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);

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• 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) or (1A) of the Business Protection from Misleading
  Marketing Regulations 2008 (SI 2008/1276SI 2008/1276);

• regulation 19(1) or (1A) 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);

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• 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);

• section 85(1) of this Act.”

10Enforcer’s legislation: legislation mentioned in paragraph 9(1)(b)

11 Here 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) 10amend 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) 15The 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
thinks that the condition in sub-paragraph (3) is met.

(3) 20That 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
meanings given by section 46 of the Protection of Freedoms Act 2012.

(5) 25An 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
instrument containing the order has been laid before, and approved by a
30resolution 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) In this paragraph “primary legislation” means—

(a) 35an 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.

Part 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
5this 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
Part of this Schedule for any of the following purposes—

(a) to enable the Authority to exercise or to consider whether to exercise
10any 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) to enable a Community enforcer to consider whether to exercise any
function it has under that Part;

(d) 15to 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) 20A 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
following purposes—

(a) 25to 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
the application of that enforcer;

(c) 30to 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
with an undertaking given to that enforcer under section 219 of that
35Act.

(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) But a domestic enforcer may not exercise the power in paragraph 14 (power
40to 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
authority within the meaning of Article 2(18) of the Regulation on
45Accreditation 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
Schedule 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
5unfair 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
under paragraph 6 of that Schedule.

(8) 10But 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
paragraph 3 of Schedule 3.

(9) 15A 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
2017 of that Act.

(10) In 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)

  25is 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
  (which provides that the Secretary of State may designate a
  person or body which is not a public body only if it satisfies
  30criteria 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
the person to provide the enforcer with the information specified in the
notice.

35Procedure 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) 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) 40The 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) the 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
enforcer.

(5) 5A 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
refuse to provide or produce—

(a) 10in 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) In sub-paragraph (6) “communications” means—

(a) 15communications 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) 20If 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) 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) 25An 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
complied with.

(4) An order under this paragraph may require the person to meet the costs or
30expenses 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
responsible for the failure to meet the costs or expenses.

(6) In this paragraph—

• 35“the court” means—

  (a)

  the 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)

  40the sheriff;

• “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,

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  (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
  concerned in the management or control of its affairs.

5Limitations 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
response to such a notice.

(3) 10In 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
of the prosecution.

(4) 15Sub-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) 20Sub-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)
25(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 30In its application in relation to—

(a) an enforcer acting for a purpose within paragraph 13(2) or (3), or

(b) an enforcer acting for the purpose of ascertaining whether there has
been a breach of the Consumer Protection from Unfair Trading
Regulations 2008 (SI 2008/1277SI 2008/1277),

35this 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) A domestic enforcer may exercise a power in this Part of this Schedule only
40for 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
legislation.

(3) A domestic enforcer may exercise the power in paragraph 27 (power to
5require 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) to ascertain whether the documents may be required as evidence in
proceedings for a breach of, or under, the enforcer’s legislation.

(4) 10A 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) the 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
15legislation, or

(b) 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 purpose of market
surveillance within the meaning of Article 2(17) of that Regulation.

(5) 20A 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) 25goods which an officer of the enforcer reasonably suspects are liable
to 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) 30A domestic enforcer may exercise the power in paragraph 29 (power to seize
documents 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) 35A domestic enforcer may exercise the power in paragraph 30 (power to
decommission 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)
40whether there has been such a breach.

(8) For 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
453(1)(d) of that Act (practice in relation to estate agency work declared
undesirable 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) Any 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) 5If 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
relating 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) 10that there has been, or is likely to be, a Community infringement,

(b) a failure to comply with an enforcement order or an interim
enforcement 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,
15or

(d) a failure to comply with an undertaking given to that enforcer under
section 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) 20the 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) An EU enforcer may exercise the power in paragraph 28 (power to seize and
25detain 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-
paragraph (3)(b), (c) or (d), or

(b) 30may 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
of the enforcer reasonably suspects may be required as evidence in
35proceedings 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) enter into an agreement to secure the provision of a product.

(2) 40For 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) inspect any product on the premises which the public may inspect.