HL Deb 11 June 1953 vol 182 cc878-88

3.32 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Simon.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 1:

Illegal commissions and advertisements

1.—(1) Subject to the provisions of this section, any person who, during the continuance in force of this Act,—

shall be guilty of an offence.

(3) A person being a solicitor shall not be guilty of an offence under this section by reason of his demanding or accepting payment of any remuneration in respect of business done by him as such.

LORD SILKIN moved, in subsection (1) (b), after "let" to insert: unless in respect of each such house he has been authorised in writing by the owner or his agent to effect a letting,

The noble Lord said: I beg to move the first Amendment standing in my name. On the occasion of the Second Reading, everyone who spoke felt that this was a very worthy Bill and that there was no quarrel with its principle, but I did indicate in my speech that it was necessary to give it somewhat close examination because it created a number of new offences. Whenever Parliament creates a new offence it is a matter which should receive the most careful consideration, particularly when the Bill is promoted by a private Member. The evil which this Bill is directed against is that certain persons have set themselves up as estate agents and have fraudulently obtained money from persons who are desirous of obtaining a house to let. They have done this either by making a charge for registration or by making a charge for a list of properties available for letting. In both cases, the essence of the thing was that the agent had not genuine accommodation to let or was not authorised by the owner of the house to effect the letting.

I will not trouble the Committee by quoting from the speech of the noble and learned Viscount in opening this matter, but throughout that speech he implied—indeed, he went further than merely to imply; he actually stated—that persons were obtaining money by fraudulent means, and he gave us some indication of the extent of the evil. For instance, he told us that something like £100,000 had been obtained by fraudulent methods, that there had been seven prosecutions and that there were to-day some sixteen agencies still operating out of an original number of forty in Greater London. I imagine that this particular evil is largely concentrated in London. It is not a major matter but, as we are all agreed, it is a cruel fraud on people of small means who are seeking accommodation and who are not able to afford even the small charge which is usually made for registration.

I have examined Clause 1 in the light of that background to see whether the evil that we want to remedy is met, and whether the proposals go beyond what is necessary for effecting the remedy. I am of opinion that in certain respects we are going considerably beyond what is necessary in order to remedy this evil, and it is for that reason that I have put down this Amendment. Under Clause 1 (1) (b), it is an offence to demand or accept payment of any sum of money in consideration of supplying, or undertaking to supply, to any person addresses or other particulars of houses to let. That, in itself, does not seem to me to be an evil thing to do at all. Why should not a person make a charge for supplying names and addresses of properties that are to let? The evil arises if, as the noble and learned Viscount pointed out on the Second Reading, the person who supplies the list has no authority to supply it; he has not been authorised by the owner of the property to effect the letting or, in some cases, the properties may not even exist or may not be available for letting. In other words, a demand is made for payment for something which the agent is not in a position to give. I have drawn my Amendment so as to limit it to cases where a demand for payment is made in respect of properties which it is not in the power of the agent to let. I provide that, in effect, it shall not be an offence if the agent has been authorised in writing by the owner or his agent to effect the letting.

In those cases, I see no reason why an agent should not make a charge for providing a list of bona fide lettings which the owner has authorised. I know it is not the normal course of procedure. In the ordinary way, you go to an agent and he gives you a list of properties, if he has them in good faith, and if you are seeking to rent a house you do not pay the agent any fee; it is the owner of the property who pays the fee or the commission to the agent. But that is not the invariable procedure. It often happens that the owner of a property will say: "I am prepared to effect this letting but I am not prepared to pay the commission. The prospective tenant must pay the commission." That is a perfectly lawful thing to do and there is no reason why that sort of arrangement should not be allowed to continue as lawful in the future.

My Amendment provides that, where an agent supplies in good faith a list of premises, in regard to which he has been properly authorised by the owners to effect a letting, and makes a charge for providing that list, it shall not be deemed an offence. That does not cut against the principle of the Bill at all. It will still be an offence to charge for providing a list where the agent has no authority to effect a letting, and will still be an offence under Clause 1 (1) (a) to demand or accept payment of a registration fee, merely for registering. In those circumstances, I hope that we shall not deliberately make this Bill wider than is necessary and that we shall not make it an offence for people to conduct their businesses in a way which is perfectly lawful and perfectly honourable, and in a way which is quite commonly carried out at the present time. For these reasons I beg to move the Amendment.

Amendment moved— Page 1, line 14, after ("let") insert the said words.—(Lord Silkin.)

