a), (b), (c), (ca) or (cb) of section 3(1);

and

35

(b)   

were he to engage again in any conduct falling within that

paragraph, the OFT would consider him unfit and proceed to

make a prohibition order.

(1B)   

This subsection applies in relation to a person if—

(a)   

in the course of estate agency work, he has engaged in conduct

40

constituting a failure to comply with—

(i)   

an undertaking mentioned in section 3(1)(ba); or

 
 

Consumers, Estate Agents and Redress Bill [HL]
Part 3 — Amendment of the Estate Agents Act 1979

34

 

(ii)   

an enforcement order mentioned in section 3(1)(bb); and

(b)   

were he to fail again to comply with that undertaking or order

by engaging in the same or similar conduct, the OFT would

consider him unfit and proceed to make a prohibition order.

(1C)   

This subsection applies in relation to a person if—

5

(a)   

in the course of estate agency work, he has engaged in a practice

mentioned in section 3(1)(d); and

(b)   

were he to engage again in that practice, the OFT would

consider him unfit and proceed to make a prohibition order.”

(3)   

In subsection (2) for the words from “a further” to “order” (in the second place

10

it appears) substitute “further conduct as mentioned in subsection (1A)(b) or

(1B)(b) or engaging again in the practice specified in the order, as the case may

be,”.

(4)   

In subsection (3) for the words from “fails to comply” to “order” (in the second

place it appears) substitute “engages in further conduct as mentioned in

15

subsection (1A)(b) or (1B)(b) or engages again in the practice specified in the

order, as the case may be,”.

(5)   

After subsection (3) insert—

“(4)   

In this section “unfit” means unfit as mentioned in subsection (2) of

section 3 and “prohibition order” means an order under that section.”

20

Investigatory powers

57      

Powers of entry and inspection

(1)   

Section 11 of the Estate Agents Act 1979 (c. 38) (powers of entry and inspection)

is amended as follows.

(2)   

For subsection (1) substitute—

25

“(1)   

If a duly authorised officer of an enforcement authority (“an officer”)

has reasonable cause to suspect—

(a)   

that an offence has been committed under this Act;

(b)   

that a person has failed to comply with an obligation imposed

on him under any of sections 15 and 18 to 21A; or

30

(c)   

that a person has engaged in a practice mentioned in section

3(1)(d);

   

he may, in order to ascertain whether the offence has been committed,

whether the person has failed to comply with the obligation or whether

the person has engaged in the practice (as the case may be), exercise any

35

power specified in subsection (1A).

(1A)   

The powers are—

(a)   

to enter any premises (other than premises used only as a

dwelling);

(b)   

to require—

40

(i)   

any person carrying on, or employed in connection

with, a business to produce any books or document

relating to it, or

 
 

Consumers, Estate Agents and Redress Bill [HL]
Part 3 — Amendment of the Estate Agents Act 1979

35

 

(ii)   

any person having control of any information relating to

a business which is stored in any electronic form to

produce the information in a form in which it can be

taken away and in which it is visible and legible (or from

which it can readily be produced in a visible and legible

5

form);

(c)   

to take copies of, or of any entry in, any books or documents

produced or provided in pursuance of a requirement imposed

under paragraph (b).

(1B)   

An officer may seize and detain any books or documents which he has

10

reason to believe may be required as evidence—

(a)   

in proceedings for an offence under this Act; or

(b)   

in proceedings under any of sections 3, 4, 6 or 7 relating to an

allegation—

(i)   

that an offence has been committed under this Act;

15

(ii)   

that a person has failed to comply with an obligation

imposed on him under any of sections 15 and 18 to 21A;

or

(iii)   

that a person has engaged in a practice mentioned in

section 3(1)(d).

20

(1C)   

If it is not reasonably practicable to exercise any power under

subsection (1A)(c) to take a copy of, or of any entry in, a book or

document, an officer may seize and detain the book or document for

the purpose of inspecting it (or any entry in it).

(1D)   

A book or document which is seized in exercise of the power under

25

subsection (1C) must be returned to the person from whom it was

seized unless an officer has reason to believe that the book or document

may be required as evidence in any proceedings mentioned in

subsection (1B).

(1E)   

Any power conferred by subsection (1) to (1C) may be exercised at all

30

reasonable hours.

(1F)   

An officer exercising any such power must, if required, produce his

credentials.”

(3)   

For subsection (4) substitute—

“(4)   

An appropriate judicial officer may, by warrant under his hand,

35

authorise an officer of an enforcement authority to enter any premises,

by force if need be, if on sworn information in writing or, in Scotland,

on evidence on oath the appropriate judicial officer—

(a)   

is satisfied that there is reasonable ground to believe that either

of the conditions in subsection (4A) applies; and

40

(b)   

is also satisfied that at least one of the conditions in subsection

(4B) applies.

