Consumer Rights Bill (HC Bill 3)

(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
5Enterprise Act 2002.

(3) A public designated enforcer, a local weights and measures authority in
Great 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
10following purposes—

(a) to enable that enforcer to exercise or to consider whether to exercise
any 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
15the application of that enforcer;

(c) to ascertain whether a person has complied with or is complying
with 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
20with an undertaking given to that enforcer under section 219 of that
Act.

(4) A 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) 25But a domestic enforcer may not exercise the power in paragraph 14 (power
to require the production of information) for the purpose in sub-paragraph
(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
30authority within the meaning of Article 2(18) of the Regulation on
Accreditation and Market Surveillance and the power is exercised for the
purpose 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
35Schedule for either of the following purposes—

(a) to enable the enforcer to exercise or to consider whether to exercise
any 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
40with an injunction or interdict (within the meaning of that Schedule)
granted under paragraph 5 of that Schedule or an undertaking given
under 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
45officer of the enforcer reasonably suspects that a person is using, or
proposing or recommending the use of, a contractual term or notice within
paragraph 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) 5In this paragraph—

• “Community enforcer” has the same meaning as in the Enterprise Act
  2002 (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
  10that Act, and

  (b)

  has been designated by virtue of subsection (4) of that section
  (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).

15Power to require the production of information

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

Procedure for notice under paragraph 14

15 (1) 20A notice under paragraph 14 must be in writing and specify the purpose for
which the information is required.

(2) If 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) 25the time within which and the manner in which the person to whom
it is given must comply with it;

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

(4) The notice may require—

(a) the creation of documents, or documents of a description, specified
30in the notice, and

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

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

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

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

(b) 40in proceedings in the Court of Session on the grounds of
confidentiality of communications.

(7) In 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
5an officer of the enforcer may make an application under this paragraph to
the court.

(2) If 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
10anything 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
complied with.

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

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

(6) In this paragraph—

• “the court” means—

  (a)

  20the High Court,

  (b)

  in relation to England and Wales, the county court,

  (c)

  in relation to Northern Ireland, a county court,

  (d)

  the Court of Session, or

  (e)

  the sheriff;

• 25“official” means—

  (a)

  in the case of a company, a director, manager, secretary or
  other 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
  30partnership, a partner, and

  (d)

  in the case of an unincorporated association, a person who is
  concerned 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
35notice under paragraph 14.

(2) This includes information contained in a document created by a person in
response 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
40behalf of the prosecution, and

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

(b) a question relating to the information is asked by or on behalf of that
person.

(5) 5Sub-paragraph (3) does not apply if the proceedings are for—

(a) an offence under paragraph 36 (obstruction),

(b) an offence under section 5 of the Perjury Act 1911 (false statutory
declarations and other false statements without oath),

(c) an offence under section 44(2) of the Criminal Law (Consolidation)
10(Scotland) Act 1995 (false statements and declarations), or

(d) an offence under Article 10 of the Perjury (Northern Ireland) Order
1979 (false statutory declarations and other false unsworn
statements).

Application to Crown

18 15In its application in relation to an enforcer acting for a purpose within
paragraph 13(2) or (3), this Part binds the Crown.

Part 4 Further Powers exercisable by domestic enforcers and EU enforcers

Exercise of powers in this Part: domestic enforcers

19 (1) 20A domestic enforcer 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 power.

(2) A domestic enforcer may exercise any power in paragraphs 21 to 26 and 31
to 34 for the purpose of ascertaining compliance with the enforcer’s
25legislation.

(3) A domestic enforcer may exercise the power in paragraph 27 (power to
require the production of documents) for either of the following purposes—

(a) subject to sub-paragraph (4), to ascertain compliance with the
enforcer’s legislation;

(b) 30to ascertain whether the documents may be required as evidence in
proceedings for a breach of, or under, the enforcer’s legislation.

(4) A domestic enforcer may exercise the power in paragraph 27 for the purpose
mentioned in sub-paragraph (3)(a) only if an officer of the enforcer
reasonably suspects a breach of the enforcer’s legislation, unless—

(a) 35the power is being exercised in relation to a document that the trader
is required to keep by virtue of a provision of the enforcer’s
legislation, or

(b) the enforcer is a market surveillance authority within the meaning of
Article 2(18) of the Regulation on Accreditation and Market
40Surveillance and the power is exercised for the purpose of market
surveillance within the meaning of Article 2(17) of that Regulation.

