Dermot Ahern (Louth, Fianna Fail)

The purpose of a code of practice under the Bill is to provide guidance in the form of non-binding standards in respect of the provision of property services. For this reason, any failure to observe a provision of such a code would not, of itself, render a licensee liable to any civil or criminal proceedings. It can, if relevant, be taken into account by the authority, the appeals board or any court in determining whether "improper conduct", as it is termed in the Bill, has occurred.

This approach to the implementation of codes of practice was also used in other legislation. For example, section 56 of the Employment Equality Act 1998 and section 60 of the Safety, Health and Welfare at Work Act 2005 provide for codes of practice, and in neither case are sanctions provided for.

This Bill provides that non-observance of a code of practice can be taken into account in proceedings in determining whether improper conduct has occurred or is occurring. It is best to illustrate this by an example. Section 61 requires auctioneers to keep records of offers received on condition of acceptance where land is offered for sale by private treaty. The authority may decide in due course to issue a code of practice on how best to record this data and retain it. If it subsequently emerges that a licensee has breached section 61, which would amount to improper conduct, the authority or the appeal board can take account of the fact that the code of practice was issued and the licensee should have known of its content and followed it. Ignoring the code will not, of itself, be an offence but it will be much more difficult for a licensee to avoid a finding of improper conduct against him or her in such a case.

The sanctions in the Bill are substantial. A licensee's licence can be suspended or revoked or he or she can be required to pay up to €50,000 into the compensation fund, up to €50,000 towards the cost of an investigation of the authority and-or up to €250,000 to the authority. For these reasons, I cannot accept amendment No. 5 which would, in effect, be a block to the renewal of a licence for breach of a code.

I stated on Committee Stage that codes of practice are what they mean. They are there for guidance and not such that one must adhere to them to the letter of the law. A breach or avoidance of or ignoring the code of practice could be taken into account in respect of a finding of improper conduct against a licensee.