This is a technical amendment which spells out more clearly that the Act can be brought into force on different days in respect of different property services, or different provisions of the Act.
Property Services (Regulation) Bill 2009: Committee Stage.
Amendments Nos. 2 and 3 are related and may be discussed together, by agreement. Is that agreed? Agreed.
These amendments, which replace the current definitions of advised letting value and advised market value, are being introduced in response to suggestions made during the Second Stage debate when submissions were received from representatives of the property services industry. Revised definitions are based on the definition in the Red Book which contains internationally recognised surveyor definitions.
I have one question for the Minister. The original Bill referred to the price which a willing and not-anxious tenant would be seeking to pay. The amendment the Minister has before the House removes that description from the Bill. Will he say why that is the case? It appears to me that to say somebody was willing but not anxious would put a framework in place within which a proper price could be evaluated.
It is purely and simply to align ourselves with the internationally recognised definitions contained in the Red Book, which is the book that contains the definitions that surveyors normally follow.
This amendment is intended to introduce some flexibility in the requirement to make contributions to the compensation fund. The Bill provides for the establishment of a compensation fund to provide compensation to clients who lose money as a result of dishonesty on the part of licensees. The Bill also provides that licensees must have professional indemnity insurance. It is a matter for the property service regulatory authority to determine the nature and level of the professional indemnity insurance which licensees must have available to them. The authority may require employers' professional indemnity insurance to cover dishonesty on the part of their employees, including employees who are licensees, in which case it would not be necessary for employees to contribute to the fund.
Amendments Nos. 5 and 51 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Amendment No. 51 inserts a new section 45. In accordance with sections 30, 31 and 35, a licence will not be issued or renewed unless the applicant provides evidence that he or she has the required level of professional indemnity insurance. The new section 45 is intended to ensure the required insurance is maintained throughout the period of validity of the licence. Subsection (1) of the new section prohibits the provision of a property service by an employer who is an individual or independent contractor unless he or she has adequate professional indemnity insurance. Subsection (2) imposes the same obligation on property service employers in respect of their principal officers and employees. Subsection (3) empowers the authority to issue guidelines in relation to the operation of subsections (1) and (2).
Amendment No. 5 amends the definition of improper conduct, to provide that a contravention of section 45 amounts to improper conduct by the relevant licensee.
This amendment introduces definition of "independent contractor" to ensure it is clearly understood. An independent contractor is defined as an individual who provides property services, but does not employ anyone to provide such services on his or her behalf. Such an individual can operate on his or her own or can be an individual partner in a partnership. In the case of a partner in a partnership, none of the other principal officers of the partnership can provide a property service on behalf of the individual partner.
Amendment No. 7 is related to and an alternative to amendment No. 8. These amendments may be discussed together, by agreement. Is that agreed? Agreed.
Amendment No. 7 amends the current definition of property service to ensure the licensing requirements under the Bill are clear. I cannot accept amendment No. 8. Its effect would be to bring local authorities within the scope of the Bill. The functions of local authorities include the letting of residential property and the procurement of the maintenance and repair of residential properties. These are part of their duties in regard to managing and maintaining their housing stock. In the absence of this exclusion, it could be argued that local authorities fall within the scope of the Bill, which is not the purpose of this legislation.
Our amendment No. 8 would have removed the exemption conferred on local authorities by the definition currently in the Bill. We believe the exclusion of local authorities is not in the best interests of the consumer, which is the purpose this Bill purports to champion. I assure the Minister that I welcome this legislation since it increases the rights and protections enjoyed by consumers in dealing with auctioneers and estate agents. That is good news for all of us.
The amendments we propose are small in number and are only being tabled in the spirit of strengthening protections for consumers. We did not believe that the exclusion of local authorities was in the best interests of the consumer. The Society of Chartered Surveyors has suggested something similar. I support amendment No. 7 which provides for a more specific definition of the meaning of "property service" than the definition currently in the Bill. Will the Minister consider taking on board the spirit of amendment No. 8? I am not sure why the two amendments are grouped together, although I accept that amendment No. 8 relates to part of section 2 which will be changed by amendment No. 7. However, the amendments are quite different and aim to do different things.
The reason they have been grouped together is that the Senator's amendment seeks to amend the old section. With regard to the proposal made in the amendment, we have consulted the Department of the Environment, Heritage and Local Government and its view is that the amendment should not be included in the Bill. The question would arise as to who one would license. It is something that would be dealt with in other legislation, if required. We do not believe they should be included. Everybody wishes to look after the consumer in this respect, but the amendment is not relevant in this legislation.
Why are the local authorities excluded in this section?
Local authorities are their own arbiters in the letting of their housing stock. They are not relevant to this legislation which relates to private housing stock.
I reserve the right to bring forward a similar amendment to the amended section on Report Stage.
