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