Consumers, Estate Agents and Redress Bill [HL]

House of Commons

Session 2006 - 07
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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
35

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—
5
“(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
10
(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
15
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—
20
(i)
any person carrying on, or employed in connection
with, a business to produce any books or document
relating to it, or
(ii)
any person having control of any information relating to
a business which is stored in any electronic form to
25
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
form);
(c)
to take copies of, or of any entry in, any books or documents
30
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
reason to believe may be required as evidence—
(a)
in proceedings for an offence under this Act; or
35
(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;
(ii)
that a person has failed to comply with an obligation
imposed on him under any of sections 15 and 18 to 21A;
40
or
(iii)
that a person has engaged in a practice mentioned in
section 3(1)(d).
(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
45
document, an officer may seize and detain the book or document for
the purpose of inspecting it (or any entry in it).

Consumers, Estate Agents and Redress Bill [HL]
Part 3 — Amendment of the Estate Agents Act 1979
36

(1D)
A book or document which is seized in exercise of the power under
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).
5
(1E)
Any power conferred by subsection (1) to (1C) may be exercised at all
reasonable hours.
(1F)
An officer exercising any such power must, if required, produce his
credentials.”
(3)
For subsection (4) substitute—
10
“(4)
An appropriate judicial officer may, by warrant under his hand,
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
15
of the conditions in subsection (4A) applies; and
(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
20
has power to inspect under this section are on the premises and
their inspection is likely to disclose evidence—
(i)
that an offence has been committed under this Act;
(ii)
that a person has failed to comply with an obligation
imposed on him under any of sections 15 and 18 to 21A;
25
or
(iii)
that a person has engaged in a practice mentioned in
section 3(1)(d);
(b)
that an offence under this Act has been, is being or is about to be
committed on the premises.
30
(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
subsection (4) has been given to the occupier;
(b)
that an application for admission, or the giving of such a notice
35
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
object of the entry to wait for his return.
(4C)
A warrant issued under subsection (4) shall continue in force for a
40
period of one month.
(4D)
In subsection (4) “appropriate judicial officer” means—
(a)
in England and Wales, a justice of the peace;
(b)
in Scotland, the sheriff or a justice of the peace;
(c)
in Northern Ireland, a lay magistrate.”
45

Consumers, Estate Agents and Redress Bill [HL]
Part 3 — Amendment of the Estate Agents Act 1979
37

58
Failure to produce information
(1)
After section 11 of the Estate Agents Act 1979 (c. 38) (powers of entry and
inspection) insert—
“11A
Failure to produce information
(1)
If on an application made by a duly authorised officer of an
5
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
section.
(2)
An order under this section may require the defaulter—
10
(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
failure as may be so specified.
(3)
If the defaulter is a body corporate, a partnership or an unincorporated
15
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.
(4)
In this section—
“court” means—
20
(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;
“officer” means—
(a)
in relation to a body corporate, a person holding a
25
position of director, manager or secretary of the body or
any similar position;
(b)
in relation to a partnership or an unincorporated
association, a member of the partnership or association.
(5)
In subsection (4) “director” means, in relation to a body corporate
30
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—
“(cb)
has failed to comply with any requirement imposed on him
under section 9(1) or 11(1A)(b) below; or”.
35
(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
section”.
(4)
In section 27 of that Act (obstruction and personation of authorised officers)—
40
(a)
in subsection (1)—
(i)
omit paragraph (b); and
(ii)
in paragraph (c) for “other” substitute “any”; and

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general
38

(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.”
5
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
10
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
15
(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).
20
(5)
The regulations may in particular make provision—
(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);
25
(c)
for the enforcement of any requirement imposed by virtue of
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.
30
(7)
“The relevant Directive” means—
(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
35
modification), that Directive as re-enacted.
Subordinate legislation
60
Orders and regulations
(1)
An order or regulations under this Act must be made by statutory instrument.

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general
39

(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
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
5
specified cases or descriptions of case;
(b)
make different provision for different cases or circumstances or for
different purposes;
(c)
provide for a person to exercise a discretion in dealing with any matter;
(d)
make incidental, supplementary, consequential, transitory and
10
transitional provision and savings.
(4)
A provision of this Act which permits regulations or orders to make provision
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
15
modifying any provision made by or under any enactment.
(6)
For this purpose—
“enactment” means—
(a)
an Act of Parliament (including, in the case of an order under
section 32, this Act),
20
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation,
whenever passed or made;
“modify” has the same meaning as in Part 1.
25
(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—
30
(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.
35
(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
40
(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.

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general
40

(3)
Any power conferred by this Act to give a direction includes power to vary or
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.
5
(2)
Subsection (1) applies to any order or regulations made by the Secretary of
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)
10
provision made under or by virtue of any of the following provisions may not
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
15
require information);
(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
20
Ireland);
(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;
25
(h)
section 63(2) (consequential provision etc), so far as it enables such
provision to be made.
(4)
In subsection (3), “modify” has the same meaning as in Part 1.
Amendments, transitional provision and repeals
63
Minor, consequential and transitional provision
30
(1)
Schedule 7 contains minor and consequential amendments.
(2)
The Secretary of State may by order make such consequential, supplementary,
incidental, transitory or transitional provision or savings (including provision
modifying any provision made by or under an enactment) as the Secretary of
State considers necessary or expedient in connection with the coming into force
35
of any provision made by or under this Act.
(3)
An order under this section may make such adaptations of provisions of this
Act brought into force as appear to be necessary or expedient in consequence
of other provisions of this Act not yet having come into force.
(4)
In this section—
40
“enactment” means—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,

Consumers, Estate Agents and Redress Bill [HL]
Part 4 — Miscellaneous and general
41

(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation,
whenever passed or made;
“modify” has the same meaning as in Part 1.
(5)
An order under this section may not make provision which would be within
5
the legislative competence of the Scottish Parliament if it were contained in an
Act of that Parliament.
64
Repeals
Schedule 8 contains repeals (including repeals of spent provisions).
General
10
65
Extent
(1)
Subject to subsections (2) to (6), this Act extends to England and Wales,
Scotland and Northern Ireland.
(2)
The following provisions extend to England and Wales and Scotland only—
(a)
section 13 (investigation of complaints relating to disconnection of gas
15
or electricity);
(b)
section 14 (reference of disputes to Gas and Electricity Markets
Authority);
(c)
section 37 (extension of the Council’s functions: Great Britain).
(3)
Sections 31 to 33 (abolition of Consumer Council for Water) extend to England
20
and Wales only.
(4)
Section 43 (standards for handling complaints) extends to Northern Ireland,
but only to the extent that it applies to the Postal Services Commission.
(5)
Section 47 (membership of redress scheme) extends to Northern Ireland, but
only to the extent that it applies in relation to regulated providers (within the
25
meaning of Part 2) holding a licence under Part 2 of the Postal Services Act 2000
(c. 26).
(6)
Any amendment or repeal made by this Act has the same extent as the
enactment to which it relates.
(7)
This section is subject to any provision made under section 38 (removal of the
30
Council’s functions in relation to Northern Ireland).
66
Commencement
(1)
This section and sections 60 to 62, 65 and 67 come into force on the day this Act
is passed.
(2)
Subject to that, the provisions of this Act come into force on such day as may
35
be appointed by order of the Secretary of State.
67
Short title
This Act may be cited as the Consumers, Estate Agents and Redress Act 2007.