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Consumers, Estate Agents and Redress Act 2007 (c. 17)(The document as of February, 2008) Page 4 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 (2) In section 3(1) of that Act (grounds for making prohibition orders), in paragraph (c), for "21" substitute "21A". Prohibition and warning orders55 Grounds for prohibition orders(1) Section 3(1) of the Estate Agents Act 1979 (c. 38) (grounds for making prohibition orders) is amended as follows. (2) In paragraph (a), for "has been convicted of" substitute "has committed". (3) After paragraph (b) insert-- " (ba) has failed to comply with an undertaking accepted from him under section 217, 218 or 219 of the Enterprise Act 2002 and given in relation to estate agency work; or (bb) has failed to comply with an enforcement order under section 217 of the Enterprise Act 2002 which was made against him in relation to estate agency work; or " . (4) Section 5(4) of that Act (which provides for section 3 orders based on a person's conviction to cease to have effect when the conviction is spent) is omitted. (5) For paragraph 1 of Schedule 1 to that Act substitute-- " 1 A person is not to be treated for the purposes of section 3(1)(a) of this Act as having committed an offence if he has been convicted of that offence and that conviction is to be treated as spent for the purposes of the Rehabilitation of Offenders Act 1974 or any corresponding enactment for the time being in force in Northern Ireland. " 56 Grounds for warning orders(1) Section 4 of the Estate Agents Act 1979 (warning orders) is amended as follows. (2) For subsection (1) substitute-- " (1) If the OFT is satisfied that any of subsections (1A), (1B) or (1C) apply in relation to a person it may by order notify that person that it is satisfied of the matters mentioned in that subsection. (1A) This subsection applies in relation to a person if-- (a) in the course of estate agency work, he has engaged in conduct falling within paragraph (a), (b), (c), (ca) or (cb) of section 3(1); and (b) were he to engage again in any conduct falling within that paragraph, the OFT would consider him unfit and proceed to make a prohibition order. (1B) This subsection applies in relation to a person if-- (a) in the course of estate agency work, he has engaged in conduct constituting a failure to comply with-- (i) an undertaking mentioned in section 3(1)(ba); or (ii) an enforcement order mentioned in section 3(1)(bb); and (b) were he to fail again to comply with that undertaking or order by engaging in the same or similar conduct, the OFT would consider him unfit and proceed to make a prohibition order. (1C) This subsection applies in relation to a person if-- (a) in the course of estate agency work, he has engaged in a practice mentioned in section 3(1)(d); and (b) were he to engage again in that practice, the OFT would consider him unfit and proceed to make a prohibition order. " (3) In subsection (2) for the words from "a further" to "order" (in the second place it appears) substitute "further conduct as mentioned in subsection (1A)(b) or (1B)(b) or engaging again in the practice specified in the order, as the case may be,". (4) In subsection (3) for the words from "fails to comply" to "order" (in the second place it appears) substitute "engages in further conduct as mentioned in subsection (1A)(b) or (1B)(b) or engages again in the practice specified in the order, as the case may be,". (5) After subsection (3) insert-- " (4) In this section "unfit" means unfit as mentioned in subsection (2) of section 3 and "prohibition order" means an order under that section. " Investigatory powers57 Powers of entry and inspection(1) Section 11 of the Estate Agents Act 1979 (c. 38) (powers of entry and inspection) is amended as follows. (2) For subsection (1) substitute-- " (1) If a duly authorised officer of an enforcement authority ("an officer") has reasonable cause to suspect-- (a) that an offence has been committed under this Act; (b) that a person has failed to comply with an obligation imposed on him under any of sections 15 and 18 to 21A; or (c) that a person has engaged in a practice mentioned in section 3(1)(d); he may, in order to ascertain whether the offence has been committed, whether the person has failed to comply with the obligation or whether the person has engaged in the practice (as the case may be), exercise any power specified in subsection (1A). (1A) The powers are-- (a) to enter any premises (other than premises used only as a dwelling); (b) to require-- (i) any person carrying on, or employed in connection with, a business to produce any books or document relating to it, or (ii) any person having control of any information relating to a business which is stored in any electronic form to produce the information in a form in which it can be taken away and in which it is visible and legible (or from which it can readily be produced in a visible and legible form); (c) to take copies of, or of any entry in, any books or documents produced or provided in pursuance of a requirement imposed under paragraph (b). (1B) An officer may seize and detain any books or documents which he has reason to believe may be required as evidence-- (a) in proceedings for an offence under this Act; or (b) in proceedings under any of sections 3, 4, 6 or 7 relating to an allegation-- (i) that an offence has been committed under this Act; (ii) that a person has failed to comply