Consumer Rights Bill

Debate between Baroness Neville-Rolfe and Baroness King of Bow

Monday 3rd November 2014 Grand Committee

[Baroness King of Bow (Lab)]

My Lords, Amendment 63C calls on the Government to review how the new powers for collective legal redress are functioning and whether these powers should be expanded to other consumer protection law. It asks the Secretary of State to set out how many private actions have taken place, what redress consumers received and the scope and potential effect of expanding private action powers to cover other areas of consumer protection law.

We welcome the Government’s move to provide new powers for collective legal redress. We do not agree with the scaremongering we have heard on this issue but we are concerned that we get things right. I should stress that the amendment does not call for collective legal redress to be expanded beyond competition law; it simply asks for this issue to be reviewed in the light of the evidence and the efficacy or otherwise of the new powers. This modest request will help identify whether the legislation works as intended. The intention is to make it easier for groups of consumers who have been subject to unfair and anti-competitive practices to put forward a collective claim. The review would also consider the level of redress achieved through joint action, which is often too low to motivate consumers to challenge unfair practices.

Amendment 74A is a probing amendment which seeks to improve scrutiny. At the moment we are being asked to pass into law CMA-approved voluntary redress schemes. These are no doubt a good idea in theory but, in practice, we have no detail in the Bill about how these schemes will work. However, we know that BIS has written a scoping paper which states that a specially constituted board will work out how the CMA alternative dispute resolution procedure will work and how complaints will be handled.

The Minister will no doubt be aware of the concerns raised by Which?, which is looking for answers, as are we all, to some key questions. For example: how will the board be resourced; who will pay for the board; and how will the board assess evidence? Is the board a gatekeeper or an adviser? What will happen if board members disagree? Will the board’s recommendations be determined by a majority vote or unanimity? Will the infringer get to vote on its own proposals? The answers to these questions will determine whether CMA-approved voluntary redress schemes are a success or a failure.

It is entirely reasonable for Parliament to review the SI that will answer these questions and many others. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)]

My Lords, with this amendment we turn our attention to Schedule 8 to the Bill and focus on competition law. Schedule 8 provides easier access to redress to businesses and to consumers for breaches of competition law. We believe that effective competition is good for the consumer and this part of the Bill reforms the regime for private actions to give businesses and consumers redress where they have been harmed by anti-competitive practices. I am sure that we will discuss this further when we reach the amendments tabled by the noble Lord, Lord Hodgson.

This amendment would require the Government to report to Parliament on the number of private action cases taken, the level of redress paid to consumers and the impact of expanding these provisions to all areas of consumer protection law after a year. The Competition Appeal Tribunal already publishes as a public record an annual review containing details of cases taken forward in the previous 12 months and a summary of the judgments made with the case names. These judgments contain details of any redress awarded. The last annual report, for the year ending 31 March 2014, was published in June 2014. The report revealed that there were no collective actions on behalf of consumers, and this is one of the reasons we are legislating.

The last part of the amendment—which the noble Baroness, Lady King, spoke about in some detail—seeks, by gathering information, to encourage redress for consumers for breaches of consumer law in the future. However, the substantive underlying issue here is whether to provide consumers with the right to come together and fund their own collective actions for breaches of consumer law as opposed to competition law. Ed Mayo’s report for the Opposition highlights the obvious downsides that can be experienced with this proposal: consumers sometimes receive little or no benefit; consumers are sometimes then bound to a low settlement; and legal fees mean that lawyers can benefit as much as consumers. This would be a significant expansion in consumer law, might not benefit consumers and could be a significant burden on business. I am sure that they would think so, and, as Ed Mayo has said, the lawyers could be the main beneficiaries.

As a result, the Government do not consider collective actions for breaches of consumer law to be appropriate and have instead adopted enhanced consumer measures. Perhaps I may pick up a point from the preceding debate. The enhanced consumer measures come into operation with the Bill on 1 October 2015.

Under the Bill’s enhanced consumer measures, not only will more consumers get more redress, but traders who have broken the law could also or instead have to put in place other innovative measures. They might have to advertise their breach and what they have done to put it right on their website or in the press, or they might have to change their internal processes to ensure that there is no repeat of the breach. These can be good remedies and a more appropriate approach for something like petrol stations where pumps are providing inaccurate readings. Indeed, once the measures have bedded in, we expect additional redress of £12 million per year for consumers.

