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By Daniel Kidd
The Department for Business, Innovations and Skills (BIS) is consulting on consolidating and modernising consumer law enforcement powers.
The consultation focuses on five specific areas and proposes reforms to the consumer law enforcement regime with the stated objectives of reducing regulatory burdens on businesses, protecting civil liberties and improving effectiveness of enforcement.
The consultation seeks view on proposals in the following five areas:
1. Consolidating and simplifying consumer law powers
There are currently several public bodies enforcing consumer law, including Trading Standards Services (TSS), the Office of Fair Trading and various Consumer Protection Cooperation enforcers under the Enterprise Act 2002. These bodies derive their enforcement powers under more than 60 separate pieces of legislation covering many business sectors (including retailers, estate agents, providers of consumer credit etc.), with some being sector-specific.
BIS is proposing to introduce generic enforcement powers in place of existing legislation to make these powers more transparent and consistent. The new law would include:
alignment of investigatory powers to provide consistency and transparency across all consumer legislation selected by BIS for consolidation
alignment of powers to allow TSS to make test purchases
clarification of powers to require the production of documents, including digital content
alignment of penalties across consumer law for obstructing enforcement officers
It is clear from the proposals that as previously flagged, the role of the Office of Fair Trading in this area will be all but extinguished in favour of the TSS.
2. Improving cross boundary co-operation and authorisation for the Trading Standards Services (TSS)
BIS proposes to authorise TSS in England and Wales to investigate and bring proceedings outside their own local authority.
3. Removing barriers to the use of civil procedures for enforcement
Breaches of consumer law can be enforced through either civil injunctive relief or by means of criminal prosecution. BIS’s concern is that the TSS is unable to present civil cases in County Courts, meaning that the cost of civil enforcement is often higher than it needs to be (due to the need to hire external lawyers) and contributes to the relatively now number of civil enforcement actions by TSS compared to the number of criminal prosecutions.
BIS is proposing permitting the accreditation of individual TSS professionals to enable them to present cases in County Courts to encourage the use of civil enforcement which may be more proportionate than criminal prosecutions. An example given of the type of case which TSS could potentially present in court itself is in relation to a company cold-calling consumers with claims that it could sell their cars or refund their service fee, neither of which it in fact did.
4. Introducing more flexible qualification requirements for TSS officers
BIS proposes introducing general competency requirements for TSS professionals, whose only current statutory qualification requirement relates to weights and measures enforcement and no other consumer law.
5. Enabling competition by opening up of calibration of measurement standards market
BIS’s proposal is to assist local authorities to reduce their costs in enforcing weights and measures legislation by providing them with alternative testing laboratories.
Why this matters:
BIS hopes to simplify and consolidate investigatory and enforcement powers so that they are clearer and more transparent. Given the myriad of consumer legislation, including additional legislation in relation to some specific business sectors, a set of generic enforcement powers is likely to be welcomed by businesses.
It remains to be seen whether the ability of TSS to present civil cases in County Courts would lead to an increase in the overall number of investigations and enforcement actions, or whether it would in fact result in more proportionate penalties for businesses for non-compliance.
The consultation highlights how the consumer protection landscape is likely to be changing over the next few years, both in terms of legislation and enforcement. Together with the anticipated Consumer Rights Bill, businesses can expect to see more changes in this area in the next few years.
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