Consumer Rights Bill (HC Bill 161)

Section 77

SCHEDULE 5 Investigatory powers etc.

Part 1 Basic concepts

5Overview

1 (1) This Schedule confers investigatory powers on enforcers and specifies the
purposes for which and the circumstances in which those powers may be
exercised.

(2) Part 1 of this Schedule contains interpretation provisions; in particular
10paragraphs 2 to 6 explain what is meant by an “enforcer”.

(3) Part 2 of this Schedule explains what is meant by “the enforcer’s legislation”.

(4) Part 3 of this Schedule contains powers in relation to the production of
information; paragraph 13 sets out which enforcers may exercise those
powers, and the purposes for which they may do so.

(5) 15Part 4 of this Schedule contains further powers; paragraphs 19 and 20 set out
which enforcers may exercise those powers, and the purposes for which they
may do so.

(6) Part 5 of this Schedule contains provisions that are supplementary to the
powers in Parts 3 and 4 of this Schedule.

(7) 20Part 6 of this Schedule makes provision about the exercise of functions by
certain enforcers outside their area or district and the bringing of
proceedings in relation to conduct outside an enforcer’s area or district.

Enforcers

2 (1) In this Schedule “enforcer” means—

(a) 25a domestic enforcer,

(b) an EU enforcer,

(c) a public designated enforcer, or

(d) an unfair contract terms enforcer.

(2) But in Part 4 and paragraphs 38 and 41 of this Schedule “enforcer” means—

(a) 30a domestic enforcer, or

(b) an EU enforcer.

(3) In paragraphs 13, 19 and 20 of this Schedule, a reference to an enforcer
exercising a power includes a reference to an officer of the enforcer
exercising that power.

35Domestic enforcers

3 (1) In this Schedule “domestic enforcer” means—

(a) the Competition and Markets Authority,

(b) a local weights and measures authority in Great Britain,

(c) a district council in England,

(d) the Department of Enterprise, Trade and Investment in Northern
Ireland,

(e) a district council in Northern Ireland,

(f) the Secretary of State,

(g) 5the Gas and Electricity Markets Authority,

(h) the British Hallmarking Council,

(i) an assay office within the meaning of the Hallmarking Act 1973, or

(j) any other person to whom the duty in subsection (1) of section 27 of
the Consumer Protection Act 1987 (duty to enforce safety provisions)
10applies by virtue of regulations under subsection (2) of that section.

(2) But the Gas and Electricity Markets Authority is not a domestic enforcer for
the purposes of Part 4 of this Schedule.

(3) The reference to the Department of Enterprise, Trade and Investment in
Northern Ireland includes a person with whom the Department has made
15arrangements, under paragraph 3(1) of Schedule 15 to the Lifts Regulations
1997 (SI 1997/831SI 1997/831) for enforcement of those regulations.

EU enforcers

4 In this Schedule “EU enforcer” means—

(a) the Competition and Markets Authority,

(b) 20a local weights and measures authority in Great Britain,

(c) the Department of Enterprise, Trade and Investment in Northern
Ireland,

(d) the Financial Conduct Authority,

(e) the Civil Aviation Authority,

(f) 25the Secretary of State,

(g) the Department of Health, Social Services and Public Safety in
Northern Ireland,

(h) the Office of Communications,

(i) an enforcement authority within the meaning of section 120(15) of
30the Communications Act 2003 (regulation of premium rate services),
or

(j) the Information Commissioner.

Public designated enforcers

5 In this Schedule “public designated enforcer” means a person or body
35which—

(a) is designated by order under subsection (2) of section 213 of the
Enterprise Act 2002, and

(b) has been designated by virtue of subsection (3) of that section (which
provides that the Secretary of State may designate a public body only
40if satisfied that it is independent).

Unfair contract terms enforcer

6 In this Schedule “unfair contract terms enforcer” means a person or body
which—

(a) is for the time being listed in paragraph 8(1) of Schedule 3 (persons
or bodies that may enforce provisions about unfair contract terms),
and

(b) is a public authority within the meaning of section 6 of the Human
5Rights Act 1998.

