The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, let me begin this debate by setting out how important the Government’s consumer law reforms are for consumers, for businesses and for growth.
Consumer spending accounts for nearly two-thirds of the UK's economic activity. According to the British Retail Consortium, UK retail sales in 2013 were over £321 billion and the Office for National Statistics estimates that in quarter 1 of 2014 alone, household spending, when adjusted for inflation, grew by 0.8%—that is a growth of £2 billion just in that quarter.
Our aim is to foster high levels of consumer confidence so that people try new products and services and also shop around. This encourages businesses to enter the market and drives innovation, boosting competition and creating growth. However, in order for consumers to be confident, they need to know what their rights are and what they are entitled to if something goes wrong. Having clearer rights and remedies is also important for businesses because it means that they can more readily understand how they can best meet their responsibilities. Helping consumers to become more confident and businesses to become more responsive is the challenge that we face.
We have already taken action to reform the landscape of bodies which support efficient and competitive markets. Reforms announced in April 2012 have transformed the institutional landscape through, for example, the creation of the Competition and Markets Authority and the formation of the National Trading Standards Board. These reforms have made responsibilities clearer where previously they overlapped and have enabled consumer bodies and enforcers to be better co-ordinated, to identify and act on the real priorities affecting consumers.
We now have to get the legal framework right to make consumers more confident about the protection that they have and to reduce the costs to businesses of applying consumer law in practice—hence, the Consumer Rights Bill. The Bill sets out in one place key consumer rights and what consumers are entitled to if something goes wrong. It covers goods, services and, for the first time ever, digital content such as apps and film streaming.
The overall package of reform is estimated to be worth over £4 billion to the UK economy over 10 years. The Bill reduces costs for businesses and consumers by making it easier and clearer for people to understand what should happen when a problem arises. It will help to resolve complaints at an earlier stage and stop issues from unduly escalating into disputes, which are costly for all parties. It will also help create a fairer and more level playing field for businesses and enhance redress for consumers where problems emerge.
The provisions in the Bill have been carefully developed following extensive consultation, reviews and independent reports, including by the Law Commissions. The Bill was also published in draft last summer and received scrutiny by the Business, Innovation and Skills Select Committee. We are very grateful for the committee’s detailed consideration and we have accepted a good many of its recommendations. The Bill was then further improved following its introduction in the other place and I am confident that the Bill now before your Lordships’ House is stronger and better as a result.
I now turn to the main measures in the Bill. First, on goods, there are estimated to be over 350,000 retail businesses in the UK, making goods a critical part of the UK economy, yet much of the law on goods is over 30 years old. That is why the first part of the Bill sets out a simple legal framework to regulate the sale of goods in order to replace the current complexity that is, quite frankly, bewildering for consumers and which makes compliance so onerous for business.
We are setting out in one place the standards that goods must meet—for example, specifying that consumers have 30 days in which to reject substandard goods and receive a refund, to replace the current vague law that they have a “reasonable” time in which to return such goods; and making clear that, where the consumer prefers to have a faulty item repaired or replaced, this repair or replacement must remedy the problem the first time around or the consumer can insist on some money back. Currently it is unclear how many repairs or replacements of faulty goods a trader can give before the consumer can get some back.
Secondly, on digital content, because most consumer law has been in place for a long time, since long before the advent of digital content, there is significant legal uncertainty about what rights apply here. This uncertainty harms consumers and business, first, because consumers do not know how to go about resolving problems with digital content and, secondly, in contrast, some consumers may think that they are entitled to a remedy that the business does not think it is obliged to provide under the current law. This situation is unacceptable in a market that is both of a substantial size—around £200 billion—and still developing.
We are introducing a set of quality rights tailored specifically to digital content. For example, where a trader provides an update to digital content previously supplied, this update must not lower the quality of the original digital content. If it does, the trader must provide appropriate remedies to the consumer. Note that the onus in this example is on the trader because that is the person the consumer paid for the digital content. This in turn will raise consumer confidence to try new products, because consumers will be clearer about what they are entitled to if something goes wrong. This is good for businesses, too, because it makes it easier for new firms and innovative businesses to compete successfully for a share of the market.
I turn to the services sector. There are no statutory remedies to ensure that matters are put right if there is a problem with a service contract. That is unacceptable in a sector that is worth over 75% of UK GDP. We are addressing this in the Bill by setting out new statutory rights and remedies. Our key new remedy is for consumers to have the right to request the reperformance of a service. Alternatively, reperfomance might just be the element of it that is just not delivered in accordance with the contract, but we recognise that there are circumstances where that simply is not possible, or where it could not be done within a reasonable time and without significant inconvenience to the consumer, and in those cases the consumer is entitled to a reduction in the price of the service.
I focus now on unfair contract terms. The law on unfair terms in consumer contracts is particularly complicated. We need to tackle the complexity and ambiguity in this area of law, which has led to costly disputes that have even been taken to the Supreme Court. These court cases have still not established sufficient clarity about what a court may or may not consider for fairness in a contract. Some protection in law is necessary because consumers understandably focus on the product or service that they are purchasing rather than the contract. They often cannot, or do not wish to, investigate the detail of every contract term before they sign up to an agreement. They need protection where the small print could trip them up. However, this protection needs to be balanced against businesses’ need to be able to trade without the prospect of every single term being open to challenge. Contracts are a necessary part of providing products and services, and should enable rather than hinder consumers and businesses in that market.
Therefore, these reforms will make clear what the courts can and cannot consider for fairness. In particular, we are making a key test that price and subject matter terms in a contract need to be transparent and prominent to ensure that it cannot be challenged for fairness in court. That will give important protection for consumers against the small print and will give more certainty for businesses about what they need to do to avoid a term being assessable for fairness by a court.
On Part 3 of the Bill and consumer law enforcement powers, investigatory powers of consumer law enforcers are currently scattered across some 60 different pieces of legislation. That makes it difficult for enforcers and businesses to understand what the consumer powers are and in what circumstances they can be used, which is why we are consolidating them into one generic set in the Bill. We also want to make it very clear in the Bill that trading standards can work across local authority boundaries to tackle rogue traders efficiently and effectively, which will help to get rid of the red tape that currently stands in its way and prevents it from getting on with its important role. These important reforms will save businesses and enforcers time and money. We estimate a net benefit of approaching £50 million over 10 years.
Part 3 also contains enhanced consumer measures. If a business breaks consumer law, it is right that action is taken, and trading standards does bring criminal prosecutions. However, while that punishes the miscreants, it does little to help those who lose out as a result of the breach. We are therefore giving enforcers more flexibility to deal with such breaches so that they have additional ways to achieve better outcomes for consumers and create a level playing field for compliant businesses where consumer law is breached. Those tools include new powers to seek redress for consumers, which will help people get some money back where they have lost out as a result of a business not abiding by consumer law. However, they also comprise powers to help prevent future breaches. That may involve, for example, a business putting in place a better complaint handling system or putting details of the breach on its website together with what action it has taken to put matters right.
However, the Bill is not prescriptive. Instead, it provides flexibility to enable the response to be tailored to specific circumstances. More than that, we want to encourage businesses to work with enforcers to propose and agree appropriate measures, although ultimately the enforcer can seek a court order. As a balance—and the Bill is all about providing an appropriate balance—we are including safeguards for businesses that any such redress or other remedy is proportionate, just and reasonable.
On lettings, the vast majority of letting agents provide a good service to tenants and landlords. However, we are determined to tackle the minority of rogue agents who offer a poor service. We will require all letting agents and property managers to belong to an approved redress scheme, which will give tenants an effective way to address complaints. However, I believe we should go further, which is why the Bill has provisions to ensure full transparency of lettings charges. That is effectively a ban on hidden fees, giving consumers the information they want and supporting good letting agents.
Lastly, the Bill reforms the regime for private actions in competition law. Anti-competitive behaviour can harm consumers by lowering output, increasing prices, and reducing choice and innovation. It is estimated that cartels can raise prices by between 20% and 35%. Despite the strong competition framework that the Government are putting in place, research by the Office of Fair Trading shows that businesses believe the current regime for private actions is too slow and too costly. As a result, businesses and consumers rarely get redress where they have been harmed by anti-competitive practice. It is particularly telling that in 10 years there has been only one collective action case, and only 0.1% of those eligible signed up to the action.
To address that, first, the Bill will make it easier for settlements to be reached without costly court proceedings, by facilitating alternative dispute resolution. Secondly, it will create a more efficient and quicker process for private actions through allowing a fast-track regime for appropriate cases aimed at SMEs. Thirdly, it will introduce a limited opt-out regime to facilitate more effective collective actions for consumers and businesses where they have been harmed by an anti-competitive practice, with safeguards, to ensure the cases are appropriate and merit this approach.
This is the most fundamental reform of UK consumer law for more than a generation. It will streamline the law, and make it clearer and more accessible. It will enhance consumer rights and deregulate for business where appropriate. It will empower consumers and stimulate competition and growth. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for the clarity of his introduction and, indeed, for his willingness to discuss the Bill with us. We look forward to working with him in Committee. I think he knows that our disappointment is about not what is in the Bill, but what is lacking. With only small exceptions, we like what is there, but that is because it is largely a consolidation Bill.
Our regret is that the Bill, with its wonderful title, is rather a wasted opportunity, which could have strengthened, rather than just clarified, consumer rights. We of course welcome the simplification and the improvements in the Bill, such as the right of returns and refunds, clarity on repairs, the reperformance of service and protection against small print. We very much welcome the possible redress for breaches of competition law, and, at least in theory, some possible collective redress for breaches of consumer law. However, as that depends on trading standards, and as it is being reduced to Lilliputian proportions, we worry this will be a measure in need of enforcement.
We will want to discuss why, despite the very good advice of the BIS Select Committee that the services definition,
“should apply an additional outcome-based liability standard”,
for services, the Government require only the exercise of “reasonable care and skill”, regardless of the actual quality of the outcome of the service provided. We will also want to debate how the Bill will cover public services where there is some payment or copayment by the recipient. Indeed, as that was acknowledged by the Minister only during the Bill’s passage through the Commons, the issue of the effect on the public sector is missing from the original impact assessment. It is slightly regrettable that we saw the extra 240 pages of the revised impact assessment only this morning. Noble Lords will not be surprised that I have not had time to digest that since then. Could I therefore shortcut that and ask the Minister to outline the scope, cost and benefits of the major, and welcome, advance of the consumer rights that apply to public goods and services where there is an element of payment or copayment?
Our approach to consumer rights is to put empowered consumers at the heart of the economy and society; to drive markets that work; to ensure that consumers get the benefit of any advances; and to have an economy that works for all. The generally accepted consumer principles promoted by representatives of consumers, across both goods and services, are access, choice, quality or safety, information, fairness, representation or advocacy, and redress.
On redress, we regret that the implementation of the EU directive on alternative dispute resolution is not part and parcel of the Bill, despite the Minister having just referred to the importance of redress, and despite that directive having sat on the Government’s desk for a couple of years. Rather oddly, it is running in parallel with the Bill, rather than as a part of it. We have been promised a response to the consultation by some unknown date. We have also been promised a response to the Public Administration Committee’s report on ombudsmen “by the summer”. It is 1 July, so we may have got there. Perhaps the Minister can enlighten the House on when we will have the details on that.
Despite the welcome that I have given to most of the Bill, we have one major difficulty with it—the, I have to say, preposterous idea that trading standards officers will have to give 48 hours’ written notice of inspections. That would seem to be a perfect time in which to dispose of counterfeit or mislabelled goods, and it will also add extra red tape for those hard-pressed local government trading standards officers. It is also in stark contrast to the new unannounced visits from Ofsted or indeed food standards inspections. Moreover, as the Minister has just said, the Bill will require letting agents to display their fees, but of course if trading standards officers have to give 48 hours’ notice rather than being able to pop into a letting agent as they walk past on the high street, there will surely be 47 hours in which the fees will go up.
My noble friend Lord Stevenson will raise our concerns over digital content later in the debate. For the moment, I want to draw the House’s attention to our regret at what is not in the Bill. There is nothing on secondary ticketing, on the rights of tenants or on double-charging by letting or estate agents. We have plenty of examples of charging both the tenant and the landlord or the seller and the buyer. There is nothing to strengthen point-of-sale information, nothing on the rip-off logbook loans, nothing to stop unreasonable charges on booking fees, nothing to help consumers to get a fair deal on car insurance, nothing to ensure that every regulator has the consumer interest at heart, nothing to help prevent micro-businesses being ripped off, and no guaranteed advocacy to assist consumers to challenge poor service or shoddy goods. There is nothing to ensure—something that I know to be of interest to this House—that people can continue to receive their invoices or pay bills by post, despite 7 million adults, some of them very vulnerable, still never having used the internet. Surely they should not have to accept online-only communication. There is nothing to tackle that scourge of consumer complaints, which we in this House have also had—nuisance calls.
Those are the sorts of problems facing today’s consumers, but the general demand for a better deal for consumers is not new. In 1962, President Kennedy laid out what we might use to test whether this Bill is fit for purpose. He wrote that all of us deserve to be protected against fraudulent or misleading advertisements and against unsafe products, and that we deserve the right to choose from a variety of products at competitive prices. He went on to outline steps to increase inspections of foods and cut back on deceptive trade practices and high utility bills, while recommending,
“a law to require consumers to know how much they are being charged in interest”,
and,
“laws to tighten safeguards against monopolies and mergers which injure the consumer interest”.
He saw such rights as being,
“immensely important to the well-being of every American family”.
I think that much the same applies in our own country today.
In 1975, that great campaigner and parliamentarian, Barbara Castle, sought a “society in which every producer remembers he is a consumer too”. The Labour leader, my right honourable friend Ed Miliband, has said:
“Unaccountable concentrations of power ... don’t serve the public interest and need to be held to account”.
However, all too often, whether with goods or services, it is the consumer who is weak and the provider who can take advantage of this. The Bill should be the tool to balance this unequal relationship where providers have all the knowledge and where the purchaser, for some reason, is unable to shop around, whether through lack of time, money, know-how and expertise, disadvantage or location.