This amendment is intended to clarify the meaning of "property services employer". It is intended to ensure a company or partnership which employs principal officers to provide property services will nonetheless be classified as property service employers.
Amendments Nos. 11, 41, 52, 60 and 64 are related. Is it agreed that they be discussed together? Agreed.
The Bill provides that the regulatory authority, appeal board and the courts may in certain circumstances suspend or revoke a licence. The licensee may, however, have more than one licence. Amendment No. 11 clarifies that the authority, the appeal board and the courts have discretion to revoke or suspend one, some or all of the licensee's licences, as appropriate. Amendments Nos. 41, 52, 60 and 64 are consequential.
Amendments Nos. 13 and 14 are related and may be discussed together. Is that agreed? Agreed.
Amendment No. 13 makes two important changes to section 3. First, it moves the exclusion from the scope of the Bill of the property services provided by local authorities in the performance of their statutory functions to section 3 which already contains other exclusions. That is the purpose of amendment No. 7. Second, it inserts a new provision in section 3 to clarify that an employee whose principal function is to provide secretarial, reception, information technology, human resource or financial services on behalf of the licensee and does not directly engage with a client in the provision of property services, except in the context of the performance of his or her principal function, will not require a licence. The amendment is being introduced to address concerns raised by the property services industry that the current definition could lead to uncertainty with regard to whether support staff would need licences.
Amendment No. 14 gives the authority the power to issue guidelines relating to the type of work that will not require a licence.
This amendment inserts a new section in the Bill to clarify an aspect of how a licensing system will operate in practice. Subsections (1) and (2) provide that a principal officer or employee who has a licence to provide a particular property service can only provide that service for a property service employer who has a licence to provide the same type of service. Subsection (3) provides that a person can only provide a property service in the capacity in which he or she is licensed, for example, if a person has a licence as an employee, he or she can only provide a property service as an employee.
Amendments Nos. 16 to 18, inclusive, are related and may be discussed together. Is that agreed? Agreed.
These changes to section 9 are, to a large extent, in response to suggestions made in the Second Stage debate. The revised subsection (3) sets out in greater detail the matters to be taken into account when the members are being appointed to the board of the authority. The new subsection (4) specifies that three members of the authority must be representatives of the property services industry. It also provides for the appointment of an officer of the Minister to the board. The appointment of an officer of the Minister to a body such as the authority is a common provision in legislation of this nature.
Subsection (6) of the new provision provides that in the case of the first board of the authority, five members will hold office for a period of three rather than four years. The five members will be selected by drawing lots at the first meeting of the board. This provision is intended to ensure continuity of the board. There is an overlap between the disclosure of interests requirements set out in sections 14 and 15 and in the Ethics in Public Office Acts. I might propose amendments to this section on Report Stage to eliminate any overlap.
The Minister has provided that the membership of the authority will include persons who represent the providers of property services. One of the welcome dimensions of the Bill is that it seeks to rebalance matters and give priority to people who receive property services or are clients of property service providers. Will the Minister consider including in the authority not only people who represent the property service industry but also persons who represent the clients or customers of the industry?
Subsection (3) states the Minister shall have regard to the desirability of their having knowledge or experience of consumer affairs, business, finance, management or administration or any other subject which would be of assistance. It is accepted that we will include people in the board who represent consumer interests, have financial expertise and so forth. The reason we propose three members to represent the property services industry is because this issue was raised. The original section was relatively silent as to the type of qualifications required. It was regarded as important in view of the fact that a number of the bodies representing service providers would have in-depth knowledge. I am conscious of the need to ensure those people on the authority representing persons providing property services are not solely representing the interests of such persons or organisations. In my view the amendment will take care of the concerns expressed by Senator Donohoe that the authority should include people representing consumer interests.
The original section of the Bill was not that silent about the membership of the authority. It made clear those people would have knowledge or experience in matters relevant to functions of the authority and referred to the need for balance. I am concerned the amendment specifies in greater detail who these people should be. The only specific reference in the amendment is to representatives of the industry. This Bill aims to regulate the industry and to provide for balance. I accept the industry should have three representatives. However, the Minister should also propose having representatives of persons dealing with the industry to ensure balance in how this body carries out its purpose as a regulatory body. The only specific example in this amendment is to introduce people representing those who work in the industry as opposed to people who are clients of the industry.
The number of three representatives is specifically referred to in the amendment. This is to ensure the representatives of property services providers would not be in the majority. We were responding to the views expressed in this House on Second Stage that under the existing drafting of the Bill, it would be possible for people to be put on the authority to bring about a situation where the majority of the representation would be on the side of the property services providers. For that reason, there is specific reference to the representatives of persons who provide property services in order to limit their number to three.
