Consumer Rights Bill (HC Bill 3)

(b) section 9, 10 or 11 of the 1973 Act (the corresponding things
in relation to hire purchase),

shall have effect only if it was fair and reasonable to incorporate the
term in the contract.

(1B) 5This section does not apply to a consumer contract (but see the
provision made about such contracts in section 31 of the Consumer
Rights Act 2014).”

(3) Omit subsection (2).

20 (1) Section 21 (obligations implied by law in other contracts for the supply of
10goods) is amended as follows.

(2) In subsection (1), for paragraphs (a) and (b) substitute “such as is referred to
in subsection (3) below shall have no effect if it was not fair and reasonable
to incorporate the term in the contract.”

(3) In subsection (2)(b) omit “unless it is a consumer contract (and then only in
15favour of the consumer)”.

(4) After subsection (3A) insert—

“(3B) This section does not apply to a consumer contract (but see the
provision made about such contracts in section 31 of the Consumer
Rights Act 2014).”

21 20Omit section 22 (consequence of breach of contract).

22 (1) Section 25 (interpretation of Part 2) is amended as follows.

(2) In subsection (1)—

(a) omit the definition of “consumer”,

(b) for the definition of “consumer contract” substitute—

• 25““consumer contract” has the same meaning as in the
  Consumer Rights Act 2014 (see section 61);”, and

(c) at the appropriate place insert—

• ““consumer notice” has the same meaning as in the
  Consumer Rights Act 2014 (see section 61);”.

(3) 30Omit subsections (1A) and (1B).

(4) In subsection (5), for “and 16 and 19 to” substitute “, 16, 20 and”.

23 In section 26(2) (international supply contracts) omit “or 4”.

24 (1) Section 27 (choice of law clauses) is amended as follows.

(2) In subsection (2)—

(a) 35omit “(either or both)”, and

(b) omit paragraph (b) and the “or” preceding it.

(3) Omit subsection (3).

25 Omit section 28 (temporary provision for sea carriage of passengers).

26 (1) Schedule 1 (scope of sections 2 to 4 and 7) is amended as follows.

(2) 40In the heading, for “to 4” substitute “, 3”.

(3) In paragraph 1, for “to 4” substitute “ and 3”.

(4) In paragraph 2—

(a) for “to 4” substitute “, 3”, and

(b) omit “except in favour of a person dealing as consumer”.

(5) 5In paragraph 3—

(a) for “, 3 and 4” substitute “and 3”, and

(b) omit “, except in favour of a person dealing as consumer,”.

27 In Schedule 2 (“guidelines” for application of reasonableness test), for “6(3),
7(3) and (4),” substitute “6(1A), 7(1A) and (4),”.

10Companies Act 1985 (c. 6)1985 (c. 6)

28 (1) Schedule 15D to the Companies Act 1985 (specified descriptions of
disclosures for the purposes of section 449) is amended as follows.

(2) In paragraph 17—

(a) omit paragraph (i), and

(b) 15after paragraph (k) insert—

“(l) Schedule 3 to the Consumer Rights Act 2014”.

(3) For paragraph 25 substitute—

“25 A disclosure for the purposes of enabling or assisting a regulator
under Schedule 3 to the Consumer Rights Act 2014 other than the
20Competition and Markets Authority to exercise its functions
under that Schedule.”

Merchant Shipping Act 1995 (c. 21)1995 (c. 21)

29 In section 184 of the Merchant Shipping Act 1995 (application of Schedule 6
to carriage within British Islands) omit subsection (2).

25Arbitration Act 1996 (c. 23)1996 (c. 23)

30 The Arbitration Act 1996 is amended as follows.

31 (1) Section 28 (application of unfair terms regulations to consumer arbitration
agreements) is amended as follows.

(2) In subsection (1), for “the Unfair Terms in Consumer Contracts Regulations
301994” substitute “Part 2 (unfair terms) of the Consumer Rights Act 2014”.

(3) For subsection (2) substitute—

“(2) In those section “the Part” means Part 2 (unfair terms) of the
Consumer Rights Act 2014.”

32 For section 90 (regulations apply where consumer is a legal person)
35substitute—

“90 Part applies where consumer is a legal person

The Part applies where the consumer is a legal person as it applies
where the consumer is an individual.”