(4A)   

The conditions in this subsection are—

(a)   

that any books or documents which a duly authorised officer

has power to inspect under this section are on the premises and

45

their inspection is likely to disclose evidence—

(i)   

that an offence has been committed under this Act;

 
 

Consumers, Estate Agents and Redress Bill [HL]
Part 3 — Amendment of the Estate Agents Act 1979

36

 

(ii)   

that a person has failed to comply with an obligation

imposed on him under any of sections 15 and 18 to 21A;

or

(iii)   

that a person has engaged in a practice mentioned in

section 3(1)(d);

5

(b)   

that an offence under this Act has been, is being or is about to be

committed on the premises.

(4B)   

The conditions in this subsection are—

(a)   

that admission to the premises has been or is likely to be refused

and that notice of intention to apply for a warrant under

10

subsection (4) has been given to the occupier;

(b)   

that an application for admission, or the giving of such a notice

of intention, would defeat the object of the entry;

(c)   

that the premises are unoccupied;

(d)   

that the occupier is temporarily absent and it might defeat the

15

object of the entry to wait for his return.

(4C)   

A warrant issued under subsection (4) shall continue in force for a

period of one month.

(4D)   

In subsection (4) “appropriate judicial officer” means—

(a)   

in England and Wales, a justice of the peace;

20

(b)   

in Scotland, the sheriff or a justice of the peace;

(c)   

in Northern Ireland, a lay magistrate.”

58      

Failure to produce information

(1)   

After section 11 of the Estate Agents Act 1979 (c. 38) (powers of entry and

inspection) insert—

25

“11A    

Failure to produce information

(1)   

If on an application made by a duly authorised officer of an

enforcement authority it appears to the court that a person (“the

defaulter”) has failed to do something that he is required to do by virtue

of section 9(1) or 11(1A)(b) the court may make an order under this

30

section.

(2)   

An order under this section may require the defaulter—

(a)   

to do the thing that it appears he failed to do within such period

as may be specified in the order;

(b)   

otherwise to take such steps to remedy the consequences of the

35

failure as may be so specified.

(3)   

If the defaulter is a body corporate, a partnership or an unincorporated

association, the order may require any officer who is (wholly or partly)

responsible for the failure to meet such costs of the application as are

specified in the order.

40

(4)   

In this section—

“court” means—

(a)   

in England and Wales and Northern Ireland, the High

Court or a county court;

(b)   

in Scotland, the Court of Session or the sheriff;

45

 
 

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general

37

 

“officer” means—

(a)   

in relation to a body corporate, a person holding a

position of director, manager or secretary of the body or

any similar position;

(b)   

in relation to a partnership or an unincorporated

5

association, a member of the partnership or association.

(5)   

In subsection (4) “director” means, in relation to a body corporate

whose affairs are managed by its members, a member of the body.”

(2)   

In section 3(1) of that Act (grounds for making prohibition orders), after

paragraph (ca) (inserted by section 53(2)) insert—

10

“(cb)   

has failed to comply with any requirement imposed on him

under section 9(1) or 11(1A)(b) below; or”.

(3)   

In section 9 of that Act (information for the OFT), in subsection (4)—

(a)   

omit paragraph (a); and

(b)   

in paragraph (b) for “such a notice” substitute “a notice under this

15

section”.

(4)   

In section 27 of that Act (obstruction and personation of authorised officers)—

(a)   

in subsection (1)—

(i)   

omit paragraph (b); and

(ii)   

in paragraph (c) for “other” substitute “any”; and

20

(b)   

after subsection (1) insert—

“(1A)   

A failure to give assistance or information shall not constitute

an offence under subsection (1)(c) if it is also a failure in relation

to which an authorised officer may apply for an order under

section 11A above.”

25

Part 4

Miscellaneous and general

Contracts concluded away from business premises

59      

Contracts concluded away from business premises

(1)   

The Secretary of State may make regulations entitling a consumer who is a

30

party to a protected contract to cancel the contract.

(2)   

A protected contract is a contract between a consumer and a trader which is for

the supply of goods or services to the consumer by a trader and is made—

(a)   

during a solicited visit by a trader to the consumer’s home or place of

work, or to the home of another individual, or

35

(b)   

after an offer made by the consumer during such a visit.

(3)   

A visit is solicited if it is made at the express request of the consumer.