I support Senator Donohoe's concerns about this amendment. If the Minister's desire is to limit the numbers of persons who are representatives of property services then the wording of the amendment should be, "not more than three" rather than to say, "Of the members of the Authority ... 3 shall be persons who, in the opinion of the Minister, are representatives of persons who provide property services". My suggestion would make it an appropriate amendment. Otherwise, in the terms as currently drafted, the amendment would not limit the numbers of persons who would be representatives of the property service providers. Indeed, of the 11, once three are such representatives, one could have any number more than the three, other than the one who would be an officer of the Minister. One could, in fact, have ten representing property services providers. I agree with Senator Donohoe that it sends out entirely the wrong signal to have no reference to the need to have at least a certain number of persons who represent the consumer. The Minister has said that in appointing persons he should have regard to the desirability of their having knowledge or experience in consumer affairs but that is not requiring him to appoint somebody or some number of persons who have experience in representing or protecting the consumer, and at the very least the number should be at least three. I ask the Minister to insert the words "not more than three" which would at least make clear his desire to limit the numbers of persons out of the 11 who would be representatives of property service providers.
I thank Senator Bacik for her support on that point. The Minister in his response referred to the point about the number of three. This was not the substantive point I was looking to make and Senator Bacik has pointed out a flaw. I suggest any amendment of this section should be more specific about the people who should be members of the authority. Why is the amendment only dealing with those representing the industry? Why should the client not also be represented?
We were responding to the views expressed that in the original drafting it could be the case that a majority could consist of representatives of property service providers or of those with their interests at heart. This is the reason this amendment contains the reference to representatives of persons who provide property services and to the number of three. I am prepared to come back on Report Stage to amend the section to say "not more than three".
With regard to including a specific reference to a property service user, it is a case of defining who is a property service user. Most of the population have been property service users at some stage. How could I say that, for instance, Senator Donohoe is a property service user? He may have been previously but he may not currently be a property service user. This could create a problem with regard to the definition of whether, over the lifetime of a board, a person is a property service user. This can be considered for Report Stage. If the amendment provides for a representative of consumer interests in the compilation of the board, this might be tying the hands of the Minister. He may then have to adhere to the letter of the law. In my experience, if a regulation becomes too specific with regard to the composition of a board, this causes difficulties, in particular when gender balance and other balances in other legislation, such as trade union and employer interests, must be considered. There could then be very few opportunities for a private citizen. This is the reason it was left relatively vague. There is no point in putting a private citizen or a man or woman off the street on a board such as this because such persons would need to have some financial management and administrative skills as well as consumer skills.
I am grateful to the Minister for indicating he might accept my suggested amendment to insert the words "not more than three" on Report Stage. Otherwise, this amendment will not change the problem identified by the Minister which is that the authority could have a majority of representatives of service providers. I am glad to see in section 9(4) an obligation that the Minister shall ensure an appropriate balance between men and women in the composition of the authority. I agree with the Minister that the gender balance issue is important. It is equally important to have a balance to allow for consumer representation. Members of the public in general are the consumers of the services provided by property service providers but there are well-established, general consumer protection and representation and advocacy groups. I would have thought those general consumer groups might well be represented. I have not been briefed by any of them and I hold no brief for any of them. It seems to me that would be an obvious group from which one could draw individual members of the board with appropriate expertise who would provide some form of balance against the representatives of the estate agents and auctioneers. We are all seeking to ensure there is adequate protection for the consumer. This area has been under-regulated for far too long and many of us in the Opposition over long periods have called for proper statutory regulatory authorities. We welcome the legislation but we want to ensure this authority is robust and is not in any way beholden to the industry.
I was not suggesting the Minister choose a man or woman off the street. I am sure he knows that is not the point I was making. I was merely making the observation, which is a valid and pertinent one given the industry in question, that there is a need to ensure consumer interests are advocated on the board of the authority. The amendment before us could be regressive in stipulating representatives of the industry. Any work the Minister could do in terms of the appointment of individuals and organisations which represent the interests of those who use property services would result in a more effective authority.
I do not want the legislation to be prescriptive in appointing someone from a specified representative association for consumers. In all legislation it is preferable to keep references to the composition of boards as vague as possible. In various Ministries I had the experience of asking representative bodies to nominate individuals for appointment to boards only to find my hands were tied when it came to meeting criteria such as gender equality. There were occasions when representative bodies, some of which were close enough to Senator Bacik's interests, turned out to be the least willing to propose females for nomination to boards. It is not that a Minister would mind, but it would tie his or her hands. I can give several examples from my career when I had to go back to representative bodies to request them to nominate females. History shows that while many of these bodies espouse a desire for a gender balance on boards, they do not propose females for appointment. It is preferable, therefore, to define references to the designation of boards in relatively vague terms. We think we have catered for this objective, given that we are legislating for a specialist board, in respect of which one cannot pick someone from the street. I am prepared to reconsider before Report Stage the words "not more than three" and whether we can beef up the proposed new subsection (3) to put greater emphasis on ordinary members of the public who might have reasonable experience in consumer affairs without requiring them to be members of the Consumers Association of Ireland.