(5) A domestic enforcer may exercise the power in paragraph 28 (power to seize
and detain goods) in relation to—

(a) goods which an officer of the enforcer reasonably suspects may
disclose (by means of testing or otherwise) a breach of the enforcer’s
legislation,

(b) goods which an officer of the enforcer reasonably suspects are liable
5to forfeiture under that legislation, and

(c) goods which an officer of the enforcer reasonably suspects may be
required as evidence in proceedings for a breach of, or under, that
legislation.

(6) A domestic enforcer may exercise the power in paragraph 29 (power to seize
10documents required as evidence) in relation to documents which an officer
of the enforcer reasonably suspects may be required as evidence—

(a) in proceedings for a breach of the enforcer’s legislation, or

(b) in proceedings under the enforcer’s legislation.

(7) A domestic enforcer may exercise the power in paragraph 30 (power to
15decommission or switch off fixed installations)—

(a) if an officer of the enforcer reasonably suspects a breach of the
Electromagnetic Compatibility Regulations 2006 (SI 2006/3418SI 2006/3418), and

(b) for the purpose of ascertaining (by means of testing or otherwise)
whether there has been such a breach.

(8) 20For the purposes of the enforcement of the Estate Agents Act 1979—

(a) the references in sub-paragraphs (2) and (3)(a) to ascertaining
compliance with the enforcer’s legislation include ascertaining
whether a person has engaged in a practice mentioned in section
3(1)(d) of that Act (practice in relation to estate agency work declared
25undesirable by the Secretary of State), and

(b) the references in sub-paragraph (4) and paragraphs 23(5)(b) and
32(3)(a) to a breach of the enforcer’s legislation include references to
a person’s engaging in such a practice.

Exercise of powers in this Part: EU enforcers

20 (1) 30Any power in this Part of this Schedule which is conferred on an EU enforcer
may be exercised by such an enforcer only for the purposes and in the
circumstances mentioned in this paragraph in relation to that power.

(2) If the condition in sub-paragraph (3) is met, an EU enforcer may exercise any
power conferred on it by paragraphs 21 to 25 and 31 to 34 for any purpose
35relating to the functions that the enforcer has under Part 8 of the Enterprise
Act 2002 in its capacity as a CPC enforcer under that Part.

(3) The condition is that an officer of the EU enforcer reasonably suspects—

(a) that there has been, or is likely to be, a Community infringement,

(b) a failure to comply with an enforcement order or an interim
40enforcement order made on the application of that enforcer,

(c) a failure to comply with an undertaking given under section 217(9)
or 218(10) of the Enterprise Act 2002 following such an application,
or

(d) a failure to comply with an undertaking given to that enforcer under
45section 219 of that Act.

(4) An EU enforcer may exercise the power in paragraph 27 (power to require
the production of documents) for either of the following purposes—

(a) the purpose mentioned in sub-paragraph (2), if the condition in sub-
paragraph (3) is met;

(b) to ascertain whether the documents may be required as evidence in
proceedings under Part 8 of the Enterprise Act 2002.

(5) 5An EU enforcer may exercise the power in paragraph 28 (power to seize and
detain goods) in relation to goods which an officer of the enforcer reasonably
suspects—

(a) may disclose (by means of testing or otherwise) a Community
infringement or a failure to comply with a measure specified in sub-
10paragraph (3)(b), (c) or (d), or

(b) may be required as evidence in proceedings under Part 8 of the
Enterprise Act 2002.

(6) An EU enforcer may exercise the power in paragraph 29 (power to seize
documents required as evidence) in relation to documents which an officer
15of the enforcer reasonably suspects may be required as evidence in
proceedings under Part 8 of the Enterprise Act 2002.

Power to purchase products

21 (1) An officer of an enforcer may—

(a) make a purchase of a product, or

(b) 20enter into an agreement to secure the provision of a product.

(2) For the purposes of exercising the power in sub-paragraph (1), an officer
may—

(a) at any reasonable time, enter premises to which the public has access
(whether or not the public has access at that time), and

(b) 25inspect any product on the premises which the public may inspect.

(3) The power of entry in sub-paragraph (2) may be exercised without first
giving notice or obtaining a warrant.

Power to observe carrying on of business etc

22 (1) An officer of an enforcer may enter premises to which the public has access
30in order to observe the carrying on of a business on those premises.

(2) The power in sub-paragraph (1) may be exercised at any reasonable time
(whether or not the public has access at that time).

(3) The power of entry in sub-paragraph (1) may be exercised without first
giving notice or obtaining a warrant.

35Power to enter premises without warrant

23 (1) An officer of an enforcer may enter premises at any reasonable time.

(2) Sub-paragraph (1) does not authorise the entry into premises used wholly or
mainly as a dwelling.

