Consumer Rights Bill (HL Bill 64)

(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,

  Consumer Rights BillPage 81

  (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 (SI 1979/1714 (NI 19)SI 1979/1714 (NI 19)) (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.

(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
5in 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.

10Power 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) In the case of a routine inspection, the power of entry in sub-paragraph (1)
15may only be exercised if a notice has 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) 20the 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
notice and the date of entry.

(5) A notice need not be given if the occupier has waived the requirement to
25give notice.

(6) In this paragraph “routine inspection” means an exercise of the power in
sub-paragraph (1) other than where—

(a) the power is exercised by an officer of a domestic enforcer who
reasonably suspects a breach of the enforcer’s legislation,

(b) 30the officer reasonably considers that to give notice in accordance
with sub-paragraph (3) would defeat the purpose of the entry,

(c) it is not reasonably practicable in all the circumstances to give notice
in accordance with that sub-paragraph, in particular because the
officer reasonably suspects that there is an imminent risk to public
35health or safety, or

(d) 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
within the meaning of Article 2(17) of that Regulation.

(7) 40If an officer of an enforcer enters premises under sub-paragraph (1)
otherwise than in the course of a routine inspection, and 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) indicates the nature of the offence under paragraph 36 (obstruction).

(8) If an officer of an enforcer enters premises under sub-paragraph (1) and
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
5more than one) to at least one of them.

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

(10) 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
10(7) or (8).

(11) An 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.

(12) In this paragraph—

• 15“give”, in relation to the giving of a notice to the occupier of premises,
  includes 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)

  20Christmas Day or Good Friday, or

  (c)

  a 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 25Paragraphs 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.

Power to inspect products etc

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

(2) 30The 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
Regulations 2005 (SI 2005/1803SI 2005/1803).

(3) The officer may examine any procedure (including any arrangements for
35carrying 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) 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) 40the 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) The 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
2011 Regulations in the case of a domestic enforcer in Northern Ireland.

(7) 5The 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) inspect any apparatus or fixed installation (as defined in those
10Regulations), 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) An officer of a domestic enforcer may test any weighing or measuring
15equipment—

(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) which has been, or which the officer has reasonable cause to believe
20to 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) 25as in the Weights and Measures (Northern Ireland) Order 1981 (SI
1981/231 (NI 10)), in the case of a domestic enforcer in Northern
Ireland.

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

(a) 30the 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”).

(4) 35The officer may test any equipment which the officer has reasonable cause
to believe is used in—

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

(b) carrying out a check mentioned in paragraphs (1) and (3) of
40regulation 9.

(5) The references in sub-paragraph (4) to regulations are to regulations in the
2006 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) 45The officer may, at any reasonable time—

(a) require a trader occupying the premises, or a person on the premises
acting 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) 5The power in sub-paragraph (1) is available regardless of whether—

(a) the purpose for which the documents are required relates to the
trader 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) 10That power includes power to require the person to give an explanation of
the documents.

(4) Where 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
15document in a form in which it can easily be taken away and in which it is
visible and legible.

(5) This 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
20document which the person would be entitled to refuse to 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) 25In 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.

(8) 30In this paragraph “trader” has the same meaning as in Part 1 of this Act.

Power to seize and detain goods

28 (1) The 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
35occupied must produce evidence of the officer’s identity and authority to an
occupier of the premises before seizing them.

(3) The 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
40to—

(a) inform the person from whom they are seized that they have been
seized, 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
the owner of the machine, or

(b) 5if 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
Ireland must have regard to any relevant provision about the seizure of
10property 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
Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)SI 1989/1341 (NI 12)),

15(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
they were seized, or

(b) 20where 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.

Power to seize documents required as evidence

29 (1) The officer may seize and detain documents.

(2) 25An officer seizing documents 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) The officer need not comply with sub-paragraph (2) if it is not reasonably
practicable to do so.

(4) 30An officer seizing documents under this paragraph must take reasonable
steps to—

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

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

(5) 35In determining the steps to be taken under sub-paragraph (4), an officer
exercising a power under this paragraph in England and Wales or Northern
Ireland 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
40Evidence Act 1984, or

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

(as the case may be).

(6) This paragraph does not confer any power on an officer to seize from a
45person any document which the person would be entitled to refuse to
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) 5In 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.

(8) 10Documents seized under this paragraph may not be detained—

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

(b) where the documents are reasonably required to be detained for a
longer period by the enforcer for the purposes of the proceedings for
15which they were seized, for longer than they are required for those
purposes.

Power to decommission or switch off fixed installations

30 (1) The power in sub-paragraph (2) is available to an officer of a domestic
enforcer acting pursuant to the duty in regulation 37(1)(a)(ii) or (b)(ii) of the
20Electromagnetic Compatibility Regulations 2006 (SI 2006/3418SI 2006/3418).

(2) The officer may decommission or switch off any fixed installation (as
defined in those Regulations) or part of such an installation.

Power to break open container etc

31 (1) The officer may, for the purpose of exercising any of the powers in
25paragraphs 28 to 30, require a person with authority to do so to—

(a) break open any container,

(b) open any vending machine, or

(c) access any electronic device in which information may be stored or
from which it may be accessed.

(2) 30Where a requirement under sub-paragraph (1) has not been complied with,
the officer may, for the purpose of exercising any of the powers in
paragraphs 28 to 30—

(a) break open the container,

(b) open the vending machine, or

(c) 35access the electronic device.

(3) Sub-paragraph (1) or (2) applies if and to the extent that the exercise of the
power in that sub-paragraph is reasonably necessary for the purposes for
which that power may be exercised.

(4) In this paragraph “container” means anything in which goods may be
40stored.