33 In section 91(1) (arbitration agreement unfair where modest amount sought)
for “Regulations” substitute “Part”.

Unfair Terms in Consumer Contracts Regulations 1999 (S.I. 1999/2083S.I. 1999/2083)

34 The Unfair Terms in Consumer Contracts Regulations 1999 are revoked.

5Enterprise Act 2002 (c. 40)2002 (c. 40)

35 In Schedule 15 to the Enterprise Act 2002 (enactments for the purposes of
which disclosures may be made), at the end insert—

• “Schedule 3 to the Consumer Rights Act 2014.”

Companies Act 2006

36 10The Companies Act 2006 is amended as follows.

37 (1) Section (A) of Part 2 of Schedule 2 (specified descriptions of disclosures for
the purposes of section 948) is amended as follows.

(2) In paragraph 25—

(a) omit paragraph (h), and

(b) 15after paragraph (j) insert—

“(k) Schedule 3 to the Consumer Rights Act 2014”.

(3) For paragraph 33 substitute—

“33 A disclosure for the purposes of enabling or assisting a regulator
under Schedule 3 to the Consumer Rights Act 2014 other than the
20Competition and Markets Authority to exercise its functions
under that Schedule.”

38 (1) Part 2 of Schedule 11A (specified descriptions of disclosures for the purposes
of section 1224A) is amended as follows.

(2) In paragraph 39, for paragraph (i) insert—

“(i) 25Schedule 3 to the Consumer Rights Act 2014”.

(3) For paragraph 48 substitute—

“48 A disclosure for the purposes of enabling or assisting a regulator
under Schedule 3 to the Consumer Rights Act 2014 other than the
Competition and Markets Authority to exercise its functions
30under that Schedule.”

Consequential repeals

39 In consequence of the amendments made by this Schedule—

(a) omit paragraph 19(b) of Schedule 2 to the Sale of Goods Act 1979,
and

(b) 35in paragraph 21 of that Schedule, omit “and (2)(a)” and “(in each
case)”.

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 a breach of or compliance with a notice issued under—

(a) the enforcer’s legislation, or

(b) 15legislation under which the enforcer’s legislation is made.

(3) References 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
20Regulations) for private use or consumption.

Enforcer’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
  25applied by regulation 8(3) of the Crystal Glass (Descriptions)
  Regulations 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;

• 30paragraph 6 of the Schedule to the Prices Act 1974 (including as read with
  paragraph 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
  351981/231 (NI 10));

• section 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);

• 40section 215(1) of the Education Reform Act 1988;

• section 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);

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

Consumer Rights BillPage 67

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

• 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;

• 5paragraph 2(a) or 3(1) of Schedule 15 to the Lifts Regulations 1997 (SI
  1997/831);

• 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)
  10Regulations 1999 (SI 1999/3107SI 1999/3107);

• paragraph 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
  15Regulations 2002 (SI 2002/1144SI 2002/1144);

• paragraph 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/
  201803);

• regulation 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);

• 25regulation 18 of the Measuring Instruments (Automatic Rail-
  weighbridges) 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
  30Filling Instruments) Regulations 2006 (SI 2006/1258SI 2006/1258);

• regulation 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);

• 35regulation 17 of the Measuring Instruments (Liquid Fuel and Lubricants)
  Regulations 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)
  40Regulations 2006 (SI 2006/1268SI 2006/1268);

• regulation 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);

• 45regulation 13(1) of the Business Protection from Misleading Marketing
  Regulations 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)
  50Regulations 2008 (SI 2008/1597SI 2008/1597);

Consumer Rights BillPage 68

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

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

• 5regulation 11 of the Textile Products (Labelling and Fibre Composition)
  Regulations 2012 (SI 2012/1102SI 2012/1102);

• regulation 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 10Here is the table mentioned in paragraph 9(1)(b)—

Powers 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
5passed or made.

(2) The Secretary of State may not make an order under this paragraph that has
the 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
10thinks that the condition in sub-paragraph (3) is met.

(3) That condition is that, on and after the changes made by the order, the
safeguards 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
15meanings given by section 46 of the Protection of Freedoms Act 2012.

(5) An order under this paragraph may contain transitional or transitory
provision 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
20instrument containing the order has been laid before, and approved by a
resolution of, each House of Parliament.

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

(8) 25In this paragraph “primary legislation” means—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

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

(d) Northern Ireland legislation.

30Part 3 Powers in relation to the production of information

Exercise 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
35mentioned in this paragraph in relation to that kind of enforcer.

(2) The Competition and Markets Authority may exercise the powers in this
Part 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) 40to enable a private designated enforcer to consider whether to
exercise any function it has under that Part;

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