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Volume 949: debated on Friday 12 May 1978

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Amendment No. 28 proposed [ 5th May], in page 8, line 38, leave out 'in point of law'.—[ Mr. Bendall.]

Question again proposed, That the amendment be made.

3.38 p.m.

Last Friday my hon. Friend the Member for Ilford, North (Mr. Bendall) moved an amendment to delete the words "in point of law" from Clause No. 7. The time is late, and I do not wish to spend a great deal of time on the amendment.

I make a simple but important point and one which the House will wish to consider further. The position relates to the rights of appeal of an individual who might well have been prevented from practising as an estate agent.

The Director General of Fair Trading may issue an order prohibiting an individual from acting as an estate agent because that person has been guilty of an offence under the Race relations Act or the Sex Discrimination Act. In that event, that person can appeal to the Secretary of State. Although we do not know for certain, the Secretary of State may have set up an appeal procedure whereby that person can make representations. The proceedings might be heard in court, but we do not know. It is likely that the Secretary of State will adjudge whether the Director General was right or wrong.

After that, what rights does the banned person have? Can he appeal to the court or is he denied that right? The Bill now lays down that he can appeal to the court only on a point of law. The amendment seeks to argue that that person should have the option of appealing to the court on the merits of the case.

This is a complex argument because many other Acts set out differing procedures. The one that comes to mind immediately is the Insurance Companies Act under which a person who is adjudged by the Secretary of State not to be a fit and proper person to control the affairs of an insurance company has no right of appeal to the courts. However, he has the right of appeal to the ombudsman against the decision of the Secretary of State. That procedure has been invoked on a number of occasions. There, however, the case is a strong one that the individual who is deemed not to be fit and proper should not perhaps have the right to argue the matter in court.

In this case an individual should have the option of deciding whether to take his case to court. It could be argued that it is unreasonable for an individual to want to argue before a court whether he is a fit and proper person. But in this case the situation will arise in which the Director General will, even before the appeal has been heard, be able to place on the register of individuals against whom an order has been made the name of an estate agent. That estate agent will be listed as banned from trading and will not have the right to put his case before a court of law.

In this case, the option of appealing to a court of law on the merits of the case, on whether it is right for a ban to be imposed, should be written into the Bill, and I hope that my amendment will be accepted.

The Minister of State, Department of Prices and Consumer Protection
(Mr. John Fraser)

I intervene early in the debate in order to respond as constructively as I can to the amendment. I hope that we may make progress and complete consideration of the Bill today because consumers, who have looked to this House for upwards of 90 years for protection against the defalcation of their deposits, would like some satisfaction on this issue as soon as possible. It would be a great pity if hon. Members had on their consciences the next time someone lost his deposit—it usually happens to a young and vulnerable person who is buying a home for the first time—the fact that through their actions those persons have no redress.

I turn now to the amendment. It is not unusual for an appeal to be only on a point of law. Even in the most serious criminal matters, such as murder or man slaughter,or some other serious crime, the appeal to the Court of Appeal is, with some exceptions, generally on a point of law. There is therefore no inconsistency between the construction of this Bill and the construction of statutes covering much more serious infractions than, say, a breach of the qualification for fitness set out in the Bill.

Let me give an assurance, however. When the Director General decides to make an order that someone is unfit under the Bill, that person will have the chance to make representations to him and he must hear oral representation Under Clause 7 I have the power to make regulations dealing with appeals. I have told the House and the Committee that I propose to make recommendations which would be almost identical to those in the Consumer Credit Act. I can tell the House that under that Act there have been 100,000 applications, but so far only one refusal, and that is going to appeal The regulations I propose to make—this is a serious undertaking—would be that the appeals tribunal, which would be a legally qualified chairman and two assessors, would be able under the clause to re-hear a case from the Director General. It is not simply a question of reviewing the case on a point of law. It would be a total review of the facts, and regulations would be so constructed. So there would be, first, representations to the Director General with which he would have to deal in a semi-judicial fashion; second, there would be a full-blown appeal by way of re-hearing, if necessary, to the appeals tribunal Thereafter, it wold be right to follow the precedent that occurs in many other Acts, and certainly in our criminal law, that there should then be an appeal to the courts on a point of law but not a third re-hearing of the entire facts. That is a fair and reasonable way of dealing with the matter. If the appeals tribunal comes to a decision entirely against the weight of the evidence, that decision is appealable as a point of law, not as a matter of fact. I hope that that gives adequate assurance to the House.

3.45 p.m.

I take very much to heart the Minister's comments about the desirability of obtaining major protection for the public in circumstances where their money is lost through the misbehaviour of estate agents, but this is not the first occasion on which I have expressed the view that legislation of this character is too complicated and far-reaching to form the subject of a Private Member's Bill.

I speak with some experience since in 1965 I tried to enact legislation as a private Member. I have requested successive Governments to do something to protect the public against the defalcation of deposits and other moneys passed to estate agents. My advocacy has always lain in a bonding arrangement, so that anybody could practise as an estate agent provided that he could secure a bond to ensure the necessary protection for the public. That would be a simple licensing measure. That bonding would be decided not by the profession itself but by those who would be prepared to underwrite the activities of anybody who wishes to engage in estate agency.

I know that there is hesitation on the part of Governments and Departments which take the view that not too great power should be lodged with the professional bodies. I share that view to some extent, but we must be careful if we are seeking to interfere with a great profession, such as that of estate agency, by bringing in a so-called measure of protection which will put tremendous authority in the hands of the Director General of Fair Trading.