3.41 p.m.

VISCOUNT SIMON

I have considered the Amendment which the noble Lord, Lord Silkin, has put down. I have discussed it with my advisers and with those who are promoting this Bill, and I have come to the conclusion that I must ask the Committee not to accept this Amendment. The noble Lord has, of course, stated quite accurately the provision: in the Bill and the normal practice of reputable house agents. He is proposing to add these words at the end of paragraph (b). What does paragraph (b) do? It seeks to make it illegal to demand or accept money from a would-be tenant for supplying addresses or particulars of houses or flats to let. The noble Lord quite correctly said that the accepted practice of reputable house agents is to look to the lessor, to the owner, for their remuneration. His Amendment refers to the owner, and speaks of the owner as having authorised the agent in writing (which cannot be very common) to effect a letting. I cannot see that there is any reason at all for proposing this exemption.

Let us take the case of the owner of a whole block of flats—500 of them. What is assumed by this Amendment is that the owner of these 500 flats should, in writing, authorise his agent to effect a letting, to find a tenant. But is that any reason in the world why the agent should say to the would-be tenant who is eagerly seeking a flat, "I have on my books a lot of flats which would suit you and I am authorised to find a tenant, but I will not give you the list unless you pay me something"? That seems to be a very unusual and, I should have thought, a most discreditable claim. The agent looks to the owner to remunerate him; he does not look to the man who applies for a flat and demand payment from him before he will give him the list. Yet that is the situation which is contemplated in this Amendment.

The accepted practice among reputable house agents—I emphasise the word "reputable"—is to look to the owner for remuneration, and there is nothing in this Bill which in the least interferes with that. The Bill merely says that it will become an offence for an agent, whether or not authorised by the owner to look for possible tenants, to say to the applicant. "I have a long list of flats which I think will suit you; pay me or else I will no give you the list." That is the justification for resisting this Amendment. I may point out that paragraph (b) in the Bill has been considered by very responsible bodies of house agents, and they approve of the paragraph as it stands. They do not ask that this exception should be inserted, and I cannot see any ground why it should be inserted. If t is inserted it will go far to destroy the effect of this part of the Bill.

Consider this practical difficulty. The owner of some flats may very well put the letting of them in the hands of more than one agent—I should think in many cases anybody who has a house which he wants to let does put the letting of the house in the hands of more than one agent. Is every one of these agents to be entitled to demand payment from a person who is seeking a house, before ho gives particulars of the house? The effect of the Amendment would be to permit these dishonourable exactions, which are due to nothing except the shortage of accommodation and the great desire of many people to find somewhere to live, to be demanded over and over again. When the poor person for whom the noble Lord very properly expressed sympathy seeks the accommodation which he needs, the effect of the Amendment would be to impose upon him the risk of being required to pay to the agent, over and over again, what lie demands for supplying the addresses and particulars of flats, not one of which may be in the least suitable for his requirements. In many cases the flat will already have been let by another aunt, though the other agents employed may riot know it.

I am sorry, but I cannot think that if this Amendment is understood and its effect appreciated, the Committee will be prepared to make this change in the Bill, which, as it stands, is accepted by all reputable house agents as a very proper provision, and one which they heartily welcome. For those reasons I regret that I cannot indicate any willingness to accept the Amendment, and I hope that the Committee will refuse to do so. As the noble Lord has said, this Bill is the effort of a private Member in another place, but it is a Bill which has been surveyed and considered by the Government Department principally concerned, and the Committee may hear from the Government Front Bench whether this Amendment of the noble Lord appeals to them. If it does not, then I hope the Committee will without hesitation reject it.

LORD MANCROFT

This, of course, is a private Member's Bill, and the Committee will very properly look to the sponsor, my noble and learned friend Lord Simon, for ultimate advice as to what decision should be taken. In view of the fact that upon the Second Reading I intimated that Her Majesty's Government were in favour of the proposals contained in it, however, I feel that your Lordships would wish me now to indicate what views, if any, Her Majesty's Government hold upon this particular Amendment. I will not weary your Lordships by repeating any of the arguments which the noble and learned Viscount, Lord Simon, so cogently advanced. I will content myself by saying that, in the opinion of my right honourable friend, the inclusion of this Amendment standing in the name of the noble Lord, Lord Silkin, would not improve the Bill.