Whether they are after credit, buying tickets online, going to a letting agent or a bank, needing electricity, or trying to catch a bus, surely there are times when consumers’ buying power is not enough for them to get a square deal or redress when something goes wrong. They are the issues on which we will test this Bill. We know that the Conservatives resisted plain packaging in the interests of tobacco companies. They abandoned minimum unit pricing in the interests of the drinks industry, refused to adopt a code of conduct for banking and insurance and abolished the National Consumer Council. We wonder whose side the Government are on.
The Government had to be forced to regulate letting agents—welcome though it is that they have got there—but they then accepted only that they had to belong to an ombudsman rather than empowering the OFT to ban unscrupulous agents. This Government have produced a regulators’ code that requires regulators to work ever more closely with the businesses they are meant to oversee, with no mention whatever of the interests of those the regulators are meant to be protecting—consumers and citizens.
We see an energy market effectively rigged, at great cost to consumers, with energy companies making £100 profit a year from every family, a doubling from last year, despite a fall of up to 38% in wholesale prices and with millions struggling to cope with spiralling bills. The coalition has done nothing to reform our broken energy market, which is one of the most basic disadvantages for consumers. Even with the new inquiry, customers will have to wait until the end of 2015 to discover whether they are being ripped off. Yesterday we heard that there is worse to come, with consumers being expected to fund two-thirds of the cost—some £250 billion—to modernise infrastructure that is built, owned and operated by private companies. The PAC has asked the Government to assess whether households can afford years of higher energy, water and transport bills to pay for updating our ageing infrastructure. Those questions still remain.
On nuisance calls which, as I said, are of great interest to this House, despite lots of promises there has been a lack of action. We are waiting for the Government to implement their promise to lower the hurdle of “substantial damage” or “substantial distress” required under PECR, the relevant legislation. That is a hurdle that First-tier and Upper Chamber Tribunal decisions acknowledge is set too high for the Information Commissioner to be able to protect consumers. Despite his best endeavours, the Information Commissioner is hampered. A £300,000 fine he had imposed was overturned on the grounds of “inadequate distress caused”, yet the relevant consultation and subsequent action from the Government have not yet appeared and consumers may have to endure another year of this on their phones.
That is a catalogue of problems that has not been addressed, so while we welcome what is in this Bill, with the exception of the 48 hours’ notice of inspections, we wish it had gone further to tackle today’s detriment. Every consumer should be able to demand “the quality I pay for, at a price I understand, delivered on the date agreed, and a remedy when things go wrong”. That is what we will seek to get from this Bill, to make it truly a Consumer Rights Bill.
Lord Stoneham of Droxford (LD)
My Lords, I am pleased to support this Bill, which has been led by my colleagues Vince Cable, Jenny Willott and Jo Swinson through the Commons. I have been asking myself in the past few days whether this is the first Bill that is the product of a formal ministerial job-share. I am glad Which? in its briefing fairly recognises this Bill as providing,
“a firm foundation for empowering consumers”,
and that it will,
“benefit businesses that treat their consumers fairly”.
Among my colleagues on this side of the House we see this ongoing commitment to strengthening consumer rights in the fine tradition of Liberal Democrat—and indeed Social Democrat—campaigners, on behalf of the rights of consumers. This is not simply a regulatory Bill. It aims also to encourage competition and to simplify, through consolidation, 12 pieces of legislation on consumer rights and 60 pieces of legislation on the investigatory powers of consumer law enforcement. It also aims to simplify the language of legislation by making it easier to understand. I think we will have to wait to appreciate that until the end of the passage of the Bill through this House. Time will tell.
I am sad that my colleague, my noble friend Lord Phillips of Sudbury, is not in his place. He has been a champion of simplifying legislation: he was a renowned consumer campaigner when he broke new ground as Jimmy Young’s champion on consumer rights—the legal eagle—on Radio 2 in the 1970s and 1980s.
This Bill combines a commitment to consumer rights with the Government’s strong commitment to greater competition to ensure fair and competitive pricing, and to ensure that competition encourages innovation and cost reduction, all of which are central to ongoing recovery and to developing the country’s competitive advantage. Vince Cable has highlighted these reforms as lying at the heart of a crusade towards trusted business and trusted capitalism. He sees the Bill as part of the overreaching overhaul of UK competition and consumer legislation which the coalition has been undertaking in the past few years. We fully support that work on this side of the House. This Bill complements the reforms of competition policy and the new Competition and Markets Authority, which came into force in April, with particular attention to dealing with price cartels.
There is also a European dimension to both consumer rights and competition policy: many issues have to be addressed at an EU level to open up markets, and to deregulate and increase competition. Increasingly, consumers make internet purchases on the web, regardless of national boundaries. With the EU so much out of favour it is perhaps appropriate to remember that free trade, regulatory competition and wider consumer rights are interlinked. The recent consumer rights directive, which came into force on 13 June 2014, produced a number of real benefits for UK consumers. Customer helplines must now be charged at only the basic rate. There is a ban on excessive card payment surcharges and on pre-tick boxes for additional purchases such as travel insurance. Consumers now have 14 days in which to return unwanted goods.
Competition has to be worked at. It is not necessarily a natural state of affairs. Given the opportunity, businesses normally prefer to eliminate competition if they can. It is also essential that consumers are able to make purchasing decisions with better information and with the confidence that, if they are misled or product quality lets them down, it will be put right quickly and cheaply. It is also important to business that clarity of what is expected of them and their responsibilities will reduce burdens on them and avoid costly problem resolution procedures. Standards that have to be met are now in one place, a 30-day period is set for inspecting goods, and procedures for repair and compensation are clear. The legislation applies to goods and services, and digital content. There will need to be further debate on how quality of service is defined for services and how in digital content “inherent buys” are dealt with.
We welcome the attempt to tighten up the prominence of small print and the measures to allow enforcers to have greater flexibility to get the best outcome for consumers. In the Bill received from the other place, we also welcome Clauses 81 to 86 to require letting agent fees to be more transparent. We also welcome Part 1, which requires any refund of goods, services or digital content due to be repaid to a consumer to be paid within 14 days, without any deduction by the business to cover fees and charges.
We will be following up on the detail as the legislation goes through the House. I agree with the previous speaker that we need to look again at the satisfactory quality test for service. It has to be reconsidered during the Bill’s passage through the Lords, which I think that the Government accept. Rather than the satisfactory quality test, we have set different standards at the moment calling on reasonable skill and care. However, it is more difficult for the consumer to judge that, which may leave consumers unprotected if things go wrong. Services are different from goods, but we need also to look at the exception where a repeat performance to put the work right cannot be contemplated. I hope that the Government will say more about their intentions as the legislation goes through.
My colleague the noble Lord, Lord Clement-Jones, who is much more of an expert than I am in this area, will comment on digital content, but we need to be aware that bugs are endemic to software and we need to be clear about whether this infringes quality and when, and about what the customer expects. We must not endanger innovative and necessary improvement work in this sector.
It is regrettable that the alternative dispute resolution directive is on a different timetable and cannot be included in this Bill, but we should have a discussion on how it will be implemented. We need to simplify the complex alternative dispute resolution landscape in the UK and create a strong, simple, competent ADR authority. I hope that the Minister will outline how the Government intend to respond to the alternative dispute resolution directive.
During the course of the legislation, I hope that there will also be some discussion of consumer and business education required to implement it successfully. Businesses can benefit if managers educate their staff that it is always cheaper and better for customer good will to put something right quickly rather than to argue over it. Customer service is more important to our economy as services become more exportable. There is huge potential with this and we cannot always rely on the price competitiveness of the pound to pursue British exports. Customers need to know how to put wrongs right speedily, which starts with providing proper guidance at the point of sale.
The Bill will help consumers reduce the time and cost of dealing with their consumer problems. It will provide more safeguards about small print in contracts and increase the means of redress. Through simplification and greater clarity, it will reduce legal complexity and costs for business and protect legitimate businesses from anti-competitive practices. Creating greater confidence among consumers will encourage them to buy new and innovative products and services. It will help encourage a vibrant, creative economy as we go forward from the foundations of economic recovery to one of sustainable economic growth.
Baroness Heyhoe Flint (Con)
My Lords, I fully support the general principles of the Bill. It will improve the rights of consumers, which will make for a fairer and more effective economy. Good progress has already been made on many issues in the other place.
Today I wish to raise an issue that is important to consumers whom I and many other noble Lords would more usually describe as fans or supporters, and the issue specifically concerns the occasions when those consumers have problems trying to buy tickets for sporting events. I thank the noble Baroness, Lady Hayter, for opening the door on this issue by pointing out that the Bill currently makes no mention of secondary selling. The issue is also of great concern to the major governing bodies of sport. We need to create absolute transparency for the purchaser about the seller so that every purchaser has full information about secondary sellers, thus providing much needed protection to the consumer.
I declare an interest in that I am on the board of the England and Wales Cricket Board, which is deeply concerned about this lack of transparency. I have also had representations from the Rugby Football Union, the Football Association and the Lawn Tennis Association. It is a concern of huge importance to those who stage major national and international sporting events.
Government regulations and law currently do not provide adequate protection for the consumer. We need to stress the importance of those fans getting access to sporting events. Britain probably has more people who attend sporting events than any other country in the world. Take just this summer as an example: we have Wimbledon tennis, Open golf, the Ryder Cup, the cricket series with England against Sri Lanka and India—although we might not mention the first in glowing terms—and, of course, the Commonwealth Games. Last year the Rugby Football League held a successful World Cup, and we all look forward to the RFU staging the Rugby World Cup next year. And how can we forget the millions of legitimate ticket holders who flocked from all over the world to the 2012 Olympics here in London? Increasingly, however, this desire of the general public and fans wishing to see the very best in sport is leading to a multimillion-pound business with secondary sellers seeking to rip off—I hope that is not too strong a phrase—and take huge advantage of those buyers when they try to purchase those much sought-after tickets.
There is a worthy debate to be had about the need to actually ban ticket touting by making it a criminal offence, and I know that my noble friend Lord Moynihan is currently giving thought to that approach. The Government banned ticket touting for the London Olympics and it helped a great deal. It meant that the Metropolitan Police was able to take action against the criminal element which infiltrates major events, and consequently there were no touts loitering on the pavements outside venues to menace consumers and spoil the ambience on the way to the events. However, that is a debate for another day.
Today I am raising the issue of using the Bill to strengthen the protection given to consumers who buy tickets, particularly from secondary sellers. How can we strengthen the regulations? There is a widespread feeling among the major sports governing bodies which host international events that we need to strengthen all the regulations that apply to the resale of tickets. This subject was raised in the other place, and I know that the Minister has had the matter raised with him too.
The sports world would like to see more rigorous regulation applied to that market and to those who act as intermediaries in selling tickets to fans. We must ensure—surely this is at the heart of effective protection—that we give the consumer more information at the point of purchase. For example, we should let them know at the point of sale the actual location of the seat they are buying and its face-value price. That would enable them to determine whether the seat was of the correct value and to ensure that it was not a concession seat to be sold to children or people with disabilities—sadly, that does occur. Perhaps noble Lords read in yesterday’s newspapers the story about tickets for centre court for the Andy Murray match being sold for £2,000 on one well known online selling site. That hardly seems fair, in my eyes, to those very keen fans who would like to support such an event.
Even more importantly, the consumer buying the ticket must be told what are the terms and conditions of the transfer of that ticket to them. Many sporting events do not allow seats to be transferred above face value or without their prior approval. It is patently not fair to allow someone to buy a product that is rendered worthless when doing so because it is not allowed to be transferred by the original terms and conditions. Indeed, we should consider whether it is appropriate to allow such a sale to take place at all.
I seek to show why the existing regulations are weak and do not work efficiently. I know that Ministers have already done some good work. Last year they introduced the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, and recently they published updated guidance to those regulations which refer to ticket sales. However, legal experts in the sporting world who administer national and global events advise us that these regulations will not work due to lack of information and transparency to the buyer. This is because those regulations apply only to sales by a trader, which is defined as being:
“A trader means a person acting for purposes relating to that person’s trade, business, craft or profession whether acting personally or through another person acting in the trader’s name or on the trader’s behalf”.
Therefore, that regulation does not apply to every sale. Indeed, it will probably not apply to the majority of sales on sites such as viagogo and Seatwave, where the claim is made that most sales are being conducted by individuals.
Furthermore, the guidance that the Government have issued is just that—merely guidance—and its definitions are weak. It talks of the seller providing key characteristics. My expectation is that sellers will not deem exact seat locations as key requirements. We need to spell out the exact requirements that are needed.
At this early stage of the Bill, several of my noble friends, from all parties, have expressed a wish to bring forward an amendment. Having met with the Minister, I hope that the Government will seek to make progress here and share the spirit of what other Peers and I are looking to achieve. I believe that we can build on what has already been done with a small and tidy amendment to the Bill. I therefore hope that we can debate the matter in more detail and review the exact form of such an amendment that will work best to make sure that sports consumers—the fans—are protected and given true and honest details about their ticket purchases.
There is a worldwide philosophy created by the MCC called “the spirit of cricket”. I would like to see a similar creation stated in a proportional amendment entitled “the spirit of secondary selling”.
Lord Wills (Lab)
My Lords, like other speakers, I welcome much of this Bill and I congratulate the Minister on his masterly exposition of its merits. As my noble friend on the Front Bench has already said, in many ways the Bill is a missed opportunity. Legislative time is scarce and precious, and I regret that the Government have not used this unusual opportunity to address some long-standing problems for consumers.
I want to focus on the issue of exploitative marketing calls. When I was a Member of Parliament, this was a recurring problem for my constituents. Vulnerable people, often elderly, were rung up and, without understanding all the implications of their decision, were persuaded to sign up for goods and services that they did not need and could not afford. The measures that offer protection against this are clearly inadequate, as the problem continues to grow and cause distress. The debt charity StepChange, for example, has estimated that 26 million people in this country have been contacted by companies selling high-cost credit. Although much attention has focused on notorious cases, such as this and the peddling of payment protection insurance and accident claims services, the problem goes far wider even than this.
Significant measures to tackle the problem have been proposed in the other place and by non-governmental organisations and such measures would significantly improve protections against abusive practices. For example, the threshold for firms breaking the ban on unsolicited promotional electronic messages should be lowered so that the Information Commissioner would not have to demonstrate damage or distress before issuing an enforcement notice. The requirements for consent to have personal data passed on to other companies should be toughened to make them more explicit. There could be a time limit of, say, a year on such consent. There is even a case for a ban on all such contacts. But the Government have shown no inclination to tackle such abusive marketing practices, despite the widespread demand from consumers and consumer organisations for them to do so.
