Memorandum submitted by the Law Society of Scotland (CEAR 04)

 

CONSUMERS, ESTATE AGENTS AND REDRESS BILL

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 3, page 3, line 4 Leave out sub-section 4(b)

 

Clause 5, page 3, line 39 leave out lines 39 and 40 and insert "consumers, including designated consumers, and consumer matters"

 

Clause 5, page 3, line 41 leave out from the second "to" to end of line 42 and insert "consumers, including designated consumers, and consumer matters"

 

Clause 5, page 4, line 1 Leave out sub-section (1)(c)

 

Clause 5, page 4, line 2 Leave out sub-section (1)(d)

 

Clause 5, page 4, line 32 After "(5)" insert "and any comment received from interested persons"

 

Clause 5, page 4, line 39 After "notice" insert "and in any comment received from interested persons regarding its content"

 

Clause 7, page 6, line 1 Leave out line 1 and insert "The Secretary of State, the Scottish Ministers and the Welsh Ministers must lay a copy of the annual report before the Parliament, the Scottish Parliament and the National Assembly for Wales respectively."

 

Clause 8, page 6, line 5 leave out "may" and insert "must"

 

Clause 9, page 6, line 25 leave out "may" and insert "must"

 

Clause 9, page 6, line 25 After "may" insert "research"

 

Clause 9, page 6, line 25 After "under" insert "regular"

 

Clause 10, page 6, line 31 leave out "may" and insert "must"

 

Clause 10, page 6, line 31 leave out "facilitate the dissemination" and insert "disseminate"

 

Clause 10, page 6, line 31 leave out "of"

 

Clause 11, page 7, line 9 leave out "or may affect"

 

Clause 11, page 7, line 12 leave out "or may affect"

 

Clause 19, page 11, line 15 Add at end-

 

(4) The Council must consult with such persons as it considers appropriate before issuing any advice or guidance.

 

Clause 20, page 11, line 36 After "order" insert "and after consultation with such persons as he considers appropriate"

 

Clause 21, page 12, line 15 Leave out clause 21

 

Clause 22, page 12, line 19 Leave out "Voluntary activities" and insert "Power to co-operate and give assistance"

 

Clause 22, page 12, line 20 Leave out sub-section (1) and (2) and insert-

 

"(1) The Council may make arrangements to co-operate with or give assistance to any person as respects any matter in which members of the Council have still, experience or expertise.

 

(2) Where such arrangements do not otherwise facilitate or are not beneficial to the exercise of its own functions, the Council may make such charges as it thinks fit in respect of anything done in exercise of its power under this section."

 

Clause 24, page 13, line 16 After "order" insert "and after consultation with such persons as he considers appropriate"

 

Clause 43, page 26, line 3 After "A" insert "relevant"

 

Clause 43, page 26, line 3 After "regulator" insert "(within the meaning given by column 3 of the table in clause 42)"

 

Schedule 1, page 47, line 11 Leave out "such" and insert "no less than 10 and no more than 15"

 

 

 

 

 

 

CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 3, page 3, line 4 Leave out sub-section 4(b)

 

 

 

 

 

Effect

 

This amendment removes "land or an interest in land" from the definition of goods.

 

 

 

Reason

 

The Society does not think that the definition of goods should include land or an interest in land. Even though a substantial part of the Bill concerns Estate Agents, the inclusion of "services" in the definition of consumer adequately covers any problems that may arise in a residential property transaction. It does not merit amending an existing definition of long-standing.

 

As Baroness Wilcox pointed out at Committee stage in the House of Lords, (18.12.06 at column GC167), this is at odds with the definition of "goods" in the Sale of Goods Act 1979. While Lord Truscott confirmed that the definition has been extended for the purposes of the Bill, he did not give a reason why. The Society would appreciate clarification on this point.

 

 

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 5, page 3, line 39 leave out lines 39 and 40 and insert "consumers, including designated consumers, and consumer matters"

 

 

 
Effect

 

This places an obligation on the Council to publish a statement of any priorities of the Council for the year in respect of all consumers, as opposed to just designated consumers.

 

 

 

Reason

 

As it stands, it is unclear whether subsections (c) and (d) of clause 5 relate to all consumers or designated consumers. To remove this uncertainty and to avoid unnecessary repetition, the Society considers that one provision for all consumers in respect of the Council's priorities is sufficient.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 5, page 3, line 41 leave out from "to" to end of line 42 and insert "consumers, including designated consumers, and consumer matters"

 

 

 

Effect

 

This is consequential to the previous amendment. It places an obligation on the Council to publish a general description of the Council's main activities (including any projects) for the year in respect of all consumers, as opposed to just designated consumers.

 

 

 

Reason

 

As it stands, it is unclear whether subsections (c) and (d) of clause 5 relate to all consumers or designated consumers. To remove this uncertainty and to avoid unnecessary repetition, the Society considers that one provision for all consumers in respect of the Council's main activities is sufficient.