with an obligation imposed on him under any of sections 15 and 18 to 21A; or (iii) that a person has engaged in a practice mentioned in section 3(1)(d). (1C) If it is not reasonably practicable to exercise any power under subsection (1A)(c) to take a copy of, or of any entry in, a book or document, an officer may seize and detain the book or document for the purpose of inspecting it (or any entry in it). (1D) A book or document which is seized in exercise of the power under subsection (1C) must be returned to the person from whom it was seized unless an officer has reason to believe that the book or document may be required as evidence in any proceedings mentioned in subsection (1B). (1E) Any power conferred by subsection (1) to (1C) may be exercised at all reasonable hours. (1F) An officer exercising any such power must, if required, produce his credentials. " (3) For subsection (4) substitute-- " (4) An appropriate judicial officer may, by warrant under his hand, authorise an officer of an enforcement authority to enter any premises, by force if need be, if on sworn information in writing or, in Scotland, on evidence on oath the appropriate judicial officer-- (a) is satisfied that there is reasonable ground to believe that either of the conditions in subsection (4A) applies; and (b) is also satisfied that at least one of the conditions in subsection (4B) applies. (4A) The conditions in this subsection are-- (a) that any books or documents which a duly authorised officer has power to inspect under this section are on the premises and their inspection is likely to disclose evidence-- (i) that an offence has been committed under this Act; (ii) that a person has failed to comply with an obligation imposed on him under any of sections 15 and 18 to 21A; or (iii) that a person has engaged in a practice mentioned in section 3(1)(d); (b) that an offence under this Act has been, is being or is about to be committed on the premises. (4B) The conditions in this subsection are-- (a) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under subsection (4) has been given to the occupier; (b) that an application for admission, or the giving of such a notice of intention, would defeat the object of the entry; (c) that the premises are unoccupied; (d) that the occupier is temporarily absent and it might defeat the object of the entry to wait for his return. (4C) A warrant issued under subsection (4) shall continue in force for a period of one month. (4D) In subsection (4) "appropriate judicial officer" means-- (a) in England and Wales, a justice of the peace; (b) in Scotland, the sheriff or a justice of the peace; (c) in Northern Ireland, a lay magistrate. " 58 Failure to produce information(1) After section 11 of the Estate Agents Act 1979 (c. 38) (powers of entry and inspection) insert-- " 11A Failure to produce information(1) If on an application made by a duly authorised officer of an enforcement authority it appears to the court that a person ("the defaulter") has failed to do something that he is required to do by virtue of section 9(1) or 11(1A)(b) the court may make an order under this section. (2) An order under this section may require the defaulter-- (a) to do the thing that it appears he failed to do within such period as may be specified in the order; (b) otherwise to take such steps to remedy the consequences of the failure as may be so specified. (3) If the defaulter is a body corporate, a partnership or an unincorporated association, the order may require any officer who is (wholly or partly) responsible for the failure to meet such costs of the application as are specified in the order. (4) In this section--
(5) In subsection (4) "director" means, in relation to a body corporate whose affairs are managed by its members, a member of the body. " (2) In section 3(1) of that Act (grounds for making prohibition orders), after paragraph (ca) (inserted by section 53(2)) insert-- " (cb) has failed to comply with any requirement imposed on him under section 9(1) or 11(1A)(b) below; or " . (3) In section 9 of that Act (information for the OFT), in subsection (4)-- (a) omit paragraph (a); and (b) in paragraph (b) for "such a notice" substitute "a notice under this section". (4) In section 27 of that Act (obstruction and personation of authorised officers)-- (a) in subsection (1)-- (i) omit paragraph (b); and (ii) in paragraph (c) for "other" substitute "any"; and (b) after subsection (1) insert-- " (1A) A failure to give assistance or information shall not constitute an offence under subsection (1)(c) if it is also a failure in relation to which an authorised officer may apply for an order under section 11A above. " Part 4 Miscellaneous and generalContracts concluded away from business premises59 Contracts concluded away from business premises(1) The Secretary of State may make regulations entitling a consumer who is a party to a protected contract to cancel the contract. (2) A protected contract is a contract between a consumer and a trader which is for the supply of goods or services to the consumer by a trader and is made-- (a) during a solicited visit by a trader to the consumer's home or place of work, or to the home of another individual, or (b) after an offer made by the consumer during such a visit. (3) A visit is solicited if it is made at the express request of the consumer. (4) Regulations made under this section may make any provision which may be made by regulations under section 