Officers

7 (1) In this Schedule “officer”, in relation to an enforcer, means—

(a) an inspector appointed by the enforcer to exercise powers under this
Schedule, or authorised to do so,

(b) 10an officer of the enforcer appointed by the enforcer to exercise
powers under this Schedule, or authorised to do so,

(c) an employee of the enforcer (other than an inspector or officer)
appointed by the enforcer to exercise powers under this Schedule, or
authorised to do so, or

(d) 15a person (other than an inspector, officer or employee of the enforcer)
authorised by the enforcer to exercise powers under this Schedule.

(2) But references in this Schedule to an officer in relation to a particular power
only cover a person within sub-paragraph (1) if and to the extent that the
person has been appointed or authorised to exercise that power.

(3) 20A person who, immediately before the coming into force of this Schedule,
was appointed or authorised to exercise a power replaced by a power in this
Schedule is to be treated as having been appointed or authorised to exercise
the new power.

(4) In this paragraph “employee”, in relation to the Secretary of State, means a
25person employed in the civil service of the State.

Interpretation of other terms

8 In this Schedule—

• “Community infringement” has the same meaning as in section 212 of
  the Enterprise Act 2002;

• 30“document” includes information recorded in any form;

• “enforcement order” means an order under section 217 of the
  Enterprise Act 2002;

• “interim enforcement order” means an order under section 218 of that
  Act;

• 35“the Regulation on Accreditation and Market Surveillance” means
  Regulation (EC) No 765/2008 of the European Parliament and of the
  Council of 9 July 2008 setting out the requirements for accreditation
  and market surveillance relating to the marketing of products and
  repealing Regulation (EEC) No 339/93.

Part 2 The enforcer’s legislation

Enforcer’s legislation

9 (1) In this Schedule “the enforcer’s legislation”, in relation to a domestic
5enforcer, means—

(a) legislation or notices which, by virtue of a provision listed in
paragraph 10, the domestic enforcer has a duty or power to enforce,
and

(b) where the domestic enforcer is listed in an entry in the first column
10of the table in paragraph 11, the legislation listed in the
corresponding entry in the second column of that table.

(2) References in this Schedule to a breach of or compliance with the enforcer’s
legislation include breach of or compliance with a notice issued under the
enforcer’s legislation.

(3) 15References in this Schedule to a breach of or compliance with the enforcer’s
legislation are to be read, in relation to the Lifts Regulations 1997 (SI 1997/
831), as references to a breach of or compliance with the Regulations as they
apply to relevant products (within the meaning of Schedule 15 to the
Regulations) for private use or consumption.

20Enforcer’s legislation: duties and powers mentioned in paragraph 9(1)(a)

10 The duties and powers mentioned in paragraph 9(1)(a) are those arising
under any of the following provisions—

• “section 26(1) or 40(1)(b) of the Trade Descriptions Act 1968 (including as
  applied by regulation 8(3) of the Crystal Glass (Descriptions)
  25Regulations 1973 (SI 1973/1952SI 1973/1952) and regulation 10(2) of the Footwear
  (Indication of Composition) Labelling Regulations 1995 (SI 1995/
  2489));

• section 9(1) or (6) of the Hallmarking Act 1973;

• paragraph 6 of the Schedule to the Prices Act 1974 (including as read with
  30paragraph 14(1) of that Schedule);

• section 161(1) of the Consumer Credit Act 1974;

• section 26(1) of the Estate Agents Act 1979;

• Article 39 of the Weights and Measures (Northern Ireland) Order 1981 (SI
  1981/231 (NI 10));

• 35section 16A(1) or (4) of the Video Recordings Act 1984;

• section 27(1) of the Consumer Protection Act 1987 (including as applied
  by section 12(1) of the Fireworks Act 2003 to fireworks regulations
  under that Act);

• section 215(1) of the Education Reform Act 1988;

• 40section 107A(1) or (3) or 198A(1) or (3) of the Copyright, Designs and
  Patents Act 1988;

• paragraph 3(a) of Schedule 5 to the Simple Pressure Vessels (Safety)
  Regulations 1991 (SI 1991/2749SI 1991/2749);

• paragraph 1 of Schedule 3 to the Package Travel, Package Holidays and
  45Package Tours Regulations 1992 (SI 1992/3288SI 1992/3288);

• section 30(4) or (7) or 31(4)(a) of the Clean Air Act 1993;

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• paragraph 1 of Schedule 2 to the Sunday Trading Act 1994;

• section 93(1) or (3) of the Trade Marks Act 1994;