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 5, page 4, line 1 leave out sub-section (1)(c)

 

 

 

This amendment is consequential.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 5, page 4, line 2 leave out sub-section(1)(d)

 

 
 

This amendment is consequential.

 

 

 

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 5, page 4, line 32 After "(5)" insert "and any comment received from interested persons"

 

 

 

Effect

 

This places an obligation on the Council to provide copies of any responses received to notices containing drafts of forward work programmes.

 

 

 

Reason

 

If the Council is to publish a draft of the forward work programme and invite responses to it, then as well as provide the Secretary of State, the Scottish Ministers, the Welsh Ministers and the OFT a copy of the draft programme, the Society is of the view that the Council should also provide the results of any consultation exercises carried out, as such information will surely be of relevance and interest.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 5, page 4, line 39 After "notice" insert "and in any comment received from interested persons regarding its content"

 

 

 

This amendment is consequential.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 7, page 6, line 1 Leave out line 1 and insert "The Secretary of State, the Scottish Ministers and the Welsh Ministers must lay a copy of the annual report before the Parliament, the Scottish Parliament and the National Assembly for Wales respectively."

 

 

 

Effect

 

This places an obligation on the Scottish Ministers and the Welsh Ministers to lay a copy of the annual report before the Scottish Parliament and the National Assembly for Wales.

 

 

 

Reason

Sub-clause (4) places an obligation on the Secretary of State to lay a copy of the annual report before Parliament. The Society is of the view that the Scottish Ministers and the Welsh Ministers should be under an equal obligation to lay a copy of the annual report before the Scottish Parliament and the National Assembly for Wales respectively.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 8, page 6, line 5 leave out "may" and insert "must"

 

 

Effect

 

This places an obligation on the Council to provide advice and information, make proposals and represent the views of consumers on consumer matters to the persons listed in the following subsection.

 

 

 

Reason

 

According to the Bill, the Council has three core functions. This clause outlines the representative function.

 

In the Society's view, it seems strange that while the Bill recognises that the Council ought to be obliged to carry out certain tasks, for example, prepare a forward work programme or an annual report, these do not appear in the section of the Bill entitled "core functions". What does appear under this heading is apparently for the Council to determine, which is, in the Society's view, contrary to the definition of "core functions". The Council should be obliged to carry out what is listed under the three recognised core functions.


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 9, page 6, line 25 leave out "may" and insert "must"

 

 

 

 

 

Effect

 

This places an obligation on the Council to obtain and review information about consumer matters and information about consumers' views.

 

 

 

Reason

 

This clause outlines the Council's research function. As one of its core functions, and as such a high level of expertise is expected from the Council, the Society is of the opinion that it should be mandatory for the Council to obtain and review information about all consumer-related matters and consumers' views on such matters.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 9, page 6, line 25 After "may" insert "research"

 

 

 

 

 

Effect

 

As well as obtaining and reviewing information about consumer matters, this adds "research" to the Council's role in relation to this particular function.

 

 

 

Reason

 

As the clause is entitled "the research function", the Society is of the opinion that the function referred to should include 'research' as an activity.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 9, page 6, line 25 After "under" insert "regular"

 

 

 

 

 

Effect

 

This amendment requires the Council to keep the information that it researches, obtains and reviews under regular review.

 

 

 

Reason

 

Because the Council can reasonably be expected to be an authority on all consumer-related matters, the Society is of the opinion that in order to maintain the requisite level of knowledge, the Council should be obliged to keep the information that they have obtained under regular review.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 10, page 6, line 31 leave out "may" and insert "must"

 

 

 

 

 

Effect

 

This places an obligation on the Council to disseminate information to the consumers about the Council and its functions, consumer matters and any other relevant matters.

 

 

 

Reason

 

This clause outlines the Council's information function. As the third recognised core function, and as the Council is to be considered the main authority on all consumer-related matters, the Society believes that it has a duty to share the information it has obtained with consumers.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 10, page 6, line 31 leave out "facilitate the dissemination" and insert "disseminate"

 

 

 

 

Effect

 

Rather than "facilitate the dissemination", this amendment requires the Council simply to "disseminate" the information.

 

 

 

Reason

 

The Society believes that the inclusion of "facilitate" is otiose. Owing to the level of expertise that is expected from the Council, rather than be obliged to "facilitate" the dissemination of information that it has gathered, it should have an obligation simply to disseminate it.

 

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 10, page 6, line 31 leave out "of"

 

 

 

This amendment is consequential amendment

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 11, page 7, line 9 leave out "or may affect"

 

 

 

 

 

Effect

 

By removing "or may affect" it makes the criteria for what constitutes a legitimate potential problem for consumers more objective.

 

 

 

Reason

 

As it stands, the provision is somewhat vague. To consider whether any matter may be problematic to consumers based on whether or not it may affect them is, in the Society's view, a very subjective test.


