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Lord Rooker: Because of the other forms giving information that they will have signed, if they answer questions, they are legally responsible for the questions they have answered. In that respect it is still up to the other searches to identify other matters. It will depend on how old the pack is. They may be asked quite a legitimate question by the buyer's solicitor whether anything had changed since the pack was produced. The person is expected to give a positive answer, "No, there have been no material changes". The person is then legally liable for that information, because that would be like filling in the property information document, which one is not legally required to do, but if it is filled in the buyer is entitled to rely on it. That would be a reasonable answer. If one has not sold the property that has been marketed for three or four months, has anything changed in any of the answers given to the questions? That would raise such an issue. That would cover that. If I am wrong I will come back to the noble Lord. But I wanted to make that point because I had heard before about the need to update the pack. That is not the case. But it must not be more than three months old at the point at which it is marketed.

Lord Avebury: Perhaps I may return to the circumstances mentioned by my noble friend—that subsidence occurred at some point after the home information pack was first compiled. Let us say that the property has been on the market for six months and somebody walks into the estate agent's office and asks whether anything has changed in the answers given. The reply could well be no, because no question
 
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of subsidence would have arisen at the time that the pack was compiled. He could truthfully say no, and would not be liable for any comeback if it was subsequently discovered by the potential purchasers that the subsidence had occurred and that they had not been informed of it.

Lord Rooker: We are getting to the nitty-gritty of an individual case; of course, the legislation needs to cover all the individual cases that we can think of, and those that we cannot. I shall have to take advice on that. I am answering as a reasonable person in the sense that I am saying, contrary to what people have alleged, that no one has to update and have another survey or home condition report done every three months. We never said that. Others have claimed that that is the case, but it is not. I am making that clear.

Nevertheless, people are entitled to rely on the information that they have been given. After a time, it would be quite legitimate for the solicitors rather than the estate agent to check with each other whether there has been any change in any of the answers that their clients gave, or whether any new information has come to light that would materially affect any of the answers given. It would be legitimate to ask that and demand a clear yes or no.

Lord Phillips of Sudbury: I can help the Minister further. It would be negligence on the part of the solicitor who did not make that the very first question that he asked. I am sure that everyone will be immensely relieved to hear what the Minister has just reiterated—that, in marketing a property, one is not on an endless escalator of updating, new searches and new surveys. That takes a lot of heat out of the matter.

Lord Rooker: Perhaps I should have said it about 10 hours ago. No one asked. The noble Lord did yesterday, but we did not answer; I plead guilty.

Lord Phillips of Sudbury: Earlier today—it was a long time ago—I thought that my noble friend Lady Hamwee made a veiled invitation to the Minister, if he had nothing else to do, to join her firm as part of the property team. I would be interested, too, and could overtop any offer that she may be able to make. The Minister demonstrates the dexterity, resilience and optimism that are the marks of a good property man.

Lord Rooker: I have always been a nosy parker, which is why I thought that I was a moderately good constituency MP. I was nosy on behalf of my constituents. As for going into the legal profession, there will of course come a day when I do not continue to take the Blair shilling, and one may have to look for something else. I certainly had not thought about the legal profession.

Amendment No. 198 seeks to replace "relating to or affecting" with "relevant to". Having listened to what Members of the Committee have said, we are still not convinced that a change is necessary. We find it difficult to envisage any relevant information in the
 
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registers and records that does not relate to or affect the property. Even if there were any, that would not prevent the Secretary of State prescribing such information in the pack. Clause 144(5) does not affect the Secretary of State's powers under Clause 144(4) to prescribe for inclusion in the pack any information about a matter connected with the property or its sale that is of interest to buyers.

We are in the process of setting up a working group with the key stakeholders to advise on the nature of the searches to be included in the home information pack. All the key players are represented, including representatives of local authorities, search organisations, conveyancers and lenders. Whichever searches are chosen, I am confident that they will meet the "relating to or affecting" test.

The noble Lord, Lord Phillips, asked what the consequence was of all the contractual terms not being in the pack. There is an issue on that relating to the Law Society's opposition to including contracts, but I regret to say that I cannot put my hands on the relevant note at present.

Clause 144(5)(a) states that the regulations may be made on the property for sale and the terms on which it is to be sold. In our opinion, it would be better if all or none of the terms were included rather than for the contractual terms to be withheld. It may be that those terms are material or of particular importance to the buyer and that they would have affected his decision to buy. Withholding some of them may affect the meaning of some that remain.

Clause 150 confers the right of private action in respect of failing to comply with a request to produce a pack. Ultimately, that must be a matter for the buyer and the seller to resolve. We do not think—this may be the noble Lord's concern—that the pack would affect the validity of the sale. Either the property has passed from person A to person B or it has not, but that matter relates to the legal contract and the exchange. The contents of the pack would not affect that part of the sale. I am not sure whether that answers the noble Lord's specific question. If it does not, I apologise and I shall try to come back to it.

Lord Phillips of Sudbury: I am most grateful to the Minister for even endeavouring to answer the question. I think that it would be helpful to the Committee if he returned to it because Clause 150 does not provide compensation; it provides only for the recovery of fees paid by a frustrated buyer following, for example, the failure of a would-be seller to provide the necessary survey. It would not cover a case where a seller simply did not put into the pack other terms required by the subsidiary legislation. As I said, I think that it would be helpful to hammer this matter out later.

Lord Rooker: We would not expect the omission of a component of the pack to affect the validity of the sale. That is our view. We do not think that if a component
 
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of the pack were omitted, the technicality of the sale—the exchange of the ownership from one person to another—would be affected.

Lord Phillips of Sudbury: But it might of course affect the price which the purchaser would have been willing to pay had he or she had it.

Lord Rooker: I fully accept that, and that would be a matter for later action because the sale would have taken place. I presume that such things happen now; for example, where the sale has taken place but the new owner is aggrieved about something that was missed out in the normal course of events and he may seek to claim damages due to negligence from someone who had advised him—perhaps the estate agent or the solicitor who had been acting for him. Perhaps damages would be sought from the previous owner, who did not answer all the requests for information. There have been cases in the courts involving people who did not correctly fill in the voluntary check list. They filled it in but not accurately, and the buyer was entitled to rely on it.

Lord Phillips of Sudbury: I thank the Minister for that. The only reason that I persevere with wondering whether it is not worth a little more investigation is that Clause 150 deals with a civil remedy—this has nothing to do with criminal law—but does not refer at all to normal common law compensation rights. But perhaps that is not necessary. Again, it may be worth the Government returning to this matter because I suspect that this is the kind of thing that will happen many, many times, and it may be as well if we cleared the decks for the consumers.

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