2(2) of the European Communities Act 1972 (c. 68) (by virtue of section 2(4) of that Act). (5) The regulations may in particular make provision-- (a) as to the circumstances in which the consumer may cancel the contract and the effect of such a cancellation; (b) requiring the trader to inform the consumer of the matters within paragraph (a); (c) for the enforcement of any requirement imposed by virtue of paragraph (b). (6) For the purposes of this section, "consumer" and "trader" in relation to a contract have the same meaning as they have for the purposes of the relevant Directive in relation to transactions within that Directive. (7) "The relevant Directive" means-- (a) Council Directive 85/577/EEC to protect the consumer in respect of contracts negotiated away from business premises, as it has effect from time to time, or (b) if that Directive is repealed and re-enacted (with or without modification), that Directive as re-enacted. Subordinate legislation60 Orders and regulations(1) An order or regulations under this Act must be made by statutory instrument. (2) The Statutory Instruments Act 1946 (c. 36) is to apply in relation to any power of a regulator to make regulations under section 43 or 46 as if the regulator were a Minister of the Crown. (3) Any order or regulations under this Act may-- (a) make provision generally or subject to exceptions or in relation to specified cases or descriptions of case; (b) make different provision for different cases or circumstances or for different purposes; (c) provide for a person to exercise a discretion in dealing with any matter; (d) make incidental, supplementary, consequential, transitory and transitional provision and savings. (4) A provision of this Act which permits regulations or orders to make provision of a specified kind is without prejudice to the generality of subsection (3). (5) In the case of an order or regulations made by the Secretary of State, the provision which may be made by virtue of subsection (3)(d) includes provision modifying any provision made by or under any enactment. (6) For this purpose--
(7) Nothing in this section authorises an order or regulations under this Act to make provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament. (8) The Documentary Evidence Act 1868 (c. 37) (proof of order and regulations etc) has effect as if-- (a) the regulators were included in column 1 of the Schedule to that Act, and (b) the entry in column 2 of that Schedule corresponding to each regulator mentioned the regulator and persons authorised to act on the regulator's behalf. (9) Nothing in this section applies in relation to a court order under section 26. (10) In this section "regulator" means-- (a) the Gas and Electricity Markets Authority, or (b) the Postal Services Commission. 61 Directions(1) A requirement or power under this Act to give a notice (or to notify) is a requirement or power to give notice in writing. (2) A requirement or power under this Act to give a direction (or to direct) is a requirement or power to give a direction in writing. (3) Any power conferred by this Act to give a direction includes power to vary or revoke the direction. 62 Parliamentary control of orders and regulations(1) Any instrument to which this subsection applies is subject to annulment in pursuance of a resolution of either House of Parliament. (2) Subsection (1) applies to any order or regulations made by the Secretary of State under any provision of this Act except-- (a) an order or regulations to which subsection (3) applies, or (b) an order under section 66 (commencement). (3) An order or regulations containing (whether alone or with other provision) provision made under or by virtue of any of the following provisions may not be made unless a draft of the order or regulations has been laid before, and approved by a resolution of, each House of Parliament-- (a) section 4 ("designated consumers"); (b) section 24(3)(d) (power to specify persons from whom Council may require information); (c) section 31 (designation of the Consumer Council for Water for abolition); (d) section 37(1) (conferral of additional functions on the Council); (e) section 38 (removal of Council's functions in relation to Northern Ireland); (f) section 59 (contracts concluded away from business premises), so far as it enables provision to be made modifying an Act of Parliament; (g) section 60(5) (consequential provision etc), so far as it enables such provision to be made; (h) section 63(2) (consequential provision etc), so far as it enables such provision to be made. (4) In subsection (3), "modify" has the same meaning as in Part 1. Amendments, transitional provision and repeals63 Minor, consequential and transitional provision(1) Schedule 7 contains minor and consequential amendments. (2) The Secretary of State may by order make such consequential, supplementary, incidental, transitory or transitional provision or savings (including provision modifying any provision made by or under an enactment) as the Secretary of State considers necessary or expedient in connection with the coming into force of any provision made by or under this Act. (3) An order under this section may make such adaptations of provisions of this Act brought into force as appear to be necessary or expedient in consequence of other provisions of this Act not yet having come into force. (4) In this section--
