Consumer Rights Bill

Lord Best Excerpts

Monday 24th November 2014 Lords Chamber

[Lord Borrie (Lab)]

My Lords, I support the amendment that has just been spoken to. I declare in interest in that I am a vice-president of the Trading Standards Institute and I have been the president so I have a long understanding of the work of trading standards people up and down the country. They have been extremely useful in every development of consumer rights and consumer law over the many years since they were called weights and measures inspectors under the old rules of 1880. Now that they are trading standards inspectors and the Trading Standards Institute is a very respectable body, they have as a prime function the enforcement of consumer law. That is so now, although the substance of the law has been altered and is being altered further by this Bill.

One of the principal jobs of enforcement officers is, of course, to see whether a prosecution is justified. No self-respecting prosecutor thinks that any minor infringement of the law is deserving of prosecution and the trading standards officers in each county are well aware of that. They take a great deal of care in developing their thoughts that on a particular occasion the goods are dangerous, or the various things that my noble friend Lady Hayter referred to have occurred. To my mind, there is no doubt whatever that it is a far greater deterrent to malpractice if no notice has to be given of an inspection. I was delighted, as I am sure many of us here were, whether interested in this subject or not, with the announcement of the work done by Ofsted in deciding that there are some occasions when schools need to be looked at without notice so that they can be taken off their guard and it is more difficult to show that they are all to the good.

Trading standards inspectors have tasks other than prosecution. I was thinking of this when the noble Baroness, Lady Oppenheim-Barnes, was talking about the previous amendment. They do a great deal of advisory work and advise not just consumers but businesses. That is at least equally important because they are advising businesses on how to comply with the law, how to better comply with it and how to make sure that they do not suffer from prosecution in the future. In their advisory capacity, inspectors make sure that the right relationship is obtained with the trader concerned and notice may be given that they wish to come and talk about a particular problem and they hope their advice will be looked at and taken. There is a world of difference between advising and prosecuting. We can all see that and surely there is no doubt that it is far better for the prosecution element of the work of trading standards that visits do not require notice on every occasion.

[Lord Best (CB)]

My Lords, I am delighted to follow the noble Lord, Lord Borrie. I, too, am a vice-president of the Trading Standards Institute. I moved this amendment in Committee because it seemed extraordinary when I first read it that trading standards officers would need to give 48 hours before turning up to find out some wrongdoing on a site, in a shop or whatever. However, the Bill already says that if,

“the officer reasonably considers that to give notice … would defeat the purpose of the entry”,

then the 48 hours’ notice would not have to be given. Nor would notice have to be given if the officer,

“reasonably suspects that there is an imminent risk to public health or safety”.

In Committee we received reassurances from the Minister, who explained that even if there was just a suspicion that there might be something going on, it would be quite in order not to give notice because that would totally undermine the purpose of looking in on the premises. That just leaves the 48 hours’ notice for “a routine visit”, which is how this is expressed in the amendments to follow in the name of the Minister. For a routine visit, 48 hours’ notice would be given but I understand that if trading standards officers are to make a routine visit—probably, as the noble Lord, Lord Borrie, said, to give advice, or to explain that the law has changed and there is something new that the business ought to know about—it will not be a matter of just giving notice. It is a negotiated thing. They will send an e-mail and receive a reply. What is the point of turning up 48 hours later if nobody is there or if the boss is not there and you need to see the boss? If it is something completely routine, this is how people behave just out of politeness, if for no other reason. They will make an appointment and go round and visit. The danger is that this will get blurred, the proper use of the unannounced visit will be inhibited and we will not see justice done when it should have been done. It seems much better if we simply omit this reference to 48 hours’ notice. It was probably a bad idea in the first place. There is a certain amount of retreat from it now—very sensibly by the Minister—but why not just knock it out? It does not seem to serve any purpose.

[Baroness Neville-Rolfe]

My Lords, the Government certainly share the objective of an effective enforcement regime to protect consumers from rogues and traders from unfair competition. In this Bill we are, of course, consolidating and modernising the investigatory powers of consumer law enforcers, bringing together the powers from different Acts, and ensuring for the first time that enforcers can tackle rogue traders who operate across local authority boundaries. We have also introduced strong safeguards as to how these powers are exercised because the powers are necessarily intrusive. They allow officers to enter premises, seize goods and break open containers, for example.

Under the Bill, therefore, consumer law enforcers will now have to give notice to traders if they want to make a routine inspection. We introduced this change, following discussion in Committee, because we think it is a basic principle of civil liberties that a business should suffer the disruption of an unannounced visit only when there is some good reason, such as suspicion that a business may have broken the law. However, we recognise that trading standards has real concerns about the requirement to give notice. I want to set out the approach that we have taken in more detail before talking about my amendments.

Businesses, including small businesses, are very supportive of strong powers to investigate rogue businesses, as has been said, because they harm consumers and are unfair to them. However, businesses have told us that unannounced routine inspections by enforcers are disruptive, costly and needlessly so. For example, an officer visiting a shop may demand a lot of attention from staff at busy periods or want information that the junior staff available cannot provide. The Federation of Small Businesses told us that the safeguard of two days’ written notice of routine inspections, which can of course be sent by e-mail, will allow businesses to ensure that the appropriate staff and paperwork are available. This means that neither the trader’s nor enforcer’s time is wasted. For example, if an officer visits a retail store to check centrally set price promotions, store colleagues may be unable to change promotions or answer questions on price establishment periods. Hence, matters that could otherwise have been cleared up quite quickly can result in primary authority referrals or a formal investigation.

Clearly, the Government are aware that much of the vital work of enforcement officers is directed at illegal trading. We very much value the excellent work of enforcers such as trading standards to protect consumers and legitimate businesses from rogue traders—including, I should add, the advisory work that the noble Lord, Lord Borrie, mentioned, which I agree is extremely valuable. Officers clearly should not have to give notice of an inspection where illegal trading is suspected. That is why clear exemptions are set out in the Bill, which I need to go into to try to ensure that the House understands how reasonable our proposals are. As has been said, notice need not be given, for example, if there is an imminent risk to public safety. The noble Lord, Lord Best, explained that clearly.

The exemption would apply: where an enforcer reasonably suspects a breach—for example, where enforcers find evidence of illicit tobacco, such as stubs and papers, in the streets near suspected outlets; where giving notice would defeat the purpose of the entry, a good example of that being where counterfeit alcohol is being sold in local shops and the enforcer believes that the traders in question are likely to conceal the illegal products if notice is given; and where it is not reasonably practicable in all the circumstances to give notice—for example, because the officer reasonably suspects that there is an imminent risk to public health or safety, as the noble Lord, Lord Best, mentioned. There are three or four other exemptions but, taken together, these exemptions ensure that consumer protection is properly maintained because if there is evidence of a serious or immediate breach, enforcers can intervene. The Bill supports an intelligence-led approach to enforcement which is an effective use of enforcement resources.

The noble Baroness, Lady Hayter, said that test purchases were less effective if notice had not been given. However, notice need not be given for a test purchase or to observe the carrying out of business.