The Minister has tried to reassure us on that matter, but has difficulty in that he cannot give an assurance which goes beyond the terms of the Bill. I accept his personal assurance, but I believe that it cannot be done in terms that are acceptable.

We are dealing with a compromise between this Bill and a proposal that was put up some years ago, with which the hon. Gentleman was associated, which involved a full-blown licensing system. That would have meant a great deal of bureaucratic control in which everything would have to be vested in the profession, but we must remember that a substantial number of estate agents are not members of professional bodies. Have we not a substantial degree of support among the interests involved, and on all sides of the House, for the principle be hind this legislation as evidenced by the Second Reading debate?

I take the point made by the hon. Gentleman, but I believe that I covered this matter earlier. What is required is a simple licensing and bonding measure. I learned that lesson when I was trying to get my original Bill through the House. I discovered that my Bill had evolved in too elaborate a fashion. I came to the view that this could be achieved by a simple licensing measure, but I do not think that we can now attempt to cover the matter in the elaborate form set out in the Bill.

In our debates last Friday on Clauses 3 and 4, emphasis was placed upon the offences as a result of which the Director General of Fair Trading could deny an estate agent a living—for example, if he had been guilty of discrimination or of violence. Why should penalties of that description be added to a Bill of this kind when the offences can be handled through the ordinary courts and through criminal proceedings? Why should powers be given to the Director General of Fair Trading beyond the powers which lie with the courts?

For the same reason that a dishonest policeman is stopped from the practice of that profession.

A dishonest policeman?—I hardly see the analogy. I do not think that that is relevant to the point I am making.

The purpose of the amendment is that the right of appeal to the courts should not be limited only to points of law, and I regard that as perfectly reasonable. I call in aid the comments of the Corporation of Estate Agents:
"We are concerned by the implications of this clause, which places the onus of proof on the estate agent to show that the particulars contained in an order made against him by the Director General of Fair Trading are incorrect. This is a denial of natural justice; the onus should be on the Director to prove his case."
The hon. Gentleman has tried to deal with that, but Schedule 9 places this power firmly in the hands of the Director General of Fair Trading and the Secretary of State, and I consider that no profession should be asked to carry that in its relationship with the public. I entirely support the amendment.

There was a time when I should have agreed that we ought to leave in the words "in point of law", but, in view of what has happened to the role of Ministers and the increasing arrogance of the Executive, I regard the amendment as wholly justified. We have now reached a point where the citizens ought to have a right of appeal against executive ministerial decision not only where that can be termed "in point of law" but where it actually challenges the whole basis of the decision of the Executive.

Whether the Executive be represented by a Minister or by some supervisory body, the truth is that in recent years we have seen a massive extension of arbitrary ministerial and official judgment. If that opinion be challenged, I invite the House to recall the case in which the Home Secretary—no less—now an important Commissioner in Brussels, was guilty of maladministration over the question of television licence fees. Then we had the Secretary of State for Education and Science in the Tameside case, in which it was found that there had been an exceeding of ministerial power.

Therefore, the amendment, which would allow a dissatisfied appellant to have a right of appeal whether there was a defect in law or another defect is wholly justified in the present climate of events.

If there is one tragic feature which has accompanied these past four and a quarter years it is the growing arrogance and insensitivity of both ministerial and official decision making. That has been accompanied by the increasing humiliation of the role and right of the individual citizen. The amendment goes some way towards redressing the balance, for its seeks to increase the appellate power of the aggrieved citizen and diminish the invulnerability of the official and ultimately ministerial power.

The Minister of State, in his brief intervention, reminded the House that in many criminal cases there was a right of appeal only on a matter of law. He was right. That is so as regards criminal jurisdiction in many instances. But we are not talking about a criminal appellate right. We are talking about administrative appellate rights.

I know that I do not carry the Minister with me on this. He does not believe that there has been a growing power of the State and of the official to the disadvantage of the citizen. He would disagree with me fundamentally. But those of us on the Opposition Benches who believe that increasing power has been conferred on the Executive and regulatory bodies are entitled to seize every opportunity to defend and champion the right of the citizen.

I sometimes have the impression that the hon. Gentleman is fonder of the sound of his own voice than he is of social progress. What appeal has the person who has lost his deposit and his life savings? Has not the balance to be struck between the rights of those that practise the profession—and one has tried to build in those rights—and the rights of ordinary, vulnerable individuals who want to set up their own home?

I felt tempted—and I would have succumbed to the temptation had you not been in the Chair, Mr. Deputy Speaker—to suggest that the Minister's intervention was out of order, because he seemed to be referring to a matter quite different from the amendment. What he said related to the grievances not of the citizen but of an estate agent. He asked "What about the person who has lost his deposit?" Of course I am keen to protect that person. But that is not what we are talking about.

Even Ministers of State sometimes make interventions which are wholly inappropriate. The inappropriateness of that intervention encourages me to support the amendment. Why should we have confidence and trust in Ministers of State or officials? Why should we not extend the citizen's right of appeal?

The body to which appeals would be made are the High Court, the Court of Session or the High Court in Northern Ireland. I have infinitely greater confidence in the High Court, the Court of Session and the High Court in Northern Ireland than I have in Her Majesty's Ministers.

If we are to protect the citizen, we should not restrict but should extend his power to appeal to the impartial High Court rather than to bodies which may reflect or be appointed by Ministers of State. That is why I hope that the amendment will receive the support of the House.

Amendment negatived.