On Amendment 74A, paragraph 12 of Schedule 8 introduces a new power for the Competition and Markets Authority to be able to approve a voluntary redress scheme offered by business, and proposes the affirmative rather than the negative resolution procedure for the reasons that the noble Baroness explained. Having looked at this we are happy that the key features of this power, including CMA enforcement and costs, are set out in the Bill. The remaining regulations that will govern the CMA power concern procedural and technical matters.

I should comment on the point that the noble Baroness raised about how the board will be set up, how cases will be assessed and so on. There are a range of views, as she hints, on how the CMA power will work. As Which? is aware, the Government are engaging with a range of stakeholders to answer these questions. As I have already said, the key parts of the power are in the Bill, including the CMA considering the level of redress on offer.

The approach taken here is similar to that which we have taken in other parts of Schedule 8, which is to create a framework that allows the relevant bodies to make assessments on a case-by-case basis. In the Government’s response to the private actions consultation, we highlighted what components might be included in the regulations. They included: the role of an independent panel, which can consider in detail the contents of the scheme and then make a recommendation to the CMA; how consumers would be notified of the existence of the scheme; and a complaints scheme to resolve disputes with possible claimants. The regulations will be procedural and technical in nature and the Government consider that the negative procedure is suitable. We will of course consult.

The noble Baroness, Lady King, also asked about the number of private actions. Between 2005 and 2008, there were 41 competition cases. Between 2000 and 2005, there were only 43 out-of-court settlements. I hope that that answer gives the noble Baroness the figures that she needs, but I am sure that she will tell me if she wants information on some other aspect. In the circumstances, I ask her to withdraw the amendment.

[Baroness King of Bow]

I thank the Minister for her reply. Obviously, we all agree that effective competition is good for the consumer. We would like the Government to report on this to Parliament, because, if the legislation works, there will be collective redress whereas, as the Minister pointed out, that has been lacking until now. Given that we hope that the legislation will work, we believe that the details of how it works are worthy of Parliament’s attention.

As I mentioned, Amendment 74A is a probing amendment. It is simply about Parliament being able to scrutinise the proposals in any detail. Will the Minister let us know when the key questions that she outlined regarding the board and the mechanism for the scheme will be answered? Perhaps she could write to us on that unless she has the timetable to hand. What will happen if the level of redress is too low? This seems to be an issue that could effectively undermine all the legislation. I would appreciate a response on those two aspects. In the mean time—

[Baroness Neville-Rolfe]

Before the noble Baroness withdraws the amendment, I think that my noble friend Lady Jolly has already offered to write and will make sure that the letter also covers the question of timing, if that would be helpful.

[Baroness King of Bow]

I thank the Minister for those remarks. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness King of Bow]

My Lords, I support this group of amendments. I am pleased to follow the noble Lord, Lord Phillips of Sudbury, who I once spent a night with in a metal freight container in the jungle in the Congo. That, however, is most definitely another story.

I return to consumer rights in the UK. As we have seen, Amendment 70 allows money not claimed in opt-out collective proceedings to be paid to charity, and permits any money remaining after that to go to pro bono lawyers. That is also the substance of several of the amendments tabled by the noble Lords, Lord Pannick and Lord Phillips, which, as we have heard, would allow lawyers who have worked for free in successful cases on behalf of consumers to get paid.

I realise that politicians like to put lawyers into that select group of social pariahs that includes politicians, second-hand car dealers, bankers and estate agents. However, when lawyers are ready to shoulder all the risk on behalf of consumers facing anti-competitive practices and they succeed and increase consumer protection for all of us, the least they should expect is payment—where that is supported by some of the damages raised.

Therefore, we support these amendments, which will, we hope, increase the resources available for legal charities distributed by the Access to Justice Foundation. This in turn will enhance access to justice across the piece, and we support the principle of tribunals being able to direct payments towards lawyers providing pro bono services on behalf of consumers.

[Baroness Neville-Rolfe]

My Lords, I am grateful to my noble friend Lord Phillips for his support for this part of the Bill and for taking us so carefully through his various amendments. This is an unusual grouping in that it includes government amendments which meet some of the views expressed by noble Lords during the passage of the Bill.

In addressing my noble friend’s amendments, I emphasise that the Government recognise the important work undertaken by the Access to Justice Foundation. We are not against the Access to Justice Foundation receiving unclaimed damages for its good work. Indeed, pro bono costs are already awarded to the foundation in the Court of Appeal and the Supreme Court. Accordingly, the Bill makes provision for the CAT to award unclaimed damages to the Access to Justice Foundation.