In March the DCMS said:
“We will be consulting on making a change to the Privacy and Electronic Communications Regulations … to lower the threshold to remove the need to prove substantial damage or substantial distress. Following the consultation we will look to implement reforms as soon as parliamentary time allows”.
These are long-standing problems and the issues are well understood. There will have been time for that consultation to take place and be digested within Whitehall and for amendments to be produced before the Report stage, if not before the Committee stage. Parliamentary time will allow for it but will the Government? Do they have the political will effectively to tackle this abusive nuisance now and not leave it until the next time we have such a landmark consumer protection Bill?
It is time to put an end to any business model that relies on the exploitation of the vulnerable. This Bill offers a rare opportunity to help to do this. Even at this late stage, I hope that the Government will seize it.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, this is a good Bill. It covers many issues that have previously been of concern to consumers and offers them reassurance and protection for the future. It is easily understood by the layman, without too much jargon. I welcome the clarity the Bill brings and look forward to the Committee stage.
I would just like to comment on the issue that has arisen in the Bill around unannounced inspections. As a vice-president of the Local Government Association, I am well aware of the concerns that councils have about the initial proposals to restrict their ability to perform such inspections. I understand, as do local councils, the stress that such inspections can put on businesses and their employees. However, sometimes, in order to preserve the safety of the general public, and often the most vulnerable members of the public, the ability of councils to inspect a business without warning needs to be protected. In my own council of South Somerset, the power is used extremely sparingly and generally only in conjunction with other agencies, such as the police and the county council.
In the south-west, the “Smokefree” campaign is focusing on the sale of illegal tobacco and the effects it has on encouraging young people into smoking. Recent research has shown that 89% of adults in Somerset believe that illegal tobacco is a danger to children because it can be bought easily and cheaply at pocket money prices. Cheap, illegal tobacco is easily accessible in communities across Somerset. It sells for less than half the tax-paid price of legally sold tobacco. Illegal tobacco therefore impacts on the business of legitimate traders in Somerset.
The south-west, unfortunately, already has the highest number of young smokers in the UK. Illegal tobacco sellers do not ask for proof of age or care if they are selling to children. Apart from advertising and raising awareness of illegal tobacco sales, a main plank of the campaign is enforcement alongside HMRC, the police and trading standards. Giving notice of enforcement visits and action is counterproductive to reducing the number of sellers in the marketplace.
Outside of illegal tobacco sales, the vast majority of local businesses abide by the rules, but there will always be some which do not. Where inspections are not necessary, the Local Government Association, through its local regulation initiative “Open for Business”, is promoting the advance notification of business inspections wherever possible. It is also key for best practice to be shared from councils where trading standards teams work closely with businesses to ensure that their practices are within the rules, while reducing their burden as much as possible. Therefore, I urge the Government to accept the recommendation of the Business, Innovation and Skills Committee in another place for an exemption from the requirement for 48 hours’ advance notification where an enforcement officer reasonably considers that to give advance notice would defeat the purpose of the visit.
Turning to letting agency fees, like many in the House before me, when I was introduced I began to look at possible accommodation in London. I found the various estate agent adverts confusing in the extreme. I could not tell whether the real rent was being charged or whether utilities and council tax were included or extra, and there was certainly no mention of fees to be paid by the renter. I welcome the greater transparency proposed in the Bill on letting agent fees. This is a great step forward. With rents in London on the increase, it is essential that we can all see what the actual cost of entering into the rented market is and how much it will cost us to change accommodation. At a time when household budgets are stretched to the limit, transparency is vital.
Lastly, I turn to children’s exposure to payday loan advertisements on television. We covered payday loans during Questions. Like others, I am sure, I have received a brief from the Children’s Society. Being a great supporter of that organisation and having received many important briefings from it over the years, I took particular notice of this one. Back in Somerset I chair a task group looking at the impact of the welfare reform programme on residents and families. The huge detrimental effect of the industry which has grown up around payday loan companies, both licensed and unlicensed, forms a key part of our deliberations. The statistics are stark. Ofcom research showed that in 2008 there were 17,000 payday loan television adverts. By 2012 this had risen to 397,000—an increase of 2,300% in just four years. In 2012 children aged four to five saw an average of 70 adverts for payday lenders during the course of the year. Children are exposed to payday loan adverts on a daily basis. These adverts do not flag up the penalties for non-repayment and give the impression that money is readily available, just for the asking. Anyone who has children will have suffered at some stage from the “I want” syndrome, especially in the weeks running up to Christmas. This can cause enormous stress to families struggling to make ends meet. By allowing children to think it is easy for their parents to get access to cash, the adverts are encouraging children to pester their parents to take out high levels of debt. It is exploiting children to reach parents, and this manipulative tactic must be discouraged. Finally, I should like to ask the Minister whether the Government will consider using this Consumer Rights Bill better to protect children from advertisements for payday loans.
Lord Alton of Liverpool (CB)
My Lords, like other noble Lords, I too support and welcome this Bill on consumer rights. It introduces a much needed single framework that clearly sets out in one place the rights and obligations of consumers and traders. The Bill succeeds in ensuring that consumers will be better informed about their rights and what they are buying. Simplifying and clarifying consumer law, as the Bill does, will mean that consumers spend less time trying to understand their rights and working out how to apply them. It also provides a firm foundation for empowering consumers. Where businesses treat their customers fairly, those enterprises will benefit and they have nothing to fear from this legislation. As the ombudsman services policy adviser, Simon Darby, has remarked:
“The Consumer Rights Bill represents an excellent opportunity to deliver an improved, enhanced and simplified rights and redress landscape that would tangibly improve the support and outcomes available to consumers”.
There is also, however, a widely held view that the efficacy of the Bill will rest entirely on the extent to which the legislation is enforced, both privately and publicly. Mechanisms such as the alternative dispute resolution referred to earlier by the noble Baroness, Lady Hayter, and the noble Lord, Lord Stoneham of Droxford, could significantly add to the Bill’s effectiveness. I was struck that a briefing from Which? stated:
“The powers on redress and enforcement could be improved in the Bill”.
I hope that the Government will, as the Bill goes through its further stages, give that further thought.
When considering Bills such as this, which, as the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Wills, correctly remarked, have a consolidating function, it is important that we do not limit our ambitions simply to consolidating but introduce new provisions where they are desirable or necessary. I have three issues that I should like to see addressed in the Bill. The first is one that the noble Baroness, Lady Bakewell, referred to in her remarks and which I raised during Question Time today. It was also flagged up earlier this year by the Business, Innovation and Skills Committee, which recommended banning payday loan adverts from programming aimed at children. The committee said:
“We do not believe that these are appropriate channels for payday loans. We recommend that payday loan adverts are banned from programming aimed at children … We are concerned that payday loans increase the pressure on families already struggling with unmanageable debt and believe that payday loan adverts should not be shown on children’s television”.
This Bill provides a timely and welcome legislative opportunity to implement that recommendation and to protect vulnerable children and families from advertising for high-cost loans.
The need to do so was underlined by the Children’s Society in a joint report with the StepChange debt charity, entitled The Debt Trap: Exposing the Impact of Problem Debt on Children. Certainly, this was an issue that I encountered during my time as a Member of the House of Commons representing a constituency in the heart of Liverpool. I saw it regularly even before this massive increase in advertising and the use of payday loans. Debt can have an incredibly corrosive effect on families and communities.
The report found that problem debt can have a severe impact on every aspect of children’s lives, from missing out on the essentials, to problems with family relationships, and even bullying in schools. It states that more than half of children in families with problem debt say that they worry about their family’s financial situation. It argues that the Government should use the Consumer Rights Bill to,
“review the case for tighter restrictions on loan advertising seen by children”.
Legislation in this area would undoubtedly help in preventing children being bombarded with advertising from moneylenders, usurers and loan sharks, but children should also learn from their parents and schools about money management and the dangers of debt, not least in a country where outstanding personal debt stood at £1.443 trillion at the end of April 2014. Put another way, £161 million was the daily amount of interest paid on personal debt in April this year, while 6,519 debt problems were dealt with by the CAB each working day last year.
Ministers should also reflect that a petition calling on Ofcom to ban short-term, high-interest lenders from advertising on programming aimed at children gathered almost 10,000 signatures. But in their official response to the report of the Business, Innovation and Skills Committee, the Government rejected the demand and played down the scale of the problem, saying:
“The increase reported by Ofcom in the number of payday lending ads seen by children is concerning, but it is also important to note that they comprise a relatively small 0.6% of TV ads seen by children aged 4-15”.
This is complacent and disturbing. A recent survey by the Children’s Society, already alluded to, suggests that 56% of children aged 10 to 17 are seeing advertising for loans “often” or “all the time”. Conversely, only 21% said that their school taught them about debt and money management. Research published by Ofcom last December showed that there were 17,000 payday loan advertisement spots on TV in 2008. That increased to 243,000 in 2011 and reached a staggering 397,000 in 2012. Put slightly differently from the way in which the noble Baroness, Lady Bakewell, who gave the percentage increase, expressed it, that is a year-on-year increase of 64%. According to Ofcom, the average child aged four to 15 saw 70 payday loan adverts just last year.
At a hearing of the committee last year, Martin Lewis, founder of the MoneySavingExpert.com website, called for a blanket ban on advertising designed to “normalise” the idea of short-term loans among children. He accused the firms of,
“grooming a new generation towards this type of borrowing. If you think we have got problems now, you wait until 10 years’ time. Grooming is the right term. We are talking about a market that did not exist five years ago”.
He condemned the adverts as “deliberately contrived and controlled”, singling out Wonga’s adverts featuring puppets to appeal to children. These concerns appear to be well founded. A survey on MoneySavingExpert.com found that a third of parents reported their under-10s repeating payday lenders’ slogans, while 14% said that, when they had refused to buy a toy, their child had nagged them to take out a payday loan.
It is completely unacceptable that payday loan companies should be allowed to target parents through their children. We should consider whether it is acceptable to allow payday loan advertising to continue to mushroom generally, but there is no doubt that immediate action should be taken with respect to the targeting of children.
I appreciate that the Government have suggested that the Advertising Standards Authority and Financial Conduct Authority could ban irresponsible and misleading adverts which breach their rules. However I firmly believe that, rather than regulatory bodies banning particular adverts, the Government should use this Bill to make it explicit that all adverts targeted at children should cease. If the Government are not prepared to act, we as a House should do so. When the noble Viscount replies, I would be grateful if he would tell us what discussions the Government have had with Ofcom about banning payday lenders from advertising on children’s TV; whether the Government will consider using the Bill better to protect children from the advertising of payday loans; and how the Government will ensure that young people get financial education from schools, not from advertising of high-cost credit.
I now want to refer briefly to two points. In particular, I support the point made about local authority trading standards officers providing 48 hours’ notice of routine business inspections. As originally drafted, that requirement would have restricted the ability of trading standards officers to undertake unannounced inspections where they have reasonable grounds to do so—for example, because of a known risk relating to a business or type of activity. Maintaining the freedom of trading standards officers to turn up unannounced in those contexts, where they have reasonable grounds to do so, is vital. During pre-legislative scrutiny, the Trading Standards Institute, along with the Local Government Association, of which I am also a vice-president, made it plain that although it welcomes the overall direction of the Bill, it felt that that provision required urgent revision. I am happy to say that the Government have, to some extent, responded positively, but additional clarity is required. Specifically, there remains doubt about whether the exemption can be applied in respect of unannounced inspections relating to a known risk in an area, rather than to specific premises. I will listen with interest when the noble Viscount comes to reply on that.
I turn to my third and final point. Right at the heart of any credible concern for consumer rights must be concern for the safety of consumers. With the Eldorado tendency within the biotech industry, which sees vast profits to be made from genetic engineering and streets paved with biotech gold, we need much clearer safeguards, tempering the desire to make breakthroughs with proper concern for the safety of the public.
One example is the growing public concern about the Government’s proposal to introduce regulations permitting pro-nuclear and maternal spindle transfer in the hope of creating children who do not inherit mitochondrial disease. That issue was raised during debate on the Bill in the other place. Regrettably, a bipartisan amendment tabled by the admirable Mrs Fiona Bruce, the Conservative Member for Congleton, and the equally admirable Mr Jim Dobbin, the Labour Member for Heywood and Middleton, was not reached or properly debated in another place.
In Committee here, there will be a further opportunity to discuss this important subject. For today, I shall not go into great detail, but, in short, the Government have asked the Human Fertilisation and Embryology Authority on three separate occasions to produce a report on the safety of the proposed procedures. In its report, the HFEA has concluded that there is no evidence to demonstrate that the procedures are unsafe, but it has recommended a series of pre-clinical research experiments, some of which it describes as critical.
In March this year, the head of the United States Food and Drug Administration warned that there are not enough data on animals or in humans to move to those new techniques, and it is unclear whether the procedures would be effective. The noble Lord, Lord Winston, who is of course a leading expert in fertility treatments, has expressed his deep concern, stating that,
“the problem is that I do not believe there has been enough work done to make sure mitochondrial replacement is truly safe”.
Like the head of the Food and Drug Administration, the noble Lord warns that not enough research has been done on animal models and that more tests should be done to assess the risks to the child.
In addition, only earlier this week, two leading bioethicists said that the United Kingdom is rushing to introduce mitochondrial transfer despite the profound safety risks. Donna Dickenson, emeritus professor of medical ethics at the University of London, and Marcy Darnovsky, executive director of the US Center for Genetics and Society, pointed to America, where there are “no plans” to allow those techniques. In an article for New Scientist magazine, the bioethicists highlighted concerns raised by an advisory panel to the US Food and Drug Administration that there is no evidence to support the use of GM techniques in humans. Despite the desire of the biotech industry to stampede us into giving a green light, the risks and safety concerns of those techniques are therefore considerable. Given the importance of public safety, it would be quite wrong to rush into those procedures.
In the context of a Bill that puts the safety and protection of people at the heart of its consideration, it is right to ask Ministers how they intend to provide the necessary scaffold of public protection when such developments occur. Clearly, unamendable regulations will not provide for safety thresholds but, as Members of the House of Commons argued, the Bill could do so.
