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Lord Lofthouse of Pontefract: My Lords, before the Minister sits down, perhaps I may congratulate my noble friend on an excellent maiden speech. I have today felt somewhat sad during the debate because some of our colleagues who have always taken part in these debates have unfortunately passed away—notably, Peter Hardy. We miss them very much.
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Let me make a couple of points in the time available. First, how does the £300 million already paid to solicitors compare with what has been paid to the miners? Secondly, and I shall finish on this point, the noble Earl, Lord Attlee, said that he had not seen victims of this disease. I occupy the chairmanship of the Mid Yorkshire Hospitals NHS Trust. If the noble Earl is in my area at any time, I will gladly take him and show him some of these victims fighting for life in hospital; you cannot live without oxygen.
Lord Evans of Temple Guiting: My Lords, the noble Lord, Lord Dixon, raised a point about the fact that most miners use vibrating tools and that the VWF scheme does not take account of this. I understand that this is a highly emotive issue. The VWF scheme has an occupational group procedure so that those claimants who were not obviously exposed to vibration on the basis of their occupation can establish a case for compensation by gaining the support of witnesses to show that they were exposed. This is a very difficult and contentious area, but it is important that the Government ensure that compensation goes to those who are entitled to it. Although these claims are difficult to assess, they make up less than 10 per cent of all the remaining claims.
My noble friend Lord Dixon made a point also about revised offers. Revised offers are dealt with as efficiently and speedily as possible. A number of issues are still under discussion and are delaying full and final settlement. Issues such as crossover are close to resolution. Wherever possible, the interim payment is made. Solicitors are kept informed of all progress on outstanding issues. To respond to a large number of queries about individual claims would cause further delay.
Given the time, I shall arrange to write to my noble friend Lady Morgan, the noble Baroness, Lady Barker, and the noble Earl, Lord Attlee, about the interesting points that they raised.
Housing Bill
Clause 141 [Other duties of person acting as estate agent]:
[Amendments Nos. 193A to 194 not moved.]
Lord Rooker moved Amendment No. 194ZA:
On Question, amendment agreed to.
The Earl of Caithness moved Amendment No. 194A:
The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 194B. This is a small but important amendment which would allow estate agents to mention to potential buyers properties which may become available for sale, but which are not yet on
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the market. We touched briefly on the matter yesterday, but it needs to be looked at again in a little more detail, because it is still unclear at what point a property is deemed to be on the market and a home information pack necessary. We discussed various scenarios that are not classified as marketing; for example, if one was at a dinner party with friends or if one happened to say that a property might become available. The noble Lord, Lord Phillips, asked what would happen if someone indicated that a property might become available at an auction.
The amendment would make it clear that an agent can mention to potential purchasers that a property may become available in the future. I beg to move.
Lord Rooker: The noble Earl is right to raise the matter again so as to clear up any doubts about it. Clause 141 imposes a duty which affects only estate agents and which applies where some kind of marketing activity takes place that is too limited to trigger the duties imposed by Clauses 137, 138 and 140. That duty is to have a home information pack available when a qualifying action is taken. A "qualifying action" is defined as an action taken with a view to marketing, or, following your Lordships' acceptance of Amendment 194ZA, with the intention of marketing. Such an action communicates the fact that a property is, or is about to become, available for sale, but does not put it on the market or make public the fact that the property is on the market.
It may help if I give a practical example of the sort of situation this clause is intended to deal with. An estate agent is instructed to sell a property. Before marketing starts properly—that is, before the "For Sale" board is put up and adverts are placed in newspapers—the estate agent tells a potential buyer on his list that a property he, the buyer, is likely to be interested in is about to go on the market, and invites him to make an early appointment to view. In this example, the property may not be on the market as defined by Clause 131. That definition provides that a fact is made public when it is communicated with the intention of marketing to the public or to a section of the public. In the example I have mentioned a communication with one individual may not be with a section of the public, but would clearly be an action aimed at marketing that ought to trigger the home information pack duties.
Without the provision, estate agents would be free to engage in pre-marketing activities that would amount to marketing in all but name. By deleting the words "or may become available for sale", Amendment 194A would have the effect of allowing an estate agent to tell a potential buyer that a property was about to come on the market, with a clear view to marketing it but without triggering the associated duty to have a pack.
It is important for me to stress that those duties are only triggered when any communications are part of a direct attempt to market the property in question. An estate agent is not in breach of the duty if, for example, he or she remarks to a spouse or a colleague that a particular property is going on the market. This would
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not be a "qualifying action" within the meaning of Clause 141, provided the communication was not aimed at marketing the property.
I give another example. An estate agent is seen at a property that is not yet on the market, and is asked whether it is up for sale. If he were to answer truthfully and say, "Not yet, but it will be as soon as the home information pack is ready", that would not be a qualifying action either. There is a difference between knowing information and actually marketing to the public. It is self-evident.
Amendment No. 194B would delete subsection (3)(b) of Clause 141, which provides that a qualifying action for the purpose of this clause is an action that falls short of putting the property on the market. I have already explained that the whole purpose of Clause 141 is to capture an activity that, while amounting to it, does not meet the definition of "marketing" set out elsewhere in the Bill. I hope it is clear to the noble Earl, as a professional in the property field, that it is quite obvious whether one is making a communication with a view to marketing the property for sale, or just having a chat about it in the office or at home. The two things are quite different, and hopefully professionals will be able to tell the difference between the two.
The Earl of Caithness: I am grateful to the Minister for the time and trouble he has gone to in responding to my amendment, and I will read what he says with care. However, I am sure he would agree with me that the tighter one legislates in this area, the more difficulties will be created, and the more the unscrupulous will twist and bend the rules for their own potential profit.
Defining it in the way explained by the Minister creates a huge grey area over when a property is on the market. A potential vendor seeking to put his house on the market in due course invites four different estate agents to look at his property. I do not know whether I will get instructions, but I do know that the property is going to come on to the market. I know also that the noble Lord, Lord Rooker, is on my client list and might be on the list of the noble Lord, Lord Borrie, as well. But given that the noble Lord is a good mate of mine, I shall ring him and tell him about the property. I say that I do not know whether I will be instructed, but I know that the noble Lord is looking for a property and has made an offer on a house that is his second choice. In such an area one is not quite certain whether or not one is marketing a property if, five minutes after I have spoken to the noble Lord, Lord Rooker, the vendor rings me to give me instructions.
As I understand the legislation, I would have got away with telling the noble Lord, Lord Rooker, about that property. Five minutes later, however, I could not have done so. That kind of situation represents a grey area that will result in endless disputes. It is something we must come back to because it is not right. It is not helpful to the profession, to vendors or to purchasers.
We have passed the stage of trying to get around the home information pack. If one accepts that we are to have home information packs, it is then the ability to get out there and tell someone that something is going to
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happen which is still uncertain. People are very keen to buy at the moment. They might not be so keen to buy in three months' time and that will be a different market. However, this is an area where there is a potential for conflict and potential grounds for court actions. That is not helpful to the smooth running of the market.
The Minister has given a full reply, but I think that he understands my point.
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