• section 8A(1) or (3) of the Olympic Symbol etc (Protection) Act 1995;

• paragraph 2(a) or 3(1) of Schedule 15 to the Lifts Regulations 1997 (SI
  51997/831);

• paragraph 2(a) or 3(3)(a) of Schedule 8 to the Pressure Equipment
  Regulations 1999 (SI 1999/2001SI 1999/2001);

• regulation 5C(5) of the Motor Fuel (Composition and Content)
  Regulations 1999 (SI 1999/3107SI 1999/3107);

• 10paragraph 1(1)(b) or (2)(b) or 2 of Schedule 9 to the Radio Equipment and
  Telecommunications Terminal Equipment Regulations 2000 (SI 2000/
  730);

• paragraph 1 of Schedule 10 to the Personal Protective Equipment
  Regulations 2002 (SI 2002/1144SI 2002/1144);

• 15paragraph 1 of Schedule 4 to the Packaging (Essential Requirements)
  Regulations 2003 (SI 2003/1941SI 2003/1941);

• section 3(1) of the Christmas Day Trading Act 2004;

• regulation 10(1) of the General Product Safety Regulations 2005 (SI 2005/
  1803);

• 20regulation 10(1) of the Weights and Measures (Packaged Goods)
  Regulations 2006 (SI 2006/659SI 2006/659);

• regulation 17 of the Measuring Instruments (Automatic Discontinuous
  Totalisers) Regulations 2006 (SI 2006/1255SI 2006/1255);

• regulation 18 of the Measuring Instruments (Automatic Rail-
  25weighbridges) Regulations 2006 (SI 2006/1256SI 2006/1256);

• regulation 20 of the Measuring Instruments (Automatic Catchweighers)
  Regulations 2006 (SI 2006/1257SI 2006/1257);

• regulation 18 of the Measuring Instruments (Automatic Gravimetric
  Filling Instruments) Regulations 2006 (SI 2006/1258SI 2006/1258);

• 30regulation 18 of the Measuring Instruments (Beltweighers) Regulations
  2006 (SI 2006/1259SI 2006/1259);

• regulation 16 of the Measuring Instruments (Capacity Serving Measures)
  Regulations 2006 (SI 2006/1264SI 2006/1264);

• regulation 17 of the Measuring Instruments (Liquid Fuel and Lubricants)
  35Regulations 2006 (SI 2006/1266SI 2006/1266);

• regulation 16 of the Measuring Instruments (Material Measures of
  Length) Regulations 2006 (SI 2006/1267SI 2006/1267);

• regulation 17 of the Measuring Instruments (Cold-water Meters)
  Regulations 2006 (SI 2006/1268SI 2006/1268);

• 40regulation 18 of the Measuring Instruments (Liquid Fuel delivered from
  Road Tankers) Regulations 2006 (SI 2006/1269SI 2006/1269);

• regulation 37(1)(a)(ii) or (b)(ii) of the Electromagnetic Compatibility
  Regulations 2006 (SI 2006/3418SI 2006/3418);

• regulation 13(1) of the Business Protection from Misleading Marketing
  45Regulations 2008 (SI 2008/1276SI 2008/1276);

• regulation 19(1) of the Consumer Protection from Unfair Trading
  Regulations 2008 (SI 2008/1277SI 2008/1277);

• paragraph 2 or 5 of Schedule 5 to the Supply of Machinery (Safety)
  Regulations 2008 (SI 2008/1597SI 2008/1597);

• 50regulation 32(2) or (3) of the Timeshare, Holiday Products, Resale and
  Exchange Contracts Regulations 2010 (SI 2010/2960SI 2010/2960);

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• regulation 10(1) of the Weights and Measures (Packaged Goods)
  Regulations (Northern Ireland) 2011 (SR 2011/331SR 2011/331);

• regulation 11 of the Textile Products (Labelling and Fibre Composition)
  Regulations 2012 (SI 2012/1102SI 2012/1102);

• 5regulation 6(1) of the Cosmetic Products Enforcement Regulations 2013
  (SI 2013/1478SI 2013/1478).”