The public need to know that Parliament has properly considered these matters and not been rushed pell-mell into signing them off while pre-clinical research remains unfinished. This is an issue I raised directly with the Secretary of State for Health only yesterday, and in correspondence and in questions to the noble Lord’s department and to the noble Earl, Lord Howe. At the very minimum, I hope that the Minister will reassure the House that no regulations will be laid before Parliament until all the pre-clinical research recommended by the HFEA has been conducted and written up in peer-reviewed journals that are in the public domain, where they can be scrutinised by Members of Parliament and concerned members of the public.
There is much more that could be said, but that can wait until another day and until later stages. For now, I welcome the Bill and hope that it makes good progress on to the statute book. I look forward to the reply of the noble Viscount at the conclusion of our debate.
Lord Borwick (Con)
My Lords, this is an important piece of legislation. The way that consumers buy products, the vendors they buy them from and the way that consumers receive them has all changed immeasurably in the last five years, let alone the last decade. The internet has given consumers unprecedented choice, and that is a wonderful thing. We now have access to an unimaginable number of products, we can buy and exchange goods at any time of the day or night and we can do the weekly food shop on our phones.
I know that the Minister’s intention in bringing the Bill through the House is to improve transparency and clarity for consumers—quite right, too. Anyone who has bought anything online, from airline tickets to sofa cushions, will know that not all websites offer the same information as clearly as others. However, there are certain things that are striking about the global nature of online sales. Purchases are usually very impersonal, with the buyer having no personal contact with the seller—usually to the extent that the buyer does not even know what country the seller is in. Last week, I took the opportunity to purchase a Kindle edition of one of my noble friend Lord Dobbs’s excellent novels, featuring a Conservative MP as the hero. I commend it to other Members of this House. The location of the seller was not abundantly clear until I received an e-mail containing this information. I presumed, therefore, that I had purchased it from Luxembourg. Surely this information should be made clearer to the buyer. I am aware that the consumer contracts regulations 2013, which came into force on 13 June this year, already stipulate that consumers should be made aware from where they are buying their products. The name of the seller is available on the product detail page, but you have to put in a bit of work to find it. I feel that in the spirit of greater transparency and clarity for the consumer, it is perhaps not clear enough.
The Bill will help to improve competition. If consumers are safe in the knowledge that they are protected while shopping online, then they may switch between sites more readily if they spot a good deal elsewhere. Choice and competition are wonderful things that we are right to encourage. In that respect, I believe that it would be beneficial to make clear to shoppers of all products, at all values, by all means, from where they buy their products. Furthermore, it should surely be possible for consumers to choose from where they buy their products—perhaps through a check box, when I was buying my noble friend Lord Dobbs’s book, asking, “Would you prefer to buy this product from Luxembourg or from the UK?”. This would give Governments all the more reason to drop their tax rates in order to compete. This would be a way for the average consumer to express his or her opinion about where they want to do business.
I share the concerns of the noble Baroness, Lady Crawley, and others about the proposed changes to powers of entry for bodies such as trading standards. I sympathise with the Minister, in that investigatory powers are currently scattered in around 60 different pieces of legislation. That surely makes it extremely difficult for businesses and investigators to know their rights. Bringing them all together in one Bill seems sensible, but a 48-hour notice period before trading standards raids does not seem particularly sensible. It merely gives rogue traders the time to cover up whatever it is they are up to. There will be significant costs in serving these notices, too. But overall the Bill is a good indication that the Government understand the need to keep up with the changing nature of the market.
Things are moving on so quickly that existing laws are looking increasingly dated. Consider the Sunday trading laws: most shops have to close their doors on Sundays, whether shoppers and traders like it or not. This is obviously not the case on the internet. In fact, you could browse in a supermarket on a Sunday morning, before they are legally open to sell you the products, and make the purchases with your iPad instead—a ludicrous state of affairs. This is not the legislation to deal with this particular anomaly but it shows the extent to which laws on the high street have not kept up with the digital age. To that end, regulations protecting consumers have to keep up.
As the internet has offered more choice, this Bill does a good job of protecting the consumer as they make those choices. It also helps ensure that there is reasonable redress for those who have been mistreated. For that, the Minister and his team are to be commended.
Baroness Crawley (Lab)
My Lords, from time to time a Bill comes along which gets the pulse racing and the heart thumping, and fills us with sheer elation. This may not be quite that Bill. That is not to say that we on this side of the Chamber do not welcome many of its aspects; we will not oppose them in principle, as my noble friend Lady Hayter has confirmed. We, too, thank the Minister for clearly setting out the Bill from the Dispatch Box. However, we believe that there is some way to go before the Bill is strengthened to meet the needs of modern British consumers.
As the gracious Speech of 2013 set out, there is a need for,
“a simple set of consumer rights to promote competitive markets and growth”.
As noble Lords are aware, the main elements of the Bill aim to consolidate legislation in one place. We welcome such consolidation. As the advice from eminent academic studies has shown to both the previous Government and this Government, the UK’s consumer protection has two key weaknesses: uneven enforcement and excessively complex law. If the Bill goes any way to properly addressing those weaknesses and that complexity, it can only be a good thing.
However, many important opportunities were missed to improve the Bill in its passage through the other place, as noble Lords have said. There were opportunities presented by amendments from Her Majesty’s Opposition, such as those to ban double charging or the outmoded and unfair logbook loans regime. There was the opportunity to legally assist consumers who have signed up to unfair contracts that are now sinking them into debt. As president of the Trading Standards Institute, there was also my own particular interest: the opportunity to restore the powers which trading standards officers currently have to investigate counterfeit or potentially dangerous goods. There were also several other amendments. Those were lost opportunities because of being voted down or lack of time in another place. However, I am sure that the Minister will not be surprised to learn that that is not the last he will have heard of such amendments.
We are debating the Bill at a time when people’s living standards are still under great pressure. Even those households still in employment are very often on low wages and unable to keep up with cost-of-living rises. The years of austerity have, yes, made many consumers cannier and more aware of where to get the best deal or find out more about their rights. Yet those years have also seen mounting debt, as the noble Lord, Lord Alton, has just set out. Those years have been a time when food bank use has increased dramatically and they have seen school breakfast clubs feeding many more children. So it is important that this Bill meets the actual and diverse needs of consumers today. The fact that the consumer landscape currently is more disparate and less statutory than it was four years ago does not help. We continue on this side of the House to raise questions about oversight and accountability in that consumer landscape.
In preparing for this Bill I have spoken to many in the advisory and enforcement community. The trading standards community welcomes the Bill and, like the Government, sees the crucial link between confident, informed consumers and a growing vibrant economy. That is why, like so many of us, it wants to ensure that the Bill is in the best possible shape to assist consumers to help themselves whenever possible, but to have the right powers and tools in place to be able to deal effectively with serious cases when consumers fall into dispute.
A number of key amendments to the Bill would both empower consumers and realise the Government’s intended ambitions. One would be to increase transparency and trust for consumers online. Many noble Lords have spoken about the increase of business online. Buying goods and services from the internet is growing at a phenomenal pace and, with access to information never having been so freely available, this in turn starts to shape how consumers make decisions about who to buy from. The most trusted recommendations for buying come from people we know or from other consumers online. The growth of this third party endorsement and information brings new problems, such as fake reviews, undisclosed competitor blogs and reviews, and a plethora of confusing accreditation schemes.
With information of varying kinds being such an important factor in allowing consumers to make an informed choice, surely the opening up of public data would serve as a valuable tool for consumers. Data from the Citizens Advice consumer service or the complaint data held by local authority trading standards officers about local traders could serve as an invaluable source of information and would give consumers a trusted steer with which to make decisions.
There is nothing to stop public enforcers publishing this kind of data and material, subject to there being an express right to do so. A powerful step forward for consumers would be for this Bill to make provision for such an express power. Such a power already exists for the Office of Fair Trading in the Enterprise Act 2002. Will the Minister look at that possibility in this Bill?
Other key issues that could strengthen the Bill include the removal of disincentives to action when it comes to enhanced consumer measures. Yes, we welcome the provisions in the Bill to give consumers redress, which are potentially quite powerful. However, our concern would be the possible modest take-up of such provision. The new measures are an extension of existing provisions within the Enterprise Act 2002 which allow enforcers to take legal action in the event of unfair trading. Use of these measures has, in the past, been modest at best, through a combination of complexity of process, cost and risk to enforcers. It would be a pity to have well intentioned legislation ignored or underused because of those disincentives. No doubt, again, we will return to this in Committee. Up to now, plans for the implementation of the Bill and education for consumers and businesses about it have been undercooked. I know that there is now an implementation document—my noble friend on the Front Bench has referred to it—but it has only just been received. We will be looking at it to see if there are any firm proposals to invest in a specific campaign to raise awareness of the Bill, as the Bill will bring an instant gap in understanding for many consumers and businesses.
My penultimate point looks at the section of the Bill that deals with powers of entry—or “48 hours”, as the Minister’s shorthand would have it. Several noble Lords have already raised this issue in the debate. We have yet to see any substantial evidence that should lead the Bill to alter the present investigatory regime undertaken by trading standards officers when it comes to visits to traders’ premises. I believe, as does trading standards, that the new provision to serve notice 48 hours before an inspection can be carried out, except where an exception can be made, is a real step backwards in consumer protection. Yes, the Government have made some changes to this area since the first draft of the Bill, but many of us do not believe that those changes have struck the right balance between the right to carry on a business unimpeded by officials and the right to protect consumers and honest businesses, which of course are the vast majority of businesses.
This relaxing of the focus on potentially fraudulent traders goes against the whole trend in another part of consumer protection; I am of course talking of food safety. Quite the opposite is happening there. Since the horsemeat scandal, successive government reviews, the European Commission and consumers alike are proposing more unannounced inspections and sampling as a solution. Indeed, the Government’s own review of food safety powers concluded that the use of unannounced inspections is proportionate to the risks involved and has left the current powers of entry available to trading standards officers untouched for the purposes of food safety enforcement.
I have to ask the Minister: what makes consumer fraud through adulterated food any different from any other kind of consumer fraud? The Government’s proposals on powers of entry create risks and a lack of clarity; bring unnecessary costs, as the noble Lord, Lord Borwick, said; add very little value; and could very well act as a disincentive to enforcers to take action. We will without doubt be returning to this point in Committee, which I am sure will be about as welcome to the Minister as Jean-Claude Juncker appearing at the Conservative Party conference.
Lastly, it is not possible to talk about the impact of the Bill on our regulatory system without raising once again the parlous state of trading standards budgets, which, according to the TSI’s recent workforce survey, have fallen by approximately 40% in real terms from 2010-11 to 2015-16. The number of staff employed in trading standards has fallen by 45% in England and Wales between 2009 and 2014, and by 52% in Scotland between 2009 and 2012. These results show that in some areas of the country trading standards services have become unsustainable. It is time for the Government to get a grip and find strategies to at least stem the decline of a UK enforcement service that has been one of the best internationally for over a century.
I am sure that the Minister is a good listener, and I look forward to the many debates that we will have in the coming months to strengthen the Bill as it moves through its stages in this House.
Lord Clement-Jones (LD)
My Lords, I very much welcome the Bill and pay tribute to the work of my honourable friends Jenny Willott and Jo Swinson in particular. I hope that the Bill eventually gains the same stature for digital content as the landmark Sale of Goods Act 1893 achieved in its time in consumer protection on the sale of physical goods. In this context, I am absolutely delighted to see the noble Lord, Lord Borrie, in his place. As the author of The Consumer, Society and the Law, with Professor Aubrey Diamond, he was required reading for ignorant law students, and many subsequent law students, like me.
The Bill achieves the feat of being both pro-business and pro-consumer by giving greater clarity about rights redress and enforcement to all concerned. As we have heard, the Bill has of course undergone extensive pre-legislative scrutiny, and the Government have responded comprehensively to many of the recommendations made by the BIS Select Committee. However, there are still quite a number of outstanding issues. There is the general question of whether software should be treated as content. Software has its own directive in copyright law—the software directive. The question is therefore whether software should have special provisions in consumer law, and whether those should be reflected in Chapter 3 of Part 1 of the Bill.
As the impact assessment makes clear, software is special. It states:
“Bugs are considered standard in digital content on issue”.
The Explanatory Notes also recognise that, but the legislation does not. As Professor Bradgate said in his report for BIS:
“Even with extensive testing, it is quite common, and an experienced computer user will be aware of the fact, that the complexity of modern programs is such that bugs in the program are likely to manifest themselves throughout the program’s lifetime. Modern complex programs therefore need regular updating and patching to correct bugs and/or other potential weaknesses in the program as they arise”.
There is therefore a strong area of concern in the software industry which relates to the implied terms as regards “satisfactory quality” in Clause 34, “fitness for purpose” in Clause 35 and correspondence to description in Clause 36. For example, in Clause 34—as techUK, one of the bodies representing the industry, says—the term “minor defects” is too broad. What is the distinction between a bug and a minor defect? Likewise, Clause 36 does not recognise the evolving nature of software, where functionality may change over time.
Plainly, breach of any of those requirements gives rise to a right of repair or replacement; the right to a price reduction or a refund; and a potential right to the measures referred to in Clause 46, which itself does not recognise the particular context in which software is often supplied. In addition, and very significantly, the effect of Clause 47 is that liability under most of these provisions cannot be excluded or restricted. The Federation Against Software Theft suggests that a more equitable approach would be to permit the exclusion or restriction of liability to the extent that it is reasonable to do so, taking into account factors analogous to those under the Unfair Terms in Consumer Contracts Regulations. That would enable the courts to develop a fair and equitable system on a case-by-case basis.
In summary, the overall difficulty with all the new implied terms as drafted is that they do not appear to cater explicitly for the presence of bugs. There is a real danger that an ordinary reader of these provisions may well be led to conclude that digital content containing bugs is not of satisfactory quality, fit for purpose or as described. Clearly, other forms of digital content are not expected to contain bugs, but that brings into question again whether software should be treated differently under the Bill. It is disappointing, too, that we can introduce these digital quality provisions only for the UK. It is absolutely crucial that we build a European single digital market with a common consumer regime.