I am grateful that the Minister accepts my point that the words used should be "not more than three". I will certainly table an amendment to that effect on Report Stage. I do not know what groups he meant when he referred to bodies close to my issues or interests and would like to be enlightened. I would like to think the groups to which I am close nominate women for appointment.
I refer to the philosophy of the party the Senator represents. Although she has denied responsibility for several days, we still do not know where she stands on the Croke Park agreement.
I know where I stand on the agreement as a public service union member.
The Senator's leader does not.
I am not denying my allegiance to the Labour Party, but groups close to me or my party would, I hope, be better at appointing a more gender balanced team.
Perhaps the Senator should conduct a little exercise and check. She might be surprised.
I will. However, the Minister's party has been guilty of cronyism in whom it appoints to State boards.
It is important that we scrutinise whom we appoint to boards such as the Property Services Regulation Authority. Real problems have arisen within Fianna Fáil because apparently it saw nothing wrong with appointing cronies and buddies to boards. We need to move away from that practice.
As the Minister will be aware, the Joint Committee on Justice, Equality, Defence and Women's Rights established a sub-committee on the participation of women in politics, for which Senator McDonald and I produced a report. One of our recommendations was the establishment of a national talent bank of women willing to be appointed to State boards. This would allow Ministers to draw from a longer list of names and mean we would no longer hear the mantra that not enough women's names were being put forward, although I accept that such a failure can be the fault of nominating groups and that is not always the responsibility of the Minister. A talent bank, which has been introduced in Norway and elsewhere, would expand the list of women and increase awareness of the large number of talented and able women who could make excellent appointees.
The Minister erroneously suggested I had advocated the inclusion of a specific consumer group in the legislation. I merely provided examples of the groups from which the Minister might make appointments. An appropriate amendment which I may table on Report Stage would provide that at least "three nominees shall be persons who in the opinion of the Minister are representatives of groups advocating the rights of the consumer". By leaving the provision vague, we would get around the problem of being overly prescriptive, while ensuring that at least three members of the board represented the consumer in some way.
The Senator finished well but started badly because she was being political.
A little like Fianna Fáil in government.
I do not wish to labour the point, but I recall having to beg the trade unions and employers to change their nominees to one high profile board from males to females because there was little scope to change other nominations. My experience has been that the trade union movement has not covered itself in glory in making nominations to boards. I accept that the Senator is not suggesting we appoint nominees from the consumer associations. If a direction is given in the legislation, the Minister has to comply by promoting people with expertise in consumer affairs, administration, finance, management and business. I am prepared to reconsider the issue before Report Stage.
Amendments Nos. 19 to 26, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
These are merely technical amendments.
I move amendment No. 27:
In page 30, lines 8 to 17, to delete subsection (10) and substitute the following:
"(10) A licensee who fails to comply with a code of practice is guilty of an offence.".
This amendment is to ensure there are more teeth to the code of practice. As the Minister will be well aware, section 28 of the Bill will make it an offence to offer a property management service without first having a licence. Indeed, the penalty for that is set quite high — a term of five years' imprisonment on conviction on indictment and a fine not exceeding €5,000, or 12 months' imprisonment on summary conviction. The severity of the punishment clearly would deter anyone from setting up an illegal practice, which is good news for the consumer. In light of that, however, should there not be stronger enforcement placed within section 18? Clearly, it is not enough to be licensed. Section 18 provides that the licensee should comply with codes of practice. Section 18(7) states the authority shall encourage licensees to comply with codes of practice. Subsection (10) states that a failure on the part of a licensee to observe any provision of a code of practice will not of itself render the licensee liable to any civil or criminal proceedings. That is the subsection we seek to amend with this amendment, to substitute instead the simple phrase, "A licensee who fails to comply with a code of practice is guilty of an offence." It is, as I stated, to give teeth to the code of practice and ensure some balance is maintained. It seems somewhat unbalanced if there are such relatively heavy penalties and the possibility of being prosecuted on indictment under section 28 for offering a service in an unlicensed way. Once one is licensed, it seems, even if one does not comply with the code, one will not be subject to any penalty.
Has the Minister given any thought to giving more serious powers of enforcement to the code? It seems the code of practice will be critical in ensuring consumer protection. The licensing provision is welcome, but a licence alone is not enough to guard against abuse, as we have seen in the legal profession as much as anywhere else.