However, we are trying to ensure that unclaimed funds are allocated in the most appropriate way and that certain contingencies are provided for. The Government want consumers to obtain redress for breaches of competition law, which, as my noble friend explained, is all that is at issue here. These cases may be costly. Accordingly, the Government consider that representative bodies which successfully represent consumers should have the opportunity of having some or all of their costs paid out of unclaimed damages so as to ensure that they bring actions on behalf of consumers. Therefore, the Bill grants the CAT discretion to award some or all of the unclaimed damages to the representative so that it may recoup some of its costs—on a case-by-case basis, obviously—and, at the same time, the CAT may also award unclaimed damages to the Access to Justice Foundation.

Similarly, with regard to Amendments 76 and 79, the Government wish to encourage consumers to seek redress for breaches of competition law. Consumers will require someone to represent them. Accordingly, the Government wish to encourage representatives—including, of course, those who act on a pro bono basis—and therefore the Bill provides that the CAT may sometimes award costs to a representative who acted on such a basis. The Government believe that if the opportunity for unclaimed damages to go to representatives who act on a pro bono basis is restricted, there could be negative consequences for the consumer. However, given this debate, I will look in Hansard at the detail that has been fully set out, and reflect on our discussions. I hope that my noble friend and the noble Baroness opposite will do the same.

I am moving five government amendments. Briefly, Amendment 71 commits that the body to receive unclaimed damages is a charity. We have accepted the Delegated Powers and Regulatory Reform Committee’s recommendation and so the exercising power will be amended to be affirmative. Our third amendment allows underlying claimants to incur costs if they make an application to have the representative removed and lose the application. This has two benefits: first, it aligns the costs with the wider “loser pays” principle that exists in domestic law; and, secondly, it should deter vexatious applications. The final amendment is minor and technical and follows an earlier government amendment.

I ask the noble Lord to withdraw Amendments 70, 76 and 79 and beg to move government Amendments 71, 73, 75, 77 and 78.

Consumer Rights Bill

Debate between Baroness Neville-Rolfe and Baroness King of Bow

Monday 27th October 2014 Grand Committee

[Baroness Neville-Rolfe]

My Lords, I thank the noble Lord for raising that point. I know what is happening in certain areas but not across the board. If I may, I will take the noble Lord’s question away and come back to him. It is also important to publicise better the sort of things that are being done in this area. I have tried to do that in a small way today, as has the noble Baroness, Lady King. For the present, I ask her to withdraw her amendment.

[Baroness King of Bow]

My Lords, from what the Minister said and in conjunction with the points raised by my noble friend Lord Harris, I think the Government are saying, essentially, that it would be too much work for government departments to approve websites offering additional services. The point I wanted to make—as my noble friend did—is that that does not really make sense, for a couple of reasons. First, the extra work is minimal. Indeed, as my noble friend pointed out, it appears that it is already being done to some extent at the moment. Secondly, that extra work—whatever it may be—is insignificant when compared to the detriment being done to the consumer. That is the point we must consider here.

We also have to take into account all the time currently spent by government departments or other offices answering consumer complaints in this area. For example, the DVLA has received 170 complaints about scam websites since 1 March. The Home Office, in nine months in 2013, received 590 written customer complaints about scam passport sites. As for TfL, it had an extraordinary 1,000 complaints a day. Does not that shed some light on one of the reasons why TfL has been so proactive in this area? Would it not be helpful if Government encouraged other providers to be just as helpful to the consumer?

The other problem with the Government’s approach of leaving it really up to Google to monitor websites is that although Google has agreed to take down some of the adverts and monitor future ones, this requires much more continuous monitoring work than cutting off copycat websites at source. Critically, this approach also inevitably leaves some consumers unprotected for some stretches of time, and therefore undermines consumer rights. As my noble friend Lord Harris made clear, these websites are big business. They make their living by inflicting detriment on the consumer in an entirely parasitic manner. If we are all to play our part, it must include legitimate providers taking the time to say whether a site provides an additional service. That is the purpose of these amendments.

At the start of her speech the noble Baroness said that these sites need to be stopped. I welcome that forthright attitude, but I am sure she will understand my disappointment that it simply is not being followed up with what would be very simple measures.