I welcome the greater role envisaged in the Bill for trading standards officers, but like many other noble Lords, I have concerns about whether these powers are adequate for the digital age, particularly in terms of powers of entry. Not just trading standards officers but many suppliers of software believe that new requirements to serve advance notice of an inspection will act against the interests of consumers and businesses. Trading standards officers use their powers under the Trade Marks Act 1994 and the Copyright, Designs and Patents Act 1988 to enforce the criminal provisions of these Acts for counterfeit and pirated software. If notice routinely has to be given, then infringing software will be much more difficult to track down and identify.
The current power to inspect without notice has resulted in illicit copies of software being removed from possible purchase by unsuspecting consumers. Digital evidence can be destroyed easily; these changes may deter trading standards officers from carrying out checks and certain illicit activity may slip through the net unnoticed. By contrast, as we heard from the noble Baroness, Lady Crawley, and as the Trading Standards Institute says, reviews of food-safety powers have left powers of entry for trading standards officers untouched in this area, after concluding that the use of unannounced inspections is proportionate to the risks involved.
There are also some omissions from the Bill, some of which were debated in the Commons and about which we have heard today. I will also attempt to test the Government’s intentions in a number of areas. Look-alikes or misleadingly similar packaging is unfinished business from the Intellectual Property Act and is clearly a consumer issue. So-called parasitic copies are potentially unlawful under the existing consumer protection regulations as they mislead consumers. As I said when we debated the then IP Bill, the lack of enforcement of the CPRs appears to be at odds with the unfair commercial practices directive’s requirement for member states to provide adequate effective remedies against unfair practices. Earlier this year BIS launched a consultation on the enforcement of the CPRs for these issues. Is it not time for a new clause to be inserted in the Bill that would give brand owners the right to take private civil action under the consumer protection regulations?
There is then the whole question of ticketing abuse, which was dealt with so ably by my noble friend Lady Heyhoe Flint. Increasingly—as Channel 4’s “Dispatches” investigation and the BBC’s “Watchdog” have shown—professional secondary ticketing touts buy tickets solely with the intention of denying them to real fans, to whom they then resell their tickets at inflated prices. With internet ticket selling becoming more streamlined, touts are able to use sophisticated computer systems to buy large volumes of tickets automatically, seconds after they go on sale. That often means that it is practically impossible for genuine fans to access the event. An artificial shortage of tickets and an inflated secondary market are created. Content providers gain no share whatever of the inflated prices charged.
As the All-Party Group on Ticket Abuse—of which I am a member—noted, that market does not adhere to the same principles of transparency and consumer protection as other markets. Members of the group believe, as I do, that the large-scale, unauthorised resale of event tickets is against the interests of both consumers and content creators. We believe that the solution is greater transparency in the secondary market and a greater ability for event holders to control who can resell their tickets. The Metropolitan Police report drawn up by Operation Podium after the Olympic Games stressed the need for an open and transparent system for ticket reselling, with clear and appropriate regulations. Secondary websites should be required to publish full details of the ticket being offered, including the original face value, seat number and location. They should identify the seller, state whether or not the seller has the permission of the originator to resell the ticket, and declare where the tickets are being listed by the event organisers.
I welcome the revised guidance on consumer contracts referred to by my noble friend, but for all the reasons she adumbrated, they are not adequate. They should be reflected in statute.
There are two final further aspects. There is a need to examine further whether we have the balance correct between writers and performers and those with whom they contract. We looked at those issues during the passage of the Enterprise and Regulatory Reform Act. Is now not the time to revisit the question of whether the Unfair Contract Terms Act 1977 should continue to exclude contracts that relate to intellectual property?
Finally, why cannot the Bill include provisions to enable supplier-switching for mobile consumers? I look forward to my noble friend’s response.
Baroness Oppenheim-Barnes (Con)
My Lords, I have no doubt in saying that the Bill before your Lordships today is the most important piece of legislation, and certainly the most welcome, since the early 1970s, when the Office of Fair Trading was set up. I am really moved to see on the Front Bench to my right the person who was the original and first Secretary of State for Consumer Affairs in the House of Commons in our history. I am very grateful that he is attending the debate this afternoon.
The Government are to be very warmly congratulated not only on the production of the Bill but on their generosity in terms of the time that has been given to the proceedings in other places—I have read the reports of them all. In particular, the introduction of expert witnesses into the Committee proceedings in the other place and the presence of legislative screening and monitoring were of very great benefit and will continue to be so.
The Bill has been warmly welcomed by all consumer organisations, some of whose comments I will refer to in a few moments. Certainly none of the Bills that I was responsible for introducing in the late 1970s and early 1980s is alive today. They are as dead as dodos. That is because today a majority of consumers still do not know their rights or how to pursue those rights. That became very clear when the expert witnesses contributed to the Committee stage in the other place. From their very wide experience, they said that approximately 75% of all consumers still have no idea of their rights, and if we are not very careful indeed, that will be the case when this Bill is enacted.
I knew that that was a problem but I failed completely. I introduced consumer information packs into schools. I managed to get the money from our then Government to do so, although that was not easy. I taught some of the information in various schools and found that the children were very interested—they got the point immediately. They said things such as, “My mother has bought a knife that says it’s very sharp but it doesn’t cut anything”. I was able to ask them, “Do you think that it was fit for purpose?”. That was a perfect example, but it is not as easy as that. I am afraid that getting into people’s minds exactly what they may be able to do is much more complicated.
I know of all the consultations that have taken place about what remedies will be best. My view is that a clear presentation of the new rights in the Bill and of the responsibilities involved must be shown at the point of sale—not after the sale, not in later contracts and not in anything else. That must be the principal object throughout the Bill or the success that I believe it richly deserves will be greatly diluted. Just as important will be easy access to advice and support when things have gone wrong and people know they have gone wrong. My noble friend must have been as disturbed as I was to read that some local authorities are now cutting funding to trading standards in their areas. The workforce which is being asked to do more and more work will be reduced in number at a time when it will be expected to do more as a result of this Bill. I was shocked to find out that already in some areas trading standards offices can be approached only online. You can imagine where that would have left me. This cannot be allowed to happen and would clearly undermine the success of the Bill.
I hope I have established that a key factor is very thorough infrastructure in all areas from the beginning to ensure that the benefits that consumers deserve are delivered. We are very blessed in this country with a large number of very highly respected consumer organisations whose opinions have been expressed widely. In particular there is our excellent National Consumer Federation, which represents the views of all the other consumer bodies in the country and therefore is possibly one of the most important witnesses to the Bill. One aspect of its charter, which I particularly welcome, is crucial and overdue. It is the need to define much more clearly the role of the regulators. The regulators are powerful and are one of the most fundamental bodies representing the interests of consumers due to the nature of the markets we are talking about.
However, sometimes one gets the impression that when regulators have delivered their ruling involving perhaps a huge £1 million fine to the delinquent company they are interested in all the things they have found out—and want above all else to punish the firm so that it should be a lesson—but they do not really look at the consumer role in these situations. For example, with the billions in fines, surely there is a case to be made for consumers being given a rebate of their fees so that they are the recipients of the benefits that should be coming from the regulators. I think the National Consumer Federation has put this very clearly and has said among other things that it does not think that regulators always ask the right questions and that if they consulted consumers more about their experiences it might alter the balance and be more attractive. Certainly I hope it would result in some cases of refunds being made to the customers who have been so badly hurt.
What I welcome very much in the Bill is rather unusual. My friends will be surprised to hear me say that I welcome the new EU directive which seeks to cover, for the first time, consumers who make purchases online. I did not know that they were not covered. If I did not know that, I think I would be shocked and horrified if I tried to calculate how many other consumers in the country are unaware that they are not covered. It is very good that the directive will be implemented earlier, which I hope my noble friend will confirm, and that eventually it will be incorporated into the Bill.
The noble Lord, Lord Borrie, will be aware of another crucial EU directive. The last that he and I heard about it was in a debate on the financial industries. The Minister said that the Government were actively pursuing negotiations on the directive, which, at last, half-heartedly agrees that the cost of a loan can be displayed below the AER, which no one understands. I challenge anyone who understands it to stand up and explain what it is. I would be delighted to give them the time. It will allow the money cost to be displayed but only if it is in smaller print than the AER. I hope that the Government will hasten to conclude their negotiations on that matter, which will at least bring a small help to consumers.
Clearly, a good deal is to be done in Committee. I am not yet a “professional oldie” but I am well on the way. I therefore hope that I will be forgiven if I say that I do not propose to play an active part in those proceedings—that may be welcomed by many—as I realise how out of date I am. Towards the conclusion of the deliberations in the other place and after a request from a Member, the Minister, the excellent Jenny Willott, who did so well throughout, said:
“The Human Fertilisation and Embryology Authority set up an expert panel, which has conducted three reviews”.—[Official Report, Commons, 16/6/14; col. 922.]
The Member wanted reassurance that the HFEA would be covered. When we got to that, I knew the time had come for me to assume a back seat. Things have obviously gone too fast for me in this area. As I recall, there was a friendly reply. I warmly welcome the Bill and I congratulate the Government. I wish the Bill the speedy and successful outcome that it deserves.
Baroness Drake (Lab)
My Lords, the focus on updating and strengthening consumer law certainly is to be welcomed. I agree with the Government’s rationale for the Bill—that empowered consumers will make markets work more effectively and drive economic growth. However, there are provisions with regard to services which leave me with some concern. I hope that these matters will be considered further in Committee. As my noble friend Lady Hayter identified, under the Bill the statutory rights of the consumer that are implied in a contract between consumer and supplier are not fully aligned as between the sale of goods and the sale of services. Goods supplied must be “of a satisfactory quality”, whereas services must be provided,
“with reasonable care and skill”.
The liability standard for services is based on fault rather than on liability for satisfactory quality, which is an outcome measure, and I am concerned that it may not sufficiently support consumer protection and market effectiveness in the provision of services. It may prove more difficult for consumers to prove that a service has not been provided with reasonable care and skill. It focuses on the way in which a service is carried out rather than on the quality of the end result. It could fall short of reasonable consumer expectations on quality of outcome. A “reasonable care and skill” standard places greater emphasis on compliance with rules rather than on outcome for consumers.
In certain service sectors and markets, the asymmetry of knowledge and understanding between trader and consumer is extensive. In financial services, evidence frequently demonstrates that while provision of services may comply with the regulatory requirements, the product supplied often falls short of delivering a desirable quality for the consumer. A reliance on reasonable care and skill would not address the mis-selling or product design problems that have persisted in the sector. It is not the absence of skill that causes these problems. Something else goes wrong, such as a conflict of interest, complexity or lack of transparency, any one of which leads to consumer detriment.
A Bill that sets a statutory liability standard in the provision of goods on quality, with its focus on outcomes, and in the provision of services on reasonable care and skill, with its focus on compliance, risks a two-tier outcome to consumer protection. An argument frequently mobilised against an outcomes-based quality standard for services is the risk to traders of being held to unrealistic expectations by consumers, but this can be qualified by reference to reasonable expectations by a consumer. It should be remembered that the scale number of complaints from consumers comes from sectors such as energy, broadband, mobile phones and financial services.
I am also concerned by the possible continuing ambiguities in how the Bill addresses unfair contract terms. The court may assess a contract term for fairness unless it falls into a certain exempt category, such as terms that relate to the main subject matter of the contract or the adequacy of the price. The 2009 Supreme Court decision in the case of the OFT v Abbey National, which held that charges for unauthorised overdrafts were exempt from assessment for fairness because they were price terms, gave rise to uncertainties about whether ancillary charges could be assessed for fairness. This created a situation where, to use the Government’s own words:
“Some protection in law is necessary because consumers often cannot, or do not wish to, investigate the detail of every contract term before they sign-up to an agreement”.
This Bill introduces a requirement for “prominence”. For the core terms in a contract to be exempt from assessment for fairness by the courts, a term must be prominent and,
“brought to the consumer’s attention in such a way that an average consumer would be aware of the term”.
The emphasis on prominence is to be welcomed. However, any deficiencies in what the prominence requirement embraces could give rise to new uncertainties and disadvantage for both the consumer and the goods companies. I share the concern of the BIS Select Committee that bringing something to the consumer’s attention is not the same as a consumer appreciating its significance. The current wording of the Bill is unclear as to what would be sufficient to meet the prominence test for core contract terms. If it is too weak, the consumer’s level of understanding or behavioural bias may leave them not appreciating that the terms are unfair but the court could not intervene as to their fairness. Which? and the Law Commission have both stressed the importance of getting the definition of “prominence” right, and the OFT commented:
“Transparency alone cannot turn a substantially unfair term into a fair one”.
I also note that the Association of British Insurers and the Building Societies Association have stressed the importance of achieving clarity on what is needed to meet the prominence test, particularly given the increasing regulatory requirements on consumer disengagement and key information. Consumer products and markets are becoming more complex, which increases the risk that consumers do not understand the significance of certain information; asymmetries of knowledge and understanding between trader and consumer can create incentives for traders to frame information in certain ways. Consumers’ behavioural bias is very powerful. Consumers focus on the main element of a contract. If the most important goal is, for example, buying a house, they will focus less on the detail of the insurance policy for that house. The closer the consumer gets to signing, the less likely they are to walk away.
Prominence is very important and welcome, but its efficiency in providing a remedy both for unfairness and for a weak and ineffective market depends on how a consumer’s attention is drawn to a term and their understanding of its significance. What is required in the prominence test is something to be explored further in Committee.
Finally, echoing concerns articulated by my noble friend Lady Crawley, in order to deliver competitive markets there is a need to increase the range of measures available to enforcers under the civil law enforcement regime, as the Government have acknowledged. It is to be welcomed that the Government have increased and extended the range of measures available not only to the public enforcers but to private enforcement bodies. Good businesses need safeguards as to how these powers will be used and the Bill sets obligations and conditions that enforcement bodies have to meet to be allowed to use these civil law enforcement powers.
However, concerns have been expressed that the detail of the safeguards built into the Bill, particularly those in Schedule 7, may not provide the right incentives for enforcement bodies to utilise the extended civil law enforcement measures. Private enforcement bodies may be deterred by the costs regime, for example. Public enforcement bodies may consider that they face less organisational risk if they stick to the criminal law route, particularly if the trading standards bodies feel they have insufficient resources to take the potential risk around a cost regime. It would be unfortunate if some of the detailed provisions in the business safeguards as drafted actually became deterrents to enforcers utilising the otherwise positive changes in the civil law enforcement regime contained in the Bill. That is something to be explored in Committee.