(3) The power of entry in that sub-paragraph may only be exercised if a notice
40has been given to the occupier of the premises in accordance with the
requirements in sub-paragraph (4), unless sub-paragraph (5) applies.

(4) Those requirements are that—

(a) the notice is in writing and is given by an officer of the enforcer,

(b) the notice sets out why the entry is necessary and indicates the
nature of the offence under paragraph 36 (obstruction), and

(c) there are at least two working days between the date of receipt of the
5notice and the date of entry.

(5) A notice need not be given if—

(a) the occupier has waived the requirement to give notice,

(b) the power of entry is to be exercised by an officer of a domestic
enforcer and the officer reasonably suspects a breach of the
10enforcer’s legislation,

(c) the officer reasonably considers that to give notice in accordance
with this paragraph would defeat the purpose of the entry,

(d) it is not reasonably practicable in all the circumstances to give notice
in accordance with this paragraph, in particular because the officer
15reasonably suspects that there is an imminent risk to public health or
safety, or

(e) the enforcer is a market surveillance authority within the meaning of
Article 2(18) of the Regulation on Accreditation and Market
Surveillance and the entry is for the purpose of market surveillance
20within the meaning of Article 2(17) of that Regulation.

(6) If a notice is not given, and the officer finds one or more occupiers on the
premises, the officer must provide to that occupier or (if there is more than
one) to at least one of them a document that—

(a) sets out why the entry is necessary, and

(b) 25indicates the nature of the offence under paragraph 36 (obstruction).

(7) Whether or not a notice is given, if the officer finds one or more occupiers on
the premises, the officer must produce evidence of the officer’s identity and
authority to that occupier or (if there is more than one) to at least one of
them.

(8) 30An officer need not comply with sub-paragraph (6) or (7) if it is not
reasonably practicable to do so.

(9) Proceedings resulting from the exercise of the power under sub-paragraph
(1) are not invalid merely because of a failure to comply with sub-paragraph
(6) or (7).

(10) 35An officer entering premises under sub-paragraph (1) may be accompanied
by such persons, and may take onto the premises such equipment, as the
officer thinks necessary.

(11) In this paragraph—

• “give”, in relation to the giving of a notice to the occupier of premises,
  40includes delivering or leaving it at the premises or sending it there
  by post;

• “working day” means a day other than—

  (a)

  Saturday or Sunday,

  (b)

  Christmas Day or Good Friday, or

  (c)

  45a day which is a bank holiday under the Banking and
  Financial Dealings Act 1971 in the part of the United
  Kingdom in which the premises are situated.

Application of paragraphs 25 to 31

24 Paragraphs 25 to 31 apply if an officer of an enforcer has entered any
premises under the power in paragraph 23(1) or under a warrant under
paragraph 32.

5Power to inspect products etc

25 (1) The officer may inspect any product on the premises.

(2) The power in sub-paragraph (3) is also available to an officer of a domestic
enforcer acting pursuant to the duty in section 27(1) of the Consumer
Protection Act 1987 or regulation 10(1) of the General Product Safety
10Regulations 2005 (SI 2005/1803SI 2005/1803).

(3) The officer may examine any procedure (including any arrangements for
carrying out a test) connected with the production of a product.

(4) The powers in sub-paragraph (5) are also available to an officer of a domestic
enforcer acting pursuant to—

(a) 15the duty in regulation 10(1) of the Weights and Measures (Packaged
Goods) Regulations 2006 (SI 2006/659SI 2006/659) (“the 2006 Regulations”), or

(b) the duty in regulation 10(1) of the Weights and Measures (Packaged
Goods) Regulations (Northern Ireland) 2011 (SR 2011/331SR 2011/331) (“the
2011 Regulations”).

(5) 20The officer may inspect and take copies of, or of anything purporting to be—

(a) a record of a kind mentioned in regulation 5(2) or 9(1), or

(b) evidence of a kind mentioned in regulation 9(3).

(6) The references in sub-paragraph (5) to regulations are to regulations in the
2006 Regulations in the case of a domestic enforcer in Great Britain or the
252011 Regulations in the case of a domestic enforcer in Northern Ireland.

(7) The powers in sub-paragraph (8) are also available to an officer of a domestic
enforcer acting pursuant to the duty in regulation 37(1)(a)(ii) or (b)(ii) of the
Electromagnetic Compatibility Regulations 2006 (SI 2006/3418SI 2006/3418).

(8) The officer may—

(a) 30inspect any apparatus or fixed installation (as defined in those
Regulations), or

(b) examine any procedure (including any arrangements for carrying
out a test) connected with the production of apparatus.

