Consumers, Estate Agents and Redress Bill

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Clause 8

The representative function
Lorely Burt (Solihull) (LD): I beg to move amendment No. 44, in clause 8, page 6, line 5, leave out ‘may’ and insert ‘shall’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 45, in clause 8, page 6, line 14, after ‘any’, insert ‘appropriate’.
No. 46, in clause 8, page 6, line 15, after ‘organisation’, insert ‘, where appropriate’.
Lorely Burt: Sorry for any confusion, Mr. Weir. It is a bit of a two-handed job for Liberal Democrat Members. I hope that other hon. Members will not think of an appropriate epithet for us. As long as it is not Thelma and Louise, I really do not mind.
Amendment No. 44 represents the essence of what we wish to convey. We want to replace “may” with “shall”. A great deal was made of this in another place and by my hon. Friend the Member for Richmond Park on Second Reading. I do not need to labour this as the point has been made on a number of occasions. We are not just trying to split semantic hairs here. We are concerned that these basic functions should have to be fulfilled. Saying “may” makes it optional, but saying “shall” means that it will be done.
What underlies our insistence that we should like to see this is the cost-cutting options that may be involved if we adopt “may” rather than “shall”. The body could choose to sit on its hands and do nothing and that is the last thing that we would wish to see. I am sure that the Minister would agree that we have nothing to worry about in that respect but in that case I should be grateful if he accepted that the stronger word “shall” should be adopted.
Amendments Nos. 45 and 46 insert the word “appropriate” and give leeway for common sense. Because we have moved from “may” to “shall” an adjustment is needed for reasonableness. If the Government find our drafting clumsy, we would be more than happy to accept any of their consequential amendments if they are prepared to accept amendment No. 44.
Mr. Ben Wallace (Lancaster and Wyre) (Con): I just want to pick up on the earlier point made by the right hon. Member for Coatbridge, Chryston and Bellshill about the very ethos of the consumer council and where we go with it. I am a believer in transparencyin government. My one concern here is that in subsection (2) the council will decide who should see its representations or its information. It is a consumer body to represent us, often against business or unfair practices by other authorities.
It is important that it is not left to the council to decide under subsection (2)(f) who
“might have an interest in the matter in question.”
I would like to make that decision and I think many consumers would. It would be a good step forward if the Government considered, perhaps before Third reading, whether there is any way in which they can increase transparency. If we are to have faith in the system—I notice that it involves many Ministers—why can we not have access and decide more about where things go?
Stephen Pound: I entirely concur with the hon. Gentleman’s support for transparency in Government, which is normally a characteristic of Opposition politicians rather than members of the Government. Is he asking for a long stop whereby politicians are involved at the entry point, or is he saying that we should define every interested party? Surely the logic of his suggestion is that we have a massive list of people who fall within the ambit of interested parties, because ultimately anyone could be interested. Should there not be some mechanism by which the new NCC, acting in good faith, can define its terms and, if it fails to do so, will have the sanction of our opprobrium?
That is the main thrust that I wanted to make in my contribution. The only other clarity that I want from the Minister is about the persons in subsection (2) who can receive representations. It states:
“any Minister of the Crown or government department”.
Why are the words “or government department” included when they are not included with Scottish and Welsh Ministers? This is a technical query, because I presume that every “government department” has a Minister of the Crown at its head, but I am sure that I shall be corrected.
Mr. McCartney: I thank the hon. Member for Solihull (Lorely Burt) for the way in which she moved her amendment, and I thank my hon. Friend the Member for Ealing, North (Stephen Pound) for his incisive probing of the Conservatives’ position. I also thank the hon. Member for Lancaster and Wyre (Mr. Wallace) for his comments, and hope that I can respond to them.
The clear intention behind amendment No. 44 isthat the council should be required to fulfil its representative functions provided by the Bill. I am happy to make it absolutely clear to the Committee that we have given the new council three statutory core functions, which are set out in the Bill. It cannot sit on its hands and do nothing, because it will have a legal requirement.
First, its representative function is critical. The other two are research and information. The representative function is advocacy. The research function is influencing future policy and direction not just inthe marketplace, but in public policy areas. The information function, which we discussed during our previous debate, is critical and gives people not just rights, but the capacity to exercise those rights. Information is critical for consumers in the sort of marketplace that we now operate in, and consumers need to be able to make a valued judgment. The only way to do that is to have the knowledge to make that judgment, and if something goes wrong when it has been exercised effectively and fairly, to have the additional knowledge of who to seek out in the system to obtain redress when goods or services have been sold inappropriately or not on the basis of a legal requirement on the body or organisation that is selling the goods or services.
Lorely Burt: The Minister talks about core responsibilities and functions. The same terminology, “may”, is used in respect of the research and information functions. I understand his saying that this is so hugely a core function, but there is still no requirement to comply. My understanding of the wording is that the council might decide not to implement this function, so what in the word “may” enables or requires it to fulfil those functions.
Mr. McCartney: I was getting to the point that the hon. Lady made. First, let us agree that these are statutory functions, and as such there is the interlinkof the independence to carry out those functions. Secondly, the reason why there is discretion to exercise the functions and why we do not compel the bodies to discharge them is not a get-out clause; this is about ensuring that they have the capacity within their resources and work programme to be able to deal with these functions as they see fit.
For example, the reason why the council may provide advice about the consumer matters under the clause is because it must decide first on which consumer matters it should provide advice and to whom. That is very important. That is why it is given discretion to determine the type of advice and to whom it should be given. The exercise of these functions flows from the decisions of the council and the priorities identified in its forward work programme.