Baroness Howe of Idlicote (CB)
My Lords, I am very pleased to be speaking in this important debate. Like other noble Lords, I firmly support the general principles underlying the Bill. It is crucial that consumers have greater choice, transparency and rights in the public services that they receive, and the Bill provides that.
The current approach, which involves setting out consumer rights across various pieces of legislation, between which there is on some occasions overlap and on other occasions tension, does not make for clarity. A call for evidence in the consumer law review in 2008 revealed strong support across the board for consolidating consumer legislation to make it clearer and more accessible. Respondents highlighted a number of benefits that a rewrite would bring, such as: removing discrepancies and inconsistencies; greater use of plain English; greater awareness of rights, remedies and obligations; greater flexibility; future-proofing and the aiding of business growth. The Bill provides these, too. As the Government have made plain, consumers who are well informed about their rights and what they are buying are more confident, and are more likely to spend money well, getting better deals or buying new goods and services.
There are of course aspects that consumer groups and voluntary organisations that have been in touch with us would like to improve even further. As the noble Baroness, Lady Bakewell, and my noble friend Lord Alton of Liverpool have rightly said, they would like the Government to use the Consumer Rights Bill better to protect children by banning payday lenders from advertising on children’s TV.
I am disappointed that the Government have not yet introduced a financial blocking measure in relation to transactions between people in the UK and online providers based outside the UK that do not possess a Gambling Commission licence. The Gambling (Licensing and Advertising) Act that we considered in the previous Session introduced important legal changes in relation to online gambling. The Government presented the Bill as a piece of legislation motivated very much by concerns for consumer protection. The Act requires that any online gambling provider wishing to access the UK market from another country must obtain a UK Gambling Commission licence, which of course sounds excellent, but there is a problem. The provision of this new licensing regime can enhance consumer protection only if it is harnessed to another provision that securely prevents online providers without a licence from accessing the UK market.
A second provision, however, was absent from the Bill. This problem was raised repeatedly in this House and in the other place. On Report, I moved an amendment to prevent unlicensed gambling providers selling to consumers in the UK. This has been termed “financial transaction blocking”. The amendment had the effect of requiring financial transaction providers not to service transactions between people in the UK and online gambling providers based outside the UK without a Gambling Commission licence.
The Government responded by announcing that the Gambling Commission had spoken to three financial transaction providers who had agreed to introduce financial transaction blocking on a voluntary basis. This was welcome news. At the meeting that I had with the Minister on that occasion, I was told that although the Government did not want a financial transaction blocking clause in the gambling Bill they would be open to making such a provision in a consumer protection Bill. Well, it so happens that we have a consumer protection Bill before us, but as I say no financial transaction blocking measure is proposed in it.
It is clear to me that while a voluntary agreement with three financial transaction providers is very welcome, what we need is a statutory approach covering all providers of financial transaction services. I am advised by online gambling providers that, if financial transaction blocking is not provided universally through law, financial transaction provision will simply migrate to providers that are beyond the voluntary agreement. I would like to ask the Minister whether he would update us on any developments in relation to the voluntary agreement. Are the Government willing to introduce an amendment to this Bill to make provision for financial transaction blocking in order to protect British consumers from unlicensed online gambling operators?
I turn to child protection from adult material and the system of age verification for 18 and R18 content online. In March this year, the online video watchdog ATVOD produced a report on children’s access to pornography. It reported that a staggering 200,000 under-16s viewed internet pornography in a single month in 2013. The study showed that one in five of all UK males aged 12 to 17 who went online looked at an adult website; the same age group was responsible for more than 110,000 visits to one pornographic website alone. The report went on to say that,
“it is very likely that the scale of use remains under-stated”,
because mobile phones and tablet computers were excluded from the research for technical reasons; only desktops and laptops were considered. ATVOD commented that the videos people looked at were similar to R18 videos that can be sold only to adults who visit sex shops.
ATVOD called on the Government to make it clear that adult websites must have a system of age verification in place to guarantee that only internet users aged 18 or over should be able to access material rated R18 by the British Board of Film Classification. But if we are serious about child protection, the system of age verification should block not just R18-rated video on-demand material but 18-rated video on demand material. I understand that the Government have suggested that they will aim to tighten up the Communications Act 2003 to make it plain that the providers of R18 video on-demand material must do so under a system of age verification. What steps have the Government taken so far, and does the Minister not agree that it would make no sense to require age verification in relation to only R18-rated material and not 18-rated material?
Finally, I turn to financial transaction blocking for adult online content. This will ensure that financial transaction providers do not process transactions between internet users in the UK and websites based outside the UK that provide 18 or R18 content without a system of age verification in place. This is a fundamental measure, which will cut the flow of money to such websites, ensuring that they act responsibly and introduce a system of age verification. Beyond filtering, what steps are the Government taking to protect British children from tube sites based outside the UK that show R18 material without any system of age verification? Does the Minister not agree that action must be taken and that financial transaction blocking presents the best way forward?
Like other noble Lords, I am looking forward to a lively discussion—and, I hope, some changes—during the next stages of this important Bill.
Baroness King of Bow (Lab)
My Lords, I welcome the Bill but I must repeat what several noble Lords have said, notably my noble friends Lady Hayter and Lord Wills, that it seems to represent something of a missed opportunity. It was described by the shadow Minister for Competition and Consumer Affairs, Stella Creasy, as,
“a once-in-a-Parliament opportunity”,—[Official Report, Commons, 28/1/14; col. 780.]
but it seems that we might be at risk of squandering it. As the noble Lord, Lord Alton, said to the Minister, we should not limit the ambitions of the Bill to consolidating previous law. It really should not be just a compendium of consumer law; it should be an extension of consumer power.
Many areas of the Bill are of great interest and I look forward to deliberations in Committee, particularly on digital goods and the huge changes under way as Britain becomes a digital nation. We are already the country that buys more goods over the internet than any other except the United States. That means there are massive societal changes across the board and those changes will also be felt very keenly in the area of consumer rights.
I want to focus on an area that was touched on by my noble friend Lady Hayter but which we have not dwelt on in this debate so far—the public sector. The Government have belatedly said that the public sector will be included in this Bill and so some of the rights in the Bill will extend to tuition fees, childcare vouchers and personal care budgets. So from now on in these areas, if a service is substandard, parents, patients or students can get a price reduction, a refund or “a repeat performance”. The mind boggles at the prospect of university lecturers providing repeat performances of substandard lectures on, say, Aristotle. Aristotle’s students would have heard him say:
“In a democracy the poor will have more power than the rich, because there are more of them, and the will of the majority is supreme”.
I guess Aristotle just could not imagine Wonga. And if he was teaching today, his students might ask for a refund, because in our democracy the poor clearly do not have more power than the rich. On the contrary, Aristotle would find it really surprising, as I do, that in our democracy the poor often pay more than the rich for the same product. This counterintuitive fact was demonstrated by Consumer Futures and the Joseph Rowntree Foundation, whose research shows that low-income families spend 10 pence in every pound on a poverty premium. Another way of looking at it is that they spend £19 a week extra on average because they pay a higher price for the same product.
Someone who has done more than anyone to expose this poverty premium is my honourable friend Stella Creasy, and I pay fulsome tribute to her groundbreaking work defending consumer rights. However, after following the progress of the Bill in great detail in the other place, she tells me that she still has not received any clear indication from the Government on how this Bill’s provisions will apply to public services. Of course we welcome the Bill’s aims but we need to understand how it will work. Can the Minister let us know which service contracts it will cover? For example, can the Minister let us know if it will cover the licence fee? I would also love to know whether it will cover prescription charges. Even just a hint from the Minister in these areas would be welcome.
I have a very useful briefing note from Unison, which states that it believes in principle that people should have the choice to exercise their consumer rights in public services, but that it must be done in the right way in a collaborative framework. I am sure we would all agree with that, not least because there are already many complaints mechanisms within public services and we will need to be careful that these are not inadvertently undermined or bypassed by the new set of rights. If you read the Unison brief, it becomes readily apparent that this is a vastly complex area. The key point that shines through is that we want to prevent a two-tier complaints system where richer, paying citizens can bring individual litigation that might secure them more favourable rights than others without those means. Can the Minister give us any indication of any impact assessment that might have been carried out in this area?
My noble friend Lady Crawley was right: the Bill has not yet got our pulses racing—we live in hope. However, a lot of the issues it deals with make our blood boil. We are talking about premium charges on telephone helplines that leave you stranded for what feels like hours at a time; nuisance phone calls, which in certain areas have blighted lives; people making profits out of the misery of payday loans; and ticket touts profiting at the expense of genuine fans. Basically, we are talking about being ripped off, either to a small degree or to a degree that ruins your life.
As my noble friend Lady Hayter said, this Bill should balance the current, unequal situation, which too often puts consumers in a weak position. Too often, consumers find themselves powerless on the end of sharp practices. For the last time today—I know that I have quoted her quite extensively—I shall quote the shadow Consumer Affairs Minister, who said:
“The fact that nothing in the Bill is of particular concern tells us everything we need to know about its narrow ambitions”.—[Official Report, Commons, 28/1/14; col. 780.]
I hope that the Minister and the Government will be more ambitious. As Aristotle also said, “Hope is a waking dream”. We all live in hope that the Government will take this once-in-a-Parliament opportunity to end the unfair nightmare that too many consumers face.
Lord Whitty (Lab)
My Lords, I apologise to the House for speaking in the gap. I thought that I had put my name down, but there was obviously a failure to complete a digital transaction.
I congratulate the Government on the main themes of the Bill, which brings together, clarifies, consolidates and makes more transparent a lot of those rights that exist for consumers. That was a very useful job; they took a long time to get there but they are to be congratulated on it.
My main point relates to what to my noble friend Lady King just said. A Consumer Rights Bill should also alter the balance of power between providers and consumers. In a number of respects, it does not do that. I shall be as quick as I can in listing them.
Other things that the Government are doing have undermined the ability to monitor consumer detriment. The information that the Minister gave me during the passage of the Public Bodies Bill and the Enterprise and Regulatory Reform Bill indicated a cut of 20% to Citizens Advice’s resources for dealing with precisely this area of general consumer law. We have heard that trading standards have been cut significantly across the country, in some areas by 40%. That greatly undermines their ability as enforcers.
We have also reduced the degree of national co-ordination. What used to be the OFT’s responsibility for major scams has now been devolved on to those already hard-pressed trading standards. There is no national oversight of it. Likewise, the role of consumer education and consumer information—which the noble Baroness, Lady Oppenheim-Barnes, rightly underlined—used to be with the OFT; it is now virtually nowhere except the little bits that Citizens Advice can do. The noble Baroness also referred to the inadequacies of the individual sector regulators in engaging with consumers about their rights.
My noble friend Lady King also referred to the need to set up or use the right machinery to ensure that we do not undermine what is already good about the relationships between users and providers within the public services.
The Bill provides for collective redress by consumers in one particular area: breaches of competition law. I have never understood why that cannot be extended, except by trading standards taking up the case, right across the board. A lot of these issues are collective. I have pressed successive Governments to write collective processes and collective redress into all Bills that deal with consumer matters, but we still do not have it here.
There is then the issue of alternative dispute resolution. I appreciate that the EU directive on this has yet to pass through its processes—that will be an important point—but we now have a situation where alternative dispute resolution is the main recourse. It is so difficult and expensive for many people to access the courts that the ombudsman system and parallel systems are the main way in which consumers can resolve unresolved disputes, yet we do not have an overall strategy on ADR. I should like to hear from the Minister not only how the Government propose to transpose the directive and in what timescale, but what the general direction of government thinking is. There should surely be a comprehensive system of ADR in all markets and for all consumers.
There is much that is positive in the Bill, but unless we have proper monitoring and enforcement, the fact that people may be better able to access and understand their rights will go for nothing.
Lord Howe of Aberavon (Con)
My Lords, I am glad to take this opportunity to say something that I said quite recently and identify an important aspect of consumer rights. The debate on this subject gives me great excuse to return to something I referred to the other day: namely, our total failure to change our system of measurements to a system which we had for a period, when we took account of the metric possibility. That is where we have to go.
There is no doubt now that we have a double shambles in the absence of any competent, comprehensive system of weights and measures. One can give endless examples of it. We have metres and kilometres for athletics but miles per gallon for cars. More important still, the metric system is used in schools—it is what pupils are taught—but, all too often, pounds and ounces are used in the market. Manifestly, that destroys consumer relations. It increases costs, confuses shoppers and managers, leads to serious misunderstandings, causes accidents, wastes our children’s education and, frankly, puts us all to shame.
Almost 800 years ago, Britain’s first charter of human rights, Magna Carta, proclaimed that there should be one measure of wine throughout the whole realm, one measure of corn and one unit of cloth. That was the principle that we should have established. In fact, we have been dithering for almost 150 years. As long ago as 1862, a Commons Select Committee unanimously recommended that we adopt the metric system. A century later, in 1965, the decision was finally taken to go metric over the next 10 years. The noble Baroness, Lady Oppenheim-Barnes, kindly referred to my presence on her right shoulder. We were among the first two consumer Ministers and therefore sing a common song, if she will allow me to say so.
For a very long time, we had shambles. We then did go metric for 10 years but unfortunately, the Metrication Board, when I was Chancellor of the Exchequer, greedy to find ways to save money, produced its final report saying that it had completed its task, so I readily abolished the Metrication Board, so I am not only clear in my sights of the problem and solution here but clear of my guilty responsibility for having allowed it to happen. Plainly, we cannot go on as we are with two confused, competing systems. It would be madness to go backwards, but also madness to disregard what the rest of the world has done.
The United States has talked about this a lot, but not taken any measure to move in the right direction. It sent one remarkable missile towards the moon. One mistake was made in the design of that missile. I think that the cost was something of the order of $500 million. That was because one crucial measurement in the wrong system was injected into the construction of the missile. We have not yet achieved that scale of disaster, but we have been foolish in having disregarded the fact that our Commonwealth has, almost completely, done the right thing. Australia, Kenya, New Zealand, South Africa, India and Jamaica have long completed the entire change, and even Ireland, our lovable neighbour, completed the process as quickly as the other countries.