The idea behind codes of practice is to provide guidance to people generally. That is the way it is specifically in this case. I would not like to be the prosecutors going before a judge in a court suggesting they would make a criminal of somebody who has not observed a code of practice the purpose of which is merely to provide guidelines to the people involved in this legislation to ensure they do not infringe the statutory standards laid down, the breaking of which is already an offence. It would be fairly draconian if we were to bring a criminal sanction against somebody who has failed to comply with a code of practice. That is why the Bill, in subsection (10), states: "A failure on the part of a licensee to observe any provision of a code of practice published or approved ... shall not of itself render the licensee liable to any civil or criminal proceedings".
Failure to observe the code of practice would be an issue taken into account in the severity of the sanction imposed ultimately by the court, but not of itself. Otherwise, it would be draconian. It would possibly be a waste of the time of the court in that if somebody has failed to comply with a code of practice, more than likely he or she would have infringed some of the statutory requirements already and probably would be charged with other offences. I strongly suggest this amendment is unnecessary.
I accept there needs to be more detail in the amendment. The amendment is simply to set down a marker. Clearly, we have not prescribed any penalty and, as drafted, it is a rather vague offence. I certainly can come back with a more precise drafting.
I take the Minister's point that the code is supposed to be by way of guidance. There is a bigger issue about how standards are to be maintained within the group of licensees. If it is simply to be by way of a code of practice with which, according to subsection (7), licensees are to be encouraged to comply, that is not imposing onerous obligations on those licensees and it might well be that somebody would make an effort to get a licence and then lapse back into the sort of poor practices we have already seen in this area. More consideration might be given to the strengthening of the provisions on maintenance of standards within the group of licensees that will be created by this, whether it be through a set of statutory duties, for example, that would prevail beyond the code of practice. That might be a better way of approaching it.
I take the Minister's point. The breach of a code of practice of itself might not be a great way of creating criminal offences, but what we are trying to do is set down a marker about the need to ensure standards are maintained among licensees so that once they have a licence, they are not permitted to lapse again. The current wording, especially in subsection (7), is weak. It does not really impose any sort of robust obligation on a licensee to comply with codes of practice. Simply being encouraged to do so does not really do very much. Equally, I am not sure subsections (10) and (11), which state the courts can have regard to breaches, etc., are enough to maintain standards.
This is merely a drafting amendment.
Amendments Nos. 29 and 38 are related and may be discussed together by agreement. Is that agreed? Agreed.
These amendments clarify that the requirement to submit an accountant's certificate with an application for a licence or for renewal of a licence applies to property service employers and independent contractors only. The requirement will not apply to applications from individual employees.
Amendments Nos. 30 and 31 are related and may be discussed together by agreement. Is that agreed? Agreed.
Amendment No. 31 inserts a new subsection in section 30 to provide that where a partner in a partnership applies for a licence as an independent contractor, the application will be refused if any of the other partners is under 18 years of age or is an undischarged bankrupt or if the partnership does not comply with any of the requirements of the Bill. Amendment No. 30 is a consequential drafting amendment. The reason for these amendments is that where a partner in a partnership applies for a licence as an independent contractor, he or she will be the only person in the partnership who will be entitled to provide a property management service. It would not be reasonable, therefore, to make a decision about an application on the basis of, for example, the fitness of other persons who will have no role in the provision of the property service.
Amendments Nos. 32 to 37, inclusive, are related and may be discussed together.
These are technical amendments. Amendment No. 33 inserts a new subsection which provides the requirement to refuse to issue a licence to a partner in a partnership, if any other principal officer of the partnership is not a fit or proper person, only applies where a partner applies for a licence as a property service employer and not as an independent contractor.
The other amendments are consequential drafting amendments.
Section 35(3) provides that where a decision on the application for a renewal of a licence has not been made by the authority before the expiry of the licensee's licence, the existing licence will continue in force until such a decision is made. The amendment clarifies that when a new licence is issued, its duration will run from the date on which the previous licence was due to expire and not from the date on which the new licence is issued.
This amendment is intended to ensure all licensees are treated equally so that where the determination of an application for renewal of a licence is delayed, for instance because of an appeal, the applicant will not avoid having to make the appropriate contribution to the compensation fund etc, for the period of the expiry of the one licence and the issuing of the new licence.
A better approach to section 35 might be to insert a provision which would allow the authority to refuse a licence to a person where it felt the person had not complied adequately with any code of practice issued by the authority under section 18. I take the Minister's point about avoiding the creation of unworkable criminal penalties. It would seem to me, however, that such a provision could give some sort of teeth to any code of practice the authority may issue. I may table an amendment on this on Report Stage. This may be a way of ensuring licensees are robustly encouraged to comply with codes of practice.
I understand the idea of encouraging compliance with codes of practice but, again, Senator Bacik has missed the point. A code of practice is in place for guidance, not as a list of statutory requirements. It is in place to give guidance so as to ensure the statutory requirements are not infringed. It comes back to the Senator's amendment No. 27 concerning failure to comply with a code of practice as a criminal offence. If it were to be an offence, then the authority would automatically refuse the renewal of a licence to anyone guilty of such an offence which I am not altogether sure one could make mandatory.