Enforcer’s legislation: legislation mentioned in paragraph 9(1)(b)

11 Here is the table mentioned in paragraph 9(1)(b)—

40Powers to amend paragraph 10 or 11

12 (1) The Secretary of State may by order made by statutory instrument—

(a) amend paragraph 10 or the table in paragraph 11 by adding,
modifying or removing any entry in it;

(b) in consequence of provision made under paragraph (a), amend,
repeal or revoke any other legislation (including this Act) whenever
passed or made.

(2) The Secretary of State may not make an order under this paragraph that has
5the effect that a power of entry, or an associated power, contained in
legislation other than this Act is replaced by a power of entry, or an
associated power, contained in this Schedule unless the Secretary of State
thinks that the condition in sub-paragraph (3) is met.

(3) That condition is that, on and after the changes made by the order, the
10safeguards applicable to the new power, taken together, provide a greater
level of protection than any safeguards applicable to the old power.

(4) In sub-paragraph (2) “power of entry” and “associated power” have the
meanings given by section 46 of the Protection of Freedoms Act 2012.

(5) An order under this paragraph may contain transitional or transitory
15provision or savings.

(6) A statutory instrument containing an order under this paragraph that
amends or repeals primary legislation may not be made unless a draft of the
instrument containing the order has been laid before, and approved by a
resolution of, each House of Parliament.

(7) 20Any other statutory instrument containing an order under this paragraph is
subject to annulment in pursuance of a resolution of either House of
Parliament.

(8) In this paragraph “primary legislation” means—

(a) an Act of Parliament,

(b) 25an Act of the Scottish Parliament,

(c) an Act or Measure of the National Assembly for Wales, or

(d) Northern Ireland legislation.

Part 3 Powers in relation to the production of information

30Exercise of powers in this Part

13 (1) An enforcer of a kind mentioned in this paragraph may exercise a power in
this Part of this Schedule only for the purposes and in the circumstances
mentioned in this paragraph in relation to that kind of enforcer.

(2) The Competition and Markets Authority may exercise the powers in this
35Part of this Schedule for any of the following purposes—

(a) to enable the Authority to exercise or to consider whether to exercise
any function it has under Part 8 of the Enterprise Act 2002;

(b) to enable a private designated enforcer to consider whether to
exercise any function it has under that Part;

(c) 40to enable a Community enforcer to consider whether to exercise any
function it has under that Part;

(d) to ascertain whether a person has complied with or is complying
with an enforcement order or an interim enforcement order;

(e) to ascertain whether a person has complied with or is complying
with an undertaking given under section 217(9), 218(10) or 219 of the
Enterprise Act 2002.

(3) A public designated enforcer, a local weights and measures authority in
5Great Britain, the Department of Enterprise, Trade and Investment in
Northern Ireland or an EU enforcer other than the Competition and Markets
Authority may exercise the powers in this Part of this Schedule for any of the
following purposes—

(a) to enable that enforcer to exercise or to consider whether to exercise
10any function it has under Part 8 of the Enterprise Act 2002;

(b) to ascertain whether a person has complied with or is complying
with an enforcement order or an interim enforcement order made on
the application of that enforcer;

(c) to ascertain whether a person has complied with or is complying
15with an undertaking given under section 217(9) or 218(10) of the
Enterprise Act 2002 following such an application;

(d) to ascertain whether a person has complied with or is complying
with an undertaking given to that enforcer under section 219 of that
Act.

(4) 20A domestic enforcer may exercise the powers in this Part of this Schedule for
the purpose of ascertaining whether there has been a breach of the enforcer’s
legislation.

(5) But a domestic enforcer may not exercise the power in paragraph 14 (power
to require the production of information) for the purpose in sub-paragraph
25(4) unless an officer of the enforcer reasonably suspects a breach of the
enforcer’s legislation.

(6) Sub-paragraph (5) does not apply if the enforcer is a market surveillance
authority within the meaning of Article 2(18) of the Regulation on
Accreditation and Market Surveillance and the power is exercised for the
30purpose of market surveillance within the meaning of Article 2(17) of that
Regulation.

(7) An unfair contract terms enforcer may exercise the powers in this Part of this
Schedule for either of the following purposes—

(a) to enable the enforcer to exercise or to consider whether to exercise
35any function it has under Schedule 3 (enforcement of the law on
unfair contract terms and notices);

(b) to ascertain whether a person has complied with or is complying
with an injunction or interdict (within the meaning of that Schedule)
granted under paragraph 5 of that Schedule or an undertaking given
40under paragraph 6 of that Schedule.