This is not too much of an interjection or injection that would be unjustified in this debate; it relates wholly to consumer rights and to all other rights, rightnesses and common sense. When I mentioned this only a few days ago in this House, the noble Lord, Lord Desai, responded rather cautiously. He said:
“The first is to try out a somewhat novel idea, and maybe it will be one for the Government to take away and work on, and the second”—[Official Report, 10/6/14; col. 303.]—
Baroness Jolly
I remind the noble and learned Lord that, in speaking in the gap, he is restricted to four minutes.
Lord Howe of Aberavon
Four minutes? I have five seconds left. Disregard the Government’s rejection of my argument in the last debate; listen to it again, this time more effectively; and this time agree with me, not disagree with me.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank all speakers for contributing to the debate this afternoon. It has been a very well informed one and one that has helped to pick out and distil for us some of the main issues which we face as we go forward with the Consumer Rights Bill. It is very appropriate that we should have with us the first Consumer Affairs Minister, whose comments we listened to with interest, particularly as he was able to point us back to Magna Carta and the ideas in that about the need for fair trading, on fair coinage and with fair measurement, which are, of course, still very relevant and important issues for us today.
My noble friend Lady Hayter explained, when she introduced the Bill, our general approach to and support for the Bill, limited mainly to its consolidation measures, but nevertheless sincere in that. Although we will be scrutinising with some vigour some of the points in the Bill, we do not want to give the impression in any sense to the Government that we are not in support of what is being said here, because it is a good thing. On the other hand, my noble friend Lady King made a very important point, which is that there are a number of missed opportunities here, since there will probably not be another Bill of this nature for some time. It can be regarded as a once-in-a-Parliament opportunity missed.
My responsibilities are limited to supporting my noble friend Lady Hayter across the Bill, and in particular to picking up on the digital points. I shall not go into detail on them, but the general point we will be making is that the Government are wrong to have ignored the advice of the Select Committee on this matter, which was, in scrutinising the Bill in its earlier stages, that the right approach to be taken for the sales of digital content—some of the largest in the known world and increasing significantly, as many noble Lords picked up on—is that it should be the same as for physical goods. The Government have not chosen that route and we want to check very hard with them why that is the case and how we might improve the Bill in order to get closer to that. There should be parity between rights in the physical exchange of goods and the e-commerce worlds.
A number of noble Lords mentioned our general concern that the Bill is a missed opportunity in that it does not seek to create more trust in the virtual world, where people are increasingly acquiring goods and services, as the noble Lord, Lord Borwick, said, from unknown parts of the world. We do not quite know sometimes where they are coming from, but more importantly, and more relevant to the tenor of the Bill, we need to think harder about what information should be available to all consumers, particularly those in the digital world, at the point of sale. That seems to be a key point at which we must bring together the information required for people to understand what it is they are purchasing, to understand their rights at the time of purchase and what their redress options are. Unless we do that, we are missing a very important trick here.
As has been picked up, the Bill takes a bold step towards the provision of services in relation to consumer rights. It would be good if the Minister could be very clear on this when he comes to respond. This is a really interesting and important point. If, as seems to be the case, the Government are set on going to a stage whereby services provided for a value, including those from public authorities, are subject to the same concerns within the Bill, it is important that we get the tests under which these will be looked at right.
The noble Lord, Lord Stoneham, and my noble friend Lady Drake made good points about the need to think harder about the question of a satisfactory quality test. This was discussed in another place and we think that the test that should be applied is that the goods and services supplied should be “of satisfactory quality”. The Government however, have adopted a different standard, that they must be performed,
“with reasonable skill and care”.
As has already been said this evening, and I think that it is important, that seems to be more to do with how the service has been performed, rather than whether or not the outcomes have been satisfactory. This is something we must return to.
Several noble Lords touched on the question of consumer advice and the need for business education, in the sense of making sure that businesses understood their responsibilities and their need to ensure that they have fulfilled all requirements in relation to consumers who purchase their goods. There is a case for the Bill to be more specific about consumer and business education. We have touched on point-of-sale information, for instance. I hope that the Minister will spend some time explaining what the implementation group is supposed to be doing in this area. A lot of the responsibilities that might have been in the Bill appear to have been offered to that group. What format is it taking? Is it working to a particular timetable and what outcomes should we expect to receive from it? To have further consideration of the Bill in Committee, it would be helpful if we had better information and an understanding of that work.
My noble friend Lord Whitty alluded to the changes that have been made and are ongoing in the Government’s consumer landscape. I think reviews are still needed in some areas but most of this seems to have emerged from review and is now in the implementation phase. One important thing is that many responsibilities which used to lie with the Government are now to be undertaken by independent charities such as Citizens Advice and the Trading Standards Institute, a body whose legal form I am still not quite sure about. However, it seems to have increasing powers and money to do work across the trading standards area. Some of those statutory responsibilities that used to lie with the Government are now with those bodies, to educate consumers and businesses. We will need to spend some time on this as we go through Committee because it is important to understand not only what power but what responsibilities are there, and how they relate to the Government’s responsibilities. At the moment, this is not clear.
When my noble friend Lady Hayter was giving her speech, she ran through a list of specific omissions which she felt could have improved and enhanced the Bill. A number of noble Lords came back to some of those omissions. I will touch on one or two points which still need to be brought through on that. On the question of how consumer rights will be applied in the public sector, if it is true that these rights are now available to those public service users who have acquired services at a reasonable price, how are these rights to be applied? How, for instance, will individual consumers be able to take up responsibilities for challenging university tuition fees that may not represent value for money, for personal health budgets, for the BBC licence fee, for controlled parking zones, for bus fares or for the provision of water and sanitation services? Is this now the world we are in? Can the noble Viscount run through some of that to make sure that we understand, as my noble friend Lady King was saying, exactly what is available as the subject of consumer redress on these matters?
The individual issues may well have been alluded to in debate and discussion but, when the Minister responds, perhaps he could also explain whether he is hoping for a single response from the government departments which are now responsible for responding to consumer interests in these matters or whether there will be variable responses and, if so, how that will be exercised across the piece.
My noble friend Lady Crawley raised the need for data to be more available across the consumer landscape. The issues here are largely to do with the information collected by those who, under the Bill, are responsible for carrying out investigations, such as trading standards officers. It is also important to recognise that much information lies with ombudsmen and with the courts, which have been responsible for implementing many of the measures for which protection is provided. How are we doing on access to data? We went through quite a lot of this in the exchanges over Midata, which was meant to open up this area. We have not seen much of that recently and I think that the Minister was responsible for it at one point, so perhaps he could enlighten us further. Clearly, the anticipation was that this sense in which data would be available to people so that they could exercise their own choices through, say, price comparison sites would be important to better consumer information. I think we broadly support that but we have not had much detail on it. It would be useful to have more information, as well as on the wider question of whether the data held in areas such as trading standards can be circulated and made available to consumers more widely.
My noble friend Lord Wills picked up on the question of nuisance calls and marketing problems which are still very prevalent across the country. We understand that the Information Commissioner, having set up an online reporting tool in March 2012, has had more than 240,000 complaints about unsolicited calls and texts, and Ofcom has also carried out research into this. This is obviously a major problem. It is a pest to the modern world, where the phone calls you receive are never the ones you expect. They are always the ones which offer you things that you could not possibly want or wish for and you have no reason to understand why these people were ringing you in the first place. My response to that is to leave the phone open so that they at least rack up the cost of the call. However, that means that I cannot ring my friends at the same time, so it is a bit irritating. We need to get hold of this issue. It is a modern-day problem which affects vulnerable people in particular, who have difficulties in dealing with it. I hope we will deal with it in the Bill.
Several noble Lords, including the noble Lord, Lord Borwick, and the noble Baroness, Lady Bakewell, raised a question about how we will operate proper scrutiny measures if the trading standards officers are not able to go into premises without giving 48 hours’ notice. The position is changing and several noble Lords have asked the Minister to respond on this. It is obviously crucial to understanding how a redress will happen.
The noble Baroness, Lady Bakewell, also mentioned, as did a number of other noble Lords, letting fees and agencies. This is an area on which we touched in previous Bills but this Bill seems an appropriate area in which to get more action on that.
I was involved in the Olympics Bill and I am therefore aware of the measures that were taken to make sure that ticket touting was eliminated from the process. Indeed, I think it was the Minister who took the Bill through the House on his first run as a Minister here. He will therefore be aware, as I was, about the doubts and reservations that we shared around the House on how this would happen. We resolved it on the day by a slick and effective system brought in by the Olympic authorities, which meant that ticket touting, effectively, did not exist across the whole range of the Games in 2012.
However, on a number of occasions we have had opportunities to think again about this. The Government have not taken up those opportunities despite the fact that police operations in this area seem to suggest that there are criminal actions at work, as the noble Lord, Lord Clement-Jones, mentioned, and that significant amounts of money—either through direct corruption or money-laundering—are passing through a system which now needs the attention of the Government. I hope that we can spend some time on this matter in Committee and get a resolution to it because it has reached a point where it needs to be looked at.
Several noble Lords referred to the need for the Bill to think more closely about the rights of children in relation to consumer activity. Payday lending is particularly worth looking at. There is also the wider question raised by the noble Baroness, Lady Howe, about whether or not we should use the opportunity of the Bill to consider gambling and the opportunities that were not taken up in the gambling Bill to deal with IP blocking and financial transaction blocking. Age verification in relation to child protection could also fit within the Bill. Perhaps the Minister will respond on this point when he comes to it.
Those are a number of points which we will go into in some detail in Committee, where I hope we will have a chance to firmly test the Government’s interests in these matters. If we can make progress together around the House, so much the better for the Bill.
As my noble friend Lady Hayter said, we welcome the Bill in principle. We think it is a contribution towards updating UK consumer law, which it is necessary to do. However, there are real concerns about the underpinning of the Bill. The success of the Bill will be heavily dependent on how consumer rights are upheld through public enforcement at a time when, as we have heard, trading standards departments up and down the country are being significantly cut back and, at the same time, being asked to take on new responsibilities.
As we have heard, a new private redress system will be coming through in relation to mechanisms such as ADR. It is not clear why the Bill does not deal with that—except that it is probably not in the right timeframe—but it is obviously an issue. There is a new link to the Competition and Markets Authority, which has only just established itself. It is not clear yet—although it may be by the time we get to Committee—how and in what way it will work with consumer interests at its heart. We also have to think harder about how the courts will be able to support private and group complaints. We think that one of the important themes that we need to address in Committee is the powers of redress and enforcement that need to be improved if the Bill is to make the sort of difference that it ought to.
As we have heard, the framework of consumer rights is complicated enough, so much so that it is a pity that one of the speakers today felt that she was unable to play a part in the later stages of the Bill; we regret that. The landscape needs to be clearly identified. We know that there is a Competition and Markets Authority and that the transfer of powers and responsibility to Citizens Advice is happening. We know that work is going on somewhere in the Government between now and July 2015 when they are required to implement the ADR directive. As well as the Bill, we have an update coming through regarding the EU consumer rights directive, which has been mentioned, and a number of welcome pro-consumer measures that have come through from the Law Commission recommendations on misleading and aggressive practices, so it is a very complicated area to keep in frame. It might be necessary to spend a bit of time in Committee on being clear about which parts the Bill addresses and which parts it cannot and will not, as well as understanding where the issues that some of us have raised today are being picked up and taken forward.
At the heart of all this work, we have to think harder, as a number of noble Lords have done, about the consumers who are currently overpaying for many basic goods and services and being short-changed by service providers, resulting in excessive costs, because they are not aware of their rights or able to exercise them effectively. We believe that healthy, fair and competitive markets are vital to building an economy that works for both consumers and businesses. In a modern, progressive society, consumer powers are the missing piece of the jigsaw for preventing problems from besetting the public and for opening up creativity and innovation in goods and services. We believe that savvy consumers make better customers for businesses, and that better informed citizens get better outcomes in dealing with the public and private sectors, both for themselves and for each other.
We need a three-pronged approach, which should underlie the discussions. First, there has to be better access to information, to ensure that consumers are able to make decisions themselves that are as accurate and efficient as possible. Secondly, there has to be advice or advocacy—that is, proper support that helps to guide consumers and businesses through what can be a complex and changing landscape of rights and responsibilities must be available and easy to access. Thirdly, there must be effective and speedy redress, which needs to be clear and as close to the consumer/trader interaction as possible. The Bill will not take us all the way down those three prongs, but nevertheless we look forward to scrutinising it in Committee.
Viscount Younger of Leckie
My Lords, I believe that there is still time to get hearts racing. We have an excellent opportunity before us to ensure that we have the best possible legal framework to empower consumers, drive competition and encourage growth. I am therefore very grateful to noble Lords for their wide-ranging contributions to the debate today on this important Bill. I appreciate the general support for its core elements that have come from so many Peers: from my noble friends Lady Oppenheim-Barnes, Lord Clement- Jones, Lord Stoneham and Lord Borwick, from the noble Lords, Lord Wills and Lord Alton, and even from the noble Baroness, Lady Hayter, although that was before she read out a full list of issues that means that I have much ground to cover. I also pay tribute to my noble and learned friend Lord Howe and my noble friend Lady Oppenheim-Barnes for their long contribution to consumer issues over many years.
I shall pick up on the specific points that have been raised today. The noble Baroness, Lady Hayter, and my noble friend Lady Oppenheim-Barnes, as well as the noble Baroness, Lady Drake, and the noble Lord, Lord Stevenson, talked about the importance of consumers knowing what their new rights are. I agree with that. Empowering consumers is a key objective of the Bill, and we have set up a group of consumer and business organisations that is working with us to develop a strong implementation programme to ensure that consumers and businesses are well aware of consumer rights. The group is considering the role of consumer rights information at point of sale, a point that my noble friend Lord Stoneham raised. I undertake to write to noble Lords before Committee to provide an update.