I was proposing an alternative to the criminal penalty proposed in amendment No. 27. It may give more teeth to the compliance with the code of practice provision.
Section 35(4) states various extreme conditions, such as declaration of bankruptcy and an insufficient level of professional indemnity insurance which would allow the authority to refuse a licence renewal while section 35(6) deals with improper conduct. Could more discretion be given to the authority to allow it to refuse licence renewals in the area of compliance with a code of conduct? It would also be left to the authority to determine adequate compliance.
We can examine it on Report Stage.
Amendments Nos. 42 and 43 are related and will be discussed together.
These are drafting amendments which clarify that if a licensee is an adjudicated bankrupt, then all licences will be suspended until they expire or the adjudication is annulled.
Amendment No. 44 is a Government amendment. Amendments Nos. 44 and 67 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Section 41 requires licensees to notify the authority of any conviction for an offence or any proceedings pending. Amendment No. 44 will exclude offences prescribed by the authority from this requirement. Amendment No. 67 will limit the power of the authority to prescribe offences for the purposes of section 41. It can only exclude offences which are not relevant to the provisions of a property service. The purpose of the amendments is to permit exclusions of less serious offences which do not affect a person's fitness to provide a property service from the notification requirements.
Amendment No. 45 is a Government amendment. Amendments Nos. 45, 47 and 48 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.
These amendments extend the period within which a licensee must furnish a letter of engagement or an amended letter of engagement to a client from three to seven working days. They respond to concerns raised by representatives of the property services industry that a requirement to issue a letter of engagement within three working days was too short.
Amendment No. 46 is a Government amendment. Amendments Nos. 46 and 49 are related and may be discussed together, by agreement. Is that agreed? Agreed.
These amendments clarify that the requirement to issue a letter of engagement also applies to an amendment or a renewal of an existing property services agreement or to a re-engagement of a licensee following expiry of the property services agreement.
Amendment No. 50 is a Government amendment. Amendments Nos. 50 and 56 are related and may be discussed together.
The purpose of these amendments is to clarify that the requirements to keep records set out in sections 44 and 59 apply to property service employers and independent contractors, not to individual employees or principal officers. The amendments also make it clear that the employer will be required to keep the records in respect of property services provided by employees or principal officers.
Amendment No. 53 is a Government amendment. Amendment No. 54 is consequential on amendment No. 53. They may be discussed together, by agreement. Is that agreed? Agreed.
These are drafting amendments. I am consulting the Courts Service and the Office of the Attorney General on whether the Bill should provide that certain applications to the Circuit Court and the High Court in the first instance should be made in a summary manner. Depending on the outcome of these consultations, I will bring forward further amendments to this and other sections of the Bill, in particular, sections 51, 53, 61, 63, 64 and 69 and Schedule 3.
I wish to comment on section 59 to highlight an issue for consideration before Report Stage. I welcome the provisions in Part 6 of the Bill which will vastly improve the level of people's trust and confidence as both vendors and purchasers of houses. It is important to see the new rules being put in place. Section 59 which I also welcome requires licensees to retain records of the sale of land other than by auction for a period of six years. In that context, I wonder if the Minister has given thought to providing in the Bill for the publication of house prices through an openly available register. I am aware the matter has been discussed a great deal, although I cannot recall where I heard it being discussed recently. This has been done in other countries. I am aware that there were data protection concerns, but they can be overcome through anonymising the data. We already have auction prices that are published, but it is an issue that has been bubbling under the surface for some time. It would be an important way of making the housing market more transparent and something that would very much be in the interests of the consumer and might be appropriate to include in the Bill.
The renewed programme for Government contains a commitment to the publication of property prices, but it a complex issue. The Senator is correct regarding some of the issues to do with data protection and also the compilation of data, but we are in discussions with the Department of the Environment, Heritage and Local Government on the matter. It is a question of finding the proper vehicle. It may well be that the Property Services Regulatory Authority would be the organisation to have these and that this section would in some way facilitate the compilation of such data.
I am grateful to the Minister for that response and apologise for my vagueness in raising it. I knew I had seen it somewhere. I believed it was in the programme for Government and I am glad to hear discussions are ongoing with the Department of the Environment, Heritage and Local Government. I am aware that among consumer groups and the general public there is an enormous demand for this information to be made available and it might play a major role in freeing the housing market in some way. It would have many public benefits. As the Minister said, section 59 would facilitate its publication. That is the reason it came to my mind when I looked again at the section. I would like to be able to table an amendment on the matter on Report Stage and would be grateful if the Minister took advice on it between now and then. Up until now there has not been a clear way of organising such publication because there has not been a property services regulation authority. Once the authority is in place and this obligation to retain records is placed on licensees, it seems there will not be a practical obstacle to ensuring house price data are published.
