Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2020

Lord Callanan Excerpts

Monday 16th November 2020 Grand Committee

Moved by

[Lord Callanan]

That the Grand Committee do consider the Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2020.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, the regulations were laid before the House on 14 September 2020. Our negotiations with the EU continue. As previously set out, we want a relationship with the EU based on friendly co-operation between sovereign equals and centred on a trading relationship based on free trade. These draft regulations form part of the important and necessary work being done to update our legislative framework in readiness for the end of the transition period. This will ensure that retained EU legislation continues to work effectively here in the UK.

The primary purpose of this statutory instrument is to update the 2019 EU exit regulations on consumer protection enforcement given changes in EU and domestic law since those regulations were considered and approved by this House on 15 January 2019. This SI does not alter the approach of the 2019 exit regulations; it merely enables them to work given those changes.

The 2019 exit regulations dealt with the collective redress regime for consumer protection laws. This regime applies where the infringement of certain consumer protection laws causes harm to the collective interests of consumers. It deals with systemic infringements of consumer law rather than any individual disputes.

The EU’s Consumer Protection Cooperation Regulation, known as the CPC Regulation, provides for reciprocal arrangements between enforcement bodies in member states, such as the UK’s CMA. It allows them to investigate and, if requested by an enforcer in another member state, to take action to end cross-border infringements of EU consumer law which harm the collective interests of consumers.

In the UK, the Enterprise Act 2002 allows enforcers to seek court orders to ensure the cessation of and, where appropriate, redress for infringements causing collective harm. The 2019 exit regulations revoke the CPC Regulation, which will not apply to the UK once the UK is no longer bound by EU law. The revocation is also necessary to prevent UK enforcers being obliged to assist their EU counterparts while, of course, EU enforcers are not under the same obligation. The 2019 exit regulations also amend the 2002 Act to allow the domestic collective redress regime to function effectively once EU law no longer applies in the UK. Those regulations replace the concept of a Community infringement—the breach of consumer protection laws in the EEA—with a Schedule 13 infringement for breaches of UK consumer protection laws.

Since the 2019 exit regulations were made, a new EU CPC Regulation, the 2017 CPC Regulation, has come into force. This statutory instrument updates the 2019 exit regulations so that they revoke this new CPC Regulation. This new exit regulation ensures that the UK collective redress regime will continue to apply to those retained EU-derived consumer protection laws to which the 2017 CPC Regulation has been extended.

This statutory instrument also ensures that the 2019 exit regulations amend the new material added to the 2002 Act by the CPC implementation regulations. That new material includes express online interface powers under which the Competition and Markets Authority can seek court orders requiring the removal of online content from, or restriction of access to, websites. This statutory instrument will ensure that the 2019 exit regulations amend that Act as it stands now, and the improvements made to that Act are therefore retained. None of these changes alters the approach of the 2019 exit regulations.

This SI also makes a number of other changes to EU exit regulations relating to consumer protection. First, it makes a small number of changes to two previous UK-wide exit regulations that amend legislation relating to crystal glass, footwear and textiles. These are specified in the Northern Ireland protocol. These changes ensure that those regulations do not impact on the operation of the Northern Ireland protocol.

Secondly, this SI makes technical changes to replace references to “exit day” with “IP completion day”, which will now be 31 December 2020, and is necessary in the context of the transitional provisions of those exit regulations.

Finally, this statutory instrument makes some minor amendments to clarify drafting in the Enterprise Act 2002. This is in response to the 14th report for this Session by the Joint Committee on Statutory Instruments in relation to this year’s regulations implementing the new CPC Regulation.

My departmental officials have undertaken the appropriate assessment of the impacts of this instrument on businesses and relevant bodies. This showed there is likely to be a negligible impact on business. These amendments do not bring about a wider policy change or impose any new liabilities or obligations on any relevant business, organisations or persons.

Although consumer protection is devolved in Northern Ireland, following consultation, the Department for the Economy, Northern Ireland, has agreed for the SI to include Northern Ireland provisions which relate to areas that are devolved to Northern Ireland. Consumer protection is reserved for Scotland and Wales, although officials in both the Scottish and Welsh Governments have also been advised of these regulations and they have raised no objection.

This instrument is a sensible and necessary use of the powers of the withdrawal Act which will ensure that the law in this area continues to function effectively after the end of the transition period. I therefore commend the regulations to the Committee. 

--- Later in debate ---

[Lord Callanan (Con)]

I thank all noble Lords and noble Baronesses who contributed to this debate.

Of course, the UK has left the EU to take back control on these and other matters and make decisions as a sovereign independent state. As I said in my opening speech, since the 2019 exit regulations on consumer protection enforcement were made, a new CPC regulation has come into force. This statutory instrument is therefore necessary to update the 2019 exit regulations so that the new CPC regulation is revoked. As I also said earlier, it also makes a small number of changes to two other exit regulations so that they do not have an impact on the operation of the Northern Ireland protocol. These amendments will allow the domestic collective redress regime to function effectively once EU law no longer applies in the UK. They will prevent UK enforcers being required to assist EU counterparts who are not under the same obligation. I reiterate that none of these changes alters the approach of the 2019 exit regulations.