[Baroness Neville-Rolfe]

Perhaps I could make one point about the idea of new legislation, which I think is what the noble Baroness is calling for. We are very concerned not to stop legitimate organisations that do provide added-value services related to those provided by government from advertising via search engines. That is an important objective; there are always two sides to these questions. At the same time, as I said earlier so robustly, we want to stop those who make false or misleading claims, who do not provide any added value to users, and who thus understandably frustrate and upset those who, as in the example given by the noble Baroness, choose the wrong sort of website.

The difficulty is that people’s behaviour and expectations with regard to these services are constantly evolving and difficult to predict. That is why we are pursuing the option of supporting search engines in assessing whether a third party that is offering services related to a government website is actually a genuine one which complies with the search engine’s own policies. I think that it would be difficult for us to do this on our own. We have set up the website page www.gov.uk/misleading websites, which I mentioned earlier, and we will monitor the effectiveness of this approach over the coming months. We need to work in this evolving and important area, and I can assure the noble Baroness that we are determined to make a difference.

[Baroness King of Bow]

The problem I have with the Minister’s response is twofold. First, the legitimate business issues she is talking about would not suffer any problems as a result of the amendments we have put down because they would be providing additional services. Secondly, when the Minister tells us, as she just has in her intervention, that Google is looking at which copycat websites are appropriate and which are not—obviously if they are appropriate, they are not copycat websites, but I am sure the Minister gets my meaning—if we take the example of TfL and the congestion charge, surely TfL is better placed to determine whether a website is providing an additional service or not. Why should the people at Google, clever as they may be, essentially have to do the job that a provider is far better placed to do? I genuinely do not understand the Government’s persistent objections on these points and I would be very grateful if the Minister could pay serious attention to reviewing them. However, until that point, I will withdraw the amendment.

[Baroness Neville-Rolfe]

Before we finish on this important matter, which I think we both care about a lot, perhaps I may say a few more words. Before we decry the work being done with Google—I think the noble Baroness is asking whether it is sufficient—in the period between November 2013 and June 2014, click-through rates to the official sites improved as a result of work with Google. From November 2013 it was 43% on passports and by June 2014 it was 72%. Obviously there is still a problem, but we are seeing an improvement. Driving licences: 41% in November 2013 and 69% in June 2014, and of course we are now in October. I believe that this is an area where we have to work with the industry. However, I will respond to the point made by the noble Lord, Lord Harris, about how we can link in and identify the third parties in every relevant area. As I say, I will come back to him and to the Committee on that issue.

Consumer Rights Bill

Debate between Baroness Neville-Rolfe and Baroness King of Bow

Wednesday 22nd October 2014 Grand Committee

[Baroness Neville-Rolfe]

My Lords, I thank the noble Baroness, Lady King of Bow, and the noble Earl, Lord Lytton. I appreciate the fact that he intervened with such practical comments, with more stories about bathrooms and a plea for caution and flexibility. My noble friend Lord Hodgson also warned us that some of the wording in the amendment may be a bit too wide—a sentiment with which I concur.

First, I turn to Amendment 48B. We discussed this issue in some detail when we talked about Amendment 8 relating to goods, and I apologise if I repeat the points made then. However, I welcome this opportunity to reassure the Committee in relation to services contracts and to respond to the points made by the noble Earl.

Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, traders are required to make the consumer fully aware of the total costs of a service. For the noble Earl’s information, they implement the consumer rights directive, which I think is the title that he was seeking when he raised this point. These regulations came into force quite recently—on 13 June 2014—and they require traders to give, or make available to, the consumer information about costs before the consumer enters into a contract. In addition, the information must be clear and comprehensible. I therefore believe that these regulations already cover a large part of the amendment. Traders are required to provide information, and they are required to make that available to the consumer before the contract is agreed—that is, prior to the sale.

The noble Earl was also concerned that prices can be unclear—for example, if they are expressed as “from £2” rather than being £2. He suggested that some flexibility was needed in services. I am pleased to reassure him that the regulations I have referred to—this good directive from the EU—have taken us a step forward. If the total price for the service cannot reasonably be calculated in advance, the trader must notify the consumer of the manner in which the price will be calculated.