(5) An order under this section may not make provision which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament. 64 RepealsSchedule 8 contains repeals (including repeals of spent provisions). General65 Extent(1) Subject to subsections (2) to (6), this Act extends to England and Wales, Scotland and Northern Ireland. (2) The following provisions extend to England and Wales and Scotland only-- (a) section 13 (investigation of complaints relating to disconnection of gas or electricity); (b) section 14 (reference of matters to Gas and Electricity Markets Authority); (c) section 37 (extension of the Council's functions: Great Britain). (3) Sections 31 to 33 (abolition of Consumer Council for Water) extend to England and Wales only. (4) Section 43 (standards for handling complaints) extends to Northern Ireland, but only to the extent that it applies to the Postal Services Commission. (5) Section 47 (membership of redress scheme) extends to Northern Ireland, but only to the extent that it applies in relation to regulated providers (within the meaning of Part 2) holding a licence under Part 2 of the Postal Services Act 2000 (c. 26). (6) Any amendment or repeal made by this Act has the same extent as the enactment to which it relates. (7) This section is subject to any provision made under section 38 (removal of the Council's functions in relation to Northern Ireland). 66 Commencement(1) This section and sections 60 to 62, 65 and 67 come into force on the day this Act is passed. (2) Subject to that, the provisions of this Act come into force on such day as may be appointed by order of the Secretary of State. 67 Short titleThis Act may be cited as the Consumers, Estate Agents and Redress Act 2007. SCHEDULESSection 1 SCHEDULE 1 The National Consumer CouncilPart 1 Members of the CouncilMembership1 (1) The Council is to consist of the following members-- (a) a chairman ("the Council Chairman") appointed by the Secretary of State, (b) the chairman of each territorial committee, and (c) such other members as may be appointed by the Secretary of State. (2) In this Schedule-- (a) references to executive members of the Council are to the members of the Council appointed from the staff of the Council, and (b) references to non-executive members of the Council are to the members of the Council who are not executive members. (3) The Council Chairman must be a non-executive member of the Council. (4) The persons appointed under sub-paragraph (1)(c) may include one or both of the following-- (a) a member of the Consumer Panel established by the Financial Services Authority under the Financial Services and Markets Act 2000 (c. 8) nominated for the appointment by that Panel after consultation with the Council Chairman and the Financial Services Authority; (b) a member of the Consumer Panel established by the Office of Communications under the Communications Act 2003 (c. 21) nominated for the appointment by that Panel after consultation with the Council Chairman and the Office of Communications. (5) Nothing in sub-paragraph (4) prevents the Secretary of State from appointing under sub-paragraph (1)(c) a person who is a member of either Panel but is not the subject of a nomination for the purposes of sub-paragraph (4). (6) A person may be appointed under sub-paragraph (1)(c) only if-- (a) in the case of an appointment of a non-executive member, the Secretary of State has consulted the Council Chairman about the appointment; (b) in the case of an appointment of an executive member, the person has been nominated by the Council Chairman for appointment to the Council. (7) In making appointments to the Council under sub-paragraph (1)(c) the Secretary of State must secure that a majority of the members of the Council are non-executive members. (8) In making appointments to the Council, the Secretary of State must have regard to the desirability of including among the members of the Council one or more persons with experience of work among, and the special needs of, disabled persons. Terms of appointment and tenure of members2 Subject to this Schedule, a member of the Council-- (a) is to hold and vacate office in accordance with the terms and conditions of the member's appointment, and (b) may resign or be removed from office in accordance with those terms and conditions. 3 (1) The Council may pay, or make provision for paying-- (a) its non-executive members such remuneration as the Secretary of State may determine, and (b) any of its members such travelling and other allowances as the Secretary of State may determine. (2) The Council may-- (a) pay to or in respect of any person who is or has been a non-executive member such pension, allowances or gratuities as the Secretary of State may determine, or (b) make such payments as the Secretary of State may determine towards provision for the payment of a pension, allowance or gratuity to or in respect of such a person. 4 (1) A non-executive member must be appointed for a fixed period. (2) The period for which a non-executive member is appointed must not exceed 5 years. (3) A person who has held office as a non-executive member may be re-appointed as a non-executive member, once only, for a further period (whether consecutive or not) not exceeding 5 years. 5 (1) A person ceases to be a member of the Council if-- (a) in the case of the Council Chairman, the person ceases to hold that office or becomes a member of the staff of the Council; Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 -- Back --
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