I can confirm for the noble Baroness, Lady Hayter, that we have one of the strongest consumer protection regimes in Europe. It ensures that consumers’ interests are safeguarded with a comprehensive set of consumer rights and through strong advocates for consumer interests and other well-developed advice services. Of course, we remain firmly committed to the strong consumer rights and high standards that have benefited UK consumers for many years; these regulations do not change that. The political declaration between the UK and EU sets out the parties’ determination to continue working together to safeguard high standards of consumer protection; the UK remains fully committed to this undertaking.

We are continuing and enhancing global co-operation on consumer protection through our trade policy and through the CMA continuing to take an active role in many international fora. Our recently signed trade agreement with Japan illustrates this and includes consumer co-operation measures that go beyond those in the EU-Japan agreement, for instance.

My noble friends Lord Moynihan and Lord Naseby and the noble Baroness, Lady Hayter, referred to the ticket resale market and the importance of co-operation with the EU; I know that my noble friend Lord Moynihan in particular has been an extremely influential voice on this issue. The CMA has already taken enforcement action under UK consumer law against foreign-based secondary ticketing websites, such as Viagogo and StubHub, and enforcements of these provisions do not rely on the CPC network.

The domestic enforcement powers that we currently have will be retained. For instance, a new online interface order remains available to our enforcers; among other things, it allows a court to order the removal of content or restrict access to websites and software used by traders in selling services. Effective co-operation on consumer protection will be an important part of the UK’s future relationship and is of course in the interests of all parties. The CMA will continue to take an active role in many of the international fora that regulate these matters. We will look at the CMA’s powers of enforcement, but they are separate from this instrument; my department is engaging directly with the CMA on that question.

The noble Lord, Lord Empey, and the noble Baroness, Lady Ritchie, asked about the EU’s role in making consumer law in Northern Ireland. These regulations will ensure that three specific EU-derived laws—relating to crystal glass, footwear and textiles—continue to apply as required under the Northern Ireland protocol. Most consumer protection law is not affected by the protocol. Going forward, the UK Government will set the rules overall, subject to commitments in the protocol.

My noble friend Lord Naseby asked about footwear and related issues. In Great Britain, these regulations will continue to be subject to amendments made by previous exit SIs, which are largely narrow and technical, as the Northern Ireland protocol does not apply in this area. Substantial divergence in the GB and Northern Ireland protocol rules is not currently envisaged.

I will reply in writing to my noble friend Lord Naseby’s question on the definition of small and micro-businesses.

My noble friend Lord Bowness noted the complexity of the rules. I agree with him on this one. It is a technical area, but we have had a good discussion today. We have produced a substantial amount of explanatory material, but if he does not feel he has enough and wants to write to me, I would be happy to send him even more of it if he wishes for some bedtime reading.

We want consumers and businesses to continue to feel confident and empowered in cross-border transactions. The Government have committed to fund the UK European Consumer Centre for at least another year after the transition period ends to help consumers resolve cross-border disputes. We will use this time to assess the most effective way to provide consumers with advice about cross-border purchases in future.

My noble friend also raised passenger rights, which, as I am sure he understands, is not addressed by the instrument. As he probably also understands, consumer protection for flight passengers is a matter being considered by the Department for Transport. I know that he is in correspondence about it with my noble friend Lady Vere, who is a Minister in that department.

The noble Baroness, Lady Ritchie of Downpatrick, asked about protection for older people at risk of scamming. We have worked closely with Citizens Advice to run a National Consumer Week to help raise awareness of scams. I totally agree that this is a vital piece of work. On her point about consultation with Northern Ireland, this has been central to the formation of the SI, as I indicated. We will of course continue to engage with Northern Ireland and the other devolved Administrations, as the noble Baroness, Lady Hayter, asked, in response to the future development of consumer law.

On the rectification of problems raised by the JCSI on the previous 2020 regulations, we are satisfied that the redrafting of the previous regulations reported by the JCSI now satisfactorily deals with its concerns. It has of course received the usual pre-laying quality assurance procedures.

My noble friend Lord Randall asked about domestic consumer law. This will be retained in full as a result of a series of these exit-related SIs and, of course, by our domestic legislation regime, which, as he notes, in many cases already exceeds that required by EU rules.

The noble Baroness, Lady Hayter, further asked about devolved issues. I mentioned that we contacted the Northern Ireland Government on these measures and no concerns were raised. The Department for the Economy confirmed its agreement on 28 April. Although consumer protection is of course reserved in Scotland and Wales, officials in both the Scottish and Welsh Governments have been advised about these regulations and have not raised any objections. Northern Ireland has consumer protection and enforcement devolved to it, as I said. Consumer protection is reserved for Scotland and Wales, but we always look to engage with these devolved bodies on any new measures required.

Finally, the noble Baroness asked about engagement with Which? I have certainly spoken to it about other matters, but not these particular regulations. We hold regular discussions with it and others, such as Citizens Advice, to help shape our consumer policy and, in particular, to understand the impact of the current pandemic on consumers. It will continue to be a vital stakeholder for the work of my department.

In conclusion, these regulations will ensure our consumer rights framework continues to function effectively once the EU CPC regulation ceases to apply to the UK. With that, I commend the regulations to the Committee.

Motion agreed.