The amendment also talks about the consumer giving “explicit consent to purchase” at the price given. The Bill deals with consumer contracts but it does not set out the form that a contract should take. Contracts can be implicit or explicit. In many cases, a consumer will give their express consent, such as in signing a contract for a contactor to paint their living room—on this occasion it is a living room, not a bathroom. However, in other cases the contract is implied. For example, a consumer walks into a hairdresser—somewhere I go a lot, obviously—asks the price and, on hearing it, sits down in the hairdresser’s chair.

It is not our intention in the Bill to define how a contract should be made. I can, however, reassure noble Lords that the 2013 regulations require the consumer’s express consent for any changes. For example, if the price for painting the living room were to change, the consumer would need to give their express consent.

I can also reassure noble Lords that the 2013 regulations protect consumers from hidden charges. Under those regulations, the consumer must give their active or express consent for any optional additional payments. For example, pre-ticked boxes for payments which the consumer must untick are no longer permitted for services within scope of those regulations. I think that that helps to deal with the concert example—and we probably have cross-party agreement on Paul Simon and his beautiful music. I also take the opportunity to point out the excellent work that Which? has done to improve transparency of ticket prices. I hope that the noble Baroness’s future experiences will be a bit better.

In discussing Amendment 50G, I will, with apologies, refer again to the famous Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013—that is too long a title. But I have some good news. For services within scope, these regulations prohibit the trader from requiring the consumer to pay above the basic rate when consumers contact them by telephone about a problem with a services contract. This requirement represents an important and significant move towards fair treatment of consumers who want to contact a trader. It was agreed by all member states at EU level as a fair right for consumers, while not placing excessive burdens on business. In the same way that a consumer may need to pay the travel fare or parking to visit a shop to sort out a problem, it seems reasonable to expect that they may have to pay the basic phone rate to contact the trader. What the trader should not do is to derive benefit, or use numbers which actively dissuade contact.

Amendment 50G would give rise to unintended consequences. To require that businesses who offer a phone number must offer a freephone number might result in traders withdrawing telephone-based customer support to the detriment of consumers. Many people would rather speak to someone than, for example, have to use an online chat room or e-mail their complaint. But I can reassure the Committee that, even though not all services are within scope of the consumer contracts regulations, the sector regulators have taken action. For example, current Financial Conduct Authority rules require every authorised firm to have a free channel for making a complaint. While some firms provide a freephone number, this channel could also be by post or online. Early this year, the Financial Conduct Authority issued a consultation paper proposing that charges for consumer help, and complaint, lines were capped at the cost of a basic rate call.

I hope that these developments will help to reassure the Committee, and I therefore ask the noble Baroness to withdraw her amendment.

[Baroness King of Bow]

My Lords, it has been an interesting discussion that has taken in some clear old favourites, with bathrooms and even party walls mentioned by the noble Earl, Lord Lytton. The problem is that, without the safeguards proposed in these amendments, to the average consumer—and I include myself well and truly in that description—goods and services are not as described. Consumers will not have transparency and will not be able to make an informed choice. In many cases, we are talking about products with a finite cost. I absolutely recognise that services are different from goods; in fact, that was the point that I made in my previous intervention.

I thought that the noble Lord, Lord Hodgson, made some good points about alarm systems as well as the wording of the amendment, and I hear the concerns about the wording being too wide. However, it seems strange to me that the non-negotiable fees that are added to ticket prices are not actually the price for the service; they are another element being added. I recognise that the wording may be a problem, but then let us change the wording. That is something that the excellent Bill team would have no problem doing. Without something to address the gaps, I feel that the Bill is inadequate at present. I would at the very least hope that the Bill would stop the additional non-negotiable fees and charges.

The noble Baroness drew our attention to the 2013 legislation about additional payments and charges, which she believes already covers a large part of the concern addressed by Amendment 48B. Although I welcome the legislation, my problem is that in this case, something is clearly not working. The same goes for Amendment 50G. Of course I agree with the Minister that it is reasonable for people to pay a basic rate, and we would not want to have those unintended consequences, but if that is already covered by legislation, why is it not working in practice? Why, when I booked those tickets in the past few weeks, was I charged £60 on top of the price as advertised and why can we not do something more concrete to crack down on what is a scamming exercise? All right, I suppose that legally it is not a scam, but it absolutely feels like it. Given that the opportunities of a Consumer Rights Bill are few and far between, it would be wonderful if the Minister and her team could review how we can ensure that the practical effect is that consumers do not continue to be ripped off.

However, of course, I beg leave to withdraw the amendment.