Again, that forward work programme is accountable, because it is a public consultation process. So, this is about the substance of the council’s activities. Thereis a statutory opt-in, as well as transparency and accountability to the work programme. That is the right approach, because Parliament is establishing this body on the basis of giving it the responsibility of acting on behalf of the consumers in an effective way. For example, it may well be that an additional resource will be required for an information campaign. Why should the body not be able to make a decision when that is a priority and part of its work programme? Should it say, “We can’t make that a priority because we have to spend 33 and a third per cent. on all of the issues on that basis. Were we not to do so, it wouldlook like we are not carrying out our obligations effectively”? Such a situation would be nonsense, because an organisation cannot operate effectively in that way.
It is important that organisations are given the maximum potential for making those decisions. We should remember that when they make those decisions they are accountable in the annual report, in the programme and in the carrying out of that programme. It is important that we do not view these clauses in isolation, because each adds something to the creation of the new, stronger consumer advocacy body and they all fit together, piece by piece, to complete the picture. We have set out the core functions of the council, and the provisions in clause 5 set out the need for the body to determine its priorities, including how these functions will be exercised. That is important because of what I said just a moment ago.
The new council will be a stronger consumer champion and will have the benefit of significant expertise in representing the consumer interest at its disposal. We shall surely be in a better position than we are today to determine how its functions might best be exercised to the benefit of consumers. I cannot accept the amendment because it is right that the new body should have the flexibility to be able to make decisions on what actions are appropriate in the interests of consumers.
The essence of amendments Nos. 45 and 46 isabout ensuring that the new body, in conductingits representative function, represents the views of consumers on consumer matters to the appropriate bodies. I again confirm that that is our intention. Although I do not accept amendment No. 44, the sentiments behind it are exactly those behind what the body will carry out in practice. On amendment No. 45, I give a commitment that the intention behind the clause is as I have mentioned.
While we are able to identify specifically some of the people who might be involved, such as a “Minister of the Crown” or a “government department”, a Scottish Minister or a Welsh Minister, it is necessary to allow the new council the flexibility to work with others as it considers what is most suitable at the time. That goes to the heart of independence, does it not? We cannot give independence and then say, “This independence can be exercised only through the Crown. You can’t possibility do this unless you go through the Minister.” That goes to the point made by the hon. Member for Lancaster and Wyre. The new NCC does not have to go through the prism of either a Government Department or a Minister of the Crown; that was the point of the previous amendments. It can go direct, of its own volition or on behalf of a constituent.
The clause specifies a Minister of the Crown or a Government Department because the Departments with responsibility for bodies that provide goods and services have opinions. For example, if there were a future EU directive similar to this legislation, each Department would have a view on it and would be entitled to express it. It would be entirely wrong if the NCC could not—independently of the Department of Trade and Industry—discuss with those Departments its view on consumer interests. This is about independence, and that means setting out what that independence means in practice in all circumstances. I hope that I have reassured the hon. Gentleman that that is what the discretion is about—it allows the NCC the right to work with whomever it wishes to work with. That might mean that it goes direct to the Liberal Democrats, Scottish Nationalists or another political party, or to an advocacy organisation or non-governmental organisation.
For example, there are many organisations that are active in the field of sustainable development and hundreds at national, regional and local level working on behalf of people with disabilities. It should not be for the Secretary of State to determine which of them the NCC should engage with. That would curtail its independence. It is important for its advocacy role that it should have absolute latitude to determine who its partners are. I hope that my explanations have helped the hon. Members for Solihull and for Lancaster and Wyre to accept that the Government’s intentions are completely honourable. We want to give the council maximum opportunity to operate effectively, independent of Ministers and the Department where appropriate.
“any Minister of the Crown or government department”?
Why is the “or government department” added on? Can it not be just that it has to go to any appropriate Minister of the Crown?
Mr. McCartney: This is a function of Government. On some occasions, the council will require direct access to the Secretary of State for a specific reason. On others, as part of a consultation process, it will ask for something to be prepared on behalf of the Department for Ministers to review, or will want their opinion consumer issues. That is how it is done. If it were not done that way, Government would grind to a halt. Every day, hundreds of legitimate representations are made to Departments across Whitehall by organisations that have a relationship with Government, seeking information or consulting on the development of policy or its implementation. That is reflected here. It is not unique. It happens on all occasions.
As to Scottish and Welsh Ministers, the hon. Member for Lancaster and Wyre was a Member of the Scottish Parliament, so he knows how that works better than I do. The issue is accountability, and the capacity of the NCC to determine for itself whether it sees fit in the first instance to approach a Department or a Minister of the Crown. It should be able to make that choice.
Lorely Burt: I am grateful to the Minister for the time and trouble that he has taken to give a full and moving explanation as to how he feels that the clause will work. I have no doubt about his intentions to make it work in the way that all Committee members want it to. I have a tinge of anxiety due to the wording, but I shall not press the amendment.
5.30 pm
Mr. Wallace: I understand that any Department’s response is made in the name of the Minister of the Crown. There is no third party or lack of liability. Any response, by the lowliest civil servant or the most senior, is made in the name of the Crown. To say that putting “Ministers of the Crown” would delay that process is not logical, because every day questions are put by civil servants to each other in the name of the Minister of the Crown. If I were to say, “The National Consumer Council went not to a Minister, but just to the Ministry of Defence”, the defence from that ministry would be that no one was in charge; the matter just went to the MOD. Surely, we do not need to say “or government department”, just “Minister of the Crown”. That is the accountability trail. I do not understand why that would delay things. How many things happen every day that do not go via the Minister at all, although we know that they are done in the name of the Minister of the Crown?
Mr. McCartney: There is a second example, although the one that I gave was legitimate and stands. Some non-ministerial Departments—Ofgem and Ofwat, for example—do not have Ministers. Are we to exclude those? I understand why the hon. Gentleman is making that point, but frankly it belies a lack of knowledge about how Government structures work.
Lorely Burt: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
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