There is a suggestion that it would offend data protection provisions, but knowing the Labour Party, it will be more than willing to allow us to amend the relevant data protection legislation to facilitate the provision of full information for the general public than it allows.
The Labour Party has always stood for transparency——
When it suits.
——and indeed the Labour Party introduced the freedom of information legislation, which was then rolled back upon by Fianna Fáil in government. That has been to the cost of greater transparency.
No, it has not. It is more practical.
The Minister means it is more convenient for the Government.
Senator Bacik should take it from a practitioner. I have good experience in it.
Senator Bacik should put that in her pipe and smoke it.
I am a practitioner and I represent people who use the freedom of information legislation. There are more obstacles placed in their way by virtue of the restrictions imposed.
I will go down in history as being the only Minister on whom the Data Protection Commissioner served a 20-day notice because I was giving too much information under freedom of information legislation in my Department. The media and the Labour Party never highlight that. When I was Minister for Communications, Marine and Natural Resources I provided too much information on freedom of information requests on the departmental website. Certain journalists and others, including the freedom of information commissioner, found fault with the fact that I was presenting too much information. Subsequently, I was served with a 20-day notice by the Data Protection Commissioner and ultimately a settlement was agreed. The notice would have taken me as Minister to the Circuit Court on the basis that I was infringing data protection legislation because I was providing too much information under freedom of information legislation. I disagree with any suggestion that I or this Government are interested in curtailing freedom of information but people conveniently forget some of the facts even though they know them well.
The facts are very clear. This Government, led by Fianna Fáil, placed restrictions on freedom of information legislation. I have provided the Minister with the opportunity to put on the record the fact that he was too zealous in complying with freedom of information legislation, a fact of which I was not aware. On a more serious note, when it is convenient for the Government, data protection concerns are often used as an excuse for not doing things that could be done easily without infringing data protection legislation, such as publishing house prices. This has been done in other countries where data protection legislation exists and I do not see why we cannot do it here. There are great public benefits to the publication of such information and it would greatly facilitate the housing market reopening and it would increase public confidence in the administration of property sales and purchases. The idea has been tossed around for a long time and I am glad to hear of discussion with the Department of the Environment, Heritage and Local Government. Perhaps a little pressure could be placed on the Department if an amendment were tabled on Report Stage. I ask the Minister to consider this because I will table an amendment on Report Stage.
We are more than willing and it is an element of the programme for Government. Returning to my digression into this area, I subsequently found that the Data Protection Commissioner's office was not subject to freedom of information requests. When it came to the extension of freedom of information to other agencies, I and the then Minister for Finance, Charlie McCreevy, who is sometimes accused of being the man who curtailed the freedom of information legislation, ensured by order that the office of the Data Protection Commissioner was subject to freedom of information requests.
Following that digression and digressing a little further, it reminds me of the old joke of why there is only one Competition Authority. I ask the Minister to consider this on Report Stage.
Amendments Nos. 57 and 58 are related and will be discussed together.
I move amendment No. 57:
In page 58, subsection (4), lines 15 and 16, to delete all words from and including "which" in line 15 down to and including "persons" in line 16.
These amendments are suggested to ensure a more meaningful level of penalty is provided for against a person who contravenes the regulations under section 60. Other offences created in this Bill carry the possibility of prosecution on indictment whereas this offence may be prosecuted only through the District Court as a summary offence. Therefore, the penalty is a maximum of €5,000. We suggest a greatly increased fine of up to €100,000, given the potential level of profit that may be made where an offence under this section is committed. In the debate on Second Stage, Senator Hannigan referred to this, noting that the proposed fine of €5,000 is relatively small in the context of the potential gain a rogue estate agent may make, which may amount to several hundred thousand euro. He was talking about people who engage in gazumping. They should be subject to more meaningful penalties given the scale of profit they may anticipate making.
Section 60 requires the authority to make regulations on the contents of advertisements, booking deposits and the terms of building contracts. Under this section, the regulations also apply to persons other than licensees. For example, the regulations can apply to builders or surveyors and contravention of a regulation under this section by a licensee will amount to improper conduct. For a person other than a licensee, sanctions for contravention of regulations made under this section are appropriate. The Senator's proposal is not justified given that extends it to people other than licensees.
This amendment inserts three new subsections into section 63 to provide that where the authority receives a complaint about an employee or a principal officer it can also investigate the property services employer andvice versa. This amendment also provides that the same powers will be available to the authority where it carries out an investigation on its own initiative.