My noble friends Lord Clement-Jones and Lady Heyhoe Flint and the noble Baroness, Lady Hayter, and the noble Lord, Lord Stevenson, raised the issue of regulating ticket sales. I sympathise with cases in which consumers are misled about the nature of what they are buying. We have seen many excellent examples of event organisers controlling how tickets move from the primary to the secondary market, some of which were discussed in the other place at length. That good practice needs to be extended where event organisers have concerns. I reassure noble Lords that legislation is in place to protect consumers. It is already an offence for a trader to mislead a consumer. It is also a requirement that the main characteristics of goods and services, as well as the name and address of the trader, must be given to a consumer before they buy. For ticketing, I stress that the main characteristics should include the seat number, if one exists.
The Government are committed to ensuring that the law is enforced. In 2013 alone, the Advertising Standards Authority looked at 130 websites to ensure that pricing was accurate and not misleading, and this year it is reviewing 650 more. In addition, further legislation will come into force in October to give consumers who are misled better access to compensation. Therefore we are tightening consumer protections. However, industry best practice also needs to be extended. My noble friend Lady Heyhoe Flint, at least, recognises that particular point.
I very much appreciate and agree with the sentiments expressed by the noble Baroness, Lady Hayter, and the noble Lords, Lord Wills and Lord Stevenson, on the important point about unsolicited nuisance calls—or as the noble Lord, Lord Wills, put it, marketing calls—which can cause inconvenience, stress and anxiety for many consumers, in particular the elderly and the housebound. I am sure that we are all only too aware of situations when we could do without having to answer such calls. A phone ringing when you are making supper is very distracting even when you know who is calling, but when the call is unwanted and of no interest then it can be an unacceptable intrusion. However, I firmly believe that banning unsolicited calls will not solve the problem.
That is not only my view but the view of the Culture, Media and Sport Select Committee. In its report of 5 December 2013, the committee said that a ban on cold calling should not be introduced because there were many legitimate reasons why such calls might be made, such as by the emergency services, medical practitioners, pharmacists, even elected politicians, charities, and companies with which the recipient has a genuine relationship. For example, in its report the committee says:
“The National Autistic Society told us that the telephone is ‘the single most successful way that—as a charity reliant on public donations—we raise money from individuals’. The Society’s evidence ends with an appeal: ‘Please do not curtail our use of this marketing channel—I would implore you to fully consider the implications for society before making any changes’”.
We also have the example of other jurisdictions as further evidence that a ban does not actually work in practice. For example, Germany has a system that prohibits direct marketing calls unless an individual positively opts in to receiving such calls. Yet according to a study undertaken by trueCall Ltd in 2011, the level of complaints about nuisance calls was found to be broadly similar to the UK.
Despite what the noble Baroness, Lady Hayter, says, we need to focus our efforts on catching those that break the law—I believe that she did say that—which is why the Government’s action plan, published in March, focuses very firmly on improving enforcement. For example, we will shortly be consulting on lowering the legal threshold to allow more enforcement action, including penalties, to be taken. I make the point that some action is taking place.
The noble Lord, Lord Wills, spoke about consultation —a point which was well made. As I said, we will shortly be consulting on lowering the legal threshold to allow more enforcement action, including penalties, to be taken. Only last week this House approved an order that enables Ofcom to disclose information to the Information Commissioner’s Office about organisations that break the rules.
Lord Wills
I am grateful to the Minister for giving way. On the specific point about consultation, can he undertake that the consultation will take no longer than three months and that his officials will process the results of it as quickly as possible? I am not quite sure what the timetable for the rest of the Bill is, but can he make sure that, if at all possible, the Government will bring forward amendments to deal with this, as a result of the consultation, while there is still this precious legislative opportunity to do so?
Viscount Younger of Leckie
I am very happy indeed to write to the noble Lord to provide some precise timetable information on that point. We would wish for this to be taken forward as soon as possible as well, but I will furnish him with some more information. There are regulations in place that offer protection for consumers. I would very much encourage consumers to report such calls to the relevant regulator so that action can be taken.
At this point I would like to address a point raised by the noble Baroness, Lady Hayter, on energy bills. We know that rising energy prices are hitting many households hard at a difficult time. We expect energy companies to justify commercial decisions on price changes openly and transparently. We have delivered a £50 reduction in energy bills by driving down the cost of the green levies on consumer bills. We are reforming the retail energy market by making it simpler for consumers to understand. We are ensuring that everyone is on the cheapest tariff their supplier offers that meets their preference. Our policies are keeping bills lower—by an average of £65 for a typical household—than if we did nothing.
The noble Baroness, together with the noble Lord, Lord Stevenson, and the noble Baroness, Lady Drake, asked why the Bill does not contain an outcome-focused test for services. We are strengthening consumer rights for consumers of services where a trader promises something about the service. If the consumer relies on that promise they can hold that trader to account; if not, they are entitled to statutory remedies, which are also introduced for the first time in the Bill.
My noble friend Lord Stoneham and the noble Lords, Lord Whitty and Lord Alton, raised the issue of the alternative dispute resolution, as did the noble Baroness, Lady Hayter. As the noble Baroness knows, the consultation seeking evidence about whether any kind of simplification of the ADR landscape is necessary or viable in the future recently closed. Although it focused on immediate action to implement the ADR directive, we understand that stakeholders from many quarters have views on how the current ADR landscape might be improved. Some have suggested creating a consumer ombudsman. We have therefore used the consultation as a call for evidence about whether any kind of simplification of the ADR landscape is necessary or viable in the future.
The noble Baroness, Lady Hayter, asked about giving consumer rights to small businesses, and particularly to the smallest micro-businesses. The Government are committed to helping SMEs, of which there are 4.9 million in this country, to grow. However, we are not convinced that it is in the best interests of small or micro-businesses to be defined as consumers in the Bill. To take a step back, the Bill is about consumers. As soon as we start including rights for other parties in the Bill, we believe that that core purpose will be diluted and we will risk losing valuable clarity.
Baroness Hayter of Kentish Town
The Commons made a welcome amendment to the Bill to make letting agents put up their table of fees. Those fees will apply also to landlords, and landlords are a business. Does the Minister mean that landlords do not also have the right to see those fees displayed simply because they are a business?
Viscount Younger of Leckie
We still want to make a distinction between consumers and businesses. We think that if we were to cherry pick and bring certain groups in to allow businesses to be included as consumers, that would cause confusion. However, I am very happy to talk to the noble Baroness again about letting agents and the specific point, as I know that she is much exercised by the issue.
The noble Baronesses, Lady Hayter and Lady Howe, my noble friend Lady Bakewell and the noble Lord, Lord Alton, raised the important issue of the effect that advertising has on children as regards payday loans. First, let me be very clear that consumers will be far better protected under the new FCA regime. Logbook loan providers and other high-risk lenders are required to meet the standards that the FCA expects of them, including making affordability checks. The FCA rules are binding on lenders and the FCA has a wide enforcement tool-kit to take action.
My noble friend Lady Bakewell and the noble Lord, Lord Alton, raised the issue of advertisements. The FCA will not hesitate to ban irresponsible adverts, and it has a strong record of doing so. The Broadcast Committee of Advertising Practice is reviewing the extent to which payday loan adverts feature on children’s TV. Separately, the Financial Conduct Authority has set out new rules for consumer credit adverts and it has powers to ban misleading adverts which breach its rules.
The noble Lord, Lord Wills, asked about payday loan firms and cold calling. The FCA is committed to ensuring that cold calling by phone or e-mail makes clear the identity of the firm and the purpose of the communication so that the consumer can decide whether to proceed.
I thank my noble friend Lord Borwick, who raised an important point about consumers being made aware of the country in which a seller is based. Under the consumer contracts regulations 2013, traders in distance contracts, such as online sales, must make available information on their geographical address before a consumer buys from them. I have been in correspondence with my noble friend concerning his recent purchases with Amazon. I cannot comment on the experience of the particular transaction that has been raised but I can confirm that obligation, which I hope goes some way to answering his questions.
My noble friend Lord Clement-Jones asked about exempting intellectual property contracts from the Unfair Contract Terms Act 1977. I sympathise with the situation in which some creators find themselves, but we have not yet seen evidence that amending that Act would address the issue. First, we would need substantial quantitative evidence of a problem and, secondly, we would need to be sure that any such amendment would solve that problem without unintended negative consequences.
My noble friend Lord Clement-Jones also asked about brand owners protecting themselves against misleading look-alike packaging—an issue that I know we have spoken about in the past—on the grounds of intellectual property infringement and the common law tort of passing off. As he will be aware, my department, BIS, is reviewing the case for granting brand owners a civil right of action against copycat packaging and it is aiming to report in the autumn.
There has been some discussion today about the vital role that trading standards officers have in protecting the public. Issues were raised in this respect by the noble Lord, Lord Whitty, and the noble Baroness, Lady King. The Government strongly support the work that trading standards does to protect consumers from rogue traders and scammers. We have better equipped trading standards to take greater responsibility for consumer law enforcement by transferring central government funding to the National Trading Standards Board and Trading Standards in Scotland. Last year, we invested £14.5 million in these bodies to fund co-ordinated enforcement action across the UK.
We also want to develop a better understanding of the impact that trading standards services have on our economy at both the local and national level. Therefore, in partnership with the Trading Standards Institute, we have commissioned a group of academics at the Institute of Local Government Studies in Birmingham to undertake a piece of research on which to build an evidence base on the economic, social and environmental impact of trading standards work, the impact that budget cuts have had on enforcement activity, and the efficiency of trading standards services across England, Scotland and Wales. The project will conclude in the autumn and the outputs will inform future policy considerations.
The noble Baroness, Lady Crawley, raised the question of trading standards publishing data. Trading standards will be able to name and shame a business, giving consumers more information to make better purchasing decisions. That is a key element of the new enhanced measures.
The requirement in the Bill for trading standards to provide 48 hours’ notice of a routine inspection was raised by the noble Baronesses, Lady Hayter and Lady Crawley, among others. I emphasise that this is about routine inspections; it is not about situations where there is any concern or suspicion that a trader is breaking the law. Other powers in the Bill can be used to check letting agents’ compliance with the duty to display fees. I also want to reassure the House that the powers and safeguards are designed to strike a balance—and it is a balance—between protecting civil liberties, reducing burdens on business and enabling enforcers to tackle rogue traders. Businesses, and particularly small businesses, welcome the requirement for notice. The Federation of Small Businesses has said that,
“booking inspections in advance … will allow the business to make the necessary arrangements … so that everyone gets the most possible from the inspection”.
However, I underline again that we have no intention of weakening the powers of consumer law enforcers to investigate rogue activities. That is why the Bill contains a number of clear exemptions from giving notice, such as where doing so would defeat the purpose of the visit—for example, when investigating the sale of illegal tobacco or the production or transit of fake food. Consumer law enforcers will still have more powers to enter premises than the police.
I turn now to an issue I know exercises a number of noble Lords, which is the right to receive bills in paper format. It has been raised today by the noble Baroness, Lady Hayter, and I know it certainly exercises my noble friend Lady Oppenheim-Barnes. I have heard the views expressed in this debate, and empowering consumers is a key objective of the Bill. My department is in the process of commissioning research regarding the issues that help and hinder the empowerment of consumers. We aim to use this research to identify the key target groups of consumers in need of greater assistance and the best ways to reach out to them. I can reassure the House that we will consider the comments made today alongside the conclusions from the research and act accordingly if this suggests the need for further thinking. Let me make one thing clear. There is no penalty for choosing paper—instead, people simply do not receive a discount. Choosing paper bills retains an additional service for those who wish not to take a paperless bill discount.
Baroness Oppenheim-Barnes
I apologise but I must interrupt my noble friend. That is not true. Clearly, at the end of a BT bill there is an item called, I think, charges for processing this bill. That means sending a piece of paper.
Viscount Younger of Leckie
I know that this is probably going to lead to some more discussions offline about this issue. My answer is that my noble friend then has the right to change supplier if she is not happy with that particular supplier.
Viscount Younger of Leckie
It sounds to me as if she has done so. We must also remember that many hard-pressed households welcome the opportunity to save money that paperless bills offer them—which is the other side of the coin—and the Government want this option to be available to consumers.
My noble friend Lord Clement-Jones, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Howe, spoke eloquently about the important new statutory rights for consumers buying digital content. As has been shown, there are competing arguments and a balance to be struck. The digital content provisions are reasonable and principles based. They require that traders put right faults free of charge or, failing that, give some money back. That is what reputable digital content businesses already do. Not all bugs would automatically render digital content faulty, as the magazine Which? recognised:
“consumers are very accepting of updates and patches”,
and,
“would be able to tell the difference between a faulty piece of software and one that is just evolving”.
The noble Baronesses, Lady Hayter and Lady King, and the noble Lord, Lord Stevenson, asked about the impact of the services provisions, especially on public services. This point was quite strongly made. As Peers will know, this issue was discussed at length in the other place. My colleague Jenny Willott has written to set out the position, which is that where a public service is provided by a trader to a consumer under a contract, the services chapter of this Bill applies. That is why our impact assessment of this part of the Bill was comprehensive and covered all sectors. That assessment shows significant benefits—of £33 million per annum—to consumers.
The noble Lord, Lord Alton, raised an interesting point—and at this point I hope my noble friend Lady Oppenheim-Barnes can be persuaded to listen carefully—about the safety of embryos, if I can paraphrase the points the noble Lord raised. We are considering the report mentioned and we will announce our plans as soon as possible. My honourable friend in the other place, Jenny Willott, has already assured the other place and I can assure noble Lords that any proposed regulations on this matter will be subject to debates in both Houses under the affirmative procedure.
The noble Baroness, Lady Howe, asked about an update on the voluntary agreement on preventing unlicensed gambling providers. I will ask my noble friend the Minister for Culture, Media and Sport to reply directly to the noble Baroness.
The noble Baroness, Lady Drake, said that prominence is not sufficient to ensure that consumers understand the terms. We agree that terms should be written in language that consumers understand and that is why all terms must be written in plain and intelligible language. We will be giving guidance on what prominence requires and how it is defined. Business prefers this guidance to detail on the face of the Bill.
The noble Lord, Lord Whitty, who spoke in the gap, raised the issue whether consumers have access to collective redress for breaches of consumer law. Our proposals on enhanced consumer measures offer a more flexible, balanced and proportionate approach with a wider range of remedies.
I am fast running out of time. I will write to noble Lords whose questions I have not managed to answer. I conclude by underlining once again how vital this Bill is for empowering consumers, promoting competition and encouraging growth, which so many Peers have emphasised today.