Revocation And Variation Of Orders Under Sections 3 And 4
I beg to move amendment No. 12, in page 7, leave out lines 30 to 32.
With this we are to take amendment No. 13, in page 7, line 41, leave out from "it" to "but" in line 42.
This is a new point. It relates to the powers of the Director General of Fair Trading, which, by most people's accounts, are fairly considerable and wide-ranging in their effect on the profession of estate agency. We are endowing with deterrent powers to regulate this profession should the offences, outlined in the Bill and subsequent secondary legislation, be in evidence. The amendment seeks to modify those powers in one small but not unimportant respect.The two exclusions deal with the Director General being able to consider an application for revocation or variation of order in terms based not solely on factual evidence but on his own speculation as to what course of action the appellant might undertake in future. This seems to us, on reflection, to be unjust and to depend too much on the subjective view of the Director General. We wonder why it was felt necessary to put such a provision in the clause. The Director General already has powers to consider whether the applicant is unfit and remains unfit, but we question whether he should do so on the grounds of what might happen in the future. In other words, as the Bill stands, the Director General is able to make a very important decision relating to an estate agent's livelihood on the basis of what he thinks that estate agent might do in the future if the order were either revoked or varied. In those circumstances, I would welcome the Minister's comments on whether he, too, would agree that this was perhaps unfair to an appellant.
If the amendment were carried, the Director General would have no criteria by which to go, and his powers would therefore be rather wider or more arbitrary than I am sure the Conservative Opposition would wish. Subsection (4)(b) places criteria on the Director General—and consideration is not an absolute discretion, because he has to be guided by evidence—by which to judge the applicant who has been barred as a result of the practice. The Director General must consider whether the agent has improved and whether he is unlikely in the future to repeat the practice. That seems to be a perfectly fair test.If a practice has been declared unlawful, and it has led to an estate agent being struck off or debarred from engaging in estate agency, it seems to me right to say that the Director General must address his mind to whether the person is likely to repeat that offence. If by his conduct he has evinced an intention not to repeat the mistakes of the past, it seems right to guide the Director General in that way. The hon. Gentleman may be worried about the word "considers" But that does not give the Director General an arbitrary discretion. He has to consider the matter on its merits and act in a semi-judicial capacity. Of course, if he errs in that, the matter is subject to appeal. I am sure that the effect of carrying the amendment would be to place the estate agent at a much greater disadvantage.