LORD SILKIN

I do not propose to press this Amendment, but the noble and learned Viscount did not really deal with the question as to why this charging of a fee should be made an offence. I did not pretend that it was the normal course for an agent to charge a fee for providing lists of addresses. I did indicate that we ought to be extremely careful before we increased the number of offences, and the noble and learned Viscount has spoken as strongly as anyone in this Committee on that very subject. Merely to do something which is unusual is not an offence, and I see nothing particularly reprehensible in making it a condition of going to the trouble of supplying addresses—genuine addresses—of places that are available for letting, that a person should be paid for it. I think the noble and learned Viscount was a little fanciful in imagining that a large number of agents will have large numbers of properties available for letting and that the unfortunate would-be tenant will go round paying all these agents for exactly the same addresses. If that were the case, I do not think there would be very much need for the Bill at all. It is because of the shortage of accommodation that the need for the Bill arises. Having regard to the views of Her Majesty's Government on this Amendment, however, I do not propose to press it, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

3.53 p.m.

LORD SILKIN moved to omit subsection (3). The noble Lord said: I beg to move the second Amendment which stands in my name. It refers to the provision in Clause 1 of the Bill which exempts a solicitor from the penalties that can be imposed on ordinary people. Subsection (3) of Clause 1 provides that: A person being a solicitor shall not be guilty of an offence under this section by reason of his demanding or accepting payment of any remuneration in respect of business done by him as such. I take that to mean that if a solicitor does any of the things set out in paragraphs (a), (b) and (c) of subsection (1) he is not guilty of an offence under this Bill. On the occasion of the Second Reading, I asked why there was this special exemption for a solicitor. Why exempt a solicitor who demands or accepts payment of any sum of money in consideration of supplying or undertaking to supply addresses of property to let even if (I say this in view of the decision on the last Amendment) they are not genuine addresses, or he has not been instructed? Why should he be exempted? And if a solicitor is to be exempted, why not other people? Indeed, this Bill applies to any person with the exception of a solicitor. The purpose of moving this Amendment is to find out why this particular profession—of which, I must admit, I am a member—should be favoured in this way. I know that this provision was not in the Bill originally, and I believe that some representation was made by Scottish solicitors for a provision of this kind. As I understand it, no representation was made by English solicitors. I do not think they are particularly interested in being exempted. But beyond the fact that representations ware made by Scottish solicitors. I no not understand why solicitors should be so favoured under this Bill. I should be very glad to have an explanation from the noble and learned Viscount. I beg to move.

Amendment moved— Page 2, leave out lines 5 to 8 inclusive.—(Lord Silkin.)

VISCOUNT SIMON

The noble Lord has raised this question, if I may be allowed to say so, very reasonably, and he has put to the Committee the considerations which moved him in proposing to leave out subsection (3) of Clause 1. As he says, subsection (3) was not in the Bill when it received a Second Reading in another place. It was inserted in Standing Committee there, and the reason for its insertion was that which the noble Lord has just indicated. The Law Society of Scotland—I do not know whether one can regard it as the counterpart of the organisation which we know as the Law Society here—asked for the subsection to be inserted in the Bill because they feared that otherwise the Bill might interfere with one of the legitimate professional activities of Scottish solicitors. Apparently, in Scotland, at any rate, solicitors do act to secure the tenancy of a house. It is a difference between Scottish practice and English practice, I dare say; but that is the fact, and the members of the Law Society of Scotland were, therefore, anxious to secure that what in their country is a quite legitimate professional occupation should not be brought into question by the language of this Bill.

The noble Lord, very naturally (I am disposed to admit. that asked it myself when I saw the subsection) asked the question: If you make this provision for solicitors why should you not equally make provision for other professional sons—barristers perhaps—who might be concerned in letting the property of owners who employ them? The answer is that the members of those other professions do not regard it as any part of their professional business to secure tenancies for houses. It is conceivable, I suppose, that such a situation might arise with an English solicitor, a man acting, perhaps, for executors wishing to find a tenant for a house with which they had to deal, who might, in the course of dealing with the testator's property, find and put forward someone who wanted to take the house. But that is a very doubtful instance, I should think. The House of Commons came to the conclusion that it was right to put in subsection (3) really to quieten people's anxieties. I myself do not believe that makes any real difference whether the words remain in or are taken out. I think the effect is probably the same, because the Scottish solicitors who are engaged in this letting business do not demand or accept payment of a sum of money from an individual who comes to them and asks for a list of property to let. But that is the justification. Therefore, it is not difficult to see why subsection (3) is put in. The Law Society in Scotland asked that the position of members of the profession in Scotland should be made quite clear, and I suppose that we should be willing to give them that assurance in the Bill.