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 11, page 7, line 12 leave out "or may affect"

 

 

 

 

 

Effect

 

By removing "or may affect" it makes the criteria for what constitutes a legitimate complaint more objective.

 

 

 

Reason

 

Again, to consider whether a complaint is legitimate based on the fact that it raises an issue that may affect consumers is a very subjective test.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 19, page 11, line 15 Add at end-

 

(4) The Council must consult with such persons as it considers appropriate before issuing any advice or guidance.

 

 

Effect

 

This amendment places an obligation on the Council to consult with other appropriate persons before offering advice or guidance.

 

 

 

Reason

 

The Society has concerns that the provisions contained in clause 19 may result in confusion in the minds of consumers between the Council and other public authorities or organisations that carry out a similar line of work. One example might be the Scottish Public Services Ombudsman. This amendment seeks to ensure that the Council will interact and maintain a good working relationship with other bodies that have existing statutory mandates for the benefit of the Council, such other bodies and consumers alike.


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 20, page 11, line 36 after "order" insert "and after consultation with such persons as he considers appropriate"

 

 

 

Effect

 

This places an obligation on the Secretary of State to consult before deciding who or what can be considered a "designated body" in respect of the provision contained in sub-clause (1).

 

 

 

Reason

 

The Society is of the view that this is quite a significant decision for the Secretary of State to make. He cannot reasonably be expected to know the comparative scope, importance or effectiveness of the numerous consumer-related bodies that exist. He should therefore have a duty to consult before deciding whether or not a person or body should become a "designated body".

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 21, page 12, line 15 Leave out clause 21

 

 

 

Paving amendment.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 22, page 12, line 19 Leave out "Voluntary activities" and insert "Power to co-operate and give assistance"

 

 

 

 

Effect

 

This changes the title of the clause.

 

 

 

 

Reason

 

The title "Voluntary activities" is misleading, as the clause considers what charges the Council should make in respect of the assistance it offers.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 22, page 12, line 20 Leave out sub-sections (1) and (2) and insert-

 

"(1) The Council may make arrangements to co-operate with or give assistance to any person as respects any matter in which members of the Council have still, experience or expertise.

 

(2) Where such arrangements do not otherwise facilitate or are not beneficial to the exercise of its own functions, the Council may make such charges as it thinks fit in respect of anything done in exercise of its power under this section."

 

 

 

Effect

 

The overall effect is to combine the provisions of clauses 21 and 22(1).

 

 

 

Reason

 

The Society believes that the inclusion of both clause 21 and 22(1) is unnecessary as they both concern the Council's power to co-operate and give assistance and can therefore be contained under the same heading. Furthermore, as the Bill stands, each provision appears to stand in juxtaposition of the other. Where the previous clause gives the Council discretion to provide assistance if it considers that to do so would facilitate or be conducive to the exercise of its own functions, clause 22(1) suggests that the Council ought to consider giving assistance where it is not of any benefit to them to do so.

 

By combining the provisions, the apparent contradiction is resolved but the Council still has the discretion to charge individuals for advice or assistance given in instances where there has been no other perceived benefit in offering such advice or assistance.

 

In addition, the Society considers that it is more appropriate to attribute skill, experience and expertise to members of the Council as opposed to the Council itself.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 24, page 13, line 16 After "order" insert "and after consultation with such persons as he considers appropriate"

 

 

 

Effect

 

This amendment places a duty on the Secretary of State to consult before deciding who should be required to supply the Council with certain relevant information.

 

 

 

Reason

 

The Society considers that this is a significant power for the Council to be granted. Such persons who may be specified by the Secretary of State for the purposes of this provision should be given the opportunity to make representations before it is decided whether or not they ought to be compelled to give information to the Council.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 43, page 26, line 3 After "A" insert "relevant"

 

 

 

Effect

 

This is a paving amendment.

 

 

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Clause 43, page 26, line 3 After "regulator" insert "(within the meaning given by column 3 of the table in clause 42)"

 

 

 

Effect

 

This amendment specifies the regulators that the provision is intended to apply to.

 

 

 

Reason

 

The provision only relates to the certain specified regulators but the wording does not reflect this fact therefore this amendment is required to indicate that the provision relates only to the relevant regulators contained in clause 42.

 

 


CONSUMERS, ESTATE AGENTS AND REDRESS BILL

 

AMENDMENTS TO BE MOVED AT COMMITTEE STAGE

 

 

Schedule 1, page 47, line 11 Leave out "such" and insert "no less than 10 and no more than 15"

 

 

Effect

 

This amendment specifies how many members will make up the Council.

 

 

 

Reason

 

In respect of the constitution of the Council, Schedule 1 does not specify how many members the Council should consist of. While the Society does not know how many members are envisaged, this amendment has been paraphrased from the Equality Act as suggested wording.

 

April 2007