Power to test equipment

26 (1) 35An officer of a domestic enforcer may test any weighing or measuring
equipment—

(a) which is, or which the officer has reasonable cause to believe may be,
used for trade or in the possession of any person or on any premises
for such use, or

(b) 40which has been, or which the officer has reasonable cause to believe
to have been, passed by an approved verifier, or by a person
purporting to act as such a verifier, as fit for such use.

(2) Expressions used in sub-paragraph (1) have the same meaning—

(a) as in the Weights and Measures Act 1985, in the case of a domestic
enforcer in Great Britain;

(b) as in the Weights and Measures (Northern Ireland) Order 1981 (SI
1981/231 (NI 10)), in the case of a domestic enforcer in Northern
5Ireland.

(3) The powers in sub-paragraph (4) are available to an officer of a domestic
enforcer acting pursuant to—

(a) the duty in regulation 10(1) of the Weights and Measures (Packaged
Goods) Regulations 2006 (SI 2006/659SI 2006/659) (“the 2006 Regulations”), or

(b) 10the duty in regulation 10(1) of the Weights and Measures (Packaged
Goods) Regulations (Northern Ireland) 2011 (SR 2011/331SR 2011/331) (“the
2011 Regulations”).

(4) The officer may test any equipment which the officer has reasonable cause
to believe is used in—

(a) 15making up packages (as defined in regulation 2) in the United
Kingdom, or

(b) carrying out a check mentioned in paragraphs (1) and (3) of
regulation 9.

(5) The references in sub-paragraph (4) to regulations are to regulations in the
202006 Regulations in the case of a domestic enforcer in Great Britain or the
2011 Regulations in the case of a domestic enforcer in Northern Ireland.

Power to require the production of documents

27 (1) The officer may, at any reasonable time—

(a) require a trader occupying the premises, or a person on the premises
25acting on behalf of such a trader, to produce any documents relating
to the trader’s business to which the trader has access, and

(b) take copies of, or of any entry in, any such document.

(2) The power in sub-paragraph (1) is available regardless of whether—

(a) the purpose for which the documents are required relates to the
30trader or some other person, or

(b) the proceedings referred to in paragraph 19(3)(b) or 20(4)(b) could be
taken against the trader or some other person.

(3) That power includes power to require the person to give an explanation of
the documents.

(4) 35Where a document required to be produced under sub-paragraph (1)
contains information recorded electronically, the power in that sub-
paragraph includes power to require the production of a copy of the
document in a form in which it can easily be taken away and in which it is
visible and legible.

(5) 40This paragraph does not permit an officer to require a person to create a
document other than as described in sub-paragraph (4).

(6) This paragraph does not permit an officer to require a person to produce any
document which the person would be entitled to refuse to produce—

(a) in proceedings in the High Court on the grounds of legal
45professional privilege, or

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

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

(a) communications between a professional legal adviser and the
5adviser’s client, or

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

(8) In this paragraph “trader” has the same meaning as in Part 1 of this Act.

Power to seize and detain goods

28 (1) 10The officer may seize and detain goods other than documents (for which see
paragraph 29).

(2) An officer seizing goods under this paragraph from premises which are
occupied must produce evidence of the officer’s identity and authority to an
occupier of the premises before seizing them.

(3) 15The officer need not comply with sub-paragraph (2) if it is not reasonably
practicable to do so.

(4) An officer seizing goods under this paragraph must take reasonable steps
to—

(a) inform the person from whom they are seized that they have been
20seized, and

(b) provide that person with a written record of what has been seized.

(5) If, under this paragraph, an officer seizes any goods from a vending
machine, the duty in sub-paragraph (4) also applies in relation to—

(a) the person whose name and address are on the vending machine as
25the owner of the machine, or

(b) if there is no such name and address on the machine, the occupier of
the premises on which the machine stands or to which it is fixed.

(6) In determining the steps to be taken under sub-paragraph (4), an officer
exercising a power under this paragraph in England and Wales or Northern
30Ireland must have regard to any relevant provision about the seizure of
property made by—

(a) a code of practice under section 66 of the Police and Criminal
Evidence Act 1984, or

(b) a code of practice under Article 65 of the Police and Criminal
35Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)SI 1989/1341 (NI 12)),

(as the case may be).

(7) Goods seized under this paragraph (except goods seized for a purpose
mentioned in paragraph 19(5)(b)) may not be detained—

(a) for a period of more than 3 months beginning with the day on which
40they were seized, or

(b) where the goods are reasonably required to be detained for a longer
period by the enforcer for a purpose for which they were seized, for
longer than they are required for that purpose.