(8) But an unfair contract terms enforcer may not exercise the power in
paragraph 14 for a purpose mentioned in sub-paragraph (7)(a) unless an
officer of the enforcer reasonably suspects that a person is using, or
proposing or recommending the use of, a contractual term or notice within
45paragraph 3 of Schedule 3.

(9) A local weights and measures authority in Great Britain may exercise the
powers in this Part of this Schedule for either of the following purposes—

(a) to enable it to determine whether to make an order under section 3
or 4 of the Estate Agents Act 1979;

(b) to enable it to exercise any of its functions under section 5, 6, 8, 13 or
17 of that Act.

(10) In this paragraph—

• “Community enforcer” has the same meaning as in the Enterprise Act
  52002 (see section 213(5) of that Act);

• “private designated enforcer” means a person or body which—

  (a)

  is designated by order under subsection (2) of section 213 of
  that Act, and

  (b)

  has been designated by virtue of subsection (4) of that section
  10(which provides that the Secretary of State may designate a
  person or body which is not a public body only if it satisfies
  criteria specified by order).

Power to require the production of information

14 An enforcer or an officer of an enforcer may give notice to a person requiring
15the person to provide the enforcer with the information specified in the
notice.

Procedure for notice under paragraph 14

15 (1) A notice under paragraph 14 must be in writing and specify the purpose for
which the information is required.

(2) 20If the purpose is to enable a person to exercise or to consider whether to
exercise a function, the notice must specify the function concerned.

(3) The notice may specify—

(a) the time within which and the manner in which the person to whom
it is given must comply with it;

(b) 25the form in which information must be provided.

(4) The notice may require—

(a) the creation of documents, or documents of a description, specified
in the notice, and

(b) the provision of those documents to the enforcer or an officer of the
30enforcer.

(5) A requirement to provide information or create a document is a requirement
to do so in a legible form.

(6) A notice under paragraph 14 does not require a person to provide any
information or create any documents which the person would be entitled to
35refuse to provide or produce—

(a) in proceedings in the High Court on the grounds of legal
professional privilege, or

(b) in proceedings in the Court of Session on the grounds of
confidentiality of communications.

(7) 40In sub-paragraph (6) “communications” means—

(a) communications between a professional legal adviser and the
adviser’s client, or

(b) communications made in connection with or in contemplation of
legal proceedings or for the purposes of those proceedings.

Enforcement of notice under paragraph 14

16 (1) If a person fails to comply with a notice under paragraph 14, the enforcer or
an officer of the enforcer may make an application under this paragraph to
the court.

(2) 5If it appears to the court that the person has failed to comply with the notice,
it may make an order under this paragraph.

(3) An order under this paragraph is an order requiring the person to do
anything that the court thinks it is reasonable for the person to do, for any of
the purposes for which the notice was given, to ensure that the notice is
10complied with.

(4) An order under this paragraph may require the person to meet the costs or
expenses of the application.

(5) If the person is a company, partnership or unincorporated association, the
court in acting under sub-paragraph (4) may require an official who is
15responsible for the failure to meet the costs or expenses.

(6) In this paragraph—

• “the court” means—

  (a)

  the High Court,

  (b)

  in relation to England and Wales, the county court,

  (c)

  20in relation to Northern Ireland, a county court,

  (d)

  the Court of Session, or

  (e)

  the sheriff;

• “official” means—

  (a)

  in the case of a company, a director, manager, secretary or
  25other similar officer,

  (b)

  in the case of a limited liability partnership, a member,

  (c)

  in the case of a partnership other than a limited liability
  partnership, a partner, and

  (d)

  in the case of an unincorporated association, a person who is
  30concerned in the management or control of its affairs.

Limitations on use of information provided in response to a notice under paragraph 14

17 (1) This paragraph applies if a person provides information in response to a
notice under paragraph 14.

(2) This includes information contained in a document created by a person in
35response to such a notice.

(3) In any criminal proceedings against the person—

(a) no evidence relating to the information may be adduced by or on
behalf of the prosecution, and

(b) no question relating to the information may be asked by or on behalf
40of the prosecution.

(4) Sub-paragraph (3) does not apply if, in the proceedings—

(a) evidence relating to the information is adduced by or on behalf of the
person providing it, or