This amendment reduces the amount, from €5 million to €2 million, that should be to the credit of the property services compensation fund after four years. This amendment responds to concerns raised on Second Stage and in submissions by representatives of the property services industry to the effect that the figure of €5 million is too high.
The purpose of this amendment is to give the authority discretion as to whether to make a grant out of the compensation fund to clients of the property service provider where the provider did not have a licence to provide the particular service at the time the loss occurred.
Government amendment No. 64 has been already discussed with amendment No. 11.
Amendment Nos. 65 and 66 are related and may be discussed together by agreement.
The purpose of these amendments is to ensure the authority has sufficient power to make regulations where necessary under the Bill. The first amendment extends the authority's regulation making powers to enable it to attach conditions to particular classes of licences. The second amendment empowers the authority to make regulations which set out the extent to which the employer's professional indemnity insurance must cover licensees who are employees and principal officers.
Government amendment No. 67 has been already discussed with amendment No. 44.
Government amendments Nos. 68, 69 and 70 are related and may be discussed together by agreement.
The purpose of these amendments is to set out in greater detail the transitional arrangements in respect of persons who are already providing property services when the new legislation comes into force. New section 93 sets out definitions for the purpose of the transitional arrangements, most of which are already contained in the Bill. Subsections (1) to (4) of the new section 94 reflect what is currently section 93. They provided that a person who is providing a property service when the legislation comes into force and who applied for a licence to provide that service will be permitted to continue to provide the property service concerned until such time as a final decision has been made on his or her application. Subsection (5) is new and provides that where a licence is issued to a person who is providing a property service when the legislation comes into force the licence will run from the date of commencement of the legislation in respect of that property service.
The purpose is to ensure that all existing property service providers are treated the same by ensuring that all licences will be valid for a period of one year from the date of commencement of the Act, irrespective of the date the licences issued. Under the Bill property service employers and their principal officers and employees who provide property services will require licences but an employee or principal officer cannot provide property services for an employer who does not have a licence. New section 95 makes provisions for situations which may arise under the new system. Subsection (1) provides that where a property service employer, who is a provider of a property service before the commencement of the Act, is refused a licence under the new licensing arrangements, his or her employees or principal officers will no longer be able to provide a property service and the licence applications will be deemed to be withdrawn.
Subsection (2) provides that the authority will not make a decision in relation to the granting of a licence to principal officers or employees until a final decision has been made in relation to the employer's licence application. Subsection (3) provides that following commencement of the Act the transitional provisions will not apply to the employee or principal officer if his or her employer has not applied for the relevant licence. In other words, an employee or principal officer cannot provide the property service concerned unless his or her employer has applied for a licence. In such circumstances, the principal officers of the employer's licence application will be deemed to be withdrawn.
For how long does the Minister anticipate these transitional provisions will need to be in place?
Not very long. This is to cater for those people who are currently applying for a licence and who, following the passage of the legislation, will come in under the new arrangements.
Government amendments Nos. 71 and 72 are related and may be discussed together by agreement.
Amendment No. 71 gives the authority discretion to hold a hearing or part of hearing in public if it receives a request from a licensee or complainant. A request for a public hearing must be in writing and must state the reasons for the request. This amendment responds to a suggestion made on Second Stage by Senator O'Toole. Amendment No. 72 is a consequential amendment to ensure consistency between the provisions concerning oral hearings conducted by the authority and the appeal board.
Government amendment No. 72 has been already discussed with amendment No. 71.
Government amendments Nos. 73 to 82, inclusive, are related and may be discussed together by agreement.
With the exception of amendment No. 82, these are drafting amendments which do not seek to change the policy as set out in the existing provisions but seek to improve the wording of the Bill or make consequential amendments in response to earlier amendments. In accordance with section 43, as amended by paragraph 12 of Schedule 7, in so far as it applies to relevant persons, such relevant persons must send a letter of engagement to all clients.
Schedule 2 specifies the information which must be included in such a letter. The Bill as published imposes an obligation on relevant persons to provide additional information to clients. This amendment specifies further information which a relevant person must include in the letter of engagement, namely, details of the competent authority which issued the licence or authorisation and details of where the conditions applicable to the authorisation scheme can be inspected. A relevant person is a person holding a property service licence from an issuing authority in another EU member state. Clients of such relevant persons will not be entitled to compensation from the compensation fund. In addition, they may have different arrangements in relation to professional indemnity insurance. The requirement on relevant persons to provide information to clients in relation to these issues is to ensure the clients know the protections available to them before entering into a contract with such a relevant person for the provision of a property service.
Government amendments Nos. 83 to 87, inclusive, are cognate and may be discussed together by agreement.
These are drafting amendments. I propose to bring forward on Report Stage a number of mainly technical amendments to this Schedule in so far as it relates to the Building Society Act 1998.
When is it proposed to take Report Stage?
On Tuesday, 27 April 2010.