I think it is a sufficient answer to the noble Lord, who has put his point very reasonably (for, as I say, I shared his query when I first saw it), to say that this is simply a protective clause to calm the possible anxieties of respectable and. eminent gentlemen who feel that the question might be raised as to whether what is part of their ordinary practice was an offence under the Bill. It is not intended that it should be an offence: they do not have to do what is mentioned in subsection (1). However, it is right that Parliament should include in the Bill a subsection which removes anxieties, even though I confess that I think they are rather fanciful. In the circumstances, I could not suggest that the House should accept this Amendment.

LORD MANCROFT

I regret to say that I am unable to whip up any tumultous excitement this way or that about this Amendment. Looking at it generally, the advice I would give your Lordships is that the Bill will probably be better without Lord Silkin's Amendment.

LORD SILKIN

The noble and learned Viscount is not enthusiastically in favour of the retention of this provision, and the noble Lord, Lord Mancroft, gave no reason at all why it should be retained. I am afraid that I remain unconvinced. I feel that the Bill would be better without subsection (3). As the Bill stands, it appears that no one may commit the offences under subsection (1) except solicitors. I am sure that that is not the intention, but that is how it strikes me, on reading it. I suggest that the noble and learned Viscount should think about this again: there is still a Report stage and Third Reading. Possibly he will have second thoughts and agree that the Bill would be better without subsection (3). I will not press the matter, nor will I ask him to give any undertaking; but if he cannot remove this provision I hope that between now and the next stage he may think of better reasons for retaining it than we have just heard. I beg leave to withdraw the Amendment.

VISCOUNT SIMON

I am quite willing to respond to that appeal. It is not an unreasonable request to make. Certainly one does not want to pass a Bill which could be understood to mean that these are offences which no one must commit except solicitors. I recall the passage in The Water Babies, where one of the rules which the madman in that admirable book used to observe was that not more than three Westminster boys should be shot in any one day lest black game should become scarce. And of course we wish to make the same rules for solicitors as for anybody else. Whilst I will certainly look at this point again with my honourable friend who is responsible for the Bill in another place, I do not think it is likely that it will be found possible to omit subsection (3). I expect that what has been said here to-day will produce another message from Scotland, and perhaps from the Scottish Office, which will inform us that they think it important to keep this provision in the Bill.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

EARL JOWITT

May I take this opportunity of mentioning one other matter to the noble and learned Viscount? I do not want an answer now, but I wish to give him an opportunity of considering it. It occurs to me that subsection (1) (c) is a little too wide. In paragraph (c) we are not dealing with any sum of money but with the issuing of an advertisement of a house being to let without the authority of the owner of the house. Obviously, we do not want to catch within the ambit of this clause highly respectable firms. It sometimes happens that eminent firms send round to their clients a list of houses they offer to let. It may be, perhaps owing to a mistake, or because one of the houses has been disposed of, that one of the houses is no longer available. I myself have had these lists, and I expect many noble Lords have had them, and I have on occasion found, when inquiring about a particular house, that there has been a mistake and that it is not, in fact, available. Obviously, we do not want that to come within the ambit of a criminal offence, as I am sure the noble and learned Viscount will agree; and although no judge would treat it as such, it is desirable that we should make the position clear in the Bill. I wonder whether the noble and learned Viscount would consider whether some such words as "without reasonable excuse" would not be an improvement to that paragraph. Such words would avoid a result which he will agree would be the last result he would want to achieve, and which would be quite ridiculous. If it were a mere clerical error, then an eminently respectable firm might find themselves unwittingly committing a criminal offence. I should be glad if the noble Viscount will look at this to see whether he can devise some form of words—I have not one in mind—if he thinks there is anything in my point, to meet it.

VISCOUNT SIMON

I am obliged to the noble and learned Earl. I see his point. None of us wants to land an eminently respectable firm in an accusation of crime when there is an explanation that there has just been a mistake. I will certainly look at this matter, and perhaps I might have an opportunity of asking the noble Earl what he thinks. His suggestion is that when we come to paragraph (c) we might consider inserting, perhaps in the beginning of the paragraph the words, "without reasonable excuse, "or some words of that kind. It is a legitimate point. I am greatly obliged to the noble Earl. I will have it looked at.

Clause 1 agreed to.

Remaining clause agreed to.

Bill reported without amendment.

House resumed.

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