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Lord Bassam of Brighton: It is always nice to be surprised when speaking at the Dispatch Box. The speech just made by the noble Lord, Lord Phillips, has been a very pleasant surprise indeed. It almost makes me wish that I had been old enough, back in 1970, to vote for him. I used to live in the area where the noble Lord stood for election. However, that is wishful thinking on my part.
What we are trying to do here is to enable potential buyers to be entitled to have a copy of the pack or part of the pack if they want it and are prepared to pay any reasonable fee for the copying costs, and Clause 138 provides for this. Potential buyers will often want to show a copy to their legal representative, for example, or look at the contents at their leisure. That is fair enough, but we can foresee situations in which the seller or his agent should be able to turn down such requests for copies without breaching the home information pack obligations. As I pointed out earlier, subsection (4) of this clause sets out the three possible circumstances when the duty to supply a pack may not apply.
The first of these circumstances is when the seller or his agent believes, on reasonable grounds, that the person could not afford the property in question. The agent might know the financial circumstances of the
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person in question, for example. The seller may also want to exclude people who could not demonstrate that they had arranged "in principle" a mortgage offer.
The second circumstance applies if it is believed that the person making the request is not really interested in buying the property or one like it. An example of this might be where a journalist poses as a buyer to gain access to the home information pack relating to a celebrity's home. Another example is that of a serial time-waster who is known to the estate agent.
The third reason allows someone not to provide a copy of the pack if they believe that the potential buyer is not a person to whom the seller would wish to sell the property. There could be all sorts of caveats which a seller might want to attach to the sale of the property. For example, a seller with a prize-winning garden has already been mentioned. He might instruct the agent not to market to anyone who was not a keen gardener and who might neglect the garden.
There are human rights implications here as regards the right to privacy. This subsection simply reflects the current position, where someone can simply refuse to sell his home to a particular person if he wishes to do so, and for no particularly good reason. Having said that, the provision does not affect anyone's rights under the legislation governing discrimination on the grounds of race, sex or disability. In no way can this provision be used to contravene that legislation.
Subsection (5) provides that subsection (4) does not apply if the responsible person knows or suspects that the person making the request is an officer of an enforcement authority. These provisions in our view strike a reasonable balance between the need, on the one hand, for genuine buyers to get copies of important documents and, on the other, for sellers or their agents to refuse this where they believe that there are good grounds to do so.
Amendment No. 188A would remove the right for a seller or their agent to refuse to supply a pack if they believe that the person asking for copies was not someone to whom the seller was prepared to sell the property. While we can understand the sentiment behind the amendment, I believe that the concerns which have been expressed about it are misplaced. The existing legal position is of course being preserved. A seller can choose to whom they wish to sell and to whom they do not. It would be unreasonable to put a seller under a duty to provide copies of the pack to people they know they will never sell to. For those reasons we cannot accept either of the amendments. I am very grateful to the noble Lord, Lord Phillips, for setting out some very good arguments in support of our case.
Lord Hanningfield: I know that the noble Lord, Lord Phillips of Sudbury, gave the Government some little measure of comfort when speaking to these amendments. He also agreed that the wording of the clauses, which concerned us more than anything, can be very much misinterpreted. I agree with the noble Baroness, Lady Hamwee, that there might be some legal challenge to them.
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This is the problem with this section of the Bill. When looking for a new house most people want to look at about 50 houses. If I were looking I would want to look at between 50 and 100 houses. One would want information about 100 houses because one would want to visit in a wide area. Most of the people I know looking for a new house look at that number before buying. Because they go to an estate agent and ask for details of 20 houses over a period of two or three weeks does not mean that they are not seriously in the market. But as my noble friend Lord Caithness said, it means an enormous amount of paperwork in the future because one cannot just get the simple detail of a house and look at it and then dismiss it, because one has to have a pack.
Therefore, I believe that these clauses would mitigate against buyers who want to put a lot of effort and thought into the new home. It is about the freedom of the consumer. We have had several discussions about that today. People will finish up with a large number of packs when choosing a new home. I believe that although the clauses are protection for some people, they are written in a way which can deter and work against the purchase. We shall have all these arguments again at Report, which will take another month at the rate we are progressing at the moment. I shall not pursue this amendment any further today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 188A not moved.]
Lord Rooker moved Amendment No. 188B:
"(6) That duty does not apply where the responsible person is the seller if, when the request is made, the duty under section 137 does not (by virtue of subsection (2) of that section) apply to him.
(6A) But where the duty under this section is excluded by subsection (6), it is the duty of the seller to take reasonable steps to inform the potential buyer that the request should be made to the other person."
On Question, amendment agreed to.
Baroness Hanham moved Amendment No. 189:
"( ) All documents and information contained in the home information pack shall be confidential to—
(a) the seller,
(b) the person acting on his behalf as an estate agent,
(c) a person acting on his behalf as a solicitor or conveyancer, and
(d) any bona fide buyer or potential buyer."
The noble Baroness said: We had quite a lot of discussion about Internet packs, but we have not discussed how confidential information packs should be and to whom, particularly to those who are on the net. It is very easy to publicise on the net. This amendment is designed particularly to ensure that a degree of privacy is maintained between the various parties in a property transaction.
Clearly, confidentiality is easy to administer when dealing with paper-based documentation, and I shall come back to that. By and large, people respect the
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word "Confidential" written across the top of a page. But without getting too bogged down in the intricacies and complexities of Internet protocols and security, if a home information pack were to be sent via an e-mail, by and large it would be secure. It will meet the recipient without falling into the public domain.
However, if a home information pack were to be posted on an estate agent's website, it would be publicly accessible and it could be misused. Will these information packs be confidential to those who are given them? It goes back to the question which the noble Lord, Lord Hanningfield, raised a minute ago about the number of packs which people are likely to obtain.
Unusually, in these packs there is a home condition report and, unusually, therefore, there is going to a large amount of information about a particular property if the pack is done properly. Potentially, a great number of people are going to have access to that information and pass it from hand to hand, if that is what they want to do. I suspect that if someone receives a home information pack and then decides not to proceed they will pass it to someone else. There will come a moment when an estate agent will not know who has its information pack.
We need to look at the extent of the role of the information pack and whether there is to be any privacy, particularly on the Internet, to which I have directed the amendment. It is wide enough to encompass the information packs in general. As I say, I believe that there is a potential problem here where there will be a great deal of information available about a property to people who may not have interests which are wholly worthy. I wonder whether we can do something about that. I beg to move.
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