(4)   

Regulations made under this section may make any provision which may be

made by regulations under section 2(2) of the European Communities Act 1972

(c. 68) (by virtue of section 2(4) of that Act).

40

(5)   

The regulations may in particular make provision—

 
 

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general

38

 

(a)   

as to the circumstances in which the consumer may cancel the contract

and the effect of such a cancellation;

(b)   

requiring the trader to inform the consumer of the matters within

paragraph (a);

(c)   

for the enforcement of any requirement imposed by virtue of

5

paragraph (b).

(6)   

For the purposes of this section, “consumer” and “trader” in relation to a

contract have the same meaning as they have for the purposes of the relevant

Directive in relation to transactions within that Directive.

(7)   

“The relevant Directive” means—

10

(a)   

Council Directive 85/577/EEC to protect the consumer in respect of

contracts negotiated away from business premises, as it has effect from

time to time, or

(b)   

if that Directive is repealed and re-enacted (with or without

modification), that Directive as re-enacted.

15

Subordinate legislation

60      

Orders and regulations

(1)   

An order or regulations under this Act must be made by statutory instrument.

(2)   

The Statutory Instruments Act 1946 (c. 36) is to apply in relation to any power

of a regulator to make regulations under section 43 or 46 as if the regulator

20

were a Minister of the Crown.

(3)   

Any order or regulations under this Act may—

(a)   

make provision generally or subject to exceptions or in relation to

specified cases or descriptions of case;

(b)   

make different provision for different cases or circumstances or for

25

different purposes;

(c)   

provide for a person to exercise a discretion in dealing with any matter;

(d)   

make incidental, supplementary, consequential, transitory and

transitional provision and savings.

(4)   

A provision of this Act which permits regulations or orders to make provision

30

of a specified kind is without prejudice to the generality of subsection (3).

(5)   

In the case of an order or regulations made by the Secretary of State, the

provision which may be made by virtue of subsection (3)(d) includes provision

modifying any provision made by or under any enactment.

(6)   

For this purpose­—

35

“enactment” means—

(a)   

an Act of Parliament (including, in the case of an order under

section 32, this Act),

(b)   

an Act of the Scottish Parliament,

(c)   

a Measure or Act of the National Assembly for Wales, or

40

(d)   

Northern Ireland legislation,

whenever passed or made;

“modify” has the same meaning as in Part 1.

 
 

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general

39

 

(7)   

Nothing in this section authorises an order or regulations under this Act to

make provision which would be within the legislative competence of the

Scottish Parliament if it were contained in an Act of that Parliament.

(8)   

The Documentary Evidence Act 1868 (c. 37) (proof of order and regulations etc)

has effect as if—

5

(a)   

the regulators were included in column 1 of the Schedule to that Act,

and

(b)   

the entry in column 2 of that Schedule corresponding to each regulator

mentioned the regulator and persons authorised to act on the

regulator’s behalf.

10

(9)   

Nothing in this section applies in relation to a court order under section 26.

(10)   

In this section “regulator” means—

(a)   

the Gas and Electricity Markets Authority, or

(b)   

the Postal Services Commission.

61      

Directions

15

(1)   

A requirement or power under this Act to give a notice (or to notify) is a

requirement or power to give notice in writing.

(2)   

A requirement or power under this Act to give a direction (or to direct) is a

requirement or power to give a direction in writing.

(3)   

Any power conferred by this Act to give a direction includes power to vary or

20

revoke the direction.

62      

Parliamentary control of orders and regulations

(1)   

Any instrument to which this subsection applies is subject to annulment in

pursuance of a resolution of either House of Parliament.

(2)   

Subsection (1) applies to any order or regulations made by the Secretary of

25

State under any provision of this Act except—

(a)   

an order or regulations to which subsection (3) applies, or

(b)   

an order under section 66 (commencement).

(3)   

An order or regulations containing (whether alone or with other provision)

provision made under or by virtue of any of the following provisions may not

30

be made unless a draft of the order or regulations has been laid before, and

approved by a resolution of, each House of Parliament—

(a)   

section 4 (“designated consumers”);

(b)   

section 24(3)(d) (power to specify persons from whom Council may

require information);

35

(c)   

section 31 (designation of the Consumer Council for Water for

abolition);

(d)   

section 37(1) (conferral of additional functions on the Council);

(e)   

section 38 (removal of Council’s functions in relation to Northern

Ireland);

40

(f)   

section 59 (contracts concluded away from business premises), so far as

it enables provision to be made modifying an Act of Parliament;

(g)   

section 60(5) (consequential provision etc), so far as it enables such

provision to be made;

 
 

 
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